General Principles Concept of remedial law

Q: What is the concept of remedial law? 2% (2006 Bar Question) The concept of Remedial Law is that it
is a branch of public law which prescribes the procedural rules to be observed in litigations, whether
civil, criminal, or administrative, and in special proceedings, as well as the remedies or reliefs available in
each case.

Q: How are remedial laws implemented in our system of government? 2% (2006 Bar Question) Remedial
Laws are implemented in our system of government through the judicial system, including the
prosecutory service, our courts and quasi-judicial agencies. X’s action for sum of money against Y
amounting to P80,000.00 accrued before the effectivity of the rule providing for shortened procedure in
adjudicating claims that do not exceed P100,000.00. X filed his action after the rule took effect. Will the
new rule apply to his case? (2011 BAR) Yes, since procedural rules generally apply prospectively to
pending cases. Substantive law vis-á-vis remedial law

Q: Distinguish between substantive law and remedial, law. 2% (2006 Bar Question) Substantive law is
that part of the law which creates, defines and regulates rights and obligations, the violation of which
gives rise to a cause of action. On the other hand, remedial law prescribes the method of enforcing
rights or obtaining redress for their invasion Nature of Philippine courts Principle of judicial hierarchy.
Which of the following NOT TRUE regarding the doctrine of judicial hierarchy? (2011 BAR) It derives
from a specific and mandatory provision of substantive law.

Q: What is meant by “hierarchy of courts”? (1996 Bar Question) By “hierarchy of-courts” is meant that
while the Supreme Court, the Court of Appeals and the Regional Trial Courts have concurrent original
jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto and habeas corpus, such
concurrence does not accord litigants unrestrained freedom of choice of the court to which application
therefor may be directed. The application should be filed with the court of lower level unless the
importance of tHe issue involved deserves the action of the court of higher level. Doctrine of non-
interference or doctrine of judicial stability What is the doctrine of judicial stability or non interference?
(2011 BAR) No court has the authority to interfere by injunction with the judgment of another court of
coordinate jurisdiction. Q: AB. as mother and in her capacity as legal guardian of her legitimate minor
son, CD, brought action for support against EF, as father of CD and AB's lawfully wedded husband. EF
filed his answer denying his paternity with counterclaim for damages.

Subsequently, AB filed a manifestation in court that in view of the denial made by EF, would be futile to
pursue the case against EF. AB agreed to move for the dismissal of the complaint, subject to the
condition that EF will withdraw his counterclaim for damages. MB and EF filed a joint motion to dismiss.
The court dismissed the case with prejudice. Later on, minor son CD, represented by AB, filed another
complaint for support against EF. EF filed a motion to dismiss on the ground of res judicata. Is res
judicata a valid ground for dismissal of the second complaint? Explain your answer. (3%) - No, res
Judicata is not a defense in an action for support even if the first case was dismissed with prejudice on a
Joint motion to dismiss. The plaintiff’s mother agreed to the dismissal of the complaint for support in
view of the defendants answer denying his paternity with a counterclaim for damages. This was in the
nature of a compromise of the right of support which Is prohibited by law. What are the essential
requisites of res Judicata (2%) (2000 Bar Question) 1. the judgment or order rendered must be final; 2.
the court rendering the same must have Jurisdiction of the subject matter and of the parties; 3. it must
be a judgment or order on the merits; and 4. there must be between the two cases identity of parties,
identity of subject matter, and identity of causes of action. A judicial compromise has the effect of
________ and is immediately executory and is not appealable. (2012 BAR) Res Judicata;

Q: Evelyn filed a complaint for a sum of money against Joan but the complaint was later dismissed for
failure to prosecute “within a reasonable length of time.” Thereafter, Evelyn filed another case based on
the same facts against Joan. Joan moved to dismiss the same on the ground that the cause of action
therein is barred by a prior judgment (res judicata). Evelyn opposed the motion claiming that res
judicata has not set in since Joan was not served with summons and the complaint in the first case was
earlier dismissed, so that the trial court never acquired jurisdiction over her person and, consequently,
over the case. How would you decide the motion of Joan? Explain. (1989 Bar Question) - The motion to
dismiss is denied. One of the essential requisites of res judicata is jurisdiction over the parties. Inasmuch
as Joan was not served with the summons in the first case which was earlier dismissed, the court did not
acquire jurisdiction over her person and, hence, the dismissal was without prejudice to the filing of
another action against her. Jurisdiction Over the parties How jurisdiction over the plaintiff is acquired Q:
Amorsolo, a Filipino citizen permanently residing in New York City, filed with the RTC of Lipa City a
Complaint for Rescission of Contract of Sale of Land against Brigido, a resident of Barangay San Miguel,
Sto. Tomas, Batangas. The subject

property, located in Barangay Talisay, Lipa City, has an assessed value of P19,700.00. Appended to the
complaint is Amorsolo’s verification and certification of non-forum shopping executed in New York City,
duly notarized by Mr. Joseph Brown, Esq., a notary public in the State of New York. Brigido filed a
motion to dismiss the complaint on the following grounds: [a] The court cannot acquire jurisdiction over
the person of Amorsolo because he is not a resident of the Philippines; (2%) (2009 Bar Question) - The
first ground raised lacks merit because jurisdiction over the person of a plaintiff is acquired by the court
upon the filing of plaintiffs complaint therewith. Residency or citizenship is not a requirement for filing a
complaint, because plaintiff thereby submits to the jurisdiction of the court.

Q: How is jurisdiction acquired by a court over the person of: (1994 Bar Question) 1) the plaintiff in a
special civil action for mandamus? - Jurisdiction is acquired over the plaintiff in a special civil action for
mandamus by the commencement or filing of the action. Q: Pernito, also known in the community as
Peregrino filed a petition for change of name to Pedro. The name Peregrino appeared in the body of the
petition but not in the caption. When the petition was published, the caption and the body of the
petition were merely lifted verbatim, so that as published, the petition’s caption still did not contain
Peregrino as the petitioner’s alias. The government lawyer filed a motion to dismiss on the ground that,
notwithstanding publication for the requisite number of times, the court did not acquire Jurisdiction
over the petition because petitioner’s alias (Peregrino) did not appear in the published caption. The
court denied the motion to dismiss with the ruling that there was substantial compliance with the law
and that the omission of the alias in the caption may be deemed de minimis because the alias was
clearly set forth in the petition itself. Was the court correct in denying the motion to dismiss? Explain.
(1992 Bar Question) - No, the failure of the petitioner to include his alias (Peregrino) in the caption is a
jurisdictional defect and the inclusion of the alias in the body of the petition does not cure said defect.
The reason for the rule is that the ordinary reader only glances fleetingly at the caption in a special
proceeding and only if the caption strikes him does he proceed to read the body of the petition;
hence, .he will probably not notice the other names or aliases of the petitioner. (Gil Go vs. Republic, 77
SCRA 65) How jurisdiction over the defendant is acquired Q: How is jurisdiction acquired by a court over
the person of: (1994 Bar Question) the defendant in an action for unlawful detainer? a non-resident
defendant who is not found in the Philippines, in an action for compulsory acknowledgment of his
natural child? - Jurisdiction is acquired over the person of the defendant in an action for unlawful
detainer by the proper service of summons on him or by his voluntary appearance.

- Jurisdiction cannot be acquired over the person of a non-resident defendant who is not found in the
Philippines in an action for compulsory acknowledgment of his natural child because he is outside the
jurisdiction of the court. Lani filed an action for partition and accounting in the Regional Trial Court (RTC)
of Manila against her sister Mary Rose, who is a resident of Singapore and is not found in the
Philippines. Upon motion, the court ordered the publication of the summons for three weeks in a local
tabloid, Bulgar. Linda, an OFW vacationing in the Philippines, saw the summons in Bulgar and brought a
copy of the tabloid when she returned to Singapore, Linda showed the tabloid and the page containing
the summons to Mary Rose, who said, “Yes I know, my kumare Anita scanned and e-mailed that page of
Bulgar to me!” Did the court acquire jurisdiction over Mary Rose? (2008 Bar Question) - No, the court
did not acquire jurisdiction over Mary Rose, the defendant. While serving summons by publication is
allowed in this case under Section 15, Rule 14 of the Rules of Court, the required sending of the copy of
the summons and the order of the Court by registered mail to the last known address of the same
defendant has not been followed; service of summons by publication under said Rule has not been
complied with; thus, there is no valid service. Over the subject matter Error of jurisdiction as
distinguished from error of judgment Q: Distinguish between error of judgment and error of jurisdiction.
(1989 Bar Question) - An error of judgment is one which the court may commit in the exercise of its
jurisdiction. Such an error does not deprive the court of jurisdiction and is correctible only by appeal;
whereas an error of jurisdiction is one which the court acts without or in excess of its jurisdiction. Such
an error renders an order or judgment void or voidable and is correctible by the special civil action of
certiorari. How jurisdiction is conferred and determined Q: A complaint filed for recovery of possession
of real property also prayed for moral and exemplary damages the amounts of which have been left to
the court’s discretion, and for actual damages the amount of which shall be proven at the trial. The
docket fees for the action involving the real property have been paid, but not those for the related
damages, the amounts of which have not been specified. (1991 Bar Question) (a) Did the court acquire
Jurisdiction over the action? - Yes, because the docket fees for the action involving the real property
have been paid. May the action be dismissed? (b) No, because the court has acquired jurisdiction over
the action. However, the claim for damages, as to which no amounts were specified may be expunged,
or the plaintiff may be allowed to amend the complaint so as to specify the amount of damages and to
pay the requisite fees within the prescriptive period. (Tacay v. RTC, 180 SCRA 433)

Objections to jurisdiction over the subject matter Q: In a suit to recover a sum of money, plaintiff filed
his complaint with the Regional Trial Court instead of with the Municipal Trial Court which has
jurisdiction over the case because of the amount involved. The defendant did not file a motion to
dismiss. Neither did the Regional Trial Court dismiss the case on its own initiative. At the pretrial
hearing, defendant tried to have the case settled. With the effective help of the presiding judge, he was
able to forge with the plaintiff a compromise agreement which stipulated that he would pay in twelve
(12) equal monthly installments starting the first day of the following month, each to become due
without need of any demand. Failure to pay any installment when due will render the entire amount
enforceable by writ of execution. Judgment was rendered on the basis of the compromise agreement
and was then served on the parties. Defendant failed to pay the first installment as it fell due. Plaintiff
thereupon sought execution which was granted, and the corresponding writ of execution was issued.
Defendant filed in due form a motion to set aside the writ of execution upon the contention that the
court had no power to order the issuance of the writ of execution because it has no jurisdiction over the
nature of the action, an issue that can be raised at any stage of the case. The court granted the
defendant’s motion and accordingly set aside the writ of execution. Did the court act correctly? Why?
(1992 Bar Question) Suggested Answer: - Yes, the court acted correctly, because jurisdiction over the
subject matter or nature of an action cannot be conferred by agreement of the parties. Whenever it
appears that the court has no jurisdiction over the subject matter, it shall dismiss the action, Effect of
estoppel on objections to jurisdiction Q: Angelina sued Armando before the Regional Trial Court (RTC) of
Manila to recover the ownership and possession of two parcels of land; one situated in Pampanga, and
the other in Bulacan. May the action prosper? Explain. (2%) (2009 Bar Question) - NO, the action may
not prosper, because under Rep. Act No. 7691, exclusive original jurisdiction in civil actions which
involve title to, or possession of real property or any interest therein is determined on the basis of the
assessed value of the land involved, whether it should be P20,OOO in the rest of the Philippines, outside
of the Manila with courts of the first level or with the-Regional Trial Court. The assessed value of the
parcel of land in Pampanga is different from the assessed value of the land in Bulacan. What is involved
is not merely a matter of venue, which is waivable, but of a matter of jurisdiction. However, the action
may prosper if jurisdiction is not in issue, because venue can be waived. Will your answer be the same if
the action was for foreclosure of the mortgage over the two parcels of land? Why or why not? (2%) -
NO, the answer would not be the same. The foreclosure action should be brought in the proper court of
the province where the land or any part thereof is

situated, either in Pampanga or in Bulacan. Only one foreclosure action need be filed unless each parcel
of land is covered by distinct mortgage contract. In foreclosure suit, the cause of action is for the
violation of the terms and conditions of the mortgage contract; hence, one foreclosure suit per
mortgage contract violated is necessary. Q: Amorsolo, a Filipino citizen permanently residing in New
York City, filed with the RTC of Lipa City a Complaint for Rescission of Contract of Sale of Land against
Brigido, a resident of Barangay San Miguel, Sto. Tomas, Batangas. The subject property, located in
Barangay Talisay, Lipa City, has an assessed value of P19,700.00. Appended to the complaint is
Amorsolo’s verification and certification of non-forum shopping executed in New York City, duly
notarized by Mr. Joseph Brown, Esq., a notary public in the State of New York. Brigido filed a motion to
dismiss the complaint on the following grounds: The RTC does not have jurisdiction over the subject
matter of the action involving real property with an assessed value of P19,700.00; exclusive and original
jurisdiction is with the Municipal Trial Court where the defendant resides; (3%) and (2009 Bar Question)
- The second ground raised is also without merit because the subject of the litigation, Rescission of
Contract, is incapable of pecuniary estimation the exclusive original jurisdiction to which is vested by law
in the Regional Trial Courts. The nature of the action renders the assessed value of the land involved
irrelevant. Q: A filed a complaint against Y with the RTC of Argao, Cebu, for payment of a promissory
note in the- sum of P50.000.00, for liquidated damages of P5.000.00 and attorney’s fees of P5.000.00.
After he filed his answer, Y died, but his lawyer did not file a motion to dismiss. In the meantime, Y*s
widow filed with the above court a special proceeding for the settlement of the intestate estate of Y.
The widow, Z, was appointed the administratrix of the estate. A filed in the civil case a motion to have Y
substituted by the administratrix; the latter did not object. The court granted the motion. Trial on the
merits was had. In due course, the court rendered a decision in favor of A. At the time it was rendered,
the period to file claims in the intestate estate of Y had already lapsed. The administratrix, X, did not
appeal from the decision; and after it became final. A moved for the execution of judgment, Z opposed
the motion contending that the decision is void because the claim does not survive. The case should
have been dismissed upon the death of Y since upon his death, the court lost jurisdiction over the case.
(1991 Bar Question) a) Rule on the issue. - Since Y died before final Judgment in the RTC, the action for
money should have been dismissed and prosecuted as a money claim against his estate. However, since
the widow. Z, who was appointed administratrix of the estate, did not object to the trial on the merits
and did not appeal from the decision, she is deemed to have waived the right to have the claim litigated
in the estate proceedings. Moreover, she is estopped from questioning the court's jurisdiction. Hence,
the decision is valid.

If the opposition is without merit, can the writ of execution be validly issued? - No, because a Judgment
for money cannot be enforced by a writ of execution against the estate of the deceased which is in
custodia legis. If it cannot be issued, what is the remedy of A? - His remedy is to file a money claim
against the estate of Y based on the judgment. Although the period for filing money claims has already
lapsed, the same may be allowed before an order of distribution is entered. Over the issues Q: In
complex crimes, how is the jurisdiction of a court determined? (2003 Bar Question) - In a complex crime,
jurisdiction over the whole complex crime must be lodged with the trial court having jurisdiction to
impose the maximum and most serious penalty imposable on an offense forming part of the complex
crime Over the res or property in litigation Q: Angelina sued Armando before the Regional Trial Court
(RTC) of Manila to recover the ownership and possession of two parcels of land; one situated in
Pampanga, and the other in Bulacan. May the action prosper? Explain. (2%) (2009 Bar Question) - NO,
the action may not prosper, because under Rep. Act No. 7691, exclusive original jurisdiction in civil
actions which involve title to, or possession of real property or any interest therein is determined on the
basis of the assessed value of the land involved, whether it should be P20,OOO in the rest of the
Philippines, outside of the Manila with courts of the first level or with the-Regional Trial Court. The
assessed value of the parcel of land in Pampanga is different from the assessed value of the land in
Bulacan. What is involved is not merely a matter of venue, which is waivable, but of a matter of
jurisdiction. However, the action may prosper if jurisdiction is not in issue, because venue can be
waived. Will your answer be the same if the action was for foreclosure of the mortgage over the two
parcels of land? Why or why not? (2%) - NO, the answer would not be the same. The foreclosure action
should be brought in the proper court of the province where the land or any part thereof is situated,
either in Pampanga or in Bulacan. Only one foreclosure action need be filed unless each parcel of land is
covered by distinct mortgage contract. In foreclosure suit, the cause of action is for the violation of the
terms and conditions of the mortgage contract; hence, one foreclosure suit per mortgage contract
violated is necessary. Jurisdiction of courts Supreme Court If the Supreme Court en banc is equally
divided in opinion covering an original action, the case shall be: (2012 BAR) original action shall be
dismissed.

A decision or resolution of a division of the Supreme Court when concurred in by members who actually
took part in the deliberation on the issues in a case and voted thereon, is a decision or resolution of the
Supreme Court. (2012 BAR) three (3); Q: Compare the certiorari jurisdiction of the Supreme Court under
the Constitution with that under Rule 65 of the Rules of Civil Procedure. (4%) (2008 Bar Question) -
Under the Constitution, the certiorari jurisdiction of the Supreme Court provides for its expanded
jurisdiction power of judicial power over [governs] all branches or instrumentalities of the government
where is a grave abuse of discretion amounting to lack or excess of jurisdiction, as [agencies and
instrumentalities] provided in Section 1, second par., Art. VIII of the 1987 Constitution. The petition is
filed under Rule 45 of the Rules of Court, and [The writ is directed not only to tribunal, board or officer
exercising judicial or quasi-judicial functions. And] the period fixed for availing of the remedy is within 30
days from receipt of the copy of the decision, order or ruling in question But under Rule 65 of the Rules
of Court, the certiorari jurisdiction of the Supreme Court is limited to acts done without or in excess of
jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction, by a tribunal, board
or officer exercising judicial or quasi- judicial functions only. And the period fixed for availing of the
remedy is not later than 60 days from notice of judgment; order or resolution in question Q: Can a suit
for injunction be aptly filed with the Supreme Court to stop the President of the Philippines from
entering into a peace agreement with the National Democratic Front? (2003 Bar Question) - No, a suit
for injunction cannot aptly be filed with the Supreme Court to stop the President of the Philippines from
entering into a peace agreement with the National Democratic Front, which is a purely political
question. The President of the Philippines is immune from suit. Q: After the First Division of the Supreme
Court decided a case, the losing party sought a reconsideration from the Supreme Court en banc. Is the
action taken by the said losing party proper? Explain your answer. (1990 Bar Question) - No, because the
Supreme Court en banc is not an appellate court to which decisions or resolutions of a Division may be
appealed. However, a motion for reconsideration may be considered by the Supreme Court en banc if
three members of the Division are of the opinion that the same merits the attention of the Court en
banc and a majority of the Court en banc decide to consider it. (Circular No. 2.89, Feb. 7, 1989) Court of
Appeals Q: Goodfeather Corporation, through its President, Al Pakino, filed with the Regional Trial Court
(RTC) a complaint for specific performance against Robert White. Instead of filing an answer to the
complaint, Robert White filed a motion to dismiss the complaint on the ground of lack of the
appropriate board resolution from the Board of Directors of Good feather Corporation to show the
authority of Al Pakino to represent the corporation and file the complaint in its behalf. The RTC granted
the motion to

dismiss and, accordingly it ordered the dismissal of the complaint. Al Pakino filed a motion for
reconsideration which the RTC denied. As nothing more could be done by Al Pakino before the RTC, he
file an appeal before the Court of Appeals (CA). Robert White moved for dismissal of the appeal in the
ground that the same involved purely a question of law and should have been filed with the Supreme
Court (SC). However, Al Pakino claimed that the appeal involved mixed questions of fact and law
because there must be a factual determination if, indeed, Al Pakino was duly authorized by Goodfeather
Corporation to file the complaint. Whose position is correct? Explain. (2014) - Al Pakino is correct in
claiming that the appeal involved mixed questions of fact and law. There is a question of law when the
doubt or difference arises as to what the law is on a certain state of facts. On the other hand, there is a
question of fact, when the doubt or difference arises as to the truth or falsehood of alleged facts. Since
the complaint was dismissed due to the alleged lack of appropriate board resolution from the Board of
Directors of Goodfeather Corporation, the appeal will necessarily involve a factual determination of the
authority to file the Complaint for the said Corporation. Hence, the appeal before the Court of Appeals is
correct. Q: Give at least three instances where the Court of Appeals may act as a trial court. (3%) (2008
Bar Question) - Instances where the Court of Appeals may act as a trial court are: 1. In annulment of
judgment under Secs. 5 and 6, Rule 47. Should the Court o£ Appeals find prima facie merit in the
petition, the same shall be given due course and summons shall be served on the respondent, after
which trial will follow, where the procedure in ordinary civil cases shall be observed. 2. When a motion
for new trial is granted by the Court of Appeals, the procedure in the new trial shall be the same as that
granted by a Regional Trial Court (Sec. 4, Rule 53). 3. A petition for habeas corpus shall be set for hearing
(Sec. 12, Rule 102). 4. In a petition for the writs of amparo and habeas data, a hearing can be conducted.
5. Under Section 12, Rule 124 of the Rules of Criminal Procedure, the Court of Appeals has the power to
try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve
factual issues cases which fall within its original and appellate jurisdiction. 6. The Court of Appeals can
grant a new trial based on the ground of newly discovered evidence. (Sec. 14, Rule 124). 7. The Court of
Appeals, under Section 6, Rule 46, whenever necessary to resolve factual issues, may conduct hearing
thereon or delegate the reception of the evidence of such issues to any of its members or to an
appropriate agency or office. Q: Does the Court of Appeals have jurisdiction to review the Decisions in
criminal and administrative cases of the Ombudsman? 2.5% (2006 bar Question) - The Court of Appeals
can only review the Decisions of the Ombudsman in administrative cases in an appeal by petition for
review under Rule 43 of the

1997 Revised Rules of Civil Procedure. It has no jurisdiction to review Decisions of the Ombudsman in
criminal cases, the proper remedy being to file with the Supreme Court an original petition for certiorari
under Rule 65 Q: Menez Duque filed an action against Fuji, Inc. before the Regional Trial Court for
recovery of actual, moral and exemplary damages resulting from his alleged unfounded and unjust
dismissal from his job. Fuji. Inc. filed an answer asserting that Menez dismissal was for just and valid
cause. After trial, the Regional Trial Court rendered a decision sustaining Menez’ claim and ordering Fuji,
Inc. to pay him actual, moral and exemplary damages. Fuji, Inc. appealed to the Court of Appeals where
it insisted that Menez’ dismissal was for valid and just cause. Without resolving the assigned error, the
Court of Appeals set aside the appealed decision and dismissed the case on the ground that it is the
Labor Arbiter, not the ordinary courts, which has jurisdiction to entertain the claim for damages.
Pursuant to Rep. Act No. 6715, "claims for actual, moral exemplary and other forms of damages arising
from employeremployee relations" fall within the “original and exclusive Jurisdiction of Labor Arbiters.
Considering, however, that the lack of jurisdiction of the trial court was not assigned as error in the
appellant’s brief, did the Court of Appeals act properly in its decision? Why? (1993 Bar Question) - Yes,
because the fact that the lack of Jurisdiction of the trial court was not assigned as error in the
appellant’s brief should not prevent the Court of Appeals from taking up that issue, as the lack of
jurisdiction of the lower court is apparent from the face of the record. It is fundamental that a court of
justice could only validly act upon a cause of action or subject matter of a case over which it has
jurisdiction. Said jurisdiction is one conferred by law and cannot be acquired through, or waived by, any
act or omission of the parties. (Calimlim vs. Ramirez, 118 SCRA 399; Dy vs. National Labor Relations
Commission, 145 SCRA 211). Q: Roxanne, a widow, filed a petition for habeas corpus with the Court of
Appeals against Major Amor who is allegedly detaining her 18-year-old son Bong without authority of
law. After Major Amor had filed a return alleging the cause of detention of Bong, the Court of Appeals
promulgated a resolution remanding the case to the Regional Trial Court for a full-blown trial due to the
conflicting facts presented by the parties in their pleadings. In directing the remand, the Court of
Appeals relied on Sec. 9(1), in relation to Sec. 21 of BP 129 conferring upon said Court the authority to
try and decide habeas corpus cases concurrently with the Regional Trial Courts. Did the Court of Appeals
act correctly in remanding the petition to the Regional Trial Court? Why? (1993 Bar Question) - No.
because while the Court of Appeals has original jurisdiction over habeas corpus concurrent with
Regional Trial Courts, it has no authority for remanding to the latter original actions filed with the
former. On the contrary, the Court of Appeals Is specifically given the power to receive evidence and
perform any and all acts necessary to resolve factual issues raised in cases falling within its original
jurisdiction. (Sec. 9. second paragraph of B.P. Big. 129, as amended by E.O. No. 33 s. 1986; Orda vs.
Court of Appeals. 192 SCRA 768).

