RULE 3,SEC. 1 Possible positive affirmative defenses.

Who may be parties to a civil action? If there are defenses can you raise them in a motion to dismiss.

Real party/parties in interest Can you appeal, file a motion for reconsideration.

Representative as parties. Omnibus motion rule (What are the exception)

How do you bring an action as an agent, effect if not properly alleged, an Defendant failed to set up a counterclaim in his answers.
agent but bringing a suit in your own name, what are the instances when
the suit is brought by a trustee, guardian, executor etc. Effect of defendant failed to file an answers.

Instances when it is not required for the spouses to sue jointly or not What are the cases when there is no default.
jointly.
Questions:
Joinder of parties (requisites)
Essay
Concept of indispensable or necessary parties. Are these real parties in
Definitions
interest?
Distinctions
Joinder, misjoinder effects.

Class suit.effect of assuming it as a class suit.

Class suit vs derivative suit and from a representative suit.

Death of a party effect to a civil action dies.

What are the requirements

Death of a party as a public officer.

Actions on contractual money claims.

Action which survives or not is it an action based on money claims or

contract based on…

Party wants to sue as an indigent party

What if the party is represeted by the PAO.

Actions where the slogan should be part of the counsel to represent.

General rule under Rule 4 , personal , real actions,exceptions to the rule

on venue

Action against non-resident, where is the venue?

MEMO RULE 5

What are the pleadings under ROC. Give definitions of pleadings and
when are they filed.

Affirmative and negative defenses allowed.

Different kinds of counterclaims arc.

Reply when is it allowed, definition etc.

Rule 7 what matters can be averted generally

Cert of forumshopping (effect if not contained in the pleading, pleadings

not require, requisites, KNOW THE CONTENTS OF A PLEADING)

ATTY might ask you how to write a complaint. Study rule 7

What matters should be alleged in the pleading/ complaint. Ultimate

Facts vs evidentiary facts vs conclusion of facts and law.

Rule 8 matters how to allege capacity of party,

What is an actionable document what are its effect and if not under oath.

Effect of not denying the allegations in the pleading. RULE 3,SEC. 1

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Who may be parties to a civil action?
1. NATURAL – legal personality is determined by birth under Art
40 of the Family Code.
2. Entites authorized by law.
3. JURIDICAL PERSONS – legal personality are created by law.
these are corporations as provided under Art. 44 of the Family
Code.
 Without the law that confers they cannot acquire legal
personality.
 Can sue and be sued because it can acquire and possess
property of all kinds as well as incur obligations.
 Foreign corporation can sue only if has license to do
business in the Philippines.
 An entity with no juridical personality cannot be sued and
cannot sue but ONLY those people who are comprising
the corporation can be sued in their personal capacities.
 Dismissible if no legal capacity to sue because there
cannot be a cause of action against one who cannot be a
party to a civil action. If there is capacity to sue, the case
is still dismissible on the ground of failure to state a cause
of action.
 Failure to include the name of the party in the title is not
fatal.
Examples
A. Rule 3 sec. 15 – Two or more persons not organized as an entity
with juridical personality (meaning not an incorporation or
registered) enter into transaction may be sued under their personal
names when they entered the transaction.
 Under section 15 you are only a party defendant and not a
plaintiff hence, they can only be sued but they cannot
sue.
 So if a corporation not registered is sued it shall be a
defendant under its corporation name that it entered into.
And when it gives its answer as a defendant the names
and addresses of the people comprising the said
“Corporation” must be revealed.
 It’s members can sue in their individual capacity but not
using the name of the corporation.
B. A labor organization or union
 In order for it to sue and be sued it must first be registered
with the Bureau of Labor Relations. (Not necessarily with
the SEC)
C. A CORPORATION BY ESTOPPEL under sec. 20 of RA 11232
Persons who act as a corporation knowing fully well that they do not
have any authority as corporation shall be liable as partners of each
other for the debts, liabilities and damages that they incurred. They
cannot claim the defense of lack of corporate personality.
 Anyone who assumes an obligation to an onstensible
corporation cannot resist the performance on the ground
that there was no corporation because you still entered into
one knowing of such fact.
YOU ARE ESTOPPED FROM CLAIMING LACK OF
CORPORATE PERSONALITY BECAUSE YOU HOLD
YOURSELF OUT TO THE PUBLIC AS A CORPORATION*
D. An unregistered partnership - if a partnership that is unregistered
holds out to the public that they are in a partnership they can be liable as a
partnership to 3rd persons. (ABC partnership vs 3rd party)
E. Dissolved corporations – A dissolve corporation can no longer operate
but they remain as a body corporate for 3 years after the effective date of
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dissolution for the purpose of prosecuting and defending suits so that
the dissolved corp. can settle and close it affairs.
A corporation’s juridical personality ceases upon dissolution.
*DURING THE PROCESS OF DISSOLUTION THEY CAN STILL
SUE AND CAN BE SUED*
F. Roman Catholic Church – being a corporation sole it may be a party
to an action.
For purposes of administering and managing as trustee the affairs,
property and temporalities of any religious denomination, sect or church,
a corporation sole may be formed by the Chief Archbishop, Bishop,
Priest, Minister, Rabbi or other presiding elder of such Religious
denomination, sect or church.
G. Estates of deceased persons – A deceased person and his or her estate
cannot be made a plaintiff or defendant to a civil action because they do
not have any juridical personality, they lack legal personality.
The remedy is bring a claim against the estate of the deceased in a
proceeding for settlement of the estate of the deceased person through
probate proceedings under Rule 86 and 87 of the ROC. Because in
probate proceedings, all creditors of the deceased will file claims against
the estate.
 Substitution cannot cure the defect when filing a suit against
the estate substituting it to a natural person.
4. ENTITIES AUTHORIZED BY LAW
KINDS OF CLAIMS, PLAINTIFF & DEFENDANT
1. MAIN CLAIM – plaintiff filed against the defendant
2. COUNTER CLAIM – it is like a counter suit. It is a case you
file IN RESPONSE TO THE MAIN CLAIM.
3. 3RD PARTY COMPLAINT –a 3rd party is brought to the
original action. A person not a party to the main claim is
brought to the original action as a 3rd person / stranger into the
case.
4. CROSS-CLAIM – A defendant in the original claim, filed a
different claim against his co-defendant, thus, making such
defendant a plaintiff.
 Defendant in the main claim files a suit against
another defendant in the same action or main claim.
 The co-defendant becomes a defendant 2 nd time
around because he is now a defendant to the main
claim as well as a defendant in a case filed against
by the original defendant.
CASE: SANTOS DUENAS VS SANTOS SUBD. HOMEOWNERS
REMEMBER: A juridical person must be able to prove his juridical
personality by proving the basis for acquiring juridical personality
granted by the law. (Ex. Articles of incorporation etc.)
 The legal existence of an organized association of persons is
that is made a party must be averred.
 An association is only considered as a juridical person if the
law grants it a personality separate from that of his
members.
 Association must be duly organized under Philippine Law
through registration. Failure to do so results to lack of capacity
to sue in its own association name or sue even if represented by
its members.
  Members of the association even if they signed and verified the
complaint still cannot represent their association because of its
lack of juridical personality.
 If you do not have any legal capacity to sue under the law you
are forced to sue individually not collectively. Instead of the
members filing in behalf of the homeowners (association) ,
members should have signed a complaint as a suit as members
unlike filing an association which does not have any legal
personality.
Ex. Plaintif XYZ Corporation is a corporation duly organized and
existing under Philippine Laws. It has its principal office in 1234 Makati
City, Philippines. Copy of its Cetificate of Incorporation is attached
hereto as ANNEX “A”. (Failure to allege this is equal failure to state a
cause of action)
HOW DO YOU AVER JURIDICAL PERSONALITY? (SEC. 4,
RULE 8)
Provide supporting particulars as are peculiarly within the pleaders
knowledge.
Ex. “A corporation duly organized and existing under Philippine laws..”
RULE 3 , SEC. 2 – REAL PARTY IN INTEREST
 A person who stands to be benefited or injured by the
judgment of the suit and entitled to the avails of the suit.
 One must have the legal capacity (natural, juridical or entity
authorized by law) and legal personality (stands to be
benefited or injured in the suit).
 Being a real party in interest to file a suit also extends to filing
an appeal.
Elements of section 2:
a. To institute or defend an action, the plaintiff or the defendant
must be the real party in interest.
b. The action must be prosecuted or defended in the name of the
real party in interest.
 You have the right to file the case or your right is violated.
 Win or lose you will be affected.
 Elements of causes of action must be present to determine real party
in interest.
PLAINTIFF- real party in interest and must appear to be the real
present real owner of the right sought to be enforced.
‘’’’’\
\’
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DEFENDANT- real party in interest whose actions or omission is the
basis for the plaintiff’s cause of action.
 The one who violated the rights of the plaintiff.
 An employer can be made a defendant even if it is the
employee who committed acts or omissions that supposedly
make the employee the defendant because under the law there
is a presumption that employers are negligent when selecting
their employees who committed the action.
Real party in interest is applicable to the ones who instituted the civil
action and the one who are filing an appeal to the higher courts.
MATERIAL INTEREST- Interest refers here to material interest which
is an interest in an issue to be affected by the decree or judgment of the
case and not just being curious about it. Such interest must not be
speculative or inchoate because you are not the owner yet.
WHO ARE THE PARTIES IN INTEREST IN A CONTRACT
DISPUTE?
A. In an ordinary contract in cases where there is a breach of
contract = parties to the contract are the real party in interest.
WHEN CAN A NON-PARTY TO A CONTRACT BE A REAL
PARTY IN INTEREST?
GENERAL RULE: Relativity of contracts where a contract takes effect
only between the parties, assigns, and heirs except when the rights and
obligations are not transmissible by nature, stipulation or provision of
law.
EXCEPTION: stipulations pour altruism these are contracts that
conferred benefits to a non-party and such benefits have been accepted by
the non-party.
Ex. Bank, credit card owner and an establishment that honors credit cards
issued by the bank.
Even if the credit card holder is not a party to the agreement between the
bank and establishment but there is a STIPULATION POT AUTRUI in
favor of A, as a holder of a subsisting and valid credit card in good
standing.
Another EXCEPTION: ART 1313 ACCION PAULIANA (creditors are
protected from being defrauded)
WHO ARE PARTIES IN INTERSET IN AN EJECTMENT SUIT
FILING FOR AN ACTION FOR RECOVERY OF POSSESSION
A. The possessor is enough to file an action for recovery of
possession if possession is disturbed and not the owner.
Ownership is not the issue but possession.
B. The owner of the property is the real party in interest if the
defendant caused damages to the property. An action for
damages must be filed by the owner.
WHO ARE THE PARTY IN INTEREST IN A CORPORATE SUIT
A. Generally, in a corporation the proper party to sue are the
Board of Directors. Sometimes the BOD assign other officers
through a secretary’s certificate or through a board resolution.
B. If the BOD refuses to sue, the stockholders may file a
DERIVATIVE SUIT to file an action in the corporate name. In
 this case, the real party in interest is still the corporation and
the stockholders are mere nominal parties.
WHO ARE PARTIES IN INTEREST TO RECOVER A CO-
OWNER PROPERTY
A. Under Art 487 of the Civil Code, only 1 co-owner is enough to
file an action for a co-owned property. Only 1 co-owner is
indispensable because there is a presumption that the suit was
filed for the benefit of all co-owners of the property.
WHO ARE PARTIES IN A PARTNERSHIP SUIT
A. It is the partnership and not its officers or agents which should
be impleaded in any litigation involving the property registered
in the partnershi’s name.
B. Violation of this rule is dismissal for failure to state a cause of
action.
EFFECTS IF THE REAL PARTY IN INTEREST IS NOT
INCLUDED IN THE TITLE OR ACTION:
1. If the real party in interest is omitted in the title = NOT
FATAL.
*This is because the averments or allegations in the body of the
complaint are controlling and not the title.
2. Plaintiff is not a natural or juridical person or entity
authorized by law = DISMISSAL on the ground having no
legal capacity to sue.
3. Plaintiff has the capacity to sue BUT HE IS NOT a real party
in interest = DISMISSAL on the ground of failure to state a
cause of action.
*The plaintiff has no cause of action to sue because he is not
the real party in interest.
CASE: PHCA VS DUQUE
Even if an association has an indirect interest in the suit but its members
are affected it can still file the suit in behalf of its members.
The association in this case had the right to file the action in behalf of its
members because it is stated in its Articles of Incorporation “.to represent
directly or through approved representatives the pharmaceutical and
health care industry before the Philippine Government and any of its
agencies, the medical professions and the general public". Hence, the
association is considered as a real-party in interest because the legal
identity of the association is fused with its members which stands to be
benefited or injured by the judgment in the present action.
LOCUS STANDI
 A public suit.
 A party’s personal and substantial interest in the case such that
he has sustained or will sustain a direct injury as a result of the
enforcement of a governmental action that is being challenged.
 Party seeking a concrete outcome or relief may be granted by
the courts.
 The allegations must include proof that you are petitioner
bringing the suit really stands to be injured by the
governmental act.
Ex: A law that was approved and for implementation already, and you are
saying that if the law will be implemented, you will suffer damage. So
you want the court to declare the law or provisions of the law as
unconstitutional as it will affect you, or it may have already affected you.
When can the locus standi be relaxed? When there is transcendental
importance.
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CASE: FALCIS VS CIVIL REGISTRAR
 To have locus standi the plaintiff must sustain or stand to
sustain direct injury as a result of the enforcement of the
governmental action or law.
 There must be direct injury on the part of the plaintiff if the
law is applied to him or he/she avails the enforcement of the
law.
REMEMBER: Suits whether private or public , the parties must have a
present substantial interest and not merely expectancy or future
contingent subordinate or consequential interest.
SIMILARITIES OF LOCUS STANDI AND REAL PARTY IN
INTEREST
LOCUS STANDI REAL PARTY IN INTEREST
Ensures that only certain parties can maintain an action.
Limits a prospective litigant’s ability to bring suit.
Both are qualifying and filtering mechanisms
DISTINCTIONS BETWEEN LOCUS STANDI AND REAL
PARTY IN INTEREST
LOCUS STANDI REAL PARTY IN INTEREST
Has constitutional foundations Strictly a concept of civil
procedure
Encompasses both public and Only pertains to private suits
private suits
TEST: Whether the parties have TEST: Whether or not the party
sustained, or are in immediate stands to be benefited or injured
danger of sustaining some direct in the suit or entitled to the
injury as the result of the avails of the suit.
enforcement of governmental
action.
Exception: Issue involves Exception: what is stated in the
transcendental importance civil code.
CASE: CARLOS VS SANDOVAL
A petition for nullity of marriage cannot be filed by other persons.
Only compulsory heirs or intestate heirs can still question the validity of
the marriage not in a proceeding for declaration of nullity of marriage but
only upon the death of a spouse in a proceeding for the settlement of the
estate of the deceased spouse filed in the regular courts.
CASE: NINAL VS BADAYOG
Children have the legal personality to file the petition to declare the
nullity of marriage of their deceased father to their STEPMOTHER as it
affects successional rights.
CASE: RIOFERIO VS CA
General rule: Executors or Administrators are the ones who files a suit to
recover property of the estate.
Exception:
 If the executor or administrator is UNWILLING / REFUSES
to bring the suit.
 The act being complained if was allegedly done by the
administrator and he is made a party defendant.
 There is no administrator or executor.

RULE 3, SEC. 3 – REPRESENTATIVE SUITES
 A representative may be a TRUSTEE, GUARDIAN,
EXECUTOR or ADMINISTRATOR , AGENT ON BEHALF
OF THE PRINCIPAL or a party authorized by law.
 How can a representative be appointed? For natural persons it
is through a SPA. For corporation it is through a board
resolution or secretary certificate.
 If the party suing for another is not authorized, the case may be
dismissed because it produces no legal effect. The action may
be dismissible on the ground that the plaintiff has no capacity
to sue that he does not have the representation he claims.
(ARON VS REALON)
 If the action is filed by a representative or someone acting in
a fiduciary capacity, the beneficiary shall be included in the
title and be deemed to be the real party in interest. Title should
include “represented by”.
Additional information: Even if the name of the principal is not
mentioned in the title or on the caption of the case but it is mentioned in
the body of the complaint and in the allegations, then that defect is
excusable. Because what governs is/are the allegation in the body of the
complaint.An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the principal
EXCEPT when the contract involves things belonging to the principal.
IF NOT INCLUDED:
Where the name of the beneficiary or principal is omitted, it may result in
the improper service of summons. However, the improper service of
summons in such cases may be cured by the services of an alias
summons.
If the failure to implead the person represented is a mere formal defect
was merely a simple mistake it can be cured by amendment because it is
only considered as a formal defect.
WHEN CAN THERE BE A REPRESENTATIVE IN A SUIT?
(V.C.A)
Note: If you are just signing on behalf of another, your authorization
must be attached in the pleading. Why? Because it would be hearsay
because he or she does not have any personal knowledge.
Even if it is already your lawyer that represents there should still be a
SPA.
a. Verifying a pleading - a pleading is verified by an affidavit
signed by someone who is authorized to verify.
The authority to represent must be proven either by a SPA or a
secretary certificate should be attached to the pleading.
b. Certifying against forum shopping - the affiant who signed
that certification of non-forum shopping authorized in a SPA or
secretary certificate should be attached in the pleading.
c. Appearance during pre-trial – representative may appear on
behalf of a party during pre-trial BUT when entering into an
amicable settlement, submit to alternative modes of dispute
resolution and to enter into stipulations or admissions of facts
and documents the representative must be authorized in writing
. 2.
YOU CAN DELEGATE TO ANOTHER PERSON THE:
a. Signing a pleading
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b. Verifying a pleading etc.
c. Signing a certificate of non-forum shopping
d. Act of filing a case
RULES WHEN REPRESENTING
1. The representative or someone acting in a fiduciary capacity
must include the name of the beneficiary or principal in the
title of the action.
2. Failure to include the name of the beneficiary or principal in
the title of the action will result to:
DISMISSIBLE – the case will be dismissed if there is
IMPROPER SERVICE OF SUMMON. Meaning the court
failed to obtain jurisdiction over the person of the defendant
but this can be cured by service of an alias summon.
DISMISSED – If the representative is not authorized to file
the case in behalf of that person.
DISMISSED/ DISMISSABLE(?) – if the person claims to
represent but is actually not authorized because he has no
capacity to file in behalf of the person.
 An unauthorized complaint has no legal effect.
CAN SUE OR BE SUED UNDER A TRUSTEESHIP
 There must be an express trust before a trustee can sue or be
sued
 Express trust means that trust is created by the direct and
positive acts of the parties by some writing, deed, or will or by
proceedings in court.
 Implied trust is not applicable.
 To prove the trust relationship created a document must be
presented.
CAN SUE OR BE SUED UNDER A GUARDIANSHIP
 Guardianship acts for the ward whom the law regards as
someone who is incapable of managing his own affairs.
 Intended to preserve the ward’s property and render assistance
that the ward may personally acquire.
CAN SUE OR BE SUED UNDER AN EXECUTORSHIP OR
ADMINSTRATORSHIP
 If a person dies his does not have any legal/civil personality
anymore, he can no longer sue or be sued.
 An estate can sue or be sued through an executor or
administrator in his representative capacity.
Exception: Heirs of the deceased.
 Heirs may represent the estate and not only the executor or
administrator.
 Heir may still bring a suit if an administrator is not yet
appointed.
 Heirs may still bring a suit even if there is a pending
proceeding for the appointment of an executor or administrator.
 Heirs may still bring a suit even if there is already an appointed
administrator if:
1. Executor or administrator refuses to bring a suit.
Administrator is guilty. Administrator is alleged to have
participated in the act complained of and he is made a
party defendant.
3. If there is no appointed administrator or executor.
Note: the heirs cannot be expected to wait for the appointment of an  Several parties can actually join in one complaint together
administrator and then further wait if the administrator will file a suit to against one defendant, or one case against several defendants
protect the rights of the deceased. provided the requisites are present and that would prevent
multiplicity of suits.
WHO ARE ENTITIES AUTHORIZED BY LAW TO REPRESENT?  Purpose: It is more convenient for the trial because evidence
A. Receivership – person who preserves real or personal property will be presented only once. You will only have to file a case
during litigation. once and pay filing fee or docket fee once. You do not need
B. Unions – represent the employees against the employer anymore to file another case and then present practically the
C. Agents same evidence against different parties considering that it may
be avoided precisely because there is a common question of
Rules when filing as an agent: fact or law.

Requisites for joinder of parties:

 An agent may act in his own name if the suit DOES
NOT INVOLVE THE PROPERTY OF THE 1. Right to relief arises out of the same transaction or series of
PRINCIPAL. transactions (one event or one incident or one contract.)
 If the suit affects the property of the principal , the 2. There is a question of law or fact common to all the plaintiffs
agent can only file a case if he discloses and joins or defendants
the principal. 3. Such joinder is not otherwise proscribed by the provisions of
the rules on jurisdiction and venue.
Effect failure to disclose and join the principal if the agent filed a suit that
will affect the property of the principal (Art. 1883): Principle to remember: Joinder of parties is joinder of causes of action
BUT joinder of causes of action is NOT joinder of parties because one
1. Principal has no right of action against the person party can have several causes of action.
with whom the agent contracted.
2. Agent is the one directly bound in favor of the Ex. Maja rode on a bus operated by Sarah. The bus collided with the
person as if the transaction is his own except if the jeepney operated by Pia. Maja sustained minor injuries.
property of the principal is affected.
MAJA HAS TWO POSSIBLE CAUSES OF ACTION:
RULE 3 ,SEC. 4 FILING AN ACTION AGAINST SPOUSES
Culpa contractual for breach of contract of carriage as against the bus
Generally, filling an action against one spouse is filing an action against operated by Sarah, and one for culpa aquiliana which is quasi-delict
BOTH SPOUSES because they are treated as one person under the law against Pia under Article 2176 and 2180 of the Civil Code.
(unitas personae).
However Maja is not certain who among the drivers or operators
Exceptions: were actually negligent. Maja can, in one complaint sue both Sarah and
Pia and recover damages from either or both of them. That is the essence
1. Complete separation of property and one spouse sues or is sued of joinder of parties.
with respect to such property.
2. There is CPOG and the suit involves an exclusive property of Take note that the joinder in one complaint of the two parties is
the spouse. allowed because there is only one incident. Further there is a question
3. Legal separation of law or fact common to both such defendants as to who among them is
negligent.
EFFECT OF FAILURE TO JOIN ONE SPOUSE:
CASE: PANTRANCO VS STANDARD
Amendment of the complaint provided that the spouse is not hostile to the
other spous’s claims. there is a single transaction common to all, that is, Pantranco’s bus hitting
the rear side of the jeepney. There is also a common question of fact, that
RULE 3, SEC 5 FILING AN ACTION AGAINST A MINOR OR is, whether petitioners are negligent. There being a single transaction
INCOMPETENT PERSONS common to both respondents, consequently, they have the same cause of
action against petitioners.
They may sue or be sued with the assistance of his father, mother,
guardian if none of these a guardian ad litem. (court will appoint a This paragraph embodies the TOTALITY RULE as exemplified by
guardian). Section 33 (1) of B.P. Blg. 129 which states, among others, that "where
there are several claims or causes of action between the same or different
Who are considered as incompetent persons?
parties, embodied in the same complaint, the amount of the demand shall
1. Persons suffering from civil interdiction be the totality of the claims in all the causes of action, irrespective of
2. Hospitalized lepers whether the causes of action arose out of the same or different
3. Prodigals transactions."
4. Deaf and dumb unable to read and write
Respondent Standard’S claim is P8,000.00, while that of respondent
5. Unsound mind
Gicale is P13,415.00, or a total of P21,415.00. Section 19 of BP 129
6. Not of unsound mind but by reason of age, disease, weak mind
provides that the RTC has "exclusive original jurisdiction over all other
and other similar causes
cases, in which the demand, exclusive of interest and cost or the value of
RULE 3 ,SEC. 6 FILING AN ACTION OF PERMISSIVE JOINDER the property in controversy, amounts to more than twenty thousand pesos
OF PARTIES. (P20,000.00)."

 Joinder of parties is uniting 2 or more persons as co-plaintiffs RULE 3 ,SEC. 7 COMPULSORY JOINDER OF INDISPENSABLE
or as co-defendants in a suit. PARTIES
 Joinder of parties is merely permissive and not mandatory
except for compulsory parties.
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INDISPENSABLE PARTY – a party who has such an interest in the
controversy or subject matter that a final adjudication cannot be made,
in his absence, without injuring or affecting that interest.
 If you are an indispensable party you have to be brought into
the litigation otherwise the litigation is infirmed.
 Whose interest will be affected by the Court’s action in the
litigation, without whom no final determination of the case can
be had.
 Necessary to vest the court with jurisdiction.
 Not all real parties in interest are indispensable parties, but
ALL indispensable parties must be real parties in interest.
 If a real party in interest is an indispensable party, if not joined
the judgment is null and void.
 The burden of procuring the presence of all indispensable
parties is on the plaintiff.
 A case cannot proceed without that indispensable party.
 Failure to implead an indispensable property is results to
dismissal of the case.
 An indispensable party is always a real party in interest.
 Burden of procuring the presence of all indispensable
parties is on the plaintiff and not the defendant because
defendant simply defends. He merely waits for a case to be
filed against him. He merely puts up the defense. Thus when
filing a case plaintiff has to ensure that all persons whose
presence in the action is indispensable should be joined.
 Joinder of indispensable parties is a condition precedent.
 REMEDY: Implead the non-party claimed to be
indispensable.
General Rule: Joinder of parties is permissive, not mandatory.
Exception: If the party is an indispensable party there must be
compulsory joinder of indispensable party.
EFFECTS OF AN INDISPENSABLE PARTY NOT IMPLEADED
IN THE ACTION: (CSC v. RASUMAN)
1. Any judgment rendered would have no effect.
2. Action shall be dismissed if the indispensable party is not
before the court.
3. Renders all subsequent actions of the court null and void for
want of authority to act not only as to the absent parties but
even to those present.
4. Decision valid on its face cannot attain finality where there is
want of indispensable parties.
WHAT CAN THE COURT DO IF THERE IS AN INDISPENSABLE
PARTY NOT IMPLEAED?
1. Suspend the trial first and order the plaintiff to implead the
indispensable party.
2. Dismiss the case if the plaintiff refused to comply with the
order.
 Which of these 2 is the proper remedy? RULE
3 ,SEC. 11
“NEITHER MISJOINDER NOR NON-JOINDER OF PARTIES IS
GROUND FOR DISMISSAL OF AN ACTION. Parties may be dropped
or added by order of the court on motion of any party or on its own
initiative at any stage the action and on such terms as are just.”
 (There cannot be automatic dismissal under Rule
3 ,sec. 11 . There is only dismissal if plaintiff failed
to comply with the order of the court under Rule 17,
sec 3)
CASE: RELUCIO V. LOPEZ
7
 If petitioner is not a real party in interest, he or she cannot be
an indispensable party.
CASE: DIVINAGRACIA VS PEOPLE
 If there is a non-joinder of indispensable parties the proper
remedy is to implead and not to dismiss.
 At any stage of a judicial proceeding parties may be added on
the motion of a party or on the initiative of the tribunal
concerned.
 If the order of the court to implead was refused by the
plaintiff the court may dismiss the complaint for plaintiffs
failure to comply with the order.
CASE: BANK OF AMERICA VS CA
 A plaintiff has the right to choose who to implead as defendant
(permissive joinder of parties) but the plaintiff will suffer the
consequences of any error because there might be a chance that
the person he does not implead is an indispensable party which
can result to suspension or dismissal of the case.
 Remedy of a co-defendant who is not dropped, therefore, is not
to insist that the plaintiff continue to prosecute his action
against the dropped defendant, but to move for dismissal of the
action against himself, or take such appropriate action as might
otherwise be proper
SUMMARY OF FAILURE TO IMPLEAD AN INDISPENSABLE
PARTY
1. Court should neither dismiss the case outright nor proceed with
trial.
2. Court should suspend trial in the meantime and order the
plaintiff to implead the indispensable party.
3. If the plaintiff does not comply with the order, the court can
dismiss the action pursuant to Rule 17, Section 3.
ACTIONS WHERE THERE ARE INDISPENSABLE PARTIES:
1. Action for partition of land: ALL co-owners are indispensable
parties when an action for partition is filed against a property
co-owned. But when any of the co-owners bring an action for
the recovery of co-owned properties only one of the co-owners
is an indispensable party.
2. Action for annulment of partition of land: ALL co-owners are
indispensable parties.
3. Action for recovery of co-owned property from a 3 rd party:
ALL. co-
owners are real party in interest but only one of the co-owner is
an indispensable party to file the action under Art 487 of the
Civil Code.
4. Simple recovery of ownership of land = person who claims to
be the owner of the land is an indispensable party and not the
one in possession as tenant.
5. Joint but indivisible obligation – An action for specific
performance where the subject matter is an indivisible
obligation. Ex. Joint debtors with the obligation to deliver a car
because it is incapable of partial performance. They are both
indispensable parties.There is no solidary obligation because
the first debtor cannot perform the action without the other
debtor.
6. Original petition for certiorari – A party who sustains the
decision of the CA, which is the subject of the petition for
certiorari, must be impleaded because he is an indispensable
party. Any decision over the certiorari could affect the party.
NOTE: A person not a party to the proceedings in the RTC or CA cannot
maintain an action for certiorari in the SC. Such petition filed by one who
is not a party in the RTC, he has no standing to question the assailed
order.
 7. Owners of property over which reconveyance is asserted are
indispensable parties without whom no relief is available and
without whom the court can render no valid judgment.
8. Person whose very right to office is challenged.
CASE: SANTIAGO LAND VS CA
A case of recovery of ownership. A filed a case against B for recovery
of ownership, while the case is pending, B sold the property to X, X is
the transferee pendente lite.

CASE: GABATIN VS LANDBANK
 In an action for the determination of just compensation,
landbank is an indispensable party.
CASE: PEOPLE VS GO
 All criminal actions are prosecuted under the direction and
control of the public prosecutor there it is important for
petitioners to implead the people of the Philippines as
respondent so that the SolGen can comment on the petition.
CASE: MACAWADIB VS PNP DIRECTORATE
 There is a necessity to implead the PNP, NAPOLCOM and
CSC because they stand to be adversely affected by petitioner's
petition which involves substantial and controversial
alterations in petitioner's service records.
TEST TO DETERMINE THE INDISPENSABILITY OF A PARTY
(REPUBLIC versus SANDIGANBAYAN, ET AL)
a. Can relief be afforded to the plaintiff without the presence of
the other party?
b. Can the case be decided on its own merits without prejudicing
the right of the other party?
There is no need to implead a transferee pendent lite because he or she is
not an indispensable party because they will be raising the same defenses
the transferor will raise.
But, if the plaintiff annotated the notice of lis pendens in the title of the
property subject of the case because 3rd parties would know about the
case and thus they are warned and be bound by the results of the case.
Remember: If the buyer did not know that there is a case pending case
pertaining to the subject property and there was already a sale that was
entered into the buyer cannot be bound to the decision of the court
because he was not a party to the case.
PUBLICATION CAN CURE THE FAILURE TO IMPLEAD
THE INDISPENSABLE PARTIES IF:
1. Earnest efforts were made by petitioners in bringing to the
court all possible interested parties.
2. Interested parties themselves initiated the correction
proceedings.
3. There is no actual or presumptive awareness of the
existence of the interested parties.
4. Party is inadvertently left out.

