CIVPRO_rule4-10

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1 REVIEWER IN CIVIL PROCEDURE BY DUKE SUCGANG

RULE 4VENUE OF ACTION

VENUEthe place or the geographical area where an action is to be filed and tried. It

relates only to the place of the suit and not to the jurisdiction of the court in civil cases.

The laying ofvenue is procedural not substantive. It relates to the venue of the courtover the person rather than the subject matter. The parties may waive the venue of a

case. Venue is not a matter of jurisdiction. It becomes jurisdictional only in criminal

cases.

The trial court cannot motu proprio dismiss a case on the ground of improper

venue. The court may motu proprio dismiss an action in cases of lack of

jurisdiction over the subject matter, litis pendencia, res judicata and

prescription.

The court may however, effect a motu proprio dismiss the complaint based onimproper venue in an action covered by the rules on summary procedure.

The rule on venue should be construed liberally especially for theconvenience of the plaintiff

How venue is determined:1. Personalvenue is the residence of the plaintiff or defendant at the option of

the plaintiff. If the defendant is a non-resident, the venue is the residence of

the plaintiff or where the non-resident defendant may be found, at the election

of the plaintiff.

2. Realthe place where the real property involved, or any portion thereof, issituated. However, if the defendant is a non-resident and is not found in the

Philippines, and the action affects the personal status of the plaintiff, or any

property of the defendant located in the Philippines, the venue is the residence

of the plaintiff or where the property or any portion thereof is situated.

Examples of Real Actions

a. An action to annul transfers of real estate made by decedentb. Action to annul free patent for a parcel of landc. Action to declare a certain lot as conjugal property of the widowd. Action to annul transfers of the plaintiff to demand damages for improvements

which he had made on the lot of the defendant

e. Action to declare the sale of the fishpond as fictitious, being in reality an action forits recovery

When an action involves various parcels of land situated in different provinces ofone and same transaction, the RTC in any of the said provinces may take

cognizance of the action, judgment rendered may be executed in the other provinces

where the rest of the real estate is situated

Various parcels of land situated in different provinces cannot be the subject of asingle complaint, if they are objects of separate and distinct transactions. There is

no common venue. Venue is limited to the respective RTC where each real estate is

located

Examples of Personal Actions:

a. Action for breach of covenant in a leaseb. Action to recover a debtc. Action for collection of rents and rules of venue of actions for forcible entry and

unlawful detainer do not apply

d. Action to liquidate a partnershipe. Recovery of damagesf. Action to compel defendants to execute the corresponding purchase contracts in

favour of the plaintiffs, involving real property and to pay damages

The parties may stipulate venue as long as the agreement is in:1. Writing2. Made before the filing of the action3. Exclusive as to the venue

Restrictive stipulationthe suit be filed only in the place agreed upon by theparties. With restrictive words.

only, solely, exclusive in this court, in no other court save ,particularly, nowhere else but/except , or words of equal import

Permissive stipulationonly or merely consented to the place or venue and noqualifying or restrictive words.

When a MD to dismiss based on improper venue is denied, the defendant maynot appeal. An order denying a motion to dismiss is merely interlocutory. It is

not final. Only final orders or judgments may be appealed from.

The normal remedy is to file an answer and interpose the ground as anaffirmative defense, go to trial and appeal from the adverse judgment. The

remedy is certiorari and prohibition.

If the venue is improper, it would not be correct to file a MD on lack ofjurisdiction because venue has nothing to do with jurisdiction in civil cases

Improper venue is not jurisdictional in civil cases. But in criminal casevenue is territorial jurisdiction.

In criminal cases, venue is jurisdictional it being an essential element ofjurisdiction.

Jurisdiction Venue

Authority of the court to hear the case Place where the action is brought or tried

Over the subject matter cannot be waived Waivable and can be subject ofagreement

Governed by substantive law, BP 129 Governed by procedural lawRule 4 of

Rules of CourtRefers to the relation of the parties of thecourt

Refers to the relation between the parties

Limits the courts authority Limits plaintiffs right

In case of non-resident defendants, and the action affects the personal status of thplaintiff, or any property of said defendant located in the Philippines, the action

may be commenced and tried in the court of the place where the plaintiff resides,

where the property or any portion thereof is situated or found.

It is an action in rem orquasi in rem in connection with the property located in thPhilippines, the court acquires jurisdiction over the res, and its jurisdiction over t

person of the non-resident is non-essential.

It is not necessary that the court should take actual custody of the property,potential custody thereof being sufficient

This rule shall not apply in those cases where a specific rule or law providesotherwise; or where the parties have validly agreed in writing before the filing of

the action on the exclusive venue thereof.

RULE 6KINDS OF PLEADING

PLEADINGSwri tten statements of the respective claims and defences of the parti e

submitted to the court for appropriate judgment. (SEC.1)

Purpose of pleadings:1. To APPRAISEthe court of the rival claims in a judicial controversy

submitted for trial and decision

2. To INDICATEfairly the nature of the claims and defences of bothparties

3. To DEFINEthe issues and form the foundation of proof to besubmitted during trial as well as advice a party to what his adversary

would rely on as a cause of action or as defense

It is designed to create only the skeleton or framework of a lawsuitNecessity of pleadings

Pleadings are necessary to invoke the jurisdiction of the court. Also, in order toconfer the jurisdiction on a court, that the subject matter be presented for its

consideration in a mode sanctioned by law and done by the filing of the complain

or other pleading.

