H8.
Rule 9 Effect of Failure To Plead
RULE 9. Effect of Failure to Plead
Section 1. Defences and objections
not pleaded.
Section 1. Defences and objections not
pleaded. - Defences and objections not
pleaded either in a motion to dismiss or in
the answer are deemed waived. However,
when it appears from the pleadings or the
evidence on record that the court has no
jurisdiction over the subject matter, that
there is another action pending between the
same parties for the same cause, or that the
action is barred by a prior judgement or by
statute of limitations, the court shall
dismiss the claim.
➔ Yung defences and objections na hindi naplead
either through:
◆ Motion to Dismiss
◆ Answer - ex: Affirmative defences are
raised in the answer. (Fraud, Statute
of Limitations, Bankruptcy,Estoppel)
➔ EFFECT: deemed waived.
➔ XPN: If it appears in the pleading or evidence
on record that:
◆ Court has no jurisdiction over the
subject matter (Ex: Case of IPE in
MTC)
◆ There is another action pending bet.
the same parties for the same cause
◆ Action is barred by prior judgement
Ex: Title for ownership, may
judgement na nagsasabi na sa kanya na
yung lupa pero may pilit na
nagrerecover pa rin
◆ Statute of limitations
EFFECT: ~ The Court shall dismiss the claim.
Ito kasi ung mga for motion to dismiss.
As a rule, pursuant to Sect. 12, Rule 15 of the
2019 Rules on Civil Procedure
Section 12. Prohibited motions. — The
following motions shall not be allowed:
(a) Motion to dismiss except on the
following grounds:
1) That the court has no jurisdiction over the
subject matter of the claim;
2) That there is another action pending
between the same parties for the same cause;
and
3) That the cause of action is barred by a
prior judgement or by the statute of
limitations;
➔ A motion to dismiss is a prohibited pleading.
Wala ng motion to dismiss, kasi tinanggal na
yung Rule 16. Except if grounded on the
following:
◆ No jurisdiction over the subject matter
◆ Litis pendencia
◆ Res judicata
◆ Prescription of action
◆ Statute of Limitations
What is the period of time within which to file a
motion to dismiss?
→ Within the period to file a responsive pleading or the
answer, which is within 30 calendar days.
Legal basis:
Rule 11.
When to file responsive pleadings
Section 1. Answer to the complaint. — The
defendant shall file his answer to the complaint
within thirty (30) calendar days after
service of summons, unless a different period is
fixed by the court
Why file your motion to dismiss within the period to file
an answer?
→ You will be declared in default if you fail to file a
responsive pleading within the allotted period.
(Panganiban vs. Pilipinas Shell)
→ The requirement that a motion to dismiss should be
filed within the period to file an answer is not absolute .
Even after an answer has been filed, a defendant can
still file a motion to dismiss on the ff. Grounds:
- Lack of jurisdiction
- Res Judicata
- Litis pendencia
- Lack of cause of action
- Discovery during trial of evidence that can
constitute a ground for dismissal
Section 2. Compulsory
counterclaim, or cross-claim, not set
up barred.
Section 2. Compulsory counterclaim,
or cross-claim, not set up barred. - A
compulsory counterclaim, or a cross-claim,
not set up shall be barred. (2)
EFFECT: shall be barred; not allowed ; prohibited.
What is a Counterclaim,
Compulsory counterclaim, Cross
-claim and compulsory cross claim?
Rule 4, Section 6. Counterclaim. - A
counterclaim is any claim which a defending
party may have against an opposing party.
Rule 4, Section Compulsory
7.
counterclaim. - A compulsory
counterclaim is one which, being cognizable
by the regular courts of justice, arises out of
or is connected with the transaction or
occurrence constituting the subject matter of
the opposing party’s claim and does not
require for its adjudication the presence of
third parties of whom the court cannot
acquire jurisdiction. Such a counterclaim
must both be within the jurisdiction of the
court as to the amount and the nature
thereof, except that in an original action
before the Regional Trial Court, the
counterclaim may be considered
compulsory regardless of the amount.
A compulsory counterclaim not raised
in the same action is barred, unless
otherwise allowed by these Rules.
➔ A counterclaim becomes compulsory when it:
➔ (1) arises out of the same transaction that
constitutes the subject matter of the opposing
(plaintiff’s) claim.
➔ Does not require for its adjudication the presence
of third parties whom the court cannot acquire
jurisdiction.
➔ Such a counterclaim must be within the court’s
jurisdiction both to the amount and nature.