Caveat: The SC ruled that these testes are useless because there is no RULE 3 ,SEC. 8 FILING AN ACTION WHERE THERE ARE
fixed formula in determining an indispensable party because it can only NECESSARY PARTIES
be determined in the context and by the facts of particular suit or
litigation. NECESSARY PARTY – one who is not indispensable but who ought
to be joined as a party if complete relief is to be accorded to those
WHO IS NOT AN INDISPENSABLE PARTY? (LUCMAN VS already parties or for a complete determination or settlement of the claim
MALAWI) subject of the action. (Action can still proceed without him)
a. If his interest in the controversy or subject matter is INDISPENSABLE NECESSARY
SEPERABLE (can be sued in a different action) from the Non-joinder of either of these parties is not solely ground for the
interest of the other parties. He will not be directly or dismissal of the action
injuriously affected by the decree. Without this party in interest there One who is not indispensable
 If his interest will be affected, then he is an indispensable can be NO FINAL but who ought to be joined as a
party. Otherwise, if it is separable and it can be sued in a DETERMINATION OF AN party if complete relief is to be
different action then he is not an indispensable party. ACTION and who should be accorded to those already parties
b. His presence would merely permit complete relief between him joined either as plaintiff or or for a complete determination
and those already parties to the action or if he has no interest in defendant or settlement of the claim
the subject matter. subject of the action
A party that must be joined in the Should be joined in the action
CASE: CSC VS RASUMAN action in all conditions because whenever possible.
the court cannot proceed
 If you are a CSC employee you have to implead the CSC as without him. However, the action can
well. proceed even in his absence
 Section 3 of Rule 108 requires that all persons who have or because his interest is
separable from that of the
claim any interest which would be affected thereby shall be
indispensable parties.
made parties to the proceeding.
No valid judgment if not joined The case may still proceed if
 Sections 4 and 5 of Rule 108 provide for two sets of notices to not joined but the judgment
two different potential oppositors, i.e., rendered will not afford a
complete relief in favor of the
(1) notice to the persons named in the petition; and prevailing party.
(2) notice to other persons who are not named in the petition, Failure to comply to an order to Failure to comply to an order to
but, nonetheless, may be considered interested or affected implead an indispensable party implead a necessary party is a
parties. renders the action dismissed waiver of the claim against
 Summons must, therefore, be served not for the purpose of under Rule 17, sec. 3 default due such party.
vesting the courts with jurisdiction, but to comply with the to the fault of the plaintiff.
requirements of fair play and due process to afford the person
concerned the opportunity to protect his interest if he so
chooses.
8
WHAT IS MEANT BY COMPLETE RELIEF OR COMPLETE
DETERMINATION OF SETTLEMENT OF THE CLAIM?
CASE: VANO VS ALO
If the creditor filed an action for collection of debt against the debtor
(indispensable parties), the surety and guarantor are merely necessary
parties.
If the creditor filed an action for collection of debt against surety or
guarantor (indispensable parties) the debtor is merely a necessary party.
If the surety or guarantor is compelled to pay, the surety will file another
case against the debtor for reimbursement, if the debtor was impleaded in
the first place, the surety or guarantor can just file a cross-claim for
reimbursement.
Example: Solidary obligations - if a contract stipulates that each one of
the debtors (one debtor) is bound to render entire compliance with the
obligation.
 Entire obligation can be demanded from one of the debtors
without going after the other co-debtors.
 Hence, if only one debtor can be sued for the satisfaction of
the entire debt , complete relief or complete determination or
settlement of the claim can be obtained without impleading
the other debtors making the other debtors as non-
indispensable parties.
EFFECT: If choice made by the plaint of his right of action or
the parties against whom he seeks to enforce is a mistake he
will alone suffers therefrom.
PERMISSIVE JOINDER OF PARTIES IN A SOLIDARY
OBLIGATION
In a solidary obligation, creditor can choose to implead one debtor to
pay the full debt or implead all of them because they are all real
parties in interest.
Example: In joint obligations the credit or debt it shall be presumed to be
divided into as many shares as there are creditors or debtors, the credits or
debts being considered distinct from one another. The whole debt cannot
be demanded to only one debtor.
The remaining debtors are not indispensable parties but they are
considered as necessary parties because without the other debtors the
creditor cannot obtain complete relief. Creditor cannot obtain the entire
amount therefore it ought to join the other debtors for complete relief to
be accorded to the former.
Creditor in a joint obligation has a separate cause of action against the
remaining debtors. Because the debt arouses of the same transaction there
is a common question of fact or law common to the joint debtors hence
there can be a joinder of parties in one complaint.
There can be permissive joinder of parties (rule 3 sec. 6) because the
creditor have different causes of action but there is a common question
of fact or law that arose from one transaction.
LIABILITY OF JOINT- TORTFEASORS IS SOLIDARY
Under Art. 2176 damages shall be paid if a quasi-delict is committed
against a person. The responsibility of 2 or more persons who are liable
for quasi-delict is solidary.
Example: Art 2180 VICARIOUS LIABILITY
Employers and employees are both liable for the quasi-delict committed
but the plaintiff can choose between the employer or employee or both to
which the case will be filed against.
9
Both the employer and employee can be sued in 1 complaint because the
obligations arose out of the same transaction and there is common
question of fact or law thus they can be joined in 1 complaint.
PROBLEM: Maja was bumped by a bus operated by Sarah. Maja
sustained minor injuries.
Against whom does Maja has a cause of action?
In this case, Maja has a cause of action against the negligent driver
(Article 2176) who directly caused the injuries. And also Sarah, as the
driver's employer (Article 2180) because of vicarious liability of the
selection and supervision of the driver subject to proof that Sarah
exercised due diligence in the selection and supervision of the driver. And
because this is a tort, the liability of joint-tortfeasors is solidary, Maja can
sue Sarah only or the driver only. The entire obligation to pay damages is
demandable from either one of them.
SOLIDARY LIABILITY OF A SURETY OR GUARANTOR
In an action for collection of debt, a creditor may institute a case against
either the debtor, surety or guarantor only because the principal debtor
is merely a necessary party.
In an action for collection of debt creditor may institute a case against
both the surety and principal debtor.
QUESTION: Why is the principal debtor still considered a necessary
party although the action can still be filed against the surety?
Because if the surety is the one who will pay for the principal debtor,
surety or guarantor can ask to be indemnified by the debtor because
they paid in behalf of him. They have the right to recover from the
debtor. (Art 2066 and 2067)
If the plaintiff filed an action against the surety to pay, but plaintiff
refuses to implead the debtor, surety can file a 3 rd party complaint against
the principal debtor in the same action under rule 6 sec. 11 for the
purpose of contribution, indemnity, subrogation or any other relief. (note:
3rd party complaints can also be filed against solidary debtors and not
only to surety or guarantor.)
NOTE: A principal debtor is considered as a necessary party because of
the right of subrogation. Take note as provided under Rule 3, sec 8 a
necessary party is not indispensable but ought to be joined as a party so
that COMPLETE RELIEF CAN BE ACCORDED TO THOSE WHO
ARE ALREADY PARTIES TO THE CAS E. Complete relief will afford
the parties.
PROBLEM: In an action for foreclosure of REM instituted by the first
mortgagee, the second mortgagee is merely a necessary party.
Pia bought a car from Bangs on instalment basis. A chattel mortgage was
executed over the car in favour of Bangs. Before payment was completed,
Pia sold the car to Angelica. Pia and Angelica agreed that Angelica would
be responsible for the payment of the remaining monthly instalments.
Angelica failed to pay. May Bangs sue Angelica alone in an action to
foreclose or to replevy the car?
NO. Pia must be made a defendant because she is an indispensable party
in relation to Bangs. The foreclosure or replevin is premised on the
default of Pia, the debtor. Bangs would have no right to foreclose the
mortgage or repossess the car without establishing the default of Pia
unless the obligation of Pia to Bangs was assigned to Angelica with the
consent of Bangs, which act thereby novates the obligation (Riano, 2009).
Is the right to appeal limited only to indispensable parties?
No. Nothing in the rules of court that prohibits a non-indispensable party
in an action to make an appeal because anyone can appeal a case only if
that person have a present interest in the subject matter of litigation
and must ba aggrieved or prejudiced by judgment.
What is important is that you are a REAL PARTY IN INTEREST even if
you are not an indispensable party. Any remedies can be availed of
especially if you are a party to the case before the lower court.
In the ABSENCE OF SOLIDARY OBLIGATION, the debt shall be
presumed to be divided into as many shares as there are creditors or
debtors (joint obligation). The debt is distinct from one another. If the
obligation is not paid, creditor can only demand a certain amount to each
debtors. The cause of action by the creditor against the debtor is entirely
separate from the other debtors in the joint obligation.
Because the obligation is joint, creditor has separate causes of action
against the several debtors. But because the debt arose out of the same
transaction and there is a common question of fact or law common to
the several debtors, there can be permissive joinder of parties in one
complaint.
EFFECT OF NON-JOINDER OF A NECESSARY PARTY (the
judgment rendered therein cannot bind the party not joined.)
1. Does not prevent the court from proceeding in the action and
the judgment rendered therein shall be without prejudice to the
rights of such necessary party.
2. Merely a procedural defect, the court at anytime order the
inclusion.
RULES OF NON-JOINDER OF NECESSARY PARTY
1. A party who is ascertained to be a necessary party is not joined,
the pleader should say it.
2. He will not be prejudiced.
RULE 3, SEC.9 NON-JOINDER OF NECESSARY PARTES TO BE
PLEADED
In a pleading where a necessary party is not joined, the pleader shall set
for the name and reason why not impleaded.
If the reason is unmeritorious, the court may order the inclusion of the
omitted necessary party if jurisdiction can be obtained.
Failure to comply with this order is deemed a waiver of the claim against
such party.
RULE 3, SEC 10 – AN UNWILLING CO-PLAINTIFF
If a second party WHO SHOULD BE JOINED IN THE CASE DOES
NOT WANT TO GIVE CONSENT TO BE A CO-PLAINTIFF, the
other plaintiff can sue the unwilling co-plaintiff as a defendant in the
case. And in the complaint the reasons must be stated why the unwilling
co-plaintiff consent to the suit must be obtained.
Ex. Filing a case against spouses must be joint. If the spouse does not
consent the other spouse to be joined in the case then the a case can be
filed against the non-consenting spouse.
RULE 3, SEC. 11 – EFFECTS OF MISJOINDER AND NON-
JOINDER OF PARTIES
MISJOINDER- a party that is not supposed to be joint in the case.
The driver and his employer were sued for the driver's personal debt. The
court may, upon motion or motu proprio, or sua sponte order that the
employer be dropped as defendant.
NON-JOINDER – a party that should be joint in the case.
A and B are solidary creditors of debtor C. C paid B. B did not give A his
share. A sues C, not knowing the payment made by C to B. Naturally, B
ought to be included as a party plaintiff but B refuses to sue because he
was already paid. The court may order inclusion of B as party.
10
*In cases there the party refuses to be joint in the case, he can be sued as
an unwilling co-plaintiff under sec. 10, Rule 3.
1. Misjoinder and non-joinder is NOT A GROUND FOR
DISMISSAL of the case.
2. If the court ordered to add or drop a party or sever a claim but
was refused to do so the case can be dismissed.
3. Any claim against a severed party may be severed and proceed
separately.
RULE 3, SEC. 12 -CLASS SUIT or the DOCTRINE OF VIRTUAL
REPRESENTATION.
“The subject matter of the controversy is one of common interest to many
persons so numerous that IT IS IMPRACTICABLE TO JOIN ALL AS
PARTIES, a number of them may sue or defend for the benefit of all if
the court finds to be sufficiently numerous and representative as to fully
protect the interests of all concerned.
Party in interest shall have the right to intervene to protect his individual
interest.”
Represent persons so numerous that it is impracticable to join all as
parties. A number of them which the court finds to be numerous and
representative as to fully protect the interests of all concerned may sue or
defend for the benefit of all.
REQUISITES OF A CLASS SUIT:
1. Subject matter is one of common or general interest to many
persons.(Only 1 cause of action)
2. Parties are numerous that it is impractical to bring them all
before the court.
3. There must be adequate representation.
 The persons bringing the suit must sufficiently be numerous
and representative as to fully protect the interest of all
concerned.
CASE: LLANA’S SUPERMARKET VS NLRC
 This is only a class suit because there is only one right or
cause of action pertaining or belonging in common to many
persons (emphasis supplied), not separately or severally to
distinct individuals.
 Obtain relief for or against numerous persons as a group or
as an integral entity, and not as separate, distinct individuals
whose rights or liabilities are separate from and independent
of those affecting the others
REPRESENTATIVE SUIT – Akin to a class suit.
One or more may sue or defendant for the benefit of all and the parties
before it is sufficiently numerous and representative.
REPRESENTATIVE CLASS
In BOTH they are always filed in behalf of another or others
When you are suing as a Need not name the principal
representative you have to name
your principal
Multiple causes of action and there There is only one right , cause
are many rights involved that is of action or interest belonging
separately or severally distinct to in common to many persons
individuals
Objective is to obtain relief separate Objective is to obtain relief for
and distinct from individuals whose or against numerous persons
rights or liabilities are separate from as a group or as an integral
and independent of those affecting entity.
the others.
DERIVATIVE SUIT – Grounded on an alleged violation by a
corporation’s BOD of its fiduciary duties, committed by mismanagement,
misrepresentation, or fraud. A corporate body cannot act on its own.
 Stockholder represents the corporation and the rest of the
stockholder against the BOD.
 Stockholder filing the suit in the name of the corporation in
behalf of the stockholders to bring about a redress of the wrong
inflicted by the BOD directly upon the corporation and
indirectly upon the stockholders.
REQUISITES OF A DERIVATIVE SUIT: RULE 8, SEC. 1 OF THE
INTERIM RULES OF PROCEDURE FOR INTRA-CORPORATE
CONTROVERSIES
1. Present stockholder at the time the action occurred and at the
time the action was filed.
2. Exerted all reasonable efforts and remedies available under the
Article of incorporation, by-laws, laws or rules governing the
corporation or partnership to obtain the relief desired.
3. No appraisal rights are available for the act complained of
4. Suit is not a nuisance or harassment suit.
What are appraisal rights? A stockholder who dissented and voted
against the proposed corporate action, stockholder may choose to get out
of the corporation by being paid of the fair market value of his shares.
 You cannot maintain a derivative suit/action if there is an
available appraisal right. Because if there is an available
appraisal right, and you don’t agree with the actions of the
board of directors of the corporation, you can choose to get
out of the corporation. You will be paid the fair market value
of your shares. That is appraisal right.
CASE: CUA VS TAN
Where corporate directors are guilty of a breach of trust and not of
mere error of judgment or abuse of discretion and intracorporate rem!
3 death heirs immediately stepped into the shoes and
AQQ
bring about a redress of the wrong inflicted directly upon the
corporation and indirectly upon the stockholders.
RULE 3, SEC. 13 – ALTERNATIVE DEFENDANTS
If the plaintiff does not know which among the defendants he is
entitled to relief he may join any or all of them as defend’’’’’’ants ‘in
th’’’’’e alternative even though the right to relief against one ‘may b’e
inconsistent with a right of relief against the other.
RULE 3, SEC. 14 – UNKNOWN IDENTITY OR NAME OF
DEFENDANT’’
If an identity or name is unknown he may be sued as the unknown owner
or by other designation (John Doe) and when his identity is’ discovered
the pleading must be amended accordingly.
RULE 3 ,SEC. 15 – ENTITY WITHOUT JURIDICAL
PERSONALITY AS DEFENDANT
2 or more persons not organized as entity with juridical personality may
be sued under the name by which they are generally or commonly known.
Their names and addresses must be revealed.
*They can only be defendants.
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RULE 3, SEC. 16 – DEATH OF PARTY. DUTY OF COUNSEL?
Counsel’s duty:
1. Counsel must inform the court of the death of the party within
30 days after such death.
2. Give the name and address of his legal representative/s.
Failure of counsel to perform his duty:
a. As counsel it shall be a ground for disciplinary action against
him.
b. As to the case it will not be invalidate the proceedings and the
judgment thereon if the action survives the death of such party.
(Does not lead to the dismissal of the action). The decision
rendered shall bind the heirs.
Heirs of the deceased may be allowed to be substituted for the deceased
without appointment of an administrator or executor but the court may
appoint a guardian ad litem for minors.
The court shall order the legal representative to appear and be substituted
within a period of 30 days.
If no legal representative is named or if the one so named shall fail to
appear within the specified period, the court may order the opposing
party, to procure the appointment of an executor or administrator for the
estate of the deceased.
IF THE COUNSEL PERFORMED HIS DUTIES WHAT SHOULD
THE COURT DO NEXT?
1. Court shall determine whether the claims is extinguished by
the party’s death.
 If death resulted to extinguish the claim, the civil
action will be dismissed.
 If the party dies and the claim is not extinguished
the rules require the substitution of the deceased.
The heirs will substitute because the moment of
not wait for an appointment of an administrator or
executor because it will take time and there is still
uncertainty if they will file case in behalf of the
heirs.
 The legal capacity of the heirs must be determined
as well.
 A counter-claimant or transferee pendente lite is not
considered as a legal representative. (Sumaljag vs
Sps. Literato)
PROCEDURE ON HOW FORMAL SUBSTITUTION IS MADE:
a. Court shall issue an order of substitution to the effect that legal
representative should appear in the action and be substituted
within a period of 30 days from receipt of notice of order.
b. If the court orders the substitution that is enough of a summon.
General rule: Formal substitution is necessary.
Exception: if the heirs voluntarily appeared and actively participated in
the trial.
Effect: Non-compliance of the proceedings for substitution renders the
proceedings and judgment of the court infirm because the court acquired
no jurisdiction over the persons of the legal representative or of the heirs.
WHEN ARE ADMINISTRATOR AND EXECUTORS NEEDED
WHEN A PARTY DIES?
1. When counsel for decease does not name a legal representative
 2. When legal representative does not appear within the period
specified in the order of substitution within 30 days.
WHAT ARE ACTIONS THAT DO NOT SURVIVE?
Actions purely personal in nature. Because these actions are deemed to be
demandable only against the deceased party litigant or demandable by the
deceased party litigant.
Ex. Actions for support, annulment of marriage and legal separation and
an action to revoke a donation on the ground of ingratitude.
WHAT ARE THE ACTIONS THAT SURVIVE THE DEATH OF A
PARTY-LITIGANT? Actions purely real in nature. Hence those persona
in nature do not.
In actions that do survive, the cause of action affects primarily the
property and property rights and the injuries committed against the
person is MERELY INCIDENTAL. The property and property rights will
be inherited by them from the moment of the death of the deceased. There
is something continued beyond the death. The court can order
substitution.
Ex. Actions that are based on contract, property and other sources of
obligation.
WE HAVE TO DISTINGUISH IF THE ACTION THAT SURVIVES
IS A CONTRACTUAL OR NON-CONTRACTUAL MONEY
CLAIM
Non-Contractual money claims – Money claims that are not based on
contracts but or quasi-delict/tort/ cula aquiliana. The claimant must file a
case against the executor/ administrator or the heirs.
Atty said to not file rule 3 ,sec. 20 because even if you won the case you
still have to file a claim against the estate. You should file a claim against
the estate under Ruel 87 because there will be subsitution and the case
can be enforced by a writ of execution.
Contractual money claims – Claims that are based on contracts, the
continuity of which will depend on WHO DIED FIRST?
If the plaintiff who died first, the court will just order the substitution of
the deceased by his heirs. A claim under rule 86 may be filed against the
estate for the testate or intestate proceeding for the settlement of the estate
of the deceased.
If the defendant who dies first:
Before entry of final judgment: There will be substitution and the case
will continue until final judgment and shall be enforced under the rules
for claims against the estate of a deceased person.
Note: This means that the case is still pending. The heirs will be
substituted.
After entry of final judgment but before execution: Judgmnet shall be
enforced but you have to present the claim in the estate of the deceased
person in an intestate or testate proceeding because the court cannot issue
a writ of execution if the defendant dies after entry of final judgment but
before execution.
After execution but before auction sale: Sheriff already garnished
properties but were not yet sold. The execution proceedings will just
continute and will be just sold. There is no need for intestate or testate
proceedings.
12
In actions that do not survivce, the injury complained of is to the person.
The property and rights of property affected are MERELY
INCIDENTAL. The court can dismiss the case.
Ex. Actions that are purely personal actions. Annulment, marriage,
support etc.
ACTIONS THAT SURVIVE
1. Actions and obligations arising from delicts. (AGUAS VS. LLEMOS,
G.R. NO. L-18107 , AUGUST 30, 1962)
2. Actions for damages caused by the tortious conduct of the
defendant (MELGAR VS. BUENVIAJE, G.R. NO. L- 55750,
NOVEMBER 8, 1989).
3. Actions to recover real and personal property from the estate and
actions to enforce a lien thereon;
4. Actions to recover damages for an injury to person or property
(AGUAS VS. LLEMOS, G.R. NO. L-18107. AUGUST 30, 1962; JAVIER
VS. ARANETA, G.R. NO. L-4369, AUGUST 31, 1953).
5. Action for quieting of title (SALIGUMBA VS. CALANOG G.R. NO.
143365, DECEMBER 4, 2008).
6. Ejectment cases (unlawful detainer, forcible entry etc.) , being an
action involving recovery of real property and thus a real action
(VDA. DE SALAZAR VS. COURT OF APPEALS, G.R. NO. 121510,
NOVEMBER 23, 1995).
7. Action against or by heirs to compel execution of public document
(Art. 1357 of NCC);
8. Civil liability arising from crime;
9. Actions for recovery of money arising from contract, express or
implied (RULE 3, SECTION 20).
NOTE: Violation of BP 22 : In BP 22 cases, the criminal action shall be
deemed to include the corresponding civil actions. Instead of instituting
two separate cases, only a single suit is filed and tried. The death of the
accused does not automatically extinguish the action. The independent
civil liability based on contract, which was deemed instituted in the
criminal action for BP 22, may still be enforced against the accused's
estate.
CIVIL LIABILITY ARISING FROM DELICTS (CRIME)
Death of the Private Complainant – Substitution
Death of the Accused before arraignment – Dismissal because civil
liability arising from delicts require prior conviction.
Death of the accused after arraignment, prending trial or appeal –
Dismissal because you cannot hold the dead liable for the crime. Unless,
the private complainant will file another suit on the same act BUT
sourced from another obligation not just from the delict, he can institute
an independent or separate civil action against the executor/ administrator
of the estate.
Exception: BP 22 because the criminal action shall be deemed to include
the corresponding civil actions. Only a single suit is filed and tried. You
cannot file a separate civil action because civil actions are deemed
impliedly instituted in a BP 22 case.
The death of the accused did not automatically extinguish the actio. The
deaht of the accused did not automatically extinguish the action. The
independent civil liability based on contract and other sources of
obligation (not delict) which was deemed instituted in the criminal action
may still be enforced against the ACCUSED’s ESTATE. The accused wil
be substituted by his legal representative.
RULE 3, SEC. 17 – DEATH OR SEPERATION OF A PARTY WHO
IS A PUBLIC OFFICER
Scenario: Public officer is a party in an action in his official capacity and
during its pendency dies, resigns, or otherwise ceases to hold office.
Possibility 1: Action may be continued and maintained by or against his
successor if the latter intends to CONTINUE the policy in question and
there is a substantial need for continuing/maintaining the action.
Possibility 2: Successor does not want to continue the policy in action the
case will be dismissed.
RULE 3, SEC. 18 – INCOMPETENCY OR INCAPACITY OF A
PARTY
Action may allow to continue by or against the incompetent or
incapacitated persons assisted by his legal guardian or guardian ad litem.
RULE 3, SEC. 19 – TRANSFER OF INTEREST
There will be transferee pendente lite or a transfer of interset during the
pendency of the case.
Action may be continued by or against the original party, unless the court
upon motion directs the person to whom the interest is transferred to be
substituted (original party will no longer be included) in the action or
joined with the original party.
The counsel does not have any authority to manieft to the court he
transfer in interst over the property after the death of the client. The only
duty that he has is to inform the court of the death of the client.
RULE 3, SEC. 21 – AN INDIGENT PARTY (LITIGATION IN
FORMA PAUPERIS)
Who is an indigent party? Court will be able to determine and indigent
party upon an ex-parte application (no need to inform the adverse party)
or hearing and that the court is satisfied that:
1. Party is one who has no money or property sufficient and
available for food, shelter and basic necessities for himself and
his family.
 Effect of being considered as an indigent party: Exemption
from payment of docket and other lawful fees, and of
transcripts of stenographic notes but it shall be a lien on any
judgment rendered in the case favorable to the indigent, unless
the court otherwise provides.
 Effect if later court finds that he is not an indigent: If the court
should determine after hearing that the party declared as an
indigent is in fact a person with sufficient income or property,
the proper docket and other lawful fees shall be assessed and
collected by the clerk of court.
 If payment is not made within the time fixed by the court,
execution shall issue for the payment thereof, without
prejudice to such other sanctions as the court may impose.
What is the standard? The applicant’s gross income and that of his
immediate family do not exceed an amount double the monthly minimum
wage of an employee; and that he does not own real property with a fair
market value of more than P300,000.00. If these requirements are
complied with, the grant of the authority to litigate as indigent litigant is a
matter of right.
If an applicant does not meet the requirements in Section 19 of Rule 141,
it does not mean that immediately, an applicant will not be allowed to
litigate as an indigent litigant. Pwede pa, pero i-hear sa, tan-awon pa sa
Court. The court should not deny the application outright. Instead, the
13
Court should apply the indigency test under Section 21 of Rule 3 and use
its sound discretion in determining the merits of the prayer for exemption.
RULE 3, SEC. 22 NOTICE TO THE SOLGEN
Court may require the appearance of the SolGen in any action involving
the validity of any treaty, law, ordinance, executive order, presidential
decree, rules or regulations.
Failure to implead the SolGen who represents the people , state the
petition will be dismissed because an indispensable party is missing.
General rule: Only the Solicitor General can bring or defend actions on
behalf of the Republic of the Philippines.
Exception: Solicitor General is empowered to deputize legal officers of
government departments, bureaus, agencies and offices to assist the
Solicitor General and appear or represent the Government in cases
involving their respective offices, brought before the courts and exercise
supervision and control over such legal officers with respect to such
cases. (Republic vs Holdings)
EXAMPLE: If it’s a case in Davao City involving private parties
assailing the constitutionality of an ordinance, will the Solicitor General
come all the way from Makati and appear before an RTC judge of Davao
City? Is that how it is? That is why the Solicitor General can deputize.
Who are usually deputized by the Solicitor General? The employees of
the Department of Justice􀍶prosecutors or deputy prosecutors. Those are
the ones usually empowered by the Solicitor General. They are deputized
to appear on behalf of the Government.
If the SolGen cannot appear the public prosecutor or the fiscal has to wait
to be deputized by the SolGen. If you’re the client, you will complain
about how late the Solicitor General is. Then the public prosecutor will
move for a postponement because he has not yet received the
deputization of the Solicitor General to represent the Government in the
case.
Other example cases:
1. Rule 63 on Declaratory Relief
2. Rule 66 on Quo Warranto
3. Rule 91 Escheats
4. Rule 103 in Change of Name1
NOMINAL OR PRO-FORMA PARTY – A party joined as a plaintiff or
defendant, not because such party has any real interest in the subject
matter or because any relief is demanded, but merely because the
technical rules of pleadings require the presence of such party on the
record. (Samaniego v. Aguila, G.R. No. 125567, June 27, 2000)
They have to be impleaded because the law on pleadings requires them to
be impleaded.
EXAMPLE OF NOMINAL PARTY:
1. Actions affecting the status of the land = Registry of Deeds
being the custodian of all lands records because the case
involves the status of land, registration or annotations.
2. Certiorari proceedings under Rule 65 = Adjudicating judge,
officer, or tribunal whom you are accusing of grave abuse of
discretion. But take note the judge cannot file the certiorari if
his decision was reversed by the higher court.
In a petition under Rule 65, a judge whose order is being
assailed is merely a nominal or formal party. In such capacity,
therefore, he should not appear as a party seeking the reversal
of a decision that is unfavorable to the action taken by him.
Indispensable parties are only the plaintiff and the private
respondent (enemy)
RULE 4, SEC. 1 VENUE Thus, where the purpose is to nullify the title to real property, the venue
of the action is in the province where the property lies, notwithstanding
VENUE – the place where the case is to be heard or tried. This only the alternative relief sought, recovery of damages, which is predicated
refers to the personal residence and not the domicile. upon a declaration of nullity of the title. (Navarro v. Lucero, 100 Phil.
146)
JURISDICTION VENUE
AUTHORITY to hear the case. PLACE where the case is to be CASE: BPI VS HONTANOSAS
heard.
Determined by substantive law. Determined by procedural rules. Respondents seek the nullification of the promissory notes, continuing
(BP 129) surety agreement, checks and mortgage agreements for being executed
Establishes a relation between the Established a relation between against their will and vitiated by irregularities, not the recovery of the
COURT and the SUBJECT the PLAINTIFF AND possession or title to the properties burdened by the mortgages.
MATTER DEFENDANT.
CANNOT BE CONFERRED by CAN BE CONFERRED by the There was no allegation that the possession or title to the properties
agreement between parties act or agreement of the parties. burdened by the mortgages. There was no allegation that the possession
CANNOT be waived. May be waived by failure to of the properties under the mortgages had already been transferred to the
object or upon stipulation of the petitioner in the meantime. Thus, the action was unquestionably a
parties. personal action. Venue, therefore, was improperly laid and the correct
Ground for motu proprio Not a ground for motu proprio docket fees were not paid.
Can be objected anytime even if Can be objected in the
there is already a final judgment. defendant’s answer. CASE: Francisco, after full payment, demanded from Saraza, the
execution of the final deed of sale. Saraza did not execute. Francisco filed
the case to compel Saraza to execute the deed before the RTC of Imus,
CASE: NAVAJA VS DE CASTRO
Cavite where Francisco resided.
 In criminal proceedings, improper venue is lack of jurisdiction
Although the end result of the respondent’s claim was the transfer of the
because venue in criminal cases is an essential element of
subject property to his name, the SUIT WAS STILL ESSENTIALLY
jurisdiction.
FOR SPECIFIC PERFORMANCE, A PERSONAL ACTION,
 In civil cases venue may be waived, this could not be done in a BECAUSE IT SOUGHT FERNANDO’S EXECUTION OF A DEED
criminal case because it is an element of jurisdiction. OF ABSOLUTE SALE based on a contract which he had previously
made.
RULE 4 ,SEC. 1 VENUE FOR REAL ACTIONS (WHERE IS THE
PROPERTY OR THE SUBJECT MATTER LOCATED?) What does this mean? “Where the plaintiff xxx, or where the defendant
xxx resides…”
 Actions affecting real property shall be tried in the proper
court which has jurisdiction over the area wherein the real Residence here refers to ACTUAL OR PHYSICAL RESIDENCE AND
property involved, or a portion thereof, is situated. NOT DOMICILE.
 Forcible entry and unlawful detainer actions are to be tried in
the MTC where the property is located or a portion of it GENERAL RULE:
(the situs). Exception: “Where the parties have validly agreed
in writing before the filing of the action on the exclusive venue CASE: Saludo v. American Express
thereof.”
For purposes of venue, personal, actual or physical habitation of a person,
NOTE: If the whole property itself is situated in that area, or a portion actual residence or place of abode. It signifies physical presence in a
thereof, the proper venue of filing that case to recover the property for place and actual stay thereat. In this popular sense, the term means merely
example, is in the place where the court has territorial jurisdiction. residence, that is, personal residence, not legal residence or domicile.

If the portion of the property is located in Davao and the other portion is
in Digos plaintiff may choose between which of the cities the case will be
filed. This is the only time where the plaintiff can choose the venue on
real actions.
RULE 4, SEC. 2 VENUE FOR PERSONAL ACTIONS WILL
DEPEND ON THE RESIDENCE OF THE PARTIES
1. Where the plaintiff or principal plaintiff resides.
2. Where the defelndant or principal defendant resides or when a
non-resident defendant, where he may be found at the election
of the plaintiff.
NOTE: The defendant here is not a resident BUT MAY BE
FOUND IN THE PHILIPPINES.
HOW IS THE VENUE DETERMINED IF THERE ARE SEVERAL
OR ALTERNATIVE RELIEFS SOUGHT IN AN ACTION AND
THE RELIEFS PRAYED FOR ARE PERSONAL AND REAL?
Where several or alternative reliefs are prayed for in the complaint, the
nature of the action as real or personal is determined by the primary
object of the suit or by the nature of the principal claim.
14
EXCPETION: Corre vs Tan-Corre (Only case where the SC used
domicile)
The plaintiff is a resident of Las Vegas, Nevada, while the defendant is a
resident of Catbalogan, Samar. Such being the case, plaintiff has no
choice other than to file the action in the court of first instance of the
latter province. The allegation that the plaintiff “for purposes of filing and
maintaining this suit, temporarily resides at 576, Paltoc, Santa Mesa,
Manila” Cannot serve as basis for the purpose of determining the venue
for that is not the residence contemplated by the rule. If that were
allowed, we would create a situation where a person may have his
residence in one province and, to suit his convenience, or to harass the
defendant, may bring the action in the court of any other province. That
cannot be the intendment of the rule. Indeed, residence as used in said
rule is synonymous with domicile. This is defined as “the permanent
home, the place to which, whenever absent for business or pleasure, on
intends to return, and depends on facts and circumstances, in the sense
that they disclose intent”.
Take note: The residence used by the Supreme Court here was legal
residence, not actual or physical residence. Why? Because the Supreme
Court here tried to protect the Filipino wife from harassment from the
American husband. Remember, the husband filed a case in Manila. What
would happen to the wife? She would have to travel back and forth from
Samar to Metro Manila just to attend trial. She doesn't have the resources
so the Supreme Court here was just trying to rule based on equity.
WHERE TO FILE A SUIT AGAINST A CORPORATION?
 The residence of a corporation is the place where its HEAD
OR MAIN OFFICE IS SITUATED which is usually the
address stated in its articles of incorporation.
CASE: CLAVECILLA v. ANTILLON
A corporation may sue and be sued only in the place where its principal
office is situated, which office is usually the one stated in its articles of
incorporation.
The fact that it has branches is not controlling. The fact that it maintains
branch offices in some parts of the country does not mean that it can be
sued in any of these places. To allow an action to be instituted in any
place where a corporate entity has its branch offices would create
confusion and work untold inconvenience to the corporation.
EXCEPTIONS OF THIS CASE ARE:
1. The case is a real action- It's not the residence of the plaintiff or the
defendant that matters in a real action but it's the situs of the real property.
2. The corporation is the defendant and it is sued in the place of
residence of the plaintiff. - This is the option of the plaintiff.
3. The corporation is a co-plaintiff and they chose to sue in the place
of residence of the defendant.
4. The corporation is a co-plaintiff and they chose to sue in the place
of residence of its co-plaintiff (Young Auto Supply Co. vs. Court of
Appeals (223 SCRA 670).
5. The case falls under Rule 4, Section 4.
6. The address stated in the articles of incorporation is no longer its
actual physical address and the opponent has knowledge of this fact.
CASE: GOLDEN ARCHES DEV'T CORPO. v. ST. FRANCIS
SQUARE HOLDINGS
Respondent claimed that it had closed down its office in Makati effective
December 31, 2005 as it now holds office in Mandaluyong City of which
petitioner is aware. Respondent noted that they had previously sent
communications to the petitioner using the new address prior to the filing
of the suit.
Although respondent's Amended Articles of Incorporation of 2007
indicates that its principal business address is at "Metro Manila", venue
was properly laid in Mandaluyong since that is where it had actually been
"residing" (or holding its principal office) at the time it filed its
complaint.
PRINCIPLE: The address written in the Articles of Incorporation is not
controlling if the plaintiff has actual knowledge that the corporation is no
longer its head office there.
CASE: MANGILA v. COURT OF APPEALS (SOLE
PROPRIETORSHIP)
Guina's business is a sole proprietorship and as such, does not have a
separate juridical personality that could enable it to file a suit in court. In
fact, there is no law authorizing sole proprietorships to file a suit in court.
It is neither the sole proprietorship nor his business that ought to file
the case; rather, it is the owner himself of the business.
15
A sole proprietorship does not possess a juridical personality separate and
distinct from the personality of the owner of the enterprise. Thus, not
being vested with legal personality to file this case, the sole
proprietorship is not the plaintiff in this case but rather Guina in her
personal capacity. When filing a case againsta sole proprietorship base it
on the residence of the owner.
CASE: ANG vs. ANG
The place of residence of the lawyer who was given a Special Power of
Attorney by the plaintiffs is not the proper venue to file a complaint in
behalf of the plaintiffs because he is not a real party in interest as he does
not stand to be benefited or injured by any judgment.
Petitioner's complaint is a personal action as it primarily seeks the
enforcement of a contract. If the plaintiff does not reside in the
Philippines, the complaint in such case may only be filed in the court
of the place where the defendant resides.
Plaintiff can no longer elect as to the venue of the filing of a complaint
when the plaintiff has no residence in the Philippines. The petitioners,
being residents of Los Angeles, California, are not given the choice as to
the venue of the filing of their complaint.
Atty. Aceron is not a real party in interest in the case below as he does not
stand to be benefited or injured by any judgment therein. Such
appointment, however, does not mean that he is subrogated into the rights
of petitioners and ought to be considered as a real party in interest. If you
are suing simply as a representative of the real party in interest.
RULE 4 ,SEC. 3 VENUE OF ACTIONS AGAINST NON-
RESIDENTS.
The defendant here is not a resident and cannot be found in the
Philippines.
Rule 4,sec. 2 Rule 4 ,sec. 3
Non-resident defendant may be Defendant does not reside and
found in the Philippines. cannot be found in the
Philippines.
He is temporarily living in the
Philippines.
Under section 3 because you cannot acquire jurisdiction over the person
because he cannot be found in the Philippines, jurisdiction over the
person may be substituted by jurisdiction over the res. Hence, even if the
Philippine courts cannot acquire jurisdiction over the person of the
defendant but the subject of the controversy or the res is in the
Philippines, then the non-resident defendant can also be sued in the
Philippines. The court can now acquire jurisdiction over the res. Since the
res is here, the judgment can be enforced.
Summons are still required in order to satisfy the due process
requirements.
What are the options in case of a defendant who is a non-resident in
the Philippines but is temporarily in the Philippines?
1. File the ase in the plaintiff’s place of residence.
2. File the case in the place where the non-resident defendant may
be found in the Philippines.
What actions can be filed against a non-resident defendant who is not
even found here in the Philippines? (E.g migrated abroad)
1. An action that affects the personal status of the plaintiff.
Ex. Filing for compulsory recognition to improve status as an
illegitimate child. This was a personal action and the res is the
status.
 2. An action that affects the property or any portion thereof of
said defendants which is located here in the Philippines.
Ex. Plaintiff can sue the non-resident defendant because the
court can acquire jurisdiction over the res (land).
Qualifying or restrictive words which would indicate that Manila and
Manila alone is the venue are totally absent therefrom. It simply is
permissive. The parties solely agreed to add the courts of Manila as
tribunals to which they may resort. They did not waive their right to
pursue remedy in the courts specifically mentioned in the Rules on venue.

What is the remedy in cases of personal actions against non-resident The venue stipulation will dictate the exclusive venue of the action if the
defendants not found in the Philippines? stipulation is restrictive in character. If the venue stipulation is not
restrictive in character, this will only provide for an additional venue
 Convert your action into an action quasi in rem by locating the where the parties may sue.
defendant's property in the Philippines and have it attached
under Rule 57.
 If the property is now in custodia legis by reason of that
attachment, the case may push through even without personal
service of summons upon the non-resident defendant in the
Philippines.
CASE: GESMUNDO VS JRB REALTY
RULE 4 ,SEC. 4
The stipulation in the contract states that “ the venue for all suits, whether
This provision provides for instances when Sections 1 and 2 of Rule 4 are breach or damages caused between the lessor and lessee…”It was held by
not applicable. the court to be restrictive.
A. IN THOSE CASES WHERE A SPECIFIC RULE OR LAW SUMMARY:
PROVIDES OTHERWISE
 Ex. Civil action arising from Libel under Article 360, SC  The addition of the words “exclusively” or “only” shows the
may order a change of venue or place of trial to avoid a intention of the parties to limit venue of the action only in that
miscarriage of justice, Estate proceedings are in the province in place.
which he resides at the time of his death, and if he is an  If the venue is not exclusive, Rule 4 still applies, and the
inhabitant of a foreign country, the Court of First Instance of stipulated venue is just an additional one.
any province in which he had estate.  Note that even if the words “exclusively” or “only” are not
 Ex. Change of venue an order made by the Supreme Court, present, venue would still be
venue of estate proceeding.  Exclusive if this can be gleaned from the provision of
exclusivity
B. WHERE THE PARTIES HAVE VALIDLY AGREED IN
WRITING BEFORE THE FILING OF THE ACTION ON IMPORTANT 2 CASES UNDER THIS SECTION
THE EXCLUSIVE VENUE THEREOF.
 Parties will enter into a contract and stipulate that any suit SWEET LINES VS TEVES ARQUERO VS FLOJO
involving the contract will be tried only at a particular place Both relates to contracts of adhesion
(but the parties cannot stipulate which court to file the Both cases also have different branches for their business
complaint). “Any and all actions shall be “Venue thereof shall be in the
 The venue stipulation will dictate the exclusive filed in the competent courts in courts of Quezon City alone and
the City of Cebu.” in no other courts.”
venue of the action if the stipulation is restrictive in
The court rendered the The court accepted the contract
character. If the venue stipulation is not restrictive in
contract void because of the and stipulations because it was
character, this will only provide for an additional
hardships in inter-island printed cleary in the upport
venue where the parties may sue. travel. portion of the form.
 The stipulation must be:
1. In writing Condition No. 14 is subversive The condition with respect to
2. Made ante litem motam or before the filing of the of public policy on transfers of venue in the telegram form for
action. venue of actions. transmission was printed
clearly in the upper front
RULES: For, although venue may be portion of the form.
changed or transferred from one
1. The addition of the words “exclusively” or “only” province to another by Considering the petitioner’s
shows the intention of the parties to limit the venue agreement of the parties in educational attainment (being a
of the action only in that place. writing t to Rule 4, Section 3, of lawyer by profession and the
2. Even if the words “exclusively” or “only” are not the Rules of Court, such an Municipal Mayor of Sta. Teresita,
present, venue would still be exclusive if this can be agreement will not be held Cagayan), he must be charged
gleaned from the provision of exclusivity. valid where it practically with notice of the condition
3. If the venue is not exclusive, Rule 4 still applies and negates the action of the limiting the venue to Quezon
the stipulated venue is just an additional one. claimants. City, and by affixing his
signature thereon, he signified his
Ex. “THE VENUE FOR ALL SUITS…” Considering the expense and assent thereto.
trouble a passenger residing
CASE: POLYTRADE CORP. VS. BLANCO outside of Cebu City would
incur to prosecute a claim in
The contract stipulated that: “The parties agree to sue and be sued in the City of Cebu, he would most
the Courts of Manila.” does not preclude the filing of suits in the probably decide not to file the
residence of plaintiff or defendant. The plain meaning is that the parties action at all.
merely consented to be sued in Manila.
Upon the other hand, petitioner

16
 has branches or offices in the
respective ports of call of its
vessels and can afford to litigate
in any of these places.
THE NATURE OF THE ACTION DOES NOT AFFECT
STIPULATIONS RELATING TO THE VENUE
CASE: UNION BANK v. MAUNLAD HOMES
While Section 1, Rule 4 of the Rules of Court states that ejectment
actions shall be filed in “the municipal trial court of the municipality or
city wherein the real property involved x x x is situated,” Section 4 of the
same Rule provides that the rule shall not apply “where the parties have
validly agreed in writing before the filing of the action on the
exclusive venue thereof”
Precisely, in this case, the parties provided for a different venue. In
Villanueva v. Judge Mosqueda, etc., et al. the Court upheld the validity of
a stipulation in a contract providing for a venue for ejectment actions
other than that stated in the Rules of Court. Since the unlawful detainer
action is connected with the contract, Union Bank rightfully filed the
complaint with the MeTC of Makati City.
CASE: PILTEL v. TECSON
Subscription agreements containing venue stipulations are valid.
The added stipulation that the subscriber “expressly waives any other
venue” should indicate, clearly enough, the intent of the parties to
consider the venue stipulation as being preclusive in character.
In the case at bar, respondent secured six (6) subscription contracts for
cellular phones on various dates. It would be difficult to assume that,
during each of those times, respondent had no sufficient opportunity to
read and go over the terms and conditions embodied in the agreements.
Respondent continued, in fact, to acquire in the pursuit of his business
subsequent subscriptions and remained a subscriber of petitioner for quite
some time.
CASE: LEY CONSTRUCTION AND DEV’T CORP. v. SEDANO
An exclusive venue stipulation is valid and binding, provided that:
a) The stipulation on the chosen venue is exclusive in nature or in intent;
b) It is expressed in writing by the parties thereto; and
c) It is entered into before the filing of the suit.
“All actions or cases filed in connection with this lease shall be fixed with
the Regional Trial Court of Pasay City, exclusive of all others”
Parties’ intention to limit the place where actions or cases arising from a
violation of the terms and conditions of the contract of lease may be
instituted. This is evident from the use of the phrase “exclusive of all
others” and the specification of the locality of Pasay City as the place
where such cases may be filed.
Ex. “Exclusive to RTC of Davao”, but it’s an MTC case?
 Remember file the case to the appropriate jurisdiciton and
venue. So, the court where it should be filed should still be
based on what the law says. Venue can be agreed upon.
 It is not construed as stipulation on jurisdiction but one which
merely limits the venue.
 You should implement stipulation as to exclusivity of venue
but disregard stipulation as to exclusivity of court. You
17
cannot file the case in RTC when the RTC has no jurisdiction
over it.
 Case should be filed in the MTC of Davao
 The venue (Davao) is valid, but it is not valid that it should be
only exclusive to the RTC
CASE: BRIONES v. COURT OF APPEALS
 The complaint is an action for nullity of the mortgage contract
on PM, LOAN AGREEMENTS, FORECLOSURE ETC was
filed before the RTC.
 The complaint directly assails the validity of the subject
contracts, claiming forgery in their execution. Given this
circumstance, Briones cannot be expected to comply with
the aforesaid venue stipulation, as his compliance therewith
would mean an implicit recognition of their validity. Hence,
pursuant to the general rules on venue, Briones properly filed
his complaint before a court in the City of Manila where the
subject property is located.
 Ngano man siya mo follow kung unsa naa sa contract kung
gina-assail niya ang validity sa contract? He will be estopped if
he does follow the contract.
SUMMARY:
RULE NO. 1 (GENERAL RULE)
a. For real actions, follow Section 1.
b. For personal actions, follow Section 2.
c. For everything else, follow Section 3 􀍴 (Venue of actions against
nonresidents).
RULE NO. 2 (EXCEPTIONS) Do not follow Rule No. 1 if:
[2.1.] There is a specific rule or law that provides otherwise (e.g. venue
on estate proceedings, libel, etc.); or
[2.2.] The parties have validly agreed in writing before the filing of the
action on the exclusive venue. You need to remember the requisites: (a)
The stipulation should really state that it is exclusive. (b) It must be in
writing. (c) It is made prior to the filing of the case. If it follows all those
requisites, it is an exclusive venue stipulation.
[2.2.1] If not exclusive, the venue stipulated is merely an additional (or
permissive) venue.
RULE NO. 3
(EXCEPTION TO THE EXCEPTION) Do not follow Rule No. 2.2
(Exclusive Venue Stipulation) if the plaintiff specifically contests the
validity of the whole agreement itself, as can be gleaned from the case of
Briones. So, if you question the whole contract, the venue stipulation is
included. Take note of that. Those are very simple things to remember
that will guide you in practically every question that can be asked in
relation to venue.
EFFECT OF FILING IN THE WRONG VENUE:
CASE: GUMABON, ET AL. v. LARIN
The only time a court can motu proprio dismiss a case is if there is no
jurisdiction over the subject matter.
If there is an improper venue the court cannot motu proprio dismiss
the case because venue can be waived.
If no motion to dismiss has been filed, x x x improper venue, may be
pleaded as an affirmative defense a preliminary hearing may be made
thereon as if a motion to dismiss has been filed. But, as it is, improper assailing the improperly laid venue just because you sought for
venue not having been so raised by respondent as a ground to damages in the nature of a counterclaim.
dismiss, he must be deemed to have waived the same.
RULE 5 – UNIFORM PROCEDURE IN TRIAL COURTS
The wrong venue in Civil Case No. 97-31709, being merely a procedural
infirmity, not a jurisdictional impediment, does not, without timely General rule: The procedure in the MTC shall be the same with the RTC.
exception, disallow the RTC of Quezon City to take cognizance of, and to
Exception:
proceed with, the case. In failing to raise his objection to it either in a
motion to dismiss or in his answer, coupled by his having sought relief a. A particular provision expressly or impliedly applies only to a
from the court and favorable judgment on his demurrer to evidence, specific court. Ex. Small claims cases.
respondent has himself evinced an acceptance on the venue of the action. b. Civil cases governed by the Rule on Summary Procedure.
The court a quo has thus erred in dismissing motu proprio the complaint
on the ground of improper venue. RULE 6 SEC. 1 - PLEADINGS

 When talking about pleadings you are referring to a civil

action.
 EVERYTHING FILED BEFORE THE COURT IS A
PLEADING.

WHEN CAN THERE BE A WAIVER OF VENUE DEFINITION OF A PLEADING: Written statements of the respective
claims and defenses of the parties submitted to the court for appropriate
IF YOU FAIL TO RAISE YOUR OBJECTION TO IMPROPER judgment. (Rule 6, sec. 1)
VENUE, THERE IS WAIVER.
RULE 6 ,SEC. 2 WHEN ARE PLEADINGS ALLOWED?
SITUATION: Defendant contends that the venue was improperly laid. He
filed a counterclaim. (Ruling will depend if it is a permissive or he claims of a party are asserted in a complaint, counterclaim, cross-
compulsory counterclaim) claim, third (fourth, etc.)-party complaint, or complaint-in-intervention.

