CIVIL PROCEDURE REVIEWER1

Three (3) limitations on the SC’s rule-making power:

CIVIL PROCEDURE REVIEWER
Based on Justice De Leon’s Outline, Civil Procedure by
Riano, San Beda Reviewer, and 1997 Rules of Court
Digests (by Abdulwahid, Cabal, Comafay, Fuster, Leynes,
Mendame, Mendez, Paras & Regis) further summarized.
BASIC PRINCIPLES
Difference between substantive and remedial law
(1) The rules shall provide a simplified and
inexpensive procedure for the speedy
disposition of cases;
(2) shall be uniform for courts of the same grade;
and
(3) shall not diminish, increase, or modify
substantive rights.
Article 6, Sec. 30, Constitution—
No law shall be passed increasing the appellate
jurisdiction of the Supreme Court as provided in this
Constitution without its advice and concurrence.

SUBSTANTIVE LAW REMEDIAL LAW Procedural and substantive rules

It creates, defines and It prescribes the Substantive law creates, defines, regulates, and
regulates rights and methods of enforcing extinguishes rights and obligations, while remedial or
duties concerning life, those rights and procedural law provides the procedure for the
liberty or property, obligations created by enforcement of rights and obligations.
which when violated substantive law by
gives rise to a cause of providing a procedural Force and effect of Rules of Court
action. system for obtaining The Rules of Court have the force and effect of law,
redress for the invasion unless they happen to be inconsistent with positive law.
of rights and violations
of duties and by Power of Supreme Court to suspend the Rules of
prescribing rules as to Court
how suits are filed, tried Whenever demanded by justice, the Supreme Court has
and decided upon by the inherent power to
the courts. (a) suspend its own rules or
(b) exempt a particular case from the operation of
Civil actions, criminal actions, and special said rules.
proceedings
May parties change the rules of procedure?
(1) Civil actions— General rule: They may not. This is because these are
It is one by which a party sues another for the matters of public interest.
protection of a right or the prevention or
redress of a wrong. Its primary purpose is Exceptions:
compensatory. Civil actions may be: Matters of procedure which may be
(a) Ordinary, or  Agreed upon by the parties— Venue may be
(b) Special. changed by written agreement of the parties
Both are governed by rules for (Rule 4, Sec. 4[b])
ordinary civil actions, subject to specific rules  Waived— Venue may be waived if not objected
prescribed for special civil actions. to in a motion to dismiss or in the answer.
(2) Criminal actions— (Rule 16, Sec. 6); judgment in default may be
It is one by which the State prosecutes a waived by failure to answer within 15 days.
person for an act or omission punishable by  Fall within the discretion of the court— The
law. Its primary purpose is punishment. period to plead may be extended on motion of
(3) Special proceedings— a party. (Rule 11, Sec. 11); rules of procedure
It is a remedy by which a party seeks to may be relaxed in the interest of justice.
establish a status, a right or a particular fact.
JURISDICTION
It is the power and authority of a court to hear, try and
GENERAL PROVISIONS (Rule 1) decided a case.

Rule-making power of the Supreme Court 1. Generally

The Supreme Court has the constitutional power to  The statute in force at the time of the
promulgate rules concerning: commencement of the action determines the
(1) Pleading, jurisdiction of the court.
(2) Practice, and  Before looking into other matters, it is the
(3) Procedure. duty of the court to consider the question of
jurisdiction without waiting for it to be raised.

MENDEZ, IVAN VIKTOR (2D, ’13)