Pleadings are intended to secure a method by which the issues may be properly labefore the court.

The pleadings are designed to present, define and narrow the issues, to limithe proof to be submitted in the trial, to advise the court and the adverse par

of the issues and what are relied upon as the causes of action or defense

The pleadings of the parties present the issue to be tried and determinewhether such issue is of law or of fact

All pleadings should be liberally construed in order that the litigants may haveample opportunity to prove their respective claims and a possible denial of

substantial justice due to legal technicalities may be avoided.

In case there are ambiguities in the pleadings, the same must be construed againstthe pleader and that no presumptions in his favour are to be indulged in

The real test of a good pleading is whether the information given is sufficient toenable the party to plead and prepare for trial. A legal conclusion may serve the

purpose of pleading as well as anything else if it gives the proper information

Issues arise upon the pleadings where a fact or conclusion of law ismaintained by the one party and converted by the other. An issue of fact


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arisesa. upon a material allegation in the complaint converted by the answer;

b. upon new matters in the answer except an issue of fact is joined thereon. A

question not raised in the pleading may properly be ignored by the court.

Pleadings allowed:1. Complaint2. Counterclaim3. Cross claim4. Third, fourth, etc., party complaint5. Complaint-in-intervention6. Answer7. Reply8. Counter- counterclaim9. Counter-crossclaim

Pleadings allowed under Summary Procedure (complaint; compulsorycounterclaim; cross-claim pleaded in the answer; and answer); [permissive

counterclaims, third-party complaints, replies and pleadings-in-intervention are

prohibited]

Pleadings not allowed in a petition forwrit of amparo or habeas data arecounterclaim, cross-claim, third-party complaint, reply and pleadings in

intervention

Pleading Motion

Purpose is to submit a claim or defensefor appropriate judgment

Purpose is to apply for an order notincluded in the judgment

May be initiatory Cannot be initiatory as they are alwaysmade in a case already filed in court

Always filed before judgment May be filed even after judgment

Only 9 kinds of pleadings are allowed Any application for relief not by apleading is a motion

Must be written May be oral or written

Complaintit is the pleading alleging the plaintiffs cause or causes of action.The names and residences of the plainti ff and defendant must be stated in the

complaint.(sec. 3)

The office, purpose and function of a complaint is to apprise defendant of thecause of action which he is to meet

The test for determining the sufficiency of the complaint if it fairly apprisesthe defendant of the plaintiffs real claims and contentions in such manner

that the defendant is not misled to his surprise or injury. It is whether upon

such facts a judgment may be rendered against the defendant

If a complaint be defective, but the parties go to trial, and the plaintiff withoutobjection, introduces sufficient evidence to constitute the particular cause of actionintended to allege in the original complaint and defendant did not object, an issue is

joined as fully and as effectively as if it had been previously joined by the most

perfect pleading

When a complaint does not contain the fats constituting the cause of action, it maynot be cured by the exhibits attached to it

When a document attached to the complaint contradicts the latters allegation, thedefendant should be made to answer the same so as to establish an issue and then

the parties will be given an opportunity, the plaintiff to reconcile any apparent

conflict between the allegations in his complaint and a document attached to

support the same, and the defendant an equal opportunity to refute the allegations of

the complaint and to show that the conflict between its allegation and te document

attached to it is real, material and decisive

Contents:1. Cause of action2. Names and residence of parties

It must contain ultimate facts, or essential facts constituting plaintiffs causeof action.

Must exclude evidentiary facts and conclusions of law. Answeris a pleading in whi ch a defendi ng party sets for th h is defenses. (sec. 4)

The real function of an answer is to define the issue and show why theplaintiff is not entitled to judgment

The purpose of an answer is to notify the court and the plaintiff of the defenserelied on so that the latter may prepare to meet it and to defeat the action and

bar plaintiffs recovery

Defensemay either be negative or affirmative

1. Negativespecific denial of the material fact or facts alleged in the pleadinof the claimant essential to his cause or causes of action.

2. Affirmativewhen it alleges new matter which, while hypotheticallyadmitting the material allegations in the pleading of the claimant, would

nevertheless prevent or bar recovery by the claiming party. The affirmative

defense include fraud, statute of limitation, release, payment, illegality, stat

of frauds, estoppel, former recovery, discharge in bankruptcy, and any othe

matter by way of confession and avoidance.

Before an affirmative defense qualifies, it must be of such nature as to bar tplaintiff from claiming on his cause of action

The defendant may admit the material allegation in the complaint, however, he wplead a new matter which will prevent a recovery by the plaintiff.

Specific denialthe denial of each material allegation of the fact of the complaint

the truth of which does not admit.

The purpose of specific denial is to make him disclose alleged in thecomplaint which he succinctly intends to disprove at the trial, together with

the matter which he relied upon to support the denial

Absence of a denial (except as to amount of unliquidated damages) notspecifically denied are deemed admitted. If the allegations are deemed

admitted, there is no more triable issue between the parties and if the

admissions appear in the answer of the defendant, the plaintiff may file a

motion for judgment on the pleadings under rule 34.

