VI.
PLEADINGS
1. Kinds of Pleadings
- Pleadings are the written statements of the respective claims and
defenses of the parties submitted to the court for appropriate
judgment (Sec. 1 Rule 6)
A. Complaint
- It is the concise statement of the ultimate facts constituting the
plaintiff’s or claiming party’s cause or causes of action.
- The names and residences of the plaintiff and defendant, if known,
must be stated. (Sec. 3 Rule 6)
- Ultimate facts: It is the essential facts constituting the plaintiff’s
cause of action. A fact is essential if it cannot be stricken out without
leaving the statement of the cause of action insufficient. A pleading
should state the ultimate facts essential to the rights of action or
defense asserted, as distinguished from mere conclusion of fact, or
conclusion of law. An allegation that a contract is valid, or void, is a
mere conclusion of law. (Remitere v. Yulo)
- Test of Sufficiency of the Facts Alleged in the Complaint to
Constitute Cause of Action: Whether, admitting the facts alleged,
the court render a valid judgment upon the same in accordance with
the prayer of the petition or complaint. (Lazaro v. Brewmaster Int’l)
- The jurisdiction of the court and the nature of the action are
determined by the averments in the complaint, and not the prayer
for relief.
B. Answer
• It is a pleading in which a defending party sets forth his defenses
(Sec. 4 Rule 6)
• It may be an answer to the complaint, an answer to a counter-claim,
or an answer to a cross-claim.
• Kinds of Defenses:
a. Affirmative defense
o 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 or her. (Sec. 5b, Rule 6)
o Affirmative defenses include: (FRIED-ACS2)
▪ Fraud
▪ Statute of Limitations
▪ Release
▪ Payment
▪ Illegality
▪ Statute of Frauds
▪ Estoppel
▪ Former Recovery
▪ Discharge in bankruptcy
▪ Any other matter by way of Confession and
Avoidance
Note: The enumeration above is not exclusive. Thus, ultra
vires of a corporation, or lack of authority of aperson
assuming to act for corporation, laches and
unconstitutionality may be specifically pleaded
o Amendment: Affirmative defenses may also include:
▪ No jurisdiction over the subject matter
▪ Litis pendentia
▪ Res judicata
▪ Statute of Limitations
Note: By repeal of Rule 16, the grounds under it should now
be pleaded as either a. Affirmative defense (which must be
put in the answer) or b. Motion to dismiss (but for 4
grounds above only)
b. Negative defense
o Is the specific denial of the material facts or facts alleged
in the pleading of the claimant essential to his cause or
causes of action.
o Specific denial has three modes.
▪ Absolute Denial: The defendant must specify each
material allegation of fact the truth of which he does
not admit and whenever practicable set forth the
substance of the matters on which he will rely to
support his denial;
▪ Partial Denial: When the defendant wants to deny
only a part or a qualification of an averment in the
complaint, he must specify so much of the averment
as is true and material and deny the remainder; and
▪ Disavowal of Knowledge: When the defendant is
without knowledge and 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.
o Insufficient denial or Denial amounting to admission:
▪ General Denial
 ▪ Denial in the form of a negative pregnant There is an absence of a logical
c. Negative Pregnant connection with the subject
o It is a form of negative expression which carries with it an matter of the complaint.
affirmation or at least an implication of some kind favorbale It does not require for its It may require for its
to the adverse party. It is a denial pregnant with an adjudication the presence of adjudication the presence of
admission of the substantial facts alleged in the pleading. third parties of whom the court third parties of whom the
o Where a fact is alleged with qualifying or modifying cannot acquire jurisdiction. court cannot acquire
language and the words of the allegation as to qualified or jurisdiction.
modified are literally denied, has been held that the BARRED if not set up or raised Not barred if not set up or
qualifying circumstances alone are denied are denied while in the same action raised in the same action
the fact itself is admitted. (Amendment; Sec 7a Rule 6)
o It refers to a denial which implies its affirmative opposite by Need not be answered. No Must be answered. Otherwise,
seeming to deny only a qualification or an incidental aspect Default. default.
of the allegation but not the main allegation. Within the jurisdiction of the Must be within the jurisdiction
o Example: court both as to the amount of the court where the case is
A complaint alleges: “Plaintiff extended a loan to Defendant and nature thereof (Sec 7 Rule pending and cognizable by
in the amount of P5000 on July 27, 2006 in Baguio City” 6) courts of justice otherwise, the
Exception: In an original action defendant will have to file it in
Defendant’s answer: “Defendant specifically denies that before the RTC, the a separate proceeding which
Plaintiff extended loan to Defendant in the amount of counterclaim may be requires payment of docket
P5000 on July 27 2006 in Baguio City considered compulsory fee
regardless of the amount
The answer is a mere repetition of the allegations made in Note: Payment of docket fees
the complaint. The answer is vague as what it really denies. for Compulsory Counterclaims
Is it the existence of loan? The amount? The place? Hence, remains suspended (Korea
the effect of this denial is an admission. Technologies Co. Ltd v Lerma)
Need not be accompanied by a Must be accompanied by a
C. Counterclaims certificate against forum certificate of forum shopping
• It is any claim which a defending party may have against an opposing shopping because it is not an because it is considered an
party (Sec. 6 Rule 6) initiatory pleading Initiatory pleading
• It partakes of a complaint by the defendant against the plaintiff. • Test to determine whether the counterclaim is compulsory. (IREL)
(Pro-Line Sports Inc. v. CA) a. Issues – Are the issues of fact and law raised by the claim and
• Two kinds of Counterclaims: the counterclaim largely the same?
Compulsory Counterclaim Permissive Counterclaim b. Res Judicata – Would res judicata bar a subsequent suit on the
One which arises out of or is It does not arise arises out of defendant’s claim, absent the compulsory counterclaim rule?
necessarily connected with the nor is necessarily connected c. Evidence – Will substantially the same evidence support or
transaction or occurrence that with the transaction or refute the plaintiff’s claim, as well as the defendant’s
is the subject matter of the occurrence that is the subject counterclaim?
opposing party’s claim (Sec. 7 matter of the opposing party’s d. Logical Relation – Is there any logical relation between the
Rule 6) claim claim and the counterclaim?
 A positive answer to all four questions would indicate that the
counterclaim is compulsory (Bungcayao Sr. v. Fort Ilocandia
Property Holdings and Development Corp)
• Effect on the Counterclaim when the complaint is Dismissed:
a. If no motion to dismiss has been filed – any of the grounds for
dismissal may be pleaded as an affirmative defense in the
answer (Although the amendment already states that the
grounds for dismissal under Rule 16 can now be asserted thru
an affirmative defense or thru motion to dismiss)
b. When the plaintiff himself files a motion to dismiss his
complaint after the defendant has pleaded his answer with a
counterclaim – If the court grants the motion, the dismissal
shall be limited to the complaint. It shall be without prejudice
to the right of the defendant to prosecute his counterclaim in a
separate action unless within 15 calendar days from the notice
of the motion, manifests his presence to have his counterclaim
resolved in the same action (Sec 2 Rule 17)
c. When the complaint is dismissed through the fault of the
plaintiff and at a time when a counterclaim has already been
set up – the dismissal is without prejudice to the right of the
defendant to prosecute his counterclaim in the same or
separate action.
• A compulsory counterclaim that a defending party has at the time he
files his answer shall be contained therein. Pursuant to Section 7a,
Rule 6 of the 1997 Rules of Civil Procedure, a compulsory
counterclaim not set up shall be barred.
• As the plaintiff in his own counterclaim, the petitioner is equally
entitled to the opportunity granted the plaintiff in the original
complaint, to establish his cause of action and to prove the right he
asserts.
The courts a quo deprived the petitioner of such opportunity when
they barred him from propounding questions relating to the validity
of the respondents’ title; they unjustifiably precluded him from
presenting evidence of fraud and misrepresentation upon which his
counterclaim is grounded. The courts a quo, the RTC especially,
should have instead dealt with such issues and allowed the
presentation of the facts and evidence necessary for a complete
determination of the controversy. (Firaza Sr. v. Ugay)
D. Cross-claims
• It is any claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter of either the
original action, or a counterclaim therein. (Sec. 8 Rule 6)
• Such cross-claim may cover all or part of the original claim
(amendment)
• Requisites:
a. A claim by one party against a co-party
b. It must arise out of the subject matter of the complaint or of
the counterclaim
c. The cross-claimant is prejudiced by the claim against him by the
opposing party
• Effect if a cross-claim was not set up
General Rule: Barred if not set-up (Sec.2 Rule 9)
Exceptions:
a. If it is not asserted due to oversight, inadvertence, or excusable
negligence, it may still be set up with leave of court by
amendment of the pleadings. (Sec 10 Rule 11)
b. When it is outside the jurisdiction of the court
c. If the court cannot acquire jurisdiction over 3rd parties whose
presence is necessary for the adjudication of said cross-claim
d. Cross-claim that may mature or may be acquired after service
of answer, by permission of the court, be presented by
supplemental pleadings before judgement
• Counterclaim vs. Cross-claim
Counterclaim Cross-claim
It is a claim against an opposing It is a claim against a co-party
party
It may or may not arise out of It must arise from the
the subject matter of the transaction or occurrence that
complaint, as it may be is the subject matter of the
permissive or compulsory original complaint
• Purpose: To settle in a single proceeding all the claims of the
different parties against each other in the case in order t avoid
multiplicity of suits (Republic v. Paredes)
• Note: The dismissal of the complaint carries with it the dismissal of a
cross-claim which is purely defensive, but not a cross-claim seeking
an affirmative relief (Pinga v. Heirs of Santiago)
E. Third (Fourth, etc.) Party Complaint
• It is a claim that a defending party may, with leave of court, file
against a person not a party to the action, called the third (fourth,
 etc.) party defendant, for contribution, indemnity, subrogation or c. The claim of the original defendant against the third-party
any other relief (CISO), in respect of plaintiff’s claim (Sec. 11 Rule 6) defendant must be based upon the plaintiff’s claim against the
Cross-claim Counterclaim Third-party original defendant
Complaint d. The defendant is attempting to transfer to the third-party
Against whom Filed defendant the liability asserted against him by the original
A claim against a co- A claim against an Against a person not plaintiff
party opposing party a party to the action • Test to determine whether the third-party complaint is based upon
As to Basis of Claim plaintiff’s claim:
Must arise from the May or may not arise Similar to a cross- a. Whether it arises out of the same transaction on which the
transaction or out of the subject claim in that the plaintiff’s claim is based, or, although arising out of another or
occurrence that is matter of the third-party plaintiff different transaction, is connected with the plaintiff’s claim
the subject matter complaint. It may be seeks to recover b. Whether the third-party defendant would be liable to the
of the original compulsory or from another person plaintiff or to the defendant for all or part of the plaintiff’s claim
complaint or permissive. some relief in respect against the original defendant
counterclaim to the opposing c. Whether the third-party defendant may assert any defenses
party’s claim which the third-party plaintiff has or may have to the plaintiff’s
As to necessity of leave of court claim (Capayas v. CFI of Albay)
Not required Not required Required • Note: When the trial court has jurisdiction over the main case, it also
has jurisdiction over the party complaint, regardless of the amount
• Leave of court is required in order to obviate delay in the resolution involved as a third-party complaint is merely auxiliary to and is a
of the complaint, such as when the third-party defendant cannot be continuation of the main action (Republic v. Central Surety &
located, or when unnecessary issues may be introduced, or when a Insurance Co)
new and separate controversy is introduced. • Third Party Complaint vs. Bringing in New Parties
• Amendment (Sec 11a, Rule 6): Third-party complaint Rule on bringing in New Parties
▪ If the third-party complaint is denied admission (since It is proper when none of the If one or more of the
admission of it is based on the sound discretion of the third-party defendants therein defendants in a counterclaim
court), remedy is to file a separate action and not to insist is a party to the main action or cross-claim is already a party
(by appeal or petition for certiorari) (DBP v. Clarges Corp) to the action, then the other
▪ If the third-party complaint is admitted, but the 3rd party necessary parties may be
defendant cannot be located within 30 calendar days from brought in as defendants under
the grant of such leave, the grant can still be recalled by the Rules on bringing in new
the court parties (Sec 12 Rule 6)
▪ However, the dilemma is that the defendant may not be • In action to recover possession by a co-owner, the defendant files a
located because the summon cannot be served and under counterclaim to recover title to the same property. The other co-
Rule 14 Sec 16, the 3rd party plaintiff has a right to have owners may be brought in under Rule on bringing in New Parties as
the summon be served through publication. So, defendants to the counterclaim for complete relief thereon.
publication or recall?? • Answer to 3rd party complaint
• Requisites for a third-party action (Philtranco Service Enterprises Inc. ▪ 3rd party defendant may allege in his answer his defenses,
v. Paras) counterclaims or cross-claims, including such defenses that
a. The party to be impleaded must not yet be a party to the action the third-party plaintiff may have against the original
b. The claim against the third-party defendant must belong to the plaintiff’s claim.
original defendant
 ▪ The time to answer a third-party complaint is governed by • General Rule: Intervention is a matter of discretion on the part of
the same rule as the answer to the complaint hence within the court
(Sec 5, Rule 11) (30 calendar days Sec 1, Rule 11) Exception:
• Paramount Life & General Insurance v. Castro a. When the intervenor turns out to be an indispensable party
▪ Paramount argues that the propriety of a third-party b. In a class suit where any party in interest of the class has the
complaint rests on whether the possible third-party right to intervene
defendant (in this case PPSBI) can raise the same defenses Complaint-in-intervention Third-party Complaint
that the third-party plaintiffs (The Castros) have against By whom filed
the original plaintiff. Filed by a stranger to the Filed by an original party to
▪ The Court ruled that based on Sec 13 Rule 6, the Rules do action to be made a party the case to join the third
not limit the third-party defendant’s options to such a therein person in the action
condition. As to the said rule, the same defenses the third- As to purpose
party plaintiff has against the original plaintiff are just The intervenor may The original party to the
some of the allegations a third-party defendant may raise intervene in the case for his action impleads a third-
in its answer. Sec 13 even gives the third-party defendant sole benefit and for his own party for the purpose of
the prerogative to raise a counterclaim (hence to litigate a itnerest Contribution,
separate cause of action) against the original plaintiff in Indemnification,
respect of the latter's original claim against the Subrogation or Other Reliefs
defendant/third-party plaintiff. (CISO)
• Time to intervene: The motion to intervene may be filed at any time
before rendition of judgment by the trial court
F. Complaint-In-Intervention (Rule 19) General Rule: After trial and decision in a case, Intervention can no
• It is a pleading filed for the purpose of asserting a claim against longer be permitted
either or all of the original parties (Sec 3 Rule 19) Exceptions:
• Requisites for an Intervention by a Non-party in an action pending in a. With respect to indispensable parties, intervention may be
court or Who may intervene: F-SUPC allowed even on appeal
a. There must be a motion for intervention Filed before rendition b. In order to avoid injustice
of judgment by the trial courts c. Intervention may be allowed after judgment where it is
b. The movant must Show that he: (LEBS) necessary to protect some interest which cannot otherwise be
▪ Has a legal interest in the matter in Litigation protected and may be allowed for the purpose of preserving
▪ Has a legal interest in the success of Either party the intervenor’s right to appeal
▪ Has legal interest against Both of them; or • The intervenor shall file:
▪ Is so Situated that he will be adversely affected by a a. Answer-in-intervention – where the intervenor unites with the
distribution or other disposition of property in the defendant
custody of the court or an officer thereof b. Complaint-in-intervention against the defendant – if he unites
c. The intervention must not Unduly delay or prejudice the with the plaintiff
adjudication of the rights of the original parties c. Complaint-in-intervention against both – if he does not ally
d. The intervenor’s rights may not be fully Protected in a separate himself with either party
proceeding • A complaint-in-intervention is an initiatory pleading. As such, it is
e. A Copy of the pleading-in-intervention shall be attached to the subject to the requirements of payment of docket fees and
motion and served on the original parties Certification against Forum Shopping
• The Answer to the complaint-in-intervention shall be filed within 15
calendar days unless a different period is fixed by the court
• Remedies for the improper denial of a Motion for Intervention:
a. Appeal; or
b. Certiorari and Mandamus, if discretion is exercised in an
arbitrary or capricious manner
• Remedy for improper granting of Motion for Intervention: Certiorari
and Prohibition
• Note: Intervention is not allowed in summary proceeding and small
claims cases
G. Reply (Sec 10 Rule 6)
• A pleading, the function of which is to deny, or allege facts in denial,
or avoidance of new matters by way of defense in the answer and
thereby join or make issue as to such matters
• It is a responsive pleading to an answer
• Necessity of filing a reply:
General Rule: It is not necessary since even if a party does not file a
reply, all the new matters that were alleged are deemed
controverted
Exceptions:
a. Where the answer is based on an actionable document and the
plaintiff would like to deny the due execution and authenticity
of the said document attached to the answer, the plaintiff
should file a reply. Otherwise, the due execution and
authenticity of said actionable document are deemed admitted.
b. Where the answer alleges the defense of usury in which case a
reply under oath is required. Otherwise, the allegations of usury
are deemed admitted. (Sec 11 Rule 8)
• Amendments:
a. If the defenses in the answer are NOT founded in an actionable
document, and the plaintiff wishes to interpose any claims
arising out of the new matters, reply is not the one that should
be filed. It should be either by Amendment of the complaint or
Supplemental complaint
b. If no new matters, answer is the end of the pleading
c. If defenses are found in actionable document and the plaintiff
would like to deny the due execution and authenticity of the
said document attached to the answer, the plaintiff should file
a reply. Ohterwise, the authenticity and due execution of the
document is deemed accepted; all other things are deemed
controverted.
d. If a reply is founded on actionable document and the plaintiff
would like to deny the due execution and authenticity of the
said document attached to the reply, the plaintiff should file a
rejoinder.