 If court has jurisdiction, such must
be exercised. Otherwise, it may be
enforced by a mandamus proceeding.
 If court has no jurisdiction, the court
shall dismiss the claim and can do so
motu proprio.
 Doctrine of primary jurisdiction—
The courts will not resolve a controversy
involving a question which is within the
jurisdiction of an administrative tribunal.
 Doctrine of continuing jurisdiction—
Once jurisdiction has attached to a court, it
retains that jurisdiction until it finally
disposes of the case. Hence, it is not lost by
 The passage of new laws transferring
the jurisdiction to another tribunal
except when expressly provided by
the statute;
 Subsequent filing of a notice of
appeal;
 The mere fact that a party who is a
public official ceased to be in office;
or
 Finality of judgment (the court still
has jurisdiction to enforce and
execute it)
Elements of a valid exercise of jurisdiction
(1) Jurisdiction over the subject matter or nature
of the case;
(2) the parties;
(3) the res if jurisdiction over the defendant
cannot be acquired;
(4) the issue of the case; and
(5) Payment of docket fees.
Jurisdiction over the subject matter is a matter of
substantive law.
Jurisdiction over the parties, the res and the
issues are matters of procedure. Jurisdiction over the
parties and the res are covered by the rule on summons,
while jurisdiction over the issues is subsumed under
the rule on pleadings.
(a) As to subject matter
Jurisdiction over the subject matter is conferred by the
Constitution or by law.
Therefore, jurisdiction over the subject matter
cannot be conferred by
(1) Administrative policy of any court;
(2) Court’s unilateral assumption of jurisdiction;
(3) Erroneous belief by the court that it has
jurisdiction;
(4) By contract or by the parties;
(5) By agreement, or by any act or omission of the
parties, nor by acquiescence of the court; or
(6) By the parties’ silence, acquiescence or
consent
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER2
 General Rule: It is determined by the material
allegations of the initiatory pleading (e.g., the
complaint), not the answer of the defendant. Once
acquired, jurisdiction is not lost because of the
defendant’s contrary allegation.
Exception: In ejectment cases, where tenancy is
averred by way of defense and is proved to be the
real issue, the case should be dismissed for not
being properly filed with the DARAB.
 It is determined by the cause of action alleged, not
by the amount substantiated and awarded.
Example: If a complaint alleges a recoverable
amount of P1M, RTC has jurisdiction even if
evidence proves the only P300k may be recovered.
Note: Jurisdiction over the subject matter CANNOT be
waived, enlarged or diminished by stipulation of the
parties.
(b) As to res or property
Jurisdiction over the res refers to the court’s
jurisdiction over the thing or the property which is the
subject of the action.
Jurisdiction over the res is acquired by
(1) Custodia legis—placing the property or thing
under the court’s custody (e.g., attachment)
(2) Statutory authority—statute conferring the
court with power to deal with the property or
thing within its territorial jurisdiction
(3) Summons by publication or other modes of
extraterritorial service (Rule 14, Sec. 15)
(c) As to the issues
Issue— a disputed point or question to which parties to
an action have narrowed down their several allegations
and upon which they are desirous of obtaining a
decision. Thus, where there is no disputed point, there
is no issue.
Jurisdiction over the issue may be conferred or
determined by
(1) Examination of the pleadings—
Generally, jurisdiction over the issues is
determined by the pleadings of the parties.
(2) Pre-trial—
It may be conferred by stipulation of the
parties in the pre-trial, as when they enter into
stipulations of facts and documents or enter
into an agreement simplifying the issues of the
case (Rule 18, Sec. 2)
(3) Waiver—
Failure to object to presentation of evidence
on a matter not raised in the pleadings. Said
issues tried shall be treated as if they had been
raised in the pleadings.
(d) As to the parties
The court acquires jurisdiction over the