A party who desires to contradict his own judicial admission may do so only byeither of:

a. Showing that the admission was made through palpable mistake, orb. That no such admission was made

Kinds of specific denial:1. Absolute denialdefendant specifies each material allegation of fact the

truth of which he does not admit and sets forth the substance of the matters

upon which he relies to support his denial

2. Partial denialwhere the defendant does not make a total denial of thematerial allegation in a specific paragraph. He denies only a part of the

averment. If he chooses this type of denial, he specifies that part the truth o

which he admits and denies only the remainder.

Ex. Defendant admits the allegations in par. 5 of the complaint, that plaintif

sustained injuries, but denies the allegation that the collision occurred throu

defendants fault.

3. Denial by disavowal of knowledgewhere the defendant alleges that hewithout knowledge or information sufficient to form a belief as to the truth

a material averment made in the complaint.

Negative pregnantdoes not qualify as a specific denial. It is conceded to beactually an admission. It is a negative implying also an affirmative and which

although is stated in a negative form really admits the allegations to which it relat

Specific denial must be coupled with an oath in:a. Denial of an actionable documentb. Denial of allegations of usury in a complaint to recover usurious interest

If a party desires to deny the genuiness and the due execution of the document, hmust:

a. Specifically deny the document, and to set forth what he claims to be the fab. Deny the document under oath The failure to deny does not preclude a party from arguing against it by

evidence of fraud, mistake, compromise, payment, statute of limitations,

estoppel, and want of consideration

Counterclaimany claim which a defending part y may have against anopposing par ty. (sec. 6)

This may refer to a claim for money, or some other relief against an opposing par The nature of the counterclaim is distinct and independent cause of action,

that when properly stated, the defendant becomes an actor and there are two

simultaneous actions pending between the same parties, wherein each is at

same time both a plaintiff and a defendant

It is an offensive as well as a defensive plea and not necessarily confined tothe justice of the plaintiffs claim

The purpose of counterclaim are designed to enable the disposition of a whcontroversy ofinterested parties conflicting claims, at one time and in one

action, provided all parties can be brought before the court and matter decid

without prejudicing the rights of any party


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It is permitted in such a way of preventing multiplicity of suits by allowing inone action the determination of the entire controversies between the parties

Counterclaim is not a part of the answer because it is a separate pleading. Itmay however, be included in the answer.

Counterclaim May Be Compulsory Or Permissive. Compulsory counterclaim (sec. 7):

1. Ar ises out of the transaction or occur rence that is the subject matterof the opposing partys claim

2. Fall s within the juri sdiction of the court3. Does not require for its adjudi cation the presence of thi rd parti es over

whom the court cannot acquir e ju ri sdiction.

A permissivecounterclaim does not have the requisites of a compulsorycounterclaim. Absence of a logical connection with the subject matter of the

complaint

Elements of Compulsory Counterclaim

a. It arises out of, or is necessarily connected with the transaction or occurrencewhich is the subject matter of the opposing partys claim

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

c. The court has jurisdiction to entertain both as to the amount and nature A compulsory counterclaim not initially set up because of the pleaders oversight,

inadvertence, excusable negligence or when justice requires, may be set up, by

leave of court by amendment of the pleadings before judgment.

If not set up in the action, the compulsory counterclaim shall be barred. A counterclaim whether matured r acquired by a party after serving his pleading,

may, with the permission of the court, be presented as a counterclaim by

supplemental pleading before judgment

The rules recognize the right of the defending party to prosecute the counterclaim inthe same or separate action notwithstanding the dismissal of the complaint, and

without regard as to the permissive or compulsory nature of the counterclaim

Compulsory Permissive counterclaim

When filed at the time the answer is filed,shall be contained in the answer because

a CC not set up shall be barred

Not subject to the rule. It may be set upas an independent action and will not be

barred if not contained in the answer tothe complaint

Not an initiatory pleading Considered an initiatory pleading

Does not require the certificate of non-forum shopping and issued by the LuponTagapamayapa

A certification against non-forumshopping and certificate to file actionissued by Lupon Tagapamayapa

A CC that merely reiterates specialdefenses are deemed controverted evenwithout a reply, or raises issues which aredeemed automatically joined by theallegations of the complaint, need not beanswered. Failure to answer a CC may

not be a cause for a declaration of default

A PC must be answered by the partyagainst whom it is interposed, otherwise,he may be declared in default as to thecounterclaim.

Docket and other lawful fees should bepaid

A compulsory counterclaim not initially set up because of the pleaders oversight,inadvertence, excusable neglect or when justice requires, may be set up by leave of

court by amendment of the pleadings before judgment. If not set up in the action,

the CC shall be barred.

A counterclaim may be set up after the filing of the answer with leave of court bysupplemental pleading before judgment

Period to answer a counterclaimmust be made within 10 days from service. Effect of dismissal of a complaint on the counterclaim already set up

1. Dismissal of the complaint shall be without prejudice to the prosecutionin the same or separate action of counterclaim pleaded in the answer

2. Dismissal shall be limited to the complaint unless within 15 days fromnotice of the motion he manifests his preference to have his

counterclaim resolved in the same action

3. If complaint is dismissed through plaintiffs fault, the dismissal will notprejudice the counterclaim.

Cross-claimany claim by one party against a co-party arisi ng out of thetransaction or occurr ence that is the subject matter either of the origin al action or

of a counterclaim. I t may include a claim that the party against whom it i s

asserted is liabl e or maybe li able to the cross-claimant for all or part of a claim

asserted in th e action agai nst the cross-claimant. (sec. 8)

While a counterclaim is asserted by a defending party against a claimant, a cross-claim is asserted by a defending party against a co-defending party so that the latt

may be held liable for the claim which the claimant seeks to recover from the cro

claimant.

