CIVIL PROCEDURE

10

2005 Centralized Bar Operations San Beda College of Law 10

Memory Aid in Remedial Law

CIVIL PROCEDURE

RULE 1GENERAL PROVISIONS

Statutes regulating the procedure of courts will be construed as applicable to actions pending and undetermined at the time of their passage so long as vested rights will not be impaired.

Under the 1987 Constitution, the rule-making power of the Supreme Court has the following limitations:

1. shall provide a simplified and inexpensive procedure for the speedy disposition of cases;

2. Uniform for all courts of the same grade, and

3. Shall not diminish, increase or modify substantive rights (Art. VIII Sec. 5[5]).

Section 3. Cases governed.

ACTIONCLAIM

An ordinary suit in a court of justiceA right possessed by one against another

One party prosecutes another for the enforcement or protection of a right or the prevention or redress of a wrong.The moment said claim is filed before a court, the claim is converted into an action or suit.

CLASSIFICATION OF ACTIONS.

(A)

ORDINARY CIVIL ACTIONSPECIAL CIVIL ACTION

Governed by ordinary rulesAlso governed by ordinary rules but SUBJECT to specific rules prescribed (Rules 62 to 71).

Formal demand of ones legal rights in a court of justice in the manner prescribed by the court or by the lawSpecial features not found in ordinary civil actions

(B)

ACTION IN REMACTION IN PERSONAMACTION QUASI IN REM

Directed against the thing itselfDirected against particular personsDirected against particular persons

Judgment is binding on the whole worldJudgment is binding only upon parties impleaded or their successors in interestJudgment binding upon particular persons, but the real motive is to deal with real property or to subject said property to certain claims.

Ex. Land registration case; probate proceedings for allowance of a will.Ex. action to recover damages; action for breach of contractEx. Unlawful detainer or forcible entry; judicial foreclosure of mortgage.

The distinction is important in determining the EFFECT of the judgment.

(C)

REAL ACTIONPERSONAL ACTIONMIXED ACTION

Ownership or possession of real property is involvedpersonal property is sought to be recovered or where damages for breach of contract are soughtBoth real and personal properties are involved

Founded on privity of estateFounded on privity of contractFounded on both

ex. Accion reinvidicatoriaEx. Action for a sum of moneyex. Accion publiciana with a claim for damages

The distinction is significant in the determination of venue. With respect to mixed actions, the rules on venue of real actions shall govern, i.e., where the real property is located.

(D)

LOCAL ACTIONTRANSITORY ACTION

Must be brought in a particular place, in the absence of an agreement to the contraryGenerally, must be brought where the party resides regardless of where the cause of action arose

Ex. Action to recover real propertyEx. Action to recover sum of money

Section 5. Commencement of action.An action is commenced by:

1. filing of the complaint (the date of the filing determines whether or not the action has already prescribed); and

2. payment of the requisite docket fees (determined on the basis of the amount of the claim including the damages indicated in body or the prayer of the pleading)

It is not simply the filing of the complaint or the appropriate initiatory pleading but also the payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the action.

The court may allow the payment of the deficient docket fee within a reasonable period but not beyond the applicable prescriptive or reglementary period.

An action can be commenced by filing the complaint by registered mail. In which case, it is the date of mailing that is considered as the date of filing, and not the date of the receipt thereof by the clerk of court.

The date of the filing of an amended complaint joining additional defendant is the date of the commencement of the action with regard to such additional defendant.

Section 6. Construction.

General Rule: Liberal construction .

Exceptions:

a. reglementary periods

b. rule on forum shopping

RULE 2CAUSE OF ACTION

Section 2. Cause of Action, defined.

Essential elements of cause of action

1. Existence of a legal right of the plaintiff;

2. Correlative legal duty of the defendant to respect ones right;

3. Act or omission of the defendant in violation of the plaintiffs legal right; and

4. Compliance with a condition precedent.

CAUSE OF ACTIONRIGHT OF ACTION

delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiffremedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him

The reason for the actionthe remedy or means afforded or the consequent relief

the formal statement of alleged factsright that is given the right to litigate because of the

occurrence of the alleged facts

Determined by facts as alleged in the complaint and not the prayer thereindetermined by substantive law

RELIEFREMEDYSUBJECT MATTER

the redress, protection, award or coercive measure whichthe procedure or type of action which may be the thing, wrongful act, contract or property which is

the plaintiff prays the court to render in his favor as a consequence of the delict committed by the defendantavailed of by the plaintiff as the means to obtain the desired reliefdirectly involved in the action, concerning which the wrong has been done and with respect to which the controversy has arisen.

Section 4. Splitting a single cause of action, effect of.

SPLITTING OF CAUSE OF ACTION is the practice of dividing one cause of action into different parts and making each part subject of a separate complaint.

Applies NOT only to complaints but also to counterclaims and crossclaims.

Remedy against splitting a single cause of action:

A. Motion to dismiss on the ground of:

Litis pendentia, if the first complaint is still pending (Rule 16, Sec. 1[e]); or

Res judicata, if any of the complaints is terminated by final judgment (Rule 16, Sec. 1[f])

B. An answer alleging either of the above-cited grounds as affirmative defense (Rule 16, Sec. 6)

General Rule on Divisible Contract

A contract to do several things at several times is divisible, and judgment for a single breach of a continuing contract is not a bar to a suit for a subsequent breach.

Doctrine of Anticipatory BreachEven if the contract is divisible in its performance and the future periodic deliveries are not yet due, if the obligor has already manifested his refusal to comply with his future periodic obligations, the contract is entire and the breach total, hence there can only be one action for damages (Blossom & Co. vs. Manila Gas Corp., 55 Phil. 226)

Section 5. Joinder of causes of action.

Rule in this section is PERMISSIVE and the plaintiff can always file a separate action for each cause of action.

Par. (a): The joinder of causes of action may involve the same or different parties. If the joinder involved different parties, it must comply with Sec. 6 Rule 3, thus, there must be a question of fact or law common to both parties joined arising out of the same or series of transactions.

Par. (b) requires that: only causes of action in ordinary civil actions may be joined, obviously because they are subject to the same rules.

Par. (c) As long as one cause of action falls within the jurisdiction of the RTC, the case can be filed there even if the MTC has jurisdiction over the others.

Pars. (d) embodies the TOTALITY RULESection 33 BP129, as amended by RA 7691 - Where there are several claims or causes of actions 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 actions, irrespective of whether the causes of action arose out of the same or different transactions.

SPLITTING OF CAUSE OF ACTIONJOINDER OF CAUSES OF ACTION

There is a single cause of actionContemplates several causes of action

PROHIBITED. Causes multiplicity of suits and double vexation on the part of the defendantENCOURAGED. Minimizes multiplicity of suits and inconvenience on the parties

Section 6. Misjoinder of causes of action.

Not a ground for dismissal of an action. A misjoined cause of action may be severed and proceeded with separately.

There is no sanction against non-joinder of separate causes of action since a plaintiff needs only a single cause of action to maintain an action.

RULE 3PARTIES TO CIVIL ACTIONS

Section 1. Who may be parties; plaintiff and defendant.

REQUIREMENTS FOR A PERSON TO BE A PARTY TO A CIVIL ACTION:

1. he must be a natural or juridical person or an entity authorized by law;

2. he must have a legal capacity to sue; and

3. he must be the real party in interest.

PLAINTIFFS- Those having an interest in the subject matter of the action or in obtaining the relief demanded.

DEFENDANTS:1. persons who claim an interest in the controversy or the subject thereof adverse to the plaintiff; or

2. who are necessary to a complete determination or settlement of the questions involved therein; or

3. all those who ordinarily should be joined as plaintiffs but who do not consent thereto, the reason therefore being stated in the complaint.

Neither a dead person nor his estate may be a party plaintiff in a court actionConsidering that capacity to be sued is correlative of the capacity to sue, to the same extent, a decedent does not have the capacity to be sued and may not be named a party defendant in a court action (Ventura vs. Militante 316 SCRA 226).

Section 3. Representatives as parties.

REAL PARTY IN INTEREST the party who stands to be benefited in the suit or the party entitled to the avails of the suit.

Impleading the beneficiary as a party in the suit is now mandatory, in cases allowed to be prosecuted or defended by a representative.

