REMEDIAL LAW REVIEW 1

SOME IMPORTANT BUT EASY TO FORGET DOCTRINES

Jurisdiction
An action for partition is a real action capable of
pecuniary estimation, except when its main purpose is
to annul a deed of partition and declaration of heirs,
with partition being merely incidental in which case it is
an action incapable of pecuniary estimation (Russel v.
Vestil).
An action for rescission of contract is incapable of
pecuniary estimation, thus, damages prayed for in
connection thereto should not be the test of jurisdiction
(Lapitan v. Scandia).
Ordinarily, an action for sum of money is obviously
capable of pecuniary estimation. But when a party to a
contract has agreed to refund to the other party a sum
of money upon compliance by the latter of certain
conditions and only upon compliance therewith may
what is legally due him under the written contract be
demanded, the action, although denominated as
collection for sum of money, may be treated as one for
specific performance and incapable of pecuniary
estimation (Ortigas & Company v. Herrer).
An expropriation case is incapable of pecuniary
estimation (Brg. San Roque v. Pastor).
Even if the action is one for specific performance or
annulment of deed of sale, if the ultimate objective is
to obtain title to real property, the action is a real
action and capable of pecuniary estimation (Ruby
Shelters Builders v. Formaran; Barangay Piapi v. Talip).
If the action is specific performance AND payment,
the action is incapable of pecuniary estimation. But if it
is specific performance OR payment, that makes it
capable of pecuniary estimation (Cruz v. Tan).
In computing jurisdictional amount, damages,
attorneys fees, litigation expenses, and costs are
excluded (Sec. 19 & 33, BP 129).
Pre-determined and accrued interest on a loan is a
primary and inseparable component of the cause of
action, hence should be added to the principal amount
for purposes of computing the jurisdictional amount
(Gomez v. Montalban).
Exclusion of damages of whatever kind applies
only if damages are merely incidental to the main
cause of action. But if the action is one which primarily
asks for damages, the amount of all damages prayed
for must be considered in determining jurisdiction (SC
Circular 09-94).
Rule 1 General Provisions
A court acquires jurisdiction over any case only
upon the payment of the prescribed docket fee. An
amendment of the complaint or similar pleading will
not thereby vest jurisdiction in the court, much less
payment of the docket fee based on thea mounts
sought in the amended pleading (Manchester Devt.
Corp. v. CA).

But see Sheker v. Estate of Sheker where it was

held that the trial court has jurisdiction to act
on a money claim even without payment of
separate docket fees, because the probate

court had already assumed jurisdiction over

the settlement of the estate of the deceased. It
should just order the claimant to pay docket
fees.
The amount of damages claimed should be
specified in the body and in the prayer. The trial court
had no power to admit the amended petition since it
had no jurisdiction over the original petition(Ibid.;
Siapno v. Manalo).
The court, in its discretion, may allow payment of
docket fees by installment, especially if the amount of
docket fees is too high (Sps. Go v. Tong).
Rule 2 Cause of Action
A claim which arose after the defendant serves his
answer is not a compulsory counterclaim, hence it is
not barred even if not set up in the first case. It could
be made subject of a separate case (BDO v. CA, 2005).
Principle of Anticipatory Breach. A contract to do
several things at several times is divisible, and a
judgment for a single breach of a continuing contract is
not a bar to a suit for subsequent breaches. But where
the obligor manifestly refuses to perform not only one
prestation but all other prestations, the contract is
entire and the breach total and constitutes only one
cause of action (Blossom & Co. v. Manila Gas Corp.).
Rule 3 Parties to Civil Actions
Failure to implead an indispensable party is a
curable error which does not warrant the dismissal of
the case. The court shall order the amendment of the
complaint to implead such indispensable party, and in
case of failure to comply with such order, that is the
time where the case should be dismissed (PacanaContreras v. Rovila Water Supply, Inc.). But if there has
already been an entry of judgment, the judgement
would be null and void (Metrobank v. Alejo).
In a suit against co-owners over a co-owned
property, impleading one of the co-owners is sufficient,
and the others would merely be necessary parties
(Paras).
In case of death of a party, if the deceaseds
counsel informed the court of such death and yet the
court did not order a substitution, subsequent
proceedings shall be void (Ferreria v. Vda. De
Gonzales). But if the counsel did not inform the court,
subsequent proceedings shall be valid (Carabeo v.
Dingco).
The substitution of the deceased in the civil action
by the administrator or the decedents representative
is generally considered as equivalent to the
presentation of the claim with the probate court
(Ignacio v. PAMBUSCO).
If an applicant claiming for exemption as indigent
fails to meet the property requirements under Sec. 19,
Rule 141, he may nevertheless be granted exemption
subject to the discretion of the court, applying the
indigency test under Sec. 1, Rule 3, that is if they
have no money or property sufficient and available for
food, shelter and basic necessities for themselves and
their family (Sps. Algura v. City of Naga).