Section 8. Cross-claim. - A cross-claim is
any claim by one party against a co party
arising out of the transaction or occurrence
that is the subject matter either of the
original action or of a counterclaim therein.
Such cross-claim may cover all or part of the
original claim. (8a)
Section 3. Default;declaration of.
Section 3. Default; declaration of. - If
the defending party fails to answer within the
time allowed therefor, the court shall, upon
motion of the claiming party with notice to
the defending party, and proof of such
failure, declare the defending party in
default. Thereupon, the court shall proceed
to render judgement granting the claimant
such relief as his or her pleading may
warrant, unless the court in its discretion
requires the claimant to submit evidence.
Such reception of evidence may be delegated
to the clerk of court.
When to declare default of defending
party?
➔ If yung defending party, failed to answer, walang
answer doon sa complaint, within the time given
allowed for answer, (30 calendar days) the court
shall:
◆ Upon motion of the claiming party, with
notice to the defending party and proof of
the failure to answer
 ◆ Court: declare the defending party in
default.
What happens next after declaration of
default?
➔ The Court can now grant the relief sought by the
claiming party. Unless they ask or require the
claiming party to submit evidence.
(a) Effect of order of default. - A party in
default shall be entitled to notice[s] of
subsequent proceedings but shall not to take
part in the trial.
➔ If a party is in default, he shall receive notice
of the subsequent proceedings, but he shall not
take part in the trial.
➔ Iinform pa rin siya ng court if merong mga
subsequent proceedings, pero hindi na siya
allowed mag take part pa or maging present
doon sa trial.
(RELIEF FOR AFTER NOTICE AND BEFORE JUDGEMENT
OF DEFAULT)
(b) Relief from order of default. - A
party declared in default may at any time
after notice thereof and before
judgement, file a motion under oath to
set aside the order of default upon
proper showing that his or her failure to
answer was due to fraud, accident,
mistake or excusable negligence and
that he or she has a meritorious defence.
In such cases, the order of default may be
set aside on such terms and conditions
as the judge may impose in the interest of
justice.
➔ Yung party na nadeclare in default, at any time
after nung notice, and before judgement :
◆ Pwede siyang mag file a motion under
oath - to set aside the order of default
◆ UPON PROPER SHOWING:
◆ Na yung failure to answer nya ay due
to:
MUST ALL BE STATED WITH PARTICULARITY: (Rule 8,
Section 5. Fraud, Mistake, Condition of the mind)
- Fraud - Article 1338 of the Civil Code of the Philippines -
there is fraud when, through insidious words or machinations of
one of the contracting parties, the other is induced to enter
into a contract which, without them, he would not have agreed
to.
- Accident - "that which happens by chance or fortuitously,
without intention and design, and which is unexpected, unusual
and unforeseen" (Philippine Law Dictionary)
- Mistake
Excusable Negligence - “one which ordinary diligence and
prudence could not have guarded against.” (lui Enterprises Inc.
vs. Zuellig Pharma Corporation and Philippine Bank of
Communications)
+ Affidavit of Merit - Under our Rules of Court, an
affidavit of merit must not only contain facts
constituting the movant's good and substantial
defences but must also state the nature and character
of the fraud, accident, mistake or excusable
negligence on which the motion for relief was based.
Under Rule 18, 3, a motion to lift an order
of default must allege with particularity the
facts constituting the fraud, accident,
mistake, or excusable neglect which caused
his failure to answer. (PATRICIA S.
VILLAREAL, for herself and as guardian
of her minor children, CLAIRE HOPE and
TRICIA, both surnamed VILLAREAL,
Petitioners, vs. THE COURT OF APPEALS,
ELISEO SEVILLA, and ERNA SEVILLA )
➔ And he has meritorious defence - must be
proven with sufficient evidence.
➔ The order of default can be set aside on such
terms and conditions, as the judge may impose
in the interest of justice.
(c) Effect of partial default. - When a
pleading asserting a claim states a common
cause of action against several defending
parties, some of whom answer and the
others fail to do so, the court shall try
the case against all upon the answers
thus filed and render judgement upon the
evidence presented.
➔ There are numerous defendants.
 ➔ Ex: A sued B, C, and D - only B filed an answer.
C and D would not be in default, but will benefit
from the answer of B because the case was filed
against them for the same cause of action.
(Atty. Deriquito)
(d) Extent of relief to be awarded. - A
judgement rendered against a party in
default
shall [neither] exceed the amount or be
different in kind from that prayed for
nor award unliquidated damages.