Sandiganbayan Sandiganbayan exercises concurrent jurisdiction with the Supreme Court and the Court
of Appeals over: (2012 BAR) Petitions for Writ of Amparo and Habeas Corpus. The Sandiganbayan can
entertain a quo warranto petition only in: (2012 BAR) only in aid of its appellate jurisdiction. The
judgment in a criminal case may be promulgated by the following, except by: (2012 BAR) Sandiganbayan
justice in cases involving anti-graft laws. Q: TRUE or FALSE. Answer TRUE if the statement is true, or
FALSE if the statement is false. Explain your answer in not more than two (2) sentences. In the exercise
of its original jurisdiction, the Sandiganbayan may grant petitions for the issuance of a writ of habeas
corpus. (2009 Bar Question) - FALSE. The Sandiganbayan may grant petitions for Habeas corpus only in
aid of its appellate jurisdiction (RA 7975, as amended by RA 8249), not in the exercise of “original”
jurisdiction. Q: The Ombudsman, after conducting the requisite preliminary investigation, found
probable cause to charge Gov. Matigas in conspiracy with Carpinter, a private individual, for violating
Section 3(e) of Republic Act (RA) No. 3019 (Anti- Graft and Corrupt Practices Act, as amended). Before
the information could be filed with the Sandiganbayan, Gov. Matigas was killed in an ambush. This,
notwithstanding, an information was filed against Gov. Matigas and Carpintero. At the Sandiganbayan,
Carpintero through counsel, filed a Motion to Quash the information, on the ground of lack of
jurisdiction of the Sandiganbayan, arguing that with the death of Gov. Matigas, there is no public officer
charged in the information. Is the Motion to Quash legally tenable? (2014) - NO. The Motion to quash is
not legally tenable. While it is true that by reason of the death of Gov. Matigas, there is no longer any
public officer with whom he can be charge for violation of R.A. 3019, it does not mean, however, that
the allegation of conspiracy between them can no longer be proved or that their alleged conspiracy is
already expunged. The only thing extinguished by the death of Gov. Matigas is his criminal liability. His
death did not extinguish the crime nor did it remove the basis of the charge of conspiracy between him
and Carpintero. The requirement before a private person may be indicated for violation of Section 3(g)
of R.A. 3019, among others, is that such private person must be alleged to have acted in conspiracy with
a public officer. The law, however, does not require that such person must, in all instances, be indicated
together with the public officer. Indeed, it is not necessary to join all alleged coconspirators in an
indictment for conspiracy Regional Trial Courts Q: TRUE or FALSE. Answer TRUE if the statement is true,
or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

The filing of a motion for the reconsideration of the trial court’s decision results in the abandonment of
a perfected appeal. (2009 Bar Question) - FALSE. The trial court has lost jurisdiction after perfection of
the appeal and so it can no longer entertain a motion for reconsideration. Q: On August 13, 2008, A, as
shipper and consignee, loaded on the M/V Atlantis in Legaspi City 100,000 pieces of Century eggs. The
shipment arrived in Manila totally damaged on August 14, 2008. A filed before the Metropolitan Trial
Court (MeTC)of Manila a complaint against B Super Lines, Inc. (B Lines), owner of the M/V Atlantis, for
recovery of damages amounting to P167,899. He attached to the complaint the Bill of Lading. B Lines
filed a Motion to Dismiss upon the ground that the Regional Trial, Court has exclusive original
jurisdiction over "all actions in admiralty and maritime" claims. In his Reply, A contended that while the
action is indeed "admiralty and maritime" in nature, it is the amount of the claim, not the nature of the
action, that governs jurisdiction. Pass on the Motion to Dismiss. (3%) (2010 Bar Question) - The Motion
to Dismiss is without merit and therefore should be denied. Courts of the first level have jurisdiction
over civil actions where the demand is for sum of money not exceeding P300, 000.00 or in Metro-
Manila, P400, 000.00, exclusive of Interest, damages, attorney's fees, litigation expenses and, costs: this
jurisdiction includes admiralty and marine cases. And where the main cause of action is the claim for
damages, the Amount thereof shall be considered in determining the jurisdiction of the court (Adm.
Circular No. 09-94, June 14, 1994). Q: Anabel filed a complaint against B for unlawful detainer before the
Municipal Trial Court (MTC) of Candaba, Pampanga. After the issues had been joined, the MTC dismissed
the complaint for lack of jurisdiction after noting that the action was one for accion publiciana. Anabel
appealed the dismissal to the RTC which affirmed it and accordingly dismissed her appeal. She elevates
the case to the Court of Appeals, which remands. The case to the RTC, Is the appellate court correct?
Explain (3%). (2010 Bar Question) SUGGESTED ANSWER: - Yes, the Court of Appeals is correct in
remanding the case to RTC for the latter to try the same on the merits. The RTC, having jurisdiction over
the subject matter of the case appealed from MTC should try the case on the merits as if the case was
originally med with it, and not just to affirm the dismissal of the case. Rep. Act No.7691, however,
vested jurisdiction over specified accion publiciana with courts of the first level (Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts) in cases where the assessed value of
the real property involved does not exceed P20, 000.00 outside Metro Manila, or in Metro Manila,
where such value does not exceed P50, 000.00. What court has jurisdiction over an action for specific
performance filed by a subdivision homeowner against a subdivision developer? Choose the correct
answer. Explain. 2.5% - The Housing and Land Use Regulatory Board (HLURB) that has jurisdiction over
an action for specific performance filed by a subdivision homeowner, who

is a lot-buyer or the latter’s successor-in-interest, against a subdivision developer (Manila Bankers v. Ng

Kok Wei, 418 SCRA 454 [2001]). Q: A and B are brothers. Their late father, during his lifetime, donated
his only real estate property to B. Thereafter. B sold the property to C who had it titled. C died intestate
and was survived by his son. D. A. claiming that his legitime had been impaired, filed a case for
annulment of donation and sale, cancellation of title and recovery of possession of the property before
Branch 85 of the Regional Trial Court. D filed a motion to dismiss the complaint on the ground that there
is a pending intestate estate proceeding before Branch 87 involving the estate of C. his father, which
included the subject real property. A opposed the motion arguing that Branch 85 has jurisdiction since
ownership of the land is involved and the said branch has jurisdiction to resolve the question of
ownership. As Judge of Branch 85 resolve the motion to dismiss. (1996 Bar Question) Answer: I would
deny the motion because it is Branch 85 of the Regional Trial Court that has jurisdiction to decide the
question of ownership of said property. Q: Judge Villamor was the Presiding Judge of the Regional Trial
Court of Quezon City (Branch 50), in the criminal case for qualified theft against Ding. After trial. Judge
Villamor acquitted Ding of the charge. Subsequently, Paterno, the complaining witness in the aforesaid
criminal case, filed a civil action for damages against Judge Villamor for knowingly rendering an unjust
judgment when he acquitted Ding of the qualified theft. The case was filed in the Regional Trial Court of
Pasay City (Branch 100) presided over by Judge Villegas. Judge Villamor filed a motion to dismiss the civil
case for lack of authority on the part of Regional Trial Court of Pasay City (Branch 100) to review his
(Judge Villamor) decision. How should the motion dismiss be resolved? Why? (1993 Bar Question) - The
motion to dismiss should be granted. The Regional Trial Court of Pasay City has no authority to review
the decision of Judge Villamor acquitting Ding. To allow Judge Villegas to proceed with the action for
damages against Judge Villamor, a co- equal judge of a co-equal court would in effect permit a court to
review and interfere with the Judgment of a co-equal court over which it has no appellate Jurisdiction or
power to review. [Villamor vs. Solas, 203 SCRA 540). Q: While Alfredo was abroad, a parcel of land
belonging to him was intruded into and occupied by Rodrigo on January 1, 1991. When Alfredo returned
on February 1, 1991, he immediately demanded that Rodrigo vacate the property. When the demand
went unheeded. Alfredo prepared a complaint alleging: that he is the owner of the property which
Rodrigo has intruded into and is occupying; that the intrusion done with strategy and stealth, has caused
him actual damages of P30.000.00; and he, therefore, is praying the court to restore him to the
possession of the property, to award him damages, and to further grant him such other reliefs as may be
proper in the premises. The complaint was filed on March 1. 1991 with the Regional Trial Court which
eventually rendered a decision declaring Alfredo to be the owner of the land, awarding him damages of
P5.000.00, and ordering that possession of the property be restored to him. Rodrigo appealed to the
Court of Appeals where he ques-tioned the jurisdiction of the Regional Trial Court, pertinently

contending that it was the Municipal Trial Court which had original and exclusive jurisdiction over the
case because (1) it was a forcible entry case, having been filed within one year from the alleged
intrusion; (2) the intrusion was allegedly done through strategy and stealth which are hallmarks of a
forcible entry case; and (3) the declaration of ownership was uncalled for since Alfredo did not ask for it.
As counsel for Alfredo, what points will you raise and advance to rebut the arguments of Rodrigo and to
justify the jurisdiction, as well as the decision of the Regional Trial Court?(1992 Bar Question) - As
counsel for Alfredo. I would raise the point that the action was not one of forcible entry, but an accion
publiciana or a plenary action for recovery of possession de jure which is within the jurisdiction of the
Regional Trial Court. Moreover, the claim of actual damages in the amount of P30.000.00. is not within
the jurisdiction of the Municipal Trial Court If it were an action of forcible entry, the damages that could
be claimed would be the reasonable compensation for the use and occupation of the land and the
amount hereof could exceed Twenty Thousand Pesos. But damages other than the reasonable
compensation for the use and occupation of the premises are not recoverable in an action of forcible
entry. With respect to the declaration of ownership, I would argue that it was correct inasmuch as
Rodrigo did not question the ownership of Alfredo. Q: (2002 Bar Question) P sued A in the RTC-Manila to
recover the following sums: (1) P200,000.00 on an overdue promissory note, (2) P80,000.00 on the
purchase price of a computer, (3) P150,000.00 for damages to his car and (4) P100,000.00 for attorney’s
fees and litigation expenses. Can A move to dismiss the case on the ground that the court has no
jurisdiction over the subject matter? Explain. (2%) - B. No, because the RTC-Manila has jurisdiction over
the subject matter. P may sue A In one complaint asserting as many causes of action as he may have and
since all the claims are principally for recovery of money, the aggregate amount claimed shall be the test
of jurisdiction. [Rule 2, sec. 5(d)]. The aggregate amount claimed is P430,000.00, exclusive of the
amount of P100,000.00 for attorney’s fees and expenses of litigation. Hence, the RTC-Manila has
jurisdiction. Q: Estrella was the registered owner of a huge parcel of land located in a remote part of
their barrio in Benguet. However, when she visited the property after she took a long vacation abroad,
she was surprised to see that her childhood friend, John, had established a vacation house on her
property. Both Estrella and John were residents of the same barangay. To recover possession, Estrella
filed a complaint for ejectment with the Municipal Trial Court (MTC), alleging that she is the true owner
of the land as evidenced by her certificate of title and tax declaration which showed the assessed value
of the property as P21,000.00. On the other hand, John refuted Estrella’s claim of ownership and
submitted in evidence a Deed of Absolute Sale between him and Estrella. After the filing of John’s
answer, the MTC observed that the real issue was one of ownership and not of possession. Hence, the
MTC dismissed the complaint for lack of jurisdiction.

On appeal by Estrella to the Regional Trial Court (RTC), a full-blown trial was conducted as if the case
was originally filed with it. The RTC reasoned that based on the assessed value of the property, it was
the court of proper jurisdiction. Eventually, the RTC rendered a judgment declaring John as the owner of
the land and, hence, entitled to the possession thereof. (2014) Was the MTC correct in dismissing the
complaint for lack of jurisdiction? Why or why not? - NO. The Metropolitan Trial Court was not correct in
dismissing the Complaint for lack of jurisdiction. It is well settled that jurisdiction is determined by the
allegations contained in the complaint. The contention of defendant in his Motion to Dismiss has
nothing to do in the determination of jurisdiction. Otherwise, jurisdiction would become dependent
almost entirely upon the whims of the defendant (Medical Plaza Makati Condominium v. Cullen, G.R.
No. 181416, November 11, 2013). Relative thereto, the Municipal Trial Courts have exclusive original
jurisdiction over cases of forcible entry and unlawful detainer (Section 33, B.P. 129). Hence, the
Metropolitan Trial Court is not correct in dismissing the complaint for lack of jurisdiction. Besides, the
rules allow provisional determination of ownership in ejectment cases when the defendant raises the
defense of ownership in his pleadings and the question of possession cannot be resolved without
deciding the issue of ownership (Sec. 16, Rule 70). Accordingly, the inferior courts have jurisdiction to
resolve questions of ownership whenever it is necessary to decide the question of possession in an
ejectment case. Was the RTC correct in ruling that based on the assessed value of the property, the case
was within its original jurisdiction and, hence, it may conduct a full-blown trial of the appealed case as if
it was originally filed with it? Why or why not? - NO. It is settled that forcible entry and unlawful
detainer cases are within the exclusive original jurisdiction of the MTC. Moreover, all cases decided by
the MTC are generally appealable to the RTC irrespective of the amounts involved Family Courts Cesar,
age 16, a habitual offender, was caught in possession of .001 grams of marijuana. He was charged for
violation of Sec. 16 of R.A. 9165, The Comprehensive Dangerous Drugs Law. The court which has
jurisdiction is: (2012 BAR) Family Court. Q: Juliet invoking the provisions of the Rule on Violence Against
Women and their Children filed with the RTC designated as a Family Court a petition for issuance of a
Temporary Protection Order (TPO) against her husband, Romeo. The Family Court issued a 30-day TPO
against Romeo. A day before the expiration of the TPO, Juliet filed a motion for extension. Romeo in his
opposition raised, among others, the constitutionality of R.A. No. 9262 (The VAWC Law) arguing that the
law authorizing the issuance of a TPO violates the equal protection and due process clauses of the 1987
Constitution. The Family Court judge, in granting the motion for extension of the TPO, declined to rule
on the constitutionality of R.A. No. 9262. The Family Court judge reasoned that Family Courts are
without jurisdiction to pass upon constitutional

issues, being a special court of limited jurisdiction and R.A. No. 8369, the law creating the Family Courts,
does not provide for such jurisdiction. Is the Family Court judge correct when he declined to resolve the
constitutionality of R.A. No. 9262? (2015) - NO, the Family Court Judge is not correct when it declined to
resolve the constitutionality of R.A. No. 9262. In Garcia v. Hon. Rey Allan Drilon, G.R. No. 179267, June
25, 2013, the Supreme Court held that the “Family Courts have authority and jurisdiction to resolve the
constitutionality of a statute. In spite of its designation as a family court, the RTC remains to possess the
authority as a court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal,
special proceedings, land registration, guardianship, naturalization, admiralty or insolvency. This
authority is embraced in the general definition of judicial power to determine the valid and binding laws
in conformity with the fundamental law.” Q: (2001 Bar Question) A. How should the records of child and
family cases in the Family Courts or Regional Trial Court designated by the Supreme Court to handle
Family Court cases be treated and dealt with? (3%) - The records of child and family cases in the Family
Courts or Regional Trial Court designated by the Supreme Court to handle Family Court cases shall be
dealt with utmost confidentiality. (Sec. 12, Family Courts Act of 1997) shall not be divulged unless
necessary and with authority of the judge. (Id.) Metropolitan Trial Courts/Municipal Trial Courts The
MTC, acting as an Environmental Court, has original and exclusive jurisdiction over the following, except:
(2012 BAR) criminal offenses punishable under the Chain Saw Act (R.A. 9175) Q: In an action for unlawful
detainer in the Municipal Trial Court (MTC), defendant X raised in his Answer the defense that plaintiff A
is not the real owner of the house subject of the suit. X filed a counterclaim against A for the collection
of a debt of P80.000 plus accrued interest of P15,000 and attorney’s fees of P20.000. Is X's defense
tenable? [3%] Does the MTC have jurisdiction over the counterclaim? [12%] (1998 Bar Question) - No.
X's defense is not tenable if the action is filed by a lessor against a lessee. However, if the right of
possession of the plaintiff depends on his ownership then the defense is tenable. - The counterclaim is
within the jurisdiction of the Municipal Trial Court which does not exceed P100,000.00, because the
principal demand is POO,000.00, exclusive of interest and Attorney's fees. (Sec. 33, B.P. Big. 129, as
amended.)'. However, inasmuch as all actions of forcible entry and unlawful detainer are subject to
summary procedure and since the counterclaim is only permissive, it cannot be entertained by the
Municipal Court. (Secs. 1A(1) and 3(A) of Revised Rule on Summary Procedure.) Q: Filomeno brought an
action in the Metropolitan Trial Court (MeTC) of Pasay City against Marcelino pleading two causes of
action. The first was a demand for the

recovery of physical possession of a parcel of land situated in Pasay City with an assessed value of
P40,000; the second was a claim for damages of P500,000 for Marcelino’s unlawful retention of the
property Marcelino filed a motion to dismiss on the ground that the total amount involved, which is
P540,000, is beyond the jurisdiction of the MeTC. Is Marcelino correct? (4%)(2008 Bar Question) - No,
Marcelino is not correct. Under Rep. Act No. 7691, Metropolitan Trial Courts and other courts of the first
level have been vested with exclusive original jurisdiction in all civil actions which involved title to, or
possession of real property or any interest therein where the assessed value of the property or interest
therein does not exceed P20,000.00, or in civil actions in Metro Manila, where such assessed value does
not exceed P50,000.00 exclusive of interest, damages of whatever kind, attorney’s fees, litigation
expenses and costs. Pasay City where the action for recovery of physical possession was filed, is part of
Metro Manila and therefore has exclusive jurisdiction over the parcel of land situated therein whose
assessed value is P40,000.00. The claim for damages of P500,000.00 for the unlawful retention of the
land involved is not determinative of the court’s jurisdiction which is based on the nature of the action.
The claim for damages of P500,000.00 is just a consequence of the unlawful detention of the property
subject of the action, which should not be taken separately from the land. Filomeno has only one cause
of action which is the action for recovery of possession of the land against Marcelino, with damages. Q:
Plaintiff filed a complaint for a sum of money against defendant with the MeTCMakati, the total amount
of the demand, exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and
costs, being PI .000,000. In due time, defendant filed a motion to dismiss the complaint on the ground of
the MeTC’s lack of jurisdiction over the subject matter. After due hearing, the MeTC 11) ruled that the
court indeed lacked jurisdiction over the subject matter of the complaint; and (2) ordered that the case
therefore should be forwarded to the proper Regional Trial Court immediately. Was the court's ruling
concerning jurisdiction correct? Was the court’s order to forward the case proper? Explain briefly. (5%)
(2004 Bar Question) - Yes. The MeTC did not have jurisdiction over the case because the total amount of
the demand exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and
costs, was PI M. Its jurisdictional amount at this time should not exceed P400,000.00 - The court's order
to forward the case to the RTC is not proper. It should merely dismiss the complaint. Under Sec. 3 of
Rule 16, the court may dismiss the action or claim, deny the motion or order the amendment of the
pleading but not to forward the case to another court. Q: A filed with the Metropolitan Trial Court of
Manila an action for specific performance against B, a resident of Quezon City, to compel the latter to
execute a deed of conveyance covering a parcel of land situated in Quezon City having an assessed value
of P19,000.00. B received the summons and a copy of the Complaint on 02 January 2003. On 10 January
2003, B filed a Motion to Dismiss the Complaint on the

ground of lack of jurisdiction contending that the subject matter of the suit was incapable of pecuniary
estimation. The court denied the motion. In due time, B filed with the Regional Trial Court a Petition for
Certiorari praying that the said Order be set aside because the Metropolitan Trial Court had no
jurisdiction over the case. On 13 February 2003, A filed with the Metropolitan Trial Court a motion to
declare B in default. The motion was opposed by B on the ground that his Petition for Certiorari was still
pending. Was the denial of the Motion to Dismiss the Complaint correct? Resolve the Motion to Declare
the Defendant in Default. (2003 Bar Question) - The denial of the Motion to Dismiss the Complaint was
not correct. Although the assessed value of the parcel of land involved was P19,000.00, within the
jurisdiction of the Metropolitan Trial Court of Manila, the action filed by A for Specific Performance
against B to compel the latter to execute a Deed of Conveyance of said parcel of land- was not capable
of pecuniary estimation and, therefore, the action was within the jurisdiction of Regional Trial Court. Q:
A, a resident of Malolos, Bulacan, died leaving an estate located in Manila, worth P200,OOO.OO. In what
court, taking into consideration the nature of jurisdiction and of venue, should the probate proceeding
on the estate of A be instituted? (2003 Bar Question) - The probate proceeding on the estate of A should
be instituted in the Municipal Trial Court of Malolos, Bulacan which has jurisdiction, because the estate
is valued at P200,000.00, and is the court of proper venue because A was a resident of Malolos at the
time of his death. (Sec. 33 of BP 129 as amended by RA 7691; Sec. 1 of Rule 73). Q: Josefa filed in the
Municipal Circuit Trial Court of Alicia and Mabini, a petition for the probate of the will of her husband,
Martin, who died in the Municipality of Alicia, the residence of the spouses. The probable value of the
estate which consisted mainly of a house and lot was placed at P95.000.00 and in the petition for the
allowance of the will, attorney's fees in the amount of P10,000.00, litigation expenses in the amount of
P5,000.00 and costs were included. Pedro; the next, of kin of Martin, filed an opposition to the probate
of the will on the ground that the total amount included in the relief of the petition is more than
P100,000.00, the maximum Jurisdictional amount for municipal circuit trial court. The court overruled
the opposition and proceeded to hear the case. Was the municipal circuit trial court correct in its ruling?
Why? (5%) (2001 Bar Question) - Yes, the Municipal Circuit Trial Court was correct in proceeding to hear
the case. It has exclusive jurisdiction in all matters of probate, both testate and intestate, where the
value of the estate does not exceed P100,000,00 (now (P200.000.00). The value in this case of
P95.000.00 is within its jurisdiction. In determining the jurisdictional amount, excluded are attorney's
fees, litigation expenses and costs; these are considered only for determining the filing fees. (B.P. Big.
129, sec. 33, as amended) Q: (2000 Bar Question) A brings an action in the Metropolitan Trial Court of
Manila against B for the annulment of an extrajudicial foreclosure sale of real property with an assessed
value of P50.000.00 located in Laguna. The complaint alleged

prematurity of the sale for the reason that the mortgage was not yet due. B timely moved to dismiss the
case on the ground that the action should have been brought in the Regional Trial Court of Laguna.
Decide with reasons. (3%) A files an action in the Municipal Trial Court against B, the natural son of A’s
father, for the partition of a parcel of land located in Taytay, Rizal with an assessed value of P20.000.00.
B moves to dismiss the action on the ground that the case should have been brought in the Regional
Trial Court because the action is one that is not capable of pecuniary estimation as it involves primarily a
determination of hereditary rights and not merely the bare right to real property. Resolve the motion.
(2%) - The motion should be granted. The Metropolitan Trial Court of Manila has no jurisdiction because
the action for the annulment of the extrajudicial foreclosure is not capable of pecuniary estimation and
is therefore under the jurisdiction of the Regional Trial Courts. (Russell v. Vestil 304 SCRA 738, (1999) -
However, the action for annulment is a personal action and the venue depends on the residence of
either A or B. Hence, it should be brought in the Regional Trial Court of the place where either of the
parties resides. - The motion should be granted. The action for partition depends on a determination of
the hereditary rights of A and B, which is not capable of pecuniary estimation. Hence, even though the
assessed value of the land is P20,000.00, the Municipal Trial Court has no jurisdiction. Q: Albert forcibly
entered and occupied the house and lot in Quezon City owned by his neighbor Carissa. Carissa
immediately sued Albert for recovery of the property. She also claimed damages amounting to
P100,000.00, other undetermined losses as a result of the forcible entry, and attorney’s fees of
P25.000.00. Albert sets up affirmative defenses in his answer without questioning Carissa's title over the
property. (1995 Bar Question) Is the case triable under summary procedure by the Metropolitan Trial
Court of Quezon City? Explain. May Carissa present evidence of title? Explain. - Yes, because all actions
for forcible entry and unlawful detainer are subject to summary procedure irrespective of the amount of
damages claimed, but the attorney’s fees should not exceed P20,000.00. - Yes, but only to determine
the question of possession. (BP 129 as amended). Albert may raise the issue of lack of barangay
conciliation prior to the filing of the complaint. Q: For failure of the tenant, X, to pay rentals, A, the
court-appointed administrator of the estate of Henry Datu, decides to file an action against the former
for the recovery of possession of the leased premises located In Davao City and for the payment of the
accrued rentals In the total amount of P25,000.00. (1991 Bar Question) Is prior referral to the Lupon
under P.D. No. 1508 necessary? - No, because the law applies only to disputes between natural person,
and does not apply to juridical person such as the estate of a deceased. What is the court of proper
jurisdiction and venue of the Intended action?

- The Court of proper jurisdiction and venue is the Municipal Trial Court of Davao City, since this is an
action of illegal detainer and the leased premises are located in Dayao City. Supposing that referral is
necessary, but the complaint is filed without such referral, may it be dismissed on the ground of lack of
jurisdiction? - No, because lack of referral would merely render the action premature for failure to
comply with a condition precedent. If the case is filed with the Municipal Trial Court, in Cities (MTCC), is
it covered by the Rule on Summary Procedure? - No, it is not covered by the Rule on Summary
Procedure in any of the lower courts, because the unpaid rentals exceed P20.000.00 (Sec. 1-A-l of Rule
on Summary Procedure) Supposing that A filed the complaint in the MTCC, and X filed an Answer
wherein he interposed a counterclaim for moral damages in the amount of P50.000 alleging that the
complaint is unfounded and malicious, would the MTCC have jurisdiction over the counterclaim? If X did
not set up the counterclaim, can he file a separate action to recover the damages? Can A file a
counterclaim to the counterclaim? - No, because the counterclaim exceeds the jurisdictional amount of
P20.000.00. Since the claim for damages is not within the jurisdiction of the MTCC, it is not a compulsory
counterclaim and X can file a separate action in the RTC to recover the damages. Q: In an ejectment suit
filed with the Metropolitan Trial Court of Manila, the judge rendered a decision ordering the defendant
(a) to vacate the property of the plaintiff and (b) to pay the plaintiff the amount of P300 a month as
reasonable compensation for the use of the land starting from the time she occupied the same and until
it is vacated by him; P10,000 as unrealized earnings; P7,000 as moral damages; P5,000 as exemplary
damages; and P3,000 as attorney’s fees. The defendant contends that the decision is improper. Decide.
(1989 Bar Question) - The Metropolitan Trial Court exceeded its jurisdiction in awarding damages, other
than the reasonable compensation for the use and occupation of the land, totalling P25,000.00. Hence,
the decision should be nullified as to the excess of P5,000 over the jurisdictional amount of P20,000.00
(Augustin vs. Bocalan, 135 SCRA 340) Q: Andres filed a case for unlawful detainer before the
Metropolitan Court of Manila against Lito for refusing to vacate the leased premises after the expiration
of his Lease Contract and for non-payment of rentals. As counterclaim, Lito claimed moral damages in
the amount of P15,000.00. May the Metropolitan Court proceed to try and decide the case including the
claim of P15,000.00? Explain. In case Lito is adjudged to vacate the leased premises and to pay the
accrued rentals in arrears, how can he stay the execution of the judgment? How does unlawful detainer
differ from forcible entry? (1988 Bar Question) Answer:

- Yes, because the amount of the counterclaim, P15,000.00, is within the jurisdiction of the Metropolitan
Court which has also exclusive original jurisdiction over the unlawful detainer case. - Lito must appeal;
file a supercede as bond in an amount equivalent to the rents, damages and costs accruing down to the
time of the judgment; and deposit with the Regional Trial Court the amount of the reasonable value of
the use and occupation of the premises for the preceding month or period at the rate determined by the
judgment, on or before the tenth day of each succeeding month or period. (Sec. 8 of Rule 70) - In
unlawful detainer, the possession is legal at the beginning but subsequently becomes illegal after the
expiration or termination of the right to hold possession, whereas in forcible entry the possession is
illegal from the beginning because the entry was made by force, intimidation, threat, strategy or stealth.
Q: “A” leased his commercial land and building in Malate, Manila, to “B”, a resident, of Malolos, Bulacan.
The Contract of Lease provided that in the event “A" violates the Contract, “B” may file suit in Manila.
“AY’ residence, and if “B” violates the Contract, “A” may sue “B” in Malolos. “B” violated the Contract,
entitling “A” to sue for ejectment. If you were the lawyer of “A”, where and which court can you lawfully
file the action for ejectment? Explain. (1987 Bar Question) - I can lawfully file the action for ejectment
either in the Metropolitan Trial Court of Manila or in the Municipal Trial Court of Malolos. Metropolitan
and Municipal Trial Courts have exclusive original jurisdiction over the cases of forcible entry and
unlawful detainer or ejectment cases. The stipulation in the contract of lease that if “B” violates the
contract “A” may sue “B” in Malolos is vvalid, because the location of the real property in such cases
determines the venue of the action and not jurisdiction over the subject matter. However, since the
agreement as to venue is merely permissive, as shown by the use of the word “may”, the action may
also be filed in Manila where the real property is located. (Villanueva vs. Masqueda, 155 SCRA 904). Q:
What courts have jurisdiction over the following cases filed in Metro Manila? (1997 Bar Question) An
action for specific performance or. In the alternative, for damages In the amount of P180,000.00 - An
action for specific performance or, in the alternative, for damages in the amount of 180,000.00falls
within the jurisdiction of Metropolitan Trial Courts in Metro Manila. Although an action for specific
performance is not capable of pecuniary estimation, since the alternative demand for damages is
capable of pecuniary estimation, it is within the Jurisdiction of the Metropolitan Trial Courts in Metro
Manila. An action for injunction is not capable of pecuniary estimation and hence falls within the
jurisdiction of the Regional Trial Courts. An action for replevin of a motorcycle valued at 150,000.00 falls
within the jurisdiction of the Metropolitan Trial Courts in Metro Manila.