Rule 4 Venue
Under the Complementary Contracts Construed
Together Doctrine, the principal contract can be
enforced only in conjunction with the accessory
contract. Hence, the venue stipulation in the accessory
contract also applies to the principal contract (Phil.
Bank of Communications v. Lim).
Courts cannot dismiss a case motu proprio on the
ground of improper venue, except in ejectment cases
and those covered by the Rules on Summary
Procedure.
Rule on Summary Procedure
A motion for reconsideration is a prohibited
pleading under the Rules on Summary Procedure if it
seeks reconsideration of a judgment rendered by the
court after trial on the merits. Hence, a motion for
reconsideration on a dismissal order on the ground of
failure to appear during preliminary conference is
allowed (Lucas v. Fabros).
Rule 6 Kinds of Pleadings
If a defendant has a compulsory counterclaim, he
should not file a motion to dismiss but an answer with
a counterclaim, with the ground for the motion to
dismiss being asserted as an affirmative defense
pursuant to Sec. 6, Rule 16, because otherwise it would
be barred under the Omnibus Rule (Financial Building
Corp. v. Forbes Park Association).
The test to determine whether a counterclaim is
compulsory or permissive is whether the grant of the
counterclaim would necessarily defeat the plaintiffs
claim. If it does, then it is a compulsory counterclaim
(GSIS v. Caballero).
If your compulsory counterclaim is a sum of money
and the action is with the RTC in the exercise of its
original jurisdiction, the court would have jurisdiction
regardless of the amount. But if the counterclaim is
merely permissive, the amount must meet the
jurisdictional requirement (Riguera; Sec. 7, Rule 6).

This rule will not apply if the RTC is exercising

its appellate jurisdiction.

A party cannot be declared in default for failing to

answer a compulsory counterclaim (unlike a permissive
counterclaim), since the issues in such counterclaim
are automatically traversed by the complaint (Gojo v.
Goyala). The exception is when there are allegations in
the compulsory counterclaim that were not traversed
by the allegations in the complaint.
A compulsory counterclaim is one which must be
existing at the time of filing the answer. An afteracquired counterclaim is merely permissive (BDO v.
CA, 2005). The same can be said of a cross-claim that
matured after the defendant has served his answer.
It is known that filing a reply is not necessary (Sec.
10, Rule 16). The exception is when the answer is
based on an actionable document in which case the
plaintiff must file a reply specifically denying under
oath the actionable document and setting forth what
he claims to be the facts (Sec. 8, Rule 8).

But see Toribio v. Bidin where it was held that a

verified complaint with a specific allegation
that the plaintiff never sold the land to the

defendant was a substantial traversal of the

actionable document, a deed of sale, attached
to the answer, hence the was no longer a need
for the plaintiff to make a specific denial in a
reply.
Doctrine of Ancillary Jurisdiction. Where the RTC
has jurisdiction over the main case, it also has ancillary
jurisdiction over the third-party complaint (or crossclaim by analogy) even though the amount claimed
falls below the jurisdictional amount (Republic v.
Central Surety & Ins. Co., 1968).

See Sec. 5(c), Rule 2 and Sec. 7, Rule 6 which

deal with RTCs competence to allow joinder of
causes of action and compulsory counterclaims
even if below the jurisdictional amount in
original actions filed before it.