 Plaintiff—
when he files his complaint
 Defendant—
i. Valid service of summons upon him, or
ii. Voluntary appearance:
“The defendant’s voluntary appearance in
the action shall be equivalent to service of
summons. The inclusion in a motion to
dismiss of other grounds aside from lack
of jurisdiction over the person of the
defendant shall not be deemed a
voluntary appearance. (Rule 14, Sec. 20)
Examples:
When defendant files
 The necessary pleading;
 A motion for reconsideration;
 Petition to set aside judgment o f
default;
 An answer;
 Petition for certiorari without
questioning the court’s jurisdiction
over his person; or
 When the parties jointly submit a
compromise agreement for approval
BUT the filing of an answer should not be
treated automatically as a voluntary
appearance when such answer is
precisely to object to the court’s
jurisdiction over the defendant’s person.
La Naval v. CA: A defendant should be
allowed to put up his own defenses
alternatively or hypothetically. It should
not be the invocation of available
additional defenses that should be
construed as a waiver of the defense of
lack of jurisdiction over the person, but
the failure to raise the defense.
Note: Jurisdiction over a non-resident defendant
cannot be acquired if the action is in personam.
2. Estoppel to deny jurisdiction
HEIRS OF BERTULDO HINOG v. MELICOR
(455 SCRA 460, 2005)
Since the deceased defendant participated in all
stages of the case before the trial court, he is
estopped from denying the jurisdiction of the court.
The petitioners merely stepped into the shoes of
their predecessor and are effectively barred by
estoppel from challenging RTC’s jurisdiction.
FACTS: Bertuldo Hinog allegedly occupied and built a
small house on a portion of a property owned by
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER3
respondents Balane for 10 years at a nominal annual
rental. After 10 years, Bertuldo refused to heed
demands made by respondents to return said portion
and to remove the house constructed thereon.
Respondents filed a complaint against him. Bertuldo
filed his Answer, alleging ownership of the disputed
property by virtue of a Deed of Absolute Sale. Bertuldo
died without completing his evidence during the direct
examination. Bertuldo’s original counsel was replaced
by Atty. Petalcorin who entered his appearance as new
counsel for the heirs of Bertuldo.
Atty. Petalcorin filed a motion to expunge the
complaint from the record and nullify all court
proceedings on the ground that private respondents
failed to specify in the complaint the amount of
damages claimed so as to pay the correct docket fees;
and that under Manchester doctrine, non-payment of
the correct docket fee is jurisdictional.
ISSUE: Whether the petitioners are barred by estoppel
from questioning the jurisdiction of RTC
YES. The petitioners are barred from
questioning jurisdiction of the trial court. Although the
issue of jurisdiction at any stage of the proceedings as
the same is conferred by law, it is nonetheless settled
that a party may be barred from raising it on the ground
of estoppel. After the deceased Bertuldo participated in
all stages of the case before the trial court, the
petitioners merely stepped into the shoes of their
predecessor and are effectively barred by estoppel from
challenging RTC’s jurisdiction.
3. Jurisdiction at the time of filing of action
PEOPLE v. CAWALING
(293 SCRA 267, 1998)
The jurisdiction of a court to try a criminal case is
determined by the law in force at the time of the
institution of the action. Once the court acquires
jurisdiction, it may not be ousted from the case by
any subsequent events, such as a new legislation
placing such proceedings under the jurisdiction of
another tribunal. Exceptions to this rule arise when:
(1) there is an express provision in the statute, or
(2) the statute is clearly intended to apply to actions
pending before its enactment.
FACTS: Brothers Vicente and Ronie Elisan were
drinking tuba at the kitchenette of one of the accused,
Fontamilla. When they were about to leave, they were
warned by Luz Venus that the six (6) accused consisting
of Mayor Cawaling, four (4) policemen and a civilian,
had been watching and waiting for them outside the
restaurant. Nevertheless, the two went out and were
chased by the armed men. Vicente successfully ran and
hid behind a coconut tree while Ronie unfortunately
went to the ricefield and was shot to death there.
An Information alleging murder was filed in
the RTC against the 6 accused. RTC convicted them of