An action for interpleader to determine who between the defendants is entitled to receive the amount
of P190,000.00 falls within the jurisdiction of the Metropolitan Trial Courts in Metro Manila. {Id.; Makati
Dev. Corp. v. Tanjuatco, 27 SCRA 401) A petition for the probate of a will involving an estate valued at
200,000.00 falls within the jurisdiction of the Metropolitan Trial Courts in Metro Manila (Id; Sec. 19(41 of
BP 129, as amended). Over small claims; cases covered by the Rules on Summary Procedure and
Barangay conciliation The Rule on Small Claims is applicable to: (2012 BAR) action for damages arising
from a quasi-delict amounting to P 100,000. A Small Claims Court . (2013 BAR) does not have any
jurisdiction over ejectment actions X and Y, both residents of Bgy. II, Sampaloc, Manila entered into a P
100,000 loan agreement. Because Y defaulted, X sued Y for collection and the complainant prayed for
issuance of preliminary attachment. Y moved to dismiss the complaint because there was no Barangay
conciliation. The court should therefore: (2012 BAR) deny Y's motion because it is exempt from
Barangay conciliation. Q: Mariano, through his attorney-in-fact, Marcos, filed with the RTC of Baguio City
a complaint for annulment of sale against Henry. Marcos and Henry both reside in Asin Road, Baguio
City, while Mariano resides in Davao City. Henry filed a motion to dismiss the complaint on the ground
of prematurity for failure to comply with the mandatory barangay conciliation. Resolve the motion with
reasons. (3%) (2009 Bar Question) - The motion to dismiss should be denied because the parties in
interest, Mariano and Henry, do not reside in the same city/municipality, or is the property subject of
the controversy situated therein. The required conciliation/mediation before the proper Barangay as
mandated by the Local Government Code governs only when the parties to the dispute reside in the
same city or municipality, and if involving real property, as in this case, the property must be situated
also in the same city or municipality. Q: Albert forcibly entered and occupied the house and lot in
Quezon City owned by his neighbor Carissa. Carissa immediately sued Albert for recovery of the
property. She also claimed damages amounting to P100,000.00, other undetermined losses as a result of
the forcible entry, and attorney’s fees of P25.000.00. Albert sets up affirmative defenses in his answer
without questioning Carissa's title over the property. (1995 Bar Question) Is the case triable under
summary procedure by the Metropolitan Trial Court of Quezon City? Explain.

May Carissa present evidence of title? Explain. - Yes, because all actions for forcible entry and unlawful
detainer are subject to summary procedure irrespective of the amount of damages claimed, but the
attorney’s fees should not exceed P20,000.00. - Yes, but only to determine the question of possession.
(BP 129 as amended). Albert may raise the issue of lack of barangay conciliation prior to the filing of the
complaint. Q: Edison was charged with the crime of less serious physical injuries in the Metropolitan
Trial Court of Manila. Under the Revised Penal Code, the penalty prescribed for this offense is arresto
mayor, Aside from the recital of the facts constituting the offense, the information alleged that the
offended party suffered actual damages in the amount of P25,000. Instead of submitting his counter-
affidavits as required by the court, Edison filed a “motion to quash” contending that the court had no
jurisdiction over the case since the amount claimed as damages exceeds the jurisdic-tional limit of trial
courts in civil cases. If you were the judge trying the case, what would you do with the-motion filed?
How would you dispose of the question of jurisdiction raised in the said motion? Explain. (1989 Bar
Question) - I would deny the motion to quash inasmuch as such a motion is not allowed in Summary
Procedure. The criminal case where the penalty prescribed by law for the offense charged does not
exceed six months of imprisonment is governed by Summary procedure. On the question of jurisdiction,
Summary Procedure applies irrespective of the civil liability arising from the offense. Hence the fact that
the civil liability exceeds P2Q,000 does not deprive the Metropolitan Trial Court of jurisdiction. (Sec. B-4)
Q: An information for slight physical injuries was filed against Diego in the Municipal Trial Court of
Cainta, after which the judge directed him to appear and submit counteraffidavits and those of his
witnesses on September 12, 1989. Diego failed to appear on the said date. Thereafter, the judge
rendered judgment convicting Diego of the offense charged based on the affidavits submitted by the
complainant. Diego contends that this judgment is a nullity. Decide. (1989 Bar Question) - Diego’s
contention is correct. Under Summary Procedure rules, the failure of Diego to appear and submit
counter-affidavits on the date specified may be a ground for the judge to issue a warrant for his arrest
upon a finding of probable cause. However, the judge may not render a judg-ment of conviction of the
offense charged based on the affidavits submitted by the complainant. He should set the case for
arraignment and trial if Diego pleads not guilty. Only after trial may the judge render a judgment of
conviction. (Secs. 10 and 11) Q: (1988 Bar Question) In what civil cases is the Summary Procedure before
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts applicable? In what
criminal cases is the Summary Procedure before the Metropolitan Courts, Municipal Courts, and
Municipal Circuit Trial Courts applicable? - Summary Procedure is applicable in the following civil cases:

1. Cases of forcible entry and unlawful detainer, accept where the question of ownership is involved, or
where the damages or unpaid rentals sought to be recovered by the plaintiff exceed twenty thousand
pesos (P20,000.00) at the time of the filing of the complaint; 2. All other civil cases, except probate
proceedings, falling within the jurisdiction of the abovementioned courts, where the total amount of the
plaintiff s claim does not exceed ten thousand pesos (P10,000.00), exclusive if interest and costs. (Sec. 1-
A) 3. It is applicable in the following criminal cases: 4. Violations of traffic laws, rules and regulations; 5.
Violations of the rental law; 6. Violations of municipal or city ordinances; 7. All other criminal cases
where the penalty prescribed by law for the offense charged does not exceed six months of
imprisonment, or a fine of one thousand pesos (PI,000.00), or both, irrespective of other imposable
penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided, however, that in
offenses involving damage to property through criminal negligence, this Rule shall govern where the
imposable fine does not exceed ten thousand pesos (P10,600 00). (Sec. 1-B) 8. Through criminal
negligence, this Rule shall govern where the imposable fine does not exceed ten thousand pesos
(P10,600 00). (Sec. 1-B) Totality Rule Q: Lender extended to Borrower a Pl00,000.00 loan covered by a
promissory note. Later, Borrower obtained another Pl00,000.00 loan again covered by a promissory
note. Still later, Borrower obtained a P300,000.00 loan secured by a real estate mortgage on his land
valued at P500,000.00. Borrower defaulted on his payments when the loans matured. Despite demand
to pay the P500,000.00 loan, Borrower refused to pay. Lender, applying the totality rule, filed against
Borrower with the Regional Trial Court (RTC) of Manila, a collection suit for P500,000.00. Did Lender
correctly apply the totality rule and the rule on joinder of causes of action? (2015) - YES. The Lender
correctly applied the totality rule and the rule on joinder of causes of action because where the claims in
all the causes of action are principally for recovery of sum of money, the aggregate amount of the claim
shall be the test of jurisdiction (Section 5(d), Rule 2). - Here, the total amount of the claim is
P500,000.00. Hence, the Regional Trial Court (RTC) of Manila has jurisdiction over the suit. At any rate, it
is immaterial that one of the loans is secured by a real estate mortgage because the Lender opted to file
a collection of sum of money instead of foreclosure of the said mortgage. Q: At the trial, Borrower's
lawyer, while cross-examining Lender, successfully elicited an admission from the latter that the two
promissory notes have been paid. Thereafter, Borrower's lawyer filed a motion to dismiss the case on
the ground that as proven only P300,000.00 was the amount due to Lender and which claim is within
the exclusive original jurisdiction of the Metropolitan Trial Court. He further argued that lack of

jurisdiction over the subject matter can be raised at any stage of the proceedings. Should the court
dismiss the case? (2015) - NO. The court should not dismiss the case. What determines the jurisdiction
of the court is the nature of the action pleaded as appearing from the allegations in the complaint. The
averments therein and the character of the relief sought are the ones to be consulted - Accordingly,
even if the defendant is able to prove in the course of the trial that a lesser amount is due, the court
does not lose jurisdiction and a dismissal of the case is not in order Q: Fe filed a suit for collection of
P387,000 against Ramon in the RTC of Davao City. Aside from alleging payment as a defense, Ramon in
his answer set up counterclaims for P100,000 as damages and P30,000 as attorney’s fees as a result of
the baseless filing of the complaint, as well as for P250,000 as the balance of the purchase price of the
30 units of air conditioners he sold to Fe. a) Does the RTC have jurisdiction over Ramon’s counterclaims,
and if so, does he have to pay docket fees therefor? (3%) (2008 Bar Question) - Yes, the RTC has
jurisdiction over Ramon’s counterclaims because they are all money claims in which the totality rule
applies in determining jurisdiction. Ramon has to pay docket fees for his counterclaims whether the
counterclaim is compulsory or permissive in nature. Rule 141 of the Rules of Court has been amended to
require payment of docket fees for counterclaims and cross-claims whether compulsory or permissive.
Q: What do you understand by the “totality rule” in determining the jurisdiction of courts in civil cases?
Explain. (1989 Bar Question) - Under the “totality rule”, where there are several claims or causes of
action between the same or different parties embodied in the same complaint, the amount of the
demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes
of action arose out of the same or different transactions. Q: Marissa brought an action against Dely and
Inday in one complaint before the Regional Trial Court of Manila. As her first cause of action, Marissa
alleges that Dely purchased from her on various occasions truck tires worth PI2,000 but refused to pay
the said amount despite several demands. As her second cause of action, Marissa alleges that Inday
likewise purchased from her on several occasions truck tires worth P10,000 but refused to pay the said
amount despite repeated demands. The total amount o£ Marissa’s demands against the two is P22,000.
Both Dely and Inday now separately move to dismiss the complaint on the ground that the RTC has no
jurisdiction over the case. How would you resolve these motions? Explain. (1989 Bar Question) - I would
grant said motions to dismiss, because the totality rule is subject to the rule on permissive joinder, of
parties. In this case, there is misjoinder of parties defendant inasmuch as the claims against the two
defendants are separate and distinct from each other and cannot be joined in a single complaint.
Neither claim falls within the jurisdiction of the Regional Trial Court.

Civil Procedure Actions Meaning of ordinary civil actions Q: Distinguish special proceeding from an
ordinary action. (1996 Bar Question) - A special proceeding is a remedy to establish the status or right of
a party or a particular fact, while an ordinary action is one by which one party prosecutes another for
the enforcement or protection of a right or the prevention or redress of a wrong. (Secs. 1 and 2 of Rule
2) Meaning of special civil actions Q: (1999 Bar Question) Distinguish civil actions from special
proceedings. [3%] - A civil action is one by which a party sues another for the enforcement or protection
of a right, or the prevention or redress of a wrong. (Sec. 3[a], Rule 1. 1997 Rules of Civil Procedure),
while a special proceeding is a remedy by which a party seeks to establish a Status, a right or a particular
fact. Personal actions and real actions In real actions, the docket and filing fees are based on: (2012 BAR)
BIR zonal value of the property. Q: What do you mean by (a) real actions; and (b) personal actions? 2%
(2006 Bar Question) - Real actions are actions affecting title to or possession of real property or an
interest therein. All other actions are personal actions Local and transitory actions Q: On January 2,1989,
Ernani purchased construction materials for his new building in Calamba, Laguna, from a hardware store
located in Batangas City and owned by Daniel. On the same date and in payment of the materials, Emani
issued a Metrobank check (Calamba branch) for P500,000 which was drawn and signed by him in
Calamba. Daniel deposited the check with the Metrobank, Batangas City branch, but the same was
dishonored for “insufficient funds.” Despite several demands, Ernani failed to make good his check so
that a case for violation of B.P. 22 (The Bouncing Checks Law), after a preliminary investigation thereof
was conducted, was filed with the Regional Trial Court of Batangas City. Ernani moved to quash the case
on the ground of lack of jurisdiction, contending that the case should have been filed with the Regional
Trial Court of Calamba, Laguna, since the check was drawn and signed in Calamba. How would you
decide the motion? Explain. (1989 Bar Question) - Motion to quash is denied. Violation of the Bouncing
Checks Law is a transitory or continuing offense which may be validly tried either in the place where the
check was issued or in the place where the check was dishonored. Since the check in question was
dishonored by the Metrobank in Batangas City, the Regional Trial Court of Batangas City has jurisdiction
over the case.

Actions in rem, in personam and quasi in rem Q: Distinguish: (1004 Bar Question) an action in rem from
an action quasi in rem an action quasi in rem from an action in personam. an action in personam from a
personal action. an action in rem from a real action. a personal action from a local action. Answer: An
action in rem is an action against all who might be minded to make an objection of any sort against the
right sought to be established, while an action quasi in rem is an action against an individual although
the purpose of the suit is to subject his interest in a particular property to the obligation or lien
burdening the property. The judgment rendered in actions in rem binds the whole world, while the
Judgment rendered in actions quasi in rem is conclusive only between the parties. An action quasi in
rem, as stated, is an action against a person over a particular property or claims relating thereto, while
an action in personam is an action to establish a claim against a person with a judgment that binds him
personally. An action in personam, as stated, is an action against a person on the basis of his personal
liability while a personal action is an action where the plaintiff seeks the recovery of personal property,
the enforcement or resolution of a contract or the recovery of damages. An action in rem is as stated
above, while a real action is an action affecting title to real property or for the recovery of possession, or
for partition or condemnation of, or foreclosure of a mortgage on, real property. A personal action is as
stated above, while a local action is that which must be brought in, a particular place. Plaintiff in a
personal action may file it in the place where he resides or where the defendant resides, while in a local
action, plaintiff has no choice except to file the action in the place where the property is located. Q:
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your
answer in not more than two (2) sentences. (5%) A suit for injunction is an action in rem. (2009 Bar
Question) FALSE .A suit for injunction is an action in personam. A restraining order, like an injunction,
operates upon a person. It is granted in the exercise of equity jurisdiction and has no in rem effect to
invalidate an act done in contempt of an order of the court except where by statutory authorization, the
decree is so framed as to act in rem on property.

Cause of action Meaning of cause of action Q: (1999 Bar Question) Distinguish action from cause of
action. (2%) A sued B to recover P500, 000.00 based on a promissory note due and payable on
December 5,1998. The Complaint was filed on November 30, 1998, and summons was served on B on
December 7, 1998. B interposes a motion to dismiss on the ground that the Complaint states no cause of
action. If you were the judge, how would you rule on the motion? (2%) - An action is one by which a
party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.
A cause of action is the act or omission by which a party violates a right of another. An action must be
based on a cause of action. - If I were the judge, I would grant the motion on the ground that the
complaint states no cause of action. When the complaint was filed, the promissory note was not yet due
and payable and hence the complaint was filed prematurely. This defect was not cured by the service of
the summons on the defendant after the date when the promissory note became due and payable. Q:
Distinguish: (1997 Bar Question) x x x Cause of action from action - A cause of action is an act or
omission of one party in violation of the legal right or rights of the other (Maao Sugar Central vs. Barrios.
79 Phil. 606; Sec. 2 of new Rule 2), causing damage to another. An action is an ordinary suit in a court of
Justice by which one party prosecutes another for the enforcement or protection of a right, or the
prevention or redress of a wrong. Q: (1996 Bar Question) The complaint alleged that the defendant
acted in bad faith, arbitrarily, illegally, wrongfully, and in violation of law. However, it did not contain
any averment of facts showing that defendant's acts were done in the manner alleged. Does the
complaint state a cause of action? Explain. X brought an action against Y for the annulment of the sale of
certain shares of stock. After the case was decided in favor of X, he filed another action for the recovery
of the dividends that had already accrued when the first action was filed. Is the second action for the
recovery of the dividends proper? - No, because it does not state the ultimate facts constituting the
plaintiffs cause of action. The allegations that the defendant acted in bad faith, arbitrarily, illegally,
wrongfully and in violation of the law are mere conclusions of fact or conclusions of law. - Yes, if the
complaint alleges ultimate facts and states that the acts were done in bad faith, arbitrarily, illegally,
wrongfully and in violation of the law. The rule allows malice, intent, knowledge or other condition of
the mind to be averred generally. (Sec. 5 of Rule 8) - No, because the recovery of the dividends is part of
the cause of action for the annulment of the sale of certain shares of stock and should have been
claimed in the first action. The second action constituted splitting a single cause of action.

Q: A bought a Volvo Sedan from ABC Cars for P 5.0M. ABC Cars, before delivering to A, had the car rust
proofed and tinted by XYZ Detailing. When delivered to A, the car's upholstery was found to be
damaged. ABC Cars and XYZ Detailing both deny any liability. Who can A sue and on what cause(s) of
action? Explain. (2012 BAR) - A can file an action for specific performance and damages against ABC Cars
since the damage to the Volvo sedan’s upholstery was caused before delivery of the same to A, and
therefore prior to the transfer of ownership to the latter (Article 1477, NCC). Under Article 1170 of the
Civil Code, those who contravene the tenor of the obligation are liable for damages. Hence, an action for
specific performance against ABC Corporation to deliver the agreed Volvo Sedan in the contract free
form any damage or defects, with corresponding damages will lie against ABC Cars. Failure to state a
cause of action Q: Luis is the owner of a five-door apartment unit three doors of which he has leased to
Fe, Gary , and Marilou for a monthly rental of P250.00 per door. Fe, Gary, and Marilou have been his
tenants for close to thirty years at that rate. He occupies the fourth door as his own residence. The fifth
door is vacant. Alleging that he needs to repossess all three doors for the use of his son, Fern, who had
recently gotten married, and who does not allegedly have a residence of his own, he sued, after the
requisite letters to vacate, Fe, Gary, and Marilou before the Metropolitan Trial Court for unlawful
detainer. Fe, Gary, and Marilou answered the complaint and set up the defense that ejectment was not
proper because the fifth door was available for Fern’s residence. At the trial, they likewise endeavored
to prove that Fern has in fact a residence of his own and that the suit was Luis mere strategy to force
them to agree to a rental hike of P1,500.00 a door, in violation of the rental laws. The trial judge,
however, decreed ejectment. On appeal to the Regional Trial Court, Fe, Gary, and Marilou alleged that
the decision was null and void, for lack of jurisdiction, there having been no prior confrontation among
the parties before the lupong tagapayapa pursuant to Presidential Decree No. 1508. Luis countered that
the jurisdictional question not having been raised below, it cannot be raised for the first time on appeal.
Can Fe, Gary, and Marilou validly challenge the 65 jurisdiction of the Metropolitan Trial Court? Explain.
What is the effect of Luis failure to resort to the conciliation process before the lupong togapayapa
provided for in P.D. No. 1508? Explain. (1988 Bar Question) Answer: No, because lack of prior
confrontation among the parties before the Lupong Tagapayapa pursuant to Presidential Decree No.
1508 does not affect the jurisdiction of the Metropolitan Trial Court over the action for unlawful
detainer. (It is presumed that the complaint was filed within one year from the demand to vacate.)
Moreover, by answering the complaint and setting up their defense without objecting to the jurisdiction
of the court, they are estopped from raising the question of jurisdiction. Luis failure to resort to the
conciliation process affects the sufficiency

of his cause of action and makes his complaint subject to dismissal on the ground of lack of cause of
action or prematurity. Test of the sufficiency of a cause of action Q: (2002 Bar Question) Rolando filed a
petition for declaration of the nullity of his marriage to Carmela because of the alleged psychological
incapacity of the latter. After trial, the court rendered judgment dismissing the petition on the ground
that Rolando failed to prove the psychological incapacity of his wife. The judgment having become final,
Rolando filed another petition, this time on the ground that his marriage to Carmela had been
celebrated without a license. Is the second action barred by the judgment in the first? Why (2%) - No,
the second action is not barred by the judgment in the first because they are different causes of action.
The first is for annulment or marriage on the ground of psychological incapacity under Article 36 of the
Family Code, while the second is for declaration of nullity of the marriage in view of the absence of a
basic requirement, which Is a marriage license. [Arts. 9 and 35(3), Family Code]. They are different
causes of action because the evidence required to prove them are not the same. [Pagsisfhan v. Court of
Appeals, 95 SCRA 540 (1980) and other cases]. Q: Agustin, a 21-year old son of the spouses Edgardo and
Gloria, was a paying passenger who suffered serious physical injuries when the bus he was riding fell off
a cliff due to the recklessness of its driver. The bus belonged to the Inter-City Transit. The spouses,
together with Agustin, sued for damages. After Inter- City Transit filed its answer, Agustin, in
consideration of P10,000, executed a “Release of Claim.” On the basis thereof, Inter-City filed a motion
to dismiss alleging that the claim had already been paid and released. Plaintiff-spouses opposed the
motion and asserted that their son was totally dependent on them for support; that his hospitalization
and other medical expenses were shouldered by them; that they were not even consulted on the
“Release of Claim”; and, that the “Release of Claim” could not operate as a valid ground for dismissal
because it did not have the conformity of all the parties since only their son, Agustin, signed it. Decide
the motion to dismiss. (1989 Bar Question) - Motion to dismiss is granted. The contract of carriage was
between Agustin, who was of legal age, and Inter-City Transit. Hence, the “Release of Claim" executed
by him is valid. - Motion to dismiss is granted only with respect to Agustin. The parents of Agustin have a
cause of action against Inter-City Transit to the extent of the expenses incurred by them due to the
recklessness of its driver. Splitting a single cause of action and its effects Q: (1999 Bar Question) What is
the rule against splitting a cause of action and its-effect on the respective rights of the parties for failure
to comply with the same? (2%) A purchased a lot from B for PI,500,000.00. He gave a down payment of
P500,000.00, signed a promissory note payable thirty days after date, and as a security for the
settlement of the obligation, mortgaged the same lot to B. When the note fell due and A failed to pay, B
commenced suit to recover from A the balance of P1,000,000.00.

After securing a favorable judgment on his claim, B brought another action against A before the same
court to foreclose the mortgage. A now files a motion to dismiss the second action on the ground of bar
by prior judgment. Rule on the motion. (2%) - The rule against splitting a cause of action and its effect
are that if two or more suits are instituted on the basis of the same cause of action, the filing of one or a
judgment upon the merits in any one is available as a ground for the dismissal of the others. The motion
to dismiss should be granted. When B commenced suit to collect on the promissory note, he waived his
right to foreclose the mortgage. B split his cause of action. Q: Give the effects of the following: Splitting a
single cause of action; and [3%] (1998 Bar Question) - The effect of splitting a single cause of action is
found in the rule as follows: If two or more suits are instituted on the basis of the same cause 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. Q: Raphael, a warehouseman, filed a complaint against V Corporation. X Corporation and Y
Corporation to compel them to interplead. He alleged therein that the three corporations claimed title
and right of possession over the goods deposited in his warehouse and that he was uncertain which of
them was entitled to the goods. After due proceedings, judgment was rendered by the court declaring
that X Corporation was entitled to the goods. The decision became final and executory. Raphael filed a
complaint against X Corporation for the payment of PI00,000.00 for storage charges and other advances
for the goods. X Corporation filed a motion to dismiss the complaint on the ground of res judicata. X
Corporation alleged that Raphael should have incorporated in his complaint for interpleader his claim
for storage fees and advances and that for his failure he was barred from interposing his claim. Raphael
replied that he could not have claimed storage fees and other advances in his complaint for interpleader
because he was not yet certain as to who was liable therefore. Resolve the motion with reasons. (4%) -
The motion to dismiss should be granted. Raphael should have incorporated in his complaint for
interpleader his claim for storage fees and advances. They are part of Raphael’s cause of action which he
may not split. The filing of the interpleader is available as a ground for the dismissal of the second case.
It is akin to a compulsory counterclaim which, if not set up, is barred. The law also abhors the
multiplicity of suits; hence, the claim for storage fees should have been made part of his cause of action
in the interest of complete adjudication of the controversy and its incidents. Joinder and mis-joinder of
causes of action The following are accurate statements on joinder of causes of action, except: (2012
BAR) joinder of actions may include special civil actions. A sued B in the RTC of Quezon City, joining two
causes of action: for partition of real property and breach of contract with damages. Both parties reside
in Quezon City but

the real property is in Manila. May the case be dismissed for improper venue? (2011 BAR) No, since
causes of action pertaining to different venues may be joined in the RTC if one of the causes of action
falls within its jurisdiction. Q: Distinguish joinder of causes of action from joinder of parties. (1996 Bar
Question) - Joinder of causes of action may be made in the same complaint by one party against
another; or by or against several parties. In cases of joinder of causes of action by one party against
another, the totality of the demand determines the Jurisdiction of the court. - But in cases of Joinder of
causes of action by or against several parties, the right to relief must arise out of the same transaction or
series of transactions and there must be a common question of fact or law. If these requisites are
present, the totality of the demand determines the jurisdiction of the court. Q: The complaint filed
before the Regional Trial Court of Manila states two (2) causes of action, one for recission of contract
and the other for the recovery of One Hundred Thousand Pesos (PI00.000.00), both of which arose out
of the same transaction. Is the joinder of the two (2) causes of action proper? Explain. (1996 Bar
Question) - Yes, since the first cause of action for rescission of contract falls within the jurisdiction of the
Regional Trial Court of Manila, because the subject is not capable of pecuniary estimation, and the
second cause of action for recovery of P100,000.00 is within the jurisdiction of a lower court and arose
out of the same transaction, both may be joined in the complaint filed with the Regional Trial Court. Q:
(1999 Bar Question) What is the rule on joinder of causes of action? (2%) A secured two loans from B,
one for P500.000.00 and the other for P1,000,000.00, payable on different dates. Both have fallen due.
Is B obliged to file only one complaint against A for the recovery of both loans? Explain. (2%) - The rule
on joinder of causes of action is that a party may in one pleading assert, in the alternative or otherwise,
as many causes of action as he may have against an opposing party, provided that the rule on joinder of
parties is complied with; the joinder shall not include special civil actions or actions governed by special
rules, but may include causes of action pertaining to dif-ferent venues Or jurisdictions provided one
cause of action falls within the jurisdiction of a Regional Trial Court and venue lies therein; and the
aggregate amount claimed shall be the test of jurisdiction where the claims in all the causes of action
are principally for the recovery of money. - No. Joinder is only permissive since the loans are separate
loans which may be governed by the different terms and conditions. The two loans give rise to two
separate causes of action and may be the basis of two separate complaints. Q: Give the effects of the
following: x x x Non-joinder of a necessary party. [2%] (1998 Bar Question) - The effect of the non-
joinder of a necessary party may be stated as follows: The court may order the inclusion of an omitted
necessary party if jurisdiction over

his person may be obtained. The failure to comply with the order for his inclusion without justifiable
cause is a waiver of the claim against such party. The court may proceed with the action but the
judgment rendered shall be without prejudice to the rights of such necessary party. Q: Perry is a
resident of Manila, while Ricky and Marvin are residents of Batangas City. They are the co-owners of a
parcel of residential land located in Pasay City with an assessed value of P100,000.00. Peny borrowed
PI00,000.00 from Ricky which he promised to pay on or before December 1, 2004. However, Perry failed
to pay his loan. Perry also rejected Ricky and Marvin's proposal to partition the property. Ricky filed a
complaint against Perry and Marvin in the Regional Trial Court of Pasay City for the partition of the
property. He also incorporated in his complaint his action against Perry for the collection of the latter's
PI00,000.00 loan, plus interests and attorney's fees. State with reasons whether it was proper for Ricky
to join his causes of action in his complaint for partition against Perry and Marvin in the Regional Trial
Court of Pasay City. (5%)(2005 Bar Question) - It was not proper for Ricky to join his causes of action
against Perry in his complaint for partition against Perry and Marvin. The causes of action may be
between the same parties, Ricky and Perry, with respect to the loan but not with respect to the partition
which includes Marvin. The joinder is between a partition and a sum of money, but the partition is a
special civil action under Rule 69, which cannot be joined. (Sec. 5, Rule 2, 1997 Rules of Civil Procedure.}.
Also, the causes of action pertain to different venues and jurisdictions. The case for a sum of money
pertains to the municipal court and cannot be filed in Pasay City because the plaintiff is from Manila
while Ricky and Marvin are from Batangas City. (Sec. 5, Rule 2, 1997 Rules of Civil Procedure.) Q:
Raphael, a warehouseman, filed a complaint against V Corporation. X Corporation and Y Corporation to
compel them to interplead. He alleged therein that the three corporations claimed title and right of
possession over the goods deposited in his warehouse and that he was uncertain which of them was
entitled to the goods. After due proceedings, judgment was rendered by the court declaring that X
Corporation was entitled to the goods. The decision became final and executory. Raphael filed a
complaint against X Corporation for the payment of PI00,000.00 for storage charges and other advances
for the goods. X Corporation filed a motion to dismiss the complaint on the ground of res judicata. X
Corporation alleged that Raphael should have incorporated in his complaint for interpleader his claim
for storage fees and advances and that for his'failure he was barred from interposing his claim. Raphael
replied that he could not have claimed storage fees and other advances in his complaint for interpleader
because he was not yet certain as to who was liable therefore. Resolve the motion with reasons. (4%) -
The motion to dismiss should be granted. Raphael should have incorporated in his complaint for
interpleader his claim for storage fees and advances. They are part of Raphael’s cause of action which he
may not split. The filing of the interpleader is available as a ground for the dismissal of the second case.
(Sec. 4, Rule 2, 1997 Rules of Civil Procedure.) It is akin to a compulsory counterclaim which, if not set
up, is barred. The law also abhors the multiplicity of suits;

hence, the claim for storage fees should have been made part of his cause of action in the interest of
complete adjudication of the controversy and its incidents. Q: “A”, the surviving husband of “B”
executed in favor of “C” a deed entitled “Contract of Sale a Retro” over a certain parcel of land
registered under the Torrens System in which the owner is described as “A, married to B.” Subsequently,
“A” sued “C” for reformation of the contract, alleging that what was agreed upon was really a mortgage
and not a sale a retro. “AY” complaint was dismissed for failure to prosecute, however, and the dismissal
became final. A year later, the children of “A” and “B” sued 4tC” for the annulment of the Contract of
sale a Retro, alleging that the subject piece of land was acquired by their parents during their marriage,
hence their father had no right to include in the sale the children's interest in the property as heirs of
their mother, such children not having consented to the sale. “C" moved to dismiss the complaint on the
ground of bar by former judgment. Resolve the motion to dismiss. Explain. (1987 Bar Question) - Motion
to dismiss denied. There is no bar by former judgment because there is no identity of causes of action.
The cause of action of the children of “A” and “B” is different from the cause of action of “A”. “A" had no
right to sell the parcel of land inasmuch as the same was the conjugal property of “A" and “B". “A” could
legally sell only his conjugal share of said property and could not legally sell the conjugal share of his
deceased wife which was inherited by * their children without their consent. Parties to civil actions Real
parties-in-interest; indispensable parties; representatives as parties; necessary parties; indigent parties;
alternative defendants Allan was riding a passenger jeepney driven by Ben that collided with a car driven
by Cesar, causing Allan injury. Not knowing who was at fault, what is the best that Allan can do? (2011
BAR) Sue both Ben and Cesar as alternative defendants. In which of the following cases is the plaintiff
the real party in interest? (2011 BAR) Assignee of the lessor in an action for unlawful detainer Q: Strauss
filed a complaint against Wagner for cancellation of title. Wagner moved to dismiss the complaint
because Grieg, to whom he mortgaged the property as duly annotated in the TCT, was not impleaded as
defendant. (2015) Should the complaint be dismissed? - NO. The complaint should not be dismissed
because the mere non-joinder of an indispensable party is not a ground for the dismissal of the action If
the case should proceed to trial without Grieg being impleaded as a party to the case, what is his
remedy to protect his interest?