The period to answer a cross-claim must be made within 10 days from serv The purpose of cross-claim is to determine the entire controversy, including

the defendants sued together, with a minimum of procedural steps

Cross-claim Counterclaim

A claim against a co-party Claim against an opposing party

Must arise from the transaction oroccurrence that is the subject matter ofthe original complaint or counterclaim

May or may not arise out of the subjectmatter of the complaint (Sec. 9)

Counter counterclaims and counter cross-claims may be asserted against anori ginal coun terclaims. A cross-claim may also be filed against an origi nal cr o

claimant

Replyis a pleading, of whi ch i s to deny or allege facts in denial or avoidancenew matters all eged by way of defense in the answer and thereby join s or make

issue as to such new matters. (Sec. 10)

A reply is purely a defensive pleading; it is addressed to the answer; its office orfunction is to attack the answer and to meet, make or join issues as to, the new

matters alleged therein, by denying or traversing them, or alleging facts in

avoidance thereof, or averring new matters to overcome an affirmative defense

It is a responsive pleading to an answer. Not a responsive pleading to acounterclaim or cross-claim.

The filing of the reply is not mandatory and will not have an adverse effect on thedefendant.

If a party does not file such reply, all new matters alleged in the answer are deemcontroverted or denied. No admission follows from the failure to file a reply.

The material allegations of a complaint must be specifically denied but theallegations of new matters or material allegations of the answer need not be denie

because they are deemed denied by the Rules for the plaintiff.

When the defense in the answer is based upon a written instrument ordocument, said instrument is considered an actionable document. Hence, th

plaintiff has to file a reply under oath if he desires to deny specifically the

genuiness and due execution of the actionable document if he wants to avo

an admission of such matters

Third, (forth, etc.) party complaintthi s pleading is a claim which a defendinparty, with leave of court , fi le against a person who i s not yet a party to t he act

for contr ibuti on, indemnity, subrogation or any other relief, in r espect of his

opponents claim. (Sec. 11)

A third-party complaint is actually a complaint independent of, and separate anddistinct from the plaintiffs complaint.

The courts are vested with discretion to allow or disallow a party to an action toimplead an additional party.

It is not proper to file a third-party complaint against the plaintiff is asserted by wof a counterclaim.

Time to answer a third party complaint shall be within 15 days from service ofsummons. (sec. 13)

The purpose of third-party complaint is to avoid delay and circuity of actionand to enable the controversy to be disposed of in one suit, that is, to permi

the determination in a single suit of not only the original claim, but the add

partys liability therefor

Rule 7PARTS OF A P LEADING

Parts of a pleading:

1. Caption2. Title3. Body4. Signature and address5. Verification6. Certificate against forum shopping

Pleading must only aver facts and not conclusion because the latter are for thecourts to make.


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Evidentiary are not presented in pleading because it must be presented during thetrial

It must only contain ultimate facts because it is essential to a partys cause ofaction or defences.

I. Captionsets forth the name of the court, title of the action and docketnumber if assigned.

II. Titleit shall indicate the names of the parties which shall be named inthe original complaint or petition; but in the subsequent pleadings, it

shall be sufficient if the name of the first party of each side be stated

without the other.

Only write the first name of plaintiff and defendant and followed by the word ETAL.

It is not the caption of the pleading but the allegations which determine the natureof the action and the court shall grant relief warranted by the allegations and proof

even if no such relief is prayed for

Instances where the law does not require the name of the parties to bestated:

1. Subsequent pleading2. Class suit3. When the identity or name of the defendant is unknown4. When you sue an entity without judicial personality5. If a party is sued in his official capacity. Official designation is

sufficient.

III. Bodybody of the pleading sets forth its designation, the allegations ofthe partys claims or defenses, the relief prayed for and the date of the

pleading

a. Paragraphsb. Headingsc. Reliefd. Date

Par. 2 is related to Rule 2 on joinder of causes of action. One can file a complaintembodying two or more causes of action.

The prayer in a pleading does not constitute an essential part of the allegationsdeterminative of the jurisdiction of a court. The prayer for relief, although part of

the pleading, cannot create a cause of action; hence, it cannot be considered as a

part of the allegations on the nature of the cause of action.

Pleading must state the relief sought but it may add a general prayer for such furtherother relief.

When two or more causes of action are joined, the first cause of action shall beprefaced with the words, first cause of action, or and so on for the others.

A pleading should contain only allegations of ultimate facts, facts essential to apartys cause of action or defense or such facts as are so essential that they cannot

be stricken out without leaving the statement of the cause of action inadequate.

The complaint must contain relief sought from the court and to which he believeshe is entitled. wherefore clause.