EFFECT: Defendant waives the defect in venue. A party cannot invoke The defenses of a party are alleged in the answer to the pleading asserting
a violation of a rule on venue against his counter-party, when he himself a claim against him or her.
is bound by the same rule, but nonetheless, seeks his own relief and in so
An answer may be responded to by a reply only if the defending party
doing, violates its. (PANTRANCO v. YATCO, 128 Phil. 767, 1967). So,
attaches an actionable document to the answer.
if you file a counterclaim, it is like you submitted to the full
jurisdiction of the court, including venue. (A party cannot invoke a FUNCTIONS OF A PLEADING: Determine what are the issues to be
violation of a rule on venue, when he himself is bound by the same rule, tried, which evidence to be presented, and which evidence will the court
but nonetheless, seeks his own relief and in so doing, violates it). believe in judging the case.
(PANTRANCO v. YATCO, 128 Phil. 767, 1967).
 Pleadings determine the jurisdiction of the court over the
However, a counterclaim is not covered by the venue stipulation if the subject matter.
defendant is not asserting a violation of the terms and conditions of the
contract, but rather an independent right which arose only because of PLEADINGS DETERMINES AND LIMITS THE ISSUES TO BE
the filing of the complaint or if his counterclaim is a compulsory TRIED.
counterclaim.
 Issues not raised in the pleading will not be considered by the
Q: What is this compulsory counterclaim? court for the purpose of trial and eventual judgment.
 Only issues generated in the pleadings can be tried. If not
A: A counterclaim that the defendant cannot file if the plaintiff did metioned it cannot be tried.
not file the case against him in the first place. Not asserting a
 Even in appeals an issue not generated in the original trial
violation of the terms and conditions of the contract but rather an
cannot be raised for the first time on appeal. He will be raising
independent right which arose only because of the filing of the
an untried issue.
complaint.
 You cannot raise for the first time on appeal something that
EXAMPLE: A counterclaim for attorney’s fees. Why? The plaintiff you did not raise during trial.
filed a case against the defendant. The defendant contends that: “I
MOTIONS ARE NOT PLEADINGS:
don’t owe you, or I don’t have an obligation. And because you filed
this nonsense case against me, I was constrained to hire a lawyer, to PLEADINGS MOTIONS
whom I paid Php 10,000. If you did not file a case against me, I Must state the claims and May or may not relate to claims
would not have paid for the attorney’s fees.” That is what you call as defenses of the parties or defenses
compulsory counterclaim. That counterclaim would not be covered Objective is to pray for judgment May or may not pray for
by the venue stipulation because it is a compulsory counterclaim. We on the merits (prayer is found at judgment
will discuss more of that when we discuss the different types of the very end of a pleading)
pleadings. But for now, just try to remember that. Relief sought is one that is Relief sought is more immediate
threshed out after trial and although motions require
You cannot object to the venue at the same time claim relief from hearing hearings
that very same court whose venue you are objecting to. But if you Always written Oral (made in the course of the
are just asking for counterclaim because by reason of the baseless trial) or written
filing of the complaint you have suffered sleepless nights, serious Limited under rule 6 Virtually unlimited
anxiety, mental anguish, .. so you are seeking for moral damages -
that would be in the nature of a compulsory counterclaim. You are
not precluded from doing that. You are also not estopped from LIMITATIONS OF PLEADINGS UNDER THE RULES

18
 1. 5 INITIATORY PLEADINGS -> Pleadings are limited only to
a COMPLAINT, COUNTERCLAIM, CROSS-CLAIM,
THIRD ETC. PARTY COMPLAINT, OR COMPLAINT IN
INTERVENTION.
2. 2 RESPONSIVE PLEADINGS -> these are the defenses of a
party that are alleged in the answer.
RULE 6, Sec. 3 – COMPLAINT
 A type of pleading that is alleging the plaintiffs cause or causes
of action.
 The names and residence of the plaintiff and defendant must be
stated in the complaint.
 Most basic initiatory pleading.
 Complaint must contain a certification against forum-shopping.
 Complaint determines the jurisdiction over the subject matter.
 Jurisdiction CANNOT BE MADE UPON THE DEFENSES
SET UP only to the complaint.
 Elements of a cause of action are found in the complaint.
 There has to be a trial so that a complaint will be proven.
CONTENTS IN A COMPLAINT:
1. Allegations constitution the plaintiff’s cause of action
2. Names of the plaintiffs and the defendant
3. Residences – necessary to serve summon so that the court can
acquire jurisdiction.
RULE 6,SEC .4 – ANSWER
 An answer is a responsive pleading
 This is where the defending party sets forth his defenses
 Being a responsive pleading a certificate of non-forum
shopping is unnecessary.
 Except when the answer is a permissive counterclaim, cross-
claim, or 3rd 4th party complaint which requires certificate of
non-forum shopping.
RULE 6, SEC. 5 – DEFENSES
 2 TYPES OF DEFENSES: Affirmative defenses and
Negative defenses
NEGATIVE DEFENSES
 A defense of specific denial of material fact
 Denies material facts averred in the complaint that is
essential to establish the plaintiff’s cause of action.
 The denial must be specific. You also have to tell to state in
your answer your version of the facts. It's not enough you deny
in general terms.
AFFIRMATIVE DEFENSES
 A defense of confession and avoidance
 An allegation of a new matter while admitting to the material
allegations in the complaint would nevertheless prevent or bar
recovery by him or her. (you confessed to what was averred
but you allege a new matter trying to bar recovery )
 You will admit but you will still avoid. Meaning, you admit but
you have a defense that will not make you liable ultimately in
this case.
 "Yes, it is true that I contracted a loan”, avoidance "But I
should not be held liable because I already paid.”
AFFIRMATIVE DEFENSES INCLUDE:
1. Fraud - It's true, I have a loan, but I was defrauded, my
consent was vitiated by fraud.
19
2. 2. Statute of Limitations or prescription Statute of
Limitations or prescription - the loan has already prescribed, if
there is really a unpaid load, I cannot pay anymore, since it has
already prescribed, you cannot sue upon it anymore
3. Release - Release or quitclaim or condonation of obligation
4. Payment Payment or Performance of obligation
5. Statute of Frauds Statute of frauds under Art 1403(2) which is
a defense that bears upon the enforceability of contract.
Meaning, yes there is contract between the parties but it cannot
be enforced because there is no note or memorandum on the
terms of the contract.
6. Illegality; Void. The complication you are suing upon was void
from the very beginning
7. Estoppel;
8. Former recovery;
9. Discharge in bankruptcy;
10. Any other matter by way of confession and avoidance.
AFFIRMATIVE DEFENSES MAY ALSO INCLUDE GROUNDS
FOR THE DISMISSAL OF A COMPLAINT THROUGH A MOTION
TO DISMISS O JUST SIMPLY FILE ANSWER..
1. That the court has no jurisdiction over the subject matter;
2. That there is another action pending between the same parties for the
same cause (litis pendentia); or
3. That the action is barred by a prior judgment (res judicata)
4. Statute of Limitations.
When talking about statute of limitations it is only raised in the answer
and not a motion to dismiss.
Again, the first 3 gounrds can be set up as motion ot dismiss and answer.
Except for the 4th gound it is only set up in an answer.
RULE 6 ,SEC. 6 COUNTERCLAIM
 Defendant files a claim or a complaint against the Plaintiff in
the same proceeding as a permissive counterclaim which is
considered as an initiatory pleading that is why there is a need
for a certificate of non-forum shopping.
 Normally defendant files an answer but what if the defendant
files a claim against the plaintiff?
- Defendant can file the claim in the same case. There
is no separate action.
 An initiatory pleading because you are filing a claim except
that you are filing the claim in the same case against the same
plaintiff.
 Purpose is to avoid multiplicity of suites because the entire
controversy between the parties will be determined in one case
or action.
 Counterclaims are set up in the same action that brought him to
court in the first place. (this is applicable to both permissive
and compulsory)
Ex. X sues Y for collection of a loan. Y files a counterclaim with prayer
for injunction to stop X from harassing him.
2 TYPES OF COUNTERCLAIMS: COMPULSORY OR
PERMISSIVE COUNTERCLAIM
COMPULSORY COUNTERCLAIM
 Any claim for money or any relief, which a defending party
may have against an opposing party, which at the time of suit
arises out of, or is necessarily connected with, the same
 transaction or occurrence that is the subject matter of the
plaintiff's complaint.
 Does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction. If the
defendant files a counterclaim that is not within the jurisdiction
of the court or requires the presence of third parties over whom
the court cannot acquire jurisdiction the counterlcaim is not
allwed and a separate action is required in the proper setting.
GENERAL RULE: A counterclaim must be within the jurisdiction of
the court both as to the AMOUNT AND THE NATURE .
EXCEPTION: An original action is filed before the Regional Trial
Court, amount does not matter and counterclaim is considered.
 A compulsory counterclaim not raised in the same action is
barred, unless otherwise allowed by these Rules.”
Ex. Pia files a complaint for recovery of a possession against Maja. Maja
files an answer together with a claim for reimbursement of all the
expenses she incurred in repairing the building subject of the lease. The
claim for reimbursement is a counterclaim and is in the nature of a
complaint by the defendant against the plaintiff.
ELEMENTS OF A COMPULSORY COUNTER-CLAIM (Defendant
shou interpose such compulsory counterclaim in the SAME SUIT)
1. Counterclaim is connected with the transaction or occurrence
of constituting the subject matter of the opposing party's claim;
 There must be a connection. At least it should be related in
some way.
 Were it not for the complaint filed by the plaintiff, the
defendant’s claim would not have existed.
 The counterclaim of the defendant must be connected with the
claim of the plaintiff in the original claim filed.
 A counterclaim only arises because the plaintiff filed the
original complaint.
2. It does not require for its adjudication the presence of a third
parties of whom the court cannot acquire jurisdiction;
 The counter-claim to be compulsory should be
between the same parties in the main case..
 It is still possible to add a 3 rd party to the
counterclaim by filing a 3rd party complaint.
3. It must be within the jurisdiction of the court both as to the
amount and the nature of the claim.
 If the counterclaim should be under the jurisdiction
of a different court such claim may be filed in a
separate action.
TEST TO DETERMINE COMPULSORINESS
STEP 1: ELEMENTS OF A COUNTER-CLAIM
STEP 2: (GSIS VS HEIRS OF CABALLERO)
(a) Are the issues of fact and law raised by the claim and by the
counterclaim largely the same?
(b) Would res judicata bar a subsequent suit on defendant’s claims, absent
the compulsory counterclaim rule?
 If the defendant would raise this in the same case it
will be barred.
 If it is a compulsory counterclaim there sill be a bar
to a subsequent suit based on that defendant’s
counterclaim if instituted separately.
(c) Will substantially the same evidence support or refute plaintiff’s claim
as well as the defendant’s counterclaim?
20
 Regardless whether it is for the main claim or counterclaim the
same evidence is presented for either claims.
(d) Is there any logical relation between the claim and the counterclaim?
 Counterclaim is dependent on the main claim.
 Arises out of the same transaction or occurrence.
 Whether the counterclaim would arise were it not for the filing
of that main complaint.
HOW TO SET-UP A COUNTERCLAIM?
a. IN A SEPARATE SUIT
 The filing of a counterclaim in a separate suit is allowed only if
the counterclaim is permissive (not when it is compulsory).
b. IN THE SAME ACTION
 If it a compulsory counterclaim, you have to set it up in the
same action, otherwise, it will be barred.
WHAT HAPPENS WHEN THE ANSWER WAS FILED FIRST
BEFORE THE COUNTERCLAIM OR CROSS CLAIM, CAN IT
STILL BE FILED IN THE SAME ACTION?
YES. Rule 11, sec. 9 remedy is to file a motion for leave by supplemental
pleading.
SUBSEQUENT = SUPPLEMENTAL PLEADING
REQUISITES FOR RULE 11,SEC. 9
1. A prior leave of court must be filed allowing the filing of the
counterclaim upon motion by the defendant.
2. The counterclaim by supplemental pleading must have matured
and be filed after serving answer but before judgment is
rendered by the court.
WHAT IF THE COUNTERCLAIM ALREADY EXISTED OR
PRESENT AT THE TIME THE DEFENDANT FILED HIS
ANSWER BUT HE ONLY FORGOT TO SET UP SUCH.
Rule 11, sec. 10 – OMMITTED COUNTERCLAIMS
Remedy: Filing a motion for leave by amendment of pleading before
judgment.
OMITTED = AMENDMENT
Can you file a motion to dismiss with counterclaim? -NO.
1. Filing a motion to dismiss the complaint is an implied waiver
of the compulsory counterclaim since a counterclaim is
dependent on the main claim and the dismissal of the main
claim will result to the dismissal of the counterclaim .
2. Filing such motion would infer that the court has no power to
adjudicate but by filing such you are invoking the same power
of the court.
Conclusion: You file a motion to dismiss, you’re saying the court cannot
try this case; that the court has no power. And when you file a
counterclaim, you’re claiming that the court has power.
 if the defendant has a ground for dismissal and a compulsory
counterclaim at the same time , defendant must only choose
one remedy.
 If he decides to file a motion to dismiss, he will lose
compulsory counterclaim but if he chooses the counterclaim,
he mat still plead his ground for dismissal as an affirmative
defense.
RULE 6 ,SEC. 7 - “that in an original action before the Regional Trial (Sy-Vargas vs Estate of Ogsos)
Court, the counter-claim may be considered compulsory regardless of the
amount.” If the during the case you won, the
docket fees is a lien on the monetary
 A counterclaim must be within the jurisdiction of the court judgment if DF are not yet fully
both nature and amount. paid.
 If AN ORIGINAL ACTION IS FILED FIRST BEFORE
THE RTC, and defendant filed a monetary counterclaim but
CASE: VILLANUEVA -ONG VS ENRILE
the amount is below the jurisdiction of the RTC, the
counterclaim should still be filed before the RTC because it  It is important to determine the nature of the counterclaim to
was filed as an original complaint. know if there is compliance with the requirements of initiatory
 Compulsory counterclaims are set-up in the same action, pleadings.
otherwise it will be barred.  In order for the court to acquire jurisdiction, permissive
Ex. A filed a case against B, and within the jurisdiction of the Regional counterclaims require payment of docket fees, while
Trial Court. But B files a counterclaim against A at a very lower amount; compulsory counterclaims do not.
let’s say 􀏱􀏬,􀏬􀏬􀏬php which should be under MTC’s jurisdiction. Counterclaim purely for damages and attorneys fees by reason of the
Because in the RTC it should be above 300/400k. Take note, even if it is unfounded suit filed by the respondent, has long been settled as falling
that low, that is still considered as a compulsory counterclaim even if the under the classification of compulsory counterclaim and it must be
court would not have jurisdiction over the amount of the claim if it is pleaded in the same action, otherwise, it is barred.The counterclaim is so
filed as an original action, or an original complaint rather than setting it intertwined with the main case that it is incapable of proceeding
up on the same case where you have that counterclaim. independently. Thus, petitioner’s counterclaims should not be prejudiced
PERMISSIVE COUNTERCLAIM for non-compliance with the procedural requirements governing
initiatory pleadings (including payment of docket fees).
 If it is a claim that is INDEPENDENT of the filing of that
original complaint. WHAT IS THE PERIOD TO ANSWER A PERMISSIVE
 No logical connection with the subject matter of the main COUNTERCLAIM?
claim.
 Within 20 calendar days from service.
 Permissive counterclaims are granted depending on the
discretion of the court. Remember: compulsory counterclaims are not required to be answered
because they are deemed controverted.
Ex. Counterclaim for damages based on culpa aquiliana in a complaint
for collection of a loan. No connection with the plaintiffs claim, CAN YOU FILE A MOTION TO DISMISS WITH
counterclaim for damages based on a quasi-delict in an action for COUNTERCLAIM?
unlawful detainer based on a contract of lease and counterclaim for the
payment of the price of the car is not a compulsory counterclaim in an NO. Because when filing a motion to dismiss ultimately will resutl to
action to recover a piece of land. the dismissal of the case. Thus both will be incmpatible remedies.

Only one remedy must be filed. Either a motion to dismiss of a

COMPULSORY
Shall be contained in the
answer because a compulsory
counterclaim not set in the
same action up shall be barred.
Not an initiatory pleading.
No need for certification
against forum shopping.
Failure to answer a Must be answered by the party
compulsory counterclaim does
not cause for a default
declaration.
Deemed controverted even
without a reply or an answer
to the counterclaim.
General rule:
Docket fees are needed to be
filed under Rule 141 on legal
fees.
Exception: Not required to pay
docket fees (Villanueva -Ong
vs Enrile)
compulsory counterclaim on the ground for dismissal as an
PERMISSIVE affirmative defense in his answer.
May be set up as an independent
action. EFFECT OF THE DISMISSAL OF A COMPLAINT ON THE
COUNTERCLAIM
Will not be barred if not contained
in the answer to the complaint. 1. Complaint dismissed due to an affirmative defense – the
Considered as an initiatory pleading. counterclaim is not dismissed and be allowed to continue and
Should be accompanied by a is without prejudice to the prosecution in the same or separate
certification against forum action of the counterclaim pleaded in the answer.
shopping. 2. Complaint is dismissed because the plaintiff himself filed a
motion to dismiss his complaint under Rule 17, sec. 2 – if
against whom it is interposed or else defendant pleaded a counterclaim before the receipt of a
he will be declared in default within motion for dismissal of complaint, dismissal shall be limited to
a period of 20 days..
the complaint. Without prejudice to the right of the defendant
to prosecute his or her counterclaim in a separate action unless
within 15 days calendar days from notice of the motion of his
preference to have his or her counterclaim resolved in the same
Docket and other lawful fees should action.
be paid. 3. Complaint is dismissed due to the fault of the plaintiff
under Rule 17, sec. 3
Effect of non-payment: 4. Complaint is dismissed based on the merits – based on the
No automatic dismissal provided evidence the plaintiff lost.
that
a. the fees are paid within a  Dismissal of a compulsory counterclaim based on
reasonable period; the merits – the dismissal of the complaint in the
b. there was no intention on merits must contain a declaration that the
the part of the claimant defendant’s counterclaim is meritorious.
to defraud the
government.
21
 Further evidence is not required because evidence to occurrence of the subject matter of
prosecute the main claim are the same pieces of the original action. Can only set up in the same
evidence to prosecute the counterclaim. action filed by the plaintiff in
 Dismissal of a permissive counterclaim based on the first place.
the merits – dismissal of the complaint does not May be asserted against an May also be filed against an
automatically lead to the granting/dismissing a original countercomplainant. original cross-claimant.
counterclaim. Different evidence must be presented No counterclaim against a cross- Cross-claim may arise because
for the counterclaim and main claim. claim because a counterclaim of the counterruizclaim.
against a cross-claim is still a
RULE 6,SEC. 8- CROSS CLAIM cross-claim.

 Claim by one party against a co-party.
 Usually, defendant filing a claim against his fellow
defendant. There could be more than one plaintiff or
defendant.
 Defendant is pinning the main claim against the co-
defendant.
 Arises out of the main claim.
 More than 1 plaintiff or defendant.
Sec. 8 “arising out of the transaction or occurrence that is the subject
matter either of the original action”
 Meaning the cross-claim arises because of the complaint, the
main claim.
Ex. A filed a case against B and C.
B filed a cross-claim against C. C
filed a counterclaim against B. =
NOT allowed because technically
it is still a cross-claim because it
was filed against the same party.
SITUATION: There can be a cross-claim against a counterclaim BUT
there is no counterclaim against cross-claim of a co-party.
A and B filed a case for collection against C. C filed a counterclaim for
damages against A and B for filing a groundless suit. A got scared
because C’s counterclaim appeared to be meritorious. A can file a cross-
claim against B and contend that only B is liable under the counterclaim.

Example: Maja and Sarah filed a case against Pia and Bangs. Bangs filed CROSS-CLAIMANT CANNOT CLAIM MORE RIGHTS THAN
a cross-claim against Pia. THE PLAINTIFF

Sec. 8 “arising out of the transaction or occurrence that is the subject
matter either XXX of a counterclaim therein
Example: Maja and Sarah filed a case against Bangs. Bangs filed a
counterclaim against them. Maja filed a cross-claim against Sarah
because of the counterclaim of Bangs
In the example above, it seems one of the plaintiffs became scared of the
counterclaim of the defendant. Now, Maja pins the blame of the
counterclaim of the defendant to her co-plaintiff.
WHAT DOES CROSS-CLAIM COVER?
“All of the original claim” – whole amount is claimed.
“or part of the original claim” – cross claim is not for the full amount.
 This means that a cross-claimant cannot ask a higher
amount than what was prayed for by the plaintiff because a
cross-claim arises out of the main action and it is wrong that
the main action has lesser amount prayed for than the cross-
claim.
CASE: SPS. MANGARON VS HANNA VIA DESIGN
 Under the principle of unjust enrichment , the registered owner
who shouldered such liability has a right to be indemnified by
means of a cross-claim as against the actual employer of the
employee.
RULE 6,SEC. 9 COUNTER-COUNTERCLAIMS & COUNTER-
CROSSCLAIMS

COUNTERCLAIM CROSS-CLAIM COUNTER-COUNTERCLAIMS

Only arises because of the filing of the main complaint
Filed against the opposing party. Filed against a co-party.
(Defendant files against a plaintiff (defendant against co-
because of the complaint of the defendant)
latter)
Any claim against a co-party is
always a cross-claim.
Distinct suit. Auxiliary suit.
An independent of the main Dependent upon the
action. original/main action. Only
arises unless the original
Dismissal of the main action does complaint was filed in the first
not dismiss the counterclaim. place.
Dismissal of the main claim
dismisses the cross-claim.
If the main suits is dismissed,
the cross-claim will be
dismissed
May be permissive or compulsory. Must arise out of the same
transaction or occurrence that is
If permissive it need not arise out the subject matter of the original
of the same transaction or action or counterclaim.
22
A: It is a counterclaim asserted against an original counterclaimant.
For example, A filed a case against B. B filed a counterclaim against A. A
filed a counterclaim against B on the basis of that counterclaim.
COUNTER-CROSSCLAIMS
A: A counter-crossclaim is a cross-claim filed against an original cross-
claimant.
Example: Pia filed a case against Yen and Yam. Yen filed a cross-claim
against Yam based on the main claim. Yam then files her own cross-claim
against Yen.
RULE 6,SEC. 2 – REPLY
“An answer may be responded to by a reply only if the defending party
attaches an actionable document to the answer.”
WHAT IS A REPLY? RULE 6, SEC. 10
“A reply is a pleading, the office or function of which is to deny, or allege
facts in denial or avoidance of new matters alleged in, or relating to, said
actionable document.”
RULES TO REMEMBER: It is a pleading which is to deny Answers a claim in defense.
or allege facts in denial or
1. Reply is purely a responsive pleading and optional. avoidance of new matters
2. A reply is a response of the plaintiff to the defendants answer. alleged in or relating to the
 You cannot include a reply with counterclaim. actionable document.
 Reply simply responds and not set-up. Filing of a reply is not allowed Failure to answer a compulsory
except when there is an counterclaim is not a cause for a
3. If the party does not file a reply given the new matters alleged actionable document. default declaration .
the answer are deemed controverted. (correlate it with
compulsory counterclaims an answer is not required because Failure to answer a permissive
the allegations are automatically controverted by the counterclaim may result to be
declared in default as to the
complaint.
counterclaim.
4. If the plaintiff wants to interpose any claims arising out of the
Without a reply the new matters No automatic controversion in a
new matters alleged, such claims must be set forth in an alleged in the answer are permissive counterclaim.
amended or supplemental complaint. automatically controverted.
5. Reply cannot contain a counterclaim because a reply is the last There is controversion in a
pleading. compulsory counterclaim.
6. There are 2 occasions where a reply is mandatory (VELUZ A reply is not supposed to be Reply can be filed in response to
VS CA). replied but is only allowed in a an answer to a counterclaim which
 In cases where the answer alleges the defense of rejoinder only if the reply pleads pleads an actionable document.
usury in which case a reply under oath is required an actionable document.
otherwise the allegation of usury is deemed
admitted
RULE 6, SEC. 11 3RD OR 4TH, 5TH ETC. PARTY COMPLAINT
 In cases where the answer is based on an
actionable document in which case a verified  There MUST BE A LEAVE OF COURT
reply is necessary otherwise the genuineness and  Defending party files against a person not a party to the action
due execution of said actionable document is for contribution, indemnity. Subrogation or any other
generally deemed admitted. relief.
 What is an actionable document? Rule  When shall a 3rd party complaint be denied and the court will
8, sec. 7 require the defendant to institute a separate action:
 “An action or defense is based upon a a. The Third (fourth, etc.)-party defendant
written instrument or document, the cannot be located within thirty (30)
substance of such instrument or calendar days from the grant of such leave
document shall be set forth in the b. Matters extraneous to the issue in the
pleading, and the original or a copy principal case are raised – issues are not
thereof shall be attached to the pleading related you are just adding an extra
as an exhibit which shall be deemed t o controversy to the case that should not
be a part of the pleading.” have been brought in the first place
 The very foundation of the cause of because it has no relevance to the main
action or defens claim.
c. The effect would be to introduce a new
Ex. Promissory note is an actionable document in a case for collection of
and separate controversy into the action.
loan for the plaintiff. Receipt is an actionable document for a defendant.
 A 3rd party complaint is the same with a cross-claim and
How to deny an actionable document? Rule 8. Sec 8 under oath. compulsory counterclaim.

General rule: The only time a reply can be filed is when the answer
attaches an actionable document.
 In the event of an actionable document attached to the reply,
the defendant may file a rejoinder if the same is based solely
on an actionable document. Rule 6, sec. 10
 Complaint attaches an actionable document, you need to file an
answer under oath FAILURE TO DO SO you are deemed to
admit the genuineness and due execution of that actionable
document.
 If an answer, attaches an actionable document, you have to file
a reply under oath FAILURE TO DO SO you are deemed to
admit the genuineness and due execution of that actionable
document attached to the answer.
 If a REPLY attaches an actionable document you have to file a
rejoinder, but your rejoinder must only be on that actionable
document, nothing else.
 If the reply of the plaintiff is also based on an actionable
document, then the defendant can file a rejoinder if he wants to
RULE 6,SEC. 12 BRINGING NEW PARTIES TO THE CASE
contradict that actionable document.
REPLY ANSWER TO
COUNTERCLAIM
Example: A and B, Solidary debtors, borrowed money from C.
Remember that a solidary creditor can demand full satisfaction of
the obligation from anyone of the solidary debtors. U=In this
situation, C filed a case against A only.
Q: Do you need to implead B? Is B an indispensable party?
A: No need. In fact, what was only stated is only a necessary
party, actually not even a necessary party nor is he
indispensable. Complete relief can be afforded to the plaintiff
by just going after one of the several solidary debtors. A
therefore, can file a third-party complaint against B for
contribution.
*Remember contribution, indemnity, subrogation, or any other
relief in respect to his opponents claim. He can file a third-
party complaint against his fellow solidary debtor, so that in
this case at least, B can already contribute.
 Only pertains to necessary parties. If indispensable, they must
be brought in the case.

23
  Can only be included if the court can acquire jurisdiction if not
the case will continue.
 This is a matter of discretion on the part of the court.
RULE 7, SEC. 1 CAPTION
In the caption contains:
1. Name of the court – to be able to file the case to the proper
court
 Failure to comply: case may go to a court which
does not have any jurisdiction. Case will be
dismissed.
2. Title of the action – indicates the name of parties (both in the
original complaint or petition).
 Enables the court to determine who will be issued
processes like summons.
 Failure to comply: failure to name or include a party
would mean that jurisdiction over the unnamed pr
improperly designate part will not be required.
3. Docket number if assigned – it is only assigned if a complaint
was already filed.
 For easy archiving and retrieval. Also indicates that
the case was already been officially filed.
 Failure to comply: not fatal.
CASE: SPS. GENATO VS VIOLA
 It is not the caption of the pleading but the allegations therein
that are controlling.
 The non-inclusion of one or some of the names of all the
complainants in the title of a complaint, is not fatal to the case,
provided there is a statement in the body of the complaint
indicating that such complainant/s was/were made party to
such action.
 The caption of the complaint is not determinative of the
nature of an action and in case of conflict, the body of the
pleading will govern.
RULE 7, SEC. 2 BODY
 Body contains designation, allegation of the party’s
claims or defenses, relief prayed for and date of pleading.
a. Paragraphs – must be numbered to be readily identified.
b. Headings- when two or more causes of action are joined
in one complaint, the statement of the first shall be
prefaced by the words "first cause of action," of the
second by "second cause of action", and so on for the
others.
c. Relief- a party who pleads is required to state the specific
relief or reliefs he expects to obtain from the court . The
pleader also has the option to add a general prayer for
such further or other relief as may be deemed just or
equitable.
 In case of conflict between the enumerated reliefs sought
and those elaborated in the body of the pleading, it would
be the latter that prevails.
CASE: HEIRS OF JUSTIVA VS CA
 Failure to specify a relief is excused if there is a general prayer.
IMPORTANCE OF A PRAYER:
24
1. Examining the prayer, the court would have a general idea
about what reliefs the pleader is asking for and if the court is
empowered to grant such reliefs.
2. Prayer of the complaint would not be determinative of the
nature of the action.
IMPORTANCE OF DATES: Initiatory or Responsive pleadings, is
required to be dated for the purpose determining compliance with
prescriptive and reglementary periods.
 In case of conflict between the stated date of the pleading
and the date of filing, it is the date of filing that
determines whether the pleading was filed on time.
RULE 7, SEC. 3 SIGNATURE AND ADDRESS
 Every pleading must be signed by the party or counsel
representing him.
 The address must be stated but it should not be a post
office box.
 Signature of counsel constitutes a certificate by him that
he has read the pleading
 Unsigned pleading produces no legal effect. It does not
toll the period. It may be remedied if it shall appear that
the same was due to mere inadvertence and not intended
for delay and belief there is good ground to support it;
and that it is not interposed for delay.
 Counsel (and or its law firm) who deliberately files an
unsigned pleading shall be subject to appropriate
disciplinary action and reduces the pleading to a mere
scrap of paper which does not toll the running period.
Sanction may refer to: non-monetary directive or
sanction, order to pay penalty in court
 Counsel’s duty to sign a pleading cannot be delegated to
any person but it can be delegated to another lawyer.
LAW FIRM’S LIABILITY IN VIOLATION OF SEC. 3
GENERAL RULE: Law firm shall be held jointly and severally liable
by the violation committed by its partner, associate or employee.
EXCEPTION: Lawyer acted on his own in a rouge manner that is not
reflective of the law firm’s traditional practice.
Note: Any monetary penalty imposed upon the law firm or lawyer cannot
be passed on to the client except when the mistakes of counsel is binding
on his client.
RULE 7, SEC. 4 VERIFICATION
 Pleadings need not be under oath to be verified.
 A pleading required to be verified which contains a verification
based on “information and belief,” or upon “knowledge,
information and belief,” or lacks a proper verification, shall be
treated as an unsigned pleading
 Under AM NO. 19-10-20-SC
Pleadings can be verified by an affidavit of an affiant duly
authorized to sign verification. It can be in the form of a SPA or
secretary’s certificate should be attached in the pleading and must
alleged the following:
1. Allegations are true and correct and based on
personal knowledge or authentic documents.
2. Pleading is not filed to harass or cause unnecessary
delay or increase the cost of litigation.
3. Factual allegations have evidentiary support even
after reasonable opportunity for discovery.
  Verification is for the purpose of securing that the
allegations are true and not the product of the imagination
or speculation.
1. Seeks to forestall any perjury
2. Avoid filing baseless or groundless suits
3. Ensure that what will be brought before the court is based
on personal knowledge or authentic records.
 Pleading not verified is not fatal because the court may
order the correction of the pleading verification or may act
on the pleading although not verified if there is strict
compliance of the rules.
HOW IS PLEADING VERIFIED?
a. Pleading is verified by an affidavit under oath.
b. Signed by a duly authorized affiant.
c. If affiant violated the oath he will be liable for perjury.
d. The party need not sign the pleading but maybe signed by
the authorized affiant.
WHAT IS PERSONAL KNOWLEDGE?
 Testimony must have been a product of a person’s own
perception rather than mere recollection of what was merely
related to him by another.
 Should not be secondhand information.
 Because if it was based on hearsay or secondhand knowledge
the person who will testify will not be subject to perjury.
REVIEW: Allegations contained in the pleading must be true and correct
of a party’s personal knowledge and not just on information or belief.
Verification is based on authentic records as an alternative mode of
verifying a pleading.
CASE: MAROHAMSALIC VS COLE
Marohomsalic avers that the allegations in his pleading were based on
authentic records. He argues that such was substantial compliance with
the rule on verification. There was no further need for him to state in the
verification that the allegations were also based on his personal
knowledge.
It is important that in a verification petitioner must state that:
(1) his allegations in the petition were true and correct of his personal
knowledge and
Ex. Maja sued Pia for breach of contract and rescission because Pia sold
the subject matter of their contract to another person. Pia could no
longer deliver the object of the sale. Maja’s evidence consists in a copy of
a deed of sale executed between Pia and Bangs and she made it an
attachment to her complaint. What should the verification in Maja’s
complaint contain? Because the basis of her allegation is a document,
her verification should state that the allegations in her complaint are true
and correct based on an authentic document. Conversely, if Maja’s
allegations are not based on a document but on personal knowledge that
Pia sold the property to another person, her verification should reflect
this fact. Her verification should thus state that the allegations in her
complaint are true and correct based on her own personal knowledge.
(2) if the petition relied on documents and records attached to the
petition, that his allegations were based on records whos authenticity
he warranted.
Note: If the attached documents are mere photocopies it is not a correct
verification.
Ex. Maja sued Pia for breach of contract and rescission because Pia sold
the subject matter of the contract to another person. Pia could no longer
deliver the object of the sale. Maja’s evidence consists in a copy of a deed
of sale executed between Pia and Bangs and she made it an attachment to
25
her complaint. However, she attached a mere machine copy of the deed of
sale which was not even signed by Pia and the second buyer. Maja
verified the complaint by saying the allegations therein are ture and
correct based on authentic records.
Was there a proper verification? It appears that there is none because it
is not an original copy and it was not even signed. What Maja should
have done was to verify the pleading based on personal knowledge if she
had knowledge of the second sale.
CASE: UY VS WORKMAN’S COMPENSATION COMMISSION
A verification by the attorney is adequate compliance with Rule 7, Sec. 6,
it being presumed that facts by him alleged are true to his knowledge in
view of the sanctions provided in Sec. 5 of the Rules of Court.
CASE: TORRES VS SPECIALIZED PACKING DEVELOPMENT
(verification made by several parties)
Two signatories are unquestionably real parties in interest, who
undoubtedly have sufficient knowledge and belief to swear to the truth of
the allegations in the Petition. This verification is enough assurance that
the matters alleged therein have been made in good faith or are true and
correct, not merely speculative.
CASE: AGDEPPA, ET AL vs HEIRS OF BONETE
A liberal construction of the Rules is apt in situations involving excusable
formal errors in a pleading, as long as the same do not subvert the essence
of the proceeding, and they connote at least a reasonable attempt at
compliance with the Rules.
CASE: SARI-SARI GROUP OF COMPANIES VS PIGLA KAMAO
When circumstances warrant, the court may simply order the correction
of unverified pleadings or act on them and waive strict compliance with
the rules in order that the ends of justice may thereby be served.
Moreover, many authorities consider the absence of Verification a mere
formal, not jurisdictional defect, the absence of which does not of itself
justify a court in refusing to allow and act on the case.
CASE: BENGUET CORP. vs CORDILLERA
Verification of a pleading is formal, not jurisdictional.9 Such requirement
is a condition affecting the form of the pleading; non-compliance with
this requirement does not necessarily render the pleading fatally
defective.
RULE 7, SEC. 5 – CERTIFICATION AGAINST FORUM-
SHOPPING
 Plaintiff must certify under oath in the complaint that:
(a) that he has not theretofore commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial agency
and, to the best of his knowledge, no such other action or claim is
pending therein;
(b) if there is such other pending action or claim, a complete statement of
the present status thereof; and
(c) if he should thereafter learn that the same or similar action or claim
has been filed or is pending, he shall report that fact within five (5) days
therefrom to the court wherein his aforesaid complaint or initiatory
pleading has been filed.
 Authorization of the affiant whether in a SPA or secretary’s
certificate should be attached to the pleading.
 Failure to comply is not curable by amendment and shall be the
cause of dismissal without prejudice .
  Submission of a false certification or non-compliance with any unauthorized pleading, this Court never validly acquired jurisdiction over
of the undertakings shall be indirect contempt of court without the case. The Petition therefore must be dismissed.
prejudice to administrative or criminal actions.
 If the lawyer or party deliberately committed forum-shopping: VERIFICATION CERTIFICATION
1. it shall be a ground for summary dismissal with prejudice PURPOSE: Secure an assurance To prevent a party to pursue
2. constitutes direct contempt that the allegations of the simultaneous remedies for it is
3. cause for administrative sanctions. petition have been made in good detrimental to the judicial
faith or are true and correct and procedure.
What is forum-shopping? (Polanco vs Cruz) not merely speculative.
Party verifies that he has read the Party certifies under oath that he
a) An adverse decision in one forum, or in anticipation pleading and that the allegations has not commenced any action or
thereof, a party seeks a favorable opinion in another forum therein are true and correct of his filed any claim involving the
through means other than appeal or certiorari. personal knowledge or based on same issues in any court, tribunal
b) Forum-shopping exists when two or more actions involve authentic records. or quasi-judicial agency and, to
the best of his knowledge, no
the same transactions, essential facts, and circumstances;
such other action or claim
and raise identical causes of action, subject matter and
pending therein
issues.
General rule: Pleadings are not Applies to complaints and other
c) Elements of litis pendencia are present or where a final required to be verified. initiatory pleadings which include
judgement in one case will amount to res judicata in Exception: Verification is only the original civil complaint,
another-whether in the two or more pending cases, there is applied if the law or rules state counterclaim, cross-claim, third
an identity of (a) parties (or at least such parties as that a pleading must be verified. (fourth, etc.) party complaint or
represent the same interests in both actions), (b) rights or complaint in intervention, petition
causes of action and (c) reliefs sought. or application wherein a party
asserts his claim for relief.
What are the elements of forum shopping? (Chavez vs CA) Non-compliance or defect : Non-compliance or defect :
does not necessarily render
A party initiated two or more actions in separate tribunals, grounded on pleading fatally defective. Not curable by its subsequent
the same cause, trusting that one or the other tribunal would favorably submission or correction unless
dispose of the matter. court may order its submission there is a need to relax the rule on
or correction or act on the the ground such that strict
ELEMENTS: pleading if the circumstances compliance of “substantial
warrants. compliance” or presence of
1) identity of parties, or at least such parties as would represent the same “special circumstances or
interest in both actions; Strict compliance of the rules compelling reasons. “
may be dispensed with so that
(2) identiy of rights asserted and relief prayed for, the relief being the ends of justice may be
founded on the same facts; and served.
May be executed by a party or General rule: must be executed
(3) identity of the two preceding particulars such that any judgement counsel by the party-pleader, not by his
rendered in the other action will, regardless of which party is successful, counsel.
amount to res judicata in the action under consideration.
Exception: For reasonable or
“The above cases are similar only in that they involved the same parties justifiable reasons, the party-
and Fidela sought the placing of the properties under receivership in all of pleader is unable to sign, he must
them. But receivership is not an action. It is but an auxiliary remedy, a execute a Special Power of
mere incident of the suit to help achieve its purpose. Consequently, it Attorney designating his counsel
cannot be said that the grant of receivership in one case will amount to res of record to sign on his behalf.
judicata on the merits of the other cases. The grant or denial of this Substantial compliance: General rule: Must be signed by
provisional remedy will still depend on the need for it in the particular all the plaintiffs or petitioners in a
action.” One who has ample knowledge case; otherwise, those who did
to swear to the truth of the not sign will be dropped as
REQUIREMENT OF CERTIFICATION MAY BE SIGNED BY A allegations in the complaint or parties to the case.
REPRESENTATIVE petition signs the verification,
and when matters alleged in the Exception: For reasonable or
Provided that authorization of the affiant to act on behalf of a party, petition have been made in good justifiable reasons when all the
whether in the form of a secretary’s certificate of a board resolution faith or are true and correct. plaintiffs or petitioners share a
authorizing a particular person to sign or special power of attorney, common interest and invoke a
should be attached to the pleading. Thus, verification need not be common cause of action or
signed by all the parties. defense, the signature of only one
of them in the certification is
enough.
CASE: BANCO FILIPINO SAVINGS VS BSP

When petitioner was placed under receivership, the powers of its Board
of Directors and its officers were suspended. Thus, its Board of Directors
could not have validly authorized its Executive Vice presidents to file the
suit on its behalf. The petition not having been properly verified, is
considered an unsigned pleading. A defect in the certification of non-
forum shopping is likewise fatal to petitioner’s cause. Considering that
the Petition was filed by signatories who were not validly authorized to
do so, the Petition does not produce any legal effect. Being an
CASE: CAVILE VS HEIRS OF CLARITA CAVILE
General rule: Certificate of non-forum shopping must be signed by all the
petitioners or plaintiffs in a case and the signing by only one of them is
insufficient.
Exception: rules on forum shopping, which were designed to promote
and facilitate the orderly administration of justice, should not be

26
interpreted with such absolute literalness as to subvert its own ultimate
and legitimate objective.
rule of substantial compliance may be availed of with respect to the
contents of the certification.
the execution by Thomas George Cavile, Sr. in behalf of all the other
petitioners of the certificate of non-forum shopping constitutes
substantial compliance with the Rules. All the petitioners, being relatives
and co-owners of the properties in dispute, share a common interest
thereon. They also share a common defense in the complaint for partition
filed by the respondents. Thus, when they filed the instant petition, they
filed it as a collective, raising only one argument to defend their rights
over the properties in question.
merits of the substantive aspects of the case may be deemed as "special
circumstance" for the Court to take cognizance of a petition for review
although the certification against forum shopping was executed and
signed by only one of the petitioners.
CERTIFICATION OF NON-FORUM SHOPPING FOR
CORPORATIONS:
San Miguel Bukid Homeowners Association vs City of Mandaluyong
-> if the real party-in interest is a corporate body, an officer of the
corporation can sign the certification against forum shopping so long as
he has been duly authorized by a resolution of its board of directors.”
Espiritu et al vs Petron Corporation -> Certification of non-forum
shopping should be signed by all petitioners. Exception is if there
substantial compliance under justifiable circumstances. One of these
circumstances is where the petitioners filed a collective action in which
they share a common interest in its subject matter or raise a common
cause of action. In such a case, the certification by one of the petitioners
may be deemed sufficient.
Bacolor vs Makabali Memorial Hospital -> Verification/Certificate of
Non-Forum Shopping with Undertaking executed by petitioners' counsel
is not valid.
certificate against forum shopping must be signed by the party and in
case his counsel signs the same on his behalf, the counsel must be armed
with a special power of attorney. Exception to this is the concept of
"substantial compliance". The verification requirement is deemed
substantially complied with when a person who has sufficient knowledge
to swear to the truth of the allegations in the complaint or petition signs
the verification, and matters alleged therein have been made in good
faith or are true and correct. Thus, there is substantial compliance if at
least one of the petitioners makes a proper verification.
In this case, three out of six petitioners signed three separate verifications
appended to the Petition for Certiorari. Their signatures are sufficient
assurance that the allegations in the Petition were made in good faith, or
are true and correct. Thus, there is substantial compliance with the
verification requirement. On the other hand, as a rule, the certificate
against forum shopping must be signed by all plaintiffs or petitioners,
otherwise, those who did not sign will be dropped as parties to the case.
Under reasonable or justifiable situations, such as when the plaintiffs or
petitioners share a common interest and invoke a common cause of
action or defense, the signature of one of them in the certificate against
forum shopping is considered substantial compliance with the rules.
The Court, nevertheless, holds that there are justifiable reasons for the
relaxation of the rules on the filing of a certificate of non-forum shopping
and that the certificate against forum shopping signed by three out of six
petitioners suffices. Specifically, petitioners' cause of action revolves on
the same issue, that is, respondents illegally dismissed them under similar
circumstances. They were all resident physicians who were purportedly
1) re-employed by the Hospital even after the expiration of their
respective one year contracts; 2) forced to resign and offered to be re-
engaged as fixed term employees but declined; 3) demoted; 4) accused of
27
violations of the Hospital rules and regulations; and, 5) dismissed. The
requirement of strict compliance with the rules on filing of certificate
against forum shopping highlights the mandatory character of the
submission of such certificate. However, this mandatory requirement
allows substantial compliance provided that there are justifiable
circumstances for the relaxation of the rules.
Uy vs CA -> certification against forum shopping is a peculiar and
personal responsibility of the party, an assurance given to the court or
other tribunal that there are no other pending cases involving basically
the same parties, issues and causes of action. It must be executed by the
party-pleader, not by his counsel. If, however, for reasonable or
justifiable reasons, the party pleader is unable to sign, he must execute a
Special Power of Attorney (SPA) designating his counsel of record to sign
on his behalf.
Digital Employees Union vs Digital Telecoms Philippines -> the Court
recognized the authority of the President of a corporation to sign a
verification and certification of non-forum shopping without authority
from the board of directors. The recognition of the authority of the
president of a juridical entity (whether a corporation or a union) to sign
verifications and certifications without prior board approval is based on
the role and function of a president within the juridical entity, such that
the president is in a position to verify the truthfulness and correctness of
the allegations in the petition.
Mid-Pasig Land Dev. Corp. vs Mario Tablante -> failure to attach the
Secretary's Certificate, attesting to General Manager Antonio Merelos's
authority to sign the Verification and Certification of Non-Forum
Shopping, should not be considered fatal to the filing of the petition.
General Rule: individual corporate officer cannot solely exercise any
corporate power pertaining to the corporation without authority from the
board of directors.
Exception (case to case basis) : following officials or employees of the
company can sign the verification and certification without need of a
board resolution: (1) the Chairperson of the Board of Directors, (2) the
President of a corporation, (3) the General Manager or Acting General
Manager, (4) Personnel Officer, and (5) an Employment Specialist in a
labor case.
Palao vs Florentino -> when they filed their complaint in the MTC, they
impleaded petitioner Asuncion as party defendant in his capacity as the
Acting General Manager of petitioner PPST A. As such officer, he was
authorized to sign a verification and certification of non-forum shopping.
However, he was no longer the Acting General Manager when petitioners
filed their petition in the CA, where he was in fact referred to as "the
former Acting General Manager. " Thus, at the time the petition was filed
before the CA, petitioner Asuncion's authority to sign the verification and
certification of non-forum shopping for and in behalf of petitioner PPSTA
ceased to exist. There was a need for the board of directors of petitioner
PPS TA to authorize him to sign the requisite certification of non-forum
shopping, and to append the same to their petition as Annex thereof.
EFFECTS OF VIOLATION OF SEC. 5
How to violate section 5?
a. Failure to comply with the requirements in general
HOW?
1. Fails to submit a certification against forum shopping;
2. Fails to execute it under oath;
3. Fails to attach the requisite authorization in case someone other than You are allowed to file a motion
the party signs it; to dismiss on the ground of litis
pendentia.
Where there is another person other than the claiming party who signs the Only one action will be All actions thus filed can be
certification. dismissed. summarily dismissed.