murder. On appeal, the appellants questioned the
jurisdiction of the RTC over the case, insisting that the
Sandiganbayan was the tribunal with jurisdiction since
the accused were public officers at the time of the
killing.
ISSUE: Whether the Sandiganbayan had jurisdiction
NO. The jurisdiction of a court to try a
criminal case is determined by the law in force at the
time of the institution of the action. Once the court
acquires jurisdiction, it may not be ousted from the case
by any subsequent events, such as a new legislation
placing such proceedings under the jurisdiction of
another tribunal. Exceptions to this rule arise when:
(1) there is an express provision in the statute, or (2)
the statute is clearly intended to apply to actions
pending before its enactment.
Section 4-a-2 of PD 1606, as amended by PD
1861 lists two requisites that must concur before the
Sandiganbayan may exercise exclusive and original
jurisdiction over a case: (a) the offense was committed
by the accused public officer in relation to his office;
and (b) the penalty prescribed by law is higher than
prision correccional or imprisonment for six (6) years,
or higher than a fine of P6,000.
Sanchez vs. Demetriou clarified that murder or
homicide may be committed both by public officers and
by private citizens, and that public office is not a
constitutive element of said crime. The relation
between the crime and the office contemplated should
be direct and not accidental.
The Information filed against the appellants
contains no allegation that appellants were public
officers who committed the crime in relation to their
office. The charge was only for murder.
In the absence of any allegation that the
offense was committed in relation to the office of
appellants or was necessarily connected with the
discharge of their functions, the regional trial court, not
the Sandiganbayan, has jurisdiction to hear and decide
the case.
REGULAR COURTS (MTC, RTC, CA, SC)
(See San Beda Reviewer)
SPECIAL COURTS (Sandiganbayan)
(See San Beda Reviewer)
QUASI-JUDICIAL BODIES
Securities and Exchange Commission (Sec. 5.2, RA
8799)
The Commission shall retain jurisdiction over
 Pending cases involving intra-corporate
disputes submitted for final resolution which
should be resolved within one (1) year from
the enactment of this Code, and
 Jurisdiction over pending suspension of
payments/rehabilitation cases filed as of 30
June 2000 until finally disposed.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER4
Civil Service Commission
MAGPALE v. CSC (215 SCRA 398, 1992)
Under Section 47 of the Administrative Code, the
CSC shall decide on appeal all administrative
disciplinary cases involving the imposition of “… (d)
removal or dismissal from office.”
The MPSB decision did not involve
dismissal or separation from office, rather, the
decision exonerated petitioner and ordered him
reinstated to his former position. The MSPB
decision was not a proper subject of appeal to the
CSC.
FACTS: Magpale, port manager of Philippine Ports
Authority-Port Management Unit (PPA-PMU) of
Tacloban, was found by the Secretary of DOTC guilty of
Gross Negligence on two counts: (a) for his failure to
account for the 44 units of equipment and (b) for failing
to render the required liquidation of his cash advances
amounting to P44,877.00 for a period of 4 yrs. He was
also found guilty of frequent and unauthorized
absences. He was meted the penalty of dismissal from
the service with the corresponding accessory penalties.
He appealed to the Merit System and
Protection Board (MSPB) of the Civil Service
Commission (CSC). The MSPB reversed the decision.
PPA filed an appeal with the Civil Service Field
Office-PPA, which indorsed the appeal to CSC. Magpale
moved for the implementation of the MSPB decision
which was opposed by the PPA. MSPB ordered the
immediate implementation of its decision, which
became final and executory.
Respondent CSC reversed MPSB’s decision and
held Magpale guilty.
ISSUE: Whether the law authorized an appeal by the
government from an adverse decision of the MSBP
NO. Under the Administrative Code of 1987,
decisions of the MPSB shall be final, except only “those
involving dismissal or separation from the service
which may be appealed to the Commission”
While it is true that the CSC does have the
power to hear and decide administrative cases
instituted by or brought before it directly or on appeal,
the exercise of the power is qualified by and should be
read together with Sec. 49 of Executive Order 292,
which prescribes, among others that “(a) the decision
must be appealable.”
Under Section 47 of the Administrative Code,
the CSC shall decide on appeal all administrative
disciplinary cases involving the imposition of:
(a) a penalty of suspension for more than 30 days;
(b) fine in an amount exceeding 30 days salary;
(c) demotion in rank or salary or transfer; or
(d) removal or dismissal from office.