The relief or prayer, although part of the complaint, does not constitute a partof the statement of cause of action. it does not also serve to limit or narrow

the issues presented

It is important to remember that the court may grant a relief prayed not prayedfor as long as the relief is warranted by the allegations of the complaint and

the proof

IV. Signature and address of the plaintiff or counsel must be indicated inthe pleading.

An unsigned pleading has no legal effect but the court may authorize to allow thepleader to correct the deficiency if the pleader shows to the satisfaction of the court,

that the failure to sign the pleading was due to inadvertence and not to delay theproceedings.

One must state the address and not a post office box because the exact date whenthe mail is claimed cannot be determined if it is a PO box.

Signature and address must constitute a certificate by him that:1. He has read the pleading2. That to the best of the knowledge, information and belief that there is a

good ground to support it

3. That it is not interposed for delay Counsel who files and unsigned pleading may constitute disciplinary action.

However; he may delegate the signing of the pleading to another lawyer but cannot

do so in favour of on who is not.

A signature by agents of a lawyer amount to signing by unqualified persons, thusvoid.

Disciplinary actions:a. When he deliberately files an unsigned pleadingb. When he signs a pleading in violation of the Rulesc. When he alleges in the pleading scandalous or indecent matterd. When he fails to promptly report to the court a change of his address

V. Verification A pleading is verified by an affidavit which declares that:

1. Affiant has read the pleading2. That the allegations therein are true and correct of his

personal knowledge

The general rule is that pleadings do not have to be verified. Verification is requironly if the rules or the law requires a pleading to be verified. If a pleading require

to be verified does not contain a verification, it will constitute a substantial defec

The verification requirement is significant to secure an assurance that theallegations in a pleading are true and correct and not the product of the imaginatio

or a matter of speculation, and the pleading is filed in good faith.

It has the same consequence as an unsigned pleading. An unsigned pleading and unverified pleading when verification is required produces no legal effect

whatsoever. The absence of verification when required will not affect the

jurisdiction of the court but it is still a substantial defect.

Absence of verification is cause to treat the pleading as unsigned anddismissible.

It is only formal and not a jurisdictional requirement. Non-compliance does notrender it fatally defective

It is correctible by requiring an oathVI. Certification against non-forum shopping

It is a sworn statement certifying the following matters:a. That the party has commenced or filed any claim involvin

the same issues in any court, tribunal or quasi-judicial an

to the best of his knowledge, no other cause of action or

claim pending

b. That if there is such other pending action or claim, acomplete statement of the present status thereof

c. That if he should learn that the same or similar action orclaim has been filed or pending, he shall report the fact

within 5 days therefrom to the court where the complaint

initiatory pleading has been filed.

Failure to comply with the requirements shall not be curable by mereamendment of the complaint or other initiatory pleading, but shall be the

cause for the dismissal of the case without prejudice.

If the certification is false or non-compliance with any of the undertakingsshall constitute indirect contempt of the court, without prejudice to the

corresponding administrative and criminal actions.

If the acts constitute wilful and deliberate forum shopping shall be a groundfor summary dismissal with prejudice and shall constitute direct contempt a

well as a cause for administrative sanctions.

forum shopping when a party institute two or more suits in different courts,either simultaneously or successive, in order to ask the courts to rule on the same

related causes and/or grant the same or substantially the same reliefs or causes on

the supposition that one or the other court would make a favourable disposition or

increase a partys chances of obtaining a favourable decision or action.

It is mandatory but not jurisdictional It is the plaintiff or principal party who executes the CFNS under oath and not

executed by the attorney. Signed by the party himself and cannot be signed by hi

counsel The reason that the party himself signed the CFNS is that he has actual

knowledge, or knows better than anyone else, whether he has initiated simi

action/s in other courts, agencies or tribunals.

How to determine forum shopping?elements oflitis pendencia arepresent or a final judgment in one case will result to res judicata in another

Whether in two or more cases pending, there is:a. Identity of the partiesb. Identity of the rights or causes of actionc. Identity of reliefs sought

Liberal interpretation of the rules on the signing of the certificate againstforum shopping to achieve substantial justice as expeditiously as possible.

Dismissal for failure to comply with the required CNFS is not to be donemotu proprio by the court but upon motion and after hearing.


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Dismissal is non-appealable. The remedy is to avail of the appropriate civilaction under Rule 65.

A juridical entity can only perform physical acts through properly delegatedindividuals. The CFNS may be executed by properly authorized persons

Wilful and deliberate forum shopping shall be a ground for summarydismissal and no motion to dismiss and hearing are required. Dismissal is

with prejudice and shall constitute direct contempt and administrative

sanctions

Submission of false certification shall constitute indirect contempt of courtwithout prejudice to the corresponding administrative and criminal sanctions

Non-compliance with the undertakings in the CFNS has the same effect as thesubmission of a false certificate.

CNFS should cover:1. Complaints/petitions2. Permissive counterclaims3. Petition for review4. Third party complaint5. Cross claim6. Complaint in intervention

not covered1. answer with compulsory counterclaim2. appeals3. criminal cases4. cases before administrative body

Rule 8MANNER OF MAKING ALLEGATIONS IN PLEADINGS

Every pleading shall contain in a methodical and logical form a plain, conciseand direct statement of the ultimate facts, omitting the statement of mere

evidentiary facts. If a defense relied on is based on law, the pertinent

provisions thereof and their applicability to him shall be clearly and concisely

stated.