• Answer to Counterclaim vs. Reply
a. Reply is a response to the defense interposed by the defendant
in his answer, whereas an answer to a counterclaim is a
response to a cause of action by the defendant against the
plaintiff
b. The filing of a reply is generally optional whereas the filing of an
answer to a counterclaim is generally mandatory under Rule 11
as failure to file an answer to the counterclaim shall render the
plaintiff in default on the counterclaim
H. Counter-counterclaims and counter-cross-claim (Sec 9 Rule 6)
• A counterclaim may be asserted against an original counter-claimant
• A cross-claim can be filed against an original cross-claimant
2. Pleadings allowed in Small claim cases and cases covered by the Rules on
Summary Procedure
3. Parts and Contents of a Pleading (Rule 7)
A. Caption and body of a Pleading (Sec 1 and 2, Rule 7)
• The caption sets forth: (NTD)
a. Name of the court
b. Title of the action; and
c. Docket number
• The title of the action indicates the names of the parties. They shall
all be named in the original complaint or petition but in subsequent
pleadings, it shall be sufficient if the name of the first party on each
side be stated with an appropriate indication when there are other
parties. Their respective participation in the case shall be indicated.
• It is not the caption of the pleading but the allegations therein which
determines the nature of the action, and the court shall grant relief
warranted by the allegations and proof even if no such relief Is
prayed for (Torres v Aruego)
• The body sets forth:
a. Its designation
b. The allegation of the party’s claims and defenses
c. The relief prayed for
d. The date of the pleading
• A court can grant the relief warranted by the allegation and the
proof even if it is not specifically sought by the injured party; the
inclusion of a general prayer may justify the grant of a remedy
different from or together with the specific remedy sought, if the
facts alleged in the complaint and the evidence introduced so
warrant. (Prince Transport Inc v. Garcia)
B. Signature and address (Sec 3 Rule 7)
• Every pleading must be signed by the party himself or his counsel. A
unsigned pleading produces no legal effect. However, the court may.
In its discretion, allow such deficiency to be remedied if it shall
appear the same was due to inadvertence and intended to delay.
• Amendment (Sec 3b Rule 7) Effect of the signature of counsel in a
pleading: When a lawyer affixes his signature in the pleading, he
guarantees the following:
a. That he has read the pleading and document
b. That to the best of his knowledge, information or belief, it is
formed after an inquiry reasonable under the circumstances:
i. It is not being presented for any improper purpose
such as to harass, cause necessary delay, or
needlessly increase the cost of litigation
ii. The claims, defenses, and other legal contention are
all based on law and jurisprudence
iii. The factual contentions have evidentiary support or,
if specifically, so identified, will likely have evidentiary
support after availment of the modes of discovery
under the rules
iv. The denials of factual contentions are based on
evidence or, if specifically, so identified, are
reasonably based on belief or a lack of information
• Amendment: (Sec 3c Rule 7)
a. If the rule above is violated, the court on motion or motu
proprio and after notice and hearing, may impose appropriate
sanction (eg. Disbarment, an order to pay penalty in court, pay
movant’s part or all of attorney’s fee for filing of such, etc.)
b. The law firm shall be held jointly and severally liable
c. The lawyer or law firm cannot pass on the monetary penalty to
the client
C. Verification (Sec 4 Rule 7)
• Pleadings are not necessary in pleadings except when otherwise
specifically required by law or rule
• Amendment: The authorization of the affiant to act on behalf of a
party, whether in a form of Secretary’s certificate or a Special power
of attorney, should be attached to the pleading
• How to verify:
a. The allegations in the pleading are true and correct based on
his or her personal knowledge, or based on authentic
documents
b. The pleading is not filed to harass, cause unnecessary delay or
needlessly increase the cost of litigation (amendment)
c. The factual allegations therein have evidentiary support or, if
specifically, so identified, will likewise have evidentiary support
after a reasonable opportunity for discovery (amendment)
• Purpose of Requiring Verification: To secure an assurance that the
allegations in a pleading are true and correct and that the pleading is
filed in good faith (Sarmiento v Zaratan)
• Pleading that should be verified (not exclusive)
a. Certification against forum shopping
b. Statement of Claim for Small Claims Cases
c. Complaint for Injunction
d. Application for appointment of receiver
e. Application of support pendente lite
f. Complaint for forcible entry or unlawful detainer
g. Petition for indirect contempt
h. Petition for relief from judgment or order
i. Petition for review from RTC to the CA
j. Petition for review from quasi-judicial agencies to CA
k. Appeal by certiorari from CTA to SC
l. Appeal by certiorari from CA to SC
m. Petition for annulment of judgments or final orders and
resolutions
n. Petition for certiorari against the judgments, final orders or
resolutions of constitutional commissions
o. Petition for certiorari
p. Petition for prohibition
q. Petition for mandamus
r. Petition for quo warranto
s. Complaint for expropriation
t. Petition for appointment of general guardian
u. Petition for leave to sell or encumber property of the ward by a
guardian
v. Petition for declaration of competency of a ward
w. Petition for habeas corpus
 x. Petition for change of name
y. Petition for voluntarhy judicial dissolution of a corporation
z. Petition for cancellation or correction of entries in the civil
registry
• Effect of defective verification:
Verification of a pleading is only a formal, not a jurisdictional,
requirement. Noncompliance therewith does not necessarily render
the pleading fatally defective. (Torres-Gomez v Codilla)
So, the other party can just raise a motion for the other party to
complete the verification and the court will issue the order.
D. Certification Against Forum Shopping (Sec 5 Rule 7)
• Forum shopping – is committed when multiple suits involving the
same parties and the same causes of action are files, either
simultaneously or successively for the purpose of obtaining
favorable judgment through means other than appeal or certiorari
(Vda De Karaan v Aguinaldo)
• Test to Determine if Forum Shopping exists: (PRJ)
a. Identity of Parties, or at least such parties as represent the
same interest in both actions
b. Identity of Rights asserted and relief prayed for, the relief being
found on the same facts
c. The identity of the two preceding particulars is such that any
Judgment rendered in the pending case, regardless of which
party is successful would amount to res judicata
• Certificate against Forum Shopping is required only in a complaint or
other initiatory pleading
• Accdg to A.M. No 04-94, the ff are considered initiatory pleadings:
a. Original civil complaint
b. Permissive counterclaim
c. Cross-claim
d. Third-party complaint
e. Complaint-intervention
f. Any other petition or application wherein a party asserts his
claim for relief
Note: Answer and Compulsory Counterclaim are not initiatory
pleadings
• General Rule: The Certificate against forum shopping must be
executed by the principal party and not the counsel because the
attestation contained in the certification on non forum shopping
requires personal knowledge of whether he actually or caused the
filing of a petition.
It should also be signed by all the petitioners or plaintiffs in a case
and that the signing by only of them is insufficient
Exceptions:
a. Docena v. Lapesura
▪ Petitioners argue that since they are spouses with joint or
indivisible interest over the alleged conjugal property
subject of the original action which gave rise to the
petition for certiorari and prohibition, the signing of the
certificate of non-forum shopping by only one of them
would suffice.
▪ The Court held that the husband may reasonably be
presumed to have personal knowledge of the filing or non-
filing by his wife of any action or claim similar to the
petition for certiorari and prohibition given the notices and
legal processes involved in a legal proceeding. Hence, the
signing of the attached certificate of non-forum shopping
only by the husband is not a fatal defect.
b. Heirs of Gallardo v. Soliman
▪ Where the petitioners are immediate relatives, who share
a common interest in the property subject of the action,
the fact that only one of the petitioners executed the
verification or certification against forum shopping will
not deter the court from proceeding with the action.
▪ The same situation obtains in this case. Petitioners are all
heirs of the deceased Lazaro. As such, they undoubtedly
share a common interest in the land, as well as common
claims and defenses, as against respondents.
c. Chua v. Judge Torres
▪ Since the misjoined party plaintiff receives no recognition
from the court as either an indispensable or necessary
party-plaintiff, it then follows that whatever action or
inaction the misjoined party may take on the verification
or certification against forum-shopping is inconsequential.
Hence, it should not have mattered to the RTC that
Jonathan Chua had failed to sign the certification against
forum-shopping, since he was misjoined as a plaintiff in
the first place.
• Note: If, for any reason, the principal party cannot sign the petition,
the one signing on his behalf must have been duly authorized. And
based on the amendment, the authority of the person exercising the
certificate against forum shopping to act on behalf of a party,
 whether in the form of Secretary’s certificate or a special power of
attorney, should be attached to the pleading.
• Rule When plaintiff is a Juridical Entity:
General Rule: The certification against forum shopping where the
plaintiff is a juridical entity like a corporation may be executed by
properly authorized person meaning there should be a board
resolution.
Exception: The following officers may sign the verification and
certification of non-forum shopping even without board resolution:
a. Chairperson of the Board of Directors
b. President
c. General Manager
d. Personnel Officer
e. Employment Specialist in labor cases
• Effect of Non-Compliance with the Rule on Certification against
Forum Shopping
General Rule: Defect is not curable by mere amendment and it shall
be a cause for the dismissal of the action
Exception:
a. There is need to relax the Rule on the ground of substantial
compliance
b. There is the presence of “special circumstances or compelling
reasons”
• Note: The dismissal for failure to comply with the requirements is
not to be done by court motu proprio. The Rule requires that it shall
be upon motion and after hearing.
• Vda. de Formoso v. PNB
Facts:
▪ The petition for certiorari filed with the CA stated the
following names as petitioners: Nellie Panelo Vda. De
Formoso, Ma. Theresa Formoso-Pescador, Roger
Formoso, Mary Jane Formoso, Bernard Formoso,
Benjamin Formoso, and Primitivo Malcaba.
▪ Admittedly, among the seven (7) petitioners mentioned,
only Malcaba signed the verification and certification of
non-forum shopping in the subject petition. There was no
proof that Malcaba was authorized by his co-petitioners
to sign for them.
▪ Furthermore, the petitioners argue that the CA should not
have dismissed the whole petition but should have given
it due course insofar as Malcaba is concerned because he
signed the certification. The petitioners also contend that
the CA should have been liberal in the application of the
Rules because they have a meritorious case against PNB
Ruling:
▪ The Court ruled that 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. 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.
▪ The certification against forum shopping is fatally
defective, not having been duly signed by both petitioners
and thus warrants the dismissal of the petition for
certiorari. While the Rules of Court may be relaxed for
persuasive and weighty reasons to relieve a litigant from
an injustice commensurate with his failure to comply with
the prescribed procedures, nevertheless they must be
faithfully followed. In the instant case, petitioners have
not shown any reason which justifies relaxation of the
Rules
▪ The petitioners were given a chance by the CA to comply
with the Rules when they filed their motion for
reconsideration, but they refused to do so. Despite the
opportunity given to them to make all of them sign the
verification and certification of non-forum shopping, they
still failed to comply. Thus, the CA was constrained to
deny their motion.
• Heirs of Josefina Gabriel v. Cebrero
Facts:
▪ The complaint filed before the RTC was filed in the name
of Gabriel, however, it was Cañiza who executed the
verification and certification of forum shopping, alleging
that he was Gabriel's attorney-in-fact.
Ruling:
▪ It was held that when an SPA was constituted precisely to
authorize the agent to file and prosecute suits on behalf of
the principal, then it is such agent who has actual and
personal knowledge whether he or she has initiated similar
actions or proceedings before various courts on the same
issue on the principal's behalf, thus, satisfying the
 requirements for a valid certification against forum
shopping.
▪ However, there was no duly executed SPA. The Court
cannot consider the mere mention in the December 15,
1993 Decision that he was Gabriel's attorney-in-fact as
evidence that he was indeed authorized and empowered
to initiate the instant action against respondents.
• Hubilla v. HSY Marketing, Ltd. Co.
▪ Corporations, not being natural persons, may authorize
their lawyers through a Secretary's Certificate to execute
physical acts. Among these acts is the signing of
documents, such as the certification against forum
shopping.
▪ However, sole proprietorships, unlike corporations, have
no separate legal personality from their proprietors. They
cannot claim the inability to do physical acts as a justifiable
circumstance to authorize their counsel to sign on their
behalf. Since there was no other reason given for
authorizing their counsel to sign on their behalf,
respondents Arqueza, Co, and Yeung's certification against
forum shopping is invalid.
• Colegio Medico-Farmaceutico de Filipinas, Inc. v. Lim
Facts:
▪ Petitioner maintains that its failure to attach a copy of the
Board Resolution dated May 13, 2008 to the Complaint
was not a fatal defect considering that, under prevailing
jurisprudence, the president of a corporation is duly
authorized to sign the verification and certification without
need of a board resolution.
▪ Respondent, on the other hand, argues that the
certification of non-forum shopping is a jurisdictional
requirement and that the failure of petitioner to attach to
the Complaint a copy of the Board Resolution dated May
13, 2008 authorizing Del Castillo to sign on behalf of
petitioner was a fatal defect.
▪ Court held that the president of a corporation may sign the
verification and certification of non-forum shopping.
Jurisprudence has allowed the president of a corporation
to sign the verification and the certification of non-forum
shopping even without a board resolution as said officer is
presumed to have sufficient knowledge to swear to the
truth of the allegations stated in the complaint or petition.
▪ Is this ruling still applicable under the amended version of
Sec. 5, Rule 7 as amended?
• Forum Shopping cases . .
E. Contents of a Pleading (Sec 6 Rule) – New provision
• Aside from the above mentioned, every pleading must state the
following:
a. Nature of witnesses who will be presented to prove a party’s
claim
b. Summary of the witnesses’ intended testimonies, provided that
the judicial affidavits of said witnesses shall be attached to the
pleading
c. Documentary and object evidence
4. Manner of making allegations in a pleading (Rule 8)
A. Allegations in the pleading
I. In General (Sec 1 Rule 8)
• Every pleading shall contain in a methodical and logical form, a plain,
concise and direct statement of the ultimate facts on which the
party pleading relies for his claim or defense, the case may be,
omitting the statement of mere evidentiary facts.
• Ultimate facts: are the essential facts constituting the plaintiff’s
cause of action, or such facts as are so essential that they cannot be
stricken out without leaving the statement of the cause of action
inadequate.
• What are NOT Ultimate facts (SPAC2E)
a. Statement of law
b. Facts Presumed by law and matters of judicial notice
c. Arguments
d. Conclusions of fact or inferences or conclusions from facts
stated, or incorrect inferences or conclusions from the facts
stated
(General allegations that a contract is valid or legal or is just or
fair and reasonable, are mere conclusions of claw. Likewise, an
allegation that a contract is void, voidable, invalid, illegal or
against public policy, without stating facts showing its invalidity
are mere conclusions of law. (Zuniga Santos v. Santos Gran)
e. Evidentiary matters
d. Conclusions of law
Test to distinguish conclusion of law from ultimate facts:
 If from the facts in evidence, the result can be reached by the
process of natural reasoning adopted in the investigation of
truth, it becomes an ultimate fact.
If, on the other hand, resort must be had to artificial processes
of the law in order to reach a final determination, the result is a
conclusion of law. (Mathay v. Consolidated Bank & Trust Co.)
• The allegations that the defendant acted in abd faith, arbitrarily,
illegally, wrongfully and in violation of law, without stating the
ultimate facts constituting the plaintiff’s cause of action, are mere
conclusion of fact or conclusions of law. (Remitere v. De Yulo)
• A complaint states a cause of action if it sufficiently avers the
existence of 2 essential elements of cause of action, namely:
a. A right in favor of the plaintiff by whatever means and under
whatever law it arises or created
b. An obligation on the part of the named defendant to respect or
not to violate such right
c. An act or omission on the part of the named defendant to the
plaintiff or constituting a breach of the obligation of defendant
to the plaintiff for which the latter may maintain an action for
recovery of damages
If the allegations of the complain do not state the concurrence of these
elements, the complaint becomes vulnerable to a motion to dismiss on
the ground of failure to state a cause of action
• Evidentiary facts: are those which are necessary to prove the
ultimate facts or which furnish evidence of the existence of some
other facts
II. Alternative cause of action or defenses (Sec 2 Rule 8)
• A party may state as many claims or defenses as he has regardless of
consistency, but each must be consistent in itself.
• The subject provision recognizes that the liability of the defendant
may possibly be based on either one of two or more possible causes
of action
• For example, the plaintiff believe that the liability of the carrier may
be based either on a breach of contract of carriage or quasi delict,
but he may not be certain which of the causes of action would
squarely fit the set of facts alleged in the complaint, although he is
certain that he is entitled to a relief. He may therefore state his
cause of action in the alternative. The provision in effect relieves a
party from being compelled to choose only one cause of action
• In the same manner that a plaintiff may assert two or more causes
of action, a defendant is likewise expressly allowed under the same
Rule to put up his own defenses alternatively or even hypothetically
so defendant can make use of both a negative and affirmative
defense.
Defenses and objections not pleaded either in a motion to dismiss or
in an answer are deemed waived. This means that a defendant ma,
in fact, feel enjoined to set up all possible defenses. (La Naval Drug
Corp. v CA)
B. What must be alleged in the Pleading
I. Capacity
II. General Averments
a. Condition precedent (Sec 3 Rule 8)
▪ It refers to matter which must be complied with
before a cause of action arises
▪ Rule on Condition Precedent: When a claim is subject
to a condition precedent, the compliance of the same
must be alleged in the pleading. Otherwise, it will be
an independent ground for a motion to dismiss that a
condition precedent for filing a claim has not been
complied with.
▪ Examples: Exhaustion of administrative remedies,
barangay conciliation, Clearing in the PCHS,
arbitration
b. Malice, intent, knowledge and other condition the mind (MIKO)
(Sec 5 Rule 8)
▪ Reason: It is difficult to state the particulars
constituting these matters. (Kaya generally state lang
okay na)
c. Judgments (Sec 6 Rule 8)
▪ It is sufficient to aver the judgment or decision
without showing jurisdiction of the court to render
such judgment of action.
▪ However, in the amendment, an authenticated copy
of the judgment or decision shall be attached to the
pleading.
d. Official documents or act (Sec 9 Rule 8)
▪ It is sufficient to aver that the document was issued
or the act done in compliance with law
III. Averments with Particularity
a. Fraud and mistake
▪ The circumstances constituting such fraud or mistake
must be stated with particularity. There particulars
 which would necessarily include specific acts of fraud
committed against the plaintiff would help apprise
the judge of the kind of fraud involved in the
compliant.
▪ The mere invocation of the words “surreptitiously
and fraudulently” does not make the allegation
particular without specifying the circumstances of
the commission and employment of fraud.
b. Actionable documents (Sec 7 Rule 8)
▪ Actionable document: it is a written instrument or
document which is the basis of an action or defense
(eg. Promissory note in an action for collection of a
sum of money)
▪ A document is actionable when an action or defense
is grounded upon such written instrument or
document
▪ Two permissible ways of pleading an actionable
document:
i. By setting forth the substance of such
document in the pleading and attaching
said document thereto as an annex
ii. By setting forth said document verbatim in
the pleading.