4. Otherwise submits an incomplete or defective certification. Wherein The filing of one is a ground to
the contents under the law were not stated in the certificate. dismiss the others
Does not constitute contempt of Constitutes contempt whether
EFFECT: The error is simply as to form. court direct or indirect
Not a ground for disciplinary A ground for disciplinary action
Failure to comply shall not be curable by mere amendment of the action against the lawyer who against the lawyer.
complaint of other initiatory pleading but shall be cause for the dismissal assisted the party.
of the case without prejudice, unless otherwise provided, upon motion The actions need not be filed by The actions are necessarily filed
and after hearing. one party. by one party only.
b. Submission of a false certification or non-compliance with any It is possible there is a different there can be litis pendentia
of the undertakings in the certification party who filed. because one party filed, the
plaintiff filed, and then the
HOW? defendant also filed a different
case. Same parties but not
 Certifies against forum shopping but in fact there is another initiated by the same person:
case pending between the same parties for the same cause; different complainant in one and
 Reveals the pendency of a similar action but does not report its different plaintiff in the other.
status;
 Learns of a similar action but fails to report it within five (5)
calendar days from obtaining knowledge.

EFFECT: The party shall be cited in indirect contempt of court, without

prejudice to the corresponding administrative and criminal sanctions (i.e.,
for perjury).
RULE 8 SEC. 1
Certify against forum shopping but in truth and in fact there is a similar
case pending between the same parties for the same cause. So you lied  Every pleading must be in a methodical and logical form.
before the court, so that would be false testimony, perjury. He will be
 Plain, concise and direct statement of the ultimate facts which
liable for perjury under Art. 183 of the RPC.
the party relies for his claims or defense.
c. Willful and deliberate forum shopping.  If the cause of action or defense is based on law , the important
provisions thereof and its applicability to the party’s case shall
EFFECT: Such acts shall be ground for summary dismissal with be clearly and concisely stated.
prejudice to refiling and shall constitute direct contempt, as well as a  The party must allege the specific facts that make
cause for administrative sanctions against the lawyer who participated the law applicable to his particular cause of action or
in the willful and deliberate forum shopping. defense.
 Example: if the plaintiff’s cause of action is based
Submission of a false Willful and deliberate forum on acquisitive prescription, he must state in his
certification of non-forum shopping pleading what specific provision of law he derives
shopping his rights from and state precisely how this law
Possible administrative and Possible administrative sanctions applies to him.
criminal sanctions against the counsel
 the defendant’s defense is based on extinctive
Not a ground for summary A ground for summary dismissal.
prescription, in addition to stating that law relied
dismissal.
upon, he must also state how this law applies in his
Constitutes indirect contempt Constitutes direct contempt.
only. particular situation. As the party litigant, have to tell
an act of disobedience. an act of disrespect to the court. the court precisely why you think that law applies to
you and you do that by presenting facts.

EFFECTS OF FORUM SHOPPING: Rule 2 ,sec. 4 KINDS OF FACTS IN PLEADINGS:

“If two more suits are instituted on the basis of the same course of action,
the filing of one or a judgment on the merits in any one is available as a
ground for the dismissal of the others.” = the filing of one that is litis
ULTIMATE FACTS:
pendentia, judgment on the merits, that’s res judicata, the case that was
filed later in most cases will be dismissed.
CASE: City of Taguig vs City of Makati -> a ground for summary
dismissal of both initiatory pleadings, without prejudice to the taking of
appropriate action against the counsel or party concern.
LITIS PENDENTIA FORUM SHOPPING
ground for a motion to dismiss a ground to dismiss under Rule 7
under Rule 15 Section 12. in relation to Rule 17 section 3,
28
1. Ultimate facts (factum probandum)
2. Evidentiary facts ( factum probans)
 These are the principal facts where the party’s cause of action
or defense is dependent.
 Ultimate facts are hypothetical that is why these facts are
needed to be proven by the evidentiary facts.
 Elements of a cause of action are ultimate facts.
 Essential to ones cause.
 Omission renders the cause of action or defense incomplete.
 Remember the elements of a cause of action. If anything is
missing then there is insufficient complaint.
HOW DO YOU DETERMINE WHETHER OR NOT THE FACT
THAT YOU’RE GOING TO ALLEGE IS FACTUM PROBANDUM
OR ULTIMATE FACTS? HOW DO WE DETERMINE IF A FACT
IS ESSENTIAL OR NOT TO A CAUSE OF ACTION?
If the omission of such statement in a pleading renders the cause of
action or defense incomplete, or by reason of such omission, an element
of the pleaders cause of action disappears, then it must be a statement of
ultimate fact.
EFFECT OF OMMISSION OF AN ULTIMATE FACT:
The complaint is susceptible to dismissal on the affirmative defense that
the plaintiff states no cause of action or there is failure to state the cause
of action. (Rule 8, Sec. 12(a)(4))
HOW DOES IT BECOME AN AFFIRMATIVE DEFENSE?
It is an affirmative defense when the pleading asserting a claim states no
cause of action.
EVIDENTIARY OR INTERMEDIATE FACTS
 Facts that are necessary for determining ultimate facts.
 Facts where the conclusion of ultimate facts are based.
AMENDED RULES (A.M. No. 19-20-20-SC)
“Lay your cards on the table no unfair surprises”
Every pleading shall now contain a plain, concise, and direct statement of
the ultimate facts and include the evidence (Evidentiary facts) on which
the party pleading relies for his or her claim, or defense, as the case may
be.
RULE 8 ,SEC. 1 IN RELATION TO RULE 7, SEC. 6
The contents mentioned under Rule 7 ,sec. 6 must be included in the
pleading. (Names of witnesses, judicial affidavits and documentary and
object evidence)
For Judicial affidavits:
Judicial affidavits means that the entire testimony on direct examination,
that takes too much time, is prepared in advance in the form of judicial
affidavit in question-and-answer form.
 Under the judicial affidavit rule, if you have documents or
objects that you want to present as part of your evidence, you
also need to attach that in your judicial affidavit; you identify it
and attach it to your judicial affidavit.
 Under Rule 7, Section 6, the judicial affidavit of your
witnesses should already be attached to the pleading. The
effect of that is you can no longer file a complaint as soon as
you could and then find witnesses later on or evidence.
 When you file your complaint, for example, you have to
include already your judicial affidavits. So, you need to prepare
everything. You should already have all of your evidence.
 In fact, in letter C, “Documentary and object evidence in
support of the allegations” should already be in the pleading.
You need to be prepared already. Now, if you are the
defendant, before you file your answer, you should already
have your judicial affidavits because this Rule 7, Section 6
does not distinguish; it is the same for both plaintiff and
defendant because what is written there is “party’s claim or
defenses”.
FACTUM PROBANDUM FACTUM PROBANS
Ultimate facts Evidentiary facts
Proposition (or facts) that are Facts that evidence the
needed to be established. proposition.
Hypothetical Already existing
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The end to be achieved The means to achieve the end
Under the formal rule only Evidentiary facts are omitted.
ultimate fact are required to be
stated in the pleadings
EXAMPLE:
 Factum Probandum - Defendant has debt.
 Factum Probans – the promissory note evidencing the debt of
defendant.
PRINCIPLES TO REMEMBER:
a. Every evidentiary question involves the relationship
between the factum probandum and factum probans.
 Have to prove material allegations with evidence.
 In order to prove guilt, you have to present evidence.
b. The factum probandum therefore are the facts you need to
prove to prevail in an action. They are the facts in issue in a
case. The relationship between the factum probandum and
factum probans is described as: RELEVANCY
TYPES OF DEFENSES
A. Defenses as to tenor of the allegation.
Negative Defense (Defense of denial)
 Denying the allegations.
 “It is not me” ; “I did not incur the alleged action”
Affirmative Defense (Defense of confession and avoidance)
 “Yes, I did indeed incur an obligation but I’m still not liable
because I paid that already.”
B. Defenses according to basis
Factual Defense
 Defense based purely on facts.
Legal Defense
 Defense relied on is based on law, the pertinent provisions
thereof and their applicability to him or her shall be clearly and
concisely stated. (Rule 8 ,sec. 1)
 It is not enough for a party to allege the existence of a law. He
has to allege as well how that law is applicable to him. “
 The applicability of the law therefore requires a party to make
allegations of facts that make the law particularly applicable to
his case.
 It is not enough for Sarah to simply allege the existence of
Article 1142. She must clearly and concisely state how this
provision is applicable to her. She has to state the facts that
support the conclusion that the action has prescribed.
 No purely legal defense because the allegation of the
applicability of a law must be supported by factual allegations
MATTERS THAT ARE OMITTED FROM THE PLEADINGS
1. FACTS WHICH ARE PRESUMED BY LAW.
 Even if you do not allege that presumption, your
cause of action would still be complete.
 If a presumption is actually applicable, the burden of
proof is shifted from the party who alleges a fact to
the one defending. Instead of the plaintiff needing to
prove presumption, it is the opposite now; it’s the
defendant who must prove that it is not true.
Example of presumption:
Article 2185. Unless there is proof to the contrary, it is presumed that a
person driving a motor vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation. (n)
A drove a motorcycle, and he hit someone. At the time the accident
occurred, A was not negligent. In fact, it was the plaintiff that was at
fault, causing the collision. However, A was not wearing a helmet. That is
a violation of a traffic regulation. Under the Uniform International on
Operation of Motor Vehicles, in the highways or thoroughfares,
motorcycle riders must wear helmets. That is a matter of international
law. If you do not wear a helmet while riding a motorcycle, you are
deemed to have violated that traffic violation. So, now you have a
presumption of negligence.
By virtue of Article 2185, the plaintiff doesn’t have to prove that the
defendant was negligent. The only thing that the plaintiff has to prove is
that at the time of the mishap, the defendant was violating a traffic
regulation. The law will then step in and presume that the defendant is
negligent.
All that the plaintiff needs to allege is the fact that gives rise to the
presumption that the defendant was violating a traffic regulation at the
time of the mishap. Even if the plaintiff does not state the fact presumed
by law􀍶that the defendant is negligent􀍶his allegations would not be
affected at all. You don’t need to cite a legal presumption or facts that are
presumed by law. However, because the law presumes negligence on the
part of the defendant, the defendant would now have the burden of
proving that he was not negligent. He must allege in his pleading
evidentiary facts tending to show that notwithstanding the violation, there
was no violation on his part. That’s the effect of moving forward with the
evidence.
2. CONCLUSIONS OF LAW OR FACT
 Ex. Plaintiff states that he is entitled to moral
damages or attorney’s fees, that is not a statement of
fact but a mere conclusion. It would be a proper
statement of fact if the plaintiff cites the basis why
he is entitled to those reliefs.
 Conclusions have no place in pleadings if these
conclusions are not supported by facts.
CASE: MATHAY v. CONSOLIDATED BANK
 A bare allegation that one is entitled to something is an
allegation of conclusion. Such allegation adds nothing to the
pleading, it being necessary to plead specifically the facts upon
which such conclusion is founded.
 Is it natural for you to arrive at that fact? Is it provable by
evidence? Is there ample allegation of evidentiary facts that
would lead you to that ultimate fact? If so, that is a proper
ultimate fact. But if it’s different, that you have to perform
some magic in order to arrive at that conclusion, that is NOT
an ultimate fact but is only a conclusion of law.
CASE: SANTOS VS SANTOS-GRAN
 A pleading should state the ultimate facts essential to the rights
of action or defense asserted, as distinguished from mere
conclusions of fact, or conclusions of law. General allegations
that a contract is valid or legal, or is just, fair, and reasonable,
are mere conclusions of law. Likewise, allegations that a
contract is void, voidable, invalid, illegal, ultra vires, or against
public policy, without stating facts showing its invalidity, are
mere conclusions of law.
3. MATTERS OF JUDICIAL NOTICE
 Judicial notice is the cognizance of certain facts which judges
may properly take and act on without proof because they
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already know them (Chiongbian-Oliva vs Republic, G.R. No.
163118, April 27, 2007)
 There is no need to explain because it is already known.
Rule 8 ,sec. 2 ALTERNATIVE CAUSES OF ACTION OR
DEFENSES
 Party may set forth two or more statements of a claim or
defense alternatively or hypothetically.
 You are not claiming all of thr cause of action but
alternatively.
 Usually by a petitioner who is not sure his cause of action.
 It can be in one cause of action or defense OR in separate
causes of action or defenses.
 When two or more statements are made in the alternative and
one of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency of one or
more of the alternative statements.
Ex. Alternative cause of action
 Matteo was about to board a bus. When his left foot had
already stepped on the bus, the bus suddenly sped up so he fell
and was injured, making him uglier than he already is. What is
the basis of a cause of action against the bus company? Is there
a perfected contract of carriage?
 Case law is to the effect that the facts above would be enough
to constitute a contract of carriage. However, Matteo is not
sure so he may actually allege two possible alternative causes
of action, which can be based either on culpa contractual or
culpa aquiliana.
Ex. Alternative defenses
Plaintiff Pia files a case against defendant Yen to collect an unpaid loan.
 The defendant can allege that she never borrowed money from
the plaintiff (denial).
 Alternatively, she may defend by saying that, assuming that
she received money from the plaintiff, that money was not a
loan but a donation.
 She may also add a defenses that assuming that the money she
received from the plaintiff was really a loan, such amount was
completely paid (or the affirmative defense of payment).
Note: While these defenses are inconsistent with each other, this fact
should not be taken against the defendant. What is important is that each
defense is consistent by and itself.
You look at these defenses individually.
DURING TRIAL IT IS IMPORTANT:
 The defendant should adopt a defense that conforms to her
evidence.
 A lawyer should not be afraid to alternatively plead defenses
for his client which are inconsistent with each other. That is
completely allowed. In fact, it is advisable because of Rule 9,
Section 1 which states that defenses or objections not pleaded
in the answer are deemed waived.
 If you did not raise your defenses or objections at the earliest
opportunity, that are already deemed as waived. You cannot
raise it anymore. It is better to raise inconsistent defenses than
not having the opportunity to raise them at all.
RULE 8, SEC. 3 CONDITIONS PRECEDENT
General averment of the performance of all condition precedent shall be
sufficient.
  When complying with conditional precedents, it is not
necessary that you have to specify what are the things you did
to comply with such conditions.
Example: Requirement of prior barangay conciliation, earnest efforts
towards a compromise, doctrine of exhaustion of administrative remedies.
It is enough to allege that:
 “Plaintiff has exerted earnest efforts to arrive at a compromise
with the Defendant. However, such efforts proved futile.”
 You do not need to exactly state as to how the attempt for a
compromise was made. It is enough that you generally aver it.
O ,SEC. 4 CAPACITY
1st SENTENCE:
THERE MUST BE SPECIFIC AVERMENTS OF FACTS:
 Capacity of a party to sue or to be sued.
 Authority of a party to sue or to be sued in a representative
capacity or the legal existence of an organized association of
persons that is made a party.
 Any general averments is not sufficient.
How do you aver with particularity?
Refer to Rule 7 ,sec. 6 talking about documentary and object evidence
that must be included. The requirement under Rule 8, Section 1, that talks
about evidence being attached or included in the pleading. There must
also an attachment of your license to do business in the Philippines as a
documentary evidence.
2nd SENTENCE:
“A party desiring to raise an issue as to the legal existence of any party or
the capacity of any party to sue or be sued in a representative capacity,
shall include such supporting particulars as are peculiarly within the
pleader’s knowledge”.
 You do not believe that the person who filed against you has
the capacity to sue or to be sued in a representative capacity
shall do so with specific denial.
 When the defendant, for example, questions the legal existence
or capacity to sue of a party, he must do so by specific denial
which shall include such supporting particulars as are
peculiarly within the defendant’s knowledge.
 He cannot deny by a mere general statement.
 He must be more specific about what he is denying.
CASE: ASSOCIATION OF FLOOD VICTIMS VS COMELEC
 Association of Flood Victims, which is still in the process of
incorporation, cannot be considered a juridical person or an
entity authorized by law, which can be a party to a civil action.
They do not have any certificate of incorporation yet.
 An unincorporated association, in the absence of an enabling
law, has no juridical personality and this, cannot sue in the
name of the legal association. Such unincorporated association
is not a legal entity distinct from its members.
 If an association, like petitioner Association of Flood Victims,
has no juridical personality, then all members of the association
must be made parties in the civil action.
 Other than his bare allegation that he is the lead convenor of
the Association of Flood Victims, petitioner Hernandez showed
no proof that he was authorized by said association. Aside from
petitioner Hernandez, no other member was made signatory to
the petition. So it was really defective. There was a failure to
state with particularity their capacity to sue.
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RULE 8 ,SEC. 5 HOW TO AVER
 If there is an averment of FRAUD OR MISTAKE
circumstances surrounding the averment must be stated with
PARTICULARITY.
 Averments of MALICE, INITENT, KNOWLEDGE or OTHER
CONDITION OF THE MIND OF A PERSON may be averred
GENERALLY.
Why should the allegation for fraud or mistake be specific in your
complaint? But why Is the general averment of malice, intent,
knowledge or other condition of the mind of a person allowed?
A: Because fraud or mistake, is manifested by overt acts. How were you
deceived? How were you defrauded? You can state that with particularity.
Mistake, how did you commit the mistake?
Because you have the ability to state that with particularity. You have the
ability to explain these events. So the complaint must state in detail how
the fraud or mistake was committed.
However, a general averment of malice or intent suffices because they are
mere conditions of the mind. We are not mind readers. One cannot
describe or particularize what is inside the mind of a party. That is why
such allegations may be made in general terms.
RULE 8 ,SEC. 6
 When pleading a judgment of a domestic or foreign court ,
judicial or quasi-judicial tribunal or of a board or officer IT IS
SUFFICIENT to aver the judgment WITHOUT showing
jurisdiction to render it.
 Authenticated copy of the judgment must be attached to the
pleading.
Ex. Res Judicata
The defense would be the decision itself of the prior case.
Do you need to allege that the court that rendered the decision was a
court duly created by statute? Was the judge there lawfully appointed?
To determine whether the court has jurisdiction to render that
jurisdiction in the first place?
It is sufficient to aver the judgement or decision by attaching it to the
pleading without explaining that the court that rendered it had jurisdiction
to render the decision in the first place. Along with the judgment there
must be an attachment of a certified true copy from the court that
rendered the decision. It is not enough that you photocopy the decision
without certification.
RULE 8 ,SEC. 7 ACTIONABLE DOCUMENTS
 Action or defense is based upon a written instrument or
document.
 Substance of such instrument or document shall be set forth
in the pleading.
 An original or copy shall be attached to the pleading as an
exhibit which shall be deemed to be a part of the pleading.
 An actionable document is one which is the basis or the
foundation of the cause of action or defense and not merely an
evidence of the cause of action or defense. (Araneta, Inc v.
Lyric Film Exchange, 58 Phil. 736).
 The actionable document is exactly the basis on why you filed
the case in the first place. That is the source of your rights as
plaintiff, that is the source of your defense as defendant. BUT
not all document presented or attached during trial is
actionable.
 An actionable document is the very heart and soul of your
cause of action or defense, not merely an evidence thereof.
Examples of Actionable Document
1. A Promissory note to collect an unpaid load is not only an
evidence of the cause of action but it is the very foundation of
the cause of action.
2. The defendant has a receipt of payment, the receipt is not only
evidence of his defense but is the very foundation of his
defense. Therefore, because it is the very foundation of his
defense.
3. An action to annul a written contract, the contract to be
rescinded or annulled is the foundation of the party’s cause of
action.
4. In a collection case, if aside from the promissory note, the
plaintiff wrote the defendant several demand letters, such
letters, while they are relevant to the collection case, are not
the foundation of the cause of action, although they are also
important.
EFFECT OF FAILURE TO COMPLY WITH SEC. 7
 Complaint is also dismissible for failure to state a cause of
action, if this ground is properly raised by the defendant as an
affirmative defense.
RULE 8 ,SEC. 8 HOW TO CONTEST ACTIONABEL
DOCUMENTS
If an actionable document is pleaded “the genuineness and due execution
of the instrument shall be deemed admitted unless the adverse party,
under oath, specifically denies them, and sets forth what he claims to be
the facts; but the requirement of an oath does not apply when the adverse
party does not appear to be a party to the instrument or when compliance
with an order for an inspection of the original instrument is refused.”
Correlate with Judicial Admissions under Rule 129 of the Rules of
Court:
 An admission, oral or written, made by the party in the course
of the proceedings in the same case, does not require proof.
 The admission may be contradicted only by showing that it
was made through palpable mistake or that the imputed
admission was not, in fact, made.
 A judicial admission or an admission in judicio is a
deliberate, clear, unequivocal statement by a party about a
concrete fact within that party’s knowledge.
 Effect of judicial admission: That admission becomes
conclusive as to him. In other words, if he admitted that he has
a debt, he cannot present an evidence to the effect that he does
not have a debt. You don’t have to prove it because it’s already
admitted.
 A judicial admission is a formal concession in the pleadings
or stipulations by a party or counsel that is binding on the party
making them. Although a judicial admission is not itself
evidence, it has the effect of withdrawing a fact from
contention.
Correlate with Rule 6, sec 3.
The complaint is the pleading alleging the plaintiff’s cause or causes of
action. Thus, if the cause of action is based on an actionable document,
the plaintiff has to follow Rule 8, Section 7. He needs to state the
substance and then attach it in the complaint.
Correlate with Ruel 6 ,sec. 4
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defense is based on an actionable document, again he has to follow Rule
8 Section 7. Also, if plaintiff’s cause of action is based on an actionable
document and the defendant wants to contest it, meaning his document is
not genuine, he has to follow Rule 8 Section 8. The requirement under
Section 8 is that he has to deny it under oath. Take note that the filing of
an answer is mandatory because if you do not file an answer and you’re
the defendant, you can be declared in default.
FAILURE TO FOLLOW RULE 8, SEC. 8 RESULTS IN JUDICIAL
ADMISSION.
 If the complaint alleges an actionable document, a verified
answer is required. (answered under oath).
 Failure to specifically deny it under oath it has the effect of a
judicial admission.
 There is implied admission that the actionable document
attached is genuine and duly executed.
CASE: CASENT REALTY VS PHILBANKING
Since respondent failed to file a reply, in effect, respondent admitted the
genuineness and due execution of said documents.
*If there is an actionable document a reply is required to be filed if not
then there is admission of the genuineness and due execution of that
actionable document.
PREVIOUS RULE:
Rule 6 ,sec. 10 Filing a reply is merely optional. If a party does not file
such reply, all the new matters alleged in the answer are deemed
controverted.
Rule 8,sec. 8 specifically applies to actions or defenses founded upon a
written instrument and provides the manner of denying it. It is more
controlling than Rule 6, Section 10 which merely provides the effect
of failure to file a Reply.
Thus, where the defense in the Answer is based on an actionable
document, a Reply specifically denying it under oath must be made;
otherwise, the genuineness and due execution of the document will be
deemed admitted.
Under the aegis of the 1997 Rules, the rule was that, the filing of a
Reply merely was very much optional; but it becomes, in effect,
mandatory when the Answer pleads an actionable document. Because
otherwise, you are deemed to admit the genuineness and due execution of
that actionable document if you fail to file a Reply under oath because
you would not have an opportunity to deny it.
So, you must file a pleading and make that a verified pleading, that is,
under oath.
IN THE RECENT AMENDMENTS:
 The only time a reply is made is when the defending party
attaches an actionable document to his or her answer.
 If the actionable document is attached to a reply, the defendant
ma may file a rejoinder if rejoinder is based on the same
actionable document.
All new matters alleged in an Answer are deemed controverted. No need
to file a Reply. In fact, a Reply is actually a prohibited pleading. You
cannot file a Reply. The only time that the plaintiff may file a Reply is if
the defending party attaches an actionable document to his or her Answer.
Then, the Supreme Court changed the definition of a Reply by saying
specifically that a Reply is a pleading, the office or function of which is
to deny, or allege facts in denial or avoidance of new matters alleged
in, or relating to, the said actionable document. That is the only time
when you can file a Reply if an actionable document is attached to an
Answer. You cannot file a Reply just to contest, for example, what was
stated in the Answer. There is no need for that.
They are all deemed automatically controverted. So, a Reply that does not
deny an actionable document is actually a Reply that must be stricken off
the record. So if you added something irrelevant to that actionable
document, that can be stricken off the record.
WHEN TO FILE A REJOINDER?
 A Reply, which used to be optional, is now prohibited. The
only time the plaintiff can file a Reply is when the
defending party attaches an actionable document to his or
her Answer.
 If an actionable document is attached to the Reply, the
defendant may file a Rejoinder if the same is based solely on
an actionable document.
Ex. The Plaintiff files an action to collect Defendant’s unpaid debt based
on a promissory note.
Now take note that the promissory note is an actionable document. So the
Plaintiff must plead it in accordance with Section 7.
In his Answer, the defendant’s defenses are:
1. Payment as evidenced by a receipt – this is the very foundation of the
defense which is payment hence sec. 7 must be followed.
2. He also says that the promissory note is forged.- this defense must
follow sec. 8 and must deny the genuineness and due execution of the
promissory note under oath.
What if the Plaintiff believes that the receipt pleaded by the Defendant
is not genuine or that is altered or forged. What should he do?
A: There are two Rules:
1. Pursuant to Rule 6, Section 10, he may file a Reply if the defending
party attaches an actionable document; and
2. Pursuant to Rule 8, Section 8, he has to deny the actionable document
under oath. Otherwise, he is deemed to have admitted the genuineness
and due execution of the actionable document.
 In short, if the Defendant pleads an actionable document in his
Answer, the filing of a Reply is allowed and is in effect
mandatory for the Plaintiff if he does not want to be affected
by the effect of implied admission of the genuineness and due
execution of the actionable document. Otherwise, he is deemed
to have admitted the genuineness and due execution of such
actionable document.
Note as well that he has to do so “under oath.” This means that the Reply
he has to file is actually a VERIFIED REPLY.
CASE: COCA-COLA VS SPS. SORIANO
 The defendant must declare under oath that he did not sign the
document or that it is otherwise false or fabricated. Neither
does the statement of the answer to the effect that the
instrument was procured by fraudulent representation raise any
issue as to its genuineness or due execution. On the contrary,
such a plea is an admission both of the genuineness and due
execution thereof, since it seeks to avoid the instrument upon a
ground not affecting either.
CASE: HIBBERD VS RHODE
 By the admission, (implied admission), of the genuineness and
due execution, (meaning, you did not follow Rule 8, Section 8),
is meant that the party whose signature it bears admits that:
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1. He signed it or that it was signed by another for him with his authority;
2. At the time it was signed, it was in words and figures exactly as set out
in the pleading of the party relying upon it;
3. The document was delivered;
4. Any formal requisites required by law, such as a seal, an
acknowledgment, or revenue stamp, which it lacks, are waived by him.
CASE: SPS. SANTOS VS ALCAZAR
Defenses such as that the signature is a forgery; or that it was
unauthorized; or that the party charged signed the instrument in some
other capacity than that alleged in the pleading setting it out; or that it was
never delivered, are cut off by the admission of the genuineness and due
execution of the actionable document by failure to deny the same under
oath.
NOTE: you cannot anymore present an evidence that your signature was
forged or that it was unauthorized because you are deemed to admit the
genuineness and due execution of the actionable document.
DEFENSES THAT MAY STILL BE RAISED DESPITE
ADMISSION OF GENUINENESS AND DUE EXECUTION
There are still other defenses that may still be raised despite admission of
genuineness and due execution. These are defenses that have nothing to
do with the genuineness and due execution of the document.
1. payment;
2. want or illegality of consideration;
3. fraud;
4. mistake;
5. compromise;
6. statute of limitations;
7. estoppel;
8. duress;
9. minority; and
10. imbecility
WAIVER OF THE JUDICIAL ADMISSION OF GENUINESS AND
DUE EXECUTION FOR FAILURE TO DENY UNDER OATH
There is a waiver of implied judicial admission of genuiness and due
execution by a party when:
1. Pleader whose document was deemed admitted presents
witnesses to prove genuineness and due execution.
Why prove if it was already admitted? So you waived the benefit of the
implied admission.
2. Pleader fails to object to evidence controverting the
genuineness and due execution.
You really have to object. Failure to object, under the law on Evidence,
amounts to waiver
WHEN IS THERE DENIAL OF THE GENUINESS OF THE
DOCUMENT NOT UNDER OATH STILL VALID?
A. When the adverse party does not appear to be a party to the
instrument;
Rayver wants to file a case against Matteo based on a contract between
them. But, before Rayver filed the case, Matteo died. So, Rayver filed the
case against the heirs. The heirs realized that the signature of Matteo in
the contract was forged. Even if the answer of the heirs is not under oath,
they can still prove forgery because they were not parties to the
instrument.
Since they are not parties, then they are not bound by the admission.
B. When compliance with an order for an inspection of the original
instrument is refused;
C. When the document to be denied is not classified as an actionable
document but merely an evidentiary matter
(example: demand letter). If the document is not actionable, there is no
need to follow Section 8.
RULE 8 ,SEC. 9
Correlate with:
Rule 129,sec. 1 there is mandatory judicial notice of the official acts of
legislative, executive and judicial department of the National Government
of the Philippines…
This falls under the realm of mandatory judicial notice as they are official
acts of the legislative, executive, and judicial departments of the National
Government of the Philippines. They do not need to be proved, so why
the need to specifically allege?
Rule 131 Disputable presumptions. The following presumptions are
satisfactory if uncontradicted, but may be contradicted and overcome by
other evidence:
 xxx (l) That a person acting in a public office was regularly
appointed or elected to it’ (m)
 That official duty has been regularly performed.
There is a presumption of regularity of official acts. You do not
question that. There is also no need to specifically aver.
SUMMARY
WHAT MAY BE GENERALLY AVERRED?
1. Rule 8, Section 3 􀍴 Conditions precedent;
2. Rule 8, Section 5, second sentence Conditions of the mind;
3. Rule 8, Section 6 􀍴 Judgment;
4. Rule 8, Section 9 􀍴 Official document or act
WHAT MUST BE AVERRED SPECIFICALLY?
1. Rule 8, Section 4, first sentence 􀍴 Capacity to sue and be sued;
2. Rule 8, Section 4, second sentence 􀍴 Legal existence of any party to
sue or be sued;
3. Rule 8, Section 5, first sentence 􀍴 Fraud or mistake.
RULE 8 ,SEC. 10
3 MODES OF DENIAL
FIRST MODE: A defendant must specify each material allegation of
fact the truth of which he does not admit and, whenever practicable,
shall set forth the substance of the matters upon which he/she relies
to support his/her denial.
Ex. Defendant denies the allegations in paragraph 5 of the Complaint.
There was no contract of carriage between the Plaintiff and Defendant
because Plaintiff did not board the bus of the Defendant.
34
How do you do deny? Simply, just state the version of the facts, why is it
that the plaintiff’s allegations are incorrect. But you do it in the manner
that it is factual.
 A denial does not become specific simply because he used the
word “specific”.
FAILURE TO COMPLY TO set forth the substance of the matters relied
upon to support his denial, IT IS CONSIDERED A GENERAL DENIAL
AND WILL HAVE THE EFFECT OF AN ADMISSION.
SECOND MODE: PARTIAL DENIAL- Where a defendant desires to
deny only a part of an averment, he shall specify so much of it as is
true and material and shall deny only the remainder.
(naa ka portion gi deny, naa ka portion gi admit)
Ex. Defendant partially admits paragraph no.2 only insofar as it alleges
that he is in possession of the property but denies that he is a possessor in
bad faith, the truth of the matter being that he is possessing the property
by virtue of a subsisting Contract of Lease.
What did he admit? That he is in possession. What does he deny? The
fact that the possession is in bad faith.
Simply have to state which part you admit and which part you deny
(should have to specifically state that you deny, which should be backed
up with facts).
THIRD MODE: Where a defendant is without knowledge or
information sufficient to form a belief as to the truth of a material
averment made in the complaint, he shall so state, and this shall have
the effect of a denial.
(has no personal knowledge of the facts)
 Pleader is in no position to admit or deny because he has no
personal knowledge about the allegation.
 This mode should be done in good faith. If done in bad faith
denial will be treated as an admission.
Example of denial in bad faith:
PLAINTIFF􀍛S ALLEGATION: Defendant, on April 30, 2019, entered
into a contract of loan with Plaintiff as evidenced by a promissory note
attached hereto as ANNEX “A”.
(Pursuant to the third mode)
DEFENDANT: Defendant has no knowledge or information sufficient to
form a belief as to the truth or falsity of the facts alleged.
 If he did not sign anything, then he will deny, right? If he is of
knowledge that he did not sign any document. Otherwise, he
will admit. He is not actually denying in good faith.
CASE: CANELAND SUGAR v. ALON
A negative pregnant is a “form of negative expression which carries with
it an affirmation or at least an implication of some kind favorable to the
adverse party. Where a fact is alleged with qualifying or modifying
language and the words of the allegation as so qualified or modified are
literally denied, has been held that the qualifying circumstances alone are
denied while the fact itself is admitted.
 It is a hybrid of an admission and a denial.
 You deny a certain portion of the allegations but the
qualifications that you made in your denial actually results to
an admission.
Example: In a case for custody of minor children and to declare the
mother unfit:
Plaintiff: Furthermore, the Defendant is unfit to have custody
considering that she is a drug addict who smokes marijuana at home and
even at work.
Defendant: The allegations in paragraph 15 are denied, the truth of the
matter being that the Defendant has never smoked marijuana at work.
 Defendant denied that she never smoked marijuana at work,
but she never denied smoking at home.
Effect of Negative Pregnant Denial: CONSIDERED A PARTIAL
ADMISSION.
 Where a fact is alleged with qualifying or modifying language
and words of the allegation as so qualified or modified are
literally denied, has been held that the qualifying
circumstances alone are denied while the fact itself is admitted.
RULE 8,SEC 11 ALLEGATIONS NOT SPECIFICALLY DENIED
DEEMED ADMITTED
General rule: Material Averments in the pleading or complained asserting
a claim or claims shall be deemed admitted when not specifically denied.
Exception: What are the instances when averments in the complaint are
not deemed admitted even when not specifically denied?
1. Amount of unliquidated damages
 Unliquidated damages are not deemed admitted even in the
absence of specific denial.
 For liquidated damages if the defendant failed to specifically
deny the allegation on liquidated damages, then he is deemed
to have admitted that the plaintiff is entitled to the amount.
All that the plaintiff has to do here is that to state that there
really is a delay. Take note that there is no need for
computation or proof on the amount of damages because the
amount is already in the contract beforehand.
2. Immaterial averments
 It is part of the complaint, but it has no actual connection to the
facts and issues of the case. Even if you do not specifically
deny that, you are not deemed to have admitted it. Why?
Because it is immaterial. It is impertinent to the subject matter
of the case between the parties.
 These are matters that are needed to be proved. Documentary
and testimonial evidence are required. The claimant always has
to prove how much amount he is entitled to. They are not
deemed admitted even if not specifically denied because again,
it is a matter of proof. You have to prove it before the court.
3. Conclusions of facts or law.
TAKE NOTE: Section 11 no longer includes the sentence: “Allegations
of usury in a complaint to recover usurious interest are deemed admitted
if not denied under oath.”
RULE 8 ,SEC. 13
 A motion to strike is a legal motion given by one party in a
trial requesting the presiding judge to order the removal of all
or part of the opposing party’s pleading to the court.
 A motion to strike is also used to request elimination of all or
part of a trial witness’s testimony. It expunges a pleading,
material or testimony from the record of a case.
Remember that everything you submit, everything that you say, that will
be part of the records of the case. There is a way that if that particular
record or a portion thereof is susceptible of being expunged, you simply
35
file a motion to expunge or the technical term here would be a motion to
strike out a pleading or a portion of the records of a case.
GROUNDS FOR A MOTION TO STRIKE: sham or false, redundant,
immaterial, impertinent, or scandalous matter
EFFECT OF A MOTION TO STRIKE: A motion to strike, when
granted, results in the removal or obliteration of the offensive or
objectionable content from the records of the proceedings.
 The affected party is given an opportunity to be heard. There
must be a chance to explain why that portion of your pleading
should not be stricken out.
WHEN IS A MOTION TO STRIKE FILED?
 Before the defendant files an answer to the pleading or answer
to the counter-claim or crossclaim.
 If the complaint alleges scandalous, offensive, or impertinent
matters, before the defendant files his answer, he may ask the
court to strike out these allegations.
 He doesn’t have to include that in his answer if they are
stricken out from the records of the case.
Rule 8 ,sec. 13
“…IF NO RESPONSIVE PLEADING IS PERMITTED BY THESE
RULES…”
 This refers to a motion to strike the answer or the reply.
 A reply is a prohibited pleading unless made for the purpose of
denying an actionable document under oath. Thus, if the
answer does not contain an actionable document, no reply can
be filed. A motion to strike the answer or parts thereof may still
be filed by the plaintiff within 20 days after the receipt of the
answer.
 A reply denying an actionable document under oath contains
scandalous matters, a motion to strike such reply may still be
filed by the defendant within 20 days after the receipt of the
answer. You cannot file a rejoinder after the reply was filed.
Let us suppose that no actionable document was in the reply,
you should not file a rejoinder. So, you file it within 20 days
after receipt of the reply.
TYPES OF MOTION TO STRIKE
AS TO WHAT IS TO BE STRICKEN OUT FROM THE RECORDS:
1. A motion to strike an entire pleading; and
2. A motion to strike portions of a pleading.
ACCORDING TO WHOSE MOTION A PLEADING OR A
PORTION THEREOF IS TO BE STRICKEN OUT:
1. A motion to strike filed by a party; and
2. Striking out a pleading or a portion thereof at the court’s own
initiative or sua sponte (meaning, the court’s own motion – motu
proprio. The court itself would say that I want to strike out.)
NOTE: Lawyer who files a pleading that contains scandalous or indecent
matters may be subjected to appropriate disciplinary actions. Because that
is considered as an error committed by the lawyer who is considered as
an officer of the court.
What will be stricken out Ground (in the TSN this is the
summary)
1. The pleading itself, treated as
a whole, is a sham pleading or if
all or practically all of its
 allegations are redundant,  Materiality and relevancy is imposed so that the protection
immaterial, impertinent, or given to individuals in the interest of an efficient
scandalous; administration of justice may not be abused as a cloak from
ENTIRE PLEADING beneath which private malice may be gratified.
2.It is a prohibited pleading;  Lawyers should be allowed some latitude of remark or
comment in the furtherance of the causes they uphold [Pilar vs.
Filing a reply when there is no
Dorado, 104 Phil. 743], such remarks or comments should not
actionable document attached.
trench beyond the bounds of relevancy and propriety.