An ideal pleading is brief and concise The purpose of pleadings is to settle and define the issues between the parties,

so that the court may be advised as to the questions in dispute

Logical order should be observed in the statement of ultimate facts to avoidrepetition, as well as to obtain conciseness, logical order

The ultimate facts should be alleged by direct averment. They must be statedpositively and not hypothetically

ultimate facts those which directly form the bases of the rightsought to be enforced or the defenses relied upon, if the ultimate facts

are not alleged, the cause of action would be insufficient. It is which the

evidence will support.

evidentiary facts those which are necessary to prove the ultimatefacts or which furnish evidence of the existence of some other facts.

Should not be stated in the pleading but should be brought out during

the trial.

Essential elements of a cause of action1. Statement of the right2. Statement of the obligation3. Statement of the violation4. Statement of the damage

Only ultimate facts should be alleged and not evidentiary facts Conclusions of law may not be pleaded as ultimate facts. Conclusions of law

is a statement of a right or liability flowing from a certain facts

Facts and not conclusions of fact should be pleaded Other matters that should not be stated in the pleadings are:

1. Facts which are presumed by law2. Conclusions of fact or law3. Matters which are in the domain of judicial notice

Alternative causes of action or defensesa party may set forth two or morestatements of a claim or defenses alternatively or hypothetically either in one

cause of action or defense or in separate causes of action or defenses. When

two or more statements are made in the alternative and one of them if made

independently would be sufficient, the pleading is not made insufficient by the

insufficiency of one or more of the alternative statements.

Allegation or averments in a pleading are made depending on whatmatters are being alleged in the complaint. Whether is a condition

precedent, capacity to sue or be sued, fraud, mistake, malice, judgmen

official document or act.

Facts that may be averred generally:1. Conditions precedent2. Capacity to sue or be sued3. Capacity to sue or be sued in a representative capacity4. Legal existence of an organization5. Malice, intent, knowledge or other condition of the mind6. Judgments of domestic or foreign courts, tribunals, boards or officers7. Official document or actrefers to a written instrument upon which the

action or defense is based.

2 options on how to plead an actionable document:1. The substance of such instrument or document, shall be set forth in th

pleading; and the original or a copy thereof shall be attach as an exhi

2. The copy of the document may with like effect be set forth in thepleading in whicih there is no need to attach the copy.

Denial not under oath still valid when the requirements of an oath does notapply:

1. When the adverse party does not appear to be a party to the instrumen2. When compliance with an order for an inspection of the original

instrument is refused

3. When the document to be denied is not classified as an actionabledocument but merely an evidentiary matter. When the document is no

actionable, there is no need to follow Sec. 7.

A general averment of the capacity of a party to sue or be sued or the authority of aparty to sue or be sued in a representative capacity is not sufficient. Facts showing

such capacity or authority is necessary to be alleged

The issue as to the capacity of any party to sue or be sued should cannot be contestat the trial unless such legal existence, capcity or authority has been contested by

specific denial, and the such denial contains supporting particulars which are withi

the pleaders knowledge

It is not sufficient that the legal existence of an association of persons that is made party to an action be averred generally. Fact showing the legal existence of such

association must be alleged specifically

If the defendant fails to assert plaintiffs lack of capacity to sue by MD or in theanswer, it shall be deemed to have waived such objection.

Fraud or mistake must be stated with particularity to appraise the other parof what he is to be called on to answer, and so that it may be determined

whether the facts and circumstances alleged amount to fraud

Failure to allege fraud or mistake with as much particularity as is desirable not fatal if the general purport of the claim or defense is clear, since all

pleadings should be so construed as to do substantial justice.

Matters not deemed admitted by the failure to make a specific denial:

a. The amount of unliquidated damagesb. Conclusions in a pleading which do not have to be denied at all because on

ultimate facts need be alleged in a pleading

c. Non-material averments or allegations are not deemed admitted because onmaterial allegations have to be denied

RULE 9EFFECT OF FAILURE TO PLEAD

Defenses and objections not pleaded either in a motion to dismiss or in theanswer are deemed waived.

Defenses or objections that can still be taken cognizance of the court despitethe fact that they are not raised in the motion to dismiss or answer:

1. The court has no jurisdiction over the subject matter2. There is another action pending with the same parties for the same cau

(li tis pendencia)

3. The action is barred by prior judgment ( res judicata)4. The action is barred by statute of limitation (prescription) The presence of these grounds authorized the court to motu proprio dism

the claims. These ground must, however, appear from the pleadings or th

evidence on record.


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The exceptions can be raised at any time during or after the trial or even forthe first time on appeal.