▪ Note: A variance in the substance of the document
set forth in the pleading and document annexed
thereto does not warrant the dismissal. However, the
contents of the documents annexed are controlling.
(Convets Inc. v Nat’l Development Co)
C. Denials
a. How to contest an actionable document
▪ How to contest such document:
i. By setting denial under oaththe document
nee
ii. By setting forth what is claimed to be the
facts
▪ Where the actionable document is properly alleged,
the failure to specifically deny under oath the same
results in:
i. The admission of the genuineness and due
execution of said document, except
o When the adverse party was not a
party to the instrument; or
o When an order for the inspection
of the document was not
complied with
ii. The document need not be formally offered
in evidence
▪ Genuineness: means that the document is (SSS)
i. The document is not Spurious counterfeit or
of different import on its face from the one
executed by the party
ii. That the party whose signature bears has
Signed it; and
iii. That at the time it was signed it was in
words and figures exactly as Set out in the
pleadings (Permanent Savings and Loan
Bank v. Velarde)
▪ Due Execution: means that the document is (SAD-F)
i. The document was Signed voluntarily and
knowingly by the party whose signature
appears thereon
ii. That if signed by somebody else, such
representative has the Authority to do so
iii. The document was Duly delivered; and
iv. The Formalities were complied with
((Permanent Savings and Loan Bank v.
Velarde)
▪ Defenses cut-off by the admission of Genuineness
and Execution (FACODS)
i. That the signature was a Forgery
ii. That the Agent signing in behalf of a
partnership or of corporation is
unauthorized
iii. The Corporation was not authorized under
its charter to sign the document
iv. That the party charged signed the
document in some Other capacity than that
alleged in the pleading
v. That the document was never Delivered
vi. That the document was not in the words
and figures as Set out in the pleading
(Textile Mills v CA)
 ▪ Defenses not Cut-off by the Admission of Genuiness General Rule: Material averments not specifically
and Due Execution (FLIP-DWIM-MEC) denied are deemed admitted
i. Fraud Note: If the allegations are deemed admitted, there is
ii. Statute of Limitations no more triable issue between the parties and if the
iii. Illegality of consideration admission appears in the answer of the defendant,
iv. Payment the plaintiff may file a motion for judgment on the
v. Duress pleadings under Rule 34.
vi. Want of consideration
vii. Imbecility Conclusions of fact and law stated in the complaint
viii. Mistake are not deemed admitted by the failure to make a
ix. Minor specific denial. This is true considering that only
x. Estoppel ultimate facts must be alleged in any pleading and
xi. Compromise only material allegation of facts need to be
▪ When a case has been tried in complete disregard of specifically denied.(Mercene v GSIS)
the Rule and the plaintiff having pleaded a document
by copy, presents oral evidence to prove the due Exception: (not deemed admitted even if not
execution of the document as well as the agents specifically denied)
authority and no objections are made to the i. Allegation as to the amount of unliquidated
defendant evidence in refutation, the Rule will be damages, when not specifically denied, are
considered waived. (Central Surety & Insurance Co v not deemed admitted.
Hodges) ii. Allegations immaterial to the cause of
b. Specific Denials action which includes conclusion of fact and
▪ Forms of denials amounting to negative defenses law
i. Absolute denial – the defendant specifies iii. All allegations in the complaint where no
each material allegation of fact the truth of answer has been filed by the defendant
which he does not admit and, whenever ▪ When a specific denial requires an oath
practicable, sets forth the substance of the i. A denial of an actionable document
matters upon which he relies to support his Exception: (oath does not apply)
denial. o When the adverse party does not
ii. Partial denial – the defendant does not appear to be a party to the
make a total denial of the material intrumnt
allegations in a specific paragraph o When compliance with an order
iii. Denial by disavowal of knowedge – the for an inspection of the original
defendant alleges that he “is without instrument is refused
knowledge or information sufficient to form ii. A denial of allegations of usury in a
a belief as to the truth of a material complaint to recover usurious interest
averment made in the complaint” Exception: the action is not to recover
▪ If such matters are plainly and necessarily within the usurious interest, as when usurious interest
defendant’s knowledge, a claim of “ignorance of is being raised as a defense in a collection
information will not be considered a specific denial” case
(Aquintey v Tibong)
c. Effect of failure to make specific denials:
 Note: an answer raising a specific denial based on the This means that no need for hearing because court on its own
above is deemed to be under oath if it contains a can decide and the court is actually required by the rule to
verification render decision within 30 calendar days.
▪ Even if the party made an oath, or when an oath is b. If the affirmative defense belongs to Group A or B, the court
excused but a general denial is made, then it is still may conduct a summary hearing within 15 calendar days from
deemed as an admission of the genuiness and ddue the filing of the answer. Such affirmative defense shall be
execution of the document. resovled by the court within 30 calendar days from the
termination of the summary hearing. (Sec 12d Rule 8)
D. Affirmative defenses (new provision) Sec 12 Rule 8 Note: The difference in treatment lies on the fact that grounds
• There are three groups of Affirmative defenses under Group A and B may require presentation of evidence. (Except
a. Grounds set forth under Sec 5b Rule 6: no jurisdiction over the subject matter)
i. Fraud • When affirmative defense is denied: (Sec 12e Rule 8)
ii. Statute of limitations a. If affirmative defense is denied, you cannot file a motion of
iii. Release reconsideration, or you are barred to elevate it by petition of
iv. Payment certiorari, or mandamus, or appeal (because at this stage, the
v. Illegality decision of the court is just an interlocutory order, not final
vi. Statute of Frauds judgement)
vii. Estoppel b. The remedy, therefore, is to go to trial and in the event of an
viii. Former recovery adverse decision, you can now appeal from the said judgment
ix. Discharge in bankruptcy and assign the denial of the affirmative defense as one of the
x. Any other matter by way of confession and avoidance errors in the appeal (at this stage, it is already a final jdugement
b. Grounds set forth under Sec 5b(a) Rule 6 so nothing else can be done but to appeal)
i. No jurisdiction over the subject matter E. Striking out of pleading (Sec 13 Rule 8)
ii. Litis pendentia • The court may order any pleading to be stricken out or that any
iii. Res judicata sham or false redundant, immaterial, impertinent, or scandalous
iv. Statute of Limitations matter be stricken out therefrom:
c. Grounds set forth under Sec 12 Rule 8 a. Upon motion made by a party before responding to a pleading
i. No jurisdiction over the person of the defendant b. Upon motion made by a party within 20 calendar days from
ii. Improper venue service of the pleading upon him, if no responsive pleading is
iii. Plaintiff has no legal capacity to sue permitted by these Rules
iv. Pleading asserting the claims states no cause of action • Note: the counsel and even the law firm who alleges scandalous or
v. Condition precedent for filing the claim has not been indecent matter in a pleading shall be subject to appropriate
complied with sanction (Sec 3 Rule 7)
• Only Group B can be raised either as an answer by way of affirmative F. Mercene v. GSIS
defense or by motion to dismiss • Facts:
• There’s no need to raise a motion to hear affirmative defenses. a. Petitioner obtained a loan from respondent GSIS. As security, a
Under Sec 12b Rule 15, motion to hear affirmative defenses is one of real estate mortgage was executed over petitioner’s property.
the prohibited pleadings Then, petitioner obtained another loan with GSIS and likewise
• The court’s action will depend on what affirmative defense is raised: secured by the same parcel of land.
a. If the affirmative defense belongs to Group C, the court motu b. Petitioner then opted to file a complaint for Quieting of Title
proprio will resolve the affirmative defense within 30 calendar against GSIS. He alleged that since 1968 until now, GSIS never
days from filing of answer. (Sec 12c Rule 8) exercised its rights as a mortgagee over the parcel of land and
 so the right to foreclose had prescribed. GSIS assailed that
complaint failed to state cause of action.
c. RTC granted Mercene's complaint and ordered the cancellation
of the mortgages annotated on the title.
d. CA reversed the RTC decision and posited that the trial court
erred in declaring that GSIS' right to foreclose the mortgaged
properties had prescribed. It highlighted that petitioner’s
complaint neither alleged the maturity date of the loans, nor
the fact that a demand for payment was made. The CA
explained that prescription commences only upon the accrual
of the cause of action, and that a cause of action in a written
contract accrues only when there is an actual breach or
violation
e. Mercene assails CA decision and insists that GSIS had judicially
admitted that its right to foreclose the mortgage had
prescribed. He assails that GSIS failed to specifically deny the
allegations in his complaint.
• Ruling:
a. The Court agrees with Petitioner that material averments not
specifically denied are deemed admitted. Nonetheless, his
conclusion that GSIS judicially admitted that its right to
foreclose had prescribed is erroneous. It must be remembered
that conclusions of fact and law stated in the complaint are not
deemed admitted by the failure to make a specific denial.This is
true considering that only ultimate facts must be alleged in any
pleading and only material allegation of facts need to be
specifically denied. The allegation of prescription in Petitioner's
complaint is a mere conclusion of law. In the same vein,
labelling-an obligation to have prescribed without specifying
the circumstances behind it is a mere conclusion of law.
b. In addition, there was no judicial admission on the part of GSIS
with regard to prescription because treating the obligation as
prescribed, was merely a conclusion of law. It would have been
different if Mercene's complaint alleged details necessary to
determine when GSIS' right to foreclose arose, i.e., date of
maturity and whether demand was necessary.
5. Effect of Failure to Plead (Sec 1 and 2 Rule 9)
• General Rule: Defenses and objectives not pleaded either in a
motion to dismiss or in the answer are deemed waived.
Exception: (these may be raised at any stage of the proceedings
even for the first time on appeal
a. Lack of jurisdiction over the subject matter
Note: It may however be barred by laches
b. Litis pendentia
c. Res judicata
d. Statute of limitations
• Failure to plead a compulsory counterclaim and cross-claim
A compulsory counterclaim or cross-claim not set up in the
answer is deemed barred (Sec 2 Rule 9)
6. Default (Rule 9)
A. When a declaration of default is proper (Sec 3 Rule 9)
• A party may be declared in default when he fails to answer within
the time allowed therefor, and upon motion of the claiming party
with notice to the defending party, and proof of such failure
• Requisites before a defending party may be declared in default:
a. The court has validly acquired jurisdiction over the defending
party
b. The defending party must have failed to file his answer within
the time allowed therefor
c. The claiming party must file a motion to declare the defending
party in default
d. The claiming party must prove that the defending party has
failed to answer within the period provided by the Rules of
Court
e. The defending party must be notified of the motion to declare
him in default
f. There must be a hearing set on the motion to declare the
defending party in default
• Note: the court has no authority to motu proprio declare the
defendant in default. A motion to declare the defending party in
default must be filed by the claiming party before a declaration of
default is made by the court (Sec3 Rule 9)
B. Effect of an order of default (Sec3a Rule 9)
a. The party declared in default loses his standing in court and
prevents him from taking part in the trial
b. Wile the defendant can no longer take part in the trial, he is
nevertheless entitled to notices of subsequent proceedings
NOTE: It is submitted that he may participate in the trial, not as
a party but as a witness or he can testify as a witness
c. A declaration of default is not an admission of the truth or
validity of the plaintiff’s claims
• Rights of a party in default: Entitled to notice of
 a. Motion to declare him in default
b. Order declaring him in default
c. Subsequent proceedings
d. Service of final orders and judgments
C. Relief from an order of default
a. When the defendant fails to file an answer within the period,
the plaintiff may file a motion to declare the other in default
b. When the defendant is properly served a summon and he was
properly declared in default, he can, at any time before
judgment, file a motion to set aside the order of default, which
shall be verified and showing
i. Fraud, accident, mistake or excusable negligence
(FAME)
ii. Meritorious defenses
c. When the defendant was properly declared in default and
judgment was already rendered, he can file a motion for
reconsideration, or new trial or even an appeal, provided that it
was made within the period to file an appeal.
d. When the defendant was properly declared in default and the
period within which he is allowed to file an appeal has elapsed,
he can file a Petition for relief from judgment under Rule 38 or
Annulment of Judgment under Rule 47, provided that the
reason of delay was not attributable to him.
e. When the defendant is not properly declared in default, he can
file a Motion for reconsideration and if denied, petition for
certiorari. (Indiana Aerospace v CHED)
D. Effect of a partial default
• Requisites of Partial Default:
a. The pleading asserting a claim states a common cause of action
against several defending parties
b. Some of the defending parties answer and the others fail to do
so
c. The answer interposes a common defense
• Effect: The court will try the case against all defendants upon the
answer of one or some of the defendants
Exception: where the defense is personal to the one who answered,
in which case, it will not benefit those who did not answer.
• Example: If the plaintiff sues A B and C based on same cause of
action, but only A filed an answer. Can B and C be declared in
default?
Answer: No because they are sued on the same cause of action
hence, the answering defendant’s answer will inure to the benefit of
the non-answering defendants.
• Can the plaintiff move to dismiss the case as regards the answering
defendant and retain the defaulted defendant in order to secure an
immediate judgment?
Answer: No, since the singleness of the cause of action inevitably
implies that the defendants are indispensable parties, the court’s
power to act is integral and cannot be split such that it can relieve
any of them and at the same time render judgement against the
rest. Also, it is assumed that when any defendant allows himself to
be in default knowing that his co-defendant has already answered,
he does so trusting in the assurance implicit in this rule that his
default is in essence a mere formality that deprives him of no more
than the right to part in the trial and that the court would deem
anything done by or for the answering defendant as done by or for
him. (Co v Acosta)
E. Extent of Relied in a Judgment by Default (Sec3(d) Rule 9)
• General Rule: A judgment rendered against a party in default shall
not: (EDU)
a. Exceed the amount prayed for
b. Be Different in kind from that prayed for; nor
c. Award Unliquidated damages
• Exception: if the court orders the submission of evidence,
unliquidated damages may be awarded based on such
F. Actions where default are not allowed (Sec 3e Rule 9)
a. Annulment of marriage
b. Declaration of nullity of marriage
c. Legal separation
d. In special civil actions for certiorari, prohibition and mandamus
where a comment instead of an answer is required to be filed
e. Small claims cases
f. Summary procedure
g. Environmental cases
❖ Gajudo v. Traders Royal Bank
Facts:
• Petitioners challenge the CA Decision for applying Section 3 of Rule 9
of the Rules of Court, rather than Section 1 of Rule 133 of the same
Rules. In essence, petitioners argue that the quantum of evidence
for judgments flowing from a default order under Section 3 of Rule 9
is not the same as that provided for in Section 1 of Rule 133.
 Ruling:
• The Court held that between the two rules, there is no
incompatibility that would preclude the application of either one of
them. Section 3 of Rule 9 governs the procedure which the trial
court is directed to take when a defendant fails to file an answer.
According to this provision, the court "shall proceed to render
judgment granting the claimant such relief as his pleading may
warrant," subject to the court’s discretion on whether to require the
presentation of evidence ex parte. The same provision also sets
down guidelines on the nature and extent of the relief that may be
granted. In particular, the court’s judgment "shall not exceed the
amount or be different in kind from that prayed for nor award
unliquidated damage
• Moreover, parties must rely on the strength of their own evidence,
not upon the weakness of the defense offered by their opponent.
This principle holds true, especially when the latter has had no
opportunity to present evidence because of a default order.
Needless to say, the extent of the relief that may be granted can
only be as much as has been alleged and proved with preponderant
evidence required under Section 1 of Rule 133.
• In sum, while petitioners were allowed to present evidence ex parte
under Section 3 of Rule 9, they were not excused from establishing
their claims for damages by the required quantum of proof under
Section 1 of Rule 133. Stated differently, any advantage they may
have gained from the ex parte presentation of evidence does not
lower the degree of proof required. Clearly then, there is no
incompatibility between the two rules.
❖ Lina v. CA
• In the case at bar, it was on May 5, 1982 or two (2) days before the
expiration of the fifteen-day reglementary period given to defendant
to file his responsive pleading when petitioner moved for an
extension of twenty (20) days from May 7 within which to file his
answer. Upon motion of private respondent and over the objection
of petitioner, respondent judge issued an order declaring petitioner
in default.
• The granting of additional time within which to file an answer to a
complaint is a matter largely addressed to the sound discretion of
the trial court. "While trial courts are persuaded, as a matter of
policy, to adopt a basically flexible attitude in favor of the defendant
in this area of our adjective law, the defense should never be lulled
into the belief that whenever trial courts refuse a second request for
extension to file an answer, the appellate courts will grant relief
❖ Lui Enterprises v Zuellig Pharma Corp
• Default, therefore, is not meant to punish the defendant but to
enforce the prompt filing of the answer to the complaint. For a
defendant without good defenses, default saves him or her "the
embarrassment of openly appearing to defend the indefensible."
• In this case, Lui Enterprises had discovered its default before the
Regional Trial Court of Makati rendered judgment. Thus, it timely
filed a motion to set aside order of default, raising the ground of
excusable negligence.
• Excusable negligence is "one which ordinary diligence and prudence
could not have guarded against." The circumstances should be
properly alleged and proved. In this case, we find that Lui
Enterprises’ failure to answer within the required period is
inexcusable.
• Lui Enterprises’ counsel filed its motion to dismiss four days late. It
did not immediately take steps to remedy its default and took one
year from discovery of default to file a motion to set aside order of
default. In its motion to set aside order of default, Lui Enterprises
only "conveniently blamed its x x x counsel [for the late filing of the
answer]"without offering any excuse for the late filing. This is not
excusable negligence under Rule 9, Section 3, paragraph (b)127 of
the 1997 Rules of Civil Procedure. Thus, the Regional Trial Court of
Makati did not err in refusing to set aside the order of default.
• The general rule is that courts should proceed with deciding cases on
the merits and set aside orders of default as default judgments are
"frowned upon." As much as possible, cases should be decided with
both parties "given every chance to fight their case fairly and in the
open, without resort to technicality."
• However, the basic requirements of Rule 9, Section 3, paragraph (b)
of the 1997 Rules of Civil Procedure must first be complied with. The
defendant’s motion to set aside order of default must satisfy three
conditions. First is the time element. The defendant must challenge
the default order before judgment. Second, the defendant must
have been prevented from filing his answer due to fraud, accident,
mistake or excusable negligence. Third, he must have a meritorious
defense.
• As discussed, Lui Enterprises never explained why its counsel failed
to file the motion to dismiss on time.