A third-party complaint is ancillary to the main

case, hence it must yield to the jurisdiction and venue
of the main action (Eastern Assurance & Surety Corp.
v. Cui, 1981).
Rule 7 Parts of a Pleading
As a rule, verification is made by the party (Sec. 4,
Rule 7). But verification made by the lawyer who also
signed the pleadings is considered a substantial
compliance (Santos v. CA, July 5, 2001).
An pleading required to be verified but not verified
or improperly verified is considered an unsigned
pleading which produces no legal effect (Sec. 3, Rule).
But the court may in its discretion allow such
deficiency to be remedied if it shall appear that the
same was due to mere inadvertence and not intended
for delay. This also applies to a pleading which was
unsigned.
Failure to comply with the rule on non-forum
shopping is not curable by amendment, but a defective
certificate of non-forum shopping is curable by
amendment (Riguerra, citing jurispduence in general).
A resident agent cannot sign the verification and
certificate of non-forum shopping in behalf of the
foreign corporation without proof of such authority, the
reason being that while the agent may be aware of
actions filed against his principal, he may not be aware
of actions initiated by his principal whether in the
Philippines or in the country where such foreign
corporation is organized (Expertravel and Tours Inc. v.
CA, 2005).
Rule 8 Manner of Making Allegations in
Pleadings
A verified complaint with a specific allegation that
the plaintiff never sold the land to the defendant was a
substantial traversal of the actionable document, a
deed of sale, attached to the answer, hence the was no
longer a need for the plaintiff to make a specific denial
in a reply (Toribio v. Bidin).
Failure to specifically deny an actionable document
may also bar the invocation of the Best Evidence Rule
(Gaw v. Chua, 2008).
While there may be implied admission of the
genuineness and due execution of an actionable
document, such benefit of implied admission may be
lost when there is failure to object to the presentation

of evidence challenging the genuineness and due

execution of the actionable document (Titan
Construction Corp. v. David, 2010).
Rule 9 Effect of Failure to Plead
The court cannot motu proprio declare a defendant
in default, except in cases falling under the Rule on
Summary Procedure.
While a defendant declared in default is not
allowed to take part in the trial, he may testify as
witness in behalf of the non-defaulted defendants
(Cavili v. Florendo, 1987).
When a pleading asserting a claim states a
common cause of action against several defending
parties, some of who answer and the others fail to do
so, the court shall try the case against all upon the
answers thus filed and render judgment upon the
evidence presented (Ibid.; Sec. 3(c), Rule 9).
Although filed late, the defendants answer should
be admitted if it was filed before he had been declared
in default, as default judgments are generally
disfavored (Cathay Pacific Airways v. Romillo).
Rule 10 Amended and Supplemental Pleadings
Where amendment is a matter of right and yet the
court refuses to admit the same, the remedy is
mandamus, because it is a ministerial duty of the court
to accept the amendment made as a matter of right
(Marcos-Araneta v. CA, 2008).
Amendment to confer jurisdiction is possible if the
amendment is a matter of right (Rosario v.
Carangdang).
However, a complaint whose cause of action has
not yet accrued cannot be cured or remedied by an
amended pleading alleging the existence or accrual of
a cause of action while the case is pending (Swagman
Hotels v. CA).
A motion to dismiss is not a responsive pleading,
hence amendment is still a matter of right even after a
motion to dismiss has been filed.
The present Rules of Court allows amendment of
the complaint, even if no longer as a matter of right,
even when the amendment would substantially alter
the cause of action or defense (Valenzuela v. CA, 2001;
PPA v. William Gothong and Aboitiz Inc., 2008).
A supplemental complaint should merely aid or
reinforce the original cause of action, not change it or
confer one where there was none at the time of the
filing of the complaint (Superclean Services v. CA). The
remedy is to file a motion for leave to admit an
amended complaint (Ibid.).
Rule 13 Filing & Service of Pleadings,
Judgments & Other Papers
In one case, the Court held that the period to
appeal should be reckoned not from the formal notice
to counsel but upon actual notice where, before
receiving the notice of dismissal of the case, the
counsel actually filed a motion for reconsideration of
the dismissal, which only means that the counsel
already knew that the case was dismissed even before
the notice got to him (Hernal v. De Guzman, 2008).