- If the case should proceed to trial without Grieg being impleaded as a party, he may intervene in the
action (Sec. 1, Rule 19). He may also file a petition for annulment of judgment under Rule 47 of the Rules
of Court. - In Metrobank v. Hon. Floro Alejo, G.R. No. 141970, September 10, 2001, the Supreme Court
held that it in a suit to nullify an existing Torrens Certificate of Title (TCT) in which a real estate mortgage
is annotated, the mortgagee is an indispensable party. In such suit, a decision cancelling the TCT and the
mortgage annotation is subject to a petition for annulment of judgment, because the non-joinder of a
mortgagee deprived the court of jurisdiction to pass upon the controversy. Q: Isagani drove the car of
his father, Pedro, and left it in the parking area of the Fairview motel where he was a guest. Isagani
entrusted the key of the car to a security guard hired by the Prime Resort Company, the owner/operator
of the motel. Emilio, pretending to be the brother of Isagani, got the key from the security guard and
drove the car away. The car was never recovered. Later, Pedro sued Prime Re¬sort for the value of the
carnapped vehicle plus damages. Prime Resort sets up the defense that Pedro has no interest in the
case, hence, has no cause of action, as he was not the guest of the motel but his son, Isagani. Is the
defense tenable? Explain. (1989 Bar Question) - No, because Pedro is the owner of the car which was
carnapped due to the fault or negligence of the security guard of the owner/operator of the motel in
which his son Pedro was a guest. Hence, Pedro is a real party in interest. Compulsory and Permissive
Joinder of parties Q: Distinguish joinder of causes of action from joinder of parties. (1996 Bar Question) -
Joinder of causes of action may be made in the same complaint by one party against another; or by or
against several parties. In cases of joinder of causes of action by one party against another, the totality
of the demand determines the Jurisdiction of the court. - But in cases of Joinder of causes of action by or
against several parties, the right to relief must arise out of the same transaction or series of transactions
and there must be a common question of fact or law. If these requisites are present, the totality of the
demand determines the jurisdiction of the court. Q: A filed an action against B, driver of the truck. C.
owner of said truck, and D, insurer of the truck, for damages when the truck rammed his car. A and D
entered into a compromise agreement upon an amount lower than that sued upon by A against all three
defendants. Accordingly, the court dismissed the case against D. B and C moved to dismiss the case
against them on the ground that, being indispensable parties under a common cause of action, non-
inclusion of D would not make the case prosper. Are the defendants indispensable parties? How would
you resolve the motion. (1996 Bar Question) - I would deny the motion. D is not an indispensable party.
The liability of the insurer D is based on the contract of insurance whereas the liability of B and C is
based on quasi-delict. Hence, the plaintiff does not have a common cause of

action against all the defendants and the dismissal of the complaint against D will not affect the
complaint against B and C. Q: (2002 Bar Question) P sued A and B in one complaint in the RTC- Manila,
the cause of action against A being on an overdue promissory note for P300,000.00 and that against B
being on an alleged balance of P300.000.00 on the purchase price of goods sold on credit. Does the RTC-
Manila have jurisdiction over the case? Explain. - No, the RTC- Manila has no jurisdiction over the case. A
and B could not be joined as defendants in one complaint because the right to relief against both
defendants do not arise out of the same transaction or series of transactions and there is no common
question of law or fact common to both. (Rule 3, sec. 6). Hence, separate complaints will have to be filed
and they would fall under the jurisdiction of the Metropolitan Trial Courts. Misjoinder and Non-joinder
of parties Unexplained or unjustified non-joinder in the Complaint of a necessary party despite court
order results in (2011 BAR) waiver of plaintiff’s right against the unpleaded necessary party. Q: X was
driving the dump truck of Y along Cattleya Street in Sta. Maria, Bulacan. Due to his negligence, X hit and
injured V who was crossing the street: Lawyer L, who witnessed the incident, offered his legal services to
V. V, who suffered physical injuries including a fractured wrist bone, underwent surgery to screw a metal
plate to his wrist bone. On complaint of V, a criminal case for Reckless Imprudence Resulting in Serious
Physical Injuries was filed against X before the Municipal Trial Court (MTC) of Sta. Maria. Atty. L, the
private prosecutor, did not reserve the filing of a separate civil action. V subsequently filed a complaint
for Damages against X and Y before the Regional Trial Court of Pangasinan in Urdaneta where he
resides. In his "Certification against Forum Shopping” V made no mention of the pendency of the,
criminal case in Sta. Maria. Suppose only X was named as defendant in the complaint for damages, may
he move for the dismissal of the complaint for failure of V to implead Y as an indispensable party? (2%) -
No, X may not move for dismissal of the civil action for damages on the contention that Y is an
indispensable party who should be impleaded. Y is not an indispensable party but only a necessary
party. Besides, non-joinder and' misjoinder of parties is not a ground for dismissal of actions Q: Florencio
sued Guillermo for partition of a property they owned in common. Guillermo filed a motion to dismiss
the complaint because Florencio failed to implead Hernando and Inocencio, the other co-owners of the
property. As judge, will you grant the motion to dismiss? Explain. (3%) (2009 Bar Question) - NO,
because the non-joinder of parties is not a ground for dismissal of action (Rule 3, Sec 11). The motion to
dismiss should be denied.

Class suit Q: Distinguish a derivative suit from a class suit. (2005 Bar Question) SUGGESTED - A derivative
suit is a suit in equity that is filed by a minority shareholder in behalf of a corporation to redress wrongs
committed against it, for which the directors refuse to sue, the real party in interest being the
corporation itself (Lim v. Lim-Yu, 352 SCRA 216 [2001]). A class suit is filed in behalf of many persons so
numerous that it is impracticable to join all as parties. Q: Four hundred residents of Barrio Ramos
Initiated a class action suit through Albert, a former mayor of the town, to recover damages sustained
due to their exposure to toxic waste and fumes emitted by the cooking gas plant of Top Fuel Gas
Corporation located in the town. Is the class suit proper? (1994 Bar Question) Answer: - No. The class
suit is not proper. Each plaintiff suffered separate and distinct damages from their exposure to the toxic
waste and fumes emitted by the cooking gas plant. Each of them has to prove his or her damages. Q: An
airplane carrying 200 passengers crashed somewhere in the jungles of Agusan. All the passengers and
crew perished. Twenty (20) relatives of the fatalities filed for themselves and in behalf of the relatives of
all those who perished in the mishap a class suit for damages totaling P5 Million against the airline. The
propriety of the class suit is questioned by the defendant. Resolve the issue. (1991 Bar Question) - A
class suit is not proper in this case because there is no common or general interest in the subject matter
of the controversy. Each of the plaintiffs has a separate claim for damages. Effect of death of party-
litigant Q: Prince Chong entered into a lease contract with King Kong over a commercial building where
the former conducted his hardware business. The lease contract stipulated, among others, a monthly
rental of P50,000.00 for a four (4) – year period commencing on January 1, 2010. On January 1, 2013,
Prince Chong died. Kin II Chong was appointed administrator of the estate of Prince Chong, but the
former failed to pay the rentals for the months of January to June 2013 despite King Kong’s written
demands. Thus, on July 1, 2013, King Kong filed with the Regional Trial Court (RTC) an action for
rescission of contract with damages and payment of accrued rentals as of June 30, 2013. (2014) Can Kin
II Chong move to dismiss the complaint on the ground that the RTC is without jurisdiction since the
amount claimed is only P300,000.00? - NO. Kin II Chong cannot move to dismiss the Complaint. An
action for rescission of contract with damages and payment of accrued rentals is considered incapable
of pecuniary estimation and therefore cognizable by the Regional Trial Court. If the rentals accrued
during the lifetime of Prince Chong, and King Kong also filed the complaint for sum of money during that
time, will the action be dismissible upon Prince Chong’s death during the pendency of the case?

- NO. The action will not be dismissible upon Prince Chong’s death during the pendency of the case.
When the action is for recovery of money arising from contract, and defendant dies before entry of final
judgment in the court in which the action was pending at the time of such death, it shall not be
dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment
obtained by the plaintiff shall be enforced under Rule 86 (Sec. 20, Rule 3). Relative thereto, since the
complaint for sum of money filed by King Kong survives the death of Prince Chong, the case shall not be
dismissed and the Court shall merely order the substitution of the deceased defendant. A sued B for
ejectment. Pending trial, B died, survived by his son, C. No substitution of party defendant was made.
Upon finality of the judgment against B, may the same be enforced against C? (2011 BAR) Yes, because
the case survived B’s death and the effect of final judgment in an ejectment case binds his successors in-
interest. Q: Cresencio sued Dioscoro for collection of a sum of money. During the trial, but after the
presentation of plaintiffs evidence,-Dioscoro died. Atty. Cruz, Dioscoro’s counsel, then filed a motion to
dismiss the action on the ground of his client’s death. The court denied the motion to dismiss and.
instead, directed counsel to furnish the court with the names and addresses of Dioscoro’s heirs and
ordered that the designated administrator of Dioscoro’s estate be substituted as representative party.
After trial, the court rendered judgment in favor of Cresencio. When the decision had become final and
executory, Cresencio moved for the issuance of a writ of execution against Dioscoro’s estate to enforce
his judgment claim. The court issued the writ of execution. Was the court’s issuance of the writ of
execution proper? Explain. (2%) - NO, the trial court's issuing the writ of execution is not proper and in
excess of jurisdiction, since the judgment obligor is already dead when the writ was issued. The
judgment for money may only be enforced against the estate of the deceased defendant in the probate
proceedings, by way of a claim filed with the probate court in accordance with Rule 86 of the Rules of
Court. - Cresencio should enforce that judgment in his favor in the settlement proceedings of the estate
of Dioscoro as a money claim in accordance with Rule 86 or Rule 88 as the case may be. Q: PJ engaged
the services of Atty. ST to represent him in a civil case filed by OP against him which was docketed as
Civil Case No. 123. A retainership agreement was executed between PJ and Atty. ST whereby PJ
promised to pay Atty. ST a retainer sum of P24,000.00 a year and to transfer the ownership of a parcel
of land to Atty. ST after presentation of PJ's evidence. PJ did not comply with his undertaking. Atty. ST
filed a case against PJ which was docketed as Civil Case No. 456. During the trial of Civil Case No. 456, PJ
died. Is the death of PJ a valid ground to dismiss the money claim of Atty. ST in Civil Case No. 456?
Explain. (2%) Will your answer be the same with respect to the real property being claimed by Atty. ST in
Civil Case No. 456? Explain. (2%) (2000 Bar Question) - No. Undo: Sec. 20. Rule 3, 1997 Rules of Civil
Procedure, when the action is for recovery of money arising from contract, express or Implied, and the
defendant dies before entry of final judgment in the court in which the action is

pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until
entry of final Judgment. A favorable judgment obtained by the plaintiff shall be enforced in the manner
especially provided in the Rules for prosecuting claims against the estate of a deceased person. - Yes, my
answer is the same. An action to recover real property In any event survives the death of the defendant
(Sec. 1, Rule 87, Rules of Court). However, a favorable Judgment may be enforced in accordance with
Sec. 7(b) Rule 39 (1997 Rules of Civil Procedure) against the executor or administrator or successor in
interest of the deceased. Q: (1999 Bar Question) What is the effect of the death of a party upon a
pending action? (2%) When A (buyer) failed to pay the remaining balance of the contract price after it
became due and demand- able, B (seller) sued him for collection before the RTC. After both parties
submitted their respective evidence, A perished in a plane accident. Consequently, his heirs brought an
action for the settlement of his estate and moved for the dismissal of the collection suit. Will you grant
the motion? Explain. (2%) Will your answer be the same if A died while the case is already on appeal to
the Court of Appeals? Explain. (2%) In the same case, what is the effect if B died before the RTC has
rendered judgment? (2%) - When the claim in a pending action is purely personal, the death of either of
the parties extinguishes the claim and the action is dismissed. When the claim is not purely personal and
is not thereby extinguished, the party should be substituted by his heirs or his executor or administrator.
(Sec. 16, Rule 3, 1997 Rules) If the action is for recovery of money arising from contract, express or
implied, and the defendant dies before entry of final judgment in the court in which the action was
pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until
entry of final judgment. A favorable judgment obtained by the plaintiff shall be enforced in the manner
provided in the rules for prosecuting claims against the estate of a deceased person. (Sec. 20, Rule 3,
1997 Rules) - No, because the action will not be dismissed but shall instead be allowed to continue until
entry of final judgment. (Id.) - No. If A died while the case was already on appeal in the Court of Appeals,
the case will continue because there is no entry yet of final judgment. (Id.) - The effect is the same. The
action will not be dismissed but will be allowed to continue until entry of final judgment. (Id.) Q: After
termination of trial on the merits, and as the trial Judge was about to finish his decision dismissing
plaintiffs suit for payment of a purported P369.000.00 loan, the defendant died. His counsel accordingly
filed with the court a notice of defendant's death. Simultaneously, he moved that plaintiff’s suit be
dismissed, to be thereafter pursued as a money claim in the proceeding for the settlement of
defendant’s estate. The Judge denied the motion to dismiss on the ground that there is no need for any
further proceeding since he is going to dismiss the case anyway in a forthcoming

decision. Three (3) days later, the decision dismissing the case was promulgated. Did the judge act
correctly? Explain your answer. (1992 Bar Question) Suggested Answer: - No, because in an action for
the recovery of money, if the defendant dies before a final judgment is rendered by the Regional Trial
Court, the action shall be dismissed and prosecuted as a money claim. (Rule 3) The fact that the Judge
was ready to render a decision dismissing the case does not prevent the application of the rule. Q: (a)
Plaintiff sued to recover an unpaid loan and was awarded P333,000.00 by the Regional Trial Court of
Manila. Defendant did not appeal within the period allowed by law. He died six days after the lapse of
the period to appeal. Forthwith, a petition for the settlement of his estate was properly filed with the
Regional Trial Court of Pampanga where an inventory of all his assets was filed and correspondingly
approved. Thereafter, plaintiff filed a motion for execution with the Manila court, contending therein
that the motion was legally justified because the defendant died after the judgment in the Manila court
had become final. Resolve the motion and state your reasons. (1992 Bar Question) - Motion for
execution denied. Although the defendant died after the judgment had become final and executory, it
cannot be enforced by a writ of execution against the estate of the deceased which is in custodia legis.
The judgment should be filed as a proven money claim with the Regional Trial Court of Pampanga. (b)
Under the same set of facts as (a), a writ of execution was issued by the Manila court upon proper
motion three days after the lapse of the period to appeal. The corresponding levy on execution was duly
effected on defendant’s parcel of land worth P666.000.00 a day before the defendant died. Would it be
proper, on motion, to lift the levy on defendant’s property? State the reasons for your answer. - No,
since the levy on execution was duly effected on defendant’s parcel of land a day before the defendant
died, it was valid. The land may be sold for the satisfaction of the judgment and the surplus shall be
accounted for by the sheriff to the corresponding executor or administrator. (Sec. 7-C of Rule 39) Q: A
filed a complaint against Y with the RTC of Argao, Cebu, for payment of a promissory note in the- sum of
P50.000.00, for liquidated damages of P5.000.00 and attorney’s fees of P5.000.00. After he filed his
answer, Y died, but his lawyer did not file a motion to dismiss. In the meantime, Y*s widow filed with the
above court a special proceeding for the settlement of the intestate estate of Y. The widow, Z, was
appointed the administratrix of the estate. A filed in the civil case a motion to have Y substituted by the
administratrix; the latter did not object. The court granted the motion. Trial on the merits was had. In
due course, the court rendered a decision in favor of A. At the time it was rendered, the period to file
claims in the intestate estate of Y had already lapsed. The administratrix, X, did not appeal from the
decision; and after it became final. A moved for the execution of judgment, Z opposed the motion
contending that the decision is void because the claim does not survive. The case should have been
dismissed upon the death of Y since upon his death, the court lost jurisdiction over the case. (1991 Bar
Question)

(a) Rule on the issue. - Since Y died before final Judgment in the RTC, the action for money should have
been dismissed and prosecuted as a money claim against his estate. However, since the widow. Z, who
was appointed administratrix of the estate, did not object to the trial on the merits and did not appeal
from the decision, she is deemed to have waived the right to have the claim litigated in the estate
proceedings. Moreover, she is estopped from questioning the court's jurisdiction. Hence, the decision is
valid. If the opposition is without merit, can the writ of execution be validly issued? - No, because a
Judgment for money cannot be enforced by a writ of execution against the estate of the deceased which
is in custodia legis. If it cannot be issued, what is the remedy of A? (c) His remedy is to file a money claim
against the estate of Y based on the judgment. Although the period for filing money claims has already
lapsed, the same may be allowed before an order of distribution is entered. Venue Q: A law was passed
declaring Mt. Karbungko as a protected area since it was a major watershed. The protected area
covered a portion located in Municipality A of the Province I and a portion located in the City of Z of
Province II. Maingat is the leader of Samahan ng Tagapag-ingat ng Karbungko (STK), a people's
organization. He learned that a portion of the mountain located in the City of Z of Province II was
extremely damaged when it was bulldozed and leveled to the ground, and several trees and plants were
cut down and burned by workers of World Pleasure Resorts, Inc. (WPRI) for the construction of a hotel
and golf course. Upon inquiry with the project site engineer if they had a permit for the project, Maingat
was shown a copy of the Environmental Compliance Certificate (ECC) issued by the DENR-EMB, Regional
Director (RD-DENR-EMB). Immediately, Maingat and STK filed a petition for the issuance of a writ of
continuing mandamus against RD-DENR-EMB and WPRI with the RTC of Province I, a designated
environmental court, as the RD-DENR-EMB negligently issued the ECC to WPRI. On scrutiny of the
petition, the court determined that the area where the alleged actionable neglect or omission subject of
the petition took place in the City of Z of Province II, and therefore cognizable by the RTC of Province II.
Thus, the court dismissed outright the petition for lack of jurisdiction. (2015) Was the court correct in
motu proprio dismissing the petition? - NO. The court was not correct in motu propio dismissing the
petition. While it appears that the alleged actionable neglect or omission took place in the City of Z of
Province II and, therefore cognizable by the RTC of Province II, nonetheless, venue is not jurisdictional,
and it can be waived in a special civil action for continuing mandamus . Besides, under Section 1, Rule 9
of the Rules of Court, defenses and objections not pleaded in the answer or in the motion to dismiss are
deemed waived. Hence, the court cannot motu propio dismiss the case on the ground of improper
venue.

Q: Assuming that the court did not dismiss the petition, the RD-DENR-EMB in his Comment moved to
dismiss the petition on the ground that petitioners failed to appeal the issuance of the ECC and to
exhaust administrative remedies provided in the DENR Rules and Regulations. Should the court dismiss
the petition? - YES, the court should dismiss the petition because the proper procedure to question
defect in an ECC is to follow the DENR administrative appeal process in accordance with the doctrine of
exhaustion of administrative remedies Venue versus jurisdiction Q: Distinguish jurisdiction from venue?
2% (2006 Bar Question) SUGGESTED - Jurisdiction is the power of the Court to decide a case on the
merits, while venue refers to the place where the suit may be filed. In criminal actions, however, venue
is jurisdictional. Jurisdiction may not be conferred upon a court by consent through waiver, but venue
may be waived except in criminal cases. Venue of real actions Q: Angela, a resident of Quezon City, sued
Antonio, a resident of Makati City before the RTC of Quezon City for the reconveyance of two parcels of
land situated in Tarlac and Nueva Ecija, respectively. May her action prosper? (3%) - Yes, the action may
prosper because improper venue can be waived; and there appears to be no objection from the
defendant. An action for reconveyance of parcels of land partakes of an action to recover title to or
possession of such land; hence a real action which should be filed in the place where the parcels of land
are situated in Tarlac and Nueva Ecija. Assuming that the action was for foreclosure on the mortgage of
the same parcels of land, what is the proper venue for the action? (3%) - If the action was for foreclosure
of mortgage, the action may be filed either in Tarlac or Nueva Ecija where any of the parcels of land is
situated. Only one action for foreclosure need be filed as only one contract of mortgage had been
constituted. Venue of personal actions Gary who lived in Taguig borrowed P1 million from Rey who lived
in Makati under a contract of loan that fixed Makati as the venue of any action arising from the contract.
Gary had already paid the loan but Rey kept on sending him letters of demand for some balance. Where
is the venue of the action for harassment that Gary wants to file against Rey? (2011 BAR) In Taguig or
Makati at the option of Gary since it is a personal injury action. Q: A resident of Lingayen, Pangasinan
sued X. a resident of San Fernando. La Union in the Regional Trial Court (RTC) of Quezon City for the
collection of a debt of PI million. X did not file a motion to dismiss for improper venue but filed his
answer raising therein improper venue as an affirmative defense. He also filed a counterclaim for

P80.000 against A for attorney’s fees and expenses for litigation. X moved for a preliminary hearing on
said affirmative defense. For his part, A filed a motion to dismiss the counterclaim for lack of jurisdiction.
Rule on the affirmative defense of improper venue. [3%] x x x - There is improper venue. The case for a
sum of money, which was filed in Quezon City, is a personal action. It must be filed in the residence of
either the plaintiff, which is in Pangasinan, or of the defendant, which is in San Fernando, La Union. (Sec.
2 of Rule 4, 1997 Rules of Civil Procedure.) The fact that it was not raised in a motion to dismiss does not
matter because the rule that If improper venue is not raised in a motion to dismiss it is deemed waived
was removed from the 1997 Rules of Civil Procedure. The new Rules provide that if no motion to dismiss
has been filed, any of the grounds for dismissal may be pleaded as an affirmative defense in the answer.
Q: X, a resident of Angeles City, borrowed P300.000.00 from A, a resident of Pasay City. In the loan
agreement, the parties stipulated that “the parties agree to sue and be sued in the City of Manila.” In
case of non-payment of the loan, can A file his complaint to collect the loan from X in Angeles City?
Suppose the parties did not stipulate in the loan agreement as to the venue, where can A file his
complaint against X? Suppose the parties stipulated in their loan agreement that Venue for all suits
arising from this contract shall be the courts in Quezon City," can A file his complaint against X in Pasay
City? (1997 Bar Question) - Yes, because the stipulation in the loan agreement that “the parties agree to
sue and be sued in the City of Manila’ does not make Manila the “exclusive venue thereof." (Sec. 4 of
Rule 4, as amended by Circular No. 13-95: Sec. 4 of new Rule 4) Hence, A can file his complaint in
Angeles City where he resides. - If the parties did not stipulate on the venue, A can file his complaint
either in Angeles City where he resides or in Pasay City where X resides. (Id). - Yes, because the wording
of the stipulation does not make Quezon City the exclusive venue. Venue of actions against non-
residents When the rules on venue do not apply The mortgage contract between X, who resides in
Manila, and Y, who resides in Naga, covering land in Quezon provides that any suit arising from the
agreement may be filed "nowhere else but in a Makati court". Y must thus sue only in: (2012 BAR)
Makati; Which of the following stipulations in a contract will supersede the venue for actions that the
rules of civil procedure fix? (2011 BAR) Venue in case of dispute between the parties to this contract
shall solely be in the proper courts of Quezon City. Q: (1988 Bar Question) A complaint entitled “A as
Attorney -In- Fact for X, plaintiff, versus B, Defendant” was filed to recover a car in the possession of B.
A’s Power of Attorney expressly authorized him (A) to sue for the recovery of the car. B files a

Motion to Dismiss the Complaint for lack of capacity to sue. Decide the Motion. Explain. A and B, both
residents of Batangas, entered into a Contract of Lease over a parcel of land belonging to B, located in
Calapan, Mindoro. A filed a complaint before the Regional Trial Court, sitting in Batangas City, for the
rescission of the Lease Contract of the land in Mindoro. B filed a Motion to Dismiss on the ground that
the Batangas Court did not have jurisdiction over the subject matter, the land being located in Mindoro.
B however did not alleged improper venue in his motion. Decide with reasons. - Motion to dismiss is
denied. A has legal capacity to sue, but is not the real party in interest. The ground of the motion to
dismiss should have been that the complaint states no cause of action because it was filed by “A as
Attorney-infact for X.” The complaint should have been filed in the name of X as plaintiff. - Motion to
dismiss is denied. The fact that the land is located in Mindoro does not affect the jurisdiction of the
Regional Trial Court sitting in Batangas City. The proper venue of the action is the Regional Trial Court in
Mindoro. However, since B did not object to the improper venue in his motion, that ground is deemed
waived Pleadings Kinds of pleadings Q: (1996 Bar Question) What pleadings are allowed by the rules?
What pleadings must be verified? - The pleadings allowed by the rules are the complaint, the answer,
the counterclaim, the crossclaim, the reply, the third-party (fourth-party etc.) complaint. - Those
required by law to be verified, such as: 1. Forcible Entry and Unlawful Detainer. (Sec. 1 of Rule 70) 2.
Denial of genuineness and due execution of a written instrument which is the basis of an action or
defense. (Sec. 8 of Rule 8) 3. Denial of allegations of usury. (Sec. 1 of Rule 9) 4. Petitions for certiorari,
prohibition and mandamus. (Rule 65) 5. Pleadings in Summary Procedure. Complaint Answer (Negative
defenses, Negative pregnant, Affirmative defenses) Q: For failure of KJ to file an answer within the
reglementary period, the Court, upon motion of LM, declared KJ in default. In due time, KJ filed an
unverified motion to lift the order of default without an affidavit of merit attached to it. KJ however
attached to the motion his answer under oath, stating in said answer his reasons for his failure to file an
answer on time, as well as his defenses. Will the motion to lift the order of default prosper? Explain.
(3%) - Yes, there is substantial compliance with the rule. Although the motion is unverified, the answer
attached to the motion is verified. The answer contains what the motion to lift the order of default and
the affidavit Of merit should

contain, which are the reasons for movant's failure to answer as well as his defenses. Counterclaims
(Compulsory counterclaim, Permissive counterclaim, Effect on the counterclaim when the complaint is
dismissed) Q: (1999 Bar Question) What is a counterclaim? (2%) - A counterclaim is any claim which a
defending party, may have against an opposing party. Q: True or False. If the answer is false, explain
your answer briefly. A counterclaim is a pleading. (2%) (2007 Bar Question) True. A counterclaim is a
pleading by which a defending party makes a claim against an opposing party Q: Is a “motion to dismiss
with counterclaim" sanctioned by the Rules of Court? If your answer is YES, state your reasons. If your
answer is NO, give your reasons and state what the defendant should instead file in court to preserve his
counterclaim while maintaining the ground asserted in his motion to dismiss as an issue that should be
the subject of a preliminary hearing. (1992 Bar Question) - No, because a counterclaim is contained in an
answer and not in a motion to dismiss. What the defendant should do is to plead the ground of his
motion to dismiss (except improper venue) as an affirmative defense in his answer, together with his
counterclaim, and ask for a preliminary hearing on his affirmative defense as if a motion to dismiss had
been filed. Compulsory counterclaim Q: PX filed a suit for damages against DY. In his answer, DY
incorporated a counterclaim for damages against PX and AC, counsel for plaintiff in said suit, alleging in
said counterclaim, inter alia, that AC, as such counsel, maliciously induced PX to bring the suit against DY
despite AC’s knowledge of its utter lack of factual and legal basis. In due time, AC filed a motion to
dismiss the counterclaim as against him on the ground that he is not a proper party to the case, he being
merely plaintiff’s counsel. Is the counterclaim of DY compulsory or not? Should AC’s motion to dismiss
the counterclaim be granted or not? Reason. (5%) (2004 Bar Question) - Yes. The counterclaim of DY is
compulsory because it is one which arises out of or is connected with the transaction or occurrence
constituting the subject matter of the opposing party 's claim and does not require for its adjudication
the presence of third parties of whom the court cannot acquire jurisdiction - The motion to dismiss of
plaintiff’s counsel should not be granted because bringing in plaintiff’s counsel as a defendant in the
counterclaim is authorized by the Rules. Where it is required for the grant of complete relief in the
determination of the counterclaim, the court shall order the defendant's counsel to be brought in since
jurisdiction over him can be obtained. (Sec. 12 of Rule 6; Aurelio v. Court of Appeals 196 SCRA 674
[1994]); and other cases). Here, the counterclaim was against both the plaintiff and his lawyer who
allegedly maliciously induced the plaintiff to file the suit.