❖ Bitte v. Jonas
• Spouses Jonas claim that the door to any reliefs for Spouses Bitte, be
it through a motion for reconsideration or this subject petition, was
closed by the finality and immutability of the RTC declaration of their
default. In other words, it is their stand that the petitioners do not
have the right to obtain recourse from this Court.
• The court held that the rule is that "right to appeal from the
judgment by default is not lost and can be done on grounds that the
amount of the judgment is excessive or is different in kind from that
prayed for, or that the plaintiff failed to prove the material
allegations of his complaint, or that the decision is contrary to law."
Despite being burdened by the circumstances of default, the
petitioners may still use all other remedies available to question not
only the judgment of default but also the judgment on appeal before
this Court. Those remedies necessarily include an appeal by
certiorari under Rule 45 of the Rules of Court.
❖ Benedicto-Muñoz v. Cacho-Olivarez
• Petitioners submit that the dismissal of the case as against the
Cuaycong brothers inures to their benefit because: (a) they were
sued under a single and/or common cause of action with the
Cuaycong brothers; and (b) the Cuaycong brothers are indispensable
parties, without who no final determination can be had on the case.
• The Original Complaint and the Amended and Supplemental
Complaint allege the same essential cause of action against the
Cuaycong brothers and the petitioners-that is, stock market fraud
committed by Cuaycong principally through misappropriation. The
Amended and Supplemental Complaint failed to allege "different
and separable acts" committed by the remaining defendants
independent of the acts and omissions of Cuaycong
• The indispensable parties in this case are not only the Cuaycong
brothers but also the petitioners. An indispensable party is one
whose interest in the subject matter of the suit and the relief sought
are so inextricably intertwined with the other parties that his legal
presence as a party to the proceeding is an absolute necessity. On
the contrary, a party is not indispensable to the suit if his interest in
the controversy or subject matter is distinct and divisible from the
interest of the other parties and will not necessarily be prejudiced by
a judgment which does complete justice to the parties in court.
• Since the Cuaycong brothers and the petitioners, as indispensable
parties, had played various interconnected roles that led to the
singular injury and loss of the respondents, their liabilities cannot be
separately determined.
• (a) the defendants must be sued under a common cause of action;
and (b) all must be indispensable parties.62 Both requisites are
present in this case. The dismissal of the action against the Cuaycong
brothers also warrants the dismissal of the suit against the other
defendants.
7. Filing and service of pleadings
A. Payment of Docket fees
a. A court acquires jurisdiction only upon the payment of the
prescribed docket fee (Manchester Development Corp v. CA)
b. A defect in the original pleading resulting in the underpayment
of the docket fee cannot be cured by amendment, such as the
reduction of the claim. This is because, for all legal purposes,
since there is no original complaint over which the court has
acquired jurisdiction (Manchester Development Corp v. CA)
c. Exception to Manchester Rule: When the party involved
demonstrates a willingness to abide by the rules prescribing
such payment such as when insufficient filing fees were initially
paid by the plaintiffs, that there was no intention to defraud
the government and it was paid within the applicable
prescriptive or reglementary period. (Heirs of Bertuldo Hinog v
Melico)
d. The same rule applies to permissive counterclaim, third part
claims and similar pleadings, which shall not be considered filed
until and unless the filing fee is paid.
e. When the trial court acquires jurisdiction over a claim by the
filing of the appropriate pleading and payment of the
prescribed filing fee, but 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
therefore 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 additional fee
(Sun Insurance Office Ltd v. Hon. Maximiano Asuncion)
f. Cooperatives can no longer invoke RA No. 6938 as basis for
exemption from the payment of legal fees by virtue of the
court’s fiscal independence.
g. If the plaintiff fails to comply with the jurisdictional
requirement of payment of the docket fees, the defendant
should timely raise the issue of jurisdiction otherwise the latter
may be estopped (National Steel Corp. v CA)
B. Filing v Service of Pleadings
 a. Filing – it is the act of presenting the pleading or other paper to answer, when the filing of the
the clerk of court (Sec 2 Rule 13) amended complaint is not a
b. Service – it is the act of providing the other party with a copy of matter of right. (An answer
the pleading or any other court submission. earlier filed may serve as an
c. Rule when a party is represented by Counsel: (Sec 2 Rule 13) answer to the amended
• When a party is represented by a counsel, notices of complaint if no answer is filed.
all kinds, including motions and pleadings of all This also applies to the answer
parties and all orders of the court, must be served on to an amended counterclaim,
his counsel so, everything will be reckoned from the amended thirdparty complaint,
receipt of the counsel. amended cross-claim, amended
• Even if the counsel represents several parties, he is complaint-in0intervention)
only entitled to one copy of any paper served by the Answer to supplemental 20 calendar days from notice of
opposite side. complaint the order admitting a
• Notice to a counsel is a notice to his client. However, supplemental complaint, unless
it should be looked into according to surrounding a different period is fixed by
circumstances so when a lawyer appears to be the court. The answer to the
unconscionably irresponsible, one should not insist complaint shall serve as an
that a notice to such irresponsible lawyer is also a answer to the supplemental
notice to his clients (Bayog v Natino) complain if no new or
• When a party is represented by several counsels, the supplemental answer is filed.
party must designate a lead counsel to whom the Answer to counterclaim or 20 calendar days from service
copy of pleadings will be served. If no one is cross-claim of counterclaim or cross-claim
delegated, a notice to one counsel is a notice to all Answer to reply 15 calendar days from the
counsels and to the party. (Sec 2a Rule 13) service of the pleading
C. Periods of Filing of Pleadings responding to, if the filing of
Pleading Period of Filing reply allowed.
Answer to original complaint 30 Calendar days after service Note: Under Sec 11, Rule 11, A defendant may, for meritorious
of summons unless a different reasons, be granted an additional 30 period of not more than 30
period is fixed by the court calendar days to file an answer. He is only allowed to ONE motion
60 calendar days after receipt for extension. A motion to extension to file any other pleading other
of summons, where the than the answer is prohibited.
defendant is a foreign private D. Papers required to be filed and served (Sec 4, Rule 13) PAM-JON-
juridical entity and service of DORS
summons is made on the a. Pleading subsequent to the complaint
government official designated b. Appearance
by law to receive the same c. Written-Motion
Answer to amended complaint 30 calendar days after being d. Judgment
served with a copy of the e. Order
amended complaint, if such f. Notice
filing is a matter of right. g. Demand
15 calendar days from the h. Offer of Judgment
notice of order admitting the i. Resolution
 j. Similar papers
• Note: Court-issued order (Sec 18 Rule 13)
• The court may electronically serve orders and other
documents to all the parties in the case which shall have
the same effect and validity as provided herein. A paper
copy of the order or other document electronically served
shall be retained and attached to the record of the case.
E. Manner of Filing (Sec 3 Rule 13)
• The filing of pleadings and other court submissions shall be made by:
a. Personal Service – the clerk of court shall endorse on the
pleading the date and hour of filing
b. Registered Mail – the date of the mailing of motions, pleadings
or other court submissions, and payments of deposits, as
shown by the post office stamp on the envelope or the registry
receipt (or when natanggap ng post office), shall be considered
as the date of filing in court.
c. Accredited Private Courier – check first with court if accredited
by them
o It is deemed filed from the date of actual receipt by the
court and not the date of delivery (Heirs of Numeriano v
Miranda)
d. Electronic Mail, Facsimile or other electronic means
Requirements:
o should be authorized by court
o where the court is electronically equipped
o and per Sec 9 Rule 13, consent of both parties is obtained.
• Note: Previous Sec 11 Rule 13 or Preferred Manner of Service which
indicates that Personal Service is preferred is no longer present nor
applicable.
F. Modes of Service
a. Personal Service (Sec 6 Rule 13)
o By delivering personally a copy to the party or his counsel
o By leaving a copy in counsel’s office with his clerk or with a
person having charge thereof (no time is required)
o If no person is found in the office, or the office is not
known, or there really is no office, by leaving the copy at
the party’s or counsel’s residence if known, between 8AM-
6PM, with a person of sufficient age and discretion
residing therein.
b. Service by Mail (Sec 7 Rule 13)
o By depositing the copy in the post office in a sealed
envelope, addressed to the party or his counsel at his
office, if known, otherwise at his residence, if known, with
postage fully pre-paid, and with instructions to the
postmaster to return the mail to the sender after 10 days if
undelivered; or
o By ordinary mail, if no registry service is available in the
locality of either the sender or the addressee.
c. Substituted Service (Sec 8 Rule 13)
o By delivering the copy to the clerk of court with PROOF of
failure of both personal AND service by mail. Such failure
occurs when the office and residence of the party or
counsel are unknown. No need to show failure of
electronic mail.
d. Service by electronic means – should be made when
o authorized by court
o where the court is electronically equipped
o and per Sec 9 Rule 13, consent of both parties is obtained
Joint manifestation of both parties agreeing to service by
electronic means may be filed in court.
e. Service of judgments, final order, or resolutions (Sec 13 Rule
13)
Modes:
o Personal service
o Registered mail
o Publication, if party is summoned by publication and has
failed to appear in the action
o Accredited private courier – upon ex parte motion of any
party in the case
Note: Ordinary mail and by electronic means are NOT
ALLOWED here because they are not one of the modes
indicated herein.
f. Conventional service or filing (Sec 14 Rule 13)
The following MUST be served by personal service or registered
mail, and not by electronic means (unless there’s an express
permission granted by the Court)
o Initiatory pleadings such as a complaint and initial
responsive pleadings such as an answer
o Subpoena, protection orders and writs
o Appendices and exhibits to motions, or other documents
that are not readily amenable to electronic scanning may,
 at the option of the party filing such, be filed and served
conventionally; and
o Sealed and confidential documents or records
g. When service is Deemed Complete-
o Personal service – upon actual receipt.
o Ordinary mail – upon the expiration of 10 calendar days
after mailing, unless the court otherwise provides
o Registered mail – upon receipt of the addressee, or after 5
calendar days from the date he received the first notice of
the postmaster, whichever date is earlier.
Eg. If Dec 1 first notice, Dec 3 pumunta siya sa post office,
it is deemed file Dec 3 BUT If Dec 1 first notice then Dec 7
siya pumunta sa post office, it is deemed file Dec 6 (5 days
from first notice
o Accredited Private Courier – upon actual receipt by the
addressee, or after at least 2 attempts to deliver by the
courier service, or upon the expiration of 5 calendar days
after the first attempt to deliver, whichever is earlier.
o Electronic means – upon electronic transmission or when
sender pressed sent
o Facsimile – upon receipt by the other party as indicated in
the facsimile transmission printout
h. Proof of filing
o The best proof is the record in the court folder
o If not in the record, it depends on the mode of the service
or filing:
o Personal service – proven by written or stamped
acknowledgement by the clerk of court on the copy of the
pleading or court submission
o Registered mail – proven by
a. the registry receipt and
b. affidavit of the person who mailed it with 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 paid; and
▪ with instructions to the postmaster to return the
mail to the sender after 10 calendar days if not
delivered
o Accredited private courier – proven by
▪ an affidavit of service of the person who brought
the pleading or other document to the service
provider; and
▪ courier’s official receipt and document tracking
number
o Electronic means – proven by
▪ An affidavit of electronic filing of the filing with a
paper copy of the pleading or other document
transmitted or a written or stamped
acknowledgement of its filing by the clerk of
court
▪ If the paper copy sent by electronic mail was
filed by registered mail, rule on registered mail
applies.
i. Proof of Service
o Personal service – proven by
• Written admission of the party served; or
• The official return of the server; or
• The affidavit of the party serving containing full
information of the date, place and manner of the
service
o Registered mail – proven by
• Affidavit of the person mailing showing
compliance with Sec 7 Rule 13; and
• The registry receipt issued by the mailing office
o Accredited private courier – proven by
▪ Affidavit of service by the person who brought
the pleading or other document to the service
provider; and
▪ courier’s official receipt and document tracking
number
o Electronic means - proven by
• Affidavit of service by the sender of the e-mail,
facsimile or other electronic transmission; and
• Printed proof of transmittal
G. Rules on Filing and Service
a. Rule on Presumptive Service (Sec 10 Rule 13)
o There shall be presumptive notice to a party of a court
setting if such notice appears on the records to have been
mailed:
• if the addressee is from within the same judicial
region of the court where the case is pending, at
 least 20 calendar days prior to the scheduled date of
hearing
• if the addressee is from outside the judicial region,
at least 30 calendar days.
o Effect: If one party attends the hearing after 20 calendar
days from the receipt of notice of hearing by the court,
and the other party (resides within same judicial region)
did not attend, the attending party may ask the court to
continue with the hearing of evidences because it is
presumed that the other party was notified and decided
not to attend.
b. Rule on change of electronic mail address (Sec 11 Rule 13)
- a party who changes his or her electronic mail address or
facsimile number while the action is pending, must file within 5
calendar days from such change, a notice of change with the
court and serve the notice on all parties
- This is because “Service through electronic mail address or
facsimile number shall be presumed valid unless such party
notifies the court of any change
H. Notice of Lis Pendens
a. Lis Pendens – means “pending suit or pending litigation”
b. Notice of Lis Pendens – is an announcement to the whole world
that a particular real property is in litigation, serving as a
warning that one who acquires an interest over the said
property does so at his own risk, or that he gambles on the
result of the litigation over the said property. (AFP Mutual
Benefit Association v. CA)
c. In an action affecting title or right of possession of
real property, the plaintiff and the defendant, when
affirmative relief is claimed in his answer, may
record in the office of the registry of deeds of the
province in which the property is situated a notice
of the pendency of the action.
NOTE: Only from the time of filing such notice for
record shall a purchaser, or encumbrancer of the
property affected thereby, be deemed to have
constructive notice of the pendency of the action,
and only of its pendency against the parties
designated by their real names (Sec.14, Rule 13)
❖ Philippine Savings Bank v Papa
• Petitioner PSB filed a complaint or collection of money against Papa.
• CA ruled here that the RTC decision had already attained finality due
to PSB's failure to serve on Papa a copy of its motion for
reconsideration within the prescribed period. The appellate court
noted that in its motion for reconsideration, PSB did not offer any
reasonable explanation why it availed of private courier service
instead of resorting to the modes recognized by the Rules of Court.
• PSB insists that it timely filed its motion for reconsideration. That, it
personally filed the subject motion before the RTC on 10 November
2009, or the last day of the 15-day prescriptive period. That,
although it deviated from the usual mode of service as prescribed by
the Rules of Court when it served the copy of the aforesaid motion
by private courier service, there was still effective service upon Papa
considering that she received the motion for reconsideration
through her counsel, on 11 November 2009, and nine (9) days prior
to its intended hearing date. Additionally, PSB contends that the
timeliness of the filing of the motion for reconsideration should not
be reckoned from the date of the actual receipt by the adverse
party, but on the actual receipt thereof by the RTC, pointing out that
filing and service of the motion are two different matters.
Ruling:
• The Court ruled that Filing and Service, although they pertain to
different acts, they go hand-in-hand and must be considered
together when determining whether the pleading, motion, or any
other paper was filed within the applicable reglementary period.
Precisely, the Rules require every motion set for hearing to be
accompanied by proof of service thereof to the other parties
concerned; otherwise, the court shall not be allowed to act on it,
effectively making such motion as not filed.
• In this case, PSB admits that it served the copy of the motion for
reconsideration to Papa's counsel via private courier. However, said
motion was not accompanied by an affidavit of the person who sent
it through the said private messengerial service.
• While PSB explained that personal service was not effected due to
lack of time and personnel constraints, it did not offer an acceptable
reason why it resorted to "private registered mail" (or Ordinary Mail)
instead of by registered mail. In particular, PSB failed to indicate that
no registry service was available in San Mateo, Rizal, where the
office of Papa's counsel is situated, or in Makati City, where the
office of PSB's counsel is located. Consequently, PSB failed to comply
with the required proof of service by ordinary mail. Thus, the RTC is
 correct when it denied PSB's motion for reconsideration, which, for
all intents and purposes, can be effectively considered as not filed.
• Since PSB's motion for reconsideration is deemed as not filed, it did
not toll the running of the 15-day reglementary period for the filing
of an appeal; and considering that PSB's appeal was filed only after
the expiration of the 15-day period on 10 November 2009, such
appeal has not been validly perfected. As such, the subject 14
October 2009 decision of the RTC had already attained finality as
early as 11 November 2009
❖ Gatmaytan v. Dolor
• Petitioner's counsel filed with the Regional Trial Court a Notice of
Change of Address dated June 8, 2004. She attached this Notice to
her Petition. Conformably, the Regional Trial Court issued an Order
of the same date, noting the change of address and stating that
service of paper, processes and pleadings shall, from then on, be
made on petitioner's counsel's updated address:
• By its own Order, the Regional Trial Court bound itself to make
service at petitioner's counsel's updated address at Unit 602, No. 42
Prince Jun Condominium, Timog Avenue, Quezon City. Thus, the
service of its March 27, 2006 Decision at petitioner's counsel's
former address at No. 117 West Avenue, Quezon City was
ineffectual.
• Service, however, was also made at petitioner's counsel's updated
address. Petitioner herself acknowledges this. Precisely, it is her
contention that the 15-day period in which she may file her Motion
for Reconsideration must be reckoned from the date when service at
this updated address was made. This date, she alleges, was June 1,
2006
Ruling:
• The Court agreed with Petitioner that the 15-day period must be
reckoned from the date when service was made at the updated
address. To hold otherwise would be to condone a glaring violation
of her right to due process. However, the Court cannot sustain that
it must be reckoned from June 1, 2006 because None of the
documents that petitioner adduced before this Court attests to the
truth of her allegation that service to her counsel's new and correct
address was made only on June 1, 2006.
• When a party's counsel serves a notice of change in address upon a
court, and the court acknowledges this change, service of papers,
processes, and pleadings upon the counsel's former address is
ineffectual. Service is deemed completed only when made at the
updated address. Proof, however, of ineffectual service at a
counsel's former address is not necessarily proof of a party's claim of
when service was made at the updated address. The burden of
proving the affirmative allegation of when service was made is
distinct from the burden of proving the allegation of where service
was or was not made. A party who fails to discharge his or her
burden of proof is not entitled to the relief prayed for.
❖ Gagoomal v. Villacorta
• Respondents filed a motion to quash the writ of possession
substantiating their preferential rights over the subject property
which they had purchased from Lorenzo. Lorenzo, in Civil Case No.