HOW TO VERIFY AN ELECTRONIC DOCUMENT under RULE

3. It is an unsigned pleading or
treated as such; and 9, SEC. 1 of the A.M. NO. 01-7-01-SC.

Admissibility of an electronic document may be established by an

a. Such as when there is
no verification. affidavit stating the facts of direct personal knowledge of the affiant
based on authentic records.
(Note: This is not absolute due to
VERIFICATION BY COUNSEL (Uy vs Workmen’s compensation
the liberal construction of the rule
because the court can allow the commission)
party to sign the pleading or to
 A verification done by the counsel and not the petitioners is
amend the verification.)
still adequate because it is still substantial compliance under
4. Filed by party or counsel that the ROC.. There is a presumption that the facts alleged are true
has no standing before the court. to his knowledge.
PORTION OF THE portions of the pleading that
PLEADING contain sham or false, redundant, VERIFICATION BY A FEW PARTIES (Torres vs Specialized
immaterial, impertinent or packaging development)
scandalous matters
Although only a few of the parties verified the pleading it is already
enough because they are real parties to the case and undoubtedly have
A motion to strike is not the proper remedy if: sufficient knowledge and belief to swear to the truth of the allegations in
the Petition. This verification is enough assurance that the matters alleged
a. Defendant defaulted failing to file an answer within the period therein have been made in good faith or are true and correct, not merely
specified. speculative.

Court can declare the defendant under Rule 9, sec. 3 as default.
b. All of the allegations in the complaint contain false and sham
issues.
 A motion for summary judgment may be filed if the
pleading raises no genuine issue. It is a mode of
accelerated judgment and no trial will commence.
Court will just decide based on the pleadings on
records.
 ***A motion to strike the answer as a sham
pleading may be filed if the pleading is inherently
false and clearly known to be false at the time the
pleading was made.
c. Plaintiff filed a reply to set up additional claims out of the
allegations in the answer of the defendant.
 If a party wants to set up any claims arising out of
the new matters alleged such additional claims must
be in an amended or supplemental pleading and not
file a reply.
CASE: GUTIERREZ VS. ABILA, ET AL.
 Utterances made in the course of juridical proceedings,
including any kinds of pleadings, petitions and motions are
absolutely privileged when pertinent and relevant to the subject
under inquiry, however false or malicious such utterances may
be.
 Allegations attacked the person of the plaintiff can be caused
for a motion to strike.
 If the pleader goes beyond the requirements of the statute and
alleges an irrelevant matter which is libelous, he loses his
privilege.”
36
RULES ON VERIFICATION RELAXED
Agdeppa Etc. vs Heirs of Bonete -> Formal errors in a pleading are
excused as long as it does not subvert the essence of the proceeding.
Sari-sari group of companies vs Piglas Kamao -> pleading without a
verification maybe given due course but when the circumstances warrant,
court may order the correction of the unverified pleadings and waive
strict compliance with the rules so that justice may be served.
Benguet corp. vs cordillera Caraballo mission inc. -> verification of a
pleading is formal and not jurisdicational absence of veification does not
justify the court if they refused to act on the case. Non-complaince is not
fatally defective.
The last paragraph of Section 4 provides that a pleading required to be
verified which contains a verification based on “information and belief,”
or upon “knowledge, information and belief,” or lacks a proper
verification, shall be treated as an unsigned pleading.
CASE: MARTOS VS NSJB
The verification requirement is significant, as it is intended to secure an
assurance that the allegations in the pleading are true and correct and not
the product of the imagination or a matter of speculation, and that the
pleading is filed in good faith. Verification is deemed substantially
complied with when, as in this case, one who has ample knowledge to
swear to the truth of the allegations in the complaint or petition signs the
verification, and when matters alleged in the petition have been made in
good faith or are true and correct.
The absence of a proper verification is cause to treat the pleading as
unsigned and dismissible. The lone signature of Martos would have been
sufficient if he was authorized by his co-petitioners to sign for them.
Unfortunately, petitioners failed to adduce proof that he was so
authorized.
CASE: RIVERA -PASCUAL VS SPS LIM
 Consolacion and her counsel remained obstinate despite the opportunity  It was only after an adverse decision (after 15 years) was
afforded to them by the CA to rectify their lapses. While there was rendered by the Court of Appeals or the execution stage that
compliance, this took place, howver, after the CA had ordered the the Surety raised the question of jurisdiction.
dismissal of Consolacion’s petition and without reasonable cause  The Surety is now barred by laches from invoking this plea at
proffered to justify its belatedness. Consolacion and her counsel claimed this late hour for the purpose of annulling everything done
inadvertence and negligence but they did not explain the circumstances heretofore in the case with its active participation.
thereof. Absent valid and compelling reasons, the requested leniency and  A party cannot invoke the jurisdiction of a court after obtaining
liberality in the observance of procedural rules appears to be an or failing to obtain such relief, repudiate or question that same
afterthought, hence, cannot be granted. jurisdiction. XXX Furthermore, it has also been held that after
voluntarily submitting a cause and encountering an adverse
CASE: SM LAND VS CITY OF MANILA
decision on the merits, it is too late for the loser to question the
When a strict and literal application of the rules on non-forum shopping jurisdiction or power of the court. It is not right for a party who
and verification will result in a patent denial of substantial justice, these has affirmed and invoked the jurisdiction of a court in a
may be liberally construed. particular matter to secure an affirmative relief, to afterwards
deny that same jurisdiction to escape a penalty.
Court has excused the belated filing of the required verification and  “It is only after an adverse decision was rendered by the Court
certification of non-forum shopping, citing that special circumstances or of Appeals that the issue on lack of jurisdiction was raised the
compelling reasons make the strict application of the rule clearly question of jurisdiction. It was too late; 15 years actually have
unjustified. This Court ruled that substantial justice and the apparent already passed since the filing of the case and when the surety
merits of the substantive aspect of the case are deemed special questioned the issue on jurisdiction. The Supreme Court is
circumstances or compelling reasons to relax the said rule. In fact, this looking at the point of view of fairness. Throughout the entire
Court has held that even if there was complete noncompliance with the time, the case was pending you never raise a howl about
rule on certification against forum shopping, the Court may still proceed jurisdiction. Then in 15 years when there was already a writ of
to decide the case on the merits, pursuant to its inherent power to suspend execution about to be implemented, you are now saying that
its own rules on grounds, as stated above, of substantial justice and the Court has no jurisdiction.”
apparent merit of the case.
CASE: ADLAWAN VS JOAQUINO ET. AL.
Petitioners’ meritorious claims are compelling reasons to relax the rule on
verification and certification of non-forum shopping. In any case, it  The doctrine of non-interference of a court’s judgment - a
would bear to point out that petitioners and their co-plaintiffs in the trial judgement of a court of competent jurisdiction may not be
court filed their claim for tax refund as a collective group, because they opened, modified, vacated by any court of concurrent
share a common interest and invoke a common cause of action Hence, the jurisdiction.
signature of the representative of the other co-plaintiffs may be  The fact that the petitioner and her husband were not privy to
considered as substantial compliance with the rule on verification and the cases originally filed before the two RTCs coupled with
certification of non-forum shopping, consistent with this Court’s their claim of good faith, convinces the court that the petitioner
pronouncement that when all the petitioners share a common interest and is not guilty of laches despite belatedly raising the question of
invoke a common cause of action or defense, the signature of only one of jurisdiction only thirteen (13) years later, or in 2007, in their
them in the certification against forum shopping substantially complies appeal brief to the CA.
with the rules.
Tijam vs Adlawan vs Frianela vs
RULE 9, SEC. 1 WHAT HAPPENS TO DEFENSES , ANSWERS, Sibonghanoy Joaquino Banayad
OBJECTIONS NOT PLEADED? 15 yrs 13 yrs 18 yrs
After the CA rendered Before the CA During the appeal
Defenses and objections are pleaded through a motion to dismiss or in the an adverse decision rendered an adverse stage of the main
answer. Failure to do so those defenses and objections are deemed waive. during the execution decisioo case, not during the
Court never acquired jurisdiction over the issue. Can no longer use that stage execution stage of a
defense in trial. final and executory
decision.
What defenses or objections that are not raised in the motion to Raised in a motion to Raised in the appeal During the appeal
dismiss or answer but are still recognized by the court? dismiss brief stage of a final and
executory decision
EXCEPTIONS: These can be raised at anytime during or after the trial There was estoppel No estoppel because No estoppel
or even for the first time on appeal or even if there is final judgment because the party there was no
already because the court had no power to act in the first place. already obtained affirmative relief
affirmative relief from obtained.
Exception to the exception: The concept of jurisdiction by estoppel and the court and later on
laches (Tijam vs Sibonghany) assailed the
jurisdiction.
1. LACK OF JURISDICTION OVER THE SUBJECT MATTER – all
proceedings thereof is null and void meaning the action will be
uldismissed whether during appeal or even if there is final judgment. CASE: CALIBRE TRADERS INC. VS BAYER PHILIPPINES INC.
because the court has no jurisdiction. Jurisdiction cannot be conferred
When will the principle of estoppel be applied on the question of
by agreement, silence, or waiver during trial.
jurisdiction?
Lack of jurisdiction may be raised at any time whether in a motion to
Depends on whether the lower court actually had jurisdiction or not.
dismiss or in an answer, in the court of trial, after trial, after judgment or
even for the first time on appeal. If it had no jurisdiction, but the case was tried and decided upon the
theory that it had jurisdiction, the parties are not barred, on appeal, from
CASE: TIJAM VS SIBONGHANOY
assailing such jurisdiction, for the same must exist as a matter of law, and
may not be conferred by consent of the parties or by estoppel.
37
if the lower court had jurisdiction the party who induced it to adopt such
theory will not be permitted, on appeal, to assume an inconsistent
position 􀍴 that the lower court had jurisdiction. (if you objected that the
court had no jurisdiction, but then later on you won the case, and you
raise that the lower court had jurisdiction, even if at the start, you already
said that the court had no jurisdiction, you are actually estopped. This is
what happened in the Caliber case.)
2.LITIS PENDENTIA – another action is pending with the same parties
and the same cause. A party should not be allowed to vex another more
than once regarding the same subject matter and for the same cause of
action.
TEST OF LITIS PENDENTIA:
a) Whether the same evidence would support and sustain both the
first and second causes of action; and
b) Whether the defenses in one case may be used to substantiate
the complaint in the other.
ELEMENTS OF LITIS PENDENTIA:
a) IDENTITY OF PARTIES, or at least such parties who
represent the same interest in both actions;
b) IDENTITY OF RIGHTS ASSERTED AND RELIEF
PRAYED FOR; the relief being founded on the same
facts; and
c) IDENTITY with respect to the two preceding particulars
in the two cases is such that any judgement that may be
rendered in the pending case, regardless of which party is
successful, would amount to res judicata in the other
case.
3.Res Judicata – action is barred by prior judgment.
Cannot re-litigate the controversy of the parties.
Despite prior final judgment, a party files another case concerning the
same issues already litigated
Courts will not allow the same parties or their privies to litigate a new
question once it has been considered and decided with finality.
Once judgment has become final, the prevailing party should not be
deprived of the fruits of the verdict by subsequent suits on the same
issues filed by the same parties.
 pleadings and other facts on records are shown to be time-barred.
 -Must be set up as a defense if not it will be barred
- There is no res judicata in criminal proceedings because it is a
doctrine of civil law. Further, even if a case is dismissed in
preliminary investigations, the proceedings will continue
because preliminary investigations are not part of the trial.
Being not part of the trial there can be no double jeopardy or
res judicata.
ELEMENTS OF RES JUDICATA:
1. Former judgment must be final
2. The court had jurisdiction over the subject matter and the
parties.
3. Judgment must be on the merits.
4. Between the first and second actions there are identity of
parties (substantial identity is enough as well), subject matter
and causes of action.

EXAMPLE: Substantial identity – there is community of interest or privity

of interest between a party in the first and a party in the second
FIRST CASE SECOND CASE case even if the first case did not implead the latter.
Husband filed an action for legal Wife filed an independent action
separation. Wife filed a for support. GROUNDS FOR RES JUDICATA :
counterclaim for support.
 Public policy and necessity (REPUBLICAE UT SIT LITIUM) –
it is the interest of the state to end a litigation.
Ans: There is a res judicata. The dismissal or the grant of the first issue in  Hardship on the individual of being vexed twice for the same
the first case can cause dismissal or entitled to support to the issue in the cause (NEMO DEBET BIS VEXARI ET EADEM CAUSA)
second case.
CONCEPTS OF RES JUDICATA:
FIRST CASE SECOND CASE
Debtor filed an action for Creditor filed an action to 1. Bar by prior judgment - there is identity of parties, subject
annulment of mortgage foreclose the mortgage matter, and causes of action in the first case where judgment
was rendered AND the second case that is being sought to be
barred.
Ans: If the court annuls the mortgage in the first case, it means that the  If there is identity of parties and subject matter in
mortgagee-creditor cannot foreclose because he would no longer have the first and second cases, BUT NO IDENTITY OF
basis for the exercise of such right in the second case. So, in that CAUSES OF ACTION, first judgment is conclusive
particular issue, there is res judicata. However, if the court does not annul only as to those matters actually and directly
the mortgage and declares it to be valid, this means that the mortgagee controverted and determined and not as to matters
can foreclose in the second case. Hence, the result is different. There is merely involved therein.
no identity in all respects because the presence of res judicata would vary 2. Conclusiveness of judgment - facts and issues actually and
according to which party would win the case. directly resolved in a former suit cannot again be raised in any
future case between the same parties, even if the latter suit may
No litis pendentia because the issues are different: issue of validity and
involve a different claim or cause of action. The identity of
whether it is proper to foreclose.
causes of action is not required but merely identity of issues.
Consequences of Litis Pendencia: 4.Prescription- action is barred by statute of limitations.

a. Upon motion or moto proprio , the action will be dismissed. CASE: LZK HOLDING AND DEV􀍛T CORP. vs.
b. Violation of splitting a cause of action. The filing of one or a PLANTERS DEV􀍛T BANK
judgment upon the merits in any one is available as a ground
for the dismissal of the other.  The doctrine of res judicata by conclusiveness of
c. Filing of multiple suits may constitute forum-shopping this in judgment postulates that “when a right or fact has
effect causes summary dismissal. been judicially tried and determined by a court of
competent jurisdiction, or when an opportunity for

38
 such trial has been given, the judgment of the court
that is unreversed, should be conclusive upon the
parties and those in privity with them.”
 Hence, LZK holdings can no longer question Planter
Bank’s right to a writ of possession over the subject
property because the doctrine of conclusiveness of
judgment bars the relitigation of such particular
issue.
RULE 9,SECE. 2
Section 2. Compulsory counterclaim, or cross-claim, not set up
barred. 􀍴 A compulsory counterclaim, or a cross-claim, not set up shall
be barred.
RULE 9, SEC. 3 DEFAULT
GROUND: Failure to file a responsive pleading. (not failure to appear at
the hearing)
REQUISITES FOR DEFAULT
1. The defending party must have failed to file his answer within the time
allowed therefore;.
2. The claiming party must have filed a motion to declare the defendant
in default;
3. The defending party must be given notice of or be furnished with the
motion to declare him in default;
4. The court, finding the motion
Defending party whether in an original complaint, cross-claim or
permissive counterclaim shall be declared in default if he failed to answer
within the time allowed 30 calendar days after service of summons..
Default will be declared upon the motion of the claiming party whether in
the original complaint, cross-claim or permissive counterclaim with
notice to the defendant and proof of such failure.
 There can never be motu proprio declaration by the court of
default of the defendant.
 Court cannot declare default upon its own motion but rather
only with the claiming party.
Effect of default: Court will then proceed to render judgment granting
the relief as his or her pleading may warrant unless court decides to
require the claimant to submit evidence.
There is no ex parte motion for default. Plaintiff must furnish the
defendant a copy of the motion to declare the defendant in default even if
there is failure to file an answer. The court already acquired jurisdiction
over the person of the defendant by reason of the service of summons .
Defendant can then oppose the motion to declare him in default it is also
to verify that there is a justifiable reason for not filing the answer on time.
If the court requires the claimant to submit and present evidence
defednant can no longer participate because he was declared default. His
only remedy is to file a motion to lift the order of default to restore his
standing. He can only be an audience until then.
WHAT IF THERE WAS AN ANSWER FILED BUT DEFENDANT
FAILED TO APPEAR DURING TRIAL?
EFFECT: the trial will proceed without the defendant. There will be an
ex parte reception of evidence.
There will be no default because its ground is failure to file an answer.
When defendant filed an answer but did not appear during the
presentation of evidence, the lawyer of the plaintiff should ask from the
39
court an oral motion in open court for the ex-parte reception of the
evidence. The defending party and his counsel, who failed to appear, has
no opportunity to object to the presentation of the evidence. But can I
have him be declared in default? No, because default under Rule 9 is
limited to failure to file an answer.
WHO RECEIVES THE EVIDENCE?
General rule: Judge shall personally receive the evidence adduced by the
parties.
Exception: Rule 30, sec. 9 reception of evidence may be delegated to the
clerk of court.
RULE 9, SEC. 4 AILURE TO SERVE MOTION TO DECLARE
THE DEFENDANT IN DEFAULT TO THE DEFENDANT.
 Failure to furnish the copy of an answer to the adverse party is
a valid basis for the defendant’s default.
 There must be service before filing.
WHAT IS THE EFFECT WHEN A MOTION IS STILL PENDING?
 Instead of filing an answer, defendant filed a motion to
dismiss. If there is still no resolution of the motion and the
period to file an answer within 30 days has lapsed, plaintiff
cannot file a motion to declare default because the motion to
dismiss filed by the defendant interrupts the 30-day period
within which to file an answer. (this is also applicable if the
defendant filed a motion for bill of particulars)
 The motion to dismiss was denied because there was not notice
of hearing and in the meantime the 30-day period lapsed a
motion to declare defendant in default will be granted. This is
because every litigious motion under Rule 15 that you file
including a motion to dismiss, is required to be set for hearing,
and there should be notice of hearing on the part of the movant.
The one who filed the motion. Without that notice of hearing,
the motion to dismiss is considered pro forma.
 If the motion to dismiss is denied an answer should be filed
and not another motion. E.g motion for reconsideraion of the
denial fo the MD.
What if the defendant files an anser but does not furnish a copy of the
answer to the plaintiff can the plaintiff move to declare the defendant in
default? YES, because defendant must furnish the plaintiff a copy of the
answer failure to do so it is deemed to have not been legally filed.. This
is either through personal service or registered mail.
EFFECTS OF DEFAULT
Defendant declared in default is entitled to notices of subsequent
proceedings but shall not take part in the trial.
 Give a notice of the hearing but defendant cannot take part in
trial. Defendant is only allowed to observe and take notes
CASE: LUI ENT. VS ZUELLING
What is the point of being a part of the trial but not having any standing
in court?
The defendant declared in default does not waive all of his or her rights.
He or she still has the right to receive notice of subsequent proceedings.
Also, the plaintiff must still present evidence supporting his or her
allegations despite the default of the defendant.
Meaning of “shall not take part in the trial”
1) Defendant loses his STANDING in court.
2) Defendant cannot participate in the case as a party.
 3) He cannot obtain any affirmative relief from or file any
pleading or motion with the court that declared him in default,
except a motion for relief from order of default.
4) He cannot cross-examine witnesses or object to the
presentation of evidence.
5) He cannot himself present evidence.
CAN A DEFAULTED DEFENDANT PARTICIPATE AS A
WITNESS FOR THE NON-DEFAULTED PARTIES?
 Yes. Because the defaulted party being a witness is not party to
the case.
 There is no provision of the Rules disqualifying parties
declared in default from taking the witness stand for non-
disqualified parties. There is nothing in the rule, however,
which contemplates a disqualification to be a witness in a case.
Default does not make him an incompetent witness. (Cavili vs
Florendo)
RELATIONSHIP BETWEEN THE DEFAULTED DEFENDANT
AND HIS CO-DEFENDANTS
A. Party in default can be a witness for his fellow answering
defendants.
B. Defaulted defendant benefits from any favorable judgment
obtained by his fellow defendants. (there can be no default
judgment against the defaulted defendant if there is another co-
defendant in the case provided that his fellow co-defendant
filed an answer.
RULE 9, SEC. 3 EFFECT OF A PARTIIAL DEFAULT ON ONE OF
THE DEFENDANTS
When a pleading has a common cause of action against several defending
parties and there are some defendants who failed to file their answer, the
answer filed by the other defendants will be applicable to the one who did
not file.
The defendant who did not file an answer wil not be declared a defaulted
judgment because there is a common cause of action against the
defendants. the trial will be based on the answer filed by the other
defendants.
REMEDY OF A DEFAULTED PARTY (remedies are mutually
exclusive not alternative or cumulative)
CASE: Lui Enterprises vs. Zuellig,
A. MOTION TO SET ASIDE THE ORDER OF DEFAULT ->
File a motion under oath to set aside the order of default if
there is showing that his or her failure to answer was due to
fraud, accident, mistake or excusable negligence and he has
a notorious defense.
Effect: defendant is given the chance to present his evidence
against the plaintiff’s.
Steps to set aside the order of default:
1. Defendant must file a motion to set aside the order of default at
any time after notice of declaration default and before
judgment.
2. The motion must be verified and under oath.
3. Defendant must explain why he failed to file an answer due to
FAME (Fraud, Accident [event is beyond the control of the
parties, did not participate in the event, not a party’s fault],
Mistake, Excusable negligence).
4. Defendant must show that he has a meritorious defense
40
B. MOTION FOR NEW TRIAL under Rule 37 within 15 days
from receipt of judgment by default if judgment had
already been rendered before the defendant discovered the
default, but before said judgment has become final and
executory;
When is this filed? Defendant had knowledge of his default
after judgment was rendered BUT before judgment was final
and executory.
Must be filed within the period for taking an appeal or within
15 days from notice of default judgment
Tolls the reglementary period.
Effect: defendant is given the chance to present his evidence
against the plaintiff’s.
C. APPEAL under Rule 40 or 41 within 15 days from receipt
of judgment of default
When is this filed? Being contrary to the evidence or to the
law under Rule 41 sec. 2
Effect: defendant has no right to present evidence on his or her
behalf and can only appeal the judgment for being contrary to
plaintiff’s evidence or the law.
D. PETITION FOR RELIEF FROM JUDGMENT under
Rule 38 within 60 days from notice of judgment and within
6 months from entry thereof;
When is this filed? Defendant had knowledge of his default
after judgment has become final and executory.
Effect: defendant is given the chance to present his
evidence against the plaintiff’s.
E. PETITION FOR CERTIORARI under Rule 65 in
exceptional circumstances (60 days)
When is this filed? If the trial court declared defendant
with grave abuse of discretion.
Effect: does not allow the defendant to present evidence on his
or her behalf. The defendant can only argue that the trial court
committed grave abuse of discretion in declaring him or her in
default.
CASE: ARQUERO VS CA
Defendant declared in default has the right to appeal from the judgment
by default on the ground that the plaintiff failed to prove the material
allegations of the complaint, or that the decision is contrary to law, even
without need of the prior filing of a motion to set aside the order of
default except that he does not regain his right to adduce evidence.
Lesson: The only way to appeal a default judgment if it would be if based
on the evidence of the plaintiff only, but the judgment of the court is still
wrong, because again, when you appeal, you can no longer submit
evidence.
LIMITATIONS WHEN A COURT RENDERS JUDGMENT
AGAINST A PARTY DECLARED IN DEFAULT
1. The default judgment should not exceed the amount prayed
for in the complaint.
If the amount proven is below the amount prayed for, that is
the only amount to be granted.
2. The default judgment should not be different in kind from
that prayed for in the complaint.
If you asked for is only 500k and subsequently the court adds
interest, attorney's fees and damages, that is not allowed
because that is different in kind.
 3. The default judgment should not award unliquidated
damages.
Unliquidated damages are those damages that needs to be
proved. (compensatory, moral,actual etc.)
Defendant will have himself declared in default because those
unliquidated damages cannot be awarded by default.
ILLUSTRATION: In the complaint, the claim is P500,000.
The defendant defaulted. The court required the plaintiff to
present his evidence and during the trial, the latter proved
P1,500,000 as the total claim. Can the court award P1,500,000
as proved
WHAT IS THE DIFFERENCE BETWEEN EX-PARTE
PRESENTATION OF EVIDENCE BY VIRTUE OF DEFAULT
JUDGMENT VS EX-PARTE PRESENTATION OF EVIDENCE BY
FAILURE TO APPEAR DURING THE TRIAL?
EX-PARTE PRESENTATION OF EVIDENCE BY VIRTUE OF
DEFAULT JUDGMENT - if you are the court you are not allowed to
grant an excess amount prayed for or a relief not prayed for in the
complaint or different in kind or award unliquidated damages.
EX-PARTE PRESENTATION OF EVIDENCE BY FAILURE TO
APPEAR DURING THE TRIAL- the award may exceed the amount
or be different in kind form that prayed for.
WHEN IS DEFAULT NOT ALLOWED?
 Defending party in an action for annulment or declaration of
nullity of marriage
 legal separation
 Court shall order the Solicitor General or a deputized public
prosecutor, to investigate whether or not a collusion between
the parties exists, or see if the evidence submitted is not
fabricated if the defendant or respondent does not answer.
Effect: If there is no collusion, there is still intervention of the state
in order to see to it that the evidence submitted is not fabricated.
What is the effect? the case would still continue, if there is collusion
the case would be dismissed. In other words, there will be no
default. In fact, the law mandates participation and intervention by
the State.
TESTS:
1. More appropriate action test – considers the real issue by the
pleadings and the ultimate objective of the parties;
 The real issues raised can be fully and completely
settled.
 Case: the Supreme Court ordered the dismissal of
the consignation case, noting that the quieting of
title case is the more appropriate vehicle for the
ventilation of the issues between them. (RAMOS
vs. PERALTA)
2. Anticipatory test- bona fide or GOOD FAITH of the parties is
the critical element.
3. Interest of justice – What is asked is which court would be "in
a better position to serve the interests of justice," taking into
account (a) the nature of the controversy; (b) the comparative
accessibility of the court to the parties and; (c) other similar
factors.
THE ACT OF FILING MULTIPLE CASES IN DIFFERENT
COURTS MAY CONSTITUTE LITIS PENDENCIA OR FORUM
SHOPPING
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 the presence of one may also mean the existence of the other.
CASE: VDA. DE KARAAN versus AGUINALDO, ET.AL.
Forum shopping is committed when multiple suits involving the same
parties and the same causes of action are filed, either simultaneously or
successively, for the purpose of obtaining a favorable judgment through
means other than appeal or certiorari.
Forum shopping can be committed in three ways:
(1) by filing multiple cases based on the same cause of action and with
the same prayer, the previous case not having been resolved yet (which
makes the cases susceptible to dismissal based on litis pendentia)
(2) by filing multiple cases based on the same cause of action and the
same prayer, the previous case having been finally resolved (which makes
the subsequent case susceptible to dismissal based on res judicata)
(3) by filing multiple cases based on the same cause of action, but with
different prayers (which amounts to splitting of causes of action, which
renders the cases susceptible to dismissal on the ground of either litis
pendentia or res judicata)."
ELEMENTS OF FORUM SHOPPING ARE THE SAME AS IN
LITIS PENDENTIA WHERE THE FINAL JUDGMENT IN ONE
CASE WILL AMOUNT TO RES JUDICATA IN THE OTHER:
(1) identity of parties, or at least such parties as would represent the same
interest in both actions
(2) identity of rights asserted and relief prayed for, the relief being
founded on the same facts
(3) identity of the two preceding particulars such that any judgment
rendered in the other action will, regardless of which party is successful,
amount to res judicata in the action under consideration.
RUL E 10, SEC. 1 HOW TO MAKE AMENDMENTS ON A
PLEADING?
 adding or striking out an allegation or the name of any party
 correcting a mistake in the name of a party or a mistaken
 Correcting a mistaken or inadequate allegation or description
in any other respect, so that the actual merits of the
controversy may speedily be determined, without regard to
technicalities, and in the most expeditious and inexpensive
manner.
 Rejoinders cannot be amended
 Why is an amendment not allowed after defendant has served
his responsive pleading? Because it will prejudice the rights of
the defendant . If defendant has already presented his defense
and plaintiff is allowed to amend they can base their
amendments on the defense of the defendant .
 Requires no positive action from the court.
2 MATTER MAY BE AMENDED:
1. Names of the parties
2. Allegations in the pleading.
EFFECT OF INCLUDING ADDITIONAL DEFENDANTS:
1. This is considered as another amendment.
 2. For the new defendants impeladed they are impleaded on the
date of the amended complaint and no on the date of the
original complaint. Because there is no retroative effect.
When do you amend?
 Plaintiff may amend as a matter of right d
CASE: CENTRAL BANK BOARD OF LIQUIDATORS v. BANCO
FILIPINO
Limitation of Pleading:
1. Amendment is NOT ALLOWED if the purpose is to set up a
cause of action not existing at the time of the filing of the
complaint.
2. If no right existed at the time the action was commenced, the
suit cannot be maintained, even if the right of action may have
accrued thereafter.
TYPES OF AMENDMENTS
1. Amendment AS A MATTER OF RIGHT- may only be
exercised only once (Rule 10,sec.2).
 Court has no discretion to deny the amendment.
 Can be done anytime.
 Amendment is allowed BEFORE a responsive
pleading (asnwer or reply ) is served.
 It is possible that there can be no reply because there
might be no actionable document. However,if an
answer is filed, The answer may be amended at
any time within 10 days after it is served.
 No need to file a motion for leave or consent from
the court provided that there is still no responsive
pleading that was filed by the defendant. You just
simply file an amendment.
 If you already filed an amendment to your complaint
and defendant still has not answered and if the
amendment is formal but it is subsequent to a
previous amendment made as a matter of rght, the
subsequent amednment must be with leave of court.
 The court has a MINISTERIAL DUTY to allow and
admit amendments as a matter of right. No need file
a motion to admit an amended complaint (Alpine
Lending Investors vs Corpuz)
 If the court refused to admit the amendment the
remedy is corrected by mandamus. (Breslin vs
Luzon Stevedoring)
 Plaintiff has the right to amend a pleading or
complaint as a matter of right whether a new cause
of action or change in theory is introduced. (Bautista
vs Maya-Maya Cottages, Inc. )
 Amendment as a matter of right is only applicable
before the RTC and not applicable to the CA.
 Plaintiff may still amend a complaint even if there is
already a dismissal rendered by the court provided
that the order of dismissal is not yet final under Rule
36.
 Even if there is no responsive pleading filed but the
order of the trial court dismissing the complaint is
final and executory on whatever grounds,
amendment is no longer allowed. Why? Because a
decision becomes final and executory it meants it is
immutable.
REMINGTON INDUSTRIAL SALES CORP. VS CA
42
 The defendant in this case filed a motion for dismissal on the
ground of failure to state a cause of action. Defendant
thereafter filed a petition for certiorari and prohibition before
the CA because the RTC was wrong in denying its MD.
 Plaintiff then sought to amend his complaint incorporation the
additional factual allegations constitutive of its cause of action
against the defendant contending that no responsive pleading
was ever filed.
 Even if there is pending proceeding for its dismissal the court
can still amend his complaint.
 Na una ang pag file sa amendment complaint from the actual
dismissal of the CA.
WHEN DEFENDANT RECEIVES HIS SUMMONS:
If defendant receives summons he may file:
A motion to dismiss: Plaintiff can still amend his complaint as a matter
of right because this is not a responsive pleading.
Answer: Plaintiff can no longer amend his complaint as a matter of right.
Defendant must include all the defenses available if not these defenses
are deemed waived.
SCENCARIO: Failure to include a certificate of non-forum shopping.
Amendment as a matter of right is still allowed if a motion to dismiss is
filed.
Mistakenly written a date. Amendment as a matter of right is still allowed
if the defendant filed a motion to dismiss based on prescription.
RULE 10, SEC. 3 Amendment as a JURISDICTIONAL RIGHT –
before granted by the court there must be a motion for leave of court.
WHEN IS LEAVE OF COURT REQUIRED:
1. After service of responsive pleading is made. E.g Defendant
has already filed his answer.
2. Amendment is a matter of discretion – evne if there is still no
responsive pleading filed but IT IS NOT THE FIRST
AMENDMENT.
WHEN WILL AMENDMENTS BY LEAVE OF COURT DENIED?
1. THE MOTION WAS MADE WITH INTENT TO DELAY
2. CONFER JURISDICTION TO THE COURT
Discussion: But amendment will still be allowed if there is still no
responsive pleading and is to correct a jurisdictional defect. If there is
already a responsive pleading filed, the grant of amending a complaint is
upon the deiscretion of the court through a positive action otherise, the
grant of the amendment would be acting on a complaint which it has no
jurisdiction over the subject matter.
3. PLEADING STATED NO CAUSE OF ACTION FROM
THE BEGINING WHICH COULD BE AMENDED
if the complaint failed to include condition precedents were complied
with, it can be amended. This is in connection with under sec. 5of Rule 10
where situations not alleged or raisde in the pleadings but during the
course of trial it was raised but there was no objection theire is an implied
consent. BUT if there is LACK OF CAUSE OF ACTION it cannot be
cured by mere amendment because the cause of action has not yet
accrued.
SCENARIO: Even if there is failure to comply with the rules on proper
certification under rule 7 sec. 5 on proper certification against forum
shopping but if the SC said because the amendment is still a matter of
right and no responsive pleading is still filed, amendment is still a matter
of right.
WHAT IF… A responsive pleading is already filed and you are seeking to
amend your complaint because it did not comply with the rules on
certification against forum shopping. It will be now at the discretion of
the court. If the motion to amend the complain is denied, the remedy is
REFILING OF YOUR COMPLAINT but you have to pay docket fees
again.
 Substantial amendments may be made only upon
leave of court and not just mere clerical or formal
amendments.
 Even if a responsive pleading is not yet filed but the
amendment is not the first amendment , LEAVE OF
COURT IS STILL REQUIRED.
 Leave of court is required for an amendment to be
made after service of a responsive pleading.
 File a motion for leave to file the attached amended
complaint.
 If the amendments are already done twice.
 even if no responsive pleading has been served and
even if the amendment is merely formal, if the
amendment is subsequent to a previous amendment
made as a matter of right, the second amendment
must be with leave of court.
 the plaintiff can no longer amend his complaint as a
matter of right if he is doing it, not for the first time.
 If he already previously amended his complaint as a
matter of right, it cannot be done twice. The second
amendment, even if the defendant has not filed an
answer yet, will always be a matter of judicial
discretion. In other words, it will now need a leave
of court.
NOTE: Amendment, if made as a matter of right, is allowed even if there
is an allegation of a new cause of action or a change in theory.
(BAUTISTA v. MAYA-MAYA COTTAGES, INC., G.R. NO. 148411,
November 29, 2005)
Section 2 refers to an amendment made before the trial court, not to
amendments before the Court of Appeals. The Court of Appeals is
vested with jurisdiction to admit or deny amended petitions filed before
it.
EXAMPLE: When the defendant is served with summons, he may opt
either to file an answer or a motion to dismiss.
If the defendant files an answer, the plaintiff cannot amend his pleading
anymore as a matter of right.
Before service of the answer upon the plaintiff, he may still amend his
pleading as a matter of right and it doesn’t matter if he subsequently
receives the answer immediately after filing the amendment.
EXAMPLE: Maja sued Pia for non-payment of a loan, she attached
therein a contract of loan dated January 14, 2019. Upon being served with
summons, Pia filed a motion to dimiss on the ground that Maja already
filed a prior action on the debt dates January 14, 2019. However, Maja
realized that the claim in her complaint for the January 14, 2019 debt was
a clerical error. She should have alleged instead that it was the January
14, 2020 debt that she was collecting.
Ans: Maja can still file an amendment as a matter of right because filing a
motion to dismiss is not a responsive pleading.
EXAMPLE: Maja sues Pia for non-payment of a loan but she failed to
attach a certification of non-forum-shopping. Under Rule 7, Section 5,
failure to comply with the requirement shall be cause for the dismissal of
the case without prejudice, unless otherwise provided, upon motion and
after hearing. Upon being served with summons, Pia files a motion to
dismiss on the ground that there was no certification attached.
43
Ans: An amendment as a matter of right prior to the filing of a responsive
pleading is not affected by Rule 7 Section 5. Hence, amendment can still
be done even if there is no certificate of non-forum shopping attached to
it.
Violation of Rule 7, sec. 5 may be affected when it pertains to amendment
as a matter of judicial discretion hence, a motion for leave of court is
necessary.
WHAT IF THE COURT PROCEEDED TO DISMISS THE CASE IN
A MOTION TO DISMISS?
Amendment as a matter of right will not be affected by the order of
dismissal of the original complaint as long as it is not yet final.
WHAT WILL HAPPEN IF YOUR MOTION TO DISMISS WAS
DENIED?
Case will continue and the plaintiff can amend the complaint as a matter
of right. The denial made by the court will become an interlocutory order.
This is an order which leaves something to be done by the court, even if
the court already issued the order.
WHEN IS THE PRESCRIPTV PERIOD INTERRUPTED WHEN AN
AMENDMENT IS ALLOWED?
If the amendment introduced a new and different cause of action , the
prescriptive period os interruped upn the filing of the amended complaint.
If the amendment has not altered or changed the original cause of acton,
the interrutption of the prescriptive period retroacts on the date of the
filling of the original complaint.
RULE 10, SEC. 4 FORMAL AMENDMENTS
Formal amendments is allowed as matter of right even if the defendant
has filed a responsive pleading because such formal amendments can be
done ANYTIME and SUMMARILY corrected by the court.
WHEN IS AN AMENDMENT FORNAL?
1. Involves designation of parties
2. Clerical or typographical errors
Note: It must be taken into consideration whether it will cause prejudice
to the adverse party by the amendment. E.g amenment will alter the
defeanse.
CAN AMENDMENT CURE DEFECETS OF JURISDICTION?
YES. Amendment is allowed before a responsive pleading is served even
if its effect is to correct a jurisdictional defect. If a responsive pleading is
already serve then the amendment is denied.
EXAMPLE: Plaintiff filed an action for forcible entry before the RTC.
Defendants filed a motion to dismiss alleging that the court has no
jurisdiction over an action for forcible entry. In order to cure the
jurisdictional defect plaintiff amended the complaint without waiting for
resolution of the motion to dismiss. The trial court admitted the amended
complaint, ordered the defendants to answer it and denied the motion to
dismiss.
CASE: TIRONA VS ALEJO
 Amendments of the complaint may be allowed even if an order
for its dismissal has been issued as long as the order of
dismissal is not yet final.
 But amendment is not allowed if the court has no original
jurisdiction over the original complaint and the purpose of the
amendment is to confer jurisdiction upon the court, or where
the action originally pleaded in the complaint was outside the
jurisdiction of the court.
BAR Q: When an original complaint is amended, when is the
prescriptive period for filing the action interrupted? Upon filing of the
original complaint or upon filing of the amended complaint?
Answer: It depends to the amendment that you introduced. If the
amendment introduces a new and different cause of action, then the
prescriptive period is deemed interrupted upon the filing of the amended
complaint. Where the amendment has not altered or changed the original
cause of action, no different cause of action is introduced in the amended
complaint, then the interruption of the prescriptive period retroacts on the
date of the filing of the original complaint.
RULE 10,SEC. 5
 This is based on estoppel becaue the parties expressly or
impliedly agreed to try the issues not raised in the
pleadings.
First situation: Evidence is introduced on an issue not alleged in the
pleadings and no objection was interposed by the other party.
General rule: Court only acquires jurisdiction only on issues raised by
the parties in their pleadings.
Exception: When issues are not raised in the pleadings are tried with
express or implied consent of the parties. (corelate this with Rule 9,sec. 1)
****So parties to the case do not have any objection if an evidence is
presented over an issue not alleged in the pleadings. Court can still
acquire jurisdiction.
When is there express or implied consent?
Express – parties agreed that a particular issue which was not raised in
the pleadings will be tried.
Implied - one party raises an issue not raised in the pleadings and the
adverse party failed to object.
Second situation: Evidence is offered on an issue not raised in the
pleadings but there is an objection.
ALWAYS REMEMBER: Court only acquires jurisdiction over and can
act only on issues raised by the parties in their pleadings.
if a party introduces evidence on matters not within the issues made by
the pleadings, the adverse party can object on the ground that the
evidence is immaterial to the case. If the objection is proper, the court can
order the party to desist from presenting such evidence or expunge from
the records any immaterial evidence already received.
RULE 10,SEC. 7 HOW TO AMEND PLEADINGS?
Submit a new copy of the entire pleading and place marks where the
amendments are.
Rule 10, sec. 8 AMENDED PLEADINGS SUPERSEDES THE
ORIGINAL PLEADING.
EFFECTS OF AMENDMENT:
1. Amendment supersedes the original complaint only if the
amendment introduces a new or different cause of action.
2. If the original complaint is superseded it is not required that a
new service of summons is required.
 Defendants have already appeared before the cour. No new
summons is required even if new cuase sof action are alleged
because the court already acquired jurisdiction.
44
 If defendants have not yet appeared in court, new summons
must be served on because court hasnot yet acquired
jurisdiction.
 When there is a new defendant impleaded summons must be
served upon him.
3. Admission made in the original pleading stops being judicial
admissions.
General rule: Original complaint is deemed abandoned if amended
pleading introduces a new or different cause of action
Exception: Amendment is clerical or clarificatory only
What will happen to the admissions made in the original pleading?
Ceases to be judicial admission and are considered as extrajudicial
admissions.
Admissions in superseded pleadings may be offered in evidence against
the pleader, and in order to be utilized as extrajudicial admissions, they
must be pleaded, proved, and formally offered in evidence.
IS THERE A NEED FOR NEW SUMMONS IF THE COMPLAINT
IS AMENDED?
General rule: No. Because they are already parties to the case. Court
already has jurisdiction over their persons.
Exception: If there are new defendants introduced summons must be
served upon them.
RULE 10, SEC. 6 SUPPLEMENTAL PLEADINGS
How to add supplemental pleadings? Upon motion of the party.
Ground: upon reasonable notice and upon such terms as are just.
WHAT IS A SUPPLEMENTAL PLEADING?
 Bolster or add something to the primary pleading.
 Adding to something that already exists on the record because
you have filed it.
 exists side by side with the original. It does not replace that
which it supplements.
 The original pleading is to stand and that the issues joined with
the original pleading remain as issues to be tried in the action.
 Continuation of the complaint.
 Set up new facts with respect to the same subject matter as the
controversy referred in the original complaint.
 Supplemental pleadings must be germane to the contents of the
original complaint.
 Supplemental pleadings only supply deficiencies in aid of an
original pleadings but not introduce new independent causes of
action.
 The filing of an answer to the supplemental pleading is not
mandatory because of the use of the word “may”. The Court
cannot declare the respondents in default simply because the
latter opted not to file their answer to the supplemental
pleading.
 When the causes of action stated in the supplemental complaint
is DIFFERENT from the causes of action mentioned in the
original complaint the court should not admit the supplemental
complaint.
ANSWERS TO A SUPPLEMENTAL PLEADING IS NOT
MANDATORY
Rule 11, sec. 7 provides that a supplemental complaint must be answered
within 20 calendar days. If no new or supplemental pleading is filed, the
answer to the complaint shall serve as the answer to the supplemental a new cause of action which would lead to different defenses. Hence,
petition. there should be a new pre-trial brief.

