USON, Roxanne D.

CIVIL PROCEDURE EXAM

1. MARIE filed a complaint against EDNA to recover the amount of

P500,000.00 based on their contract of services. In her answer, EDNA admitted that she has
yet to pay MARIE for her services based on their contract but nevertheless, interposed a
counterclaim alleging that MARIE still owed her rental arrearages for the lease of her
apartment also amounting to PS00,000.00. It has come to Marie's attention that Edna did not
pay any filing fees when she filed her answer. As such, Marie moved to dismiss the
counterclaim. In response to Marie’s motion, Edna averred that the non-payment of filing
fees was purely based on inadvertence and that the said filing fees had already been paid as
of date, as evinced by the official receipt issued by the clerk of court therefor.

(a) What is the nature of Edna’s counterclaim? Is the payment of filing fees required for
such counterclaim to prosper? Explain. (3%)

The counterclaim filed by Edna was a Permissive counterclaim since it does not
arise out of or is not necessarily connected with the subject matter of the opposing
party's claim. It is essentially an independent claim that may be filed separately in
another case

(b) Should Mr. Edna’s counterclaim be dismissed? Explain. (3%)

Yes since the payment of filing fees required were not paid.

2. X executed a mortgage contract with Y. X resides in Manila, while Y

resides in Makati , covering land in Quezon City . In their contract , it was stipulated upon
that that any suit arising from the agreement may be filed "nowhere else but in a Taguig
court". Where could Y file a case in case of violation of the contract? (5%)

Suits may be filed in any venue where it is convenient for the parties to institute actions
arising from or in relation to their agreements Agreements on venue are allowed. "By
written agreement of the parties the venue of an action may be changed or transferred
from one province to another." Parties may by stipulation waive the legal venue and
such waiver is valid and effective being merely a personal privilege, which is not
contrary to public policy or prejudicial to third persons. It is a general principle that a
person may renounce any right which the law gives unless such renunciation would be
against public policy.

3. May the trial court dismiss a complaint motu proprio on the ground of improper venue?
Why ow why not? What are the exceptions (5%)
 Trial Court cannot dismiss a complaint motu proprio on the ground of improper
venue. The court may only dismiss an action motu proprio in case of lack of
jurisdiction over the subject matter, litis pendentia, res judicata and prescription.

4. In a complaint filed by the plaintiff, what is the effect if the defendant failed to file
an answer within the reglementary period?

a). What action can the plaintiff file? DISCUSS (3%)

The court is allowed to render judgment motu proprio in favor of the plaintiff

b) What action or remedy can be availed of by the defendant? DISCUSS FULLY (5%)

The defendant who has been declared in default has the following remedies, to wit:
a. he may, at any time after discovery of the default but before judgment, file a motion,
under oath, to set aside the order of default on the ground that his failure to answer was
due to fraud, accident, mistake or excusable neglect, and that he has a meritorious
defense;
b. if judgment has already been rendered when he discovered the default, but before
the same has become final and executory, he may file a motion for new trial under
Section 1(a) of Rule 37;
c. if he discovered the default after the judgment has become final and executory, he
may file a petition for relief under Section 2 of Rule 38; and he may also appeal from
the judgment rendered against him as contrary to the evidence or to the law, even if no
petition to set aside the order of default has been presented by him.

5. A filed an action against B for rescission of a contract for the sale of a parcel of land . The
sheriff went to serve the summons. After being told by B’s wife that her husband was out of
town and his date of return wasn’t known , the sheriff requested the wife to just receive the
summons in behalf of the husband which she did and signed for the same.

a) Was there a valid service of summons upon B’s wife? Explain your answer . (3%)

The service of summons upon B’s wife was valid. the sheriff used a substituted
service of summons. the rules of Court provides that if for justifiable causes, the
defendant cannot be served within a reasonable time, service may be effected by
leaving copies of the summons at the defendant’s residence with some person of
suitable age and discretion residing therein. Thus, the wife’s receipt of the
summons, constituted a valid service of summons through substituted service

b) If B files a motion to dismiss the complaint based on the twin grounds of lack of
jurisdiction over his person and prescription of the cause of action, may he be deemed
to have voluntarily submitted himself to the jurisdiction of the court? Explain your
answer . (3%)
6. Mario filed a complaint for a sum of money against Ervin and Jude before the RTC of
Manila. The initiatory pleading averred that on February 14, 2010, Ervin obtained a loan
from Mario in the amount of Pl Million, as evidenced by Promissory Note No. 007 (PN)
signed by Ervin. Jude signed a Surety Agreement binding herself as surety for the loan.
Mario made a final demand on February 14, 2015 for Ervin and Jude (defendants) to pay, but
the latter failed to pay. Mario prayed that defendants Ervin and Jude be ordered to pay the
amount of P1 Million plus interests.

[a] Resolve the motion with reasons. (2.5%)

The Motion for Judgment on the Pleadings should be denied. Under the Rules of
Civil Procedure, a motion for judgment on the pleading may be filed only by the
plaintiff. In the facts given, the motion should be denied.

[b] Distinguish "Summary Judgment" and "Judgment on the Pleadings." (2.5%)

A judgment on the pleadings is a judgment on the facts as pleaded, while a

summary judgment is a judgment on the facts as summarily proved by affidavits,
depositions, or admissions

7. Elise obtained a loan of ₱3 Million from Merchant Bank. Aside from executing a
promissory note in favor of Merchant Bank, she executed a deed of real estate mortgage over
her house and lot as security for her obligation. The loan fell due but remained unpaid; hence,
Merchant Bank filed an action against Elise to foreclose the real estate mortgage. A month
after, and while the foreclosure suit was pending, Merchant Bank also filed an action to
recover the principal sum of ₱3 Million against Elise based on the same promissory note
previously executed by the latter.

In opposing the motion of Elise to dismiss the second action on the ground of
splitting of a single cause of action, Merchant Bank argued that the ground relied upon by
Elise was devoid of any legal basis considering that the two actions were based on
separate contracts, namely, the contract of loan evidenced by the promissory note, and the
deed of real estate mortgage.

Is there a splitting of a single cause of action? Explain (5%)

8. Harry is going to file in Manila a complaint against Dino for collection of a promissory
note in the amount of P300,000. The Complaint also prays for moral damages of P50,000,
exemplary damages of P50,000 and attorney’s fees of P50,000. (10 Points)

a. Which court would have jurisdiction over the complaint of Harry? Why? (5 points)
b. Can Harry add or join the ejectment case with his action for collection of a promissory
note given that they involve the same parties? Why or why not? (3 points)

c. Is joinder of parties mandatory or permissive? (2 points)