Service and filing of pleadings by courier service is

not allowed (Palileo v. Planters Devt Bank, 2014).
Only parties to a real action may cause the
annotation of a notice of lis pendens (Heirs of Lopez v.
Enriquez, 2005).
Rule 14 Service of Summons
Summons is required to serve an amended
complaint if the defendant has not yet voluntarily
appeared in court (Vlason Enterprises v. CA).
For resort to substituted service of summons to be
proper, there must be several attempts for personal
service. Several attempts means at least three tries,
preferably on at least two different dates (Manotoc v.
CA).
The phrase at the defendants office or regular
place of business for purposes of service of summons
does not include a corporation where the defendant is
a chairman of the board of directors as he does not
regularly hold office or conduct business therein (UCPB
v. Ongpin).
An ejectment case is an action in personam, since
it merely seeks to enforce personal liability against the
defendant. Moreover, a judgment in an ejectment case
only relates to physical possession and not possession
as a real right (Domagas v. Jensen).
Summons may be personally served on a president
of a corporation while he is vacationing in Boracay
(Baltazar v. CA, 1988).
A branch manager is not one of those authorized
under the Rules to receive summons in behalf of a
corporation (BPI v. Sps. Santiago, 2007).
Although lack of jurisdiction over the person of the
defendant is one of the grounds to dismiss, still, the
case should not be dismissed where the defendant
actually appeared before the court. An alias or new
summons can be actually served on that defendant
(Ibid.; Tung Ho Steel Enterprises Corp. v. Ting Guan
Trading Corp., 2014).
Under Sec. 12, Rule 14, service may be made on
the foreign corporations (1) resident agent, or, if there
be no such agent, (2) on the government official
designated by law to that effect, or (3) on any of its
officers or agents within the Philippines. If the foreign
corporation has a resident agent, summons should be
served upon that resident agent alone (HB Zachry
Company v. CA). The other two modes may only be
availed of if the foreign corporation has no resident
agent (Poizat v. Morgan). With respect to the other two
modes, Sec. 12, Rule 14 does not impose a preference
as to which should be availed of first (Northwest Orient
Airlines v. CA).

Any of its officers or agents may mean a

branch office within the Philippines. This is not
the same as a resident agent!
Take note that the rules are different with
respect to foreign corporations neither
registered nor doing business here.

In all instances where summons are allowed to be

served by publication, there must be showing of
diligent efforts to ascertain the whereabouts of the
defendant and must always be a corresponding deposit

of the copy of the summons and order (allowing service

by publication) to the defendants last known address
by registered mail (Pantaleon v. Asuncion, 1959).
An action for partition is quasi in rem. Service of
summons on the non-resident defendants husband is
invalid (Valmonte v. CA, 1996). However, an action to
recover real property is an in personam action (Muoz v.
Yabut).
An attorney-in-fact authorized to bring suits in
behalf her principal is also deemed to be authorized to
receive summons in a case filed against the principal
(Gemperle v. Schenker).
Extraterritorial service of summons under Sec. 15,
Rule 14 applies only if the defendant is a non-resident
and the action concerns the personal status of the
plaintiff or quasi in rem actions. Meanwhile, the modes
under Sec. 15 may also be availed of, pursuant to Sec.
16, Rule 14, if the defendant is a resident but
temporarily out of the Philippines, and it applies even
to in personam actions. But this does not preclude
availing of other modes of service such as substituted
service of summons (Palma v. Galvez).
Rule 15 Motions
A motion for reconsideration (or all litigious
motions for that matter) without a proper notice of
hearing is pro forma, a mere scrap of paper which does
not toll the period to appeal (Victory Linter, Inc. v.
Malinias, 2007).

Rule 19 Intervention
As a rule, intervention may be allowed only before
rendition of judgment. The exception would be the
intervention of an indispensable party (PacanaContreras v. Rovila Water Supply, 2013).
Intervention is merely an ancillary to the existing
litigation, hence it the action was dismissed, the right
of intervention ceases (Pulgar v. RTC, 2014).
The remedy against an order denying a motion for
leave to intervene is to file a record on appeal within
30 days. But if at the time the court denied the motion
it already rendered judgment, the appeal period would
be 15 days taken by filing a notice of appeal (FosterGallego v. Sps. Galang, 2004).
Rules 23 to 29 Discovery
As a rule, deposition may be opposed by the
adverse party and excluded under the hearsay rule
(i.e. when the adverse party had no opportunity to
cross-examine the deponent at the time that his
testimony is offered, even if the adverse party was
present at the time of the taking of deposition
(Republic v. Sandiganbayan). The exception is Sec. 4,
Rule 23 where the deposition may be used without the
deponent being actually called to the witness stand.