CLASSIFICATION OF PARTIES IN INTEREST1. Indispensable parties those without whom no final determination can be had of an action. (must be joined)

2. Necessary (or proper) parties those who are not indispensable but ought to be parties if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. (may or may not be joined)

3. Representative parties someone acting in fiduciary capacity. Maybe a trustee, guardian, executor or administrator, or a party authorized by law or these Rules.

An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal

4. Pro forma parties those who are required to be joined as co-parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule such as in the case of spouses under Sec. 4.

5. Quasi parties those in whose behalf a class or representative suit is brought.

Section 5. Minor or incompetent persons.

Under the present rule, a person need not be judicially declared to be incompetent in order that the court may appoint a guardian ad litem. It is enough that he be alleged to be incompetent.

The suit can be brought by or against the minor or incompetent person personally BUT with the assistance of his parents or guardian.

Section 6. Permissive joinder of parties. PERMISSIVE JOINDER the aggregate sum of all the claims, determines the jurisdiction of the court.

Requisites of permissive joinder of parties.1. Right to relief arises out of the same transaction or series of transactions;

2. There is a question of law or fact common to all the plaintiffs or defendants; and

3. Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue.

SERIES OF TRANSACTIONS transactions connected with the same subject of the action.

INDISPENSABLE PARTIESNECESSARY PARTIES

The action cannot proceed unless they are joinedThe action can proceed even in the absence of some necessary parties

No valid judgment if indispensable party is not joinedThe case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined

They are those with such an interest in the controversy that a final decree would necessarily affect their rights so that the court cannot proceed without their presenceThey are those whose presence is necessary to adjudicate the whole controversy but whose interests are so far separable that a final decree can be made in their absence without affecting them

JOINT DEBTORS indispensable party with respect to own share and a necessary party with respect to the share of the others.

SOLIDARY DEBTORS either is indispensable and the other is not even a necessary party because complete relief may be obtained from either.

Section 9. Non-joinder of necessary parties to be pleaded.The non-inclusion of a necessary party may be excused only on meritorious grounds.

The court may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained by ordering plaintiff to file an amended complaint impleading the necessary party therein as co-defendant.

The only sanction for failure to implead a necessary party when ordered by the court and jurisdiction can be obtained over said party is a waiver of the claim against him. This is considered as an exception to the provision on penalties imposed on a disobedient party under Sec. 3 of Rule 17 which would have entailed the dismissal of the complaint itself.

Section 11. Misjoinder and non-joinder of parties.Neither misjoinder nor non-joinder of parties is a ground for dismissal of the action.

Objections to defects in parties should be made at the earliest opportunity the moment such defect becomes apparent by a MOTION TO STRIKE THE NAMES OF THE PARTIES impleaded.

If there is misjoinder, a separate action should be brought against the party misjoined.

The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.

Section 12. Class suit.

REQUISITES OF A CLASS /REPRESENTATIVE SUIT.1. subject matter of the controversy is one of common or general interest to many persons;

2. parties affected are so numerous that it is impracticable to bring them all before the court;

3. parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of all concerned.

Class SuitPermissive Joinder of Parties

There is one single cause of action pertaining to numerous personsThere are multiple causes of action separately belonging to several persons.

Section 14. Unknown identity or name of defendant.Requisites:1. there is a defendant

2. his identity or name is unknown

3. fictitious name may be used because of ignorance of defendants true name and said ignorance is alleged in the complaint

4. identifying description may be used: sued as unknown owner, heir, devisee, or other designation

5. amendment to the pleading when identity or true name is discovered

6. defendant is the defendant being sued, not a mere additional defendant

Service of summons upon a defendant whose identity is unknown may be made by publication in a newspaper of general circulation in accordance with Section 14 of Rule 14.

Section 15. Entity without juridical personality as defendant.They may be sued under the name by which they are generally known, but they cannot sue under such name for lack of juridical personality. The service of summons may be effected upon all the defendants by serving upon any of them, or upon the person in charge of the office or place of business maintained under such name.(Sec. 8, Rule 14)INSTANCES WHERE SUBSTITUTION OF PARTIES IS PROPER:

A. Death of party; duty of counsel (Sec. 16)This provision applies where the claim is not thereby extinguished as in cases involving property and property rights such as:

1. recovery of real and personal property against the estate.

2. enforcement of liens on such properties

3. recovery for an injury to person or property by reason of tort or delict committed by the deceased.

In this case, the heirs will be substituted for the deceased OR if no legal representative is named then the court will order the opposing party to procure the appointment of an executor or administrator for the estate of the deceased.

In case of minor heirs, the court may appoint a guardian ad litem for them.

The substitute defendant need not be summoned. The order of substitution shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party

If there is failure to notify the fact of death: the case may continue and proceedings will be held valid, and judgment will bind the successors in interest.

B. Death or separation of a party who is a public officer (Sec. 17)The action may be maintained by and against his successor.

The action contemplated here is one brought against the public officer in his official capacity.

C. Supervening Incompetence or incapacity of a party (Sec. 18)The action shall continue to be prosecuted by or against him, personally or assisted by the corresponding guardian.

D. Transfer of interest (Sec. 19)Substitution of parties in this section is NOT mandatory, it being permissible to continue the action by or against the original party in case of transfer of interest pendente lite. Unless the substitution by or the joinder of the transferee is required by the court, failure to do so does not warrant the dismissal of the case. A transferee pendente lite is a proper, and not an indispensable party.

The case will be dismissed if the interest of plaintiff is transferred to defendant UNLESS there are several plaintiffs, in which case, the remaining plaintiffs can proceed with their own cause of action.

Section 20. Action on contractual money claims.

Requisites:

1. The action must primarily be for recovery of money, debt, or interest thereon, and not where the money sought therein is merely incidental thereto.

2. The claim, subject of the action, arose from a contract, express or implied, entered into by the decedent in his lifetime or the liability for which had been assumed by or is imputable to him.

If defendant dies before entry of final judgment in the court where it was pending at that time, the action shall not be dismissed but shall be allowed to continue until entry of final judgment thereon.

However, execution shall not issue in favor of the winning party. It should be filed as a claim against the estate of the decedent.

Section 21. Indigent party.

Indigent one who has no property or income sufficient for his support aside from his labor, even if he is self-supporting when able to work and in employment. He need not be a pauper to entitle him to litigate in forma pauperis.

While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing, it may be contested by the adverse party at any time before judgment is rendered.

RULE 4VENUE OF ACTIONSVENUE the place where an action must be instituted and tried.

VENUEJURISDICTION

Place where the action is institutedPower of the court to hear and decide a case

May be waivedJurisdiction over the subject matter and over the nature of the action is conferred by law and cannot be waived

ProceduralSubstantive

May be changed by the written agreement of the partiesCannot be the subject of the agreement of the parties

The rule on venue is not applicable in cases 1) Where a specific rule or law provides otherwise; or

2) The parties have validly agreed in writing before the filing of the action on the exclusive venue thereof (Sec. 4).

Requisites for venue to be exclusive1. A valid written agreement

2. Executed by the parties before the filing of the action; and

3. Exclusive nature of the venue.

In the absence of qualifying or restrictive words, venue stipulation is merely permissive meaning that the stipulated venue is in addition to the venue provided for in the rule (Polytrade Corp. vs. Blanco 30 SCRA 187)

Section 1. Venue of real actions.If property is located at the boundaries of two places: file one case in either place at the option of the plaintiff.

If case involves two properties located in two different places: 1. If the properties are the object of the same transaction, file it in any of the two places.

2. If they are the subjects of two distinct transactions, separate actions should be filed in each place unless properly joined.

Section 2. Venue of personal actions.

RESIDENCE the place where the party actually resides with continuity and consistency, whether permanent or temporary, at the time the action is instituted.

Means of waiving venue:1. failure to object via motion to dismiss

2. affirmative relief sought in the court where the case is filed

3. voluntary submission to the court where the case is filed

4. laches

Section 3. Venue of actions against non-residents.RULES

1. NON-RESIDENT FOUND IN THE PHIL.

a. for personal actions where the plaintiff resides; and

b. for real actions where the property is located.

2. NON RESIDENT NOT FOUND IN THE PHIL.

An action may be filed only when the case involves:

a. Personal status of plaintiff venue: where plaintiff resides;

b. Any property of said defendant located in the Phil. venue: where the property or any portion thereof is situated or found.

The Supreme Court has the power to order a change of venue to prevent a miscarriage of justice.

Dismissal of Action for Improper VenueThe court may not motu propio dismiss a complaint on the ground of improper venue. An exception is provided in Section 4 of the Revised Rule on Summary Procedure.