The MPSB decision did not involve dismissal or
separation from office, rather, the decision exonerated
petitioner and ordered him reinstated to his former
position. The MSPB decision was not a proper subject of
appeal to the CSC.
Settled is the rule that a tribunal, board, or
officer exercising judicial functions acts without
jurisdiction if no authority has been conferred by law to
hear and decide the case.
Housing and Land Use Regulatory Board (HLURB)
SANDOVAL v. CAÑEBA
(190 SCRA 77, 1991)
It is not the ordinary courts but the National
Housing Authority (NHA) which has exclusive
jurisdiction to hear and decide cases of (a)
unsound real estate business practices; (b) claims
involving refund and any other claims filed by
subdivision lot or condominium unit buyer against
the project owner, developer, dealer, broker or
salesman; and (c) cases involving specific
performance of contractual and statutory
obligations filed by buyers of subdivision lot or
condominium unit against the owner, developer,
dealer, broker or salesman.
FACTS: Estate Developers and Investors Corporation
(Estate) filed a complaint against Nestor Sandoval
(Sandoval) in the RTC for the collection of unpaid
installments of a subdivision lot, pursuant to a
promissory note, plus interest. Sandoval alleges that he
suspended payments thereof because of the failure of
the developer to develop the subdivision pursuant to
their agreement. The RTC ruled in favor of Estate, and
ordered Sandoval to pay. A writ of execution was issued
which thereafter became final and executory.
Sandoval filed a motion to vacate judgment
and to dismiss the complaint on the ground that the
RTC had no jurisdiction over the subject matter. A
motion for reconsideration of the writ of execution was
also filed by petitioner. Estate opposed both motions.
RTC denied the motion to vacate for the reason that it is
now beyond the jurisdiction of the court to do so. A new
writ of execution was issued.
Sandoval filed a petition alleging that the RTC
committed grave abuse of discretion since the exclusive
and original jurisdiction over the subject-matter thereof
is vested with the Housing and Land Use Regulatory
Board (HLURB) pursuant to PD 957.
ISSUE: Whether the ordinary courts have jurisdiction
over the collection of unpaid installments regarding a
subdivision lot
NO. Under Section 1 of Presidential Decree No.
957 the National Housing Authority (NHA) was given
the exclusive jurisdiction to hear and decide certain
cases of the following nature:
(a) Unsound real estate business practices:
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER5
(b) Claims involving refund and any other claims
filed by subdivision lot or condominium unit
buyer against the project owner, developer,
dealer, broker or salesman; and
(c) Cases involving specific performance of
contractual and statutory obligations filed by
buyers of subdivision lot or condominium unit
against the owner, developer, dealer, broker or
salesman.
The exclusive jurisdiction over the case between the
petitioner and private respondent is vested not on the
RTC but on the NHA. The NHA was re-named Human
Settlements Regulatory Commission and thereafter it
was re-named as the Housing and Land Use Regulatory
Board (HLURB).
KINDS OF ACTION
1. As to cause or foundation
The distinction between a real action and a personal
action is important for the purpose of determining the
venue of the action.
(a) Personal
Personal actions are those other than real actions. (Sec.
2, Rule 4)
Examples
 Action for specific performance
 Action for damages to real property
 Action for declaration of the nullity of
marriage
 Action to compel mortgagee to accept
payment of the mortgage debt and release the
mortgage
(b) Real
An action is real when it affects title to or possession of
real property, or an interest therein. (Sec. 1, Rule 4)
To be a real action, it is not enough that it
deals with real property. It is important that the matter
in litigation must also involve any of the following
issues:
(a) Title;
(b) Ownership;
(c) Possession;
(d) Partition;
(e) Foreclosure of mortgage; or
(f) Any interest in real property
Examples
 Action to recover possession of real property
plus damages (damages is merely incidental)
 Action to annul or rescind a sale of real
property
2. As to object
The distinctions are important

