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1 CIVIL PROCEDURE l Sources: Riano, Herrera & Lakas Atenista

Rule 10 Amended and Supplemental Pleadings Section 1. Amendments in general. Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. Pleadings are amended by: (a) adding or striking out an allegation or the name of any party; or (b) by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect. Purpose of the rule on amendment Amendments of pleadings are allowed so that the actual merits of the controversy may be speedily be determined, without regard to technicalities in the most expeditious and inexpensive manner and to avoid multiplicity of suits. Amendments to pleadings are favoured and should liberally allowed in order to (a) actual merits of the case (b) speed up the trial, and (c) prevent unnecessary expenses. Methods of amendments Suppression, addition, incorporation, substitution, or by attaching document to the complaint. No Retroactive Effect The amendment does not retroact to the date of the filing of the complaint. Types of Amendments 1. As a matter of right vs. As a matter of judicial discretion 2. Formal vs. Substantial Section 2. Amendments as matter of right. A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. Amendment as matter of right A party may amend his pleadings: (a) once as a matter of course; (b) at any time before a responsive pleading is served. Before an answer is served on the plaintiff, the latter may amend his complaint as a matter of right. The defendant may also amend his answer, also as a matter of right, before a reply is served upon him. (c) In case of a reply, he may so amend the complaint at any time within 10 days after it is served. The amendment can be formal or substantial. 1) FORMAL AMENDMENTS A defect in the designation of the parties and other clearly clerical errors may be summarily corrected by the court or by motion: At any stage of the action. Provided that no prejudice is caused to the adverse party. 2) SUBSTANTIAL AMENDMENTS a) If as a matter of right Made at any time before a responsive pleading is served. If it is a reply, at any time within l0 days after it is served. [Rule 10, Sec. 2] b) If as a matter of discretion Amendment requires leave of court if: (1) It is substantial; and (2) A responsive pleading has already been served. [Rule 10, Sec. 3] Section 2 refers to amendment made before the trial court not to amendments before the Court of Appeals. The CA is vested with jurisdiction to admit or deny amended petitions filed before it. May be exercised only once; hence even if no responsive pleading has yet been served, if the amendment is subsequent to a previous amendment made as a matter of right, the subsequent amendment must be with leave of court. Before the service of a responsive pleading, a party has the absolute right to amend his pleading, regardless whether a new cause of action or change in theory is introduced. Also, a respondent may file an amended complaint even after the original complaint was ordered dismissed, provided that the order of dismissal is not yet final, as in this case. Applicability of mandamus 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 trials court duty to admit an amended complaint made as matter of right is purely ministerial.

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A motion to dismiss is not a responsive pleading During the pendency of a motion to dismiss, an amendment to the complaint would still be a matter of right; its filing does not preclude the exercise of the plaintiffs right to amend his complaint. Where not all the defendants have answered, plaintiffs may amend their Complaint once, as a matter of right, in respect to claims asserted solely against the non-answering defendants, but not as to the claims asserted against the other defendants. Example: Wagwag filed an action based on an oral loan against Rice who filed a motion to dismiss the complaint for failure to state a cause of action because the allegations of the complaint do not allege that the debt is already due and demandable at the time the complaint was filed. Instead of opposing the motion, Wagwag filed an amendment to the complaint to correct the deficiencies in its allegations. The amendment is a matter of right and hence, cannot be refused by court. Even if the motion to dismiss is granted, the plaintiff may still amend his complaint as a matter of right before the dismissal becomes final as long as no answer has yet been served. Thus, an amendment to the complaint sought to be made one month after notice of the order dismissing the complaint can no longer be allowed because the order of dismissal has already become final due to the failure to perfect an appeal. As a rule, the aggrieved party must perfect his appeal within the period as provided for by law. The rule is mandatory in character. A partys failure to comply with the law will result in the decision becoming final and executor and, as such, can no longer be modified or reversed. Thus, it is beyond the power or jurisdiction of the court which rendered the decision or order to amend or revoke the same after the lapse of the 15-day reglementary period to file an appeal. Section 3. Amendments by leave of court. Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in the court, and after notice to the adverse party, and an opportunity to be heard. Requisites for valid amendment (a) After the case is set for hearing (not after responsive pleading is filed); (b) substantial amendment may be made: 1) only upon leave of court; 2) upon motion filed in court 3) and after notice to the adverse party; 4) and an opportunity to be heard. But such leave may only be refused if it appears to the court that the motion was made to delay the action.