02-1038, caused the annotation of a writ of preliminary attachment
on September 30, 2002 and thereafter, a notice of levy and
execution, finally acquiring the property in a public auction sale on
January 30, 2004. Similarly, respondents have instituted a separate
civil action for quieting of title and recovery of property before the
RTC of Muntinlupa City, Branch 276, docketed as Civil Case No. 08-
011.
• Meanwhile, Gagoombalr's argument is that he acquired a superior
right over the subject property by virtue of the earlier annotation of
a notice of lis pendens on June 11, 1999 by his predecessor-in-
interest RAM on the same title.
Ruling:
• The filing of a notice of lis pendens has a dual effect: (1) to keep the
property subject matter of the litigation within the power of the
court until the entry of the final judgment in order to prevent the
defeat of the final judgment by successive alienations; and (2) to
bind a purchaser, bona fide or otherwise, of the property subject of
the litigation to the judgment that the court will subsequently
promulgate.
• A notice of lis pendens is only valid and effective when it affects title
over or right of possession of a real property.
• In this case, Civil Case No. 67381, which RAM, predecessor-in-
interest of petitioner, instituted against Zeñarosa was for collection
of sum of money with damages – a purely personal action. Hence,
the notice of lis pendens in favor of RAM annotated on the cancelled
TCT No. 170213 and carried over to Tan's TCT No. 10206 conferred
upon it no rights over the subject property and, as a necessary
consequence, upon petitioner, its successor-in-interest.
• Accordingly, petitioner has not created a superior right over the
subject property as against respondents by reason of the prior
 annotation in 1999 of the notice of lis pendens by his predecessor
RAM
❖ Valderama v. Arguelles
• Respondents filed a petition to cancel adverse claim involving a
parcel of land. They alleged that on November 18, 2004, Conchita
was the registered owner of a parcel of land and freely and
voluntarily executed an absolute deed of sale of the subject property
in favor of them.
• Conchita filed an affidavit of adverse claim which was registered and
annotated on TCT
• January 24, 2008, Conchita died
• As registered owners of the subject property, respondents prayed
for the cancellation of the adverse claim in the petition subject of
this controversy.
• Petitioner and Tarcila, as full- blooded sisters of Conchita, filed an
opposition to the petition. They claimed that upon Conchita's death,
the latter's claims and rights against the subject property were
transmitted to her heirs by operation of law
• (1) Conchita had continuous physical and legal possession over the
subject property; (2) Conchita was the one paying for the real estate
taxes for the subject property; and (3) Conchita had in her
possession, up to the time of her death, the Owner's Duplicate Copy
of the TCT No. 266311.
• When the petition to cancel adverse claim was pending before the
RTC, respondents filed a complaint for recovery of ownership and
physical possession of a piece of realty and its improvements with
damages and with prayer for the issuance of temporary restraining
order and/or writ of preliminary injunction against petitioner and
Tarcila, among others.
• On the other hand, petitioner and Tarcila filed a notice of lis
pendens.
• Respondents filed a manifestation and motion] praying for the
outright cancellation of the adverse claim annotated on the TCT No.
266311 on the ground that petitioner's subsequent filing of notice of
lis pendens rendered the issue moot and academic.
ISSUE: Whether the subsequent annotation of a notice of lis pendens on
a certificate of title renders the case for cancellation of adverse claim on
the same title moot and academic
RULING:
• A notice of lis pendens neither affects the merits of a case nor
creates a right or a lien. The notice is but an extrajudicial incident in
an action. It is intended merely to constructively advise, or warn, all
people who deal with the property that they so deal with it at their
own risk, and whatever rights they may acquire in the property in
any voluntary transaction are subject to the results of the action.
• Annotation of an adverse claim vs. Annotation of a notice of lis
pendens on the other:
(1) an adverse claim protects the right of a claimant during the
pendency of a controversy while a notice of lis pendens protects the
right of the claimant during the pendency of the action or litigation;
and
(2) an adverse claim may only be cancelled upon filing of a petition
before the court which shall conduct a hearing on its validity while a
notice of lis pendens may be cancelled without a court hearing.
• A subsequent annotation of a notice of lis pendens on a certificate of title
does not necessarily render a petition for cancellation of adverse claim on
the same title moot and academic. The issue of whether both
annotations on the same certificate of title automatically constitute a
superfluity that would warrant an outright cancellation of adverse claim
in a petition for its cancellation on the ground of being moot and
academic.
• A notice of lis pendens is a mere incident of an action which does not
create any right nor lien. It may be cancelled without a court hearing. In
contrast, an adverse claim constitutes a lien on a property. As such, the
cancellation of an adverse claim is still necessary to render it ineffective,
otherwise, the inscription will remain annotated and shall continue as a
lien upon the property.
• two remedies may be availed of at the same time
• Hence, the Court ruled that the annotation of a notice of lis pendens at
the back of a certificate of title does not preclude the subsequent
registration on the same certificate of title of an adverse claim
❖ Homeowners Savings and Loan Bank v. Felonia
• In the case at bar, HSLB utterly failed to take the necessary precautions.
At the time the subject property was mortgaged, there was yet no
annotated Notice of Lis Pendens. However, at the time HSLB purchased
the subject property, the Notice of Lis Pendens was already annotated on
the title.
• The purpose of a notice of lis pendens is to protect the rights of the
registrant while the case is pending resolution or decision. With the
notice of lis pendens duly recorded and remaining uncancelled, the
registrant could rest secure that he/she will not lose the property or any
part thereof during litigation.
• The doctrine of lis pendens is founded upon reason of public policy and
necessity, the purpose of which is to keep the subject matter of the
litigation within the Court’s jurisdiction until the judgment or the decree
have been entered; otherwise, by successive alienations pending the
litigation, its judgment or decree shall be rendered abortive and
impossible of execution.
• Indeed, at the time HSLB bought the subject property, HSLB had actual
knowledge of the annotated Notice of Lis Pendens. Instead of heeding
the same, HSLB continued with the purchase knowing the legal
repercussions a notice of lis pendens entails. HSLB took upon itself the
risk that the Notice of Lis Pendens leads to.1âwphi1 As correctly found by
the CA, "the notice of lis pendens was annotated on 14 September 1995,
whereas the foreclosure sale, where the appellant was declared as the
highest bidder, took place sometime in 1997. There is no doubt that at
the time appellant purchased the subject property, it was aware of the
pending litigation concerning the same property and thus, the title issued
in its favor was subject to the outcome of said litigation
• While the notice of lis pendens cannot affect petitioner’s right as
mortgagee, because the same was annotated subsequent to the
mortgage, yet the said notice affects its right as purchaser because notice
of lis pendens simply means that a certain property is involved in a
litigation and serves as a notice to the whole world that one who buys
the same does so at his own risk
8. Amendment
• It is made by:
a. Adding or striking out an allegation
b. Adding or striking out the name of any party
c. Correcting a mistake in the name of a party
d. Correcting a mistake or inadequate allegation or
description in any other respect
A. Amendment as a matter of right (Sec 2 Rule 10)
• Amendment is considered as a matter of right:
a. Once, at any time before a responsive pleading is served
b. In the case of a reply, at any time within 10 calendar days after
it is served
• Note: a motion to dismiss is not a responsive pleading. A plaintiff
may file an amended complaint even after the original complaint
was order dismissed, provided that the order of dismissal is not yet
final.
• Motion to amend as a matter of right may be exercised only once.
Hence, even if no responsive pleading has yet been served, if the
amendment is a subsequent to a previous amendment made as a
matter of right, the amendment must be with leave of court.
• The court would be an error if it refuses to admit an amended
pleading when exercised as a matter of right. The error is correctible
by mandamus.
• Where some but not all the defendants have answered, plaintiff may
amend his complaint once as a matter of a right, in respect to claims
solely against the non-answering defendants, but not as to claims
asserted against the answering defendants. (Remington Industrial v
CA)
B. Amendments by Leave of Court
• Leave of court is required:
a. If the amendment is substantial, and
b. A responsive pleading has already been served
Note: Even if the amendment is substantial, no leave of court is
required if made as a matter of right.
• Requisites: (MON)
a. There must be a Motion filed in court
b. Notice to the adverse party
c. Opportunity to be heard afforded to the adverse party
• Instances when amendment by leave of court shall not be allowed:
(amendment)
a. Amendment for purpose of delay
b. Amendment is intended to confer jurisdiction to the court
c. Amendment to cure a premature or non-existing cause of
action
Note: An amendment that confers jurisdiction over the court is
allowed provided it is made as a matter of right meaning, no
responsive pleading has yet been served. In such case, the court will
just receive the amended pleading and will not act since no
discretion is involved.
However, once a responsive pleading has already been filed, the
amendment can n longer be allowed since the court will need to
refuse it as per Rules.
C. Formal amendments
- 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 to the adverse party.
D. Issues Not raised In the Pleading
• When evidence is not objected to – When issues not raised by the
pleadings are tried with the express or implied consent of the parties
 a. they shall be treated in all respects as if they had been raised in • Purpose of supplemental pleading:
the pleading a. It is to bring into the records new facts which will enlarge or
b. The pleading may be amended as may be necessary to cause change the kind of relied to which the plaintiff is entitled
them to conform to the evidence and to raise these issues may b. It is meant to supply deficiencies in aid of the original pleading,
be made; and not to entirely substitute the latter
c. The failure to amend does not affect the result of the trial of • Admission or non-admission of a supplemental of a supplemental
these issues so it is not fatal. so no need to amend bec they can pleading is not a matter of right but is discretionary on the court.
already be considered in trial Among the factors that the court will consider are:
• When evidence is objected to – the court may still admit the a. Resulting prejudice to the parties
evidence where the adverse party fails to satisy the court that the b. Whether the movant would be prejudiced if the supplemental
admission of the evidence would prejudice him in maintaining his pleading were to be denied (Lambino v Hon Presiding Judge(
defense upon the merits, and the court may gran him continuance Amended Pleading Supplemental Pleading
to meet the new situation created by the evidence (Azolla Farms v Refers to the facts existing at Refers to facts occurring after
CA) the time of filing of original the filing of the original
• Unless the plaintiff has a valid and subsisting cause of action at the pleading pleading
time his action is commenced, the defect cannot be cured by the Superseded the original Merely supplements the
acquisition or accrual of one while the action is pending, and a original pleading
supplemental complaint or an amendment setting up such after May be amended without Always with leave of court
accrued cause of action is not permissible. (Swagman Hotels & leave of court if exercised as a
Travels Inc v. CA) matter of right (filed before a
Eg. The plaintiff sues before the maturity of the loan. Clearly, there is responsive pleading is filed)
no cause of action when the complaint was filed. Thus, if the loan It has retroactive application It sets forth transactions,
matures after the filing of the complaint, there is nothing that will occurrences, or events which
conform to the evidence since there is no cause of action in the first have happened since the date
place. of the pleading g sought to be
supplemented
E. Supplemental pleadings Amendment must be There is no such requirement
• Is one which sets forth transactions, occurrence or events which appropriately marked
have happened since the date of the pleading sought to be
supplemented (Sec 6 Rule 10) F. Effect of Amended Peading
• The cause of action stated in the supplemental complaint must be • Effect of amended pleading on the admissions in the original
the same as that stated in the original complaint. Otherwise, the pleading
court should not admit the supplemental complaint (Asset 1. An amended pleading Supersedes the original one which it
Privatization Trust v. CA_ amends. The original complaint is deemed abandoned and
• But, a supplemental pleading may raise a new cause of action as superseded by the amended complaint.
long as it has some relation to the original cause of action set forth 2. Pleadings superseded or amended disappear from the record,
in the original complaint (Ada v Baylon) lose their status as pleadings and cease to be judicial
• The answer to complaint shall serve as the answer to the admissions.
supplemental complaint if no new or supplemental answer is filed Amendment: Nonetheless, the superseded pleading may still be
hence filing an answer to a supplemental complaint is not utilized against the pleader as Extrajudicial admission but it
mandatory and defendant cannot be declared in default (Sec 7 Rule must be formally offered in evidence.
11)
 3. Claims or defenses alleged in the superseded pleading not
incorporated in the amended pleading shall be deemed waived.
❖ Siasoco v. CA
- Petitioners argue that the lower courts erred in admitting the
Amended Complaint. When private respondent filed its
Amended Complaint, Carissa, the other party-defendant in the
original Complaint, had already filed its Answer. Because a
responsive pleading had been submitted, petitioners contend
that private respondent should have first obtained leave of
court before filing its Amended Complaint. This it failed to do.
In any event, such leave could nor have been granted, allegedly
because the amendment had substantially altered the cause of
action.
• Court disagreed. It is clear that plaintiff (herein private
respondent) can amend its complaint once, as a matter of right,
before a responsive-pleading is filed.10 Contrary to the
petitioners' contention, the fact that Carissa had already filed
its Answer did not bar private respondent from amending its
original Complaint once, as a matter of right, against herein
petitioners. Indeed, where some but not all the defendants
have answered, plaintiffs may amend their Complaint once, as a
matter of right, in respect to claims asserted solely against the
non-answering defendants, but not as to claims asserted
against the other defendants.
• The amendment did not prejudice the petitioners or delay the
action. Au contraire, it simplified the case and tended to
expedite its disposition. The Amended Complaint became
simply an action for damages, since the claims for specific
performance and declaration of nullity of the sale have been
deleted.
❖ Citystate Savings Bank v. Aguinaldo
• The Court notes that when the instant case was instituted,
Aguinaldo’s prayer was for the nullification of Citystate’s
certificate of title. He claims that the property over which said
title was issued, is owned and possessed by him, while
Citystate’s certificate of title emanated from another title,
which had been adjudged a nullity for having been issued
fraudulently. However, during the pendency of the case for
annulment of title against Citystate, several intervening
circumstances rendered the original relief sought by Aguinaldo
inadequate.
• Ca found that the the amended complaint effected no change
in the cause of action, defense, or theory of the case since it
remained to be an action for the nullity of a title that was
erroneously issued in another’s name.
• In any case, a substantial alteration in the cause of action or
defense is not a bar to amend the original complaint so long as
the amendment is notbmeant for delay. It is also quite absurd
that the party who filed the main casebwould himself resort to
dilatory tactics to prolong the disposition of his case.bIt is
undoubtedly to Aguinaldo's interest that this case be decided
with dispatch, more so that they have already been evicted
from the property.
❖ Diona v. Balangue
• The raison d’être in limiting the extent of relief that may be
granted is that it cannot be presumed that the defendant would
not file an Answer and allow himself to be declared in default
had he known that the plaintiff will be accorded a relief greater
than or different in kind from that sought in the Complaint. No
doubt, the reason behind Section 3(d), Rule 9 of the Rules of
Court is to safeguard defendant’s right to due process against
unforeseen and arbitrarily issued judgment.
• In the case at bench, the award of 5% monthly interest rate is
not supported both by the allegations in the pleadings and the
evidence on record. The Real Estate Mortgage40 executed by
the parties does not include any provision on interest. When
petitioner filed her Complaint before the RTC, she alleged that
respondents borrowed from her "the sum of FORTY-FIVE
THOUSAND PESOS (₱45,000.00), with interest thereon at the
rate of 12% per annum"41 and sought payment thereof. She
did not allege or pray for the disputed 5% monthly interest.
Neither did she present evidence nor testified thereon. Clearly,
the RTC’s award of 5% monthly interest or 60% per annum lacks
basis and disregards due process.
• The court’s grant of relief is limited only to what has been
prayed for in the Complaint or related thereto, supported by
evidence, and covered by the party’s cause of action. Besides,
even assuming that the awarded 5% monthly or 60% per
annum interest was properly alleged and proven during trial,
the same remains unconscionably excessive and ought to be
 equitably reduced in accordance with applicable jurisprudence. countenanced by law, as explained in the preceding
In Bulos, Jr. v. Yasuma, the 3% interest per month or 36% paragraphs. For these reasons, whether viewed as an
interest per annum as excessive and unconscionable. amendment or a supplement to the original Complaint, the
❖ Central Bank Board of Liquidators v. Banco Filipino Savings and Mortgage Second Amended/Supplemental Complaint should not have
Bank been admitted.
• In the instant case, the causes of action subject of the Second
Amended/Supplemental Complaint only arose in 1994 well
after that subject of the original Complaint. The original
Complaint was based on the alleged illegal closure of Banco
Filipino effected in 1985 by the defunct CB and its MB.
• On the other hand, the Second Amended/Supplemental
Complaint stemmed from the alleged oppressive and arbitrary
acts committed by the BSP and its MB against Banco Filipino
after respondent bank was reopened in 1994. Since the acts or
omissions allegedly committed in violation of respondent's
rights are different, they constitute separate causes of action.
• On the present Petition, Banco Filipino contends, as the RTC
and the CA similarly ruled, that the Second
Amended/Supplemental Complaint does not alter the
substance of the original demand, change the cause of action
against the original defendants, or seek additional or new
reliefs. Rather, respondent contends that the only change
sought is the addition of the BSP and its MB as parties-
defendants. Respondent further argues that what petitioner
erroneously views as new causes of action are merely VII. SUMMONS
demonstrations to show that the BSP has come to adopt the
same repressive and oppressive attitude of the latter's alleged
predecessor-in-interest. 1. Nature and purpose of summons in relation to actions in personam, in
• This contention is, however, belied by a closer examination of rem, and quasi in rem.
the Second Amended/Supplemental Complaint, in which • Summon - is the writ by which the defendant is notified of the
respondent asks the Court to order the defendants to pay, action brought against him. It is not discretionary on the part of
among others, actual damages of at least P18.8 billion "as a the court but a mandatory requirement.
consequence of the acts herein complained of. • Knowledge by the defendant or by its agents of an action filed
• The "acts complained of"' cover not just the conservatorship, against it does not dispense with need for summons.
receivership, closure, and liquidation of Banco Filipino in 1984 • Without a valid service, the court cannot acquire jurisdiction over
and 1985, but also the alleged acts of harassment committed the defendant, unless the defendant voluntary submits to it.
by the BSP and its MB after respondent bank was reopened in • When the defendant does not voluntarily submits to court’s
1994. These acts constituted a whole new cause of action. In jurisdiction or when there is no valid service of summons, any
effect, respondent raised new causes of action and asserted a judgment of the court over the defendant is null and void.
new relief in the Second Amended/Supplemental Complaint. If (Manotoc v CA)
it is admitted, the RTC would need to look into the propriety of • The Rule is that it is only when new causes of action are alleged in
two entirely different causes of action. This is not an amended complaint filed before the defendant has appeared
 in court that another summon must be served on the defendant
with the amended complaint.