(a) to determine whether the jurisdiction of the
defendant is required, and
(b) to determine the type of summons to be
employed
(a) In rem
An action is in rem when it is directed against the whole
world. It is for the determination of the state or
condition of a thing.
Examples
 Probate proceeding
 Cadastral proceeding
(b) In personam
A proceeding in personam is a proceeding to enforce
personal rights and obligations brought against the
person and is based on the jurisdiction of the person.
Its purpose is to impose some responsibility
or liability directly upon the person of the defendant. In
an action in personam, no one other than the defendant
is sought to be held liable.
Examples
 Action for sum of money
 Action for damages
(c) Quasi in rem
An action quasi in rem is one wherein an individual is
named as defendant and the purpose of the proceeding
is to subject his interest therein to the obligation or lien
burdening the property.
Such action deals with the status, ownership
or liability of a particular property, but which are
intended to operate on these questions only as between
the particular parties to the proceedings, and not to
ascertain or cut-off the rights or interests of all possible
claimants.
NOTE: These rules are inapplicable in the following
cases:
(1) Election cases;
(2) Land registration;
(3) Cadastral;
(4) Naturalization;
(5) Insolvency proceedings;
(6) Other cases not herein provided for, except by
analogy or in a suppletory character, and
whenever practicable and convenient.
(Sec. 4, Rule 1)
COMMENCEMENT OF ACTION (Sec. 5, Rule 1)
A civil action is commenced
 by the filing of the original complaint in court,
or
 on the date of the filing of the later pleading if
an additional defendant is impleaded
irrespective of whether the motion for its
admission, if necessary, is denied by the court.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER6
(with respect only to the defendant later
impleaded)
1. Condition precedent
— matters which must be complied with before a cause
of action arises.
 When a claim is subject to a condition
precedent, compliance must be alleged in the
pleading.
 Failure to comply with a condition precedent
is an independent ground for a motion to
dismiss. (Sec. 1 [j], Rule 16)
Examples:
 Tender of payment before consignation
 Exhaustion of administrative remedies
 Prior resort to barangay conciliation
proceedings
 Earnest efforts towards a compromise
 Arbitration proceedings, when contract so
provides
Katarungang Pambarangay (RA 7160)
Purpose: To reduce the number of court litigations and
prevent the deterioration of the quality of justice which
has been brought by the indiscriminate filing of cases in
the courts.
 Only individuals shall be parties to KB
proceedings, no juridical entities.
 Parties must personally appear in all KB
proceedings and without assistance of counsel
or representatives, except for minors and
incompetents who may be assisted by their
next-of-kin, not lawyers.
 Conciliation proceedings required is not a
jurisdictional requirement.
 NOTE: Failure to undergo the barangay
conciliation proceedings is non-compliance of
a condition precedent. Hence, a motion to
dismiss a civil complaint may be filed. (Sec. 1
[j], Rule 16).
 BUT the court may not motu proprio dismiss
the case for failure to undergo conciliation.
Initiation of proceedings
(1) Payment of appropriate filing fee
(2) Oral or written complaint to the Punong
Barangay (chairman of the Lupon)
(3) Chairman shall summon respondents to
appear the next working day
(4) Mediation proceedings for 15 days
(5) Should the chairman fail in his mediation
efforts within said period, he shall constitute
the Pangkat Tagapagkasundo,
(6) If no amicable settlement is reached, the
chairman shall issue a certification to file
action.
All amicable settlements shall be
(1) In writing;
(2) In a language or dialect known to the parties;