RULES ON SUMMARY PROCEDURESUMMARY PROCEDURE IN CIVIL CASES

The Court should not dismiss the complaint or counterclaim if they are not verified. The requirement is merely a formal one, and not jurisdictional. It should therefore simply direct the party concerned to have it verified.

PROHIBITED PLEADINGS / MOTIONS UNDER THE RULE ON SUMMARY PROCEDURE.

1. Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter or failure to comply with prior barangay conciliation (referral to the Lupon)

2. Motion for a bill of particulars

3. Motion for a new trial or for reconsideration of a judgment or for reopening of trial

4. Petition for relief from judgment

5. Motion for extension of time to file pleadings, affidavits, or any other paper

6. Memoranda

7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court

8. Motion to declare defendant in default

9. Dilatory motions for postponement

10. Reply

11. Third party complaints

12. Interventions

The filing of a prohibited pleading will not suspend the period to file an answer or to appeal.

Although a motion to dismiss is a prohibited pleading, its filing after the answer had already been submitted does not constitute a pleading prohibited by the summary rules. What the rules proscribe is a motion to dismiss that would stop the running of the period to file an answer and cause undue delay.

While a motion to declare the defendant in default is prohibited by the rules on summary procedure, the plaintiff may nevertheless file a motion to render judgment as may be warranted when the defendant fails to file an answer.

The issuance of the pre-trial order is an important part of the summary procedure because it is its receipt by the parties that begins the ten-day period to submit the affidavits and other evidence.

TRIAL PROCEDURE IN CIVIL CASESNo trial date is set. No testimonial evidence is required nor cross-examination of witnesses allowed. All that is required is that within (10) days from receipt by the parties of the courts pre-trial order, they shall submit (1) the affidavits of their witnesses (2) and other evidence on the factual issues set forth in the pre-trial order, Together with their position papers setting forth the law and the facts relied upon by them.

Judgments of inferior courts in cases governed by summary procedure are appealable to the RTC.

The decision of the RTC in civil cases under this rule, including ejectment cases, are IMMEDIATELY executory.

KATARUNGANG PAMBARANGAY LAW(Title One, Book III, RA 7160)

No complaint, petition, action, or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication UNLESS1. there has been a confrontation between the parties before the lupon chairman or pangkat, AND

2. that no conciliation or settlement has been reached OR unless the settlement has been repudiated by the parties thereto.

CASES NOT COVERED BY THE KATARUNGANG PAMBARANGAY LAW:

1. Where one party is the government or any subdivision or instrumentality thereof;

2. Where one party is a public officer or employee, and the dispute relates to the performance of his official functions;

3. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000.00;

4. Offenses where there is no private offended party;

5. Where the dispute involves real properties located in different cities or municipalities UNLESS the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;

6. Disputes involving parties who actually reside in barangays of different cities or municipalities, EXCEPT where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;

7. Such other classes of disputes which the President may determine in the interest of justice.

However, the court may, at any time before trial, motu proprio refer the case to the lupon concerned for amicable settlement, non criminal cases not falling within the authority of the latter.

While the dispute is under mediation, conciliation, or arbitration, the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing of the complaint with the punong barangay.

THE PARTIES MAY GO DIRECTLY TO COURT IN THE FOLLOWING INSTANCES:1. Where the accused is under detention;

2. Where the person has otherwise been deprived of personal liberty calling for habeas corpus proceeding;

3. Where the actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; and

4. Where the action may otherwise be barred by the statute of limitations.

The parties may, at any stage of the proceedings, agree in writing to have the matter in dispute decided by arbitration by either the Punong Barangay or Pangkat. In such case, arbitrational hearings shall follow order of adjudicative trials.

The settlement and arbitration agreement may be repudiated on the ground that consent is vitiated by fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint in court or any government office for adjudication.

RULES ON VENUE UNDER THE KATARUNGANG PAMBARANGAY LAW

1. Disputes between residents of the same barangay shall be brought for settlement before lupon of said barangay

2. Residents of different barangays within the same city or municipality in the barangay where the respondent or any of the respondents reside at the election of the complainant

3. Disputes involving real property or any interest therein- where real property or larger portion thereof is situated

4. Disputes arising at the WORKPLACE where the contending parties are employed or at the INSTITUTION where such parties are enrolled for study in the barangay where such workplace or institution located.

CHART ON KATARUNGANG PAMBARANGAY, SEE PAGE 22.

PROCEDURE IN REGIONAL TRIAL COURTSRULE 6KINDS OF PLEADINGSSection 1. Pleadings defined.

PLEADINGS the written allegations of the parties of their respective claims and defenses submitted to the court for appropriate judgment.

A motion to dismiss is NOT a pleading.

It is the allegations or averments in the pleading that determines the jurisdiction of the court and the nature of the action.

PLEADINGMOTION

It relates to the cause of action; interested in the matters to be included in the judgment.An application for an order not included in the judgment

May be initiatoryCannot be initiatory as they are always made in a case already filed in court

Always filed before judgmentMay be filed even after judgment

Section 3. Complaint.

COMPLAINT is a concise statement of the ultimate facts constituting the plaintiffs cause or causes of action, with

a specification of the relief sought, but it may add a general prayer for such further relief as may be deemed just or equitable.

ULTIMATE FACTS - essential facts constituting the plaintiffs cause of action.

What are NOT ultimate facts:1. Evidentiary or immaterial facts.

2. Legal conclusions, conclusions or inferences of facts from facts not stated, or incorrect inferences or conclusions from facts stated.

3. The details of probative matter or particulars of evidence, statements of law, inferences and arguments.

4. An allegation that a contract is valid or void is a mere conclusion of law.

TEST OF SUFFICIENCY: if upon admission or proof of the facts being alleged, a judgment may be properly given. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient.

Section 4. AnswerANSWER the pleading where the defendant sets forth his affirmative or negative defenses.

2 kinds of defenses that may be set forth in the answer:

a. Affirmative Defenses allegation of a new matter which while hypothetically admitting the material allegations in the pleading, would nevertheless prevent or bar recovery by him. It is in the nature of Confession and Avoidance

b. NEGATIVE DEFENSES specific denial of the material facts or facts alleged in the pleading

Insufficient denial or denial amounting to admissions:1. General denial

2. Denial in the form of a negative pregnant

Section 6. Counterclaim

COUNTERCLAIM any claim which a defending party may have against an opposing party.

Nature of counterclaim: A counterclaim is in the nature of a cross-complaint. Although it may be alleged in the answer, it is not part of the answer. Upon its filing, the same proceedings are had as in the original complaint. For this reason, it must be answered within ten (10) days from service.

Section 7. Compulsory Counterclaim

RULES ON COUNTERCLAIM

A counterclaim before the MTC must be within the jurisdiction of said court, both as to the amount and nature thereof (De Chua vs. IAC).

DOCTRINE OF ANCILLARY JURISDICTION

In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount (Sec. 7, Rule 6 ).

If a counterclaim is filed in the MTC in excess of its jurisdictional amount, the excess is considered waived (Agustin vs. Bacalan). In Calo vs. Ajax Intl, the remedy where a counterclaim is beyond the jurisdiction of the

MTC is to set off the claims and file a separate action to collect the balance.

COMPULSORY COUNTERCLAIMPERMISSIVE COUNTERCLAIM

One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing partys claim.It does not arise out of nor is it necessarily connected with the subject matter of the opposing partys claim.

It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.

It is barred if not set up in the action.It is NOT barred even if not set up in the action.

Need not be answered; no default.Must be answered, otherwise, the defendant can be declared in default.

GENERAL RULE: A compulsory counterclaim not set up in the answer is deemed barred.

EXCEPTION: If it is an after-acquired counterclaim, that is, such claim matured after filing of the answer. In this case, it may be pleaded by filing an amended answer or a supplemental answer or pleading.

Section 8. Cross-claim

CROSS-CLAIM 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 counterclaim.

If it is not set up in the action, it is barred, except:

1. when it is outside the jurisdiction of the court or;

2. if the court cannot acquire jurisdiction over third parties whose presence is necessary for the adjudication of said cross-claim.

In which case, the cross-claim is considered permissive.

The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive, but not a cross-claim seeking affirmative relief.