Q: A resident of Lingayen, Pangasinan sued X. a resident of San Fernando. La Union in the Regional Trial
Court (RTC) of Quezon City for the collection of a debt of PI million. X did not file a motion to dismiss for
improper venue but filed his answer raising therein improper venue as an affirmative defense. He also
filed a counterclaim for P80.000 against A for attorney’s fees and expenses for litigation. X moved for a
preliminary hearing on said affirmative defense. For his part, A filed a motion to dismiss the
counterclaim for lack of jurisdiction. Rule on the motion to dismiss the counterclaim on the ground of
lack of jurisdiction over the subject matter. (12%) - The motion to dismiss on the ground of lack of
jurisdiction over the subject matter should be denied. The counterclaim for attorney's fees and expenses
of litigation is a compulsory counterclaim because it necessarily arose out of and is connected with the
complaint. In an original action before the Regional Trial Court, the counterclaim may be considered
compulsory regardless of the amount. Permissive counterclaim Defendant Dante said in his answer: "1.
Plaintiff Perla claims that defendant Dante owes her P4,000 on the mobile phone that she sold him; 2.
But Perla owes Dante P6,000 for the dent on his car that she borrowed." How should the court treat the
second statement? (2011 BAR) A permissive counterclaim Q: (1996 Bar Question) A filed an action
against B for recovery of possession of a piece of land. B in his answer specifically denied A’s claim and
interposed as counterclaim the amount of P150,000.00, arising from another transaction, consisting of
the price of the car he sold and delivered to A and which the latter failed to pay. Is B’s counterclaim
allowed under the rules? Explain. A sued B for damages. B in his answer alleged as new matter the issue
of prescription. No reply thereto was filed by A. Can the action be dismissed for failure of A to controvert
the new matter set up by B? Explain. X filed an action for damages against Y arising from the latter’s
tortious act. Y filed his answer with a counterclaim for damages suffered and expenses incurred on
account of X’s suit. Thereafter, X moved to dismiss the case since he lost interest in the case. Y did not
object. The court dismissed the action without prejudice. Y moved the court to set the reception of his
evidence to prove his counterclaim. If you were the judge, how would you resolve the motion? Explain
Answer: 1) B’s counterclaim is a permissive counterclaim inasmuch as it arises out of another
transaction that is the subject-matter of A’s complaint. It is allowed if it is within the jurisdiction of the
court. (Sec. 8 of Rule 6) Alternative Answer: The question does not state to what court A filed the action.
If the assessed value of the property does not exceed P20.000.00, the action may be filed In a Municipal
Trial Court, in which case the counterclaim of P150,000.00 may not be allowed inasmuch as it is not
within its jurisdiction.

If the assessed value does not exceed P50.000.00, the action may be filed in a Metropolitan Trial Court,
in which case the counterclaim of P150,000.00 may be allowed inasmuch as it is within its jurisdiction.
(Sec. 33 of BP 129 as amended by RA No. 7691) If the assessed value exceeds P50.000.00, the action
may be filed in a Regional Trial Court. If filed in Metro Manila, the counterclaim of P150.000.00 may not
be allowed, but if filed outside Metro Manila, it may be allowed. (Sec. 19 of BP 129 as amended by RA
7691) No, because if no reply is filed, all the new matters alleged in the answer are deemed
controverted. (Sec. 11 of Rule 6) I would deny the motion. Inasmuch as Y's counterclaim for damages
incurred on account of X’s suit cannot remain pending for independent adjudication. Y should have
objected to the dismissal of the complaint. His failure to object deprived him of the right to present
evidence to prove his counterclaim. (Sec. 2 of Rule 17; Ynotorio vs. Lira, 12 SCRA 369) Q: Aya sues Lea
for recovery of a tract of land. Lea seeks in turn to be reimbursed of the value of improvements she had
introduced on the same land and the payment of damages she had sustained. Should Lea file a separate
action against Aya for that purpose? (1994 Bar Question) - No. Lea’s claim cannot be made in a separate
action. It is a compulsory counterclaim in the suit filed by Aya against Lea for the recovery of the land. A
compulsory counterclaim is one which arises out of or is necessarily connected with the transaction or
occurrence that is the subject-matter of the opposing party’s claim and does not require the presence of
third parties of whom the court cannot acquire jurisdiction. If Lea’s claim is not set up in the suit filed by
Aya, the claim is barred. Cross-claims Q: (1999 Bar Question) Distinguish a counterclaim from a
crossclaim. (2%) - A counterclaim is distinguished from a crossclaim in that a cross-claim is any claim by
one party against a co-party arising out of the transaction or occurrence that is the subject matter either
of the original action or of a counterclaim therein. A counterclaim is against an opposing party while a
cross-claim is against a coparty. Q: B and C borrowed P400.000.00 from A. The promissory note was
executed by B and C in a joint and several capacity. B, who received the money from A. gave C
P200.000.00. C, in turn, loaned P 100,000.00 out of the P200.000.00 he received to D. In an action filed
by A against B and C with the Regional Trial Court of Quezon City, can B file a cross-claim against C for
the amount of P200.000.00? Can C file a third party complaint against D for the amount of P100.000.00?
(1997 Bar Question) - Yes. B can file a cross-claim against C for the amount of 200,000.00 given to C. A
cross-claim is a claim filed by one party against a co-party arising out of the transaction or occurrence
that is the subject matter of the original action or a

counterclaim therein and may include a claim that the party against whom it is asserted is or may be
liable to the cross-claimant for all or part of a claim asserted against the cross-claimant. (Sec. 7 of former
Rule 6; Sec. 8 of new Rule 6. Rules of Court). - No, C cannot file a third-party complaint against D
because the loan of 100,000.00 has no connection with his opponent’s claim. C could have loaned the
money out of other funds in his possession. Q: (1996 Bar Question) A assembles an owner-type jeep for
B who in turn rents it to X. Due to faulty brakes, X figures in a vehicular accident causing him severe
injuries. X files an action for damages against A and B. May B file a third-party complaint against A for
indemnity? Explain. X sued Y for breach of contract with damages. After Y filed his answer, the parties
amicably settled. The court rendered Judgment based on said compromise. Within the period to perfect
the appeal, Y filed a motion for new trial under Rule 37 alleging vitiation of his consent due to mistake
and prayed that the agreement be set aside. Resolve the motion. Plaintiff filed a complaint against
defendant for recovery of possession of real property with the Regional Trial Court of Manila. Defendant
filed an answer with affirmative defenses and interposed a counterclaim for damages and attorney’s
fees arising from the filing of the complaint. When plaintiff failed to file an answer on the counterclaim,
defendant moved to declare him in default. Notwithstanding notice of the motion, plaintiff did not file
an opposition. As judge, how would you resolve the motion to declare plaintiff in default? Explain. - No,
because what B should file is a crossclaim against his co-defendant A. - A judgment by compromise is not
appealable. Hence a motion for new trial is not proper. Y should file a motion to set aside the agreement
on the ground of mistake. or he could file a petition for relief under Rule 38 of the Rules of Court or file a
new action to annul the agreement within the prescriptive period - I would deny the motion. A
compulsory counterclaim for damages and attorney’s fees arising from the filing of the complaint raises
issues which are inseparable from those of the complaint and does not require an answer. (Navarro vs.
Bello. 102 Phil. 1019) Third (fourth, etc.) party complaints Leave of court is always necessary in: (2012
BAR) third party complaint. Q: (1996 Bar Question) A filed an action against B for recovery of possession
of a piece of land. B in his answer specifically denied A’s claim and interposed as counterclaim the
amount of P150,000.00, arising from another transaction, consisting of the price of the car he sold and
delivered to A and which the latter failed to pay. Is B’s counterclaim allowed under the rules? Explain. A
sued B for damages. B in his answer alleged as new matter the issue of prescription. No reply thereto
was filed by A. Can the action be dismissed for failure of A to controvert the new matter set up by B?
Explain. X filed an action for damages against Y arising from the latter’s tortious act. Y filed his answer
with a counterclaim for damages suffered and expenses incurred on account

of X’s suit. Thereafter, X moved to dismiss the case since he lost interest in the case. Y did not object.
The court dismissed the action without prejudice. Y moved the court to set the reception of his evidence
to prove his counterclaim. If you were the judge, how would you resolve the motion? Explain. Answer:
B’s counterclaim is a permissive counterclaim inasmuch as it arises out of another transaction that is the
subject-matter of A’s complaint. It is allowed if it is within the jurisdiction of the court. (Sec. 8 of Rule 6)
Alternative Answer: The question does not state to what court A filed the action. If the assessed value of
the property does not exceed P20.000.00, the action may be filed In a Municipal Trial Court, in which
case the counterclaim of P150,000.00 may not be allowed inasmuch as it is not within its jurisdiction. If
the assessed value does not exceed P50.000.00, the action may be filed in a Metropolitan Trial Court, in
which case the counterclaim of P150,000.00 may be allowed inasmuch as it is within its jurisdiction.
(Sec. 33 of BP 129 as amended by RA No. 7691) If the assessed value exceeds P50.000.00, the action
may be filed in a Regional Trial Court. If filed in Metro Manila, the counterclaim of P150.000.00 may not
be allowed, but if filed outside Metro Manila, it may be allowed. (Sec. 19 of BP 129 as amended by RA
7691) No, because if no reply is filed, all the new matters alleged in the answer are deemed
controverted. (Sec. 11 of Rule 6) I would deny the motion. Inasmuch as Y's counterclaim for damages
incurred on account of X’s suit cannot remain pending for independent adjudication. Y should have
objected to the dismissal of the complaint. His failure to object deprived him of the right to present
evidence to prove his counterclaim. (Sec. 2 of Rule 17; Ynotorio vs. Lira, 12 SCRA 369) Complaint-in-
intervention Reply Q: X files a complaint in the Regional Trial Court for the recovery of a sum of money
with damages against Y.Y files his answer denying liability under the contract of sale and praying for the
dismissal of the complaint on the ground of lack of cause of action because the contract of sale was
superseded by a contract of lease, executed and signed by X and Y two weeks after the contract of sale
was executed. The contract of lease was attached to the answer. X does not file a reply. What is the
effect of the non-filing of a reply? Explain. (3%) (2000 Bar Question) - A reply is generally optional. If it is
not filed, the new matters alleged in the answer are deemed controverted. However, since the contract
of lease attached to the answer is the basis of the defense, by not filing a reply denying under oath the
genuineness and due execution of said contract, the plaintiff is deemed

to have admitted the genuineness and due execution thereof. (Secs. 7 and 8, Rule 8,1997 Rules of Civil
Procedure; Toribio u. Bidin, 134 SCRA 162 (1985]). Pleadings allowed in small claim cases and cases
covered by the Rules on Summary Procedure Which of the following precepts forms part of the rules
governing small claims? (2011 BAR) Permissive counterclaim is not allowed. Q: As a new lawyer,
Attorney Novato limited his practice to small claims cases, legal counseling and the notarization of
documents. He put up a solo practice law office and was assisted by his wife who served as his
secretary/helper. He used a makeshift hut in a vacant lot near the local courts and a local transport
regulatory agency. With this practice and location, he did not have big-time clients but enjoyed heavy
patronage assisting walk-in clients. What role can Attorney Novato play in small claims cases when
lawyers are not allowed to appear as counsel in these cases? (2013 BAR) - Atty. Novato may only give
counseling and assist claimants in accomplishing the Statement of Claims and the Affidavits necessary to
initiate a small claims action. He can also notarize the aforementioned documents since the statement
of Claims and Response are required to be verified What legal remedy, if any, may Attorney Novato
pursue for a client who loses in a small claims case and before which tribunal or court may this be
pursued? (2013 BAR) - Atty. Novato may file a Petition for Certiorari before the RTC since a decision in
small claims cases is final and unappealable (Sec. 23, A.M. No. 8-8-7 SC). The petition for certiorari
should be filed before the RTC conformably to the Principle of Judicial Hierarchy. Q: SPO1 CNC filed with
the Metropolitan Trial Court in Quezon City (MeTC-QC) a sworn written statement duly subscribed by
him, charging RGR (an actual resident of Cebu City') with the offense of slight physical injuries allegedly
inflicted on SPS (an actual resident of Quezon City). The Judge of the branch to which the case was
raffled thereupon issued an order declaring that the case shall be governed by the Rule on Summary
Procedure in criminal cases. Soon thereafter, the Judge ordered the dismissal of the case for the reason
that it was not commenced by information, as required by said Rule. Sometime later, based on the same
facts giving rise to the slight physical injuries case, the City Prosecutor filed with the same MeTC-QC an
information for attempted homicide against the same RGR. In due time, before arraignment, RGR
moved to quash the information on the ground of double jeopardy and after due hearing, the Judge
granted his motion. Was the dismissal of the complaint for slight physical injuries proper? Was the grant
of the motion to quash the attempted homicide information correct? Reason (5%) (2004 Bar Question) -
Yes, the dismissal of the complaint for slight physical injuries is proper because in Metropolitan Manila
and in chartered cities, the case has to be commenced only by information. (Sec. 11, Revised Rule on
Summary Procedure).

- No, the grant of the motion to quash the attempted homicide information on the ground of double
jeopardy was not correct, because there was no valid prosecution for slight physical injuries. Q: Juan
Santos appeals the decision against him to the Regional Trial Court (RTC) which affirmed in toto the
lower court’s decision. Juan Santos then filed a motion for reconsideration. Maria Cruz moves to strike
out the motion for reconsideration as it is a prohibited pleading under the Rules on Summary Procedure.
Is this tenable? Decide with reasons. (1990 Bar Question) - No, because the rule on prohibited pleadings
in summary procedure is applicable only to the Metropolitan and Municipal Trial Courts (Glakihaca v.
Aquino. Jan. 12.1990) Q: Dalmacio filed a civil case against Cadio for the collection of P5,000 in the
Municipal Trial Court of Bacoor, After an examination of the complaint, the judge dismissed the case
outright due to improper venue. Dalmacio filed a “motion for reconsideration” of the order of dismissal,
contending that a provision in the promissory note attached to the complain and made as the basis
thereof clearly shows that the case must be filed with the Bacoor court. Although realizing and admitting
that he committed an error in dismissing the case, the judge said that he could not revoke his previous
order because no action can be taken on the motion for reconsideration, which is a prohibited pleading
under the Summary Rules. Is the judge correct? Explain. (1989 Bar Question) - No, because while a
motion for reconsideration is not allowed under summary procedure rules in order to avoid undue
delay, a revocation of the erroneous order would avoid the delay occasioned by an appeal by Dalmacio
from the order of dismissal and a reversal of the said order by the Regional Trial Court. Verification and
certification against forum shopping A certificate against Forum-Shopping is not required in: (2012 BAR)
application for search warrant. When a party or counsel willfully or deliberately commits forum
shopping, the initiatory pleading may: (2012 BAR) be summarily dismissed with prejudice as it may
constitute direct contempt. Q: What is forum shopping? 2.5% (2007 Bar Question) - Forum -shopping is
the act of filing multiple suits involving the same parties for the same cause of action, either
simultaneously or successively, for the purpose of obtaining a favorable judgment Q: Mr. Humpty file
with the Regional Trial Court (RTC) a complaint against Ms. Dumpty for damages. The RTC, after due
proceedings, rendered a decision granting the complaint and ordering Ms. Dumpty to pay damages to
Mr. Humpty. Ms. Dumpty timely filed an appeal before the Court of Appeals (CA), questioning the RTC
decision. Meanwhile, the RTC granted Mr. Humpty’s motion for execution pending appeal. Upon receipt
of the RTC’s order granting execution pending appeal, Ms. Dumpty filed

with the CA another case, this time a special civil action for certiorari assailing said RTC order. Is there a
violation of the rule against forum shopping considering that two (2) actions emanating from the same
case with the RTC were filed by Ms. Dumpty with the CA? Explain. (2014) - NO. There is no violation of
the rule against forum shopping. The essence of forum shopping is the filing by a party against whom an
adverse judgment has been rendered in one forum, seeking another and possibly favorable opinion in
another suit other than by appeal or special civil action for certiorari; the act of filing of multiple suits
involving the same parties for the same cause of action, either simultaneously or successively for the
purpose of obtaining a favorable judgment. Forum shopping exists where the elements of litis pendentia
are present or where a final judgment in one case will amount to res judicata in the action under
consideration. One party may validly question a decision in a regular appeal and at the same time assail
the execution pending appeal via certiorari without violating the rule against forum shopping. This is
because the merits of the case will not be addressed in the Petition dealing with the execution and vice
versa. Since Ms. Dumpty merely filed a special civil action for certiorari, the same will not constitute a
violation of the rules on forum shopping because the resolution or a favorable judgment thereon will
not amount to res judicata in the subsequent proceedings between the same parties A complaint
without the required "verification" (2011 BAR) shall be treated as unsigned. Q: Amorsolo, a Filipino
citizen permanently residing in New York City, filed with the RTC of Lipa City a Complaint for Rescission
of Contract of Sale of Land against Brigido, a resident of Barangay San Miguel, Sto. Tomas, Batangas. The
subject property, located in Barangay Talisay, Lipa City, has an assessed value of P19,700.00. Appended
to the complaint is Amorsolo’s verification and certification of non-forum shopping executed in New
York City, duly notarized by Mr. Joseph Brown, Esq., a notary public in the State of New York. Brigido
filed a motion to dismiss the complaint on the following grounds: The verification and certification of
non-forum shopping are fatally defective because there is no accompanying certification issued by the
Philippine Consulate in New York, authenticating that^Mr. Brown is duly authorized to notarize the
document. (3%) Rule on the foregoing grounds with reasons.(2009 Bar Question) - The third ground
raised questioning the validity of the verification and certification of non-forum shopping for lack of
certification from the Philippine Consulate in New York, authenticating that Mr. Brown is duly
authorized to notarize the document, is likewise without merit. The required certification alluded to,
pertains to official acts, or records of official bodies, tribunals, and public officers, whether of the
Philippines or of a foreign country: the requirement in Sec. 24, Rule 132 of the 1997 Rules refers only to
paragraph (a) of Sec. 29 which does not cover notarial documents. It is enough that the notary public
who notarized the verification and certification of non-forum shopping is clothed with authority to
administer oath in that State or foreign country.

Q: What is forum-shopping? What are the sanctions imposed for its violation? (1996 Bar Question) -
Forum-shopping is the filing of multiple petitions, complaints or other initiatory pleadings involving the
same issues in the Supreme Court, the Court of Appeals or other tribunals or agencies, with the result
that said courts, tribunals or agencies have to resolve the same issues. - Any violation thereof shall be a
cause for the dismissal of the complaint, petition, application or other initiatory pleading, upon motion
and after hearing. However, any clearly, wilful and deliberate forum shopping by any party and his
counsel through the filing of multiple complaints or other initiatory pleadings to obtain favorable action
shall be a ground for summary dismissal thereof and shall constitute direct contempt of court.
Furthermore, the submission of false certification or non-compliance with the undertakings therein shall
constitute indirect contempt of court, without prejudice to disciplinary proceedings against the counsel
and the filing of a criminal action against the guilty party. Q: RC filed a complaint for annulment of the
foreclosure sale against Bank V. In its answer, Bank V set up a counterclaim for actual damages and
litigation expenses. RC filed a motion to dismiss the counterclaim on the ground that Bank V’s Answer
with Counterclaim was not accompanied by a certification against forum shopping. Rule. (5%) (2007 Bar
Question) - A certification against forum shopping is required only in initiatory pleadings. In this case,
the counterclaim pleaded in the defendant’s Answer appears to have arisen from the plaintiff's
complaint or compulsory in nature and thus, may not be regarded as an initiatory pleading. The absence
thereof in the Bank’s Answer is not a fatal defect. Therefore, the motion to dismiss on the ground raised,
lacks merit and should be denied (UST v. Surla, 294 SCRA 382 [1998]). - On the other hand, if the
counterclaim raised by the defendant Bank’s Answer was not predicated on the plaintiffs claim or cause
of action, it is considered a permissive counterclaim. In which case, it would partake of an initiatory
pleading which requires a certification against forum shopping. Correspondingly, the motion to dismiss
based on lack of the required certificate against forum shopping should be granted. Q: Honey filed with
the Regional Trial Court, Taal, Batangas a complaint for specific performance against Bemie. Forlack of a
certification against forum shopping, the judge dismissed the complaint. Honey's lawyer filed a motion
for reconsideration, attaching thereto an amended complaint with the certification against forum
shopping. If you were the judge, how will you resolve the motion? 5% - If I were the judge, I will deny
the Motion for Reconsideration. The requirement of filing a certificate of non-forum shopping is
mandatory; it is not curable by mere amendment of the complaint but the dismissal of the case shall be
without prejudice. [Sec. 5, Rule 7 of the 1997 Revised Rules of Civil Procedure]. However, The rule may
be liberally construed when there are compelling reasons and a strict and literal application of the rules
on non-forum shopping and verification will result in a patent denial of substantial justice

Q: As counsel for A, B, C and D. Atty. XY prepared a complaint for recovery of possession of a parcel of
land against Z. Before filing the complaint, XY discovered that his clients were not available to sign the
certification of non- forum shopping. To avoid further delays in the filing of the complaint, XY signed the
certification and immediately filed the complaint in court. Is XY Justified in signing the certification?
Why? (5%) (2000 Bar Question) - No. counsel cannot sign the anti-forum shopping certification because
it must be executed by the “plaintiff or principal party" himself (Sec. 5. Rule 7, 1997 Rules of Civil
Procedure; Escorpizo v. University of Baguio, 306 SCRA 497. (1999]). since the rule requires personal
knowledge by the party executing the certification, unless counsel gives a good reason why he is not
able to secure his clients’ signatures and shows that his clients will be deprived of substantial Justice
{Ortiz v. Court of Appeals, 299 SCRA 708,11998]) or unless he is authorized to sign It by his clients
through a special power of attorney. d. Effect of the signature of counsel in a pleading Q: (1996 Bar
Question) What is the significance of a lawyer’s signature in the pleadings? - The signature of a lawyer
constitutes a certification by him that he has read the pleading; that to the best of his knowledge,
information and belief there is good ground to support it; and that it is not interposed for delay. (Sec. 5
of Rule 7) Manner of making allegations Condition precedent Fraud, mistake, malice, intent, knowledge
and other condition of the mind, judgments, official documents or acts Q: (1996 Bar Question) The
complaint alleged that the defendant acted in bad faith, arbitrarily, illegally, wrongfully, and in violation
of law. However, it did not contain any averment of facts showing that defendant's acts were done in
the manner alleged. Does the complaint state a cause of action? Explain. X brought an action against Y
for the annulment of the sale of certain shares of stock. After the case was decided in favor of X, he filed
another action for the recovery of the dividends that had already accrued when the first action was
filed. Is the second action for the recovery of the dividends proper? - No, because it does not state the
ultimate facts constituting the plaintiffs cause of action. The allegations that the defendant acted in bad
faith, arbitrarily, illegally, wrongfully and in violation of the law are mere conclusions of fact or
conclusions of law. Alternative Answer: Yes, if the complaint alleges ultimate facts and states that the
acts were done in bad faith, arbitrarily, illegally, wrongfully and in violation of the law. The rule allows
malice, intent, knowledge or other condition of the mind to be averred generally. (Sec. 5 of Rule 8) No,
because the recovery of the dividends is part of the cause of action for the annulment of the sale of
certain shares of stock and should have been claimed in the first action. The second action constituted
splitting a single cause of action.

Pleading an actionable document Q: On August 13, 2008, A, as shipper and consignee, loaded on the
M/V Atlantis in Legaspi City 100,000 pieces of Century eggs. The shipment arrived in Manila totally
damaged on August 14, 2008. A filed before the Metropolitan Trial Court (MeTC)of Manila a complaint
against B Super Lines, Inc. (B Lines), owner of the M/V Atlantis, for recovery of damages amounting to
P167,899. He attached to the complaint the Bill of Lading. The MeTC denied the Motion in question A. B
Lines thus filed an Answer raising the defense that under the Bill of Lading it issued to A, its liability was
limited to Pl0, 000. At the pre-trial conference, B Lines defined as one of the issues whether the
stipulation limiting its liability to Pl0, 000 binds A. A countered that this was no longer in issue 1l.S B
Lines had jailed to deny under oath the Bill of Lading. Which of the parties is correct? Explain. (3%) (2010
Bar Question) - The Contention of B is correct: A’s contention is wrong. It was A who pleaded the Bill of
Lading as an actionable document where the stipulation limits B's liability to A to P10, 000.00 only. The
issue raised by B does not go against or impugn the genuineness and due execution of the Bill of Lading
as an actionable document pleaded by A, but invokes the binding effect of said stipulation. The oath is
not required of B, because the issue raised by the latter does not impugn the genuineness and due
execution of the Bill of Lading. Q: Modesto sued Ernesto for a sum of money, claiming that the latter
owed him PImillion, evidenced by a promissory note, quoted and attached to the complaint. In his
answer with counterclaim, Ernesto alleged that Modesto coerced him into signing the promissory note,
but that it is Modesto who really owes him PI.5-million. Modesto filed an answer to Ernesto’s
counterclaim admitting that he owed Ernesto, but only in the amount of PO.5-million. At the pretrial,
Modesto marked and identified Ernesto’s promissory note. He also marked and identified receipts
covering payments he made to Ernesto, to the extent of PO.5-million, which Ernesto did not dispute.
After pre-trial, Modesto filed a motion for judgment on the pleadings, while Ernesto filed a motion for
summary judgment on his counterclaim. Resolve the two motions with reasons. (5%) (2009 Bar
Question) - Modesto’s motion for judgment on the pleadings should be denied. While it is true that
under the actionable document rule, Ernesto’s failure to deny under oath the promissory note in his
answer amounted to an implied admission of its genuineness and due execution, his allegation in his
answer that he was coerced into signing the promissory note tendered an issue which should be tried.
The issue of coercion is not inconsistent with the due execution and genuineness of the instrument.
Thus, Ernesto’s failure to deny the genuineness of the promissory note cannot be considered a waiver to
raise the issue that he was coerced in signing the same. Said claim of coercion may also be proved as an
exception to the Parol Evidence Rule. - On the other hand, Ernesto’s motion for summary judgment may
be granted. Modesto’s answer to Ernesto’s counterclaim — that he owed the latter a sum less than
what was claimed — amounted to an admission of a material fact and if the amount thereof could
summarily be proved by affidavits, deposition, etc., without the need of going to trial, then no genuine
issue of fact exists.