Exceptions:

a. Where the court has no jurisdiction over the subject matterfailure toplead lack of jurisdiction in the answer does not waive such defense. The

defense of lack of jurisdiction may be raised for the first time by motion to

dismiss filed after answer

b. Where there is another action pending between the same parties for thesame causein order for such action to be dismissed, the following must

concur:

1. Identity of the parties or at least representing the same interests inboth actions

2. Identity of rights asserted and relief prayed for, the relief beingfounded on the same facts

3. Identity in the two cases should be such that the judgment that maybe rendered in one would, regardless of which party is successful,

amount to res adjudicata in the other

c. Where the action is barred by prior judgment or by statute of limitationsthe defendant may move to dismiss the complaint where the cause of action

alleged therein is barred by prior judgment. Once an issue in a case has been

raised and finally decided, it cannot be litigated anew

Elements of res adjudicata:1. There is a final judgment or order in the prior civil case2. The court that rendered the judgment order in the prior case had

jurisdiction over the subject matter, and over the parties

concerned

3. There was judgment or order on the merits in the prior case4. There is identity of parties, identity of subject matter and identityof cause of action

Compulsory counterclaim or cross-claim not set up shall be barred Defaultthe procedural concept that occurs when the defending party fails to

file his answer within the reglementary period. It does not occur from the

failure of the defendant to attend either pre-trial or the trial.

Requisites before a party may be declared in default:1. There must be a motion to declare the defending party in default filed by

the claiming party

2. Summons has been validly and previously served upon him3. Defending party must have failed to file his answer within the

reglementary period or within the period fixed by the court

4. There must be proof of the failure to file the answer5. The defending party must be notified of the motion to declare him in

default

6. There must be a hearing of the motion to declare the defendant in default A party in default shall be entitled to notice of subsequent proceedings but not to

take part in the trial.

The court has no authority to motu proprio declare the defendant in default. Amotion to declare the defending party must be filed by the claiming party before a

declaration of default is made by the court.

Before the defending party can be declared in default,a. the claiming party must file a motion to declare said defending party in

default

b. The defending party must be notified of the motion to declare him in default,and

c. The claiming party must prove that the defending party has failed to answerwithin the period provided by the Rules of Court

A party declared in default at may any time after notice and before judgmentfile a motion to set aside the order of default upon proper showing that his

failure is due to fr aud, accident, mistake or excusable negligence; and that he

has meritori ous defense. The order of default may be set aside on such terms

and conditions as the judge may impose on the interest of justice.

Partial default:1. When a pleading asserting a claim states a common cause of action

against several defending parties,

2. Some of whom answer and others fail to do so Effect: the court will try the case against all upon the answers thus filed and

render judgment upon the evidence presented.

The relief shall not exceed the amount or different in kind from that prayedfor nor award unliquidated damages

Unliquidated damagesthose which are still subject to evidence before itcan properly be awarded such as the presentation of receipts in terms of act

damages, or taking of testimonies to determine mental anquish or besmirch

in cases of moral damages.

Liquidated damagesthose which are already fixed and proof of evidencto establish the same are not required.

No default in annulment or declaration of nullity of marriage or legalseparation

The court shall not motu propriodeclare the defendant in default. A motion todeclare the defending party as default must be filed by the claiming party before

declaration of default is made by the court.

Effect of partial defaultthe court shall try the case against all the defendingparties based on the answers filed and render judgment upon the evidence

presented where the claim states a common cause of action against them

Order of Defaultorder issued by the court on motion of the claiming party wnotice to the defending party at the commencement of the proceedings, for failur

of the latter to answer the pleading within the period provided by the Rule.

Interlocutory. Not appealable.

Judgment of Defaultrendered after the order default is issued granting theclaimant such relief as his pleadings may warrant or established by his evidence

when so required by the court. Final appealable.

Effect of declaration/order of default:1. The party declared in default loses his standing in court and prevents him

from taking part in the trial

2. He is nevertheless entitled to notices of subsequent proceedings. He mayparticipate in the trial, not as a party but as a witness

3. A declaration of default is not an admission of the truth or the validity of tplaintiffs claim.

Action of the court after the declaration/order of default:1. To proceed to render judgment2. To require the plaintiff to present his evidence ex parte The court need not personally receive the evidence if it decides to hear the

evidence of the plaintiff. The reception of the evidence may be delegated to

the clerk of court

It is within the sound discretion of the TC to permit the defendant to file hisanswer and to be heard on the merits after the reglementary period for filing

the answer expires. It is the discretion of the TC to extend the time for filing

an answer but also to allow an answer to be filed after the reglementary

period

Steps when the defendant fails to file an answer within the time allowed:a. Motion to declare defendant in defaultb. Order of defaultc. Judgment based on the complaint of the plaintiff unless court requires the

claimant to submit evidence. (ex-parte presentation of plaintiffs evidence)

Remedies of a defending party declared in default:1. Remedy after notice of order and before judgmentthe defendant must

file a motion under oath to set aside the order of default and show that:

a. The failure to answer was due to fraud, accident, mistake or excusablnegligence and

b. that the defendant has a meritorious defense2. Remedy after judgment and before judgment becomes final and

executorythe defendant may file a motion for new trial under Rule 37. H

may also appeal from the judgment as being contrary to the evidence or thelaw

3. Remedy after the judgment becomes final and executorythe defendanmay file a petition for relief from judgment under Rule 38

4. Where the defendant has however, been wrongly or improvidentlydeclared in default, the court can be considered to have acted with grav

abuse of discretion amounting to lack of jurisdiction and when the lack

jurisdiction is patent in the face of the judgment or from judicial recor

he may avail of the special civil action of certiorari under Rule 65

A judgment rendered against a party in default shall not exceed the amount obe different in kind from that prayed nor award unliquidated damages


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A judgment by default may be rendered in the following cases despite an answerhaving been filed:

1. Failure to answer interrogatories2. Disobeying compliance with the various modes of discovery3. Wilful failure to appear before an officer who is to take his depositions

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS

Pleadings may be amended by adding orstriking out an allegation or name of theparty, or by correcting a mistake in the name of a party or mistaken or inadequate

allegation or description in any other respect, so that the actual merits of the

controversy may speedily be determined, without regard to technicalities, and in the

most expeditious and inexpensive manner.