Court cannot declare the respondents in default if they opted to not file
the answer to the spplemental petition.
CASE: CENTRAL BANK BOARD OF LIQUIDATORS V. BANCO
FILIPINO
“Banco Filipino, through the Second Amended/Supplemental Complaint,
attempted to raise new and different causes of action that arose only in
1994. These causes of action had no relation whatsoever to the causes of
action in the original Complaint, as they involved different acts or
omissions, transactions, and parties.”
CASE: REPUBLIC v. TETRO ENT (If a case is remanded)
When the case was remanded to the RTC for the purpose of computing
the damages, the case was not considered a new case where an
amendment of the complaint may still be allowed. Rather, it is merely a
continuation of the trial of the original complaint only for the purpose of
receiving the evidence of the damages which respondent allegedly
suffered as alleged in the original complaint.
CASE: EJERA VS METRO AND VERGARA
A motion to dismiss the original complaint can be resolved even before
the admission of the supplemental complaint.

Supplemental pleadings are only allowed if it sets forth transactions, Rule 11 ,sec. 1 WHEN TO FILE RESPONSIVE PLEADINGS
occurrences, or events that happened since the date of the pleading sought
to be supplemented. When a defendant receives summons, the defendant has 4 options:

Limitation to a supplemental pleading: 1. File a motion to dismiss

2. File an answer
Only bolster or add something to the primary pleading. 3. File a motion for bill of particulars
4. File a motion for summary judgment.
Function is to set up new facts that justify, enlarge, or change the kind of
relief sought with respect to the same subject matter as that of the original The answer must contain: Rule 8,sec. 1
complaint.
 methodical and logical form
Must be founded on the same cause of action as that raised in the original  a plain, concise and direct statement of the ultimate facts,
complaint. The matter must be germane and intertwined with the cause of including the evidence on which the party pleading relies for
action stated in the original complaint so that the principal and core issues his or her claim or defense
raised by the parties in their original pleadings remain the same.
1ST OPTION: FILING AN ANSWER UNDER RULE 11,SEC. 1
When amending a complaint it must not set up a cause of action not
existing at the time of the filing of the complaint, it is not allowed. General Rule: File an answer to the complaint within 30 days AFTER
service of summons.
AMENDED PLEADINGS SUPPLEMENTAL
PLEADINGS Exception: Unless a different period is fixed by the court.
Contains transactions, Contains transactions, occurrence
occurrences or events that or events did not exist at the time  When can the court fix a different period?
already happened when the the original pleading was filed but a. Rule 14, sec. 16 Service upon a defendant whose identity
original pleading was filed and only happened after the filing of or whereabout is unknown. Answer may be filed within
could have been raised at the the original pleading and 90 calendar days from the commencement of an action…
original pleading, but pleader therefore, could not have been b. Extraterritorial service – filing a case against a defendant
failed to raise in the original raised in the original pleading. who does not reside & not found in the Philippines.
pleading because, oversight or  The action filed must affect the personal status of
inadvertence or inexcusable the plaintiff or related to a subject or property within
negligence.
the Philippines or property of defendant has been
Amended pleading superseded Does not supersedes the original
attached within the Philippines
the original pleading. pleading which then results to
Original pleading is erased. having 2 pleadings that stand side  Service may be effected by leave of court by
by side. personal service as provided for in international
Filing of an amended pleading Filing a supplemental pleading is conventions or publication in a newspaper of general
is a matter of right or judicial always a judicial discretion.(not a circulation.
discretion. matter of right)  Service of summons shall not be less than 60 days.
Filing an amended pleading Supplemental pleadings relates
does not retroact to the date of back to the date of the How to compute the period to file an answer? (Article 13 of the New
the filing of the original commencement of the action, and Civil Code in relation to Rule 22, sec. 1 and sec. 2)
pleading. Hence, the statute of is not barred by the statute of
limitation runs until the limitations which expired after the a. First day SHALL BE EXCLUDED and the last day is
submission of the amendment. service of the original complaint. INCLUDED.
b. If the last days 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.
CASE: VDA DE AGATEP v. ROFRGUEZ (if another party is
impleaded) Rule 22, sec. 1 HOW TO COMPUTE TIME

If an amended complaint is filed for the purpose of impleading It is still the same with Article 13. The first day shall be excluded, and the
another party as defendant, where no additional cause of action was last day included in counting the period
alleged and the impleaded defendants merely adopted and repleaded
all the pleadings of the original defendants, another pre-trial is not 2ND OPTION: FILING A MOTION FOR BILL OF PARTICULARS
required and a second pretrial brief need not be filed. BUT if there is
45
  Period of 30 days within which to file the answer will remain
but the 30 days will be interrupted in the middle if within the
period a motion for bill of particulars is filed.
EXAMPLE: Defendant files a motion for bill of particulars asking for a
more definite complaint. What could happen?
1. If the court granted the motion for bill for particulars, upon the
receipt of the bill of particulars, defendant’s time to file an
answer begins to run again.
2. If the court denied the motion for bill of particular, upon
receipt of order of denial, defendant’s time to file an answer
begins to run again.
EXAMPLE: Suppose the defendant filed his motion for bill of particulars
on the 20th day out of the 30 days. How much time does he have left
counting from receipt of the bill or the order denying his motion to file
his answer?
Rule: the moving party may file his or her responsive pleading within the
period to which he or she was entitled at the time of filing his or her
motion.
The defendant has the remaining period, or 10 days, within which to file
his answer.
EXAMPLE: Suppose that the defendant filed his motion for bill of
particulars on the 27th day. How much time does he have left counting
from receipt of the bill or the order denying his motion to file his answer?
Three days?
Rule: within the period to which he or she was entitled at the time of
filing his or her motion, which SHALL NOT BE LESS THAN FIVE (5)
CALENDAR DAYS IN ANY EVENT."
Defendant still has five calendar days left.
When it comes to a motion for bill of particulars the period within which
to file an answer is either between 5 days minimum or the remaining days
left whichever period is higher.
3RD OPTION: FILING A MOTION TO DISMISS
 When a motion to dismiss is filed there will be no hearing. The
court will only look into the motion.
A. Motion to dismiss is GRANTED = Defendant WINS
B. Motion to dismiss is DENIED= Defendant MAY STILL FILE
a motion for extension to file an ANSWER because filing of a
motion to dismiss interrupts the running of the prescriptive
period within which an answer may be filed
Within what period can he file an answer? Rule 22, sec. 2
Rule 22, Section 2. Effect of Interruption. –if there is an act
done that interrupts the period, the allowable period after such
interruption shall start to run on the day after notice of the
cessation of the cause thereof.
The day of the act that caused the interruption shall be
excluded in the computation of the period.
1st par: “the allowable period after such interruption shall
start to run on the day after notice of the cessation of the
cause thereof. “
Upon your receipt of the order denying your motion, the
remaining period shall begin to run again (on the day after
notice of the cessation of the cause thereof).
NOTE: The big difference between motion to dismiss and bill
of particulars is that the period to file a motion to dismiss after
46
interruption can be less than 5 days. So no matter how many
days are left that will be the number of days to file an answer
and it may be less 5 than days.
You are entitled to the REMAINING PERIOD.
2nd par: "the day of the act that caused the interruption shall
be excluded in the computation of the period.”
Meaning: in the case of denial of a motion to dismiss, you do
not count the date when you filed the motion in computing the
remaining period.
EXAMPLE: The defendant received summons on February
1. He filed a motion to dismiss on February 15. When he
filed a motion to dismiss, the running of the period within
which to file an answer was interrupted.
How many days have lapsed? 15 minus 1 is 14. So, 14 days
have elapsed.
How many days left to file an answer?
Rule: you do not count the day when you filed a motion to
dismiss in computing the remaining period because it is part of
the days in which the motion was pending the consideration of
the court even if you filed it at 4:59PM, though only one
minute is left for the consideration of the court as to the
pending motion.
The law says that the day of the act that caused the interruption
shall be excluded, that one minute remaining is actually
equivalent to one day that will be excluded. That is the effect.
The filing of a motion to dismiss is the act that caused the
interruption.
If the defendant received summons on February 1 and filed a
motion to dismiss on February 15, while there are actually 14
days that passed, you do not count the day when the motion
to dismiss was filed which is February 15. In effect, what
you are going to do is to count only from February 1 to
February 14. So, from February 1 to February 14, 13 days
have elapsed. Period to answer of 30 days minus 13 days
that elapsed means that you still have 17 days to file your
answer.
CASE: LABITA ET. AL. VS CA
Rule 22,sec. 1
a. First day SHALL BE EXCLUDED and the last day is
INCLUDED.
b. If the last days 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.
Rule 22,sec. 2
Rule 11 sec. 2 ANSWER OF A DEFENDANT FOREIGN PRIVATE
JURIDICAL ENTITY
 Party is a domestic corporation
 Shall file an answer within 60 calendar days after receipt of
summons.
 Correlate Rule 11,sec. 2 with Rule 14, sec. 14 where service of
summons under Rule 11 is made on the government official
designate by law to receive the same while under Rule 14
service is made on its resident agent designated accordance
with law if there is no government official designate by law or
any officers, trustee, agents, directors within the Philippines.
HOW CAN FOREIGN CORPORATIONS BECOME PARTIES TO
A CASE?
 a. Can be PLAINTIFFS
WITH LICENCSE -> foreign corp. can sue in the Philippine
courts
WITHOUT LICENSE -> can only sue if it an isolated
transaction.
b. Can be DEFENDANTS - have a license to operate in the
Philippines or they are transacting business in the PH
One cannot sue a foreign private coporation which is not doing business
in the PH or did not transact any business in the PH which did not
transact busines in the PH.
SERVICE OF SUMMONS ON A FOREIGN CORPORATION MAY
BE MADE ON:
1. Resident agent designated in accordance with the law.
 service is exclusively served upon the designated
agent and no one else.
 Service upon the resident agent is service upon the
foreign corporation.
 Resident agent has the duty to notify the
commission if there is a change in address of the
said resident agent so that he can be served with
summons on behalf of the Corporation.
 Time to file an answer is within 30 days.
 Resident agent is an ordinary defending party.
HOW TO CHOOSE A RESIDENT?
Individual resident: must be of good moral character and of sound
financial standing.
Domestic corporation:must be of sound financial standing and show
proof that it is in good standing as certified by the Commission.
WHAT HAPPENS IF THE FOREIGN CORPORATION LOSES ITS
RESIDENT AGENT BUT STILL HAS A LICENSE TO DO
BUSINESS?
a) Foreign corp. must nominate another resident agent.
b) In the meantime if there is no resident agent yet nominated
service can be made on the proper government official or on
any of its officers, agents, directors, or trustees within the
Philippines.
2. If there is no resident agent it will be the government official
designated by law
 Proper government official designated is the SEC.
 If the service of summon is made upon the SEC, it
must mail a copy of the summons or other legal
processes to the corporation at its home or principal
office within 10 days.
 There will only be complete service upon the
commission if there is a sending of such copy.
 Time to file answer is within 60 days because the
government official still has to transmit the foreign
corporation the summons.
3. Any of its officers, a, gents, directors, or trustees within the
Philippines (summons is served to any of them and the court
automatically have jurisdiction over the foreign entity)
WHAT HAPPENS WHEN A FOREIGN CORPORATION DOES
NOT HAVE ANY DESIGNATED RESIDENT AGENT and is not
doing business in the Philippines but transacted business in the
Philippines?
47
Rule 14,sec. 14 summons shall be served to the government official
designated by law (SEC) to receive the same. The government official has
30 days to file an answer while the foreign corporation has 60 days.
WHAT HAPPENS WHEN THE FOREIGN CORPORATION THAT
DOES NOT HAVE ANY LICENSE TO DO BUSINESS IN THE
PHILIPPINES(THUS NO RESIDENT AGENT) IS SUED ON AN
ISOLATED TRANSACTION?
Rule 14, sec. 17 Defendant does not reside in the Philippines (no resident
agent)
 Service may be by leave of court effected outside of the
Philippines by personal service.
 Publication in a newspaper of general circulation.
 If the relief is granted the defendant must answer not less than
60 days.
 Period is counted form the day of receipt because the
corporation may be abroad.
Rule 11, sec. 3 PERIOD TO FILE AN ANSWER TO AN AMENDED
COMPLAINT
A. AMENDMENT AS A MATTER OF RIGHT (filed by the
plaintiff)
 Before there is service of responsive pleading
 Defendant shall file within 30 calendar days after
being served a copy. Because of the reason that the
amended pleading supersedes the original complaint
thus entitling the defendant to a fresh period to
respond. (Amendment pleading supersedes the
original complaint)
B. AMENDMENT NOT AS A MATTER OF RIGHT
(JURISDICTIONAL DISCRETION)
 After service of responsive pleading
 Defendant shall answer within 15 calendar days
from notice of the order.
 This has lesser days to file because when a motion
for leave of court to file something is filed what you
want to file either a pleading or a motion is and
should be attached to the motion for leave.
Logic: defendant already knows what the proposed
amendments because it is already attached in the
motion for leave even before it is granted.
C. If there is no answer to the amended complaint, the answer
EARLIER FILED may serve as the answer to the amended
complaint.
 Defendant may choose not file an answer to the
amended complaint because the answer already filed
can be used for the amended complaint.
D. This rule is also applicable to amended counterclaim,
crossclaim and amended 3rd, 4th, 5th party complaint.
Rule 11, sec. 4 PERIOD TO ANSWER A COUNTERCLAIM OR
CROSSCLAIM
A. Must be within 20 calendar days from service or when the
adverse party received the copy.
B. If the plaintiff chooses not to answer the counterclaim, plaintiff
will be declared in default and loses his standing in the
counterclaim but still has his standing in the main claim.
CAN THE PLAINTIFF CHOOSE NOT TO ANSWER A
COUNTERCLAIM ?
Yes. If the counterclaim is so intertwined with the main action. If the
plaintiff would answer the main claim the answer in the counterclaim is
repetitive.
Ex. Compulsory counterclaims are not required to be answer because the
complaint is the answer to it.
Rule 11, sec. 5 PERIOD TO ANSWER A 3 RD PARTY COMPLAINT
ETC. IS THE SAME WITH FILING AN ANSWER TO A
COMPLAINT.
 This is filed for the purpose of contribution, indemnity,
subrogation or any other relief in respect of the plaintiff’s
claim.
 This is because the 3rd party is not yet a party to the case. New
summons will be served upon him.
 Requires prior leave of court.
 The 3rd party complaint must already be attached to the motion
for leave.
 If the court grants leave, it will then order the third-party
defendant to be served with summons.
 The third-party defendant’s period to file his answer will be
governed by Section 1 (30 days) or Section 2 (60 days),
depending on whether the defendant is an ordinary defendant
or a foreign corporate defendant.
Rule 11, sec. 6 REPLY IF ALLOWED MAYBE FILED WITHIN 15
CALENDAR DAYS FROM SERVICE OF PLEADING.
 General rule: Filing of a reply is prohibited.
Exception: When the answer pleads an actionable document.
Hence the reply must be filed within 15 calendar days from
service of the pleading.
 NOTE: When an actionable document is attached in a reply, a
REJOINDER may be filed as well within 15 calendar days. As
long as the rejoinder is based on the actionable document.
 Why 15 days? Because a rejoinder is also like a reply.
Rule 11, sec. 7 PERIOD TO ANSWER A SUPPLEMENTAL
COMPLAINT
 Maybe answered within 20 calendar days from notice of the
order unless a different period is fixed by court.
 If there is no supplemental answer filed, the answer to the
complaint is the answer to the supplemental complaint.
 Filing a supplemental complaint is not a matter of right hence a
motion for leave of court is required.
 Why 20 days?
1. Defendant does not have to refute all the allegations in the
supplemental complaint all over again. He simply has to
answer the allegations regarding the new transaction or
occurrence that took place after the filing of the
complaint.
2. A new cause of action is impleaded hence defendant
might need a new evidence to counter it.
Rule 11, sec. 9 and 10
In sec. 9 the counterclaim or crossclaim has not yet matured or not yet
available.
 REMEDY: with the permission of the court, the counterclaim
or crossclaim may be presented by supplemental pleading
before judgment.
In sec. 10 the pleader forgot to plead the counterclaim or crossclaim
because of oversight, inadvertence or excusable neglect or when justice
requires.
 Motion for leave of court to set up the counterclaim or
crossclaim by amendment before judgment.
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Rule 11, sec. 11 EXTENSION OF TIME TO FILE AN ANSWER
1. The motion for extension must be based on meritorious reasons
2. The defendant can only request an additiona; period of not
more than thirty (30) calendar days. The court shall also not
grant a period of extension exceeding thirty (30) calendar days;
3. A defendant is only allowed to file 1 motion for extension of
time to file an answer
4. The motion must be filed before the expiration of the original
period for filing an answer. (PNB vs Deang Marketing Corp.)
NOTE:
General rule: A motion for extension to file any pleading, other than an
answer, is prohibited and considered a mere scrap of paper.
 Filing of a counterclaim, or a reply, or a rejoinder is not
included. Only the period to file an answer can be extended.
 Parties filing responsive pleadings other than the answer must
endeavor to file [the pleading] on time.
Exception: The court, however, may allow any other pleading to be filed
after the time fixed by these Rules.
[if party really tried to finish and file the responsive pleazding within the
given period but just ran out of time.]
 How ? file a motion for leave to file belated pleading in
compliance with Rule 15,sec. 10 where the motion should
already attach the pleading that you wanted to file after the
proper period.
 This is only allowed if there is no declaration of default on the
part of defendant despte the lapse of the reglementary period
and invoke the reasons why I was not able to file the answer on
time.
 If there declaration of default then the only motion allowed is a
motion to set aside the order of default .
RULE 12 BILL OF PARTICULARS
1. Before responding to a pleading.
A BILL OF PARTICULARS – allegations in the complaint are vague
and uncertain, is intended to afford a party not only a chance to properly
prepare a responsive pleading but an opportunity to prepare an intelligent
answer.
PURPOSE: To enable intelligently prepare his responsive pleading.
Party cannot answer because he cannot understand.
To be able to first clarify the allegations in the pleading that the
defendants wants to respond to.
If it is the defendant who will file the motion for bill of particulars, it is
the plaintiff who will file the bill of particulars if such motion is granted.
Why? To enable him to properly prepare his or her responsive pleading.
WHEN TO FILE A MOTION FOR BILL OF PARTICULARS?
General rule: must be filed before responding to a pleading and within
the period specified under Rule 11.
Why before? Because it means that you understood the allegations in the
complaint, no vagueness.
Exception: If the pleading is a reply the motion for bill of particulars
must be filed within 10 calendar days from service.
The motion for bill of particulars must state the defects, which paragraphs
they are contained and the details that they desire to be corrected.
PERIOD TO FILE A MOTION FOR BILL OF PARTICULARS
Directed to a complaint – should be filed within 30 days from receipt of
summon.
Directed to a counterclaim – 20 days from service to counterclaim.
Directed to a REPLY – 10 calendar days from service of the reply.
CASE: REPUBLIC VS SANDIGANBAYAN
A party's right to move for a bill of particulars in accordance with Section
1 of Rule 12 when the allegations of the complaint are vague and
uncertain is intended to afford a party not only a chance to properly
prepare a responsive pleading but also an opportunity to prepare an
intelligent answer.
Purpose is to make sure that that the plaintiff and defendant understand
the matters in contention.
EFFECT OF BILL OF PARTICULARS: Under Rule 12 ,sec. 6 a bill
of particulars become part of the pleading for which it is intended.
 The bill of particulars exists side by side with the pleading that
you asked to be clarified.
 When clarifying in a bill of particulars, the clarifications made
become judicial admissions in the pleadings regardless whether
what was clarified is moral or immoral, legal or illegal. It then
forms part of the complaint which the plaintiff can no longer
contradict or present proof negating the fact that such
information is not immoral or illegal.
 He is bound to the admission in the bill of partculars.
EFFECTS OF BILL OF PARTICULARS: Interrupts the running of the
period within which to file a responsive pleading (Rule 12, sec. 5)
because the issues of the case are not joined because how could an
intelligent answer be filed if the complaint is vague and uncertain..
If there was already service for the bill of particulars or there is denial of
such motion, the moving party may file the responsive pleading within
the period he was entitled to but must not be less than 5 days.
WHAT COULD HAPPEN WHEN A DEFENDANT FILES A
MOTION FOR BILL OF PARTICULARS?
1. First, the court could grant his motion and order the plaintiff to
serve the defendant a bill of particulars.
Upon receipt of the bill, the defendant’s time to file an answer
begins to run again;
2. The court could deny his motion.
Upon receipt of the order of denial, the defendant’s time to file
an answer begins to also run again.
EXAMPLE: Suppose that the defendant filed his motion for bill of
particulars on the 20th day. How much time does he have left counting
from receipt of the bill or the order denying his motion to file his answer?
ANS: 10 DAYS.
EXAMPLE: Suppose that the defendant filed his motion for bill of
particulars on the 20th day. How much time does he have left counting
from receipt of the bill or the order denying his motion to file his answer?
ANS: 5 DAYS under RULE 12 SEC. 5
WHEN IS PERIOD NOT INTERRUPTED?
49
1. If it appears that it was filed manifestly for delay and was entirely
without merit (National Waterworks, et al. vs. NWSA Consolidated
Union, et.al., G.R. No. L-27463, L-27503 & L-27504, May 16 1969)
2. If the filed motion is not sufficient in form and substance or does
not comply with the general requirements of motions under Rule 15.
When will a motion for bill of particulars suspend the reglementary
period to answer?
If the filed motion is sufficient in form and substance having complied
with the general motions under Rule 15.
a. Motion must be accompanied by a notice of hearing and proof
of service
 Failure to serve renders the motion a scrap of paper.
b. State the exact time and place of hearing.
Note: failure to follow the rules renders the motion defective and does not
interrupt the running of period within which to file an answer.
WHEN CAN YOU NOT USE BILL OF PARTICULARS?
a. not proper for matters that can be averred generally
b. call for the production of the particulars constituting malice,
intent, knowledge or condition of the mind which, under the
Rules (Section 5, Rule 8, ROC) may be averred generally.
c. Conclusions of law can only ba set-up as an affirmative
defense.
What are considerde as conclusions of law?
 Deceit, machination, false pretenses and other
fraudulent means if alleged without facts are
insufficient.
 Capacity to sue and be sued.
 Authority to sue and be sued.
Example for motion for bill of particulars:
1. motion for bill of particulars to specifically aver the capacity to
sue of the plaintiff.
2. Motion for bill of particulars to clarify statements of
conclusions. (allegations here are vague, indefinite or in the
form of conclusions.)
3. A motion to dismiss was first filed where the allegations were
not particular with the information the proper recourse by the
court is not to dismiss the motion to dismiss but treat the
motion as one for bill of particulars and require plaintiffs to
submit a more definite statement.
HOW IS A BILL OF PARTICULARS FILED?
1. Separate pleading
2. Amended pleading serving a copy to the asverse party.
WHAT CAN THE COURT DO UPON RECEIPT OF THE
MOTION?
 Clerk of court must immediately bring it to the
attention of the court.
 Court will either deny or grant the motion or allow
the parties opportunity to be heard. (this is not a
preferred action because it will delay everything. It
will be counterproductive.)
MODES OF COMPLIANCE IF MOTION IS GRANTED BY THE
COURT
 1. Comply with the motion within 10 days from notice of order
unless a different period is fixed.
2. The bill of particulars may be file either in a separate or
amended pleading serving a copy to the adverse party.
IF THE COMPLIANCE IS NOT OBEYED (Non-compliance is a ground
for MOTION TO STRIKE.)
Section 4 is VERY STRICT,
Order not obeyed or insufficient compliance = STRIKING OUT OF
THE PLEADING OR THE PORTIONS THEREOF TO WHICH THE
ORDER WAS DIRECTED OR MAKE THE ORDER JUST.
 If the pleading is stricken out and it does not anymore state a
cause of action, the case will be DISMISSED.
RULE 12, SEC. 4 EFFECT OF NON-COMPLIANCE
WHEN CAN AN ENTIRE PLEADING BE STRICKEN OUT?
1. If it is a sham pleading or if all, or practically all of its
allegations, are redundant, immaterial, impertinent, or
scandalous;
2. It is a prohibited pleading. (Like filing a reply when there is no
actionable document.)
3. An unsigned pleading or treated as such.
4. Filed by party or counsel that has no standing before the court.
5. A party does not comply with an order to file a bill of
particulars.
CAN THE COURT DISMISS THE CASE IF THERE IS NON-
COMPLIANCE ON THE PART OF THE PLAINTIFF ?
ANS: Yes. It falls under the term “such other order as it deems just” under
sec. 4 and Rule 17,sec. 3
Dismissal due to fault of plaintiff for “failure to comply with these
Rules or any order of the court, the complaint may be dismissed upon
motion of the defendant or upon the court’s own motion, without
prejudice to the right of the defendant to prosecute his or her
counterclaim in the same or in a separate action. “
FILING A MOTION FOR BILL OF PARTICULARS DOES NOT
INTERRUPT THE PERIOD
If the filing of the motion was for delay and entirely without merit. It will
not interrupt the running of the reglementary period to file an answer.
E.g complaint was already clear in the first place.
CASE: FILIPINAS VS FABRICATORS VS MAGSINO
Under the old rules, a motion for bill of particulars must contain the
notice of hearing and proof of service.
In the new rules, notice of hearing is not requires but there is still the
requirement of proof of service of the motion to the other party before
you file that to the court. If there is no proof of service, you can cite this
case and that the motion is defective.
RULE 13 SEC. 1
All pleadings are governed under Rule 13 except service of complaint
which is governed by Rue 14.
RULE 13 SEC. 2
50
Filing – act of submitting the pleading or other paper to the court.
Service- act of providing a party with a copy of the pleading or any other
court submission/ furnishing a copy to the adverse party.
Filing and service go hand -in-hand when determining if pleading is filed.
UPON WHOM SERVICE IS MADE:
1. Party with counsel
General rule: Service or notice must be made upon the counsel on record
(any lawyer is not allowed). If not, notice is deemed null.
Exception: Service upon the party himself is ordered by the court.
 If the notice was in no doubt received by the party represented
by the counsel, such party is still not considered notice in law.
 If the counsel represents several parties, the counsel is entitled
to receive only one copy served by the adverse party.
 If there are several counsels appearing for one party only one
copy of any pleading or paper to be served upon the lead
counsel if one is designated, or upon any one of them if there is
no designation of a lead counsel.
 Notices of all kinds, including motions, pleadings, and orders
must be served on said counsel and notice to him is notice to
the client (PEOPLE vs. GABRIEL, G.R. No. 147482,
December 6, 2006).
 All notices must be served upon counsel because the attorney
is the agent of the party and is the one responsible for the
conduct of the case. Notice to the party is not considered
notice under the law. Because the purpose of the rule is
obviously to maintain a uniform procedure. Does not know the
reglementary periods, client would not actually know what to
do with the pleading. (BRIBONERIA vs. COURT OF
APPEALS)
 Parties, generally, have no formal education or knowledge of
the rules of procedure, specifically, the mechanics of an appeal
or availment of legal remedies; thus, they may also be unaware
of the rights and duties of a litigant relative to the receipt of a
decision.( DE LOS SANTOS vs. ELIZALDE)
 EFFECT OF SERVICE TO THE PARTY (not with his
counsel) - not legally effective and binding upon the party,
does not start the corresponding reglementary period for the
subsequent procedural steps that may be taken by the attorney.
(SORIANO ET AL. VS SORIANO ET AL
2. Party without counsel – service must be made upon the party
himself.
EFFECT OF LACK OF SERVICE:
General rule: Considered not filed and does not toll any period.
Exceptions: Submissions to be filed ex parte because they do not
prejudice any rights.
WHAT IF THERE ARE SEVERAL COUNSELS?
Only one copy to the lead counsel is enough if there is no lead counsel
notice to anyone of the counsels is notice to the party. It is not required
that all counsel will be given notice.
Notice to any one of the several counsel on record is equivalent to notice
to all and such notice starts the time running for appeal notwithstanding
that the other counsel on record has not received a copy of the decision.
(PHILIPPINE PORTS AUTHORITY vs. SARGASSO
CONSTRUCTION & DEV􀍛T CORP., ET AL.)
WHAT IF THEY ARE SEVERAL COUNSELS FROM DIFFERENT
LAW FIRMS?
If a party has several counsels from different law firms notice to either of
the counsel is enough upon the theory that he would notify or relay the
notice to his colleagues in the case. ( NATIONAL POWER
CORPORATION vs. SPOUSES LAOHOO)
WHEN CAN SERVICE BE MADE UPON THE PARTY HIMSELF
EVEN IF PARTY IS REPRESENTED BY COUNSEL? (RETONI
JR. CA245678-=rt
1. When there is doubt who the attorney of such party is.
2. When the counsel cannot be located.
3. When the party is directed to do something personally as when
he is ordered to show cause (opportunity to be heard)
WHAT IF COUNSEL RECEIVED NOTICE BUT THROUG
NEGLIGENCE & MISTAKE FAILED TO ACT APPROPRIATELY,
IS THE PARTY BOUND BY THE RECKLESSNESS OF THE
COUNSEL?
General rule: client is bound by the acts, even mistakes, of his counsel in
the realm of procedural technique.
Exception: the negligence of counsel is so gross, reckless and inexcusable
that the client is deprived of his day in court. (NATIONAL POWER
CORP. SPS LAOHOO)
What if the original counsel resigned but did not file notice of
withdrawal in court. Then a new lawyer entered his appearance. Then
the court issued judgment furnishing copy only to the old counsel. Is
the notice binding upon the client?
YES, the notice will still be binding because the lawyer did not submit a
notice of withdrawal. It is incumbent on the part of the party to notify the
court if counsel did not notify the court.
SERVICE MUST BE MADE AT THE EXACT GIVEN ADDRESS:
CASE: PLDT vs NLRC
Service was made at the ground floor of the building instead at the 9 th
floor where the exact address of the counsel is = SERVICE IS NOT
VALID.
“Notices to counsel should properly be sent to the address of record in
the absence of due notice to the court of change of address. Why?
Because there may several hundred rooms with hundreds of different
employees discharging different functions. A receiving clerk in a given
mailing section may not know the difference between a notice to a lawyer
and the thousands of other communications received by her either by
mail or through personal or commercial messengers and may not act
accordingly.
Service upon a lawyer must be effected at the exact given address of the
lawyer and not in the vicinity or at a general receiving section for an
entire multi-storied building with many offices.”
CASE: PAZ Reyes Aguam vs CA et.al
Notice sent by registered mail is valid as long as it is received by the
address or the duly authorize representative.
“Here, the notice was received by an employee of a realty firm with
which the counsel was sharing office. She was not an employee of
petitioner's counsel. He was a solo practitioner.”
CASE: Philippine Commercial and Industrial Bank vs Ortiz
51
General rule: A counsel can change his address or expressly or impliedly
adopt a different address different from one in the record for purposes of
service.
Counsel cannot thereafter argue that the person who received the notice,
pleading or motion at the new address DID NOT DELIVER IT TO HIM
OR BROUGHT IT TO HIS ATTENTION.
If there was failure of the receiving clerk of the new address to deliver the
notice to them or the counsel’s omission to inquire of the said notice to
the clerk is not an excuse for its negligence hence the party is bound by
the judgment.
Rule 13, sec. 3 MANNER OF FILING
Filing of pleadings and court submissions shall be made by:
1. Submitting personally the original copy to the court.
 Clerk of court shall endorse on the pleading the
DATE and HOUR of filing.
2. Sending through registered mail.
3. Sending through accredited courier.
 Date of the mailing motions , pleadings and other
court submissions AND payments or deposits AS
SHOWN BY THE POST OFFICE STAMP ON THE
ENVELOPE OR THE REGISTRY RECEIPT shall
be considered as the date of their filing, payment or
deposit in the court.
4. Transmitting through electronic mail or other electronic means
as authorized by the court in places where the court is
electronically equipped.
 Date of the electronic submission is considered as
the date of filing.
WHAT IF THE PLEADINGS ETC. ARE FILED THROUGH
ORDINARY MAIL OR PRIVATE MESSENGERIAL SERVICES?
The pleadings are deemed filed ON THE DAY IT IS RECEIVED BY
THE COUR and not on the day it was mailed to the messengerial service.
USING FAX MACHINES:
General rule: FILING A PLEADING by facsimile transmission is NOT
sanctioned by the Rules of Court. Because it is not a genuine and
authentic pleading for it is only an exact copy preserving all the marks of
an original pleading.
But SERVICE through fax machines is allowed.
“Without the original, there is no way of determining on its face whether
the facsimile pleading is genuine and authentic and was originally signed
by the party and his counsel.” (GARVIDA vs. SALES, JR.)
Exception: if what was transmitted is not a pleading and PD No. 1069 and
the RP Hong Kong Extradition Agreement do not prohibit the
transmission of a request for provisional arrest by means of a fax
machine. (CUEVAS vs. JUAN ANTONIO MUÑOZ)
Under this case what is allowed to be faxed: a copy of the warrant of
arrest against respondent, a summary of the facts of the case against him,
particulars of his birth and address, a statement of the intention to request
his provisional arrest and the reason therefor.
RULE 13, SEC. 4 PAPERS THAT ARE REQUIRED TO BE FILED
AND SERVED
a) Judgments- must be filed and served. The judge is the one who
files his judgment before the court.
 b) Appearances 5. Other electronic means as authorized by the court or provided
c) Resolutions; under international conventions to which the Philippines is a
d) Similar papers ; party.
e) Pleadings subsequent to the complaint – must be served to the
adverse party then file to the court. Except complaints it is not RULE 13,SEC. 8 SERVICE TO THE CLERK OF COURT IF IT
served to the adverse party . Complaint is filed to the court and CANNOT BE MADE EITHER PERSONALLY (sec. 6) OR BY
the court will notify through the sheriff, the defendant of the MAIL (sec. 7)
existing case against him.
 If you do not know the address of the office or residence of the
f) Orders
counsel or party.
g) Written motions;
 Substituted Service may be made through the clerk of
h) Notices ;
court and prove why there was failure of service through
i) Demands;
personal service and service by mail.
j) Offers of judgment;
 Service is completed by the time of delivery to the clerk of
6 MODES FOR SERVICE OF PAPERS MENTIONED UNDER court.
SEC. 5

1. Personal Service RULE 13, SEC. 10 PRESUMPTIVE SERVICE OF PLEADINGS,

2. Registered mail JUDGMENT AND OTHER PAPERS
3. Accredited courier
It is presumed that notice is served if such:
4. Electronic mail
5. Facsimile transmission 1. Notice appears on the records that it was mailed at least
6. Other electronic means as may be authorized by the court twenty (20) calendar days prior to the scheduled date of
or provided under international conventions. hearing and if the addressee is from within the same judicial
region of the court where the case is pending.
RULE 13, SEC. 6 WHEN CA PLEADINGS BE SERVED?
2. Notice appears on the records to have been mailed at least 30
1. Personal service calendar days prior to the scheduled date of hearing if
 Must be served by personal delivery of a copy to addressee is from outside the judicial region.
the party, counsel, authorized representative, leaving
EFFECT OF THIS PRESUMPTION: Plaintiff can proceed the
it in the office with the clerk or person in-charge.
hearing ex-parte but defendant can file a motion for reconsideration
 If no person is found in the office, or the office is
explaining that he did not receive any notice that there is this pre-trial on
not known, or counsel has no office, the copy may
the particular date.
be served between 8am and 6pm at the party or
counsel’s residence WITH a person of sufficient age RULE 13, SEC. 11 CHANGE OF EMAIL ADDRESS OR
and discretion residing therein. FACSIMILE NUMBER
 When you see each other in court, you can serve
the pleading or motion to the adverse party or If there was a change of address or number while the actions was
counsel. pending.