When is an amendment 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. This can be done provided theres a leave of court. Usually, the court allows amendment because of the liberal policy of the rules, except: 1) When the amendment is to delay the action. 2) When the purpose of making the complaint confer jurisdiction upon the court. 3) When the purpose is to cure a premature or non-existent cause of action. a. Non-existent no COA hence no amendment can be made b. Imperfect cause of action incomplete COA thus amendment can cure defect Effect of Amendments on Prescriptive Period 1) When new COA, prescriptive period interrupted upon filing of the amended complaint 2) When no new COA, interruption of the prescriptive period retroacts on the date of the filing of the original complaint Leave of court required Leave of court is required for an amendment made after service of a responsive pleading; this rule assumes more force and effect especially when the amendment is substantial; the plaintiff cannot amend his complaint by changing his cause of action or adding a new one without leave of court. After a responsive pleading is filed, an amendment to the complaint may be substantial and will correspondingly require a substantial

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alteration in the defenses of the adverse party. The amendment of the complaint is not only unfair to the defendant but will cause unnecessary delay in the proceedings. Thus, leave of court is required. On the other hand, where no responsive pleading has yet been served, no defenses would be altered. The amendment of the pleading will not then require leave of court. General Rule: Substantial amendments may only be made upon leave of court. [Section 3] Exception: A party may amend his pleading once as a matter of right at any time before a responsive pleading is served, or in the case of a reply, at any time within ten (10) days after it is served. Amendment at this stage may be made as a matter of right even if the amendment is substantial. Reasonable ground Where amendment is not a matter of right, a bare assertion of a desire to amend the pleading because of certain matters have not been therein alleged, or the submission of an amended one, without more, is obviously not sufficient. It is incumbent upon a party desiring to amend his pleading to furnish the court with some adequate foundation for it to grant leave to amend the pleading. Amendment to cure a failure to state a cause of action If the complaint failed to aver the fact that certain conditions precedent were undertaken and complied with, the failure to so allege the same may be corrected by an amendment of the complaint. Section 5 of Rule 10 applies to situations wherein evidence not within the issues raised in the pleadings is presented by the parties during the trial and was not objected to. The provision also covers situations where, to conform to evidence not objected to by the adverse party, the pleadings are sought to be amended on motion of a party. Thus, a complaint which fails to state a cause of action may be cured by evidence during the trial. Example: Guarantor filed an action to collect a sum of money against the debtor. The complaint fails to state a cause of action if it does not allege that the creditor of the debtor has been paid by the guarantor even if in fact there was payment. If during the course of proceedings, evidence is offered on the fact of payment without objection from the debtor, the defect in the complaint was cured by the evidence. The plaintiff may then move for the amendment of his complaint to conform to the evidence. No amendment where no cause of action exists May a complaint that lacks a cause of action at the time it was filed be cured by the accrual of a cause of action during the pendency of the case? Example: When the case was filed none of the promissory notes subject of the action was due and demandable but two of the notes became due during the pendency of the action. Is amendment allowed? Answer: NO! A complaint whose cause of action has not yet accrued cannot be cured by an amended or supplemental pleading alleging the existence or accrual of a cause of action while the case is pending; its a premature action; a groundless suit; should be dismissed by the court upon proper motion seasonably filed by the defendant; a person should not be summoned before the public tribunals to answer for complaints which are immature. Question: X executed a promissory note in favor of Y on June 12, 1998 which states that X will pay the amount within one year from its date. However, Y requested X to pay ahead of time. X refused to do so. On May 1999, Y filed a case against X. X moved to dismiss the case for lack of cause of action. a.] On July, 1999, pending resolution of the motion to dismiss, Y filed an amended complaint alleging that Xs debt had in the meantime become due that X still refused to pay. Is the amended complaint valid? b] would your answer be different had Y filed instead a supplemental complaint stating that the debt became due after the filing of the original complaint? a. Amended complaint should not be allowed. There is no cause of action at the time of the filing of the complaint; it is a groundless suit. [alternative answer: it should be allowed because a motion to dismiss is not a responsive pleading; no responsive pleading has yet been served when the amended pleading was filed. b. The supplemental pleading should not be allowed because there being actually no cause of action, there is no complaint to supplement. Amendment to correct a jurisdictional defect before a responsive pleading is served