• In determining whether a different cause of action is introduced
by amendments to the complaint, the court must be certain if the
defendant shall be required to answer for a liability or legal
obligation wholly different from that which was stated in the
original complaint. AN amendment will not be considered as
stating a new cause of action if the facts alleged in the amended
complaint show substantially the same wrong will respect to the
same transaction, or if what are alleged refer to the same matter
but are more fully and differently stated, or where averments
which were implied are made in express terms and the subject of
controversy of the liability sought to be enforced remains the
same. (De Dios v CA)
• But where the defendant was declared in default on the original
complaint and the plaintiff subsequently filed an amended
complaint, new summons must be served on the defendant on
the amended complaint, as the original complaint was deemed
withdrawn upon such amendment. (Atkins v. Domingo)
• Effect of defendant’s appearance in court
▪ If the defendant had not yet appeared, new summons must be
served upon him as regards the amended complaint, otherwise
the court would have no power to try the new cause of action
alleged therein, unless he had lodged an answer thereto.
▪ If the defendant had already appeared in response to the first
summons, so that he was already in court when the amended
complaint was filed, then ordinary service of that pleading upon
him, personally or by mail, would be sufficient, and no new
summons need be served upon him. (PanAsiatic Travel Corps v
CA)
• Effect if additional defendant is joined in the action:
▪ General rule: if an additional defendant is joined, summons must
be served upon him
▪ Exception:
a. Where it is sought to bring in the administrator of a deceased
party defendant in substitution of the deceased
b. Where upon the deceased of the original defendant, his infant
heirs are made parties
c. In cases of substitution of the deceased under Rule 3 Section 16
Note: In these instances, the service of the order of substitution is
sufficient
• Purposes of summons:
▪ Action in Personam
a. To acquire jurisdiction over the person of the defendant; and
b. To give notice to the defendant that an action has been
commenced against him (Umandap v Sabio)
▪ Action in rem and quasi in rem – not to acquire jurisdiction over
the defendant but mainly to satisfy the constitutional
requirement of due process
▪ Note: Jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court provided that the
court acquires jurisdiction over the res. Nonetheless, summons
must be served upon the defendant not for the purpose of
vesting the court with jurisdiction but merely for satisfying the
due process requirements (Asiavest Ltd v CA)
2. Summons in General
➢ Clerk to issue summons
• The Court should direct the clerk to issue the summon to the
defendants:
▪ Within 5 calendar days from receipt of the complaint; and
▪ Upon payment of the requisite legal fees
• Amendment: No summon need to be issued if the court motu
proprio dismissed the case on the ground of a. no jurisdiction
over the subject matter b. litis pendentia c. res judicata d.
prescription, per Sec 1 Rule 9
• Amendment: Remedy if defendant is served of improper
service of summon: NOT motion to dismiss because it is no
longer allowed. Defendant should put it as an affirmative
defense in answer per Sec 12a Rule 8 and it shall be resolved
by the court within 30 calendar days from the filing of the
answer per Sec12c Rule 8
• If the affirmative defense is denied, proper remedy is to
proceed with the trial and in the event of adverse judgement,
raise the denial as one of the assigned errors. Motion for
reconsideration, petition for certiorari or mandamus or
appeal are not the proper remedies. (Sec 12e Rule 12)
➢ Contents
▪ The summon shall contain the following:
a. The name of the court and the name of the parties to the
action
b. If the court authorized the service of the summons by the
plaintiff, the authorization for the plaintiff to serve the said
summon to the defendant (amendment)
 c. A direction that the defendant answer within the time fixed
by the Rules; and
d. A notice that unless the defendant so answers, plaintiff will
take judgment by default and may be granted the relief
prayed for (Sec 2 Rule 14)
▪ A copy of the complaint (including a copy of an order of
appointment of a guardian ad litem, if necessary) shall be
attached to the original and each copy of the summons (Sec 2a
Rule 14)
➢ By whom served (Sec 3 Rule 14)
a. Sheriff
b. Sheriff’s deputy
c. Other proper court officer; or
d. Plaintiff WITH the sheriff - the court may authorize this in
case there is a failure to serve the summons by the above
(amendment)
Note: If the summon is to be served by the plaintiff outside
the judicial region of the court where the case is pending,
plaintiff must coordinate with the sheriff of that judicial
region
• If the plaintiff is a juridical entity, the person representing the
plaintiff must be armed with SPA, Director’s certificate or
secretary’s certificate or board resolution
• To avoid abuse, if the plaintiff misrepresents that the defendant
was served summon:
a. The case will be dismissed with prejudice
b. The proceedings will be nullified
c. The plaintiff must be meted appropriate sanctions
• If summons is returned without being served, the court shall
order the plaintiff to cause the service of summon by other means
such as Publication. If plaintiff did not comply, initiatory pleading
such as a complaint will be dismissed without prejudice. (This is
an exception to Rule 17 Sec 3 that if you fail to obey the order of
the court and therefore you become the disobedient party, the
case will be dismissed with prejudice)
➢ Validity of summons and issuance of alias summon
• Summons remain valid until duly served, unless it is recalled by
the court, or in case of loss or destruction of summons.
• If the summon becomes invalid because of loss or destruction, the
plaintiff may file a motion for the issuance of an alias summon.
• An alias summon is merely a continuation of the original summon.
(Phil America Life and General Insurance vs. Breva)
3. Modes of Service
A. Personal Service (Sec 5 Rule 14)
• This is by handing a copy thereof to the defendant in person
and informing the defendant that he or she is being served
• If the defendant refuses to receive it and sign for it, TENDER IT
TO HIM or leave it in his presence. That tantamounts to
personal service.
• In Sansio Philippines v Spouses Mogul, the process server
presented the summons and the copy of the complaint to
respondent spouses at the courtroom of the MeTC of Manila,
Branch 24. The latter immediately referred the matter to their
counsel, who was present with them in the aforesaid
courtroom. At the express direction of his clients, the counsel
took the summons and the copy of the complaint, read the
same, and thereby informed himself of the contents of the said
documents. However, the instruction of the counsel for
respondent spouses not to obtain a copy of the summons and
the copy of the complaint, under the lame excuse that the same
must be served only in the address
The Court held that Rules does not require that the service of
summons on the defendant in person must be effected only at
the latter's residence as stated in the summons. On the
contrary, said provision is crystal clear that, whenever
practicable, summons shall be served by handing a copy thereof
to the defendant; or if he refuses to receive and sign for it, by
tendering it to him. Nothing more is required. Hence, service of
the copy of the summons and the complaint inside the
courtroom of the MeTC of Manila, Branch 24 was sufficient.
B. Substituted Service (Sec 6 Rule 14)
• Regardless of the type of action, either personam, in rem or
quasi in rem, the preferred mode of service is personal. (Only in
summon that there is preferred mode)
• So to avail substituted service, court must rely in the detailed
enumeration of the Sheriff’s action and a showing that the
defendant cannot be served the summon by personal service
with diligence and reasonable efforts. The Sheriff’s Return
which contains these details is entitled to presumption of
regularity and on this basis, the Sheriff may allow substituted
service.
• Should the Sheriff’s Return wanting of these details, substituted
service will be irregular. Hence, failure to serve summon means
the Court failed to acquire jurisdiction over the person of the
defendant. (De Pedro v. Romasan)
• To enjoy the presumption of regularity, a Sheriff’s Return must
contain:
(1) detailed circumstances surrounding the sheriffs attempt to
serve the summons on the defendant; and
(2) the specifics showing impossibility of service within a
reasonable time. (People’s General Insurance Corp v. Guansing)
• The following requirements to effect a valid substituted service:
The Sheriff’s Return must show
(1) Impossibility of Prompt Personal Service
▪ “Prompt Personal Service” means there must be
several attempts by the sheriff to personally serve.
"Several attempts" means at least three (3) tries,
preferably on at least (2) two different dates (this is in
the Rules already) In addition, the sheriff must cite
why such efforts were unsuccessful
(2) Specific Details in the Return
▪ The sheriff must describe in the Return of Summons
the facts and circumstances surrounding the
attempted personal service. The efforts made to find
the defendant and the reasons behind the failure
must be clearly narrated in detail in the Return.
▪ The date and time of the attempts on personal
service, the inquiries made to locate the defendant,
the name/s of the occupants of the alleged residence
or house of defendant and all other acts done, though
futile, to serve the summons on defendant must be
specified in the Return to justify substituted service.
(Manotoc v CA)
(3) The name of a person of suitable age and discretion
▪ If by leaving at the defendant’s residence, the person
must also be residing there. Hence, in Domagas v
Jensen, the Court held that the service of the
summons on a person at a place where he was a
visitor is not considered to have been left at the
residence or place or abode, where he has another
place at which he ordinarily stays and to which he
intends to return. In this case, the summon was left to
Oscar who was merely in the defendant’s residence to
collect debt.
▪ If by leaving to defendant’s office, the person must
also be a competent person in charge thereof. In
Sandoval v HRET, to be a “competent person” to
receive the summons, he should be "duly qualified"
and "having sufficient capacity, ability or authority,
and there must be confidence exists between the
person with whom the copy is left and the defendant.
In this case, the recipient of the summons, was merely
a "maintenance" man who offered his services not
only to petitioner but to anyone who was so minded
to hire his assistance. Clearly, there is no relation of
confidence between the recipient and Sandoval.
C. Service Consistent with International convention (Sec 9 Rule 14)
▪ Service may be made through other methods which
are consistent with established international
conventions to which the Philippines is a party.
▪ Note that Philippines needs to be a party first.
4. Proof of Service
A. Return (Section 20)
• Within 30 calendar days from issuance of summons by the clerk
of court and receipt thereof, the server shall complete its
service.
• When the service has been completed, the server shall within 5
calendar days therefrom:
a. Serve a copy of the Return, personally or by
registered mail, to the plaintiff’s counsel; and
b. The Return shall be filed by the served with the court
• When Substituted Service has been effected to complete the
service, the Return shall state the following:
a. The impossibility of prompt personal service within a
period of 30 calendar days from issue and receipt of
summons
b. The date and time of the 3 attempts on at least 2
different dates to cause personal service and the
details of the inquiries made to locate the defendant
residing thereat; and
c. The name of the person at least 18 years of age and
of sufficient discretion residing thereat, name of
competent person in charge of defendant’s office or
 regular place of business, or name of the officer of
the homeowner’s association or condominium
corporation or its chief security officer in charge of
the community or building where the defendant may
be found
• Absence of the above requirements in the Return constitutes
improper substituted service
• Presence of the above requirements in the Return enjoys
presumption of regularity
B. Proof of Service (Section 21)
• The proof of service of summons shall:
a. Be made in writing by the server and shall set forth
the manner, place and date of service
b. Specifiy:
i. Any papers which have been served with
the process; and
ii. The name of the person who received the
same; and
c. Be sworn to when made by a person other than a
sheriff or his deputy
• If summon was served electronically, the following constitute
proof of service:
a. a printout of said emails
b. with a copy of the summons served; and
c. the affidavit of the person mailing
C. Proof of service by publication
• If the service has been made by publication, service may be
proved:
a. By the affidavit of the publisher, editor business or
advertisement manager, to which affidavit a copy of
the publication shall be attached; and
b. By an affidavit showing the deposit of a copy of the
summons and order for publication in the post office,
postage prepaid, directed to the defendant by
registered mail to his last known address
5. Specific Requirements on service on individuals
A. Service upon prisoners (Section 8)
• It is not the Court Sheriff that will hand over the
summons and the complaint to the inmate-defendant.
It will be the jail warden. Hence, it is the jail warden
who will execute the Sheriff’s Return.
B. Service upon minors and incompetents (Section 10)
• Service of summon upon minors and incompetents shall
be made:
o Upon him personally; AND
o On any of his parents or legal guardian or if
none, upon his guardian ad litem whose
appointment shall be applied for by the
plaintiff
• In any event, if the minor or incompetent has no legal
guardian, plaintiff must obtain the appointment of a
guardian ad litem for him first.
C. Service upon spouses (Section 11) – new provision
• If H and W are sued jointly, it is not enough to serve the
summon to one only. It should be served to both
individually.
• If Sheriff served the summon to Husband personally and
then leave the summon for W to H without trying to
serve the same to W personally, it will be an improper
substituted summon. Because again, it is only in the
event that there is a failure to serve personally that you
can effect substituted service of summon.
D. Service upon entity without juridical personality (Section 7)
• Only persons who are natural or juridical persons or
entities authorized by law can be parties to civil action.
• But even if you’re not an organized or incorporated
entity but you represent yourself as incorporated, you
can be sued.
• But to whom to serve the summon or when the person
has no juridical personality? Summons may be effected
upon all the defendants by serving upon
o any one of them or upon the person in charge
of the office OR
o the person in charge of the office or place of
business maintained in such name.
• Such service shall not bind individually any person
whose connection with the entity has been, upon due
notice, been severed before the action was brought
6. Specific Requirements on service on juridical entities
A. Service upon domestic private juridical entity (Section 12)
• The amended provision no longer restricts nor limits the
service of summon to domestic private juridical entity
to the following:
o President
o Managing partner
o General manager
o Corporate secretary
o Treasurer, or
o In-house counsel of the corporation.
• In short, the receipt of the service of summon is no
longer exclusive to them. This is because the preceding
paragraph now states that in the absence or
unavailability of the abovementioned, you serve it to
their respective secretaries.
• Note that there is no mention that service of summon
to secretaries must be made only after 3 attempts in
two different dates. Hence, if the service of summon is
tried to be served to president, gen manager or counsel
but they are not present, then you tried again the other
day but same thing happened, you can now serve the
summon to any of their secretaries on that same day.
• Note also that there is no requirement that the
summon must be tried to be serve to all the mentioned
officers. It is just saying that once you try serving to any
one of the mentioned officers but that officer is
unavailable, summon can be served to his secretary.
• But if summon cannot be served to any of the corporate
officers mentioned nor any of their respective
secretaries, service may be made to the person who
customarily receives the correspondence for the
defendant at its principal office or the receiving clerk of
that office. Again, no requirement that service to
receiving clerk/custodian is subject to 3 attempts in 2
different dates. Note, AT ITS PRINCIPAL OFFICE, not
branch.
• If the domestic juridical entity is subject to receivership
or liquidation, service of summons shall be made on the
receiver of liquidator.
• When the summon to corporate officers mentioned or
to their secretaries or to the custodian could not be
served at least 3 attempted on two different dates, ask
approval from the court to service it electronically
B. Service upon foreign private juridical entity (Section 14)
• If the FPJE has transacted or is doing business in the
Philippines, service shall be made on:
o The resident agent.
o If no longer has a resident agent like
namatay, on the government official
designated by law to that effect; or
o On any of its officers, agents, directors or
trustees who are in the Philippines.
▪ If the FPJE is not registered in the Philippines, or has
no resident agent but doing business in the
Philippines, such service, with leave of court, be
effected outside of the Philippines through any of the
following means:
o By Personal service coursed through the
appropriate court in the foreign country
with the assistance of DFA
o By publication once in a newspaper of
general circulation in the country where the
defendant may be found and by serving a
copy of the summons and the court order
by registered mail at the last known address
of the defendant
o By facsimile or by electronic means with
prescribed proof of service
o By such other means as the court, in its
discretion, may direct
• Please note that there is no need to prove first that
the said FPJE is conducting a business here in the
Philippines. The only requirement is that plaintiff
needs to allege it in the complaint
 C. Service upon public corporations (Section 15)
• If the defendant is the Rep of the Phil, it must be
served to the SolGen
• If province, governor
• If city, mayor
• If municipality, mayor
• If brgy, mayor pa din because he is still the executive
head of barangays, not brgy captain
7. Constructive Service
A. Leave of Court (Section 19)
• When publication must be served with leave of court?
o Service upon foreign private juridical entities (Sec
14)
o Service upon defendant whose identity
whereabouts are unknown (Sec 16)
o Extraterritorial service (section 17)
o Residents temporarily out of the Philippines
(Section 18)
• Any application to the court which requires leave of court
shall be made by motion in writing, with supported
affidavit setting forth the grounds for the application
B. Service upon defendants whose identity whereabouts are unknown
(Section 16)
• The Rules now authorize summons by publication in any
action and no longer distinguish whether the action is in
personam, in rem or quasi in rem.
• Service by publication in a newspaper of general
circulation and in such place and for such time as the court
may order may be effected provided that:
o it is with leave of court
o The defendant is designated as an unknown
owner or his whereabout are unknown and
cannot be ascertained by diligent inquiry
o And it is done within 90 calendar days from the
commencement of the action
• An order granting the above must specify a reasonable
time within which the defendant must answer, which shall
not ne less than 60 calendar days after notice.
C. Residents temporarily out of the Philippines (Section 18)
• Residence refers to the place where the person named in
the summons is living at the time when the service is
made, even though he may be temporarily out of the
country at the time (Palma v Galvez)
• If the defendant has a residence within the Philippines but
temporarily out of the Philippines, Section 16 rule applies.
D. Extraterritorial Service (Section 17)
• Extraterritorial – defendant is not here in the Philippines.