RULE 13, SEC. 7 SERVICE BY MAIL
2. Registered mail or Accredited courier
 Applicable to no. 2 and 3.
 Service is through depositing the copy in the post
office in a sealed envelope.
 Envelope must be addressed to the party or counsel
office or residence if not known having already paid
the pre-paid postage.
 There must be instructions to the postmaster to
return the mail to the sender after 10
CALENDAR DAYS if UNDELIVERED.
 If no registry service is available in the locality ,
service may be made through ordinary mail.
 The date of filing Is the date when the pleading
etc. is actually received by the adverse party.
RULE 13, SEC. 9 SERVICE THROUGH ELECTRONIC MEANS
AND FACSIMILE
 File a notice of change of email address or facsimile
number within 5 calendar days from such change
with the court and serve the notice to all other parties.
RULE 13 ,SEC. 12 WHAT IS THE SUBJECET IN THE E-MAIL OR
FAX?
Case number
Case title and the pleading
Order or document title
The body shall contain:
a) the party or parties filing or serving the paper,
(b) nature of the paper
(c) the party or parties against whom relief, if any, is sought

This service is only allowed if the party concerned CONSENTS to such (d) the nature of the relief sought.
modes of service.

3. Electronic mail – send an e-mail to the party or counsel. (Viber RULE 13 ,SEC. 13 SERVICE OF JUDGMENTS, FINAL ORDERS
or messenger are allowed if the parties agreed to it) OR RESOLUTIONS (finally disposing the case)
 Applicable to no. 4,5 & 6
 Allowed if the party concerned consents (Rule 13, a. Personal Service
sec. 9) b. Registered mail
4. Facsimile transmission – send a facsimile copy to the given c. Accredited courier – a copy of the judgment, final order or
facsimile number. resolutions is only allowed if there is an ex parte motion of
52
 any party at the expense of such party who made the motion or
request.
WHAT IF THE DEFENDANT WAS SUMMONED BY
PUBLICATION IN THE CASE, AND EVENTUALLY THERE IS
ALREADY A JUDGMENT RENDERED IN THE CASE. SO HOW
IS THAT JUDGMENT SHOULD BE SERVED?
When a party summoned by publication has failed to appear in the
action, judgments, final orders or resolutions against him or her, service
of judgments, final orders of resolutions shall be served upon him or
her also by means of publication at the expense of the prevailing party
(who won in the case).
RULE 13,SEC. 14 CONVENTIONAL SERVICE OF FILING OF
ORDERS PLEADINGS AND OTHER DOCUMENTS
DOCUMENTS THAT ARE ONLY ALLOWED TO BE SERVED OR
FILED PERSONALLY OR BY REGISTERED MAIL AND SHALL NOT
BE SERVED OR FILED ELECTRONICALLY UNLESS EXPRESSLY
GRANTED BY THE COURT.
1. Initiatory pleadings (complaints) & Initial responsive
pleadings (Ex. Answer)
2. SUBPOENA , protection orders and writs.
3. 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.
4. Sealed and confidential documents or records.
RULE 13 ,SEC. 15 WHEN IS SERVICE COMPLETED?
1. Personal service is complete UPON ACTUAL DELIVERY.
2. Service by ordinary mail IS COMPLETE UPON THE
EXPIRATION OF TEN (10) CALENDAR DAYS AFTER
MAILING, unless the court otherwise provides.
3. Service by registered mail is complete:
 UPON ACTUAL RECEIPT BY THE ADDRESSEE
 OR AFTER FIVE (5) CALENDAR DAYS FROM THE
DATE HE OR SHE RECEIVED THE FIRST NOTICE
OF THE POSTMASTER
 WHICHEVER DATE IS EARLIER.
4. Service by accredited courier is complete
 upon actual receipt by the addressee
 or after at least two (2) attempts to deliver by the courier
service
 or upon the expiration of five (5) calendar days after the
first attempt to deliver, whichever is earlier.
5. Electronic service is complete
 at the time of the electronic transmission of the
document
 or when available, at the time that the electronic
notification of service of the document is sent.
Electronic service is not effective or complete if the party serving the
document learns that it did not reach the addressee or person to be served.
6. Service by facsimile transmission is complete UPON
RECEIPT BY THE OTHER PARTY, as indicated in the
facsimile transmission printout.
REMEMBER: DATE OF SERVICE IS DIFFERENT FROM
EFFECTIVE DATE OF FILING (The date when you mailed it.)
CASE: JOHNSON & JOHNSON vs CA
There can be no constructive service if there is no certification by the
post-master that it was claimed. The certification should include the
details of the delivery like who , when , how it was delivered and whether
it was received by the petitioner.
53
CASE: SANTOS VS CA
Rule on service by registered mail:
1) Actual service - the completeness of which is determined upon
receipt by the addressee of the registered mail.
2) Constructive service - the completeness of which is
determined upon the expiration of 5 days from the date of first
notice of the postmaster without the addressee having
claimed the registered mail.
For completeness of constructive service, there must be conclusive
proof that Santos’ former counsel or somebody acting on his behalf
was duly notified or had actually received the notice, referring to the
postmaster's certification to that effect.
The problem in this case is that there was no information who
received such notices and when.
It is important for the post office to certify that said notices were
reportedly received.
RULE 13,SEC. 16 HOW TO PROVE THAT A PLEADING WAS
FILED AND IT EXISTS IN THE RECORD OF THE CASE.
1. IF THE PLEADING OR ANY OTHER COURT
SUBMISSIONIS NOT IN THE RECORD BUT CLAIMED
TO HAVE BEEN FILED PERSONALLY.
 Filing is proven by the written or stamped
acknowledgement of its filing by the clerk of
court on a copy of the pleading or court
submission.
 From sir: The 4 copies would actually be stamped
by the court as receipt, the date and time of the
receipt. Two of the copies would be taken by the
court as its own copy and the other one would be for
your own file.
For example, the copy of the court got lost, how
would you prove that you filed it? By your own copy
which bears the stamp of the court that it was
received. So, that is how you would prove.
2. IF PLEADING WAS FILED OR ANY OTHER COURT
SUBMISSION WAS FILED BY REGISTERED MAIL
 Filing is proven by the registry receipt and
affidavit of the person who mailed it.
 Must contain the date and place of deposit of the
mail in the post office.
 Must be in a sealed envelope addressed to the
court with fully paid postage.
 With instructions to the postmaster to return the
mail to the sender after ten (10) calendar days if
not delivered.
3. IF PLEADING WAS FILED THROUGH ACCREDITED
COURIER SERVICE
 Filing is proven through an affidavit of service of
the person who brought the pleading or other
document to the service provider, together with the
courier’s official receipt and document tracking
number.
4. IF PLEADING OR ANY OTHER COURT SUBMISSION
WAS FILED THROUGH ELECTRONIC SUBMISSION
 Shall be proven by an affidavit of electronic filing
of the filing party accompanied by a paper copy of
the pleading
 Proven by other other document transmitted or a
written or stamped acknowledgment of its filing by
the clerk of court.
  If the paper copy sent by electronic mail was filed
by registered mail, paragraph (b) of this Section
applies.
5. IF PLEADING OR ANY OTHER COURT SUBMISSION
WAS FILED THROUGH OTHER AUTHORIZED
ELECTRONIC MEANS
 Proven by an affidavit of electronic filing of the
filing party accompanied by a copy of the
electronic acknowledgment of its filing by the
court.
RULE 13,SEC. 17 – HOW TO PROVE PERSONAL SERVICE?
 Written admission of the party served, official return
of the server, affidavit of the party serving
containing the date, place and manner of service.
If the service is made by:
(a) Ordinary mail.
􀍴 Proof shall consist of an affidavit of the person mailing stating the
facts showing compliance with Section 7 of this Rule.
(b) Registered mail. 􀍴 Proof shall be made by the affidavit mentioned
above and the registry receipt issued by the mailing office. The
registry return card shall be filed immediately upon its receipt by the
sender, or in lieu thereof, the unclaimed letter together with the certified
or sworn copy of the notice given by the postmaster to the addressee.
(c) Accredited courier service. 􀍴 Proof shall be made by an affidavit of
service executed by the person who brought the pleading or paper to
the service provider, together with the courier’s official receipt or
document tracking number.
(d) Electronic mail, facsimile, or other authorized electronic means of
transmission. 􀍴 Proof shall be made by an affidavit of service executed
by the person who sent the e-mail, facsimile, or other electronic
transmission, together with a printed proof of transmittal.
Rule 13 ,sec. 18 – COURT -ISSUED ORDERS AND OTHER
DOCUMENTS
 Court may electronically serve orders and other documents to
all the parties.
 Shall have the same effect and validity.
 A paper copy of the order or other document electronically
served shall be retained and attached to the record of the
case.
RULE 13, SEC. 19- NOTICE OF LIS PENDENS
If there is an action that affects the title or the right of possession of real
property, and there is an affirmative relief claimed in his or her answer,
the plaintiff or defendant 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: Generally it is the plaintiff who files a notice of lis pendens because
it is usually for recovery of possession or ownership of the real party.
Plaintiff will the annotate the notice.
Defendant might sell the subject property to a third party. So, if there is
no notice of lis pendens, any third party who deals with that land and
is not aware of any pending litigation because there is notice of lis
pendens, he can be considered an innocent purchaser for value. The
plaintiff cannot recover anymore the property from the innocent
purchaser for value although you can recover for damages against the
defendant.
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The notice shall contain the names of the parties and the object of the
action or defense, and a description of the property in that province
affected thereby.
if it is shown that the notice is for the purpose of molesting the adverse
party or it is not necessary to protect the rights of the party who caused it
to be recorded.
General rule: Court cannot issue the order until the case is finished or
until the final issue of the case is determined. The ROD would require
you to present a certificate of finality because it has to be satisfied that the
judgment of the case is already final and executory.
Exception:
1. if the annotation was for the purpose of molesting the title of
the adverse party; or
2. when the annotation is not necessary to protect the title of the
party who caused it to be recorded
CASE: Republic vs. Heirs of Spouses Molinyawe
Would it be proper to file a case for the cancellation of the notice of lis
pendens in another court, even if the notice of lis pendens was annotated
or registered in a case filed in another court and such case had already
became final and executory?
What is a notice of lis pendens?
A notice of pending action or litigation.
A notice of lis pendens is simply a notice that a suit has been filed which
has an interest in the land on which the notice has been filed.
Mirror Doctrine – anyone deals with registered land is only charged with
notice of those encumbrances or liens which appear on the title.
Scenario:
1. Innocent purchaser for value – you are not bound by the
decision of the court.
2. Not an innocent purchaser for value - essence of notice of lis
pendens is a notice against the whole world against sale or
mortgage of the property under litigation. And whoever deals
with it is accepting the risk. Anybody who buys it is gambling
of the outcome of the case. He cannot claim he is the
mortgagee or buyer in good faith because there is a notice. You
are bound by the decision of the court.
WHO CAN REGISTER A LIS PENDENS?
Both plaintiff and defendant.
Defendant can only register a notice of lis penden when the defendant has
a counterclaim. Ex. Defendant claiming ownership over the property
based on a pact de retro sale. For protection defendant will have to
register.
HOW IS NOTICE OF LIS PENDENS CANCELLED?
General rule: Cannot be removed without the order from the court and
the court cannot issue the order until the case if finished or the issue of
the case is determined.
Ex. You want to cancel a notice of lis pendens annotated in the ROD,
the ROD will require you to present a Certificate of Finality, to certify
that the judgement is final and executory.
Exception: TRIAL COURT’ s inherent power can cancel a notice of lis
pendens based on the 2 grounds:
 1. Annotation for the purpose of molesting the title of the
adverse party.
2. Annotation is not necessary to protect the title of the party
who caused it to be recorded.
CASE: REPUBLIC VS HEIRS OF MOLINYAWE
Is it proper to file a cas for the cancellation of the notice of lis pendens in
another court, even if the notice of lis pendens was annotated or
registered in a prior that is final and executors.
RULE 14 ,SEC. 1
Personal service of summons is prioritized.
What is meant by SUMMONS?
Summons is a document or writ notifying the defendant that a civil action
has begun and that defendant is required to appear and answer the
complaint.
Summons is the writ by which the defendant is notified of the action
brought against him (CANO-GUTIERREZ vs. GUTIERREZ, 341 SCRA
670; GUANZON vs. ARRADAZA, 510 SCRA 309).
SUMMONS IS A WRIT OF RIGHT (FRANCISCO GARCIA vs.
JOHN C. SWEENEY)
A writ of right is a writ to which the parties are entitled upon filing a
petition in proper form, which then issues as a matter of course upon the
mere application (oral or written) therefor.
Any person filing the ordinary petition is entitled to this writ as of right.
Under Sec. 1 of Rule 14, Issuing summons is not mandatory if on the face
of the petition it is dismissible based on the following grounds:
1. Lack of Jurisdiction over the SM
2. Res Judicata
3. Litis pendent is
4. Prescription
Court can immediately dismiss the case. But if the complaint is not
dismissible on its face or those 4 grounds are not present, then the
issuance of summons become ministerial. It can actually be
compelled by a writ of mandamus.
If the court refuses to issue and serve summons upon the defendant even
if the plaintiff has paid the proper fees, what are the remedies of the
plaintiff?
1. Mandamus under (Rule 65)
2. Administrative action against the judge and the officer at fault
(OFFICE OF THE COURT ADMINISTRATOR vs. JESUS M.
BARROSO, JR., ET AL., A.M. No. RTJ-04-1874, October 18, 2004);
3. Invoke the court’s power of administrative control over its officers
under Rule 135, Section 5 of the Rules of Court;
SEC. 5. Inherent powers of courts. - Every court shall have power: xxx
(d) To control, in furtherance of justice, the conduct of its ministerial
officers, and of all other persons in any manner connected with a case
before it, in every manner appertaining thereto; xxx
PURPOSE OF SUMMONS: ARNEL SAGANA vs. RICHARD A.
FRANCISCO
a. to acquire jurisdiction over the person of the defendant and
b. to notify the defendant that an action has been commenced
so that he may be given an opportunity to be heard on the
claim against him.
55
SUMMONS AND ACTIOSS IN PERSONAM
Primary purpose of actions in persona is to acquire jurisdiction over the
person.
For other actions where jurisdiction over the person cannot be
acquired, summons are still required but not to acquire jurisdiction but to
comply with the rules of due process.
HOW TO ACQUIRE JURISDICTION OVER THE PLAINTIFF
AND DEFENDANT?
a. Court acquires jurisdiction over the plaintiff upon the filing of
the complaint.
b. Court acquires jurisdiction over the defendant through the
service of summons or voluntary appearance in court and
submission to its authority.
EFFECT OF LACK OF SUMMONS: If the court proceeds with the
case without having acquired jurisdiction over the person of the
defendant the proceeding in that case would be null and void.
Any judgement also rendered against that defendant over whose person
jurisdiction is acquired is also a nullity.
 Even if the defendant had knowledge about the complaint
or action filed against him SERVICE OF SUMMONS IS
STILL REQUIRED.
 His knowledge of the existence of a case is not one of the
modes by which a court acquires jurisdiction over the person of
the defendant (HABAÑA vs. VAMENTA)
CASE: BIACO vs. PHILIPPINE COUNTRYSIDE RURAL BANK
Judicial foreclosure proceedings are actions quasi in rem. As such,
jurisdiction over the person of the defendant is not essential as long as the
court acquires jurisdiction over the res.
The question of whether the trial court has jurisdiction depends on the
nature of the action, i.e., whether the action is in personam, in rem, or
quasi in rem. The rules on service of summons under Rule 14 of the
Rules of Court likewise apply according to the nature of the action.
 An action in personam is an action against a person on the
basis of his personal liability.
 Jurisdiction over the person of the defendant is
necessary for the court to validly try and decide the
case.
 An action in rem is an action against the thing itself instead of
against the person.
 An action quasi in rem is one wherein an individual is named
as defendant and the purpose of the proceeding is to subject his
interest therein to the obligation or lien burdening the property.
 For both in rem and quasi in rem 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.
 Jurisdiction over the res is acquired either
(1) by the seizure of the property under legal
process, whereby it is brought into actual
custody of the law;
(2) as a result of the institution of legal
proceedings, in which the power of the court is
recognized and made effective.
Conclusion : 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.
The judicial foreclosure proceeding instituted by respondent PCRB
undoubtedly vested the trial court with jurisdiction over the res. A judicial
foreclosure proceeding is an action quasi in rem. As such, jurisdiction
over the person of petitioner is not required, it being sufficient that the
trial court is vested with jurisdiction over the subject matter.
 While the trial court acquired jurisdiction over the res, its
jurisdiction is limited to a rendition of judgment on the res.
 Court cannot rule beyond the res and issue a judgment
enforcing petitioners personal liability because trial court
will violate the constitutional right to due process,
warranting the annulment of the judgment rendered in the
case.
RULE 14, SEC. 2
“A copy of the complaint and order for appointment of guardian ad litem,
if any, shall be attached to the original and each copy of the summons.”
Is the defendant bound to comply with the summons where service was
made without attaching a copy of the complaint?( PAGALARAN vs.
BAL-LATAN)
YES. Even if there had been no complaint or formal summons, no
law or reason whatever justifies the nonappearance of the Defendant after
having been summoned.
“(b) When authorized by the court upon ex parte motion, an authorization
for the plaintiff to serve summons to the defendant;”
 It is the plaintiff who will serve summons to the defendant.
There is a need to file an ex-parte motion first.
 Ex-parte motion - You file directly to the court without a need
of notifying or serving a copy first to the adverse party.
RULE 14, SEC. 3 WHO ARE AUTHORIZED TO SERVE
SUMMONS?
a. the sheriff;
b. his or her deputy;
c. any other proper court officer;
d. Plaintiff (correlate with Rule 14, sec. 2)
 There are 2 instances when plaintiff can be authorized to
serve summons:
a. Mandatory- In cases where summons is to be served outside
the judicial region of the court where the case is pending. It
not served with the sheriff because a sheriff’s jurisdiction is
within its judicial region.
b. Discretionary – Generally, the court officers are the ones
who will primarily serve the summons but in cases where
there was failure of service of summons by the court
personnel and the summons served within the judicial
region the plaintiff together with the sheriff is allowed to
serve the summons.
WHEN SHOULD SUMMONS BE SERVED? (SPOUSES LAUS v.
CA)
Service of summons may be served during:
1. Day or night
2. Everyday even on a Sunday or holiday because of its
ministerial character.
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What if plaintiff says that the summons have been served while in
fact it was not?
If the plaintiff misrepresents that the defendant was served summons, and
it is later proved that no summons was served, the case shall be dismissed
with prejudice, the proceedings shall be nullified, and the plaintiff shall
be meted appropriate sanctions.
What about summons was returned without being served to the
defendant?
Court shall order the plaintiff to cause the service of summons by other
means available under the Rules (Ex. Publication)
Failure to comply with the order shall cause the dismissal of the initiatory
pleading without prejudice. (Rule 17,sec. 3 – Fault on the plaintiff)
RULE 14 ,SEC. 4
General rule: Summons remain valid UNTIL SERVED. (Summons have
indefinite life)
Exception: Court recalled the summons.
When will an alias summons be granted?
An alias summons is a new summons issued in the same form and to
serve the same purpose like the previously issued summon. It continues
the old summons.
It is issued where the original summons has been returned which makes it
functus officios.
 In case of loss or destruction of summons.
When is it considered failure of service of summons?
 After unsuccessful attempts to personally serve the summons
on the defendant in his or her address indicated in the
complaint. Substituted service will then be resorted to.
RULE 14 ,SEC. 5 HOW ARE SUMMONS SERVED UPON THE
DEFENDANT?
General rule: Personal service of summons to the defendant is handing a
copy to the defendant or informing the defendant that he or she is being
served with summons.
Mode of service:
1. Service in person
2. Substituted service
3. Service by Publication
Exception: Rule 14, sec. 6 Defendant cannot be served with the
summons within a reasonable time then server can resort to
SUBSTITUTED SERVICE.
Note: The sheriff or server must first exert all efforts to serve the
defendant in person. If this effort fails, then substituted service can be
made. This effort must be stated in the proof of service. This is required
because substituted service is in derogation of the usual mode of service
(Laus vs. Court of Appeal)
CONDITIONS FOR SUBSTITUTED SERVICE:
1. There must be at least 3 attempts on 2 different dates.
2. Sheriff must cite why such efforts were unsuccessful.
CASES: PASCUAL VS PASCUAL
In actions in personal and defendant is outside the Philippines, service of
summons is done personally but if the summons cannot be served within
a reasonable time then subsitituted service can be resorted to.
What if the defendant refuses to sign or receive the summons?
Tender of summons will be resorted to by leaving the summons within
the view and in presence of the defendant.
CASE:SANSIO PHILIPPINES VS SPS MOGOL
Defendants were instructed by the lawyer to not receive the summons
because it must be served only in the address stated therein.
Court ruled that even if a different address is indicated where the
summons should be delivered it does not mean that they can only be
served summons in that particular address. Summons can be served
anywhere.
HOW TO EFFECT SUBSTITUTED SERVICE? RULE 14, SEC. 6
After exhausting attempts to personally serve, substituted service can
be resorted.
Failure to serve summons ineffective, no jurisdiction over the person
etc.
When is there substituted service?
1. There must be atleast 3 attempts
2. On 2 different dates.
HOW?
1. By leaving copies of the summons at the defendant's
residence to a person at least eighteen (18) years of age and
of sufficient discretion residing therein.
Who is considered as a person of suitable age and
discretion?
CASE: CARSON REALTY & MANAGEMENT
CORPORATION vs. RED ROBIN SECURITY AGENCY
and MONINA C. SANTOS
“One who has attained the age of full legal capacity (18 years
old) and is considered to have enough discernment to
understand the importance of a summons. "Discretion" is
defined as "the ability to make decisions which represent a
responsible choice and for which an understanding of what
is lawful, right or wise may be presupposed". Thus, to be of
sufficient discretion, such person must know how to read and
understand English to comprehend the import of the summons,
and fully realize the need to deliver the summons and
complaint to the defendant at the earliest possible time for the
person to take appropriate action.”
“Such person must know how to read and understand English
to comprehend the import of the summons, and fully realize
the need to deliver the summons and complaint to the
defendant at the earliest possible time for the person to take
appropriate action.”
“Person must have the "relation of confidence" to the
defendant, ensuring that the latter would receive or at least be
notified of the receipt of the summons.”
“The sheriff must therefore determine if the person found in
the alleged dwelling or residence of defendant is of legal age,
what the recipient's relationship with the defendant is, and
whether said person comprehends the significance of the
57
receipt of the summons and his duty to immediately deliver it
to the defendant or at least notify the defendant of said receipt
of summons.”
CASE: MIRANDA VS CA
How to prove service of summons?
❛ a. INDICATE the impossibility of service of summons within a
reasonable time;
b. SPECIFY the efforts exerted to locate the defendant; and
C. STATE that the summons was served upon a person of suffi cient age
and discretion who is residing in the address, or who is in charge of the
office or regular place of business of the defendant.
Duty of the sherif to know if the person is of 18 years of age and have
sufficient discretion. It depends on the judgment of the sheriff.
Can helpers of the house be substituted of service? It depends on the
judgment of the sheriff.
- If they are already trusted.
- Dugay na sa balayage
- Dili tanga-tanga
2. By leaving copies of the summons at the defendant's office
or regular place of business with some competent person in
charge thereof. A competent person includes, but is not
limited to, one who customarily receives correspondences
for the defendant.
Substituted service to the: competent person at the office or
regular place of business.
What is meant by “COMPETENT PERSON”?
The person on whom the substituted service will be made must
be the one managing the office or business of defendant, such
as the president or manager; and such individual must have
sufficient knowledge to understand the obligation of the
defendant in the summons, its importance, and the prejudicial
effects arising from inaction on the summons. (CARSON
REALTY & MANAGEMENT CORPORATION vs. RED
ROBIN SECURITY AGENCY and MONINA C. SANTOS)
How about a security guard? Yes. Of the person is
competent and who appears to be in charge in the place of
the defendant.does not have to be designated by the
defendant to be the one in charge.
It is enough that he appears to be in charge. (GUANZON vs.
ARRADAZA)
3. By leaving copies of the summons, if refused entry upon
making his or her authority and purpose known, with any
of the officers of the homeowners’ association or
condominium corporation, or its chief security officer in
charge of the community or the building where the
defendant may be found.
 If the defendant lives in a condominium or an exclusive
subdivision and the security is very strict that they won’t let the
sheriff in.
CASE: ROBINSON VS MIRALLES
 Leave the summons to the chief security guard in-charge.
4. By sending an electronic mail to the defendant’s electronic
mail address, if allowed by the court.
 Only when personal service cannot be done. Because again
personal service is the primary mode preferred.
 A motion for leave of court is required.
 Also needed to prove that this is the email of the defendant and
that it was already received by the defendant.
 Basis of the motion is the return made by the sheriff. This
would justify the substituted service.
What if defendant refuses to receive it and sign?
Tender the summons to the defendant by leave the summons within the
view (chair or floor) and within the presence of the defendant.
CASE: SANSIO PHILIPPINES, INC. vs. SPOUSES MOGOL, JR.
 Service of summons on the defendant is not required to be
effected only at the address or residence stated in the
summons. Court ruled that service of summons is allowed
“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.”
 The service of the copy of the summons and the complaint
inside the courtroom was the most practicable act under the
circumstances, and the process server need not wait for
respondent spouses Mogol to reach their given address before
he could serve on the latter the summons and the copy of the
complaint.
 Remember: Even if the summons indicated the address where
the defendants shall be served summons, it does not mean that
they can only be served in that address.
What if the service of summons by substituted service, although it was
effect, but the defendant did not actually receive the summons?
CASE: MONTALBAN v. MAXIMO
 Validity is not affected by the defendant's failure to actually
receive the summons from the person with whom the summons
had been left.
 It is immaterial that the defendant does not in fact receive
actual notice.
 The rule does not require the sheriff or any authorized server to
verify that the summons left in the defendant's residence or
office was actually delivered to the defendant.
NOTE: What is important here is that the sheriff strictly complied with
the conditions for substituted service. If he did that, although the
defendant did not, I reality, receive the summons, there was still valid
substituted service and there was still acquisition of jurisdiction over the
person of the defendant.
CASE: SANDOVAL VS HRET
Substituted service derogates the regular method of personal service. It is
an extraordinary method since it seeks to bind the respondent or the
defendant to the consequences o f a suit even though notice of such action
is served not upon him but upon another to whom the law could only
presume would notify him of the pending proceedings. As safeguard
measures for this drastic manner of bringing in a person to answer
for a claim, it is require that statutory restrictions for substituted
service must be strictly, faithfully and fully observed.
RULE 14, SEC. 7 SERVICE OF SUMMON UPON AN ENTITY
WITHOUT JURIDICAL PERSONALITY
58
General rule: plaintiff must have caapactiy to sue but defendant must
be capactiated to be sued.
Who can be summoned?
 Service may be effected upon all the defendants by serving
summons upon (a) anyone of them, or (b) upon the person in
charge of the office or of the place of business maintained
in such name
 Take note: Service shall not bind individually any person
whose connection with the entity ceased before the action was
filed.
Ex. For example, if A, B, and C enter into a transaction under the name
“ABC Corporation”, an entity which has actually no juridical
personality. A, B, and C may be sued under the name “ABC
Corporation”.
Q: Now, regarding the summons, how then may summons be served upon
the non- existent corporation or upon those who compose the
"corporation"?
A: Under Sec. 7 of Rule 14, service may be effected upon all the
defendants by serving summons upon (a) anyone of them, or (b) upon the
person in charge of the office or of the place of business maintained in
such name. So, to anyone of A,B, or C or whoever is in charge in their
office or business “ABC Corporation”.
However, if any person ceases to be connected with the entity and it was
known under the last paragraph of section 7, the service shall not bind
the individual, whose connection with the entity, upon due notice, has
been severed before the action was filed.
EXAMPLE: B already resigned in their ABC Corporation, he is no longer
part of such entity and if there is any case against the ABC Corporation
and B is not anymore included and still, the summon was served to him,
that will not be binding upon ABC Corporation or A and C anymore.
RULE 14 ,SEC. 8 SERVICE UPON PRISONERS
 Defendant is a prisoner.
 By whom? By the officer having the management of such
jail or institution who is deemed as a special sheriff for said
purpose.
 The jail warden shall file a return within five (5) calendar days
from service of summons to the defendant and not the sheriff
anymore.
RULE 14, SEC. 9 SERVICE BY METHODS UNDER
INTERNATIONAL CONVENTIONS
 Service can also be made through methods which are
consistent with established international conventions to which
the Philippines is a party.
 Doctrine of Incorporation under Art. 2 sec. 2 of the
Constitution provides that “Philippines adopts the generally
accepted principles of international law and international
jurisprudence as part of the law of the land”
 The conventions and treaties that the Philippines is a party,
made internationally, they are part of the law of the land and
here, they are also part of the rules of court. Just take note that
the Philippines must be a signatory to that international
convention.
RULE 14 , SEC. 10 SERVICE MADE UPON MINORS AND
INCOMPETENTS
 Defendant is a minor service is made on his or her parent..
  Defendant is a minor ,insane or otherwise an incompetent  Service can be done wherever they may be found and not
person and if none service of summons shall be made upon necessarily in the principal place of business.
him or her personally AND on his or her legal guardian if  If the following persons or officers are not available, service may
he or she has one, or if none, upon his or her guardian ad be made upon their secretaries (no longer corporate secretary)
litem whose appointment shall be applied for by the plaintiff.  If the officers and secretaries are all not available service can be
 Guardian ad litem - “guardian pending litigation”, thus, if the made upon the person who customarily receives the
litigation is over, the guardianship ceases as well. correspondence, it should be made at the principal office. It is not
allowed to be anywhere.
 A minor or an insane person who doesn’t have a guardian  Substituted service of summons cannot be applied.
and is just roaming the streets and you want to sue that  Domestic corporations under RECEIVERSHIP or
person, you can sue but in the complaint you make there an LIQUIDATION
application for the appointment of a guardian ad litem.  Service shall be made to its receiver of
When that guardian ad litem is already appointed then, the liquidator.
summons will be served to him plus to that incompetent  Under the laws on Corporation when a
person. corporation is under receivership or liquidation,
the president, managing partner, and other
officers of the corporation loses the authority to
manage.
 Payment made to the officers of the corporation
when the corporation is under receivership
would not be a valid payment.
 If there is REFUSAL to receive the summons after 3 attempts
on 2 different dates summons can be done through e-mail with
SUMMARY:
the permission of the court through a motion for leave of court
Nature Type of Situs Address Mode of with the attached copies of the complaint.
of the Defendant (Location Service
action ) IS THE ENUMERATION EXCLUSIVE? Yes.
In Ordinary In the Address or Service in CASE: E.B. VILLAROSA & PARTNER LTD. vs. BENITO
personam Philippine whereabou person or
or In rem (normal s t is Substitute The enumeration of persons to whom summons may be served in a
circumstances KNOWN d service domestic corporation is "restricted, limited, and exclusive" to president,
)
managing partner, general manager, corporate secretary, treasurer, or
In Entity In the Address or Service in
inhouse counsel of the corporation or to their secretaries. Substituted
personam without Philippine whereabou person of
or In rem juridical s t is anyone of summons is not allowed when it comes to domestic corporations.
personality KNOWN them or
CASE: G.V. FLORIDA TRANSPORT V. TIARA COMMERCIAL
service in
CORPORATION
person of
the person
 Service of summons was made upon the company’s
in charge
FINANCIAL SUPERVISOR.
In Prisoner In the Address or Service in
 Court ruled that there was IMPROPER SERVICE OF
personam Philippine whereabou person by
or In rem s t is the special SUMMONS.
KNOWN sheriff
EFFECT OF IMPROPER SERVICE OF SUMMONS:
In Minor or In the Address or Service
personam Incompetent Philippine whereabou upon him 1. Courts should not automatically dismiss the complaint by
or In rem s t is or
reason of lack of jurisdiction over the person of the
KNOWN guardian
defendant.
or parent.
2. Remedy is issue alias summons and ensure that it is
properly served.
RULE 14 ,SEC. 11 WHEN SPOUSES ARE SUED JOINTLY,
Note: If the lawyer is the one who complained about the lack of
SERVICE OF SUMMONS SHOULD BE MADE TO EACH
jurisdiction the court will deputize the lawyer to validly serve the
SPOUSE INDIVIDUALLY.
summons to his client.
Service of summons should be made to each spouse individually.
CASE: CCC INSURANCE CORPORATION V. KAWASAKI STEEL
If the spouses are sued jointly, their summons must still be served CORPORATION, ET AL.
individually.
 There was a valid service of summons even if it was done upon
RULE 14 ,SEC. 12 SERVICE UPON DOMESTIC PRIVATE one of the officers of the corporation.
JURIDICAL ENTITY (CORPORATION, PARTNERSHIP &  Personal service upon the corporation may be effected through
ASSOCIATION) service upon, for instance, the president of the corporation at
his office or residential address (wherever they may be found).
 Defendant here is a domestic corporation organized and
registered under the Philippine laws AND NOT THE OFFICERS Rule 14 ,sec. 13 DUTY OF THE COUNSEL OF RECORD
OR STOCKHOLDERS.
 Improper service of summons does not result to automatic
 Service of summons may be made upon: president, managing
dismissal of the case.
partner, general manager, corporate secretary, treasurer, or
 If there is improper of service upon the defendant, the lawyer
inhouse counsel of the corporation.
will question the validity of the summons and thereafter the
59
 court will deputize the counsel to serve the summons to his
client.
Rule 14 ,sec. 14 SERVICE OF SUMMOS UPON FOREIGN
PRIVATE JURIDICAL ENTITIES
 Review:
Foreign corporations as plaintiffs they can sue in Philippine
Courts if:
(a) they have a license to operate here (doing business in the
Philippines); or
(b) where the foreign corporation is without license but is
suing for an isolated transaction.
Foreign corporations as defendants 􀍴 can be sued if
(a) licensed to operate (doing business in the Philippines); or
(b) without license but who transact business in the
Philippines.
 Service of summons must be made upon: (NORTHWEST
ORIENT AIRLINES v. COURT OF APPEALS)
(1) on its resident agent designated in accordance with law
for that purpose,
(2) if there is no such resident agent, on the government
official designated by law to that effect
(3) on any of its officers or agents within the Philippines.
If the foreign corporation has designated an agent to receive
summons, the designation is EXCLUSIVE, and service of
summons is without force and gives the court no jurisdiction
unless made upon him. In other words, the designation of three
parties on whom summons may be served is not alternative
because the resident agent excludes the others.
CASE: LUZON IRON DEVELOPMENT v. BRIDESTONE MINING
Consolidated Iron transacted business in the Philippines as it was a
signatory in the TPAA that was executed in Makati. Hence, it may be
served with the summons in accordance with the modes provided under
Section 12, Rule 14 of the Rules of Court. It is undisputed that Luzon
Iron was never registered before the Securities and Exchange
Commission (SEC) as Consolidated Iron's resident agent. Thus, the
service of summons to Consolidated Iron through Luzon Iron cannot be
deemed a service to a resident agent under the first mode of service.
Allegations in the complaint must clearly show a connection between the
principal foreign corporation and its alleged agent corporation with
respect to the transaction in question as a general allegation of agency
will not suffice.
A wholly-owned subsidiary is a distinct and separate entity from its
mother corporation and the fact that the latter exercises control over the
former does not justify disregarding their separate personality.
Although Consolidated Iron wielded great control over the actions of
Luzon Iron under the said agreement. This, nonetheless, does not warrant
the conclusion that Luzon Iron was a mere conduit of Consolidated Iron.
There was no allegation showing that Luzon Iron was merely a business
conduit of Consolidated Iron, or that the latter exercised control over the
former to the extent that their separate and distinct personalities should be
set aside.
RULE 14,SEC. 15 SERVICE OF SUMMONS UPON PUBLIC
CORPORATIONS
 These are defendants who are instrumentalities of the
government that operate under a system of bureaucracy.
60
1. Republic of the Philippines through the
Solicitor General
2. When the defendant is a province through the
Governor
3. City through the mayor
4. Municipality through the mayor
5. Barangay through the mayor
 Substituted service may be effected if the primary defendant is
not available. It may be served upon his office.
RULE 14 SEC. 16 SERVICE BY PUBLICATION UPON
DEFENDANT WHOSE IDENTITY OR WHEREABOUTS ARE
UNKNOWN BUT IS A RESIDENT HERE IN THE PHILIPPINES
General Rule: Service of summons in an action in personam or in rem
upon an individual defendant (natural persons) must be made either by
personal or substituted service.
Exception: SERVICE BY PUBLICATION upon a defendant whose
identity or whereabout are unknown under sec. 26. This applies to any
type of action (in personam, in rem, quasi in rem).
 Defendant is an unknown owner or defendant’s whereabouts
are unknown and cannot be ascertained by diligent inquiry
within 90 calendar days from the commencement of the action
SERVICE MAY BE DONE BY:
a. Leave of court be effected upon him by publication in a
newspaper of general circulation.
b. Granting such leave shall specify a reasonable time,
which shall not be less than sixty (60) calendar days after
notice, within which the defendant must answer.
 This is applicable to any type of actions.
 There is 90 days given to located the defendant and it shall be
consumed.
 Summons published in newspaper of general circulations is not
specified by the court that it should be in the place where the
defendant last resided. It depends on the court where and for
how long.
 The defendant can answer in not less than 60 days. It depends
upon the order of the court.
CASE: SANTOS vs. PNOC EXPLORATION CORPORATION
The present rule expressly states that it applies “􀎀i􀎁n any action where
the defendant is designated as an unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be ascertained by
diligent inquiry.” Thus it now applies to any action, whether in personam,
in rem or quasi in rem.
RULE 14 ,SEC. 17 EXTRATERRITORIAL SERVICE FOR A NON-
RESIDENT OF THE PHILIPPINES
 Only applicable for action in rem and actions quasi-in rem
 Does not seek to enforce personal liability upon the defendant.
 In these actions the court obtains jurisdiction over the res.
 the fact of the filing of the complaint and when the property
itself is placed on the custody of the court. Under the legal
processes of the court, the court acquires jurisdiction over the
res.
 Any decision is limited upon the res.
 Action for injunction does not apply to extraterritorial service.
REQUISITES OF EXTRATERRITORIAL SERVICE
1. the defendant is a nonresident;
2. he is not found in the Philippines; and
3. the action against him is either in rem or quasi in rem (Jose vs. Boyon,
414 SCRA 216).
SPECIFIC ACTIONS WHERE EXTRATERRIOTIAL SERVICE IS
APPLICABLE
a. personal status of the plaintiff or relates to (ex. Action for
declaration of marriage or adoption)
b. or the subject of which is, property within the Philippines, in
which the defendant has or claims a lien or interest, actual or
contingent (Ex. foreclosure of mortgage)
c. or in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein (talking
about the property itself)
d. or the property of the defendant has been attached within the
Philippines
Note: For example, you are a creditor and you have a debtor,
and that debtor is already absconding from the Philippines and
he is a non-resident. He is a resident abroad. Although he is not
in the Philippines, he owns several properties that can be
attached. When you eventually win in the litigation, you can
use the properties attached in payment of the debt. It is like
those properties have been reserved in your favor. If the
defendant is a non-resident, you cannot compel him to pay.
Compelling someone to pay a debt is an action in personam 􀍴
you are seeking to enforce his personal liability. That is not
allowed. But if there are properties attached, that is possible
because the judgment would be limited to the res.
Service may, by leave of court, be effected out of the Philippines by
personal service as under Section 6; or as provided for in international
conventions to which the Philippines is a party.
SECTION 17 EXTRATERRITORIAL SERVICE OF SUMMONS IS
NOT APPLICABLE TO:
1. a defendant who is a resident of the Philippines.
2. an action in personam.
Exception: Sec. 18 of Rule 14 (Residents temporarily out of the
Philippines) where service may, by leave of court, be effected out of the
Philippines as under the preceding-section."
WHAT HAPPENS IF THE ACTION IS IN PERSONAM?
 There is personal liability and jurisdiction over the person of
the defendant is necessary for the court to try the case.
 If the defendant is a non-resident , personal service of
summons is essential to acquire jurisdiction.
Ex. An action for collection against a non-resident debtor and
he has no properties which can be attached, you cannot even
effect extraterritorial service upon him.
CASE: ASIAVEST LIMITED VS. COURT OF APPEALS
(EXTENSIVE DISCUSSION IN THE TSN RELATING TO SEC. 17
AND 18)
General rule: In an action in personam wherein the defendant is a non-
resident who does not voluntarily submit himself to the authority of the
court, personal service of summons within the state is essential to the
acquisition of jurisdiction over her person. This method of service is
possible if such defendant is physically present in the country. If he is not
found therein, the court cannot acquire jurisdiction over his person and
therefore cannot validly try and decide the case against him.
Exception: In the case of Gemperle v. Schenker 19 SCRA 45
[1967]. wherein a non-resident was served with summons
through his wife, who was a resident of the Philippines and
who was his representatives and attorney-in-fact in a prior
61
civil case filed by him; moreover, the second case was a
mere offshoot of the first case.
MODES OF EXTRATERRITORIAL SERVICE (ALL REQUIRE
LEAVE OF COURT)
1. By PERSONAL SERVICE as provided for in Sec. 5 of Rule
14 governing service in person on defendant; 􀁸 Since the
defendant is not in the PH, personal service abroad.
 The court may allow summons to be served outside
the Philippines by personal service by sending the
sheriff to America.
 HOWEVER, personal service will not have the
effect of acquiring jurisdiction over the nonresident
defendant even if the summons and the copy of the
complaint are personally received by him in the
country where he may be found. This is because of
the rule that a nonresident defendant who refuses to
come to the country voluntarily remains beyond the
personal processes of the court which therefore,
cannot acquire jurisdiction over him. Besides, in a
proceeding in rem or quasi in rem, 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.
Nevertheless, summons is served upon the defendant
not for the purpose of vesting the court with
jurisdiction over the person of the defendant but
merely for satisfying the due process requirement
2. As provided for in international conventions to which the
Philippines is a party;
3. 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 the order of the court shall be sent
by registered mail to the last known address of the defendant;
or 􀁸 The publication is not enough. There should be registered
mail also. There are 2 conditions under this mode: publication
and registered mail.
 Similar with sec. 16 service by publication.
 The court will order the summons and complaint
to be published in a newspaper of general
circulation in such places and for such time as the
court may order.
 Copy of the summons and order of the court shall
be sent by registered mail to the last known
address of the defendant. Hence it is a publication
plus registered mail.
4. In any manner the court may deem sufficient.
CASE: SAHAGUN v. COURT OF APPEALS
Nothing in the law requires the publication to be in a foreign newspaper.
What is says is a newspaper of general circulation in such places and for
such time as the court may order. There is no prohibition in availing of a
foreign newspaper in extra-territorial service of summons. However, there
is also no prohibition in the publication in a local newspaper.
While there is no prohibition against availing of a foreign newspaper in
extraterritorial service of summons, neither should such publication in a
local newspaper of general circulation be altogether interdicted since,
after all, the rule specifically authorizes the same to be made in such
places and for such time as the court concerned may order.
The only relief that may be granted in such an action against such a
nonresident defendant, who does not choose to submit himself to the
jurisdiction of the Philippine court, is limited to the res.
It does not matter actually where you publish, anyway aside from that,
copy of the summons and the order of the court will be sent through
registered mail to the last known address of the defendant.
CASE: YU V. LIM YU
First and foremost, it is undisputed that the parties herein are also parties
in a Legal Separation case, There was, in said case, a disclosure of their
basic personal information, which customarily includes their respective
local addresses, wherein they may be served with court papers Philip
knew that Viveca had already left their conjugal home and moved to a
different local address
Philip cannot be allowed to feign ignorance to the fact that Viveca had
already intentionally abandoned their conjugal abode and that of all the
addresses that Viveca resided at, their conjugal home in Horizon
Condominium is her least recent address
From the very beginning of the Legal Separation case in 1994, all the way
up until the promulgation by the Pasig RTC of its decision thereon in
2009, there is no showing that Viveca had ever received any document in
relation to said case, nor is there any proof that Philip had ever sent any
pertinent file to Viveca, at the conjugal address.
Nno reason for Philip to assume, in good faith, that said address is in truth
and in fact Viveca's "last known address" at which she may receive
summons.
CASE: ROMUALDEZ-LICAROS V. LICAROS (PETITION FOR
DECLARATION OF NULLITY OF MARRIAGE)
The Process Server’s Return of 􀏭􀏱 July 􀏭􀏵􀏵􀏭 shows that the summons
addressed to Margarita together with the complaint and its annexes were
sent by mail to the Department of Foreign Affairs with acknowledgment
of receipt. The Process Server’s certificate of service of summons is
prima facie evidence of the facts as set out in the certificate. Before
proceeding to declare the marriage between Margarita and Abelardo null
and void, the trial court stated in its Decision dated 8 November 1991 that
"compliance with the jurisdictional requirements hav(e) (sic) been duly
established." We hold that delivery to the Department of Foreign Affairs
was sufficient compliance with the rule. After all, this is exactly what the
trial court required and considered as sufficient to effect service of
summons under the third mode of extraterritorial service pursuant to
Section 15 of Rule 14.
*What is important here is that you just follow exactly what was the
manner mentioned in the order of the court as to how service of summons
is to be served. So in any other manner, the court may deem sufficient.
CASE: CARIAGA v. MALAYA
 An action for (1) Annulment of a Deed of Extra-Judicial
Partition of Real Property, (2) Cancellation of Transfer
Certificate of Title (TCT), (3) Recovery of Real Property with
damages.
 Summonses with copies of the complaint were served to the
defendants by registered mail abroad (Guam and U.S.A.) by
the Clerk of Court at the instance of plaintiffs.
 Defendants, who are residents of the Philippines filed a motion
to set aside the said summons and to declare the service of
summons abroad by registered mail as null and void, it being
allegedly irregular and unauthorized.
 the service of summons may, with leave of court, be effected
out of the Philippines in three ways: (1) by personal service;
(2) 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 should be sent by
registered mail to the last known address of the defendant; and
(3) in any other manner which the court may deem sufficient.
The third mode of extraterritorial service of summons was
substantially complied with in this case.
 The Supreme Court said that the 3rd mode of extra-territorial
service was sufficiently complied with in this case. Why?
Because the defendants actually received the summons and
62
copies of the complaint as evidence of the registry return cards.
They cannot complain.
 Even if it was by registered mail as in this case, it still falls in
“any other manner the courts may deem sufficient”.
RULE 14 ,SEC. 18 RESIDENTS TEMPORARILY RESIDING
OUTSIDE THE PHILIPPINES
 A defendant who is a resident of the Philippines. However, he
is temporarily out of the country but he has not abandoned his
residency in the Philippines.
 Applicable to any action (personam, in rem, quasi in rem)
 Service can be done by leave of court through extraterritorial
service under its 4 modes.
 Substituted service is allowed under this Rule in the case of
(Montalban vs Maximo)
 Jurisprudence has long settled that, with respect to residents
temporarily out of the Philippines, the availability of
extraterritorial services does not preclude substituted service.
 Resort to substituted service has long been held to be fair,
reasonable and just. It has been emphasized that residents who
temporarily leave their residence are responsible for ensuring
that their affairs are in order, and that, upon their return, they
shall attend to exigencies that may have arisen. Under the rules,
a plaintiff, in the initial stage of suit, is merely required to
know the defendant's "dwelling house or residence" or his
"office or regular place of business" 􀍶 and no more. He is not
asked to investigate where a resident defendant actually is, at
the precise moment of filing suit.
 Once defendant's dwelling house or residence or office or
regular place of business is known, he can expect valid service
of summons to be made on "some person of suitable age and
discretion then residing" in defendant's dwelling house or
residence, or on "some competent person in charge" of his
office or regular place of business. By the terms of the law,
plaintiff is not even duty-bound to see to it that the person upon
whom service was actually made delivers the summons to
defendant or informs him about it. The law presumes that for
him.
 A man temporarily absent from this country leaves a definite
place of residence, a dwelling where he lives, a local base, so
to speak, to which any inquiry about him may be directed and
where he is bound to return. Where one temporarily absents
himself, he leaves his affairs in the hands of one who may be
reasonably expected to act in his place and stead; to do all that
is necessary to protect his interests; and to communicate with
him from time to time any incident of importance that may
affect him or his business or his affairs. It is usual for such a
man to leave at his home or with his business associates
information as to where he may be contacted in the event a
question that affects him crops up. If he does not do what is
expected of him, and a case comes up in court against him, he
cannot in justice raise his voice and say that he is not subject
to the processes of our courts. He cannot stop a suit from,
being filed against him upon a claim that he cannot be
summoned at his dwelling house or residence or his office or
regular place of business.
CASE: MONTALBAN VS MAXIMO
In a suit in personam, against a resident of the Philippines temporarily
absent from the country, the defendant may be served by substituted
service because a man temporarily out of the country leaves a definite
place of residence or a dwelling where he is bound to return. He also
leaves his affairs to someone who protects his interests and communicates
with him on matters affecting his affairs or business If the defendant is
out of the country, he cannot be expectedly served within a reasonable
time. The fact that "for justifiable causes, the defendant cannot be served
within a reasonable time," constitutes the operative fact that triggers the
application of substituted service.
RULE 14,SEC. 19 HOW TO APPLY FOR MOTION FOR LEAVE
OF COURT
1. In writing not in oral
2. Supported by affidavit of the plaintiff or some person on his
behalf, setting forth the grounds for the application
RULE 14 ,SEC. 20 RETURN OF SUMMONS
 the sheriff or process server, or person authorized by the court
shall complete the service of the summons issued by the clerk
of court within 30 days upon its issuance.
 After 5 days from the service of summons, the server shall file
with the court and serve a copy of the return to the plaintiff’s
counsel.
How? personally, by registered mail, or by electronic means
authorized by the Rules.
 If there was substituted service the return shall be done in the
following manner:
1. The impossibility of prompt personal service within
a period of thirty (30) calendar days from issue and
receipt of summons.
2. The date and time of the three (3) attempts on at
least (2) two different dates to cause personal service
and the details of the inquiries made to locate the
defendant residing thereat.
3. Name of the person at least eighteen (18) years of
age and of sufficient discretion residing thereat
Name of competent person in charge of the
defendant’s office or regular place of business
Name of the officer of the homeowners’ association
or condominium corporation or its chief security
officer in charge of the community or building
where the defendant may be found.
WHY IS THERE A NEED TO SERVE A COPY OF THE RETURN?
Plaintiff’s counsel would also know when the defendant actually received
the summons.
Plaintiff’s counsel would then know whether or not the defendant was
able to file the answer within the reglementary period.
If the defendant still after the lapse of the reglementary period, the
plaintiff can make the appropriate action like file a motion to declare the
defendant in default 􀍴 that’s one possible remedy.
CASE: MANOTOC v. COURT OF APPEALS
Mere general claim or statement in the Sheriff's Return that the server had
made "several attempts" to serve the summons, without making reference
to the details of facts and circumstances surrounding such attempts, does
not comply with the rules on substituted service.
You have to specify now that you made those at least three attempts so
you should specify when you made those three attempts, when was
attempt 1 made, number 2, number 3. You have to refer to the
circumstances when did you serve that first attempt, where was it made.
CASE: JOSE v. BOYON
A Return which merely states the alleged whereabouts of the defendants
without indicating that such information was verified and without
specifying the efforts exerted to serve the summons is not enough for
compliance.
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CASE: CARSON REALTY & MANAGEMENT CORPORATION v.
RED ROBIN SECURITY AGENCY and MONINA C. SANTOS
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.
The form on Sheriffs Return of Summons on Substituted Service requires
a narration of the efforts made to find the defendant personally and the
fact of failure. Supreme Court Administrative Circular No. 5 requires that
"impossibility of prompt service should be shown by stating the efforts
made to find the defendant personally and the failure of such efforts,"
which should be made in the proof of service.
Summons were then served to the receptionist because the officers
refused to receive the summons.
CASE: DE PEDRO v. ROMASAN DEVELOPMENT
CORPORATION (nullification of free patent and original certificates of
title is an action quasi in rem)
Regardless of the type of action - whether it is in personam, in rem or
quasi in rem - the preferred mode of service of summons is personal
service. To avail themselves of substituted service, courts must rely on a
detailed enumeration of the sheriff's actions and a showing that the
defendant cannot be served despite diligent and reasonable efforts. The
sheriff's return, which contains these details, is entitled to a presumption
of regularity, and on this basis, the court may allow substituted service.
Should the sheriff's return be wanting of these details, substituted service
will be irregular if no other evidence of the efforts to serve summons was
presented. Failure to serve summons will mean that the court failed to
acquire jurisdiction over the person of the defendant.
An action for annulment of certificate of title is quasi in rem. It is not an
action "against a person on the basis of his personal liability,􀎗 but an
action that subjects a person’s interest over a property to a burden. The
action for annulment of a certificate of title threatens petitioner’s interest
in the property. Petitioner is entitled to due process with respect to that
interest. The court does not have competence or authority to proceed with
an action for annulment of certificate of title without giving the person, in
whose name the certificate was issued all the opportunities to be heard.
Regardless of the nature of the action, proper service of summons is
imperative. A decision rendered without proper service of summons
suffers a defect in jurisdiction. Respondent’s institution of a proceeding
for annulment of petitioner’s certificate of title is sufficient to vest the
court with jurisdiction over the res, but it is not sufficient for the court to
proceed with the case with authority and competence.
Other modes of serving summons may be done when justified. Service of
summons through other modes will not be effective without showing
serious attempts to serve summons through personal service. Thus, the
rules allow summons to be served by substituted service only for
justifiable causes and if the defendant or respondent cannot be served
within reasonable time. Substituted service is effected "(a) by leaving
copies of the summons at the defendant’s residence with some person of
suitable age and discretion then residing therein,or (b) by leaving the
copies at defendant’s office or regular place of business with some
competent person in charge thereof."
Service of summons by publication in a newspaper of general circulation
is allowed when the defendant or respondent is designated as an unknown
owner or if his or her whereabouts are "unknown and cannot be
ascertained by diligent inquiry." It may only be effected after
unsuccessful attempts to serve the summons personally, and after diligent
inquiry as to the defendant’s or respondent’s whereabouts. Service of
summons by extra territorial service is allowed after leave of court when
the defendant or respondent does not reside or is not found in the country
or is temporarily out of the country.
The return submitted to the court shows no detail of the sheriff’s efforts to
serve the summons personally upon petitioner. The summons was
unserved only because the post office messenger stated that there was no
"Aurora N. De Pedro" in the service address. The return did not show that
the sheriff attempted to locate petitioner’s whereabouts. Moreover, it
cannot be concluded based on the return that personal service was
rendered impossible under the circumstances or that service could no
longer be made within reasonable time.
The lack of any demonstration of effort on the part of the sheriff to serve
the summons personally upon petitioner is a deviation from this court’s
previous rulings that personal service is the preferred mode of service,
and that the sheriff must narrate in his or her return the efforts made to
effect personal service. Thus, the sheriff’s return in this case was
defective. No substituted service or service by publication will be
allowed based on such defective return.
The issuance of a judgment without proper service of summons is a
violation of due process rights. The judgment, therefore, suffers a
jurisdictional defect. The case would have been dismissible had petitioner
learned about the case while trial was pending.
RULE 14 ,SEC. 21 PROOF OF SERVICE
After the completion of the service, a proof of service is required to be
filed by the server of the summons.
1. made in writing by the server and shall set forth the manner,
place, and date of service
2. specify any papers which have been served with the process
and the name of the person who received the same;
3. shall be sworn to when made by a person other than a sheriff or
his or her deputy.
4. If summons was served by electronic mail, a printout of said
email, with a copy of the summons as served, and the affidavit
of the person mailing.
When the server is not the sheriff or deputy sheriff, an affidavit is
required because for servers other than those two mentioned, there is no
presumption of regularity. So there has to be a sworn statement under
pain of forgery.
RULE 14 ,SEC. 22 PROOF OF SERVICE BY PUBLICATION
1. service may be proved by the affidavit of the publisher, editor,
business or advertising manager
2. there must be a copy of the publication attached in the
publication
3. there must be 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 or
her last known address.
RULE 14 ,SEC. 23 EFFECT OF VOLUNTARY APPEARANCE
2 ways by which the court acquires jurisdiction over the person of the
defendant:
1. When there is a valid service of summons upon the defendant;
2. Even if the service of summons is defective, but there was voluntary
appearance by the defendant. Because of that, the defendant is deemed to
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have voluntarily subjected himself or herself to the jurisdiction of the
court.
Voluntary appearance is:
 enter an appearance in an action without requiring or awaiting the
service of summons or other process.
 By the voluntary appearance of the defendant, the defects of
summons or lack of jurisdiction over the person of the defendant
is already considered waived.
 voluntary appearance does not mean there is an answer.
 lack of jurisdiction over the person of the defendant because of
absence of service of summons or improper service of summons,
can be waived by voluntary appearance.
 It is not voluntary appearance when a defendant files a motion to
dismiss on the ground that the court has not acquired any
jurisdiction over his person. It is a special appearance to question
the jurisdiction of the court over his person. Not indicative of the
intention to submit to the jurisdiction of the court.
 Under the amended Rules, lack of jurisdiction over the person of
the defendant is not a ground for a motion to dismiss, but it can
be raised as an affirmative defense in the answer.
 Instances when even if the defendant appeared in court through
his lawyer, he will not be considered to have submitted to the
jurisdiction of the court.
 Defendant’s appearance in court in order to
assail the issuance of the TRO considered his
voluntary submission to the jurisdiction of the
court, waiving the possible defect on the
service of summons which the defendant could
have raised as an affirmative defense?
 You can specify that your appearance is a
SPECIAL APPEARANCE or it is a
CONDITIONAL APPEARANCE in that you
still reserve the right to raise the question of
lack of jurisdiction over the person of the
defendant in your answer.
CASE: RAPID CITY REALTY AND DEVELOPMENT
CORPORATION v. VILLA
What constitutes voluntary appearance? Filing motions:
1. to admit answer,
2. 2. for additional time to file answer,
3. for reconsideration of a default judgment, and
4. to lift order of default with motion for reconsideration.
However, is tempered by the concept of conditional appearance,
such that a party who makes a special appearance 􀆚􀅽 to
challenge the court’s jurisdiction over his person cannot be
considered to have submitted to its authority.
CASE: PEOPLE'S GENERAL INSURANCE CORPORATION v.
EDGARDO GUANSING AND EDUARDO LIZASO
Defects of summons are cured by voluntary appearance and by the filing
of an answer to the complaint.
Any form of appearance in court by the defendant, his authorized agent or
attorney, is equivalent to service except where such appearance is
precisely to object to the jurisdiction of the court over his person.
The rules are clear: the filing of an answer and other pleadings is
considered voluntary appearance. Respondent Guansing's actions lead to
no other conclusion other than he voluntarily appeared and submitted
himself to the court’s jurisdiction.
DIFFERENCE 1997 RULES AND 2019 AMENDED RULES
Sec. 20 (1997)
The inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a
voluntary appearance.
 lack of jurisdiction over the person of the defendant can be
raised as a ground under Rule 16 on Motion to Dismiss, or it
can also be raised as an affirmative defense in the answer.
Sec. 23 (2019)
The inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall be deemed a voluntary
appearance.
 lack of jurisdiction over the person of the defendant is no
longer allowed as a ground for a motion to dismiss.
REVIEW UNDER THE AMENDED RULES THE ONLY
GROUNDS FOR MOTION TO DISMISS
1. Lack of jurisdiction over the subject matter
2. Litis pendentia;
3. Res judicata; and
4. Prescription
EFFECT OF THE AMENDMENT: The defense of lack of jurisdiction
over the person of the defendant becomes useless.
CASE: NATION PETROLEUM GAS, INCORPORATED, ET. AL. v.
RIZAL COMMERCIAL BANKING CORPORATION
By seeking affirmative reliefs from the trial court, the individual
petitioners are deemed to have voluntarily submitted to the jurisdiction of
said court. A party cannot invoke the jurisdiction of a court to secure
affirmative relief against his opponent and after obtaining or failing to
obtain such relief, repudiate or question that same jurisdiction. Therefore,
the CA cannot be considered to have erred in affirming the trial court's
denial of the Special Appearance with Motion to Dismiss for alleged
improper service of summons.
RULE 15 ,SEC. 1
 Motion is an application for relief other than by a pleading.
 Motions pray for relief but not a relief that renders final
judgment. An application for relief without praying for the
rendition of judgment.
 General rule: Motions are not asking the court to grant or to
make you prevail in your complaint, or that the court would
dismiss the complaint filed by the plaintiff, if you are the
defendant.
 Exception: Motion to Dismiss, Motion to Dismiss on the
ground that upon the facts and the law, the plaintiff has
shown no right to relief, Motion for Judgment on the
Pleadings, Motion for Summary Judgment
RULE 15, SEC. 2 FORMS OF A MOTION
A pleading is always written, whereas a motion can be oral or in writing.
1. Writing – it has caption, designation, signature, and other
matters of form just like in a pleading. (Rule 15,sec. 11)
 an unsigned motion also produces no legal effect.
You can be declared in default in the meantime
because it does not interrupt the running of the
period within which to file the Answer.
2. Oral - made in open court or in the course of a hearing or trial
(Rule 15 ,sec. 2)
 There is a trial or a hearing.
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 There will be oral arguments. these motions should
immediately be resolved in open court, after the
adverse party is given the opportunity to argue his
or her opposition thereto.
 There is no presentation of evidence that would be
required.
There must be a factual basis for every motion that you are going to file.
These facts can either be:
1. EXTANT IN THE RECORDS, or 􀁸 meaning it is already there
whether it is attached to the pleadings or in any other submission
identified or mentioned during pre-trial and reduced in the form of the
pre-trial order, it’s already in the records of the case;
2. NOVEL, in the sense that there is yet nothing in the records of the case
that establishes the facts that support a motion.
When a motion is based on facts not appearing on record, the court has
nothing to base its resolution of the motion on. Court may hear the matter
on affidavits or depositions presented by the respective parties. In other
words, the court will resolve the motion according to the facts proffered
by the parties in the motion and the opposition thereto.
RULE 15 ,SEC. 3 WHAT SHALL A MOTION CONTAIN?
1. State the relief sought to be obtained.
2. What are the grounds that it is based upon.
3. If required by the court, accompany the motion with supporting
affidavits or other papers.
 the term “affidavit” should be read to mean a
“judicial affidavit” by virtue of Section 2 of A.M.
No. 12-8- 8-SC, or the Judicial Affidavit Rule
because the judicial affidavit rule states that
whenever you present evidence, whether it is your
main evidence or your evidence-in-chief that would
establish your cause of action or defense, or simply
as evidence to support a motion, you have to file a
judicial affidavit. Because a judicial affidavit serves
as the vehicle by which a party presents his
evidence, including evidence in support of motions,
and is the substitute for direct testimony, he should
attach judicial affidavits to his motion.
MOTIONS THAT REQUIRE HEARING OR PRESENTATION OF
EVIDENCE
1. Motion for bail – if it involves a heinous crime . You have to
prove to the court the evidence of the guilt is not strong, right.
You have to present judicial affidavits.
2. Application for preliminary attachment or injunction - you
need to establish to the court that you are entitled to these
provisional writs. You have to prove that the defendant is
slowly disposing his properties in fraud of the plaintiff-
creditor. You have to prove this through judicial affidavit. Even
if you do not consider this as a motion, you have to consider
this as an incident. The hearing for the application needs
judicial affidavit.
3. Motion to dismiss on the ground of litis pendentia or res
judicata - present evidence of a similar pending case or the
presence of a final judgment.
Note: Motion to dismiss for lack of jurisdiction or prescription is not
include because it can be ruled upon immediately based on the
pleadings.
CASE: PINAUSUKAN VS FAR EAST BANK
Failure to submit together with the petition the affidavits of
witnesses or documents supporting the cause of action.
Pinausukan’s failure to include the affidavits of witnesses was fatal
to its petition for annulment. Worthy to reiterate is that the objective
of the requirements of verification and submission of the affidavits
of witnesses is to bring all the relevant facts that will enable the CA
to immediately determine whether or not the petition has substantial
merit.
If you do not attach affidavits in your petition, meaning the court
cannot actually rule on the case because these are facts that do not
appear on record. So, there must be a hearing based on affidavits
and depositions which in the first place was not attached in the
petition for judgment.
CASE: MARCIAL v. HI-CEMENT (effect of failure to state relief
sought)
A motion is fatally defective for failure to include a prayer or relief
because there was no period for extension was sought in the motion.
Under Section 3, Rule 15 of the Rules of Court, a motion shall state
the relief sought to be obtained. As a result, it is pro forma or a mere
scrap of paper and of no legal effect.
RULE 15, SEC. 4 NON-LITIGUOUS MOTIONS
 Does not require that the parties be heard and which
the court may act upon without prejudicing the
rights of the adverse party.
 Shall not be set for hearing and shall be resolved by
the court within five (5) calendar days from receipt
thereof, irrespective of whether there be Saturday,
Sunday, or holiday within that 5-day period. Why?
Because if the 5th day fell on Sunday, the said
resolution is merely postponed to Monday.
 The act of granting the motion is ministerial, that is
not litigious. The adverse party has no right to
oppose
What are considered as non-litiguous motions?
a) Motion for the issuance of an alias summons - In case of loss or
destruction of summons, the court may, upon motion, issue an alias
summons. Thus, if the plaintiff so moves, the motion shall not be set for
hearing and shall just be resolved by the court. In case of destruction or
loss, the issuance of alias summons is likewise ministerial.
b) Motion for extension to file answer- motion for extension will not be
set for hearing. In resolving the motion, the court will simply consider if
the extension is based on meritorious reasons.
*Motion for extension of time is not a litigated motion where notice to
the adverse party is necessary to afford the latter an opportunity to resist
the application, but an ex parte motion made to the court in behalf of one
or the other of the parties to the action, in the absence and usually without
the knowledge of the other party or parties.
c) Motion for postponement-
d) Motion for the issuance of a writ of execution - Once a judgment
becomes final, the prevailing party is entitled as a matter of right to a writ
of execution and its issuance is the trial court’s ministerial duty. When a
prevailing party files a motion for execution of a final and executory
judgment, it is not mandatory for such party to serve a copy of the motion
to the adverse party and to set it for hearing. The absence of such advance
notice to the judgment debtor does not constitute an infringement of due
process.
66
e) Motion for the issuance of an alias writ of execution- When you talk
about the issuance of the writ of execution, it is ministerial. No need for
discretion on the part of the court. Under the old rules, it is not mandatory
to serve a copy of the motion to the adverse party.
f) Motion for the issuance of a writ of possession- Upon proper
application and proof of title, the issuance of the writ of possession
becomes a ministerial duty of the court
g) Motion for the issuance of an order directing the sheriff to execute
the final certificate of sale; and
h) Other similar motions
1. Motion to amend a pleading not as a matter of right but the
subject of the amendment would only be to correct formal
errors under Rule 10 formal amendment.
2. Motion or application to litigate in forma pauperis can be
granted upon an ex parte application and hearing and the
court is satisfied that the party is one who has no money or
property sufficient and available for food, shelter and basic
necessities for himself and his family.
CASE: DELOS REYES versus RAMNANI
General rule: All written motions should be set for hearing under
Section 4, Rule 15 of the Rules of Court.
Exception: Non-litigious motions or motions which may be acted upon
by the court without prejudicing the rights of the adverse party.
The motion for issuance of the final certificate of sale is a non-litigious
motion because the expiration of the one-year redemption period
foreclosed petitioner's right to redeem the subject property and the sale
thereby became absolute. The issuance thereafter of a final certificate of
sale is a mere formality.
RULE 15 ,SEC. 5 LITIGIOUS MOTIONS
A motion that the court cannot resolve the motions without giving the
adverse party the opportunity to be heard.
A motion that the court may not act upon without prejudicing the rights of
adverse parties.
All motions shall be served upon the adverse party. How is it served?
Under Rule 13.
 When is it determined that the parties consented to the mode of
service through electronic means? During PRE-TRIAL.
 Correlate Rule 15 ,sec. 5 and sec. 7 which gives us a
conclusion that all motions whether non-litigious or litigious
motions should be served and will only be acted upon by the
court if there is proof of service either by personal, accredited
courier or registered mail or electronic means.
 When filing a motion for extension it is only for the purpose of
extending the period to file an answer. This means that the
defendant has not personally appeared before the court yet
because there is still no scheduled trial and hearing. It’s still at
the pleading stage. Because the motion is written sec. 7 is
followed which requires proof of service.
 When are oral motions considered litigious motions and thus
can be served? Rule 132 sec. 39 striking out an answer. The
court will not simply strike it out on its own initiative. What
will the court do? It will wait for a move to strike. That’s
litigious because the other party will contend that the witness
is competent to answer or that the answer is relevant. Improper
means not proper to be said on trial. That’s a litigious motion
that happens orally or spontaneously but it is not in writing.
For litigious motions, the opposing party shall file his opposition to the
motion within 5 calendar days from receipt.
The court shall resolve the motion within 15 calendar days from its
receipt of the opposition or upon the expiration of the period to file such
opposition. Court will not wait for the adverse party to file an opposition.
The moment that the period to file opposition has expired, without an
opposition being filed by the adverse party, then the Court will resolve
based on the motion only of the movant.
RULE 15 ,SEC. 6 NOTICE OF HEARING ON LITIGIOUS
MOTION IS DISCRETIONARY UPON THE COURT
General rule: A hearing is not necessary to resolve a motion.
Exception: If the court thinks that it is somewhat complicated, it needs
some clarifications about the matters there in the motion, a hearing can be
set soy by the court. In cases where hearing is required it is the court that
shall notify the parties and shall specify the time and date of the hearing.
RULE 15 ,SEC. 7 PROOF OF SERVICE NECESSARY
 You cannot file anything in court without furnishing a copy to
your opponent.
 The requirement of service applies to both litigious and non-
litigious motions because they are necessarily written motions.
CASE: CEPRADO v. NATIONWIDE SECURITY
 Motions for reconsideration not served on the other party are
pro forma and are "mere scraps of paper" not to be acted upon
by the court.
 Motions for reconsideration not served on the other party do
not toll the running of the reglementary period for filing an
appeal, and the judgment sought to be reconsidered becomes
final and executory upon lapse of the reglementary period.
 A motion must be served to the party before filing it because
prior service is required under sec. 7.
 A motion not served does not toll the running of the
reglementary period for filing an answer.
RULE 15, SEC. 8 HEARINGS FOR LITIGIOUS MOTIONS ARE
SET ON A FRIDAY
General rule: Hearings are conducted any Friday at the discretion of the
court.
Exception: Motions that require immediate action. (Possible examples are
provisional remedies for support or application for protection orders but
both are not motions)
RULE 15 ,SEC. 9 OMNIBUS MOTION
 A type of legal motion in which multiple requests are bundled.
 You ask for a lot of reliefs
 This motion attacking a pleading, order, judgement, or
proceeding shall include all objections then available, all
objections not shall be deemed waived.
Example: Filing a motion for new trial.
A Motion for New Trial is a motion attacking a judgment. You want the
court to receive evidence again even if you already lost the case. This
motion is filed during the period to appeal.
Under Rule 37, sec. 5
67
General rule: A motion for new trial shall include all grounds then
available and those not so included shall be deemed waived.
Exception: if a 2nd motion for new trial is filed where the ground it is
based on is not existing nor available when the first motion was made.
Conclusion: When you file for a Motion For New Trial, ALL possible
grounds should already be INCLUDED. Otherwise, they are deemed
waived.
RULE 15 ,SEC. 9 NOT APPLICABLE IN FILING A MOTION TO
DISMISS BECAUSE:
General Rule: Filing of the motion to dismiss on the ground of improper
venue is already an equivalent to a waiver to the other options.
Exception: Rule 9 ,sec. 1
When it appears from the pleadings or the evidence on record that:
1. the court has no jurisdiction over the subject matter
2. that there is another action pending between the same parties
for the same cause, or
3. that the action is barred by prior judgment or
4. Barred by statute of limitations, the court shall dismiss the
claim.
RULE 15 ,SEC. 10 MOTION FOR LEAVE
A motion for leave shall already have the attached pleading or motion
sought to be admitted.
Examples of motion for leave: (MEMORIZE)
1. Motion for leave to file a 3 rd party complaint- Complaint must
already be attached to your motion for leave.
2. Motion for leave to file an amendment – amendment pleading
must be attached in the motion.
3. Motion for leave to file an attached supplemental pleading-
4. Motion for leave to file an omitted counterclaim or cross-
claim.
5. Motion for leave to file a belated pleading.
6. Motion for leave to file a complaint-in-intervention
7. Motion for leave to file the attached complaint against the
receiver.
REQUISITES FOR A VALID MOTION:
a) It must be in writing except those made in open court or in the
course of hearing or trial. [Rule 15 ,sec. 2]
b) It shall state the relief sought to be obtained and the ground
upon which it is based. [Rule 15,sec. 3]
Recall that for example the relief was not stated, it’s going to
be a proforma motion and has no legal effect .
c) It must be accompanied by supporting affidavits and other
papers, if required by the Rules or necessary to prove facts
alleged therein. [Rule 15,sec. 3]
d) All motions shall be served by personal service, accredited
private courier or registered mail, or electronic means so as to
ensure their receipt by the other party. [Rule 15,sec. 5 par. B]
e) There must be proof of service on the adverse party. [Rule 15,
sec. 7]
RULE 15 ,SEC. 12 PROHIBITED PLEADINGS (REMEMBER)
 Filing a prohibited motions is considered a mere scrap of
paper. It has no legal effect.
 Filing a prohibited motion does not interrupt any period. The
period to file an answer is not interrupted.
  Defendant may be declared in default even if he filed a motion
to dismiss because the motion to dismiss he filed was
prohibited.
What are considered as prohibited motions?
(a) MOTIONS 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 judgment or by the
statute of limitations;
4) Other grounds for Atty to for a motion to dismiss is under:
Rule 7, sec. 5 failure to comply with the requirements on
certification against non-forum shopping.
 Not curable by mere amendment of the complaint
but shall be cause for the dismissal of the case
without prejudice to refiling unless otherwise
provided upon motion and after hearing.
 This ground can be filed after receipt of summons.
 Motion can be filed within the period to file an
answer.
 The plaintiff should attach the certification against
forum shopping because he is the one who files an
initiatory pleading.
 The defendant should file a motion to dismiss on the
ground of failure to comply with the requirements
on certification against forum shopping.
Rule 17 ,sec 3 Dismissal due to fault of plaintiff
 Grounds: Plaintiff fails to appear on the date of the
presentation of his or her evidence in chief on the
complaint, Failure to prosecute his or her action for
an unreasonable length of time, and comply with
these Rules or any order of the court
 Motion can be filed during trial because it is during
trial that you notice that the did appear.
 Motion can also be filed not during the trial but prior
to trial for failure to comply with the rules or any
order of the court. Like failure to follow the order of
the court to furnish a copy of bill of particulars to the
adverse party. “Non-compliance by the plaintiff
with the order of the court to file a bill of particulars
may lead to the dismissal of the action upon motion
of the defendant and that falls under other such order
as it deems just”.
Rule 33 Demurer to Evidence
 After the plaintiff has completed the presentation of
his/her evidence, the defendant may move for the
dismissal on the ground that upon the facts and the
law the plaintiff has shown no right to relief.
 Based on the evidence of the plaintiff, there is no
cause of action established against the defendants.
Based on the facts and on the law there is no merit as
to the complaint of the plaintiff.
NOTE: These grounds can be invoked by the defendant at any time, not
only during the period to file an answer, to cause the dismissal of the
case.(Correlate with Rule 9 sec. 1)
(b) Motions to HEAR AFFIRMATIVE DEFENSES – prohibited
because many of the defenses under the amended Rules whether you can
find it in Rule 6, 8 and 15. They used to be ground in the motion to
dismiss under Rule 16.
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 The entire Rule 16 on motion to dismiss was deleted and most
of its provisions were incorporated in other Rules.
 A party can no longer move for a hearing on his motion to
dismiss or his affirmative defenses.
AFFIRMATIVE DEFENSES UNDER THE AMENDED RULES
1. Rule 6, Section 5 (b). The affirmative defenses include: 1. Fraud; 2.
Statute of limitations; 3. Release; 4. Payment; 5. Illegality; 6. Statute of
frauds; 7. Estoppel; 8. Former recovery; 9. Discharge in bankruptcy; and
10. Any other way of confession and avoidance.
2. Rule 6, Section 5 (b) Second paragraph or the affirmative defenses
that are also grounds for a motion to dismiss: 1. That the court has no
jurisdiction over the subject matter; 2. That there is another action
pending between the same parties for the same cause; or 3. That the
action is barred by a prior judgment.
3. Rule 8, Section 12. 1. That the court has no jurisdiction over the
person of the defending party; 2. That the venue is improperly laid; 3.
That the plaintiff has no legal capacity to sue; 4. That the pleading
asserting the claim states no cause of action; and 5. That a condition
precedent for filing the action has not been complied with.
Examples: Katarungang Pambarangay, Exhaustion of Administrative
Remedies, Attempts of Compromise if the parties are members of the
same family.
COMMON RULE FOR ALL AFFIRMATIVE DEFENSES:
Rule 8 ,sec. 12 par. B Failure to raise the affirmative defenses at the
earliest opportunity shall constitute a waiver thereof.
DIFFERENCE BETWEEN AFFIRMATIVE DEFENSES UNDER
RULE 6 ,SEC. 5 B AND RULE 8 ,SEC. 12
RULE 8 ,SEC. 12
General rule: Court shall motu proprio resolve the affirmative defenses
raised in the answer within thirty (30) calendar days from the filing of the
answer. There is no need for hearing. Unlike in the old rules where a
hearing is required.
 Affirmative defenses under Rule 8 sec. 12 shall follow the
general rule where the court shall motu proprio resolve
affirmative defenses under Rule 8 sec. 12 (C). There will be no
presentation of evidence. The court will resolve the affirmative
defense based on the Rules, on the pleadings filed by the
parties, and on such information that already appears on the
record.
 EFFECT: The court can actually resolve to dismiss the case on
the affirmative defenses of lack of jurisdiction over the person
of the defending party, improper venue, lack of legal capacity
to sue, failure to state a cause of action and non-compliance
with conditions precedent.
How will the court decide based on these affirmative defenses?
1. Lack of jurisdiction over the person of the defending
party - To determine whether there was valid service of
summons, the court will simply examine the allegations
of the defendant, the return made by the sheriff, and use if
Rule 14 has been complied with.
2. Improper venue - The court will examine the allegations
in the pleadings, and see if Rule 4 has been complied
with. If there is a stipulation as to venue, it will normally
be contained in the contract which is an actionable
document which is alleged and denied under oath.
 3. Lack of legal capacity to sue- Whether the plaintiff has
legal capacity to sue can also be determined according to
the allegations in the pleadings.
4. Failure to state a cause of action - Whether the pleading
asserting a claim states a cause of action can be
determined just by looking at the allegations of the
complaint.
CASE: ASIA BREWERY, INC. VS. EQUITABLE PCI BANK
Test to determine whether a complaint states a cause of action against the
defendants is this: Admitting hypothetically the truth of the allegations of
fact made in the complaint, may a judge validly grant the relief
demanded in the complaint?
In determining whether the elements of a cause of action are present or
whether they have been sufficiently alleged, the inquiry is therefore
confined to the four corners of the complaint.
5. Non-compliance with conditions precedent- Whether
or not there is a compliance with conditions precedent
can be determined by examining the pleadings.
Ex. Failure to proceed with barangay conciliation which
is a condition precedent to obtain a certification to file
such action before the court.
RULE 6 ,SEC. 5 (B) PAR. 1 (only)
Affirmative defenses under this rule as provided under Rule 8 ,sec. 12
par. D states that the court may conduct a summary hearing within15
calendar days from the filing of the answer where such affirmative
defenses shall be resolved by the court within 30 calendar days from
the termination of the summary hearing.
(2) That there is another action pending between the same parties for the
same cause; or
(3) That the action is barred by a prior judgement.
 These affirmative defenses are subject to the general rule
where ethe court has to resolve the affirmative defenses
within 30 calendar days from the filing of the answer.
 Summary hearing is not applicable because it is only
applied to Rule 6,sec. 5 (B) par. 1
WHY IS PRESCRIPTION/ STATUTE OF FRAUDS NOT
INCLUDED
(c) Motion for RECONSIDERATION OF THE COURT’S ACTION ON
THE AFFIRMATIVE DEFENSES;
(d) Motion to SUSPEND PROCEEDINGS WITHOUT A TEMPORARY
RESTRAINING ORDER OR INJUNCTION ISSUED BY HIGHER
COURT;
(e) Motion for EXTENSION OF TIME TO FILE PLEADINGS,
AFFIDAVITS OR ANY OTHER PAPERS, except a motion for extension
to file an answer as provided by Section 11, Rule 11; and
(f) Motion FOR POSTPONEMENT INTENDED FOR DELAY, except if
it is based on acts of God, force majeure, or physical inability of the
witness to appear and testify.
If the motion is granted based on such exceptions, the moving party shall
be warned that the presentation of its evidence must still be terminated on
the dates previously agreed upon.