➔ Kapag may party in default, ung relief na
iaaward ay hindi dapat sumobra or maging
different kind from what was prayed for. Hindi
rin pwede mag award ng unliquidated damages
like moral damages.
➔ Unliquidated damages - Unliquidated damages
are a type of compensation that is considered
“at large,” meaning that the amount is not
stated when a contract is established. Instead,
these damages are determined by a judge or
jury in a court following a breach.
◆ unliquidated damages for breach of
contract is because these claims
"often involve a broad field of
investigation and require the
application of judgement and
discretion upon the measure of
damages and the weight of conflicting
evidence. (Ibid.) (PHILIPPINE
OPERATIONS, INC., vs.AUDITOR GENERAL OF
THE PHILIPPINES and the BUREAU OF
PERSONS)
(e) Where no defaults allowed. - If the
defending party in action for annulment
or declaration of nullity of marriage or
for legal separation fails to answer, the
court shall order the Solicitor General
or his or her deputized public
prosecutor, to investigate whether or not a
collusion between the parties exists, and if
there is no collusion, to intervene for the
State in order to see to it that the evidence
submitted is not fabricated. (3a)
Unlike in civil cases, the respondent in
annulment proceedings is not declared in default if
he/she fails or refuses to file an answer, but the public
prosecutor shall be ordered to investigate whether
collusion exists between the parties.
Rule 11. When to file responsive
pleadings.
Section 1. Answer to the complaint.
Section 1. Answer to the complaint. -
The defendant shall file his or her answer to
the complaint within thirty (30) calendar
days after service of summons, unless a
different period is fixed by the court. (1a)
→ This is the same period for third party litigants.
Section 2. Answer of the defendant
foreign private juridical entity.
Section 2. Answer of a defendant
foreign private juridical entity. -
Where the defendant is a foreign private
juridical entity and service of summons is
made on the government official designated
by law to receive the same, the answer shall
be filed within sixty (60) calendar days after
receipt of summons by such entity.
What is the period for an answer to
an amended complaint?
→ If an amended complaint is a matter of right, and if
an amended answer is to be filed, the period is within 15
calendar days from the notice of the order admitting
the same.
📌 Note: If answer has been filed to the original
complaint,even if you did not file an amended answer
for the amended complaint, you will not be declared in
default.
→ Your answer to the original complaint will
serve as your answer to the amended complaint.
However, all the new matters that you did not address in
the amended complaint will be deemed admitted.
What is the period to file an answer
to a supplemental complaint?
→ The period is within 20 calendar days from the
notice of the order admitting the same.
📌 The answer to the original complaint will stand as
your answer if no supplemental answer was filed.
What is the period to file an answer
to a Compulsory or Permissive
Counterclaim, and Cross claim?
Meaning of Permissive Counterclaim
(Yolanda Villanueva Ong. vs. Juan Ponce Enrile)
A counterclaim is permissive when 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.
→ No answer filed for compulsory counterclaim - okay
lang.
→ No answer to a permissive counterclaim - you will
be declared in default.
Section 6. Reply.
Section 6. Reply. - A reply, if allowed
under Section 10, Rule 6 hereof, may be filed
within fifteen (15) calendar days from service
of the pleading responded to.
(6a)
When are replies allowed?
→ Replies are allowed only when the defendant
attaches an actionable document to his answer.
Section 11. Extension of time to file
an answer
Section 11. Extension of time to file an
answer. - A defendant may, for meritorious
reasons, be granted an additional period of
not more than thirty (30) calendar days to
file an answer. A defendant is only allowed to
file one (1) motion for extension of time to
file an answer.
A motion for extension to file any
pleading, other than an answer, is
prohibited and considered a mere scrap of
paper. The court, however, may allow any
other pleading to be filed after the time fixed
by these Rules. (11a)
Remember, Rule 16 was totally taken out. Motion to
dismiss is prohibited. Wala na nagsasabi ng period
within which to file it.
However, if your motion to dismiss is grounded on:
lack of jurisdiction over the subject matter, litis
pendencia, res judicata, prescription, and statute of
limitations, you may file it within a period to file an
answer.
Question? What if you filed your motion to dismiss
on the 29th day, but it was denied?
→ You technically have one day left to file another.
Yes, you can use your extension to file an answer
under Rule 11, Section 11. However, it will be careless
to rely on this option.
Remedy: File your motion as early on the 15th day, so
you still have another 15 days to file another if the
motion was denied. Do not file it on the 29th day and
just rely on the availability of extension.