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Jurisprudence recognizes the right of a pleader to amend his complaint before a responsive pleading is served even if its effect is to correct a jurisdictional defect. Example: Z filed a case against O alleging forcible entry before the RTC of Basilan. O filed a motion to dismiss alleging that the court has no jurisdiction over an action for forcible entry. Without waiting for the resolution of the motion to dismiss, Z filed an amended complaint with new allegations which transformed the original allegations of forcible entry into an action for quieting of title, this time cognizable by the RTC of Basilan. Is the act of Z valid? Answer: Yes, for being consistent purpose and intent of the law. with the dismiss on the ground that the court had no jurisdiction over the action since the claimed amount of 255k is within the exclusive jurisdiction of MTC. Before the court could resolve the motion, the plaintiff, without leave of court, amended his complaint to allege a new cause of action thereby increasing his claim to 555k. R filed an opposition to dismiss, claiming that the RTC had jurisdiction over his action. Is the amended complaint properly filed? Answer: Yes! Because it is filed before a responsive pleading is served. The pending motion to dismiss did not affect the right of R to amend his complaint as a matter of right because a motion to dismiss is not a responsive pleading. The amendment correcting a jurisdictional defect was proper because no responsive pleading has been served at the time of amendment. The rule that a complaint cannot be amended to confer jurisdiction on a court where there was none applies only to an amendment made after a responsive pleading has been served. Section 4. Formal amendments. A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. Formal amendmentsA matter of right It can be done at any stage of the action, upon motion or even without motion, because amendment is a harmless correction. Example: 1) Defect in designation; 2) typo and clerical errors Section 5. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of

Amendment to correct a jurisdictional defect after a responsive pleading is served An amendment of the complaint to correct a jurisdictional error cannot be validly made after a responsive pleading is served. It would require first a leave of court, a matter which requires the exercise of sound judicial discretion. It requires a positive act by the court. If it grants the amendment, it would be acting on a complaint over which it has no jurisdiction. Its action would be one performed without jurisdiction. This is different from an amendment as a matter of right because the court does not act in this kind of amendment. It is the ministerial duty of the court to admit the amendment. Thus, the court cannot be deemed as acting without jurisdiction. Example: Q filed an action for recovery of compensation for unpaid holiday and overtime services with the Court of Industrial Relations against P. P filed a motion to dismiss but was denied. P filed an answer invoking as one of its affirmative defenses lack of jurisdiction of the court over the subject matter since the complaint did not allege the existence of employeremployee relationship between the parties. It did not allege illegal dismissal and did not seek for reinstatement. Realizing a jurisdictional error, Q filed leave to amend his complaint and to admit an amended pleading alleging illegal dismissal and a claim for reinstatement. Is the amended complaint properly filed? Answer: NO! A complaint cannot be amended to confer jurisdiction on the court in which it was filed, if the cause of action originally set forth was not within the courts jurisdiction. Question: R filed a complaint in the RTC for the collection of 255K. Defendant filed a motion to

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substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. Amendment to conform to the evidence General Rule: In the event that a party presents evidence on a matter not in issue, the adverse party has a reason to object because a trial can deal only with matters raised by the parties in their pleadings and the court cannot render judgment on a matter not in issue because a judgment must conform to the pleadings and the theory of the action under which the case was tried. This may be done upon motion of a party at any time, even after judgment. Exception: When issues not raised in the pleadings are tried with the express or implied consent of the parties, such as when no objection is made by either, such issues not raised shall be treated as if they had been put in issue by the pleadings. The parties are in estoppels because they expressly or impliedly agreed to try an issue which is not raised in the pleadings. Example: G filed a complaint for sum of money against D before the MTC. G did not mention any demand for payment made on defendant before commencing suit. During trial, G duly offered Exhibit A in evidence for the purpose of proving the making of extrajudicial demand on D. Exhibit A was a letter of demand for D to pay the sum of money. Without objection from D, the court admitted Exhibit A in evidence. Was the admission proper? Answer: Yes! Because it was admitted without objection from D; it is as if the matter was raised in the pleadings. Two situations under Section 5: a. when evidence is introduced on an issue not alleged in the pleadings and no objection was interposed by the other party. b. when evidence is offered on an issue not raised in the pleadings but an objection was interjected; in this case, the court may still admit the evidence where the objecting party fails to show that the admission of the evidence would prejudice him in his defense; the court must however, give him a continuance to enable him to meet the new situation. Continuance postponement of the case to allow the parties to amend Example: The counsel for SuperBoom, an entity without a juridical personality, filed a case against Mr. Cruz. Mr. Cruz did not file a motion to dismiss. Trial was held. The liability of Mr. Cruz was established through several invoices showing on its face that Mr. Boom is the proprietor of SuperBoom. After SuperBoom had rested its case, Mr. Cruz filed a motion to dismiss on the ground that since there is actually no person properly suing as plaintiff, no relief can be granted by the court. The counsel for SuperBoom filed a motion to amend the complaint to make it conform to the evidence, that the real party plaintiff is Mr. Boom. Is there a proper filing of an amended complaint? Answer: Yes! Although there was a defect in the plaintiffs designation this defect was cured when the defendant did not object to the evidence that it was Mr. Boom who was the proprietor of the business and in whose favor the defendant is liable. This matter of Mr. Boom being the aggrieved party and thus, the real-party-ininterest as plaintiff, was tried with the consent of the defendant. Even if it is filed after judgment, the act is still valid under Section 5. Section 6. Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. Supplemental pleadings Supplemental pleadings are those which aver facts occurring after the filing of the original pleadings and which are material to the mature claims and/or defense therein alleged. The filing of supplemental pleadings requires leave of court. The court may allow the pleading only upon such terms as are just. This leave is sought by the filing of a motion with notice to all parties. Cause of action in supplemental pleadings a. when the cause of action in the supplemental pleading is different from the cause of action mentioned in the original complaint, the court should not admit the supplemental complaint