(3) Signed by them; and
(4) Attested to by the lupon chairman or the
pangkat chairman, as the case may be.
Effect
The amiable settlement and arbitration award shall
have the effect of a final judgment of a court upon
expiration of 10 days from date thereof, unless:
(1) Repudiation of the settlement has been made,
or
(2) Petition to nullify the award has been filed
before the proper city or municipal ourt
Execution shall issue upon expiration of 10 days from
settlement.
LUMBUAN v. RONQUILLO
(489 SCRA 650, 2006)
While admittedly no pangkat was constituted, the
parties met at the office of the Barangay Chairman
for possible settlement. The act of Lumbuan in
raising the matter to the Katarungang
Pambarangay and the subsequent confrontation of
the lessee and lessor before the Lupon Chairman or
the pangkat is sufficient compliance with the
precondition for filing the case in court.
FACTS: Lumbuan (lessor) leased a lot to respondent
Ronquillo (lessee) for 3 years at a rental of
P5000/month. They agreed that: (a) there will be an
annual 10% increase in rent for the next 2 years; and
(b) the leased premises shall be used only for lessee’s
fastfood business. Ronquillo failed to abide by the
conditions, and refused to pay or vacate the leased
premises despite Lumbuan’s repeated verbal demands.
Lumbuan referred the matter to the Barangay
Chairman’s Office but no amicable settlement was
reached. The barangay chairman issued a Certificate to
File Action. Lumbuan filed an action for Unlawful
Detainer with MeTC of Manila which ordered
respondent Ronquillo to vacate the leased premises and
to pay P46,000 as unpaid rentals.
RTC set aside the MeTC decision and directed
the parties to go back to the Lupon Chairman or Punong
Barangay for further proceedings and to comply strictly
with the condition that should the parties fail to reach
an amicable settlement, the entire case will be
remanded to the MeTC for it to decide the case anew.
The CA reversed the RTC and ordered the
dismissal of the ejectment case, ruling that when a
complaint is prematurely instituted, as when the
mandatory mediation and conciliation in the barangay
level had not been complied with, the court should
dismiss the case and not just remand the records to the
court of origin so that the parties may go through the
prerequisite proceedings.
ISSUE: Whether the CA properly dismissed complaint for
failure of the parties to comply with the mandatory
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER7
mediation and conciliation proceedings in the barangay
level
NO. It should be noted that although no
pangkat was formed since no amicable settlement was
reached by the parties before the Katarungang
Pambarangay, there was substantial compliance with
Section 412(a) of R.A. 7160.
While admittedly no pangkat was constituted,
the parties met at the office of the Barangay Chairman
for possible settlement. Thereby, the act of petitioner
Lumbuan in raising the matter to the Katarungang
Pambarangay and the subsequent confrontation of the
lessee and lessor before the Lupon Chairman or the
pangkat is sufficient compliance with the precondition
for filing the case in court. This is true notwithstanding
the mandate of Section 410(b) of the same law that the
Barangay Chairman shall constitute a pangkat if he fails
in his mediation efforts. Section 410(b) should be
construed together with Section 412, as well as the
circumstances obtaining in and peculiar to the case. On
this score, it is significant that the Barangay Chairman
or Punong Barangay is herself the Chairman of the
Lupon under the Local Government Code.
2. Payment of filing fee
Payment of the prescribed docket fee vests a trial court
with jurisdiction over the subject matter or nature of
the action. The court acquires jurisdiction upon
payment of the correct docket fees.
 All complaints, petitions, answers, and similar
pleadings must specify the amount of
damages being prayed for, both in the body of
the pleadings and in the assessment of the
filing fees.
 Manchester v. CA: Any defect in the original
pleading resulting in underpayment of the
docket fee cannot be cured by amendment,
and for all legal purposes, the court acquired
no jurisdiction in such case.
 BUT nonpayment of filing fees does not
automatically cause the dismissal of the case.
The fee may be paid within the applicable
prescriptive or reglementary period.
HEIRS OF BERTULDO HINOG v. MELICOR
(455 SCRA 460, 2005)
Non-payment at the time of filing does not
automatically cause the dismissal of the case, as
long as the fee is paid within the applicable
prescriptive or reglementary period, more so when
the party involved demonstrates a willingness to
abide by the rules prescribing such payment. Thus,
when insufficient filing fees were initially paid by
the plaintiffs and there was no intention to defraud
the government, the Manchester rule does not apply.
FACTS: Respondents filed a complaint against Bertuldo
for recovery of ownership of the premises leased by the
latter. Bertuldo alleged ownership of the property by