Cross ClaimCounterclaim3rd-party Complaint

Against a co-partyAgainst an opposing partyAgainst a person not a party to the action

Must arise out of the transaction that is the subject matter of the orig. action or of a counterclaim therein.May arise out of or be necessarily connected with the transaction or that is the subject matter of the opposing partys claim, in which case, it is called a compulsory counterclaim, or it may not, in which case it is called a permissive counterclaim.Must be in respect of the opponents claim (Plaintiff)

Section 10. Reply.REPLY- the response of the plaintiff to the defendants answer.

EFFECT OF FAILURE TO REPLY: new facts that were alleged in the answer are deemed controverted. Hence, the filing of the reply is optional except for the denial of the genuineness and due execution of an actionable document used as defense in the answer.

Section 11. Third (fourth, etc.) party complaint.

THIRD (FOURTH,ETC.) PARTY COMPLAINT a claim that a defending party may, with leave of court, file against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponents claim.

THIRD-PARTY COMPLAINTCOMPLAINT IN INTERVENTION

Brings into the action a third person who was not originally a party.Same

Initiative is with the person already a party to the action.Initiative is with a non-party who seeks to join the action.

TESTS to determine whether the third-party complaint is in respect of plaintiffs claim:

1. Where it arises out of the same transaction on which the plaintiffs claim is based, or, although arising out of another or different transaction, is connected with the plaintiffs claim;

2. Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiffs claim against the original defendant; and

3. Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiffs claim.

Leave of court to file a third-party complaint may be obtained by motion under Rule 15.

Summons to new party (third, fourth, etc.) is needed for the court to obtain jurisdiction over his person, since he is not an original party.

Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third party complaint, regardless of the amount involved as a third party complaint is merely auxiliary to and is a continuation of the main action (Republic v. Central Surety & Insurance Co. L-27802, Oct. 26, 1968).

Section 12. Bringing new parties.Distinguished from 3rd-party complaint: A 3rd-party complaint is proper when not one of the third-party defendants therein is a party to the main action. But if one or more of the defendants in a counterclaim or cross-claim is already a party to the action, then the other necessary parties may be brought in under this section.

RULE 7PARTS OF A PLEADINGSection 3. Signature and address.The signature of the counsel is a certification that:

1. That he has read the pleading;

2. There is good ground to support it; and

3. It is not interposed for delay

Only the original copies must be signed.

UNSIGNED PLEADING may be stricken out as sham and false, and the action may proceed as though the pleading has not been served.It has no legal effect.Section 4. Verification.Pleadings need NOT be verified EXCEPT when otherwise provided by the law or rules.

A verification must now be based on personal knowledge or based on authentic records.

Section 5. Certification against forum shopping.

FORUM SHOPPING the filing of a two or more cases based on the same cause of action in different courts for the purpose of obtaining a favorable decision in either.

Test to determine the presence of forum-shopping: whether in the two (or more) cases pending, there is identity of (a) parties, (b) rights or causes of action, and (c) reliefs sought.

The certificate is to be executed by petitioner, and not by counsel.

Required ONLY for complaints or initiatory pleadings.

Certificate of non-forum shopping is not required in a compulsory counterclaim (UST Hosp. vs. Surla).

EFFECT OF FAILURE TO COMPLY:

1. Not curable by amendment of said pleading

2. shall be cause for the dismissal of the case, without prejudice, unless otherwise provided, upon motion and after hearing

EFFECT OF SUBMISSION OF FALSE CERTIFICATION OR NON-COMPLIANCE WITH THE UNDERTAKINGS THEREIN:

1. indirect contempt

2. administrative and criminal actions

EFFECT OF WILFULL AND DELIBERATE FORUM SHOPPING:

1. shall be ground for summary dismissal of the case with prejudice;

2. direct contempt.

RULE 8MANNER OF MAKING ALLEGATIONS IN A PLEADINGPleadings should state ultimate facts essential to the right of action.

ULTIMATE FACTS: those which directly form the bases of the right sought to be enforced or the defense relied upon.

If the ultimate facts are NOT alleged, the cause of action would be insufficient.

Section 4. Capacity.

Capacity to sue and be sued either personally or in representative capacity must be specifically averred by the party suing or being sued, and specifically denied by the party questioning such capacity.

Capacity is challenged by specific denial, motion to dismiss or bill of particulars.

Section 5. Fraud, mistake, condition of the condition

FACTS THAT MAY BE AVERRED GENERALLY:1. Conditions precedent (BUT there must still be an allegation that the specific condition precedent has been complied with, otherwise, it will be dismissed for failure to state a cause of action)

2. Malice, intent, knowledge, or other condition of the mind

3. Judgments of domestic or foreign courts, tribunals, boards, or officers (no need to show jurisdiction)

4. Official document or act

FACTS THAT MUST BE AVERRED PARTICULARLY:

1. Circumstances showing fraud or mistake in all averments of fraud or mistake

2. Capacity

ACTIONABLE DOCUMENT written instrument upon which the action or defense is based.

Two permissible ways of pleading an actionable document:

1. By setting forth the substance of such document in the pleading and attaching said document thereto as an annex (contents of the document annexed are controlling, in case of variance in the substance of the document set forth in the pleading and in the document attached); or

2. By setting forth said document verbatim in the pleading.

Where the actionable document is properly alleged, the failure to specifically deny under oath the same results in:

1. The admission of the genuineness and due execution of said document, EXCEPT that an oath is not required:

a. When the adverse party was not a party to the instrument; and

b. When an order for the inspection of the original document was not complied with.

2. The document need not be formally offered in evidence.

GENUINENESS

That the document is not spurious, counterfeit, or of different import on its face from the one executed by the party, or that the party whose signature it bears has signed it and that at the time it was signed it was in words and figures exactly as set out in the pleadings.

DUE EXECUTION

That the document was signed voluntarily and knowingly by the party whose signature appears thereon.

Defenses that the opposing party may set up even after failure to deny under oath:

1. Mistake;

2. fraud;

3. compromise;

4. payment;

5. prescription;

6. want or illegality of consideration; or

7. estoppel

BUT the following defenses are waived:

a. forgery in the signature;

b. want of authority of an agent or corporation;

c. want of delivery; or

d. the party charged signed the instrument in some other capacity

Section 10. Specific Denial

THREE WAYS OF MAKING A SPECIFIC DENIAL:

1. By specifically denying each material allegation of the other party and, whenever possible, setting forth the substance of the matters relied upon for such denial;

2. Part admission or part denial;

3. By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing partys pleading (must be made in good faith).

A denial must not be general. A general denial is regarded as an admission of the facts stated in the complaint and entitles plaintiff to a judgment on the pleadings.

NEGATIVE PREGNANT a form of denial which at the same time involves an affirmative implication favorable to the opposing party; It is in effect, an admission of the averment to which it is directed;It is said to be a denial pregnant with an admission of the substantial facts in the pleading responded to.

Section 11. Allegation not specifically denied deemed admitted.GENERAL RULE: Allegations NOT specifically denied deemed admitted (such as allegations of usury in the complaint, and the authenticity and due execution of actionable documents).

EXCEPTIONS:1. Allegations as to the amount of unliquidated damages

2. Immaterial allegations;

3. Incorrect conclusions of fact.

RULE 9EFFECT OF FAILURETO PLEADSection 1. Defenses and objections not pleaded.

GENERAL RULE: Defenses and objections that are not pleaded in a MOTION TO DISMISS or in the answer are deemed waived.

EXCEPTIONS (not waived even if not raised):

1. Lack of jurisdiction over the subject matter

2. Litis pendentia

3. Res judicata

4. Prescription of the action

These defenses may be raised at any stage of the proceedings even for the first time on appeal EXCEPT that lack of jurisdiction over the subject matter may be barred by laches. (Tijam vs. Sibonghanoy).

The presence of these grounds authorizes the court to motu proprio dismiss the claims. These grounds must, however, appear from the pleadings or the evidence on record.

Section 3.

DEFAULT the failure of the defendant to answer within the proper period. It is not his failure to appear nor failure to present evidence.

ORDER OF DEFAULTJUDGMENT BY DEFAULT

issued by the court, on plaintiffs motion for failure of the defendant to file his responsive pleading seasonably.Rendered by the court following a default order or after it received, ex parte, plaintiffs evidence.