General rule: The court to resolve motu proprio within 30 calendar days
from the time of the filing of the answer. (Rule 8,sec. 12 par. C)

Exception: Affirmative defenses under Rule 6 ,sec. 5 where a summary

hearing may be conducted. (Rule 8,sec. 12 par. D)

WHAT CHOICES DOES THE COURT HAVE IF THE

AFFIRMATIVE DEFENSES UNDER RULE 6 ,SEC. 5 IS
PRESENT?

1. Court deems it necessary to conduct a summary hearing on those

10 affirmative defenses, the summary hearing shall be conducted within
15 calendar days from the filing of the answer. The court should then
resolve the affirmative defenses within 30 calendar days from the
termination of the summary hearing.

2. Court does not deem it necessary to conduct a summary hearing,

the court shall motu proprio resolve the affirmative defenses within 30
calendar days from the filing of the answer.

 court has the option to conduct a hearing or not, if it wants to

conduct a hearing that is the deadline, it should conduct a
hearing within 15 calendar days, after the hearing, it has 30
calendar days to resolve it but if the court does not want to
conduct a summary hearing, it should resolve the affirmative
defenses within 30 calendar days from the filing of the answer.
 When is a summary hearing allowed? If the affirmative
defenses cannot be resolved without reception of evidence or if
the facts as borne out in the pleadings and records of the case
are insufficient to justify the resolution of the court.

WHAT ABOUT AFFIRMATIVE DEFENSES UNDER RULE 6,SEC.

5 (B) PARAGRAPH 2?

These are the affirmative defenses that are also grounds for a motion to
dismiss:

(1) That the court has no jurisdiction over the subject matter;
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