• When is extraterritorial service proper? It is proper when
the defendant does not reside in the Philippines and is not
found in the Philippines, and the case is either one of the
four:
o It affects the personal status of the plaintiff, or
o It relates to or the subject matter of which is a
property found in the Philippines in which the
defendant has or claims a lien or interest, actual
of contingent; or
o In which the relief demanded consists, wholly or
in part, in excluding the defendant from any
interest therein; or
o The property of the defendant has been
attached within the Philippines
• If all the above concurs, personal service outside the
Philippines may be effected by leave of court, or as
provided for In international conventions to which the
Philippines is a party, or by publication in a newspaper of
general circulation in such places and for such time as the
court may order in which case a copy of the summons and
order of the court shall be sent by registered mail in the
last known address of the defendant, or by any other
matter the court may deem sufficient. (SO kahit walang
registered mail pero may publication, it may be enough
under “the court may deem sufficient)
8. Voluntary Appearance
• The defendant’s voluntary appearance shall be equivalent to service of
summons
 • As a general rule, one who seeks an affirmative relief is deemed to have Always filed before judgment May be filed even after
submitted to the jurisdiction of the court. It constitutes voluntary judgement
appearance. Kinds of pleading allowed
• Instances of actions amounting to voluntary appearance: Only 9 kinds of pleading are Any application for relief not by a
• When the defendant files a corresponding pleading thereon allowed by Rules pleading is a motion
• When the defendant files a motion for reconsideration of the As to form
Must be written May be oral or written
judgment by default
• When the defendant files a motion to set aside the judgement
C. Kinds of Motions
of default
a. Non-litigious motions (Ex parte motion) – motions which the court
• When the parties jointly submit a compromise agreement for may act upon without prejudicing the rights of adverse parties. It shall
the approval of the court (Navale v CA) not be set for hearing and shall be resolved by the court within 5
• Filing of an answer per so should not be treated automatically as a calendar days from receipt thereof. These motions include:
voluntary appearance when the appearance is precisely to object the • Motion for the issuance if an alias summons
jurisdiction of the court over his person. Accordingly, objections to the • Motion for extension to file an answer – should not be
jurisdiction of the court over the person of the defendant must be more than 30 calendar days and this is allowed only once
explicitly made(again, no longer by motion but by raising it as an (Sec 11 Rule 11)
affirmative defense) Failure to do so constitutes voluntary submission. • Motion for postponement
• Motion for the issuance of writ of execution - if it is a
matter of right
• Motion for the issuance of an alias writ of execution
• Motion for the issuance of a writ of possession
• Motion for the issuance of an order directing the sheriff to
RULE 15 Motion execute the final certificate of sale
• Other similar motions
1. Motion in general b. Litigious motions – one which requires the parties to be heard before
a ruling on the motion is made by the court. These include:
A. Definition of a Motion • Motions for bill of particulars
• Motion – is an application for relief other than by a pleading. A motion is • Motion to dismiss
not a pleading. • Motion for new trial
B. Motion v Pleadings • Motion for reconsideration
Pleading Motion • Motion for execution pending trial
As to purpose • Motion to amend after a responsive pleading has been filed
To submit a claim or defense for To apply for relief than by a • Motion to cancel statutory lien
appropriate judgment (ROC Rule pleading (ROC Rule 15 Sec 1) • Motion for an order to break in or for a writ of demolition
6 Sec 1) • Motion for intervention
As to being initiatory • Motion for judgment on the pleadings
May be initiatory Cannot be initiatory as that are • Motion for summary judgment
always made in a case already
• Demurrer of evidence
filed in court
• Motion to declare defendant in default
As to time of filing
• Other similar motions
 c. Prohibited motions
• Motion to dismiss (General rule) – Exception: if for the
following grounds
o No jurisdiction over the subject matter of the
claim
o Litis pendentia
o Res judicata
o Statute of limitation/prescription
Note: these cases can even be a ground for dismissal
by court motu proprio.
▪ Also, If you raise the 4 as AD and the court deny it,
you cannot file a motion for recon and mandamus or
appeal. But if you raise them as motion to dismiss, no
rule or nothing bars you to file a motion of recon
mandamus or appeal if the motion is denied.
• Motion to hear affirmative defenses
• Motion for reconsideration of the court’s action on the AD
• Motion to suspend proceeding without temporary
restraining order or injunction issued by a higher court
• Motion for extension to file pleadings, affidavits or any
other papers (General rule) Exception: Sec 11 Rule 11 which
says motion for extension can be done once and not
exceeding 30 calendar days
• Motion for postponement intended for delay; except if
based on acts of God, force majeure, or physical inability of
the witness to appear and testify
d. Pro forma motions – a motion without notice and hearing and no
supported affidavits. It is considered as a mere scrap of paper that
cannot be acted by the court. (Section 7)
Motion whether litigious or non-litigious, you have to serve it to the
other party and then file it in court with proof of service.
A pro forma motion shall not toll the reglementary period.
D. Hearing of motions and resolution thereof
- The opposing party shall file his or her opposition to a litigious
motion within 5 calendar days from receipt thereof.
- The motion shall be resolved by the court within 15 calendar days
from its receipt of the opposition thereto, or upon expiration of the
period to file the opposition (Sec 5)
- The court may, in its discretion, and if deemed necessary for its
resolution, call a hearing on the motion. Notice of hearing shall be
addressed to all parties concerned and shall specify the time and
date of the hearing (Sec 6) – there is no old rule of 3 day rule notice
requirement because it is now all up to the court’s discretion if a
hearing is necessary
- Motion day: All motions shall be set on Friday except for motions
requiring immediate action such as litigious motions
E. Omnibus Motion Rule
- A procedural principle which requires that every action that attacks
a pleading, judgment, order or proceeding shall include all
objections then available, and all objections then available, and all
objections not so included shall be deemed waived.
- Exception: 1. Lack of JOSM 2. Litis Pendentia 3 Res judicata 4.
Prescription
2. Motion for Bill of Particulars (Rule 12)
b. Purpose and when applied for
- Purpose: to aid in the preparation of a responsive pleading. An
action cannot be dismissed on the ground that the complaint is
vague or definite. (Galeon v Galeon)
- Before responding to a pleading a party may move for a definite
statement or for 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 10 calendar days.
- When applied for:
i. When the allegations are indefinite and uncertain that the nature
cannot be understood therefrom
ii. When the allegations are so vague that they do not appear
therefrom in what capacity a party sues or is issued
iii. When the allegations are uncertain as to time, place, quantity, title,
person or any other matter required to be pleaded with certainty
iv. When the allegations are faulty in duplication, setting out two
grounds for a single claim
v. When denials are so indefinite and uncertain that it cannot be
understood what is denied and what is admitted
vi. Particulars of details of computation of bank account were allowed;
technicalities are frowned upon
vii. Conclusions of law – deceit, machination, false pretenses,
misrepresentation and threats are conclusions of law and mere
allegation thereof without a statement of facts to which such terms
have referenced are not sufficient
c. Actions of the court
- Upon the filing of the motion, the court may either:
i. Deny it outright
 ii. Grant it outright
iii. Allow the parties the opportunity to be heard (Sec 3 Rule 12)
d. Compliance with the order and effect of noncompliance
- Period to comply with the order granting the motion: 10 calendar
days from notice of the order, unless a different period is fixed by
the court
- In complying with the order, the pleader may file the bill of
particular or a more definite statement either:
- 1. in a separate pleading or
- 2. In the form of separate pleading
- In either case, a copy thereof is required to be served to the adverse
party (Sec3a Rule 12)
- Effect of noncompliance:
- 1. If the order is not obeyed or in the case of insufficient compliance
therewith, the court:
o May order the striking out of the pleading or the portion
thereof to which the order is directed; or
o Make such order as it may deem just
- 2. If plaintiff is disobedient, his complaint will be stricken off and
dismissed (Sec 3 Rule 17)
- 3. If defendant is disobedient, his answer will be stricken off and his
counterclaim dismissed, and he will be declared in default upon
motion of the plaintiff *Sec4 Rule 17, Sec 3 Rule 9)
e. Effect on the period to file a responsive pleading
- If the motion is granted – the movant can wait until the bill of
particular is served on him by the opposing party and then he will
have the balance of the reglementary period within which to file his
responsive pleading
- If the motion is denied – he will still have such balance of the
reglementary period to file his responsive pleading, counted from
service of the denying his motion
- In either case, he will have at least 5 calendar days to file his
responsive pleading or the balance, whichever is greater. (Sec 5 Rule
12)
4.
RULE 17 DISMISSAL OF ACTIONS
1. Dismissal upon notice by plaintiff; Two Dismissal Rule
- Under Section 1 Rule 17, the dismissal is effected not by motion but by mere
notice of dismissal filed by plaintiff when is a matter a right before the defendant
has:
• Answered
• Moved for summary judgment
• Upon the filing of the notice of dismissal by plaintiff, the court
shall issue an order confirming the dismissal (so plaintiff should
wait unless this is an act of disrespect or discourtesy)
Note: The notice of dismissal as a matter if right ceases when an answer
or summary of judgment is served on the plaintiff and not when the
answer or motion is filed with the court. Thus, if a notice of dismissal is
filed by the plaintiff even after an answer been filed in court before the
responsive pleading has been served on the plaintiff, the notice of
dismissal is still a matter of right.
- General Rule: A dismissal made by the filing of a notice of dismissal is a
dismissal without prejudice i.e. the complaint can be refiled
- Exceptions:
• When the notice of dismissal so provides that the dismissal is
with prejudice
• When the plaintiff has previously dismissed the same case in a
court of competent jurisdiction (Two Dismissal Rule)
• Even when the notice of dismissal does not provide that it is with
prejudice but it is premised on the fact of payment by the
defendant of the claim involved
- Two Dismissal Rule: applies when the plaintiff has:
• Twice dismissed actions
• Based on or including the same claim; and
• In a court of competent jurisdiction
The second notice of dismissal will bar the refiling of the action because it
will operate as an adjudication of the claim upon the merit
2. Dismissal upon motion by plaintiff; effect on existing counterclaim
- Once either an answer or motion for summary judgment has been served
on the plaintiff, the dismissal is no longer a matter of right and will
require the filing of a motion to dismiss, not a mere notice of dismissal.
- The motion to dismiss will now be subject to the approval of the court
- If a counterclaim has been placed by the defendant prior to the service
upon him of the plaintiff’s motion for dismissal, the dismissal shall be
limited to the complaint or only the complaint and not the action is
dismissed.
- Such dismissal shall be without prejudice to the right of the defendant to
either:
 a) Prosecute his counterclaim in a separate action ; or
b) To have the same resolved on the same action. In this case, the
defendant must manifest such preference to the trial court within
15 calendar days from notice to him of plaintiff’s motion to dismiss
Note: these alternative remedies of the defendant are available to him
regardless of whether counterclaim is compulsory or permissive
- General rule: The dismissal under this Rule is without prejudice
- Exception: if the order of dismissal specifies it is with prejudice; or the
motion to dismiss stated otherwise
3. Dismissal due to fault of plaintiff
- Grounds for dismissal: the failure of the plaintiff without justifiable
reason to:
a) Appear on the date of presentation of his evidence in chief
on the complaint;
b) Prosecute the action for an unreasonable length of time
(Non Prosequitur);
o The fundamental test is whether under the
circumstances, the plaintiff is chargeable with
want of due diligence in failing to proceed with
reasonable promptitude. There must be
unwillingness on the part of the plaintiff to
prosecute.
o Where the counsel for the plaintiff had adduced
the evidence for his client, his failure to appear at
a subsequent hearing cannot be considered as
failure to prosecute but only a waiver of the right
to cross examine and to object to admissibility of
evidence for the latter
o It is the plaintiff’s failure to appear at the trial and
not the absence of his counsel which warrants
dismissal
c) Comply with the Rules of Court; or
d) Comply with the Order of the Court
- General rule: the dismissal is with prejudice because it has an effect of
an adjudication on the merits
- Exception: unless otherwise declared by the court
- The complaint may be dismissed upon :
a) Upon motion of the defendant
b) Or upon the court’s own motion
- The dismissal of the complaint due to the fault of the plaintiff does not
necessarily carry with it the dismissal of the counterclaim, compulsory
or otherwise, on the same or separate action.
4. Dismissal of counterclaim, cross-claim, or third party complaint
- Rule 17 shall also apply to the dismissal of any counterclaim, cross-
claim or third-party complaint
- A voluntary dismissal by the claimant by notice of dismissal as in
section 1 shall be made before:
a) A responsive pleading is served
b) A motion for summary judgment is served or
c) If there is none, before the introduction of evidence at the
trial or hearing
RULE 18 PRE-TRIAL
1. Concept of pre-trial
- It is a procedural device by which the court is called upon, after the filing
of the last pleading to compel the parties and their lawyers to appear
before it, and negotiate an amicable settlement or otherwise make a
formal statement and embody in a single document the issues of fact and
law involved in the action, and such other matters as may aid in the prompt
discussion of the action.
- It is meant to serve a device to clarify and narrow down the basic issues
between the parties to ascertain the facts relative to those issues and to
enable the parties to obtain the fullest possible knowledge of the issues
and facts before civil trials and thus prevent said trial to be carried on the
dark.
2. Nature and Purpose
- It is mandatory (Sec 2 Rule 18) and shall be terminated promptly
- It is not a mere technicality in court proceeding for it serves a vital
objective: the simplification, abbreviation and expedition of the trial, if not
indeed its dispensation
- Duty to Set Schedule: After the last responsive pleading has been served
and filed, it shall be the duty of the branch of clerk (not the plaintiff) to
issue, within 5 calendar days from filing, a notice of pre-trial which shall be
set not later than 60 calendar days from the filing of the said last
responsive pleading.
- Last responsive pleading: not necessarily the answer because it can be a
reply when the complaining party wants to deny the due execution of an
actionable document which is attached to an answer
- Purposes: (Sec 2 Rule 18)
1) The possibility of an Amicable settlement or of a submission of
alternative modes of dispute resolution
• The judge shall not allow the termination of a pre-trial
simply because of the manifestation of the parties that
 they cannot settle the case. Instead, he should expose
the parties to the other purposes of pre-trial.
2) The Simplification of issues
3) The possibility of obtaining stipulations or Admissions of facts
and documents to avoid unnecessary proof
• Note: the process of securing admissions whether of
facts or evidence is essentially voluntary. When the
parties are unable to arrive at stipulation of agreed
facts, the court must close the pre trial and proceed
with trial of the case.
• Admissions made in a stipulation of facts in pretrial
dispenses the presentation of evidence because they
are considered as judicial admissions and judicial
• The stipulation of facts at the pre-trial of a case
constitutes judicial admissions. The veracity of judicial
admissions requires no further proof and may be
controverted only upon a clear showing that the
admissions were made through palpable mistake or
that no admissions were made. Thus, the admissions
of parties during the pre-trial, as embodied in the pre-
trial order, are binding and conclusive upon them.
(Cuenco v Talisay Tourist Sports Complex)
4) The limitation of the number and identification of witnesses and
setting of trial dates
• In the pre-trial, the court shall ask the parties to agree
on the specific dates of continuous trial, adhere to the
case flow chart determined by the court and use the
time frame for each stage setting the trial dates
• One Day Examination of Witness Rule: Adherence to
this rule shall be required where the witness shall be
fully examined in 1 day only; subject to the court’s
discretion during the trial on whether or not to extend
the examination for justifiable reasons
• Most Important Witness Rule: Where no settlement
has been effected, the court shallfollow this rule,
where the court shall determine the most important
witnesses and limit the number and require the parties
and/or counsels to submit to the branch clerk of court
the names, address and contact numbers of the
witnesses to be summoned by subpoena.
5) The advisability of a preliminary reference of issues of
Commissioner
6) The propriety of rendering Judgment on the pleadings, or
summary judgment, or of dismissing the action should a valid
ground therefor be found to exist.
7) The requirement for the parties to:
i. Mark their respective evidence if not yet marked in the
judicial affidavits of witnesses
• As discussed, when we submit complaint or
when we submit an answer, there should be
attached judicial affidavits, documentary
evidence and even object evidence. So now,
when we go to pre trial, we are referred to
a preliminary conference – here, there will
be showing of documents for the purpose
of marking and comparing. You show to the
other party here the original and copy of
such documents to compare it so you can
mark the photocopy documents as
evidence.
• There is a distinction between identification
of documentary evidence and formal offer
of evidence. The former is done in pre trial,
trial and is accompanied by marking of
evidence as an “exhibit” while the latter is
only done when the party is about to rest its
case. The mere fact that a particular
document is identified and marked as an
exhibit does not mean that it has already
been offered as part of the evidence. It
must be emphasized that any evidence
which a party desires to submit as part of
the consideration of the court must be
formally offered by the party otherwise, it
can be excluded and rejected by the court
(Heirs of Pasag v Spouses Parocha)
ii. Examine and make comparisons of the adverse parties’
evidence vis-à-vis the copies to be marked
iii. Manifest for the record stipulations regarding the
faithfulness of the reproductions and the genuineness
and due execution of the adverse parties’ evidence
 iv. Reserve evidence not available at the pretrial, but only
in the following manner:
o For testimonial evidence, by giving the name
or position and the nature of the testimony
of the proposed witness
o For documentary evidence and other object
evidence, by giving a particular description
of the evidence
Note: Reservation of evidence is now expressly
allowed subject to following conditions
mentioned above depending on what type of
evidence. No reservation shall be allowed if not in
the manner mentioned above.
(So now, bawal na reservation na catch all. Dapat
sabihin mo na sa court ano yung evidences na
nirereserve mo. If u don’t tell and describe them,
you wont be able to add those evidences. (rule 18
sec 1g4)
8) Such other matters as may aid in the prompt disposition of the
action
• Failure without just cause of a party and counsel to
bring the evidence required shall be deemed waiver of
the presentation of such evidence UNLESS the
evidence is properly reserved.
3. Notice of Pre-trial
- The notice of pre-trial shall include the dates respectively set for:
1) Pre-trial
2) Court-Annexed mediation; and
3) Judicial Dispute Resolution, if necessary
Note: Therefore, mediation and JDR are now part of pre-trial
conference
- It shall be the duty of the parties and their counsel to appear at the 3
settings above. Nonappearance may be excused only for acts of God, force
majeure or duly substantiated physical inability (Section 4)
- Non appearance at any of the settings above shall be deemed as non
appearance at the pre trial and shall merit the sanction of Section 5 UNLESS
excused under Section 4
- A representative may appear on behalf of a party, but must be fully
authorized in writing to enter into an amicable settlement, to submit to
alternative modes of dispute resolution and to enter into stipulations or
admissions of facts and documents.
Note: written authority for amicable settlement is not enough. The
authority shall include power to enter into alternative modes of dispute
resolution and stipulation and admission of facts and incomplete authority
means no authority at all.
4. Appearance of parties;
- Effects of failure to appear: (Section 5)
1) Failure of the plaintiff and counsel to appear without valid cause
shall cause the dismissal of the action. The dismissal shall be with
prejudice, unless otherwise ordered by the court.
Remedy: Appeal. If without prejudice accdg to court - Re-filing of
the complaint.
2) Failure of the defendant and counsel to appear without valid
cause, the defendant will not be declared in default because he
has an answer, but he will suffer the consequences of default
such as the plaintiff may now be allowed to present his evidence-
ex parte. When to present evidence ex-parte? Within 10 calendar
days from termination of the pretrial so that the court can now
render judgment on the basis of the evidences offered.