Interlocutory - not appealableFinal appealable

NO default may be declared in the following actions:

1. Annulment of marriage

2. Declaration of nullity of marriage

3. Legal Separation

4. Special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed

The court cannot motu proprio declare a defendant in default. For defendant to be declared in default, the plaintiff must:

1. File a MOTION to declare defendant in default

2. Prove that summons have been properly served on the defendant

3. Prove that the defendant really failed to answer within the proper period.

CAUSES OF DEFAULT

1. Failure to answer within the proper period

2. Non-compliance with the order of the court to file a bill of particulars or in case of insufficient compliance therewith (Rule 12, Section 4)

3. Refusal to comply with the modes of discovery (Rule 29, Section 3, par. c)

4. Failure to furnish plaintiff with a copy of the answer

If the defendant was declared in default upon an original complaint, the filing of the amended complaint resulted in the withdrawal of the original complaint, hence, the defendant was entitled to file answer to the amended complaint as to which he was not in default.

EFFECT OF ORDER OF DEFAULT:

1. While the party in default cannot take part in the trial, he is nonetheless entitled to notice of subsequent proceedings.

2. He may still be called on as a witness, in behalf of the non-defaulting defendants.DEFAULT

PARTIAL DEFAULT:

1. The pleading asserting a claim states a common cause of action against several defending parties

2. some of the defending parties answer and the others fail to do so

3. the answer interposes a common defense

EFFECT OF PARTIAL DEFAULT: The court will try the case against ALL defendants upon the answer of some EXCEPT where the defense is personal to the one who answered, in which case, it will not benefit those who did not answer.

REMEDY FROM JUDGMENT BY DEFAULT (FLOW CHART)

EXTENT OF RELIEF TO BE AWARDED IN A JUDGMENT BY DEFAULT:Shall not exceed the amount OR be different in kind from that prayed for NOR award unliquidated damages.

RULE 10

AMENDED AND SUPPLEMENTAL PLEADINGSAMENDMENTS

Section 1. Amendments in general.When the complaint is amended, 2 situations may arise:

1. If the complaint merely corrects or modifies the original complaint, then the action is deemed commenced upon the filing of the original complaint;

2. If the amended complaint alleges a new cause of action, then that cause of action is deemed commenced upon the filing of the amended complaint.

Section 2. Amendments as a matter of right.Amendment for the first time is a matter of right before a responsive pleading is filed, or in case of a Reply, within 10 days after it was served.

Since a motion to dismiss is NOT a responsive pleading, an amendment may be had even if an order of dismissal has been issued as long as the amendment is made before order of dismissal becomes final.

Section 3. Amendments by leave of court.Instances when amendment by leave of court may not be allowed:

1. When cause of action, defense or theory of the case is changed;

2. Amendment is intended to confer jurisdiction to the court;

3. Amendment to cure a premature or non-existing cause of action;

4. Amendment for purposes of delay.

Section 5. Amendment to conform to or authorize presentation of evidence.

1ST PART: refers to amendment to conform to evidence when issues NOT raised by the pleadings are tried with the express or implied consent of the parties

- but failure to amend does NOT affect the result of the trial of these issues

2ND PART: refers to amendment to authorize presentation of evidence if evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings.

SUPPLEMENTAL PLEADINGS

A cause of action which accrued after the filing of the original complaint may, in the discretion of the court, be pleaded in a supplemental complaint if there was a valid subsisting cause of action at the time the original complaint was filed.

AMENDED PLEADINGSUPPLEMENTAL PLEADING

Refers to facts existing at the time of the commencement of the action.Refers to facts arising after the filing of the original pleading.

Take the place of the original pleading.Taken together with the original pleading.

Can be made as a matter of right as when no responsive pleading has yet been filedAlways with leave of court

Section 7. Filing of amended pleadings.

The amended pleading supersedes the original pleading.

An amendment which merely supplements and amplifies facts originally alleged in the complaint relates back to the date of the commencement of the action and is not barred by the statute of limitations which expired after service of the original complaint.

EFFECT OF AMENDED PLEADING:1. Admissions in the superseded pleading can still be received in evidence against the pleader;

2. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived.

The amended or superseded, original pleading is not expunged but remains on the record although the admission of the amended pleading amounts to withdrawal of the original pleading.

RULE 11WHEN TO FILE RESPONSIVE PLEADINGSAnswer to the complaint

1. Within 15 days after service of summons, UNLESS a different period is fixed by the Court (Sec. 1)

2. In case the defendant is a foreign private juridical entity:

a. if it has a resident agent within 15 days after service of summons to him

b. if it has no resident agent, but it has an agent or officer in the Philippines within 15 days after service of summons to said agent or officer

c. if it has no resident agent nor agent nor officer in which case service of summons is to be made on the proper government office which will then send a copy by registered mail to the home office of the foreign private corporation within 30 days after receipt of summons by the home office of the foreign private entity.

3. In case of service of summons by publication within the time specified in the order granting leave to serve summons by publication, which shall NOT be less than 60 days after notice (Rule 14, Sec.15).

4. In case of a non-resident defendant on whom extraterritorial service of summons is made, the period to answer should be at least 60 days.

The court may extend the time to file the pleadings BUT may NOT shorten them.

The 15-day period begins to run from receipt of summons.

Section 3. Answer to amended complaint.

1. If the filing of an amended complaint is a matter of right - within 15 days from service of the amended complaint.

2. If the filing of the amended complaint is NOT a matter of right within 10 days counted from notice of the court order admitting the same.

If no new answer is filed by the defendant in case an amendment has been made after he had filed his answer, the original answer of the defendant may serve as the answer to the amended complaint, and hence, cannot be declared in default.

Section 5. Answer to third (fourth, etc.)-party complaint.

The third-party defendant is served with summons just like the original defendant, hence, he also has 15, 30, 60 days from service of summons, as the case may be, to file his answer.

Section 7. Answer to supplemental complaint.

Leave of court is required in filing, the court may fix a different period for answering the supplemental complaint in lieu of the reglementary 10-day period.

Section 10. Omitted counterclaim or cross-claim.

The pleader may set up a counterclaim or cross-claim by amendment before judgment when he fails to set it up by reason of oversight, inadvertence, or excusable neglect ort when justice requires. Leave of court is necessary.

RULE 12BILL OF PARTICULARSBILL OF PARTICULARS- a more definite statement of any matter which appears vague or obscure in a pleading.

PURPOSE: to aid in the preparation of a responsive pleading.

Motion for bill of particulars must be filed within the reglementary period for the filing of a responsive pleading. The filing of a motion if sufficient in form and substance, will interrupt the time to plead.

The motion for bill of particulars may be granted in whole or in part as not all the allegations questioned by the movant are necessarily ambiguous as to require clarification.

A bill of particulars may be filed either in a separate or an amended pleading.

A bill of particulars becomes part of the pleading which it supplements.

EFFECTS OF MOTION1. If the motion is granted, the movant can wait until the bill of particulars is served on him by the opposing party and then he will have the balance of the reglementary period within which to file his responsive pleading.

2. If his motion is denied, he will still have such balance of the reglementary period to do so, counted from service of the order denying his motion. In either case, he will have at least 5 days to file his responsive pleading.

Effect of non-compliance:

1. If the Order is not obeyed or in case of insufficient compliance therewith, the court:

a. may order the striking out of the pleading or the portion thereof to which the order is directed; or

b. make such order as it may deem just.

2. If plaintiff, his compliant will be stricken off and dismissed (Rule 12, sec. 4; Rule 17, sec. 3)

3. If defendant, his answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff (Rule 12, sec. 4; Rule 17, sec. 4; Rule 9, sec. 3).

RULE 13FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERSNotice given to a party who is duly represented by counsel is a nullity, unless service thereof on the party himself was ordered by the court or the technical defect was waived.

Section 3. Manner of filing.

1. Personally

2. by registered mail

Filing by mail should be through the registry service which is made by deposit of the pleading in the post office, and not through other means of transmission.

If registry service is not available in the locality of either sender or addressee, service may be done by ordinary mail.

If a private carrier is availed of by the party, the date of actual receipt by the court of such pleading and not the date of delivery to the carrier, is deemed to be the date of the filing of that pleading.

NOTE: PERSONAL and SUBSTITUTED service as applied to pleadings have a different meaning compared to summons under Rule 14.

MODES OF SERVICE PLEADINGS1. personal service

a. Delivering personally a copy to the party or his counsel or;

b. Leaving a copy in counsels office with his clerk or with a person having charge thereof or;

c. Leaving the copy between 8 a.m. and 6 p.m. at the partys or counsels residence, if known, with a person of sufficient age and discretion residing therein---if no person found in his office, or if his office is unknown, or if he has no office.