Rule 16 Motion to Dismiss

An unsigned deposition does not preclude its use

during trial. The signature is required only to ensure
that the deponent is afforded the opportunity to correct
any errors therein and ensure its accuracy (Ayala Land
Inc. v. Tagle).

The court cannot dismiss a case motu proprio,

except if the ground is any of the following: (1) lack of
jurisdiction over the subject matter; (2) res judicata; (3)
litis pendentia; and (4) prescription. Motu proprio
dismissal is also proper in ejectment cases and in
cases governed by the Rule on Summary Procedure.

A request for admission must be served directly

upon the party requested. Otherwise, that party cannot
be deemed to have admitted the genuineness of any
relevant matters of fact set forth therein on account of
failure to answer the request for admission (Lanada v.
CA).

When the plaintiff is not the real party in interest,

the proper ground for dismissal is failure to state a
cause of action and not lack of legal capacity to sue
(Casimiro v. Roque).

A request for admission is not proper where the

subject matters thereof are the same as the ultimate
facts alleged in the requesting partys complaint for
which the requested party had already denied in his
answer (Ibid.).

Under Sec. 6, Rule 16, a preliminary hearing on the

affirmative defense may be had only if no motion to
dismiss had been filed. In other words, if a motion to
dismiss was denied, there can no longer be a
preliminary hearing on the defendants affirmative
defense. But, such rule does not apply where although
a motion to dismiss had been filed, the trial court did
not categorically resolve it but merely deferred
resolution thereof (California & Hawaiian Sugar Co. v.
Pioneer Insurance & Surety Corp., 2000). Another
exception is the case Sps. Rasdas v. Estenor where the
Supreme Court overlooked the procedural error of the
RTC and upheld the cases dismissal during the
preliminary hearing, even though the motion to dismiss
had already be denied denied, but then the second
action was clearly barred by res judicata.
Rule 17 Dismissal of Actions
While it is the sheriffs duty to serve summons, the
plaintiff should also see to it that the sheriff complies
with his duty. If he neglects to follow up the matter with
the sheriff or the court, the action may dismissed for
failure to prosecute, under Sec. 3, Rule 17 (BAC Mfg. &
Sales Corp. v. CA).

Rule 39 Execution, Satisfaction and Effects of

Judgments
Where execution is a matter of right and the court
refuses to issue a motion for execution, the remedy is
mandamus
(Greater
MetroManila
Solid
Waste
Management Committee v. Jancom Environment
Corporation).
Sec. 6, Rule 39 which prescribes a 5-year period
within which to file a motion for the issuance of writ of
execution does not apply to special proceedings (Ting
v. Heirs of Lirio).
The exception to the Doctrine of Judicial NonInterference is terceria, because there would actually
be no interference with the processes of a coordinate
and co-equal court, sine the sheriff was improperly
implementing the writ of execution (Abiera v. CA).
Rule 41 Appeal from the RTC
The remedy from a trial courts order granting the
issuance of a writ of possession is to file a petition to
set aside the sale and cancel the writ of possession,

and the aggrieved party may then appeal from the

order denying or granting said petition (Producers
Bank v. Excelsa Industries).
Rule 42 Appeal from the RTC to the CA
A petition for certiorari under Rule 65 is an original
action. Hence, if the RTC granted the petition for
certiorari, the remedy against such judgment is
appealing by way of notice of appeal under Rule 41.
Rules 57 to 61 Provisional Remedies
The improper implementation of the writ does not
affect the validity of the writ itself although it affects
the validity of the enforcement of the writ. The proper
remedy is to file a motion to discharge that attachment
and not to file a motion to dissolve the attachment
(Onate v. Abrogar, 1995).
The motion to dissolve the writ on the ground of
payment (of the questioned obligation which is the
subject of the main case) should be denied, because
that would be tantamount to resolving the main action
already (Davao Light & Power Co. v. CA).

the act to be performed, rather than of the office,

board, or body which performs it, that determines
whether or not a particular act is a discharge of judicial
or quasi-judicial functions. In the case at bench, the
assailed EO 10 was issued upon the respondent
mayors finding that Boracay West Coves construction,
expansion, and operation of its hotel in Malay, Aklan is
illegal. Such a finding of illegality required the
respondent mayors exercise of quasi-judicial functions,
against which the special writ of certiorari may lie
(Aquino v. Municipality of Malay, Aklan, 2014).
The remedy where
improperly denied is
Macadaeg).

a motion to dismiss is
prohibition (Enriquez v.