Q: In his answer to the complaint, Mario Reyes alleged that he does not owe Norma Alajar any sum of
money, and that he executed the promissory note only to enable Alajar to show the same to her
husband to explain the disappearance of the amount from the conjugal funds as Norma Alajar lost the
same in the casino. The answer is not verified. At the trial, the lawyer of Norma Alajar objected to the
testimony of Mario Reyes, as to his accommodation story because, as the answer is not verified, he is
deemed to have admitted the genuineness and due execution of the promissory note. Decide on the
objection with reasons. (1990 Bar Question - Objection overruled. A verified answer is necessary in
denying the genuineness and due execution of the promissory note on which the action is based.
However, the defense of Mario Reyes does not dispute the genuineness or due execution of the
promissory note. His defense of want of consideration, that he executed the promissory note only to
enable Alajar to explain the loss of conjugal funds does not require a verified answer. (Sec. 8 of Rule 8)
Specific denials (Effect of failure to make specific denials, When a specific denial requires an oath)
Plaintiff Manny said in his complaint: "3. On March 1, 2001 defendant Letty borrowed P1 million from
plaintiff Manny and made a promise to pay the loan within six months." In her answer, Letty alleged:
"Defendant Letty specifically denies the allegations in paragraph 3 of the complaint that she borrowed
P1 million from plaintiff Manny on March 1, 2001 and made a promise to pay the loan within six
months." Is Letty’s denial sufficient? (2011 BAR) No, since it fails to set forth the matters defendant
relied upon in support of her denial. Q: In a complaint for recovery of real property, the plaintiff averred,
among others, that he is the owner of the said property by virtue of a deed of sale executed by the
defendant in his favor. Copy of the deed of sale was appended to the complaint as Annex “A" thereof. In
his unverified answer, the defendant denied the ^legation concerning the sale of the property In
question, as Well as the appended deed of sale, for lack of knowledge or information sufficient to form a
belief as to the truth thereof. Is it proper for the court to render judgment without trial? Explain. (4%)
(2005 Bar Question) - Defendant cannot deny the sale of the property for lack of knowledge or
information sufficient to form a belief as to the truth thereof. The answer, being defective, amounts to
an admission. (Phil. Advertising Counselors, Inc. v. Revilla, 52 SCRA 246 [19731; Sec. 10, Rule 8,1997
Rules of Civil Procedure). Moreover, the genuineness and due execution of the deed of sale can only be
denied by the defendant under oath and failure to do so is also an admission of the deed. (Sec. 8, 1997
Rules of Civil Procedure). Hence, a judgment on the pleadings can be rendered by the court without
need of a trial. Q: In his complaint for foreclosure of mortgage to which was duly attached a copy of the
mortgage deed,, plain tiff PP alleged inter alia as follows: (1) that defendant DD duly executed the
mortgage deed, copy of which is Annex “A" of the complaint and made an integral part thereof; and (2)
that to prosecute his complaint, plaintiff

contracted a lawyer, CC, for a fee of P50.000. In his answer, defendant alleged, inter alia, that he had no
knowledge of the mortgage deed, and he also denied any liability for plaintiffs contracting with a lawyer
for a fee. Does defendant’s answer as to plaintiff’s allegation no. 1 as well as no. 2 sufficiently raise an
issue of fact? Reason briefly. (5%) (2004 Bar Question) - As to plaintiffs allegation no. 1. defendant does
not sufficiently raise an issue of fact, because he cannot allege lack of knowledge of the mortgage deed
since he should have personal knowledge as to whether he signed it or not and because he did not deny
under oath the genuineness and due execution of the mortgage deed, which is an actionable document.
As to plaintiff’s allegation no. 2, defendant did not properly deny liability as to plaintiffs contracting with
a lawyer for a fee. He did not even deny for lack of knowledge. Q: X sued Y, a shipping co., based on a
contract of carriage contained in a bill of lading. The bill of lading, an actionable document, was pleaded
and attached to the complaint. Y, without alleging anything else, merely assailed the validity of the
agreement in the bill of lading for being contrary to public policy. After presenting evidence, X did not
formally offer for admission the bill of lading. The court ruled for X. On motion for reconsideration. Y
alleged that X failed to prove his action as the bill of lading was not formally offered. Decide. (1996 Bar
Question) - Motion for reconsideration is denied. There was no need to formally offer for admission the
bill of lading, because the failure of Y to deny under oath the genuineness and due execution of the bill
of lading which was an actionable document constituted an admission thereof. (Sec. 8 of Rule 8) Q: In an
action for recovery of a sum of money, the plaintiff averred in the complaint that “on January 15, 1990,
the defendant obtained a loan from the plaintiff in the sum of P100,000.00 which he promised to pay to
the latter on or before July 15,1990 plus interest thereon at the rate of 18% per annum from January
15,1990 until fully paid" and that “the aforesaid loan has long been overdue but despite repeated
demands, the defendant failed and refused, and still fails and refuses to pay to the plaintiff the aforesaid
sum of P100,000.00 and the accrued interest." Answering the complaint, the defendant denied the
aforequoted averments and gave the reason for the denial his lack of knowledge or information
sufficient to form a belief as to the truth of said averments. What is the effect of such denial? With such
form of denial, what course of action may be availed of by the plaintiff? Explain. (1993 Bar Question) -
The denial of the averments of the complaint claiming lack of knowledge or information sufficient to
form a belief as to the truth of said averments is not a sufficient specific denial. The allegation in the
complaint, that the defendant obtained a loan from the plaintiff and failed and refused to pay the same,
is so plainly and necessarily within the defendant’s knowledge that his claim of ignorance must be
palpably not true. - Since the answer tenders no issue or otherwise admits the material allegations of
the complaint, the plaintiff may properly file a motion for Judgment on the pleadings.

Effect of failure to plead Failure to plead defenses and objections Q: (2000 Bar Question) a) X files a
complaint in the Regional Trial Court for the recovery of a sum of money with damages against Y.Y files
his answer denying liability under the contract of sale and praying for the dismissal of the complaint on
the ground of lack of cause of action because the contract of sale was superseded by a contract of lease,
executed and signed by X and Y two weeks after the contract of sale was executed. The contract of lease
was attached to the answer. X does not file a reply. What is the effect of the non-filing of a reply?
Explain. (3%) a) A reply is generally optional. If it is not filed, the new matters alleged in the answer are
deemed controverted. (Sec. 10 of Rule 6. 1997 Rules of Civil Procedure). However, since the contract of
lease attached to the answer is the basis of the defense, by not filing a reply denying under oath the
genuineness and due execution of said contract, the plaintiff is deemed to have admitted the
genuineness and due execution thereof. Failure to plead a compulsory counterclaim and cross-claim Q:
(2000 Bar Question) For failure of KJ to file an answer within the reglementary period, the Court, upon
motion of LM, declared KJ in default. In due time, KJ filed an unverified motion to lift the order of default
without an affidavit of merit attached to it. KJ however attached to the motion his answer under oath,
stating in said answer his reasons for his failure to file an answer on time, as well as his defenses. Will
the motion to lift the order of default prosper? Explain. (3%) - Yes, there is substantial compliance with
the rule. Although the motion is unverified, the answer attached to the motion is verified. The answer
contains what the motion to lift the order of default and the affidavit Of merit should contain, which are
the reasons for movant's failure to answer as well as his defenses. Default When a declaration of default
is proper A judgment by default can be issued despite an Answer being filed in: (2012 BAR) cases where
a party willfully fails to appear before the officer who is to take his deposition. Q: Circe filed with the RTC
a complaint for the foreclosure of real estate mortgage against siblings Scylla and Charybdis, co-owners
of the property and co- signatories to the mortgage deed. The siblings permanently reside in Athens,
Greece. Circe tipped off Sheriff Pluto that Scylla is on a balikbayan trip and is billeted at the Century
Plaza Hotel in Pasay City. Sheriff Pluto went to the hotel and personally served Scylla the summons, but
the latter refused to receive summons for Charybdis as she was not authorized to do so. Sheriff Pluto
requested Scylla for the email address and fax number of Charybdis which the latter readily gave. Sheriff
Pluto, in his return of the summons, stated that "Summons for Scylla was served personally as shown by
her signature on the receiving copy of the summons. Summons on Charybdis was served pursuant to the
amendment of Rule 14 by facsimile transmittal of the summons and

complaint on defendant's fax number as evidenced by transmission verification report automatically

generated by the fax machine indicating that it was received by the fax number to which it was sent on
the date and time indicated therein." Circe, sixty (60) days after her receipt of Sheriff Pluto's return, filed
a Motion to Declare Charybdis in default as Charybdis did not file any responsive pleading. (2015) Should
the court declare Charybdis in default? - NO, the court should not declare Charybdis in default because
there was no proper service of summons. Section 12, Rule 14 of the Rules of Court applies only to a
foreign private juridical entity that is not registered in the Philippines and has no resident agent in the
country, and not to individuals (A.M. No. 11-36-SC, March 15, 2011). The service of summons by
facsimile under said rule is, therefore, defective. - A foreclosure of real estate mortgage is a quasi in rem
action, thus, the court can render judgments as long as it has jurisdiction over the res and any of the
modes of extra- territorial service of summons under Section 15 of Rule 14 is complied with prior leave
of court. There is, unfortunately, no showing in the problem that a prior leave of court was obtained
before resorting to extraterritorial service of summons; hence, the service of summons is defective. Q:
Scylla seasonably filed her answer setting forth therein as a defense that Charybdis had paid the
mortgage debt. On the premise that Charybdis was properly declared in default, what is the effect of
Scylla's answer to the complaint? - Assuming that Charybdis was properly declared in default, the court
shall try the case against all the defendants upon the answer filed by Scylla, and render judgment upon
the evidence presented (Sec. 3[c], Rule 9). In a complaint filed by the plaintiff, what is the effect of the
defendant’s failure to file an answer within the reglementary period? (2013 BAR) The court may declare
the defendant in default but only upon motion of the plaintiff, with notice to the defendant, and upon
presentation of proof of the defendant’s failure to answer. Gerry sued XYZ Bus Co. and Rico, its bus
driver, for injuries Gerry suffered when their bus ran off the road and hit him. Of the two defendants,
only XYZ Bus Co. filed an answer, alleging that its bus ran off the road because one of its wheels got
caught in an open manhole, causing the bus to swerve without the driver’s fault. Someone had stolen
the manhole cover and the road gave no warning of the danger it posed. On Gerry’s motion and over
the objection of XYZ Bus Co., the court declared Rico, the bus driver, in default and rendered judgment
ordering him to pay P50,000 in damages to Gerry. Did the court act correctly? (2011 BAR) No, since the
court should have tried the case against both defendants upon the bus company’s answer. Q: (1999 Bar
Question) When may a party be declared in default? (2%) - A party may be declared in default when he
fails to answer within the time allowed therefor, and upon motion of the claiming party with notice to
the defending party, and proof of such failure. (Sec. 3, Rule 9 of the 1997 Rules)

Q: May a party who is present at the pre-trial of a civil case and assisted by counsel still be declared non-
suited or as in default? Explain. (1989 Bar Question) - No, because the only ground to declare a party
non-suited or considered as in default at the pre-trial is failure to appear thereat. Tina Guerrero filed
with the Regional Trial Court of Biñan, Laguna, a complaint for sum of money amounting to PI Million
against Carlos Corro. The complaint alleges, among others, t1 at Carlos borrowed from Tina the said
amount evidenced by a promissory note signed by Carlos and his wife, jointly and severally. Carlos was
served with summons which was received by Linda, his secretary. However, Carlos failed to file an
answer to the complaint within the 15- day reglamentary period. Hence, Tina filed with the court a
motion to declare Carlos in default and to allow her to present evidence ex parte. Five days thereafter,
Carlos filed his verified answer to the complaint, denying under oath the genuineness and due execution
of the promissory note; and contending that he has fully paid his loan with interest at 12% per annum.
(2006 Bar Question) If you were the judge, will you grant Tina’s motion to declare Carlos in default?
2.5% - No, I will not grant Tina’s motion to declare Carlos in default. Considering that there was no
proper service of summons, the reglementary period to file a responsive pleading was not tolled. Carlos
was not duty bound to submit an Answer. Moreover, Carlos submitted a verified answer. It is better to
decide a case on the merits than on sheer technicality. Q: (2002 Bar Question) The plaintiff sued the
defendant in the RTC for damages allegedly caused by the latter’s encroachment on the plaintiff's lot. In
his answer, the defendant denied the plaintiff’s claim and alleged that it was the plaintiff who in fact had
encroached on his (defendant’s) land. Accordingly, the defendant counterclaimed against the plaintiff
for damages resulting from the alleged encroachment on his lot. The plaintiff filed an ex parte motion
for extension of time to answer the defendant's counterclaim, but the court denied the motion on the
ground that it should have been set for hearing. On the defendant’s motion, therefore, the court
declared the plaintiff in default on the counterclaim. Was the plaintiff validly declared in default? Why?
(5%) - No, the plaintiff was not validly declared in default. A motion for extension of time to file an
answer may be filed ex parte and need not be set for hearing. ALTERNATIVE ANSWER: The general rule
is that a counterclaim must be answered within ten (10) days from service. (Rule 11, sec. 4). However, a
counterclaim that raises issues which are deemed automatically joined by the allegations of the
Complaint need not be answered [Gojo v. Goyaia, 35 SCRA 557 (1970)]. In this case, the defendant’s
counterclaim is a compulsory counterclaim which arises out or is connected with the transaction and
occurrence constituting the subject matter of the plaintiff’s claim. It raises the same issue of who
encroached on whose land. Hence, there was no need to answer the counterclaim. Q: Tina Guerrero
filed with the Regional Trial Court of Biñan, Laguna, a complaint for sum of money amounting to PI
Million against Carlos Corro. The complaint alleges,

among others, t1 at Carlos borrowed from Tina the said amount evidenced by a promissory note signed
by Carlos and his wife, jointly and severally. Carlos was served with summons which was received by
Linda, his secretary. However, Carlos failed to file an answer to the complaint within the 15- day
reglamentary period. Hence, Tina filed with the court a motion to declare Carlos in default and to allow
her to present evidence ex parte. Five days thereafter, Carlos filed his verified answer to the complaint,
denying under oath the genuineness and due execution of the promissory note; and contending that he
has fully paid his loan with interest at 12% per annum. (2006 Bar Question) If you were the judge, will
you grant Tina’s motion to declare Carlos in default? 2.5% - No, I will not grant Tina’s motion to declare
Carlos in default. Considering that there was no proper service of summons, the reglementary period to
file a responsive pleading was not tolled. Carlos was not duty bound to submit an Answer. Moreover,
Carlos submitted a verified answer. It is better to decide a case on the merits than on sheer technicality.
Effect of an order of default, Effect of a partial default Being declared in default does not constitute a
waiver of all rights. However, the following right is considered waived: (2012 BAR) file a motion for new
trial Q: (1999 Bar Question) What is the effect of an Order of Default? (2%) x x x - The effect of an Order
of Default is that the court may proceed to render judgment granting the claimant such relief as his
pleading may warrant unless the court in its discretion requires the claimant to submit evidence (Id.)
The party in default cannot take part in the trial but shall be entitled to notice of subsequent
proceedings. Relief from an order of default, Extent of relief A defendant declared in default may, after
judgment but before finality, file a: (2012 BAR) Motion for Reconsideration; Q: (1999 Bar Question) For
failure to seasonably file his Answer despite due notice, A was declared in default in a case instituted
against him by B. The following day, A’s mistress who is working as a clerk in the sala of the Judge before
whom his case is pending, informed him of the declaration of default. On the same day, A presented a
motion under oath to set aside the order of default on the ground that his failure to answer was due to
fraud and he has a meritorious defense. Thereafter, he went abroad. After his return a week later, with
the case still undecided, he received the order declaring him in default. The motion to set aside default
was opposed by B on the ground that it was filed before A received notice of his having been declared in
default, citing the rule that the motion to set aside may be made at anytime after notice but before
judgment. Resolve the Motion. (2%) - Assuming that the motion to set aside complies with the other
requirements of the rule, it should be granted although such a motion may be made after notice

but before judgment (Sec. 3[B] of Rule 9), with more reason may it be filed after discovery even before
receipt of the order of default. Q: What are the available remedies of a party declared in default: Before
the rendition of Judgment; (1%] After judgment but before its finality; and |2%) After finality of
judgment? [2%] (1998 Bar Question) - The available remedies of a party declared in default are as
follows: Before the rendition of judgment (a) he may file a motion under oath to set aside the order of
default on the grounds of fraud, accident, mistake or excusable negligence and that he has a meritorious
defense (Sec. 3[b), Rule 9, 1997 Rules of Civil Procedure); and if it is denied, he may move to reconsider,
and if reconsideration is denied, he may file the special civil action of certiorari for grave abuse of
discretion tantamount to lack or excess of the lower court's jurisdiction. (Sec. 1, Rule 65, Rules of Court)
or (b) he may file a petition for certiorari If he has been illegally declared in default, e.g. during the
pendency of his motion to dismiss or before the expiration of the time to answer. (Matute us. Court of
Appeals, 26 SCRA768; Acosta-Ofalia vs. Sundiam, 85 SCRA 412.) - After judgment but before its finality,
he may file a motion for new trial on the grounds of fraud, accident, mistake, excusable negligence, or a
motion for reconsideration on the ground of excessive damages, insufficient evidence or the decision or
final order being contrary to law (See. 2, Rule 37, 1997 Rules of Civil Procedure); and thereafter. If the
motion is denied, appeal la available under Rules 40 or 41, whichever is applicable. - After finality of the
Judgment, there are three ways to assail the Judgment, which are: (a) a petition for relief under Rule 38
on the grounds of fraud, accident, mistake or excusable negligence; (b) annulment of Judgment under
Rule 47 for extrinsic fraud or lack of Jurisdiction; or (c) certiorari if the Judgment Is void on Its face or by
the judicial record. (Balangcad us. Justices qf the Court of Appeals, G.R. No. 83888, February 12, 1992,
206 SCRA 171 and other cases). Q: Jojie filed with the Regional Trial Court of Laguna a complaint for
damages against Joe. During the pre-trial, Jojie and her counsel (sic) failed to appear despite notice to
both of them. Upon oral motion of Jojie, Joe was declared as in default and Jojie was allowed to present
her evidence ex parte. Thereafter, the court rendered its Decision in favor of Jojie. Joe hired Jose as his
counsel. What are the remedies available to him? Explain. 5% (2006 Bar Question) - Under the present
rule, there can be no judgment by default by mere failure of the defendant to appear in the pre-trial.
The only consequence of such failure to appear is that the plaintiff can present his evidence ex parte and
the court may render judgment on the basis thereof (Sec. 5, Rule 18 of the 1997 Revised Rules of Civil
Procedure). The following are the remedies available to Joe: motion for reconsideration; motion for new
trial; appeal; petition for relief from a judgment of default; annulment of judgment under Rule 47; and
certiorari under Rule. 65.

Q: Mario was declared in default but before judgment was rendered, he decided to file a motion to set
aside the order of default. What should Mario state in his motion in order to Justify the setting aside of
the order of default? (3%) In what form should such motion be? (2%) (2001 Bar Question) - In order to
justify the setting aside of the order of default, Mario should state in his motion that his failure to
answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious
defense. [Sec. 3(b) of Rule9,1997 Rules of Civil Procedure). - The motion should be under oath. (Id.)
Actions where default is not allowed Q: Defendant was declared in default by the Regional Trial Court
(KTC). Plaintiff was allowed to present evidence in support of his complaint. Photocopies of official
receipts and original copies of affidavits were presented in court, identified by plain tiff on the witness
stand and marked as exhibits. Said documents were offered by plaintiff and admitted in evidence by the
court on the basis of which the RTC rendered judgment in favor of the plaintiff, pursuant to the relief
prayed for. Upon receipt of the judgment, defendant appeals to the Court of Appeals claiming that the
judgment is not valid because the RTC based its judgment on mere photocopies and affidavits of persons
not presented in court. Is the claim of defendant valid? Explain. (3%) Will your answer be the same if the
photocopies of official receipts and photocopies of affidavits were attached to the position paper
submitted by plaintiff in an action for unlawful detainer filed with the Municipal Trial Court on which
basis the court rendered Judgment in favor of plaintiff? Explain. (2%) (2000 Bar Question) - The claim of
defendant is not valid because under the 1997 Rules, reception of evidence is not required. After a
defendant is declared in default, the court shall proceed to render Judgment granting the claimant such
relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit
evidence, which may be delegated to the clerk of court. (Sec. 3, Rule 9, 1997 Rules of Civil Procedure) -
The claim of defendant is valid, because although summary procedure requires merely the submission
of position papers, the evidence submitted with the position paper must be admissible in evidence. (Sec.
9 of the Revised Rule on Summary Procedure). Photocopies of official receipts and affidavits are not
admissible without proof of loss of the originals. (Sec. 3 of Rule 130) Q: At a pre-trial hearing in the
Regional Trial Court of which the plaintiff and the defendant, as well as their respective attorneys of
record were duly notified, only plaintiff’s attorney appeared but without the requisite power of attorney
authorizing him to fully and effectively represent plaintiff at the pre-trial hearing. Because of the
absence of the defendant and his counsel, plaintiff’s attorney moved in open court to have the
defendant declared as in default. Under the circumstances, what should the court do? Discuss fully.
(1992 Bar Question) - The court should deny the motion to have the defendant declared as in default
and dismiss the action on the ground that only the plaintiff’s attorney appeared but without the
requisite power of attorney to fully and effectively represent

plaintiff at the pre-trial hearing. [Home Insurance Company vs. U.S. Lines Co., 21 SCRA 865) Q: May a
party who is present at the pre-trial of a civil case and assisted by counsel still be declared non-suited or
as in default? Explain. (1989 Bar Question) - No, because the only ground to declare a party non-suited
or considered as in default at the pre-trial is failure to appear thereat. Filing and service of pleadings X
filed a complaint with the RTC through ABC, a private letter forwarding agency. The date of filing of the
complaint shall be: (2012 BAR) the date of receipt by the Clerk of Court. Modes of service (Personal
service, Service by mail, Substituted service) Atty. X fails to serve personally a copy of his motion to Atty.
Y because the office and residence of Atty. Y and the latter's client changed and no forwarding addresses
were given. Atty. X's remedy is to: (2012 BAR) Deliver copy of the motion to the clerk of court with proof
of failure to serve; Q: “A” filed before the Regional Trial Court in Makati, Metro Manila, an action for
damages against “B” for a tort alledgedly committed by “B” while “B” was on a vacation in the
Philippines when he temporarily lived at the residence of his brother in Makati. The summons was
served on “BY brother. “B’s” lawyer filed a motion to dismiss on behalf of “B” and asserted that “B” was
not a resident of and could not be found in 'the Philippines so that the court cannot acquire jurisdiction
over his person. The motion also alleged that anyway the action has prescribed the further asserted a
claim for litigation expenses. Assume that “B’s" lawyer had been authorized by “B” to represent him. If
you were the judge, will you dismiss the case on the ground of the court’s lack of jurisdiction over the
person of “B”? Explain. (1987 Bar Question) - No. Although substituted service of summons on “B’s”
brother was not valid inasmuch as “B” was not a resident of the Philippines, the motion to dismiss filed
by “B’s” lawyer , constituted a voluntary appearance, inasmuch as it not only questioned the jurisdiction
of the court over his person, but also alleged prescription and a claim for litigation expenses. (Note: The
claim for litigation expenses may properly be made In a counterclaim.) Which of the following is NOT
REGARDED as a sufficient proof of personal service of pleadings? (2011 BAR) Registered mail receipt.
Amendment as a matter of right Q: Arturo lent PI Million to this friend Robert on the condition that
Robert execute a promissory note for the loan and a real estate mortgage over his property located in
Tagaytay City. Robert complied. In his promissory note dated September 20, 2006, Robert undertook to
pay the loan within a year from its date at 12% per annum

interest. In June 2007, Arturo requested Robert to pay ahead of time but the latter refused and insisted
on the agreement. Arturo issued a demand letter and when Robert did not comply, Arturo filed an
action to foreclose the mortgage. Robert moved to dismiss the complaint for lack of cause of action as
the debt was not yet due. The resolution of the motion to dismiss was delayed because of,the
retirement of the judge. a) On October 1, 2007, pending resolution of the motion to dismiss, Arturo filed
an amended complaint alleging that Robert’s debt had in the meantime become due but that Robert still
refused to pay. Should the amended complaint be allowed considering that no answer has been filed?
(3%) (2008 Bar Question) - a) No. Even though an amendment of the complaint before answer is a
matter of right, lack of a cause of action at the commencement of a suit is not cured by the accrual of a
cause of action subsequent thereto, such that an amendment setting up the after- accrued cause of
action is not allowed Amendments by leave of court Q: After an answer has been filed, can the plaintiff
amend his complaint, with leave of court, by changing entirely the nature of the action? (2003 Bar
Question) - Yes. the present rules allow amendments substantially altering the nature of the cause of
action. This should only be true, however, when the substantial change or alteration in the cause of
action or defense shall serve the higher interests of substantial justice and prevent delay and equally
promote the laudable objective of the rules which is to secure a just, speedy and inexpensive disposition
of every action and proceeding. Amendments to conform to or authorize presentation of evidence With
leave of court, a party may amend his pleading if: (2012 BAR) the amendment is to conform to the
evidence. Q: In a complaint for a sum of money filed before the MM Regional Trial Court, plaintiff did
not mention or even just hint at any demand for payment made on defendant before commencing suit.
During the trial, plaintiff duly offered Exh. “A" in evidence for the stated purpose of proving the making
of extrajudicial demand on defendant to pay P500.000, the subject of the suit. Exh. “A" was a letter of
demand for defendant to pay said sum of money within 10 days from receipt, addressed to and served
on defendant some two months before suit was begun. Without objection from defendant, the court
admitted Exh. “A" in evidence. Was the court’s admission of Exh. “A” in evidence erroneous or not?
Reason. (5%) (2004 Bar Question) - The court’s admission of Exh. ‘‘A’’ in evidence is not erroneous. It
was admitted in evidence without objection on the part of the defendant. It should be treated as if it
had been raised in the pleadings. The complaint may be amended to conform to the evidence, but if it is
not so amended, it does not affect the result of the trial on this issue. (Sec. 5 of Rule 10).