2. service by mail

If no registry service is available in the locality, of either sender or addressee, service may be done by ordinary mail.

3. substituted service

Delivering the copy to the clerk of court with proof of failure of both personal and service by mail.

JUDGMENTS, FINAL ORDERS, RESOLUTIONS (Sec.9)1. By personal service; or

2. By registered mail;

3. By publication, if party is summoned by publication and has failed to appear in the action.

They can be served only under the three modes.

They CANNOT be served by substituted service.

NOTE: A resort to modes other than by personal service must be accompanied by a written explanation why the service or filing was not done personally (Sec. 11).

Section 10. Completeness of service.1. Personal servicea. by handling a copy to defendant; or

b. tendering him copy if he refuses;

c. complete upon actual delivery

2. Service by ordinary mail:

Complete upon expiration of 10 days after mailing, unless the court provides otherwise.

3. Service by registered mail:

a. Complete upon actual receipt by the addressee; or

b. After 5 days from the date he received the 1st notice of the postmaster, whichever date is earlier.

Section 12. Proof of filing.Filing is proved by its existence in the record of the case.

If it is not in the record, and:

(If filed personally: proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; or

( If filed by registered mail: proved by -the registry receipt and the affidavit of the person who did the mailing.

Section 13. Proof of service

1. Proof of personal service:

a. Written admission of the party served; or

b. Official return of the server; or

c. Affidavit of the party serving.

2. Proof of service by ordinary mail: Affidavit of the person mailing;

3. Proof of service by registered mail:

a. Affidavit, and

b. Registry receipt issued by the mailing office.

Section 14. Notice of lis pendens.LIS PENDENS - a notice of a pendency of the action between the parties involving title to or right of possession over real property.

It serves as a warning to all persons, prospective purchasers or encumbrancers of the property in litigation to keep their hands off the property in litigation unless they are prepared to gamble on the result of the proceedings.

The defendant may also record a notice of lis pendens when he claims an affirmative relief in his answer.

Notice of lis pendens CANNOT be cancelled on an ex parte motion or upon the mere filing of a bond by the party on whose title the notice is annotated, as section 14 provides that such cancellation may be authorized ONLY upon order of court, after proper showing that:

1. The notice is for the purpose of molesting the adverse party; or

2. It is not necessary to protect the rights of the party who caused it to be recorded.

RULE 14

SUMMONSPURPOSE OF SUMMONS:1. to acquire jurisdiction over the person of the defendant, and;

2. to give notice to the defendant that an action has been commenced against him.

EFFECT OF NON-SERVICE: Unless there is waiver, non-service or irregular service renders null and void all subsequent proceedings and issuances in the action from the order of default up to and including the judgment by default and the order of execution.

Where the defendant has already been served with summons on the original complaint, no further summons is required on the amended complaint if it does not introduce new causes of action.

But where the defendant was declared in default on the original complaint and the plaintiff subsequently filed an amended complaint, new summons must be served on the defendant on the amended complaint, as the original complaint was deemed withdrawn upon such amendment.

Section 3. By whom served.Summons may be served by:

1. Sheriff

2. Sheriffs deputy, or

3. Other proper court officers, or

4. For justifiable reasons, by any suitable person authorized by the court issuing the summons.

Enumeration is EXCLUSIVE.

ALIAS SUMMONS issued when original has not produced its effect because it is defective in form or manner of service, and when issued, supersedes the first (Section 5).

KINDS OF SERVICE OF SUMMONS:1. personal service

2. substituted service

3. by publication

In actions in personam where the defendant cannot be served with summons personally or by substituted service, the case must first be converted into an in rem or quasi in rem action by attaching the property of the defendant found in the Philippines before summons can be served by publication. If no property can be found, the action shall be archived but shall not be dismissed. (Citizens Surety vs. Court Appeals)

SERVICE OF SUMMONS ON DIFFERENT ENTITIESService on entity w/o juridical personalityUpon any or all defendants being sued under common name; or person in charge of office

Service upon minors and incompetentsIn case of minors: by serving upon the minor, regardless of age, AND upon his legal guardian, or also upon either of his parents.

In case of incompetents: by serving on him personally AND upon his legal guardian, but not upon his parents, unless when they are his legal guardians

IN ANY EVENT, if the

minor or incompetent has no legal guardian, the

plaintiff must obtain the appointment of a guardian ad litem for him.

Service upon prisonerServe on officer having management of the jail or prison

Service upon domestic private juridical entity ENTITYTo the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.

NOTE: Service upon a person other than those mentioned is invalid and does not bind the corporation. The enumeration is EXCLUSIVE.

Service upon foreign private juridical entityServe on resident agent ; or if none; on govt official designated by law; or

on any officer or agent of the corporation within the Philippines.

Service upon public corporationsin case defendant is the Republic of the Philippines - by serving upon the Solicitor General

in case of a province, city or municipality, or like public corporations by serving on its executive head, or on such other officer or officers as the law or the court may direct.

Extraterritorial serviceRequisites

a. defendant does not reside or is not found within the Phil.

b. he action either:

affects the personal status of plaintiff;

relates to or the subject of which is property within the Philippines in which defendant has a lien or interest;

demands a relief which consists wholly or in part in excluding the defendant from any interest in any property within the Phil; or

property of defendant has been attached in the Phil.

Mode of servicea. with leave of court served outside the Phil. By personal service; or

b. with leave of court serve by publication in a newspaper of general circulation, in which case copy of the summons and order of court must also be sent by registered mail to the last known address of defendant; or

c. any other manner the court deem sufficient.

Service upon a resident temporarily out of the Phil.Substituted service or with leave of court, personal service out of the Phil. as under extraterritorial service

Service upon an unknown defendant or whose whereabouts are unknownWith leave of court, by publication in a newspaper of general circulatiuon

Section 20. Voluntary appearance.

Any form of appearance in court, by the defendant, by his agent authorized to do so, or by attorney, is equivalent to service of summons EXCEPT where such appearance is precisely to object to the jurisdiction of the court over the person of the defendant.

Inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall NOT be deemed a voluntary appearance.

RULE 15MOTIONSMOTION is an application for relief other than by a pleading.

GENERAL RULE: Motions must be in writing.

EXCEPTION: Those made in open court or in the course of hearing or trial.

KINDS OF MOTIONS

a.motion ex parte- made without the presence or a notification to the other party because the question generally presented is not debatable.

b.motion of course where the movant is entitled to the relief or remedy sought as a matter of discretion on the part of the court.

c.litigated motion one made with notice to the adverse party to give an opportunity to oppose.

d.speciaL motion- motion addressed to the discretion of the court.

GENERAL RULE: A motion cannot pray for judgment.

EXCEPTIONS:1. Motion for judgment on the pleadings

2. Motion for summary judgment

3. Motion for judgment on demurrer to evidence.

Section 4. Hearing on motion.

3-day notice rule

GENERAL RULE: Service of the copy of motions should be made in such a manner as shall ensure its receipt at least 3 days before the hearing.

EXCEPTIONS:

1. Ex parte motions

2. Urgent motions

3. Motions agreed upon by the parties to be heard on shorter notice or jointly submitted by the parties, and

4. Motions for summary judgment which must be served at least 10 days before its hearing

5. Non-litigated motions.

Section 5. Notice of hearing.NOTICE OF HEARING shall:

1. Be addressed to all parties concerned

2. Specify the time and date of the hearing which must not be later than 10 days after the filing of the motion

NOTE: Any motion that does not comply with Sections 4, 5 and 6 of this Rule is a mere scrap of paper, should not be accepted for filing and, if filed, is not entitled to judicial cognizance and does not affect any reglementary period involved for the filing of the requisite pleading.

Omnibus Motion Rule - All available grounds for objection in attacking a pleading, order, judgment, or proceeding should be invoked at one time, otherwise, they shall be deemed waived.

Motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted, otherwise, the latter will be denied.

RULE 16MOTION TO DISMISSA Motion to Dismiss is NOT a responsive pleading.