A plaintiff has the right to amend his complaint once at any time before aresponsive pleading is served by the other party or in case of a reply to which there

is no responsive pleading, at any time within 10 days after it is served. (Sec. 2,

amendment as a matter of right)

Subsequent amendment must be made with leave of court Amendment does not retroact to the date of the filing of the original action The court would be in error if it refuses to admit an amended pleading when

its exercise is a matter of right. This error is correctible by mandamus because

the courts duty is purely ministerial as a matter of right.

Amendment as a MATTER OF RIGHTthe party has the unconditional right toamend his pleading. The court has no right to prevent him from amending. The

opposite party has no right to oppose the amendment.

Amendment as a MATTER OF JUDICIAL DISCRETIONthe court may ormay not allow the amendment. So the other party has the right to oppose. If a motion to dismiss is filed, an amendment to the complaint would still be a

matter of right during the pendency of the motion to dismiss. Such a motion is not

a responsive pleading and its filing does not preclude the exercise of the plaintiffs

right to amend his complaint.

Even if the motion to dismiss is granted by the court, the plaintiff may stillamend his complaint as a matter of right before the dismissal becomes final as

long as no answer has yet been served.

A complai nt whi ch fai ls to state a cause of action may be cured by evidencepresented duri ng the trial or by amendment and without objection duri ng the

trial.

However, the curing effect is applicable only if a cause of action in fact existsat the time the complaint is filed, but the complaint is defective for failure to

allege the essential facts.

Defect in the designati on of the parties and other cl early clerical or typographicalerrors may be summari ly corr ected by the court at any stage of the action, at its

in iti ative or on motion, pr ovided no prejudice is caused thereby to the adverse

party. (Sec. 4)

Amendment as a matter of right:1. Before an answer if filed (complaint)2. Before a reply is filed or before the period for filing a reply expires

(answer)

3. Any time within 10 days after it is served (reply)4. Formal amendment

Substantial amendments which are a matter of judicial discretion The amendment must be substantial and the adverse party has already filed

and served a copy of his responsive pleading It must be with leave of court Such leave may be refused if it appears to the court that the motion was made

with intent to delay

Orders of the court shall be made upon motion filed in court and after noticeto the adverse party and an opportunity to be heard.

Non-existent cause of action Imperfect cause of action

There is yet no delict or wrong committedby the defendant

A delict or wrong has already beencommitted and alleged in the complaint,

but the cause of action is incomplete

It is not curable by amendment Curable by amendment

If the amendment introduces a new and different cause of action, then theprescriptive period is deemed interrupted upon the filing of the amended complai

Where the amendment has not altered or changed the original cause of action thenthe interruption of the prescriptive period retroacts on the date of the filing of the

original complaint.

When issues not raised by the pleadin gs are tr ied with the express or impl iedconsent of the parties, they shall be treated in al l r espects as if they had been

raised in the pleadings.

Such amendment i s necessary to cause them to conf orm th e evidence and to rathese issues may be made upon moti on of any part y at any time, even after

ju dgment; but fai lu re to amend does not aff ect the result of the tr ial of these

issues.

I f evidence is objected to at the trial on the ground that i t is not wit hi n the issuemade by the pleadings, the cour t may all ow the pleadings to be amended and sh

do so with l iberali ty if the presentation of the meri ts of the action and th e ends

substantial justice wil l be subserved thereby. The court may grant a conti nuanc

to enable the amendment to be made.

1. When evidence is intr oduced on an issue not alleged in the pleadings andno objection was interposed by the other party

2. When evidence is offered on an issue not r aised in the pleadings but anobjection was i nterjected.

Supplemental pleadingone which sets forth transactions, occurrences or evenwhich have happened since the date of the pleading sought to be supplemented.

The filing of supplemental pleadings requires leave of court. The court mayallow the pleading only upon such terms as are just. This leave is sought by

the filing of a motion with notice to all parties. The adverse party may plead thereto within 10 days from notice of the orde

admitting the supplemental pleading.

Amended pleading Supplemental pleading

Refers to the facts existing at the time of

the commencement of the action

Refers to the facts arising after the

filing of the original pleading

Takes 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 yetbeen filed

Always with leave of court

When an amended pleading is filed, anew copy of the entire pleading must be

filed

A supplemental pleading does notrequire the filing of a new copy of theentire pleading

When any pleading i s amended, a new copy of the entire pleading, incorporatthe amendments, whi ch shall be indicated by appropri ate marks.

An amended pleadin g supersedes the pleadin g that i t amends. However,admissions in superseded pleadings may be received in evidence against the

pleader; and claims and defenses alleged therein not i ncorporated in the

amended pleading shall be deemed wai ved.

The curing effect under sec. 5 is applicable only if a cause of actionexists at the time the complaint is filed, but the complaint is defectiv

for failure to allege the essential facts.

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