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b. a supplemental pleading only serves to bolster or add something to the primary pleading; it exists side by side with the original; it does not replace that which it supplements; it assumes that the original pleading is to stand and that the issues joined with the original pleading remained an issue to be tried in the action; it is a continuation of the complaint; its purpose is to set up new facts which justify, enlarge or change the kind of relief with respect to the same subject matter as the controversy referred to in the original complaint Effect of supplemental complaint An amendment which merely supplements and amplifies the facts originally alleged relates back to the date of the commencement of the action and is not barred by the statute of limitations. Limitations (a) Supplemental pleadings are not allowed on separate and distinct causes of action. (b) The admission or non-admission of a supplemental pleading is not a matter of right but is discretionary on the court. Answer to a supplemental pleading; not mandatory Section 7, Rule 11. A supplemental complaint may be answered within ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. The filing of an answer to the supplemental pleading is not mandatory because of the use of the word may. Thus, the court cannot declare the respondents in default simply because the latter opted not to file their answer to the supplemental petition. However, failure to answer when ordered by the court is a ground for default. Distinctions between supplemental pleadings and amended pleadings Supplemental Amended pleadings pleadings As to subject Refer to those occurring after the filing of the original pleading Refer to those facts existing at the time of the filing of the original pleading As to effect Supplements the original Supersedes the original

There are now So the old 2 pleadings pleading is which stand deemed erased side by side in the case As to time May be made Always needs without leave leave of court of court before a responsive pleading is filed Sec 10, Rule 11

How to raise Sec 9, Rule 11 cross-claim or counterclaim not raised earlier As to form

No such Amendment requirement must be appropriately marked

Section 7. Filing of amended pleadings. When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. Usually, amended portions are underlined. This is for the convenience of the court and both parties. Section 8. Effect of amended pleadings. An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claims and defenses alleged therein not incorporated in the amended pleading shall be deemed waived. Effect on the amendment on the original pleading An amended pleading supersedes the original one which it amends. However, the original complaint is deemed superseded and abandoned by the amendatory complaint only if the latter introduces new or different cause of action. Effect of the amendment on admissions made in the original complaint Admissions made in the original pleadings cease to be judicial admissions. They are to be

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considered as extrajudicial admissions. However, admissions is superseded pleadings may be received in evidence against the pleader; and in order to be utilized as extrajudicial admissions, they must, in order to have such effect, be formally offered in evidence. Example: In action for reconveyance of a parcel of land filed in the RTC, M through his lawyer filed an answer admitting the averment in the complaint that the land was acquired by the plaintiff through inheritance from his parents, the former owners thereof. Subsequently, M changed his lawyer, and, with leave of court, amended the answer. In the new answer, the alleged admission no longer appears. Instead, the alleged ownership of the land by the plaintiff was denied with the allegation that M is the owner of the land for the reason that he bought the same from the plaintiffs parents during their lifetime. Plaintiff contended that M is bound by the admission contained in his original an answer. Is the contention valid? Answer: NO! An amended pleading supersedes the pleading that it amends. When summons not required after complaint is amended a. where the defendants have already appeared in court by virtue of summons in the original complaint, the amended complaint may be served upon them without need of another summons, even if new causes of actions are alleged b. when the defendants have not yet appeared, new summons on the amended complaint must be served on them because the court has to acquire jurisdiction over the persons of the defendants and not because there was a change of cause of action c. where a new defendant is impleaded, summons must be served upon him so that the court may acquire jurisdiction over his person because the defendant cannot be deemed to have already appeared by virtue of summons under the original complaint in which he was not yet a party.