Q: During trial, plaintiff was able to present, without objection on the part of defendant in an ejectment
case, evidence showing that plaintiff served on defendant a written demand to vacate the 'subject
property before the commencement of the suit, a matter not alleged or otherwise set forth in the
pleadings on file. May the corresponding pleading still be amended to conform to the evidence? Explain.
(5%) (2004 Bar Question) - Yes. The corresponding pleading may still be amended to conform to the
evidence, because the written demand to vacate, made prior to the commencement of the ejectment
suit, was presented by the plaintiff in evidence without objection on the part of the defendant. Even if
the demand to vacate was jurisdictional, still, the amendment proposed was to conform to the evidence
that was already in the record and not to confer jurisdiction on the court, which is not allowed. Failure
to amend, however, does not affect the result of the trial on these issues. (Sec. 5 of Rule 10). Q: An
information was filed, in the proper court against Arturo charging him with theft of 300 blocks of
industrial aluminum worth P999.000.00 allegedly committed “on or about the period from January 1986
to December 23,1991. Arturo filed a motion to quash the information on the ground that it was grossly
insufficient and fatally defective since there is such a great gap in the inclusive period of the alleged
commission of the offense. He is, in effect, being deprived of a reasonable opportunity to defend
himself. In resolving the motion to quash, what basic and ancillary rulings should the court make so that
it can extend to the accused optimum and adequate relief. Discuss fully. (1992 Bar Question) - The court
may grant the motion to quash on the ground that the allegation of the time of commission of the
offense is defective because the period from January 1986 to December 23. 1991, or almost six years, is
too indefinite to give the accused an opportunity to prepare-his defense; or the court may order the
amendment of the information or the submission of a bill of particulars so as to allege the actual date or
at least as near to it as possible in order not to surprise and substantially prejudice the accused. Q: A
complaint was filed by the counsel for Superior Sales (an entity without a distinct juridical personality)
against Mr. Garcia on a money claim for goods delivered. Mr. Garcia did not file a motion to dismiss.
Eventually, trial was held and his liability was established through several invoices, each of which
uniformly- showed on its face that Mr. Tan is the proprietor of Superior Sales. After Superior Sales had
rested its case. Mr. Garcia filed a motion to dismiss on the ground that, since there is actually no person
properly suing as plaintiff, no relief can be granted by the court. On the other hand, the counsel for
Superior Sales filed a motion to amend the complaint to make it conform to the evidence, that the real
party plaintiff is Mr. Tan. The court denied said motion on the ground that it was filed too late and
instead, dismissed the case. Did the court act correctly? Explain. (1992 Bar Question) \ - No, the court
erred in denying the motion to amend the complaint and dismissing the case. The mistake in the name
of the plaintiff (which should have been Mr. Tan instead of Superior Sales which had no juridical
personality) was cured by the presentation of evidence (without objection) that Mr. Tan is the
proprietor of

Superior Sales. Hence the amendment of the complaint to conform to the evidence was proper, and
even if no amendment was made, it would not affect the result of the trial on the issue of the real party
in interest. (Sec. 5 of Rule 10) Effect of amended pleading Q: Upon termination of the pre-trial, the judge
dictated the pretrial order in the presence of the parties and their counsel, reciting what had transpired
and defining three (3) issues to be tried. If, immediately upon receipt of his copy of the pretrial order,
plaintiffs counsel should move for its amendment to include a fourth (4th) triable issue which he
allegedly inadvertently failed to mention when the judge dictated the order. Should the motion to
amend be granted? Reasons. (2%) (2009 Bar Question) - Depending on the merit of the issue sought to
be brought in by the amendment, the motion to amend may be granted upon due hearing. It is a policy
of the Rules that parties should be afforded reasonable opportunity to bring about a complete
determination of the controversy between them, consistent with substantial justice. With this end in
view, the amendment before trial may be granted to prevent manifest injustice. The matter is addressed
to the sound and judicious discretion of the trial court. Suppose trial had already commenced and after
the plaintiffs second witness had testified, the defendant’s counsel moves for the amendment of the
pre-trial order to include a fifth (5th) triable issue vital to his client’s defense. Should the motion be
granted over the objection of plaintiffs counsel? Reasons. (3%) (2009 Bar Question) - The motion may be
denied since trial had already commenced and two witnesses for the plaintiff had already testified.
Courts are required to issue pretrial Order after the pre-trial conference has been terminated and
before trial begins, precisely because the reason for such Order is to define the course of the action
during the trial. Where trial had already commenced, more so the adverse party had already presented
witnesses Q: Arturo lent PI Million to this friend Robert on the condition that Robert execute a
promissory note for the loan and a real estate mortgage over his property located in Tagaytay City.
Robert complied. In his promissory note dated September 20, 2006, Robert undertook to pay the loan
within a year from its date at 12% per annum interest. In June 2007, Arturo requested Robert to pay
ahead of time but the latter refused and insisted on the agreement. Arturo issued a demand letter and
when Robert did not comply, Arturo filed an action to foreclose the mortgage. Robert moved to dismiss
the complaint for lack of cause of action as the debt was not yet due. The resolution of the motion to
dismiss was delayed because of,the retirement of the judge. On October 1, 2007, pending resolution of
the motion to dismiss, Arturo filed an amended complaint alleging that Robert’s debt had in the
meantime become due but that Robert still refused to pay. Should the amended complaint be allowed
considering that no answer has been filed? (3%) (2008 Bar Question) - No. Even though an amendment
of the complaint before answer is a matter of right, lack of a cause of action at the commencement of a
suit is not cured by the accrual of a cause of action subsequent thereto, such that an amendment

setting up the after-accrued cause of action is not allowed (Swagman Hotels And Travel, Inc. v. Court of
Appeals, 455 SCRA 175 [2005]). Would your answer be different had Arturo filed instead a supplemental
complaint stating that the debt became due after the filing of the original complaint (2%) (2008 Bar
Question) - No, because a complaint whose cause of action has not accrued yet when filed, does not
gain any standing in court such that no amendment, whether by amended or supplemental pleading,
can cure the deficiency. The subsequent cause of action that arose may only be subject of a different
suit but cannot be pleaded as a supplement to the complaint where no cause of action exists. Simply
put, no amended or supplemental complaint is allowed Q: On May 12. 2005, the plaintiff filed a
complaint in the Regional Triad Court of Quezon City for the collection of P250,000.00. The defendant
filed a motion to dismiss the complaint on the ground that the court had no jurisdiction over the action
since the claimed amount of P250.000.00 is within the exclusive jurisdiction of the Metropolitan Trial
Court of Quezon City. Before the court could resolve the motion, the plaintiff, without leave of court,
amended his complaint to allege a new cause of action consisting in the inclusion of an additional
amount of P200,000.00, thereby increasing his total claim to P450,000.00. The plaintiff thereafter filed
his opposition to the motion to dismiss, claiming that the Regional Trial Court had jurisdiction over his
action. Rule on the motion of the defendant with reasons. (4%) (2005 Bar Question) - The motion to
dismiss should be denied. A plaintiff is entitled as a matter of right to amend the complaint before a
responsive pleading is served, without leave of court, even if there is a pending motion to dismiss. While
a complaint cannot be amended to confer jurisdiction on a court where there was none the rule applies
where a responsive pleading has already been filed because in such a case, amendment should be by
leave of court under Section 3 Rule 10. If the court is without jurisdiction, it has no jurisdiction to grant
leave of court. A motion to dismiss is not a responsive pleading, therefore, amendment is a matter of
right Q: X, an illegitimate child of Y, celebrated her 18th birthday on May 2, 1996. A month before her
birthday. Y died. The legitimate family of Y refused to recognize X as an illegitimate child of Y. After
countless efforts to convince them, X filed on April 25, 2000 an action for recognition against Z, wife, of
Y. After Z filed her answer on August 14, 2000, X filed a motion for leave to file an amended complaint
and a motion to admit the said amended complaint impleading the three (3) legitimate children of Y.
The trial court admitted the amended complaint on August 22, 2000. What is the effect of the admission
of the amended complaint? Has the action of X prescribed? Explain. (5%) (2000 Bar Question) - No. The
action filed on April 25, 2000 is still within the four-year prescriptive period which started to run on May
2, 1996. The amended complaint impleading the three legitimate children, though admitted on August
22, 2000 beyond the four-year prescriptive period, retroacts to the date of filing of the original

complaint. Amendments impleading new defendants retroact to the date of the filing of the complaint
because they do not constitute a new cause of action. (Verzosa u. Court of Appeals, 299 SCRA 100
(1938]). Q: Michelle sued Juliet for reinvindication for the recovery of land. After the hearing but
previous to the rendition-of judgment, Michelle amended her complaint making the prin-cipal action
one for rescission of contract. Juliet objected. If you were the judge, would you allow the amendment?
(1994 Bar Question) Answer: - No. I would not allow the amendment because the amendment of the
complaint from recovery of land to one for rescission of contract is a substantial change in the cause of
action which may not be done alter the trial and previous to the rendition of judgment. Summons
Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem Summons
was served on "MCM Theater," a business entity with no juridical personality, through its office manager
at its place of business. Did the court acquire jurisdiction over MCM Theater’s owners? (2011 BAR) Yes,
an unregistered entity like MCM Theater may be served with summons through its office manager. Q:
Summons was issued by the MM Regional Trial Court and actually received on time by defendant from
his wife at their residence. The sheriff earlier that day had delivered the summons to her at said
residence because defendant was not home at the time. The sheriff’s return or proof of service filed
with the court in sum states that the summons, with attached copy of the complaint, was served on
defendant at his residence thru his wife, a person of suitable age and discretion then residing therein.
Defendant moved to dismiss on the ground that the court had no jurisdiction over his person as there
was no valid service of summons on him because the sheriffs return or proof of service does not show
that the sheriff first made a genuine attempt to serve the summons on defendant personally before
serving it thru his wife. Is the motion to dismiss meritorious? What is the purpose of summons and by
whom may it be served? Explain. (5%) (2004 Bar Question) - The motion to dismiss is not meritorious
because the defendant actually received the summons on time from his wife. Service on the wife was
sufficient It is the duty of the court to look into the sufficiency of the service. The sheriffs negligence in
not stating in his return that he first made a genuine effort to serve the summons on the defendant,
should not prejudice the plaintiff. - The purpose of the summons is to inform the defendant of the
complaint filed against him and to enable the court to acquire jurisdiction over his person. It may served
by the sheriff or his deputy or any person authorized by the court. Proof of service of summons shall be
through the following, except : (2012 BAR) written admission of the party served. Voluntary appearance

Q: While the trial was ongoing, the lawyer of Mario Reyes discovered that there was improper service of
summons, the summons having been sent by registered mail. He filed a motion to dismiss on the ground
that the court had not acquired jurisdiction over the person of Mario Reyes. Should the said motion be
granted? Explain your answer. (1990 Bar Question) Answer: - No, because by filing his answer and going
to trial without previous objection to the lack of jurisdiction over his person, Mario Reyes is deemed to
have waived the defect of improper service of summons. (Rule 14) Q: (1999 Bar Question) What is the
effect of absence of summons on the judgment rendered in the case? (2%) When additional defendant
is impleaded in the action, is it necessary that summons be served upon him? Explain; (2%) Is summons
required to be served upon a defendant who was substituted for the deceased? Explain. (2%) A sued XX
Corporation (XXC), a corporation organized under Philippine laws, for specific performance when the
latter failed to deliver T-shirts to the former as stipulated in their contract of sale. Summons was served
on the corporation’s cashier and director. Would you consider service of summons on either officer
sufficient? Explain. (2%) SUGGESTED ANSWER: The effect of the absence of summons on a judgment
would make the judgment null and void because the court would not have jurisdiction over the person
of the defendant, but if the defendant voluntarily appeared before the court, his appearance is
equivalent to the service of summons. (Sec. 20, Rule 14, 1997 Rules) Yes. Summons must be served on
an additional defendant impleaded in the action so that the court can acquire jurisdiction over him,
unless he makes a voluntary appearance. No. A defendant who was substituted for the deceased need
not be served with summons because it is the court which orders him as the legal representative of the
deceased to appear and substitute the deceased. (Sec. 16 of Rule 3.) Summons on a domestic
corporation through its cashier and director are not valid under the present rules. (Sec. 11, Rule 14,
Rules of Court.) They have been removed from those who can be served with summons for a domestic
corporation. Cashier was substituted by treasurer. (Id.) Personal service Q: Tina Guerrero filed with the
Regional Trial Court of Biñan, Laguna, a complaint for sum of money amounting to PI Million against
Carlos Corro. The complaint alleges, among others, t1 at Carlos borrowed from Tina the said amount
evidenced by a promissory note signed by Carlos and his wife, jointly and severally. Carlos was served
with summons which was received by Linda, his secretary. However, Carlos

failed to file an answer to the complaint within the 15- day reglamentary period. Hence, Tina filed with
the court a motion to declare Carlos in default and to allow her to present evidence ex parte. Five days
thereafter, Carlos filed his verified answer to the complaint, denying under oath the genuineness and
due execution of the promissory note; and contending that he has fully paid his loan with interest at
12% per annum. (2006 Bar Question) Was the summons validly served on Carlos? 2.5% - No, the
summons was not validly served on Carlos. As a general rule, summons must be served on the
defendant in person. Substituted service may be resorted to only when the defendant cannot be served
personally within a reasonable time and for a justifiable reason. The return must show impossibility of
service and efforts of the Sheriff to effect personal service. Substituted service Q: Alfie Bravo filed with
the Regional Trial Court of Caloocan, a complaint for a sum of money against Charlie Delta. The claim is
for Php1.5Million. The complaint alleges that Charlie borrowed the amount from Alfie and duly executed
a promissory note as evidence of the loan. Charlie’s office secretary, Esther, received the summons at
Charlie’s office. Charlie failed to file an answer within the required period, and Alfie moved to declare
Charlie in default and to be allowed to present evidence ex parte. Ten days later, Charlie filed his verified
answer, raising the defense of full payment with interest. Was there proper and valid service of
summons on Charlie? (2013 BAR) - NO. There is no showing that earnest efforts were exerted to
personally serve the summons on the defendant before substituted service was resoted to; the service
of sumoons was improper. - In an action strictly in personam like a complaint for sum of money,
personal service on the defendant is the preferred mode of service, that is, by handing a copy of the
summons to the defendant in person. If defendant, for excusable reasons, cannot be served with
summons within a reasonable period, then substituted service can be resorted to (Manotoc v. Court of
Appeals, G.R. No. 130974, August 16, 2006). Otherwise stated, it is only when the defendant cannot be
served personally within a reasonable time that a substituted service may be made. Impossibility of
prompt service should be shown by stating the efforts made to find the defendant personally and the
fact that such efforts failed. This statement should be made in the proof of service (Galura v. Math-Agro
Corporation, G.R. No. 167230, August 14, 2009). - Since there was no prior attempt to serve the
summons in person, the substituted service to Charlie’s secretary is invalid. If declared in default, what
can Charlie do to obtain relief? (2013 BAR) - If Charlie is declared in default, he has the following
remedies to wit: he may, at any time after discovery of the default but before judgment, file a motion,
under oath, to set aside the order of default on the ground that his failure to answer was due to fraud,
accident, mistake or excusable neglect, and that he has a meritorious defense; if judgment has already
been rendered when he discovered the default, but before the same has become final and executory, he
may file a motion for

new trial under Section 1(a) of Rule 37; if he discovered the default after the judgment has become final
and executory, he may file a petition for relief under Section 2 of Rule 38; and he may also appeal from
the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set
aside the order of default has been presented by him. Q: Summons was issued by the MM Regional Trial
Court and actually received on time by defendant from his wife at their residence. The sheriff earlier
that day had delivered the summons to her at said residence because defendant was not home at the
time. The sheriff’s return or proof of service filed with the court in sum states that the summons, with
attached copy of the complaint, was served on defendant at his residence thru his wife, a person of
suitable age and discretion then residing therein. Defendant moved to dismiss on the ground that the
court had no jurisdiction over his person as there was no valid service of summons on him because the
sheriffs return or proof of service does not show that the sheriff first made a genuine attempt to serve
the summons on defendant personally before serving it thru his wife. Is the motion to dismiss
meritorious? What is the purpose of summons and by whom may it be served? Explain. (5%) (2004 Bar
Question) - The motion to dismiss is not meritorious because the defendant actually received the
summons on time from his wife. Service on the wife was sufficient. (Boticano v. Chu, 148 SCRA 541
[1987D. It is the duty of the court to look into the sufficiency of the service. The sheriffs negligence in
not stating in his return that he first made a genuine effort to serve the summons on the defendant,
should not prejudice the plaintiff. The purpose of the summons is to inform the defendant of the
complaint filed against him and to enable the court to acquire jurisdiction over his person. It may served
by the sheriff or his deputy or any person authorized by the court. Extra-territorial service, when
allowed Q: In Its complaint before the RTC, Singer (Phil.). Inc., alleged that it is a corporation organized
and existing under Philippine laws: that another corporation, with the corporate name Singer, Inc. and
organized under the law of the United States, had incurred obligations to several foreign creditors
whom it refuses to pay; that although Singer (Phil.) Me. is a corporation separate and distinct from
Singer, Inc. and that Singer (Phil,). Inc. had no participation or liability whatsoever regarding the
transactions between Singer, Inc. and the creditors, said creditors, have been demanding from Singer
(Phil.). Inc. the payment of the obligations to them (creditors of Singer, Inc.). Singer (Phil.). Inc.
therefore, prayed for Injunctive relief against the creditors (whom it impleaded as the defendants in the
action) by way of enjoining the latter from making further demands on it for payment of the obligations
of Singer. Inc. to them (creditors.) The defendants are non-residents and without business addresses in
the Philippines but in the U.S. Consequently, Singer (Phil.), Inc. asked for leave of court to effect
extraterritorial service of summons pursuant to Sec. 17. Rule 14 of the Rules of Court. The trial court
granted the motion. The defendants filed special appearances and questioned the jurisdiction of the
court over their persons. They contended that the court cannot acquire jurisdiction over their persons
because the action does not fall under any oi the situations authorizing extraterritorial service

or summons. Is extraterritorial service of summons proper? Why? (1993 Bar Question) Answer: - No
because it is only when the action affects the personal status of the plaintiff, or any property in the
Philippines in which defendants have or claim an interest, or which the plaintiff has attached, that
extraterritorial service of summons is proper. (Sec. 17 of Rule 14) In this case, the action is purely an
action for injunction, which is a personal action as well as an action in personam and not an action in
rem or quasi in rem. Hence, personal or substituted service of summons is necessary in order to confer
jurisdiction on the court Extraterritorial service of summons on defendants will not confer on the court
jurisdiction or power to compel them to obey its orders. [Kawasaki Port Services Corporation vs.
Amores, 199 SCRA 230) Q: (1989 Bar Question) Are the rules on summons under Rule 14 of the Rules of
Court applicable equally in actions before the Regional Trial Courts as well as in the Metropolitan Trial
Courts, Municipal Trial Courts and Municipal Circuit Trial Courts? - Yes, because the procedure to be
observed in the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Court is the
same as that observed in the Regional Trial Courts, and Rule 5 which conveyed procedure in inferior
courts including summons, was repealed. (Sec. 8 of Interim Rules). When is extra-territorial service of
summons proper? - Extraterritorial service of summons, is proper when the defendant does not reside
and is not found in the Philippines and the action affects the personal status of the plaintiff or relates to,
or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding
the defendant from any interest therein, or the property of the defendant has been attached within the
Philippines. (Sec. 17 of Rule 14). It is also proper when the defendant ordinarily resides within the
Philippines, but is temporarily out of it. (Sec. 18 of Rule 14) Q: TRUE or FALSE. Answer TRUE if the
statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2)
sentences. (5%) Summons may be served by mail, (2009 Bar Question) FALSE. Rule 14 of the Rules of
Court, on Summons, provide only for serving Summons (a) to the defendant in person; or (b) if this is not
possible within a reasonable time, then by substituted service in accordance with Sec. 7 thereof; or (c)
any of the foregoing two ways is not possible, then with leave of court, by publication in accordance
with same Rule. Motions Motions versus pleadings Q: True or False. If the answer is false, explain your
answer briefly. A motion is a pleading. (2%) (2007 Bar Question) FALSE. A motion is not a pleading but a
mere application for relief other than by a pleading Notice of hearing and hearing of motions

The following motions require a notice of hearing served on the opposite party, except: (2012 BAR)
Motion to Set Case for Pre-trial; Q: The Regional Trial Court rendered judgment against ST, copy of
which was received by his counsel on February 28, 2000. On March 10, 2000, ST, through counsel, filed a
motion for reconsideration of the decision with notice to the Clerk of Court submitting the motion for
the consideration of the court. On March 15, 2000, realizing that the Motion lacked a notice of hearing,
ST*s counsel filed a supplemental pleading. Was the Motion for Reconsideration filed within the
reglementary period? Explain. (5%) (2000 Bar Question) - Yes, because the last day for filing a motion for
reconsideration was March 15 if February had 28 days or March 16 if February had 29 days. Although
the original motion for reconsideration was defective because it lacked a notice of hearing, the defect
was cured on time by its filing on March 15 of a supplemental pleading, provided the motion was set for
hearing and served on the adverse party at least three (3) days before the date of hearing. (Sec. 4, Rule
15. 199.7 Rules of Civil Procedure). d. Omnibus Motion Rule The defendant in an action for sum of
money filed a motion to dismiss the complaint on the ground of improper venue. After hearing, the
court denied the motion. In his answer, the defendant claimed prescription of action as affirmative
defense, citing the date alleged in the complaint when the cause of action accrued. May the court, after
hearing, dismiss the action on ground of prescription? (2011 BAR) Yes, because prescription is an
exception to the rule on Omnibus Motion. Q: Charisse, alleging that she was a resident of Lapu-Lapu
City, filed a complaint for damages against Atlanta Bank before RTC of Lapu-Lapu City, following the
dishonor of a check she drew in favor of Shirley against her current account which she maintained in the
bank’s local branch. The bank filed a Motion to Dismiss the complaint on the ground that it failed to
state a cause of action, but it was denied. It thus filed an Answer. (2010 Bar Question) In the course of
the trial, Charisse admitted that she was a US citizen residing in Los Angeles, California and that she was
temporarily billeted at the Pescado Hotel in Lapu-Lapu City, drawing the bank to file another motion to
dismiss, this time on the ground of improper venue, since Charisse is not a resident of Lapu- Lapu City.
Charisse opposed the motion citing the omnibus motion rule.” Rule on the motion. (3%) - The bank’s
second motion to dismiss which is grounded on improper venue of an action is deemed waived by the
bank’s filing an earlier motion to dismiss without raising improper venue as an issue, and more so when
the bank filed an Answer without raising improper venue as an issue after its first motion to dismiss was
denied. - Under the “omnibus motion rule” (Rule 15, Sec. 8, Rules of Court) which governs the bank’s
motion to dismiss, such motion should include all objections

then available; otherwise, all objections not so included shall be deemed waived. - Although the
improper venue became known only in the course of the trial, the same should not be allowed to
obstruct or disturb the proceedings since venue of civil actions is defined for the convenience of the
parties, may jurisdictional. Suppose Charisse did not raise the "omnibus motion rule, can the judge
proceed to resolve the motion to dismiss? Explain. (3%) - Yes, the judge can proceed to resolve the
motion to dismiss, because the ground raised therefor became known to the movant only during the
trial, such that it was only. Then that the objection became available to him. Suppose the judge correctly
denied the second motion to dismiss and rendered judgment in favor of Charisse, ordering the bank to
pay her Pl00, 000 in damages plus legal interest. The judgment became final and executory in 2008. To
date, Charisse has not moved to execute the judgment. The bank is concerned that its liability will
increase with the delay because of the interest on the judgment award. As counsel of the bank, what
move should you take? (3%) - As counsel of the bank, I shall recommend to the bark as judgment
obligor, to make a tender of payment to the judgment oblige and thereafter make a consignation of the
amount due by filing an application therefor placing the same at the disposal of the court which
rendered the judgment (Arts. 1256 and 1258, Civil Code). Motions for Bill of Particulars Purpose and
when applied for Q: (2003 Bar Question) (a) When can a bill of particulars be availed of? - (a) Before
responding to a pleading, a party may move for a bill of particulars of any matter which is not averred
with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If
the pleading is a reply, the motion must be filed within ten (10) days from service thereof. (Sec. 1 of Rule
12) Actions of the court X filed a motion for Bill of Particulars, after being served with summons and a
copy of the complaint However, X's motion did not contain a notice of hearing. The court may therefore:
(2012 BAR) motu proprio dismiss the motion for not complying with Rule 15. Q; Within the period for
filing a responsive pleading, the defendant filed a motion for bill of particulars that he set for hearing on
a certain date. However, the defendant was surprised to find on the date set for hearing that the trial
court had already denied the motion on the day of its filing, stating that the allegations of the complaint
were sufficiently made. Did the judge gravely abuse his discretion in acting on the motion without
waiting for the hearing set for the motion? (2008 Bar Question) - No, the judge did not gravely abuse his
discretion when he denied the motion for bill of particulars without waiting for the hearing set in the
motion. Section 2,

Rule 12 of the Rules of Court authorizes the court to either deny or grant said motion outright upon the
clerk of court bringing such motion to the attention of the court. The motion may lack merit. c.
Compliance with the order and effect of noncompliance Q: (2003 Bar Question) What is the effect of
non-compliance with the order of a bill of particulars? - If the order is not complied with, the court may
order the striking out of the pleading or the portions thereof to which the order was directed or make
such other order as it deems just. (Sec. 4 of Rule 12) Q: If the judge grants the motion and orders the
plaintiff to file and serve the bill of particulars, can the trial judge dismiss the case if the plaintiff does
not comply with the order? (3%) (2008 Bar Question) - Yes, the trial judge can dismiss the case if the
plaintiff failed to comply with the court’s order to file and serve the needed bill of particulars. Section 4,
Rule 12 of the Rules of Court authorizes the court to order the striking out of the pleading affected,
hence the dismissal of the complaint. To the same end is the provision of Section 3, Rule 17 of the Rules
when plaintiff fails to comply for no justifiable cause with any order of the court or with the Rules.
Motion to dismiss Grounds A court can motu proprio dismiss a case on the following grounds, except :
(2012 BAR) lack of jurisdiction over the parties; Q: Co Batong, a Taipan, filed a civil action for damages
with the Regional trial Court (RTC) of Parañaque City against Jose Penduko, a news reporter of the
Philippines Times, a newspaper of general circulation printed and published in Parañaque City. The
complaint alleged, among others, that Jose Penduko wrote malicious and defamatory imputations
against Co Batong; that Co Batong’s business address is in Makati City; and that the libelous article was
first printed and published in Parañaque City. The complaint prayed that Jose Penduko be held liable to
pay P200,000.00 as moral damages; P150,000.00, as exemplary damages; and P50,000.00, as attorney’s
fees. Jose Penduko filed a Motion to Dismiss on the following grounds: The RTC is without jurisdiction
because under the Totality Rule, the claim for damages in the amount of P350,000.00 fall within the
exclusive original jurisdiction of the Metropolitan Trial Court (MeTC) of Parañaque City. The venue is
improperly laid because what the complaint alleged is Co Batong’s business address and not his
residence address. Are the grounds invoked in the Motion to Dismiss proper? (2014) The RTC is without
jurisdiction because under the Totality Rule, the claim for damages in the amount of P350,000.00 fall
within the exclusive original jurisdiction of the Metropolitan Trial Court (MeTC) of Parañaque City.
Answer:

NO. The gorund invoked in the Motion to Dismiss is not proper. Under Article 360 of the RPC, the civil
action for damages in cases of written defamation may be filed separately in the Regional Trial Court
where the libelous article was printed and first published, regardless of the amount of damages being
claimed. The venue is improperly laid because what the complaint alleged is Co Batong’s business
address and not his residence address. A: The venue is properly laid. Under the law, the venue for the
civil action involving written defamation shall be the place where the defamatory article was printed and
first published. (Art. 360, RPC). Since the defamatory article was printed and first published in Parañaque
City, the venue of the action is properly laid. Hence, the dismissal of the Complaint will only be proper if
the Complaint failed to allege the residence of the complainant or the place where the libelous article
was printed and first published (Nocum v. Tan, G.R. No. 145022, September 23, 2005). Which of the
following grounds for dismissal invoked by the court will NOT PRECLUDE the plaintiff from refiling his
action? (2011 BAR) Lack of jurisdiction over the subject matter. A complaint may be refiled if dismissed
on which of the following grounds? (2012 BAR) Lack of jurisdiction. Resolution of motion After a hearing
on a Motion to Dismiss, the court may either dismiss the case or deny the same or: (2012 BAR) order
amendment of the pleading Q: Plaintiff filed a complaint for a sum of money against defendant with the
MeTCMakati, the total amount of the demand, exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses, and costs, being PI .000,000. In due time, defendant filed a motion
to dismiss the complaint on the ground of the MeTC’s lack of jurisdiction over the subject matter. After
due hearing, the MeTC 11) ruled that the court indeed lacked jurisdiction over the subject matter of the
complaint; and (2) ordered that the case therefore should be forwarded to the proper Regional Trial
Court immediately. Was the court's ruling concerning jurisdiction correct? Was the court’s order to
forward the case proper? Explain briefly. (5%)(2004 Bar Question) - Yes. The MeTC did not have
jurisdiction over the case because the total amount of the demand exclusive of interest, damages of
whatever kind, attorney's fees, litigation expenses, and costs, was PI M. Its jurisdictional amount at this
time should not exceed P400,000.00 - The court's order to forward the case to the RTC is not proper. It
should merely dismiss the complaint. Under Sec. 3 of Rule 16, the court may dismiss the action or claim,
deny the motion or order the amendment of the pleading but not to forward the case to another court.