Section 1. Grounds.1. No jurisdiction over the person of the defending party

2. No jurisdiction over the subject matter of the claim

3. Improper venue

4. No legal capacity to sue

5. Litis pendentia

6. Res judicata

7. Prescription

8. States no cause of action

9. Claim or demand has been paid, waived, abandoned, or otherwise extinguished

10. Claim is unenforceable under the Statute of Frauds

11. Non-compliance with a condition precedent for filing claim

MOTION TO DISMISS UNDER RULE 16MOTION TO DISMISS UNDER RULE 33 (demurrer to evidence)

Grounded on preliminary objections.based on insufficiency of evidence.

may be filed by any defending party against whom a claim is asserted in the action.May be filed only by the defendant against the complaint of the plaintiff.

should be filed within the time for but prior to the filing of the answer of the defending party to the pleading asserting the claim against him.May be filed only after the plaintiff has completed the presentation of his evidence.

If denied, defendant answers, or else he may be declared in default

If granted, plaintiff may appeal or if subsequent case is not barred, he may re-file the caseIf denied, defendant may present evidenceif granted, plaintiff appeals and the Order of the dismissal is reversed, the defendant loses his right to present evidence.

Effect of motion to dismiss: A motion to dismiss hypothetically admits the truth of the facts alleged in the complaint.

However, such admission is limited only to all material and relevant facts which are well pleaded in the complaint.

An action cannot be dismissed on a ground not alleged in the motion even if said ground is provided for in Rule 16.

EXCEPT:1. Those cases where the court may dismiss a case motu proprio (Sec. 1, Rule 9)

2. Such ground appears in the allegations of the complaint or in plaintiffs evidence

REQUISITES OF LITIS PENDENTIA1. Parties to the action are the same

2. There is substantial identity in the cause of action and relief sought

3. The result of the first action is determinative of the second in any event and regardless of which party is successful

Motion to dismiss may be filed in either suit, not necessarily in the one instituted first.

REQUISITES OF RES JUDICATA1. Previous final judgment

2. Jurisdiction over the subject matter and the parties by the court rendering it

3. Judgment upon the merits

4. In a case prosecuted between same parties

5. Involving the same subject matter

6. Same cause of action

There could be res judicata without a trial, such as in a judgment on the pleadings (Rule 34); a summary judgment (Rule 35); or an order of dismissal under Section 3 of Rule 17.

When the ground for dismissal is that the complaint states no cause of action, such fact can be determined only from the facts alleged in the complaint.

Where the plaintiff has not exhausted all administrative remedies, the complaint not having alleged the fact of such exhaustion, the same may be dismissed for failure to state a cause of action.

Non-compliance with P.D. 1508 (Katarungang Pambarangay Law) may result to dismissal of the case on the ground of non-compliance with a condition precedent.

An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery.

GENERAL TYPES OF A MOTION TO DISMISS1. motion to dismiss before answer under Rule 16

2. motion to dismiss under Rule 17

a. upon notice by plaintiff

b. upon motion of plaintiff

c. due to fault of plaintiff

3. motion to dismiss on demurrer to evidence after plaintiff has rested his case under Rule 33

4. motion to dismiss the appeal filed either in the lower court (Rule 41,Sec. 13) or in the appellate court (Rule 50, Sec.1 ).

EFFECTS OF ACTION ON MTDREMEDY

Order granting motion to dismiss is final orderAppeal from the order of dismissal

Order denying the motion to dismiss is interlocutoryCertiorari and prohibition if there is grave abuse of discretion amounting to lack or excess of jurisdiction under Rule 65

Section 4. Time to plead.

Defendant is granted only the balance of the reglementary period to which he was entitled at the time he filed his motion to dismiss, counted from his receipt of the denial order, but not less than 5 days in any event.

The same rule of granting only the balance of the period is followed where the court, instead of denying the motion to dismiss, orders the amendment of the pleading challenged by the motion, in which case, the balance of the period to answer runs from his receipt of the amended pleading.

Section 5. Effect of dismissalGENERAL RULE: The action or claim may be refiled.

EXCEPTION: The action cannot be refiled if it was dismissed on any of these grounds:

1. Res judicata;

2. Prescription;

3. Extinguishment of the claim

or demand;

4. Unenforceability under the

Statute of Frauds.

Section 6. Pleading grounds as affirmative defenses.If no motion to dismiss had been filed, any of the grounds for dismissal provided for in Rule 16, INCLUDING IMPROPER VENUE, may be pleaded as affirmative defenses and preliminarily heard in the discretion of the court.

Dismissal under this section WITHOUT prejudice to the prosecution in the same or separate action of a COUNTERCLAIM pleaded in the answer

RULE 17DISMISSAL OF ACTIONSSection 1. Dismissal upon notice by plaintiff.Dismissal is effected not by motion but by mere NOTICE of dismissal which is a matter of right BEFORE the defendant has answered or moved for a summary judgment.

But notice of dismissal requires an order of the court confirming the dismissal.

Such dismissal is WITHOUT PREJUDICE,

EXCEPT:

1. Where the notice of dismissal so provides;

2. Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction (two-dismissal rule);

3. Even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claim involved.

Section 2. Dismissal upon motion of plaintiff.Where the plaintiff moves for the dismissal of his complaint to which a counterclaim has been interposed, the dismissal shall be limited to the complaint.

Such dismissal shall be without prejudice to the right of the defendant to either:

1. Prosecute his counterclaim in a separate action,

In this case, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint.

-OR-

2. To have the same resolved in the same action.

In such case, defendant must manifest such preference to the trial court within 15 days from notice to him of plaintiffs motion to dismiss.

These alternative remedies of the defendant are available to him REGARDLESS OF WHETHER HIS COUNTERCLAIM IS COMPULSORY OR PERMISSIVE.

Dismissal under this rule is WITHOUT PREJUDICE, EXCEPT:1. When otherwise stated in the motion to dismiss;

2. When stated to be with prejudice in the order of the court.

The approval of the court is necessary in the dismissal or compromise of a class suit.

Section 3. Dismissal due to fault of plaintiff.

CAUSES FOR DISMISSAL1. Plaintiff fails to appear for no justifiable cause on the date of the presentation of his evidence in chief on the complaint

2. Plaintiff fails to prosecute his action for an unreasonable length of time (nolle prosequi)

3. Plaintiff fails to comply with these Rules or any order of the court. Unjustifiable inaction on the part of plaintiff to have the case set for trial is a ground for dismissal for failure to prosecute.

Complaint may be dismissed

1. Upon motion of the defendant, or

2. Upon courts own motion.

Dismissal shall have the effect of an ADJUDICATION UPON THE MERITS (WITH PREJUDICE), unless otherwise declared by the court.

SECTION 2SECTION 3

Dismissal is at the instance of the plaintiff;Dismissal is not procured by plaintiff though justified by causes imputable to him;

Dismissal is a matter of procedure, without prejudice unless otherwise stated in the order of the court or on plaintiffs motion to dismiss his own complaint;Dismissal is a matter of evidence, an adjudication on the merits;

Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless w/in 15 days from notice of the motion he manifests his intention to have his counterclaim resolved in the same actionDismissal is without prejudice to the right of the defendant to prosecute his counterclaim on the same or separate action.

RULE 18

PRE-TRIALPRE-TRIAL- a mandatory conference and personal confrontation before the judge between the parties and their respective counsel.

The plaintiff must promptly move ex parte that the case be set for pre-trial , and this he must do upon the service and filing of the last pleading.

The pre-trial and trial on the merits of the case must be held on separate dates.

When non-appearance of a party may be excused (Sec.4):1. If a valid cause is shown therefore

2. If a representative shall appear in his behalf fully authorized in writing to:

a. Enter into an amicable settlement

b. Submit to alternative modes of dispute resolution

c. Enter into stipulations or admissions of facts and of documents

A special authority for an attorney to compromise is required under Sec. 23, Rule 138. Under Art. 1878 (c) of the Civil Code, a special power of attorney is required.

EFFECT OF NON-APPEARANCE OF PLAINTIFF:

Cause for dismissal of the action, with prejudice, unless otherwise ordered by the court.

EFFECT OF NON-APPEARANCE OF DEFENDANT:Cause to allow the plaintiff to present evidence ex parte and the court to render judgment on the basis thereof.

Pre-trial brief. It is the mandatory duty of the parties to seasonably file their pre-trial briefs under the conditions and with the sanctions provided therein.

Failure to file pre-trial brief has the same effect as failure to appear at the pre-trial.

Record of pre-trial. The contents of the PRE-TRIAL order shall control the subsequent course of the action, UNLESS modified before trial to prevent manifest injustice.