Remedy: Motion for reconsideration and if denied and tainted
with grave abuse of discretion, petition for certiorari
3) Failure of any party to appear during pretrial shall result in a
waiver of any objections to the faithfulness of the reproductions
marked, or their genuineness and due execution
5. Pre-trial brief (Sec 6)
- When Filed: The parties shall file their respective pre-trial briefs in such
manner as shall ensure their receipt thereof at least 3 calendar days before
the date of the pre-trial
- Contents:
1) A concise statement of the case and the relief prayed for;
2) A summary of admitted facts and proposed stipulations of facts;
3) The main factual and legal issues to be tried or resolved (So you
have to divide the issues into these 2 categories)
4) The propriety of referral of factual issues to commissioners
5) The documents or other object evidence to be marked, stating
the purpose thereof
6) The names of the witnesses, and the summary of their respective
testimonies; and
7) A brief statement of points of law and citation of authorities
Note: The parties are bound by the representation and statements in
their respective pre-trial briefs. Hence, such representations and
 statements are in the nature of judicial admissions in relation to Sec 4
Rule 129 (A.M. 03-1-09-SC)
- Effect of Failure to file a pre-trial brief: It shall have the effect as failure to
appear in pre-trial
- Pre-trial Order (Sec 7)
• An order issued by the court upon termination of the pre-trial. It shall be
issued within 10 calendar days after termination of the pre-trial.
• Functions:
1) Defines and limits the issues to be tried; and
2) Controls the subsequent course of the action (except if modified
before trial)
- Contents of the Pre-trial Order - The court shall recite in details the
following:
1) The enumeration of the admitted facts;
2) The minutes of the pre-trial conference
3) The legal and factual issues to be tried
4) The applicable law, rules and jurisprudence
5) The evidence marked
6) The specific trial dates for continuous trial, which shall be within the
period provided by the Rules
7) The case flowchart to be determined by the court, which shall contain
the different stages of the proceedings up to the promulgation of the
decision and the use of time frames for each stage in setting the trial
dates
8) A statement that the one-day examination of witness rule and most
important witness rule under A.M. 03-1-09-SC (Guidelines for Pre-
Trial) shall be strictly followed; and
9) A statement that the court shall render judgment on the pleadings or
summary judgment, as the case may be
(This means that the court can decide to submit the case on the basis
of the judgment in the pleadings or summary judgment motu proprio)
- Postponement of presentation of the parties; witnesses at a scheduled
date is prohibited UNLESS if it is based on acts of God, force majeure or
duly substantiated physical inability of the witness to appear and testify.
- The contents of the pre-trial order shall control the subsequent
proceedings, unless modified before trial to prevent manifest injustice
• This means that the contents of the pre-trial order may
be modified before trial. For the court to refuse the
consideration of a triable issue before trial would
result in a manifest justice.
• But when the trial is already ongoing, the amendment
may no longer be made. The contents of the pre-trial
order shall control the court of action.
- The direct testimony of witnesses for the plaintiff shall be in the form of
judicial affidavits. After the identification of such affidavits, cross-
examination shall proceed immediately.
Note: Without submission of the judicial affidavit, no witness may be
allowed to be presented and testify for it forms part of the pre-trial.
6. Distinction between pre-trial in civil cases and pre-trial in criminal cases
Pre-trial in Civil Cases Pre-trial in Criminal Cases
As to manner of commencement
Made by the branch of clerk which Ordered by the court after arraignment
issues within 5 calendar days from and within 30 calendar days from the
filing of last responsive pleading a date the court acquires jurisdiction
notice of pre-trial. No more motion is over the person of the accused. No
required. motion to set the case for pre-trial is
required
As to possibility of Amicable Settlement
Considers the possibility of amicable Does not consider amicable settlement
settlement as an important objective as one of the purposes
As to Form
AM No. 03-1-09-SC requires the All agreements or admissions made
proceedings during preliminary during pre-trial shall be reduced in
conference to be recorded in the writing by both the accused and
“Minutes of Preliminary Conference” counsel, otherwise, they cannot be
to be signed by both parties and/or used against accused
counsel
As to Effect of Failure to Appear by a Party
The sanctions for non-appearance in a The sanctions in a criminal case are
pre-trial are imposed upon the plaintiff imposed upon the counsel for the
or the defendant accused or the prosecutor
As to the Requirements of Filing of Pre Trial Brief
Required with the particulars and Rules do not require
sanctions provided by the Rules
7. Alternative Dispute Resolution (ADR)
- RA 9285 otherwise known as “The Alternative Dispute Resolution of 2004”
institutionalized the use of alternative modes of dispute resolution
- This refers to any process or procedure used to resolve a dispute or
controversy, other than by adjudication of a judge of court or an officer of
a government agency, in which a neutral third party participates to assist
 in the resolution of the issues, which includes arbitration, mediation,
conciliation, early evaluation. Mini-trial or any combination thereof
- Court-annexed mediation (CAM) = this refers to a voluntary mediation
process conducted under the guidance of the court by referring the parties
to the Philippine Mediation Center (PMC) Unit for the settlement of their
dispute, assisted by a Mediator accredited by the Supreme Cort. (Sec 3l RA
9285). Under the current rule, this is considered part of pre-trial (Sec 4
Rule 18).
• CAM is mandatory in the following cases:
a) All civil cases, except those which by law may not be
compromised (Article 2035 NCC)
b) Special proceeding for the settlement of estates
c) The civil aspect of Quasi offenses under Title 14 of the
Revised Penal Code
d) The civil aspect of criminal cases where the imposable
penalty does not exceed 6 yrs imprisonment and the
offended party is a private person
e) The civil aspect of theft (not Qualified Theft), estafa
(not syndicated or large scale estafa) and libel
• In such cases above, under Sec 8 Rule 18, after pre-trial and
after issues are joined, the court shall issue an order referring
the parties for mandatory court-annexed mediation at
Philippine Mediation Center (PMC) Unit of the court. The period
of this procedure shall not exceed 30 calendar days without
further extension.
8. Judicial Dispute Resolution (Section 9 Rule 18)
RULE 19 INTERVENTION
- It is a process whereby the judge (called the JDR judge) employs
conciliation, mediation or early neutral evaluation in order to
settle a case at the pre-trial stage
- This is made only when the judge (trial judge) as to which the
case was originally raffled is convinced that settlement is still
possible. If the trial judge is, he refers it to the JDR judge (of
another court) for JDR. In short, if CAM fails, the court will
determine if JDR is still necessary.
- JDR is conducted by the JDR court within a non-extendible period
of 15 calendar days from notice of failure of CAM
- If JDR fails, the case will be returned to the court where the case
originated, for trial as scheduled and agreed upon in the Pre-Trial
Order. This is a shift from the present practice of JDR being
generally conducted by the court where the case was filed, and
passed on to another court if the JDR fails.
- All proceedings during the CAM and JDR shall be confidential.
- The following cases shall not be referred to CAM and JDR:
a) Civil cases which by law cannot be compromised, as
follows:
o The civil status of persons;
o The validity of a marriage or a legal separation;
o Any ground for legal separation;
o Future support;
o The jurisdiction of courts; and
o Future legitime.
b) Civil aspect of non-mediatable criminal cases;
c) Petitions for Habeas Corpus;
d) All cases under Republic Act No. 9262 (Violence against
Women and Children); and
e) Cases with pending application for Restraining
Orders/Preliminary Injunctions.
Note: However, in cases covered in numbers 1, 4 and 5 where the
parties inform the court that they have agreed to undergo
mediation on some aspects thereof, e.g., custody of minor
children, separation of property, or support pendente lite, the
court shall refer them to mediation.
1. Requisites for Intervention
a) There must be a motion for intervention filed before rendition of
judgement by the trial court (Section 2)
(A motion is important because leave of court is required before a
person may be allowed to intervene (Section 1))
b) The movant must show in his motion that he: (Section 1)
i. Has an immediate legal interest in the matter in
controversy, not merely contingent;
ii. Has legal interest in the success of either of the parties
in the action;
iii. Has legal interest against both parties; OR
 iv. Is so situated as to be adversely affected by a
distribution of other disposition of the property in the
custody of the court or of an officer thereof
c) Intervention will not unduly delay or prejudice the adjudication of
the right of original parties; and
d) Intervenor’s rights may not be fully protected in a separate
proceeding
e) A copy of the pleading-in-intervention shall be attached to the
motion and served on the original parties
2. Time to Intervene
- General Rule: The motion to intervene must be filed at any time
before rendition of judgment by the trial court (Section 2)
- Exception: Although the Rule 19 is explicit on the time when to
intervene, the Supreme Court allowed exceptions in the following
cases:
a) With respect to indispensable parties, intervention may
be allowed even on appeal (Falcasantos v Falcasantos)
b) When the intervenor is the Republic (Lim v Pacquing)
Note: Prescription does not lie against the state. The
State is not estopped by the inaction or mistakes of its
agents.
c) Where necessary to protect some interest which cannot
otherwise be protected, and for the purpose of
preserving the intervenor’s right to appeal (Pinlac v CA);
or
d) May be allowed during the pendency of the appeal,
where the interest of injustice so requires (Tahanan Dev
Corp v CA)
- The allowance or disallowance of a motion of intervention rests
on the sound discretion of the court after consideration of the
appropriate circumstances. The rule on intervention is a rule of
procedure in which the subject is to make the powers of the court
fully and completely available for justice. Its purpose is not to
hinder or delay, but to facilitate and promote the administration
of justice.
3. Remedy for the denial of motion to intervene
- General Rule: The granting or refusal of a motion to intervene is a
matter of judicial discretion, and once exercised, the decision of
the court cannot be reviewed or controlled by mandamus,
however erroneous it may be.
- Exception: When there is arbitrary abuse of discretion, in which
case mandamus may issue if there is no other adequate remedy,
though the result is that the court will be called upon to review
the exercise of discretionary power.
RULE 20 AND 22 CALENDAR OF CASES AND COMPUTATION OF PERIOD
- The clerk of court, under the direct supervision of the judge, shall keep a
calendar of cases:
1) For pre-trial
2) For trial
3) Those whose trials were adjourned and postponed; and
4) Those with motions to set for hearing
- Preference shall be given to:
1) Writ of Amparo
2) Habeas corpus cases
3) Habeas data
4) Election cases
5) Those so required by law; and
6) Special civil actions
- Assignment of cases
The assignment of cases to the different branches of a court shall be
done
1) Exclusively by raffle
2) In open session; and
3) With prior adequate notice to the interested parties
- How to compute time
• In computing, any period of time prescribed or allowed by
the Rules or by order of the court, or by any applicable
statute, the day of the act or event from which the
designated period of time begins to run is to be excluded
and the date of performance included. If the last day of
the period, as thus computed, falls on a Saturday, a
Sunday or a legal holiday in the place where the court sits,
the time shall not run until the next working day. (Sec 1
Rule 22)
 • When the law speaks of years, months, days or nights, it
shall be understood that years are of 365 days, days of
24hrs, and nights from sunsets to sunrise.
If months are designated names, they shall be computed
by the number of days which they respectively have.
In computing a period, the first day shall be excluded and
the last day included.
The rule applies only when the period of time is
prescribed by the Rules, or order by the court or by any
applicable statute (Art 13 NCC)
- Reckoning of extension:
It should be tacked on the original period and commence immediately
after the expiration of such period
But, SC allowed the extended period to commence from the specific time
prayed for in the motion of extension (Moskowsky v CA)
- Effect of interruption (Sec 2 Rule 22):
Should an act be done which effectively interrupt the running of the
period, the allowable period after such interruption shall start to run on
the day after the 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.
The event referred to would include force majeure, fortuitous events or
calamities
- SM Agri and General Machineries, G.R. No. 74806
• In the instant case, the records show that petitioner actually received the
Labor Arbiter's decision on 10 April 1984. Following the 10-day period
requirement of the Labor Code, the last day to appeal therefore was 20
April 1984, or the 10th calendar day from 10 April 1984. But since 20 April
1984 was a legal Holiday, it being Good Friday, and the next day,
Saturday, was also declared a non-working public holiday by presidential
proclamation No. 2353, the appeal could be filed (as it was actually filed)
on the next business day which was 23 April 1984, a Monday, in
accordance with the above-quoted administrative code provision.
RULE 21 SUBPOENA
Public respondent NLRC cites the case of Vir-Jen Shipping and Marine
Services v. NLRC 7 in its 29 November 1985 resolution. This Court
reiterates the doctrine enunciated in said case that the 10-day period
provided in Art. 223 of the Labor Code refers to 10 calendar days and not
10 working days. This means that Saturdays, Sundays and Legal Holidays
are not to be excluded, but included, in counting the 10-day period. This
is in line with the objective of the law for speedy disposition of labor
cases with the end in view of protecting the interests of the working man.
The ruling in the Vir-Jen Shipping case does not however apply to the
case at bar. This is not a case of a Legal Holiday falling within the period,
between the day when the decision appealed from was received and the
last day to appeal or the 10th day. Instead, we have here a case where
the Legal Holiday is coincidentally the 10th or the last day to appeal.
NLRC's contention that petitioner's appeal was filed out of time because
20 April was the last day to file the appeal, and a Legal Holiday is deemed
included in the computation of the 10-day reglementary period, is
untenable. Sec. 31, Art. VIII of the Revised Administrative Code, and not
the case of Vir-Jen Shipping, applies to the peculiar facts of this case.
Therefore, while upholding the interpretation made in the Vir-Jen
Shipping case that the 10-day period fixed by Art. 223 of the Labor Code
contemplates calendar days and not working days, the court recognizes
an exception to this general rule, i.e., where the 10th day is a Sunday or
a Legal Holiday, in which event, the appeal can be filed on the next
business day. Consequently, in such a case, the supposedly last day to
appeal will not be deemed the last day because it happens to be a Sunday
or Legal Holiday. Instead, the act can be done on the next business day
following that Sunday or Legal Holiday. Stated differently, the ruling in
Vir-Jen Shipping case contemplates a situation where one is burdened
with the task of computing a 10-day period which includes a Saturday,
Sunday or Legal Holiday and not when the 10th day falls on a Sunday or
Legal Holiday. To be noted is the fact that Saturday (unless legally
declared a holiday) is considered a business day and therefore if the last
day to appeal falls on a Saturday, the act is still due on that day and not
on the next succeeding business day.
 - It is a process directed to a person requiring him to attend and to testify at
the hearing or the trial of an action, or at any investigation conducted
under the laws of the Philippines, or for taking of his deposition. (Sec 1 Rule
21)
- Latin term which literally means “under the pain of penalty”
I. Subpoena Duces Tecum
- A process directed to a person requiring him to bring with him
books, documents, or other things under his control
II. Subpoena ad testificandum
- It is a process directed to a person requiring him to attend and
to testify at the hearing or trial of an action or at any
investigation conducted by competent authority or for taking of
his deposition
- When requesting party may avail himself of the issuance of a
subpoena ad testificandum, or duces tecum: If the government
employee or official, or the requested witness, who is neither the
a) witness of the adverse party nor a b) hostile witness:
i. Unjustifiably declines to execute a judicial
affidavit; or
ii. Refuses without just cause to make the relevant
books, documents, or other things under his
control available for copying, authentication, and
eventual production in court
III. Service of subpoena
- The subpoena may be issued by:
a) The court before whom the witness is required to
attend
b) The court of the place where the deposition is to be
taken
c) The officer of body authorized by law to do so in
connection with investigations conducted by said
officer or body; or
d) Any justice of the Supreme Court or the Court of
Appeals in any case or investigation pending within the
Philippines
- Subpoena to a prisoner: The judge or officer shall examine and
study carefully such application to determine whether the same
is made for a valid purpose and no prisoner sentenced to death,
reclusion perpetua or life imprisonment and is confined in prison
shall be brought outside the said penal institution for
appearance or attendance in any court unless authorized by the
SC.
- Contents of Subpoena:
A subpoena shall:
a) state the name of the court and the title of the action
or investigation
b) Be directed to the person whose attendance is
required
c) In the case of a subpoena duces tecum, it shall also
contain a reasonable description of the books,
documents, or things demanded which must appear to
the court prima facie relevant.
Requisites for issuance of Subpoena Duces Tecum:
a) The books, documents and other requests must
appear to be prima facie relevant
b) Such books must be reasonably described to be readily
identitifed
- Service of Subpoena:
It shall be made in the same manner as personal or substituted
service of summons
The original shall be exhibited and a copy thereof delivered to
the person on whom it is served, tendering to him the fees for
one day’s attendance and the kilometrage allowed by the Rules.
Costs for court attendance and the production of documents and
other materials subject of the subpoena shall be tendered and
charged accordingly. (amendment) This is now required
Rationale for service of subpoena: the service must be made so
as to allow the witness a reasonable time for preparation and
travel to the place of attendance.
IV. Compelling attendance of witnesses; Contempt
- General Rule: Consequences of Failure to attend or obey a
subpoena
a) The court or judge issuing the subpoena may issue a
warrant to the sheriff or his deputy to arrest the
witness and bring him before the court or officer
where his attendance is required
b) The cost of such warratnt and seizure of such witness
shall be paid by the witness if the court issuing it shall
 determine that his failure to answer the subpoena was
willful and without just excuse; and Rule 23 sec 1 – this can not be commendced y filing of ex parte motion and bec it is
c) Deemed contempt of court, if the failure to obey a non litigpius the court shall decied within 5 calendar days rom receipt of ex parte
subpoena is without adequate cause motion
Note: If the subpoena was not issued by the court, the Interggotires sec 25 – same as above. By Ex parte motion nalang
disobedience thereto shall be punished in accordance with
the applicable law.
- Exceptions: where compelling attendance and contempt do not
apply:
a) Viatory Right of a Witness – witness who resides more
than 100 km from his residence to the place where he
is to testify by the ordinary course of travel; and
Note: This only refers to civil and not criminal cases
(Genorga v Quitain)
b) Detention prisoner – if no permission of the court in
which his case is pending was obtained.
V. Quashing of subpoena (Grounds for quashal of subpoena)
- Subpoena duces tecum: Upon motion promptly made and, in any
event, at or before the time specified therein
a) It is unreasonable and oppressive
b) The relevancy of the books, documents or things does
not appear
c) If the person in whose behalf the subpoena is issued
fails to advance the reasonable cost of the production
thereof; or
d) That the witness fees and kilometrage allowed by the
Rules were not tendered when the subpoena was
served
- Subpoena ad testifcandum:
a) That the witness is not bound thereby; or
b) That the witness fees and kilometrage allowed by the
Rules were not tendered when the subpoena was
served
- The grounds are not exclusive.