Q: (1999 Bar Question) Is summons required to be served upon a defendant who was substituted for the
deceased? Explain. (2%) - No. A defendant who was substituted for the deceased need not be served
with summons because it is the court which orders him as the legal representative of the deceased to
appear and substitute the deceased. (Sec. 16 of Rule 3.) Q: Plaintiff filed a complaint for damages against
defendant with the court. Defendant moved to dismiss the complaint on the ground that it states no
cause of action. The court, after hearing, issued an order deferring the resolution of the motion to
dismiss until the trial since the ground therefore does not appear to be indubitable. Do you agree with
the ruling of the court? Explain. (1996 Bar Question) - No. because whether or not the complaint states
a cause of action is clear from the allegations of the complaint and deferring the resolution of the
motion to dismiss because the ground therefore is not indubitable is not proper. Q: Mr. Avenger filed
with Regional Trial Court (RTC) a complaint against Ms. Bright for annulment of deed of sale and other
documents. Ms. Bright filed a motion to dismiss the complaint on the ground of lack of cause of action.
Mr. Avenger filed an opposition to the motion to dismiss. State and discuss the appropriate remedy/
remedies under each of the following situations: (2014) If the RTC grants Ms. Bright’s motion to dismiss
and dismisses the complaint on the ground of lack of cause of action, what will be the remedy/ remedies
of Mr. Avenger? - Mr. Avenger can choose any of the following remedies: Mr. Avenger may file a Motion
for Reconsideration. If denied, he could file an appeal to the Court of Appeals under Rule 41 since a
dismissal based on lack of cause of action (under Rule 33) is appealable. Mr. Avenger may file a Motion
for reconsideration. If the same is denied, he could file a Petition for Certiorari under Rule 65 because a
dismissal based on failure to state a cause of action is considered without prejudice and therefore an
interlocutory order which cannot be a subject of an appeal under Rule 41. Mr. Avenger may file a
Motion for Reconsideration if the same is denied, he can simply re-file the complaint because an Order
granting a Motion to Dismiss based on failure to state a cause of action is without prejudice to the filing
of another Complaint (Section 5, Rule 16). Mr. Avenger may amend his Complaint, as a matter of right,
since a Motion to Dismiss is not a responsive pleading. (Irene R. Marcos-Araneta v. Court of Appeals,
G.R. No. 154096, August 22, 2008). If the RTC denies Ms. Bright’s motion to dismiss, what will be her
remedy/ remedies? - Ms. Bright may file a Motion for Reconsideration. If the same is denied, she could
file a special civil action for certiorari under Rule 65. An Order denying a Motion to Dismiss is
interlocutory because it does not finally dispose of the case, and, in effect, directs the case to proceed
until final adjudication by the court. Hence, a special civil action on certiorari is the appropriate remedy.

Ms. Bright may file an Answer within the balance of the period from the filing of his Motion to Dismiss
but not less than five (5) days, and raise affirmative defenses therein. (Section 4 and 6, Rule 16) If the
RTC denies Ms. Bright’s motion to dismiss and, further proceedings, including trial on the merits, are
conducted until the RTC renders a decision in favor of Mr. Avenger, what will be the remedy/ remedies
of Ms. Bright? - Ms. Bright may avail of the following remedies before the finality of the decision: A
motion for reconsideration A motion for new trial After the finality of the Decision, Ms. Bright can avail
of the following: Petition for relief (Rule 38); Annulment of Judgment (Rule 47); and Petition for
Certiorari (Rule 65). Remedies of plaintiff when the complaint is dismissed Q: Defendant Xanthe filed a
Motion to Dismiss Yogi’s complaint before the Regional Trial Court The court grants the Motion to
Dismiss. Explain the remedies or procedure to be resorted to or to be pursued by plaintiff to have the
order of dismissal reversed and corrected finally. - The remedy is to appeal to the court of Appeals from
the order of dismissal within fifteen days from notice thereof by filing a notice of appeal with the
Regional Trial Court and serving a copy thereof on the adverse party. However, if only a question of law
is involved, the remedy is to file a petition for review on certiorari with the Supreme Court within fifteen
days from notice of the order or the denial of his motion for reconsideration and serving a copy thereof
on the Regional Trial Court and on the adverse party. Remedies of the defendant when the motion is
denied Q: Defendant Xanthe filed a Motion to Dismiss Yogi’s complaint before the Regional Trial Court.
The court denies the Motion to Dismiss. May Xanthe appeal the denial? Reasons. How and on what
ground or grounds may defendant Xanthe bring the denial of his Motion to Dismiss to the appellate
courts? Explain. 1) No because the order of denial is merely interlocutory, and only final judgments or
orders are subject to appeal. 2) Defendant X may bring the denial of his Motion to Dismiss to the
appellate (superior) courts by filing a petition for certiorari on the ground of lack or excess of jurisdiction
or grave abuse of discretion. (Newsweek vs. IAC, 142 SCRA 171) When grounds pleaded as affirmative
defenses Q: (1999 Bar Question) A, who is engaged in tile installation business, was sued by EE
Industries for breach of contract for installing different marble tiles iri its offices as provided in their
contract. Without filing any motion to dismiss, A filed its Answer with Counterclaim theorizing that EE
Industries has no legal capacity to sue because it is not a duly registered corporation.

By way of counterclaim, A asked for moral and actual damages as her business depleted as a result of
the withdrawal and cancellation by her clients of their contracts due to the filing of the case. The case
was dismissed after the trial court found that EE Industries is not a registered corporation and therefore
has no legal capacity to sue. However, it set a date for the reception of evidence on A’s counterclaim. EE
Industries opposed on the ground .that the counterclaim could no longer be prosecuted, in view bf the
dismissal of the main case. Is the stand of EE Industries sustainable? Explain. (2%) - No, because if no
motion to dismiss has been filed, any of the grounds for dismissal provided in the Rules may be pleaded
as an affirmative defense in the answer which may include a counterclaim. This is what A did by filing an
Answer alleging the lack of legal capacity of EE Industries to sue because it is not a duly registered
corporation with a counterclaim for damages. The dismissal of the complaint on this ground is without
prejudice to the prosecution of the counterclaim in the same action because it is a compulsory
counterclaim. (Sec. 6 of Rule 16.) Q: Fe filed a suit for collection of P387,000 against Ramon in the RTC of
Davao City. Aside from alleging payment as a defense, Ramon in his answer set up counterclaims for
P100,000 as damages and P30,000 as attorney’s fees as a result of the baseless filing of the complaint, as
well as for P250,000 as the balance of the purchase price of the 30 units of air conditioners he sold to Fe.
Suppose Ramon’s counterclaim for the unpaid balance is P310,000, what will happen to his
counterclaims if the court, dismisses the complaint after holding a preliminary hearing on Ramon’s
affirmative defenses? (3%) (2008 Bar Question) - The dismissal of the complaint is without prejudice to
the right of the defendant (Ramon) to prosecute his counterclaim in the same or in a separate action
[Sec. 6, Rule 16, last par.; Pingav. Heirs of Santiago, 494 SCRA 393 [2006]). Under the same premise as
paragraph (b) above, suppose that instead of alleging payment as a defense in his answer, Ramon filed a
motion to dismiss on that ground, at the same time setting up his counterclaims, and the court grants
his motion. What will happen to his counterclaims? (3%)(2008 Bar Question) - Since Ramon filed only a
motion to dismiss, not an answer, the dismissal of the complaint would also bring about the dismissal of
his counterclaims but he can file a separate action for his permissive counterclaims. The compulsory
counterclaims are deemed waived when he filed a motion to dismiss the complaint instead of answering
the same. (Financial Building Corporation v. Forbes Park Association, Inc., 338 SCRA 346 2000]).
Dismissal of actions X, the designated executor of a will, files a petition for probate of the same. X and
his counsel failed to appear without justifiable cause at the hearing on the presentation of evidence and
the court therefore dismissed, motu proprio, his petition for failure to prosecute. The effect of the
dismissal is: (2012 BAR) it is a dismissal with prejudice.

Dismissal upon notice by plaintiff; two-dismissal rule A complaint may be dismissed by the plaintiff by
filing a notice of dismissal: At anytime before a motion of summary judgment is filed. Q: Before any
answer on motion for summary judgment could be filed by the defendant, the plaintiff filed notice of
dismissal of his complaint. The trial court simply noted the dismissal. Is the case considered dismissed.
(1989 Bar Question) - Yes, because the rule merely requires the filing of a notice of dismissal and does
not require an order of the court dismissing the case. (Sec. 1 of Rule 17) Q: X filed an action for
reconveyance against Y. Y forthwith filed his answer and served it on X. A week later, X filed a motion to
withdraw the action since he could not avail the services of counsel. The court dismissed the complaint
based on failure to prosecute. A month after, X instituted the very same action against Y. Y moved to
dismiss the case invoking res judicata. He alleged that dismissal of the first case had the effect of an
adjudication upon the merits since the court’s Order had no condition that it was without prejudice. The
court dismissed the subsequent case on the ground of res judicata. Was the trial court correct? Explain.
(1996 Bar Question - No, because the dismissal of the complaint on motion of X is without prejudice
under Sec. 2 of Rule 17. The Court erred in dismissing the complaint for failure to prosecute for an
unreasonable length of time under Sec. 3 of Rule 17. Q: Lawrence filed a complaint against Grace to
collect a loan of P50,000. Later, because of their intimate relationship in the past, Lawrence filed a
notice of dismissal of his complaint. Subsequently, the two had a serious misunderstanding so that
Lawrence again filed a complaint against Grace to collect another loan of P100,000. Lawrence and Grace
reconciled after which, the former withdraw his complaint before the latter could file her answer or a
motion for summary judgment. Was the dismissal of the second complaint with or without prejudice?
Explain. (1989 Bar Question) - The dismissal of the second complaint is without prejudice because it is
based on another claim of P100,000.00. If the dismissal were based on the same claim of P50,000.00 it
would be with prejudice. (Id.) Q: Lawrence filed a complaint against Grace to collect a loan of P50,000.
Later, because of their intimate relationship in the past, Lawrence filed a notice of dismissal of his
complaint. Subsequently, the two had a serious misunderstanding so that Lawrence again filed a
complaint against Grace to collect another loan of P100,000. Lawrence and Grace reconciled after
which, the former withdraw his complaint before the latter could file her answer or a motion for
summary judgment. Was the dismissal of the second complaint with or without prejudice? Explain.
(1989 Bar Question) - The dismissal of the second complaint is without prejudice because it is based on
another claim of P100,000.00. If the dismissal were based on the same claim of P50,000.00 it would be
with prejudice. (Id.)

Dismissal upon motion by plaintiff; effect on existing counterclaim Q: Antique dealer Mercedes
borrowed P1, 000,000 from antique collector Benjamin. Mercedes issued a postdated check in the same
amount to Benjamin to cover the debt. On the due date of the check, Benjamin deposited it but it was
dishonored. As despite demands, Mercedes failed to make good the check, Benjamin filed in January
2009 a complaint for collection of sum of money before the RTC of Davao. Mercedes filed in February
2009 her Answer with Counterclaim, alleging that before the filing of the case, she and Benjamin had
entered into a dacion enpago agreement in which her vintage P1, 000,000 Rolex watch which was taken
by Benjamin for sale on commission was applied to settle her indebtedness; and that she incurred
expenses in defending what she termed a "frivolous lawsuit.. She accordingly prayed for P50, 000
damages. - Benjamin soon after moved for the dismissal of the case. The trial court accordingly
dismissed the complaint. And it also dismissed the Counterclaim. Mercedes moved for a reconsideration
of the dismissal of the Counterclaim. Pass upon Mercedes' motion. (3%) (2010 Bar Question) -
Mercedes' Motion for Reconsideration is impressed with merit: the trial court should not have dismissed
her counter-claim despite the dismissal of the Complaint. - Since it was the plaintiff (Benjamin) who
moved for the dismissal of his Complaint, and at a time when the defendant (Mercedes) had already
filed her Answer thereto and with counterclaim, the .dismissal of the Complaint should not carry with it
the dismissal of the counterclaim without the conformity of the defendant- counterclaimant. The
Revised Rules of Court now provides in Rule 17, Sec. 2 there or that "[1]a counterclaim has been pleaded
by a defendant prior to the service upon him of the plaintiff's motion for dismlasa1, the dismissal shall
be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to
prosecute his counterclaim x x x.” Pre-trial Concept of pre-trial, Nature and purpose Q: Is pre-trial
mandatory in all trial courts? Explain. (1989 Bar Question) - Pre-trial is mandatory in all trial courts in
civil cases. (Sec. 1 of Rule 30). However, in criminal cases, pre-trial may be held only when the accused
and his counsel agree. (Sec. 1 of Rule 118). - In summary procedure, a preliminary conference is held in
both civil and criminal cases. (Sec. 6 and 13) Notice of pre-trial Q: Ulio filed a complaint in the Municipal
Trial Court of Lanuza for the recovery of a sum of money against Juan. The latter filed his answer to the
complaint serving a copy thereof on Ulio.

After the filing of the answer of Juan, whose duty is it to have the case set for pretrial? Why? (5%) (2001
Bar Question) - After the filing of the answer of Juan, the plaintiff has the duty to promptly move ex
parte that the case be set for pre-trial. (Sec. 1, Rule 18, 1997 Rules of Civil Procedure). The reason is that
it is the plaintiff who knows when the last pleading has been filed and it is the plaintiff who has the duty
to prosecute. Appearance of parties; effect of failure to appear What is the consequence of the
unjustified absence of the defendant at the pre- trial? (2011 BAR) The trial court shall allow the plaintiff
to present evidence ex-parte. Q: Jose, Lito and Luis executed a promissory note in favor of Teresita
Comparza which reads: “For value received we promise jointly and severally to pay Teresita Comparza
the sum of P300.000.00 on or before 31 December 1994." All three signed the note. Despite demands
after due date no payment was made on the note prompting Teresita to sue the three promissors.
Summonses together with copies of the complaint were served on all of them but only Lito answered.
Upon Teresita’s motion, Jose and Luis were declared in default. Against whom and upon what basis
should the court try the case considering that only Lito of the three defendants filed an answer and a
default order was issued against Jose and Luis? Discuss fully. Considering that a defaulted defendant
cannot participate in the trial, can Lito present Luis on the witness stand to testify after the latter was
defaulted? Discuss fully. Suppose Lito dies and the case is dismissed as against him, what is the effect of
his answer as far as his solidary co-debtors Jose and Luis are concerned? Discuss fully. (1995 Bar
Question) - Since the complaint states a common cause of action against the three defendants, the court
shall try the case against all upon the answer filed by Lito and render judgment upon the evidence
presented. (Sec. 4, Rule 18) In this case, the answer of Lito inures to the benefit of Jose and Luis, unless
the defense of Lito is personal to him alone. - There is no provision in the Rules disqualifying parties
declared in default from taking the witness stand for non-disqualified parties. A party declared in default
loses his standing in court, but this must be understood to mean only the forfeiture of one’s rights as a
party litigant. He is not disqualified to be a witness or a deponent in a case. (Cavili vs. Florendo, 154
SCRA 610) - If Lito dies after he has presented evidence, the same inures to the benefit of Jose and Luis.
But if Lito dies before he has presented evidence, Jose and Luis cannot present such evidence. Q: May a
party who is present at the pre-trial of a civil case and assisted by counsel still be declared non-suited or
as in default? Explain. (1989 Bar Question) - No, because the only ground to declare a party non-suited
or considered as in default at the pre-trial is failure to appear thereat.

Distinction between pre-trial in civil case and pre-trial in criminal case Q: Give three distinctions
between a pre-trial in a criminal case and a pre-trial in a civil case. (1997 Bar Question) - Three
distinctions between a pre-trial in a criminal case and a pre-trial in a civil case are as follows: The pre-
trial in a criminal case is conducted only “where the accused and counsel agree" (Rule 118, Sec. 1): while
the pre-trial in a civil case is mandatory. (Sec. 1 of former Rule 20; Sec. 1 of new Rule 18). The pretrial in
a criminal case does not consider the possibility of a compromise, which is one important aspect of the
pre-trial in a civil case. (Sec. 1 of former Rule 20; Sec. 2 of new Rule 18). In a criminal case, a pre-trial
agreement is required to be reduced to writing and signed by the accused and his counsel (See: Rule
118, Sec. 4); while in a civil case, the agreement may be contained in the pretrial order. (Sec. 4 of former
Rule 20; See 7 of new Rule 78). Alternative Dispute Resolution (ADR) (Special Rules of Court on ADR
(A.M. No. 07-11-08-SC)) Q: Water Builders, a construction company based in Makati City, entered into a
construction agreement with Super Powers, Inc., an energy company based in Manila, for the
construction of a mini hydroelectric plant. Water Builders failed to complete the project within the
stipulated duration. Super Powers cancelled the contract. Water Builders filed a request for arbitration
with the Construction Industry Arbitration Commission (CIAC). After due proceedings, CIAC rendered
judgment in favor of Super Powers, Inc. ordering Water Builders to pay the former P 10 million, the full
amount of the down payment paid, and P2 million by way of liquidated damages. Dissatisfied with the
CIAC's judgment, Water Builders, pursuant to the Special Rules of Court on Alternative Dispute
Resolution (ADR Rules) filed with the RTC of Pasay City a petition to vacate the arbitral award. Super
Powers, Inc., in its opposition, moved to dismiss the petition, invoking the ADR Rules, on the ground of
improper venue as neither of the parties were doing business in Pasay City. Should Water Builders'
petition be dismissed? (2015) - YES, the petition should be dismissed on the ground of improper venue.
Under the Special Rules of Court on Alternative Dispute Resolution (ADR), the petition shall be filed with
the Regional Trial Court having jurisdiction over the place where one of the parties is doing business,
where any of the parties reside or where the arbitration proceedings were conducted (Rule 11.3, Special
Rules of Court on Alternative Dispute Resolution, A.M. No. 07-11-08-SC); hence, the venue of the
petition to vacate the arbitral award of Water Builders is improperly laid. Which among the following is
not subject to mediation for judicial dispute resolution? (2013 BAR) The civil aspect of robbery. Q:
Discuss the three (3) Stages of Court Diversion in connection with Alternative Dispute Resolution. (2012
BAR)

- The three stages of diversion are Court-Annexed Mediation (CAM), Judicial Dispute Resolution (JDR),
and Appeals Court Mediation (ACM). During CAM, the judge refers the parties to the Philippine
Mediation Center (PMC) for the mediation of their dispute by trained and accredited mediators. If CAM
fails, the JDR is undertaken by the JDR judge, acting as a mediator-conciliator-early neutral evaluator.
The third case is during appeal, where covered cases are referred to ACM. Q: Upon termination of the
pre-trial, the judge dictated the pretrial order in the presence of the parties and their counsel, reciting
what had transpired and defining three (3) issues to be tried. Suppose trial had already commenced and
after the plaintiffs second witness had testified, the defendant’s counsel moves for the amendment of
the pre-trial order to include a fifth (5th) triable issue vital to his client’s defense. Should the motion be
granted over the objection of plaintiffs counsel? Reasons. (3%) (2009 Bar Question) - The motion may be
denied since trial had already commenced and two witnesses for the plaintiff had already testified.
Courts are required to issue pretrial Order after the pre-trial conference has been terminated and
before trial begins, precisely because the reason for such Order is to define the course of the action
during the trial. Where trial had already commenced, more so the adverse party had already presented
witnesses, to allow an amendment would be unfair to the party who had already presented his
witnesses. The amendment would simply render nugatory the reason for or purpose of the pre-trial
Order. Sec.7 of Rule 18 on pre-trial in civil actions is explicit in allowing a modification of the pre-trial
Order “before” trial begins to prevent manifest injustice.

Q: Mayor TM was charged of malversation through falsification of official documents. Assisted by Atty.
OP as counsel de parte during pre-trial, he signed together with Ombudsman Prosecutor TG a “Joint
Stipulation of Facts and Documents." which was presented to the Sandiganbayan. Before the court could
issue a pre-trial order but after some delay caused by Atty. OP, he was substituted by Atty. QR as
defense counsel. Atty. QR forthwith filed a motion to withdraw the “Joint Stipulation," alleging that it is
prejudicial to the accused because it contains, inter alia, the statement that the “Defense admitted all
the documentary evidence of the Prosecution," thus leaving the accused little or no room to defend
himself, and violating his right against selfincrimination. Should the court grant or deny QR’s motion?
Reason. (5%) (2004 Bar Question) - The court should deny QR’s motion. If in the pre-trial agreement
signed by the accused and his counsel, the accused admits the documentary evidence of the
prosecution, it does not violate his right against self-incrimination. His lawyer cannot file a motion to
withdraw. A pre-trial order is not needed. Intervention Requisites for intervention

Q: What are the requisites for an intervention by a non- party in an action pending in court? (5%) (2000
Bar Question) - The requisites for Intervention are: 1. Legal interest in the matter in controversy; or 2.
Legal interest In the success of either of the parties; or 3. Legal interest against both; or 4. So situated as
to be adversely affected by a distribution or other disposition of property in the custody of the court or
of an officer thereof. 5. Intervention will not unduly delay or prejudice the adjudication of the rights of
original parties; 6. Intervenor’s rights may not be fully protected In a separate proceeding.

The right to intervene is not absolute. In general, it CANNOT be allowed where (2011 BAR) it would
enlarge the issues and expand the scope of the remedies. Ranger Motors filed a replevin suit against
Bart to recover possession of a car that he mortgaged to it. Bart disputed the claim. Meantime, the court
allowed, with no opposition from the parties, Midway Repair Shop to intervene with its claim against
Bart for unpaid repair bills. On subsequent motion of Ranger Motors and Bart, the court dismissed the
complaint as well as Midway Repair Shop’s intervention. Did the court act correctly? (2011 BAR) No,
since having been allowed to intervene, the intervenor became a party to the action, entitled to have
the issue it raised tried and decided. Remedy for the denial of motion to intervene Q: Half-brothers
Roscoe and Salvio inherited from their father a vast tract of unregistered land. Roscoe succeeded in
gaining possession of the parcel of land in its entirety and transferring the tax declaration thereon in his
name. Roscoe sold the northern half to Bono, Salvio’s cousin. Upon learning of the sale, Salvio asked
Roscoe to convey the southern half to him. Roscoe refused as he even sold one- third of the southern
half along the West to Carlo. Thereupon, Salvio filed an action for the reconveyance of the southern half
against Roscoe only. Carlo was not impleaded. After filing his answer, Roscoe sold the middle third of
the southern half to Nina. Salvio did not amend the complaint to implead Nina. After trial, the court
rendered judgment ordering Roscoe to reconvey the entire southern half to Salvio. The judgment
became final and executory. A writ of execution having been issued, the Sheriff required Roscoe, Carlo
and Nina to vacate the southern half and yield possession thereof to Salvio as the prevailing party. Carlo
and Nina refused, contending that they are not bound by the judgment as they are not parties to the
case. Is the contention tenable? Explain fully. (4%)(2008 Bar Question) - Yes, in case of Transfer of
interest pending litigation, the action may be continued by or against the original party unless the court,
upon motion, directs a person to be substituted in the action or joined with the original party (Sec. 19,
Rule 3, Rules of Court). The owners of property over which reconveyance is asserted are indispensable
parties and must be joined in the action.

Accordingly, the contention of Carlo who is such party to the action filed by Salvio, is tenable. He is not
bound by the judgment because he became a coowner of the land before the case was filed and yet he
has not been included as a party thereto - Nina, however is a successor-in-interest of Roscoe and privy
to the case. Hence, she is bound by the judgment as against Roscoe although she is not party to the case
(Sec. 19, Rule 3; Cabresos v. Tero, 166 SCRA 400 [1988]). A judgment is conclusive between the parties
and their successors-in-interest by title subsequent to the case (Sec. 47, Rule 39, Rules of Court). -
[Parenthetically, it is worth mentioning that the sale of the northern one-half of the vast tract of land
owned in common by Roscoe and Salvio, is void as to the northern half but valid as to the presumed
one-half undivided interest of Roscoe. The existence of the co- ownership must first be determined to
exist before the right of reconveyance on the basis of a constructive trust may prosper. However, in the
problem the judgment has become final and executory, so the problem is centered on the remedial law
aspect]. Subpoena Subpoena duces tecum Q: In an admiralty case filed by A against Y Shipping Lines
(whose principal offices are in Manila) in the Regional Trial Court, Davao City, the court issued a
subpoena duces tecum directing Y, the president of the shipping company, to appear and testify at the
trial and to bring with him several documents. On what valid ground can Y refuse to comply with the
subpoena duces tecum? How can A take the testimony of Y and present the documents as exhibits other
than through the subpoena from the Regional Trial Court? (1997 Bar Question) - Y can refuse to comply
with the subpoena duces tecum on the ground that he resides more than 50 (now 100) kilometers from
the place where he is to testify. (Sec. 9 of former Rule 23; Sec. 10 of new Rule 21). - A can take the
testimony of Y and present the documents as exhibits by taking his deposition through oral examination
or written interrogatories. (Rule 24; new Rule 23) He may also file a motion for the production or
inspection of documents. (Rule 27). Subpoena ad testificandum Q: TRUE or FALSE. Answer TRUE if the
statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2)
sentences. (5%) The viatory right of a witness served with a subpoena ad testificandum refers to his right
not to comply with the subpoena. (2009 Bar Question) FALSE. The viatory right of a witness, embodied
in Sec. 10, Rule 21 of the Rules of Civil Procedure, refers to his right not to be compelled to attend upon
a subpoena, by reason of the distance from the residence of the witness to the place where he is to
testify. It is available only in civil cases

Quashing of subpoena Q: On August 15,2008, Edgardo committed estafa against Petronilo in the amount
of P3 Million. Petronilo brought his complaint to the National Bureau of Investigation, which found that
Edgardo had visited his lawyer twice, the first time on August 14, 2008 and the second on August 16,
2008; and that both visits concerned the swindling of Petronilo. During the trial of Edgardo, the RTC
issued a subpoena ad testificandum to Edgardo’s lawyer for him to testify on the conversations during
their first and second meetings. May the subpoena be quashed on the ground of privileged
communication? Explain fully. (4%) - No, The subpoena may not be simply quashed on the allegation
that the testimony to be elicited constitutes privileged communication. It may be noted that the accused
committed the crime of swindling on August 15, 2008, whereas he first visited his lawyer on August 14,
2008 or before he committed the swindling. Clearly the conversations the accused had with his lawyer
during such first visit, before he committed the swindling cannot be protected by the privilege between
attorney and client because the crime had not been committed yet and it is no part of a lawyer’s
professional duty to assist or aid in the commission of a crime; hence not in the course of professional
employment. - The second visit by accused Edgardo to his lawyer on the next day (August 16, 2008) after
the swindling was committed may also suffer from the same infirmity as the conversations had during
their first meeting inasmuch as there could not be a complaint made immediately after the estafa was
committed. The privilege covering a lawyer- client relation under Sec. 24, (par(b), Rule 130, may not be
invoked, as it is not a ground for quashal of a subpoena ad testificandum under Section 4, Rule 21 of the
Rules of Court. - Although the subpoena ad testificandum may not be quashed the privilege covers
conversations “with a view to professional employment." It can be invoked at the trial but not to quash
the subpoena.