A party is deemed to have waived the delimitations in a pre-trial order if he failed to object to the introduction of evidence on an issue outside of the pre-trial order, as well as in cross-examining the witness in regard to said evidence.

FOR CHART ON PRE-TRIAL PLS. SEE THE NEXT PAGE.

RULE 19INTERVENTIONWho may intervene?1. One who has legal interest in the matter in litigation

2. One who has legal interest in the success of either of the parties,

3. One who has an interest against both parties

4. One who is 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.

FACTORS TO BE CONSIDERED BY THE COURT

1. Whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties;

2. Whether or not the intervenors rights may be fully protected in a separate proceeding.

The interest which entitles a person to intervene in a suit must be on the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.

INTERVENTIONINTERPLEADER

An ancillary action.An original action.

Proper in any of the four situations mentioned in this Rule.Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein, which in whole or in part, is not disputed by the other parties to the action.

Defendants are already original parties to the pending suitDefendants are being sued precisely to implead them

Section 2. Time to intervene.

At any time before rendition of judgment by the trial court.

JUSTIFICATION: Before judgment is rendered, the court, for good cause shown, may still allow the introduction of additional evidence and that is still within the liberal interpretation of the period for trial.

Since no judgment has yet been rendered, the matter subject of the intervention may still be readily resolved and integrated in the judgment disposing of all claims in the case.

REMEDIES FOR THE DENIAL OF INTERVENTION:

1. Appeal

2. mandamus if there is grave abuse of discretion

If there is improper granting of intervention, the remedy of the party is certiorari.

RULE 21SUBPOENASUBPOENASUMMONS

an order to appear and testify or to produce books and documentsOrder to answer complaint

may be served to a non-partyServed on the defendant

needs tender of kilometrage, attendance fee and reasonable cost of production feedoes not need tender of kilometrage and other fees

SUBPOENA AD TESTIFICANDUM a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition.

SUBPOENA DUCES TECUM a process directed to a person requiring him to bring with him books, documents, or other things under his control.

Section 2. By whom issuedWho may issue

1. Court before whom the witness is required to attend

2. Court of the place where the deposition is to be taken

3. Officer or body authorized by law to do so in connection with investigations conducted by said officer or body

4. Any Justice of the SC or of the CA in any case or investigation pending within the Philippines.

Subpoena to a prisoner must be for a valid purpose; if prisoner required to appear in court is sentenced to death, reclusion perpetua or life imprisonment and is confined in prison must be authorized by the SC.

Section 4. Quashing a subpoena.

A. Subpoena duces tecum may be quashed upon proof that:

1. It is unreasonable and oppressive;

2. The articles sought to be produced do not appear prima facie to be relevant to the issues;

3. The person asking for the subpoena does not advance the cost for the production of the articles desired.

B. Subpoena ad testificandum may be quashed if the witness is not bound thereby.

In EITHER case, the subpoena may be quashed for failure to tender the witness fees and kilometrage allowed by the Rules.

GENERAL RULEa. The court which issued the subpoena may issue a warrant for the arrest of the witness and make him pay the cost of such warrant and seizure, if the court should determine that his disobedience was willful and without just cause (Sec. 8);

b. The refusal to obey a subpoena without adequate cause shall be deemed a contempt of the court issuing it (Sec.9).

Exceptions:Provisions regarding the compelling of attendance (Sec. 8) and contempt (Sec. 9) does not apply where:

a. Witness resides more than 100 km from his residence to the place where he is to testify by the ordinary course of travel, generally, by overland transportation (VIATORY RIGHT).

b. Permission of the court in which the detention prisoners case is pending was not obtained.

RULES OF DISCOVERY

DISCOVERY - is the procedure by which one party in an action is enabled to obtain before trial knowledge of relevant facts and of material evidence in the possession of the adverse party or of a witness.

Rationale of discovery: to enable the parties to obtain the fullest possible knowledge of the issues and evidence long before the trial to prevent such trial from being carried on in the dark.

Modes of discovery under the Rules of Court1. Depositions pending action (Rule 23).

2. Depositions before action or pending appeal (Rule 24).

3. Interrogatories to parties (Rule 25).

4. Admission by adverse party (Rule 26).

5. Production or inspection of documents, or things (Rule 27).

6. Physical and mental examination of persons (Rule 28).

Discovery before answer.It is only in the exceptional or unusual case that the need for discovery arises, or that it should be allowed before service of answer.

Modes of Discovery are intended to be CUMULATIVE, and not alternative nor mutually exclusive.

Discovery is NOT MANDATORY but failure to avail carries sanctions in Rules 25 and 26.

RULE 23

DEPOSITIONS PENDING ACTIONDEPOSITION is a written testimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing upon oral examination or in response to written interrogatories and where an opportunity is given for cross-examination.

Depositions are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person, which are relevant in a suit/proceeding.

CLASSIFICATIONS OF DEPOSITIONS1. Depositions on ORAL EXAMINATION and Depositions upon WRITTEN INTERROGATORIES

2. Depositions DE BENE ESSE - those taken for purposes of a pending action (Rule 23) ; and

3. Depositions IN PERPETUAM REI MEMORIAM - those taken to perpetuate evidence for purposes of anticipated action, or in the event of further proceedings in a case on appeal, and to preserve it against danger of loss (Rule 24).

WHEN TAKENWITH LEAVE OF COURT

1. after jurisdiction has been obtained over any defendant or over the property which is the subject of the action and BEFORE answer.

2. Deposition of a person confined in prison.

WITHOUT LEAVE OF COURT

AFTER answer AND deponent is not confined in prison.

Section 4. Use of depositions.Where the witness is available to testify and the situation is not one of those excepted under Sec. 4, his deposition is inadmissible in evidence and he should be made to testify.

It can be used as evidence by a party for any purpose under the specific conditions in Sec. 4.

DEPONENTUSE

Any personBy any party for contradicting or impeaching the testimony of deponent as witness

A party or any one who at the time of the deposition was an OFFICER, DIRECTOR, or MANAGING AGENT of a public or private corp., partnership, or association which is a partyBy an adverse party for any purpose

Witness, whether or not a partyBy any party for any purpose if the court finds the 5 instances occurring

SCOPE OF INQUIRY IN DEPOSITIONS:1. Matter which is relevant to the subject of the pending action;

2. Not privileged

3. Not restricted by a protective order

Certiorari will not lie against an order admitting or rejecting a deposition in evidence, the remedy being an appeal from the final judgment.

Section 7. Effect of taking depositions.A party shall not be deemed to make a person his own witness for any purpose by taking his deposition because depositions are taken for discovery and not for use as evidence.

Exception: If a party offers the deposition in evidence, then he is deemed to have made the deponent his witness (Sec.8)Exception to the Exception: Unless the deposition is that of any adverse party, and unless, of course, the deposition is used for impeaching or contradicting the deponent (Sec.8).

Section 10 and 11. Persons before whom depositions may be taken.

WITHIN THE PHILIPPINES:1. judge

2. notary public

3. any person authorized to administer oaths, as stipulated by the parties in writing

OUTSIDE THE PHILIPPINES:1. on notice, before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Phil.

2. before such person or officer as may be appointed by commission or letters rogatory

3. any person authorized to administer oaths, as stipulated by the parties in writing

Section 12. Commission or letters rogatory.

COMMISSIONLETTERS ROGATORY

Issued to a non-judicial foreign officer who will directly take the testimonyIssued to the appropriate judicial officer of the foreign country who will direct somebody in said foreign country to take down testimony

Applicable rules of procedure are those of the requesting courtApplicable rules of procedure are those of the foreign court requested to act

Resorted to if permission of the foreign country is givenResorted to if the execution of the commission is refused in the foreign country

Leave of court is not necessaryLeave of court is necessary

Section 18. Motion to terminate or limit examination.

MAY BE FILED:

1. any time during the taking of the deposition

2. on motion or petition of any party or of the deponent; or

3. upon showing that the examination is conducted in :

a. bad faith

b. in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party

RULE 24DEPOSITIONS BEFORE ACTION OR PENDING APPEALDepositions under this Rule are also taken conditionally, to be used at the trial only in case the deponent is not available.

Depositions under this Rule do not prove the existence of any right and the testimony perpetuated is not in itself conclusive proof, either of the existence of any right nor even of the facts to which they relate, as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever had. However, in the absence of any objection to its taking, and even if the deponent did not testify at the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition.

Section 6. Use of deposition.If deposition is taken under this Rule, it may be used in any action involving th