Where the respondent merely excludes the

petitioner from an office without usurping, intruding
into, or unlawfully holding the office, the proper
remedy is mandamus. If the respondent, however,
claims any right to the office and usurps, intrudes into,
or unlawfully holds it against the petitioner, the
appropriate remedy would be quo warranto (Burguete
v. Mayor).

While PD 1818 prohibits any court from issuing

injunctions or restraining orders in cases involving
national infrastructure projects, the prohibition extends
only to the issuance of injunctions in administrative
acts in controversies involving facts or the exercise of
discretion in technical cases. The issues of whether
there is a violation of the plaintiffs constitutionally
protected right to health and whether there is a
violation of Sec. 27 of the Local Government Code
(requiring prior consultation to LGU units) are questions
of law which divest the case from the protective mantle
of PD 1818 (Hernandez v. Napocor, 2006).

The general rule is that mandamus will not lie

against a discretionary act. But where such discretion
can be legally exercised in only one way and it refuses
to act in such manner, mandamus will lie to compel the
court to exercise its discretion in accordance with law
(Regalado).

Receivership is proper only when the subject

matter of litigation is property (Bonaplata v. Ambler) or
if it is in aid of execution (Philippine Trust Co. v.
Santamaria).

In quo warranto proceedings, no one is compelled

to exhaust administrative remedies since public
interest requires that the right to public office should
be determined as expeditiously as possible (Sison v.
Pangramuyen).

Rules 65 to 71 Special Civil Actions

Jurisdiction in interpleader cases is determined by
the value of the property involved, whether personal
(P300k/P400k) or real (P20k/P50k) (Makati Devt Corp.
v. Tanjuatco). But if the subject of the interpleader is
not the possession or title to property but the
performance of service, RTC has jurisdiction as the
subject matter thereof is incapable of pecuniary
estimation.

In election cases involving an act or omission of the

MTC or RTC, the petition for certiorari shall be filed
exclusively with the Comelec, in aid of its appellate
jurisdiction (Galang v. Geronimo).

A defendant in an expropriation case cannot file a

motion to dismiss but should raise his objections in the
answer (Masikip v. City of Pasig, 2006).
An action for foreclosure is a real action, hence,
jurisdiction depends on the value of the real property
mortgage. It is also a quasi in rem action, but any
deficiency judgment that may be rendered in
connection thereto is in personam (Riguera).

As a rule, it is the RTC which has jurisdiction over a

petition for declaratory relief. But if the petition has farreaching implications, the Supreme Court may treat
the petition as one for prohibition or mandamus and
take cognizance thereof (Alliance of Govt Workers v.
Minister of Labor and Employment).

An action for partition is a real action capable of

pecuniary estimation, except when its main purpose is
to annul a deed of partition and declaration of heirs,
with partition being merely incidental in which case it is
an action incapable of pecuniary estimation (Russel v.
Vestil).

An action for quieting of title is one incapable of

pecuniary estimation, but if the principal relief sought
is recovery of possession or title to real property, the
action would be a real one and jurisdiction would
depend on the assessed value of the real property
(Riguera).

Dismissal with prejudice under Sec. 3, Rule 17

cannot defeat the right of a co-owner to ask for
partition at any time, provided that there is no actual
adjudication of ownership of shares yet. Between
dismissal with prejudice under Sec. 3, Rule 17 and the
right granted to co-owners under Art. 494 of the Civil
Code, the latter must prevail. To construe otherwise
would diminish the substantive right of a co-owner
through the promulgation of procedural rules (Quintos
v. Nicolas, 2014).

The CA fell into a trap when it ruled that a mayor,

an officer from the executive department, exercises an
executive function whenever he issues an Executive
Order. This is tad too presumptive for it is the nature of