virtue of a Deed of Absolute Sale. Bertuldo died without
completing his evidence during the direct examination.
Atty. Petalcorin replaced the original counsel and filed a
motion to expunge the complaint from the record and
nullify all court proceedings on the ground that
private respondents failed to specify in the
complaint the amount of damages claimed as needed
to pay the correct docket fees, and that under
Manchester doctrine, non-payment of the correct docket
fee is jurisdictional.
ISSUE: Whether the nonpayment of the correct docket fee
is jurisdictional in the present case
NO. While the payment of the prescribed
docket fee is a jurisdictional requirement, even its non-
payment at the time of filing does not automatically
cause the dismissal of the case, as long as the fee is paid
within the applicable prescriptive or reglementary
period, more so when the party involved demonstrates
a willingness to abide by the rules prescribing such
payment. Thus, when insufficient filing fees were
initially paid by the plaintiffs and there was no intention
to defraud the government, the Manchester rule does
not apply.
SUN INSURANCE OFFICE v. ASUNCION
(170 SCRA 274, 1989)
Where the filing of the initiatory pleading is not
accompanied by payment of the docket fee, the
court may allow payment of the fee within a
reasonable time but in no case beyond the
applicable prescriptive or reglementary period.
Where the trial court acquires jurisdiction over a
claim by the filing of the pleading and payment of
prescribed filing fees but the judgment awards a
claim not specified in the pleading, or if specified
the same has been left for the court’s
determination, the additional filing fee shall
constitute a lien on the judgment. It shall be the
responsibility of the Clerk of Court or his duly
authorized deputy to enforce said lien and assess
and collect the additional fee.
FACTS
Sun Insurance Office, Ltd. (SIOL) filed a complaint
against Uy for the consignation of a premium refund on
a fire insurance policy with a prayer for the judicial
declaration of its nullity. Uy was declared in default for
failure to file the required answer within the
reglementary period. Uy filed a complaint in the RTC for
the refund of premiums and the issuance of a writ of
preliminary attachment initially against petitioner SIOL,
but thereafter included Philipps and Warby as
additional defendants. The complaint sought the
payment of actual, compensatory, moral, exemplary and
liquidated damages, attorney's fees, expenses of
litigation and costs of the suit. Although the prayer in
the complaint did not quantify the amount of damages
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER8
sought said amount may be inferred from the body of
the complaint to be about P50,000,000.
Uy paid only P210.00 as docket fee, which
prompted petitioners' counsel to raise his objection for
under-assessment of docket fees.
Petitioners allege that while Uy had paid
P182,824.90 as docket fee, and considering that the
total amount sought in the amended and supplemental
complaint is P64,601,623.70, the docket fee that should
be paid by private respondent is P257,810.49, more or
less. Not having paid the same, petitioners contend that
the complaint should be dismissed and all incidents
arising therefrom should be annulled.
ISSUE: Whether or not a court acquires jurisdiction over
case when the correct and proper docket fee has not yet
been paid
YES. Where the filing of the initiatory pleading
is not accompanied by payment of the docket fee, the
court may allow payment of the fee within a reasonable
time but in no case beyond the applicable prescriptive
or reglementary period. Where the trial court acquires
jurisdiction over a claim by the filing of the appropriate
pleading and payment of the prescribed filing fee but,
subsequently, the judgment awards a claim not
specified in the pleading, or if specified the same has
been left for determination by the court, the additional
filing fee therefore shall constitute a lien on the
judgment. It shall be the responsibility of the Clerk of
Court or his duly authorized deputy to enforce said lien
and assess and collect the additional fee.
The same rule applies to permissive
counterclaims, third party claims and similar pleadings,
which shall not be considered filed until and unless the
filing fee prescribed therefore is paid.
CAUSE OF ACTION (RULE 2)
Cause of Action
A cause of action is the act or omission by which a party
violates the rights of another. (Sec. 2, Rule 2)
Every ordinary civil action must be based on a
cause of action. (Sec. 1, Rule 2)
Elements:
(1) A legal right in favor of the plaintiff;
(2) A correlative obligation on the part of the
named defendant to respect or to not violate
such right; and
(3) Act or omission on the part of defendant in
violation of the right of the plaintiff, or
constituting a breach of the obligation of the
defendant to the plaintiff for which the latter
may maintain an action for recovery of
damages or other appropriate relief.
Distinguished from right of action
Cause of action is the reason for bringing an action, the
formal statement of operative facts giving rise to a
remedial right, and is governed by procedural law. A
 CIVIL PROCEDURE REVIEWER9

right of action is the remedy for bringing an action and

is solely dependent on substantive law. Where there is only one delict or wrong, there is but
a single cause of action regardless of the number of
Right of action, elements rights that may have been violated belonging to one
(1) There must be a good cause; person. Nevertheless, if only one injury resulted
(2) A compliance with all the conditions from several wrongful acts, only one cause of action
precedent to the bringing of the action; and arises.
(3) The action must be instituted by the proper
party.
FACTS: Joseph, petitioner, boarded Perez’s cargo truck
Splitting a cause of action with a load of livestock. At the highway, the truck driver
Splitting of cause of action is the act of dividing a single overtook a tricycle but hit a mango tree when a pick-up
or indivisible cause of action into several parts or truck tried to overtake him at the same time. This
claims and bringing several actions thereon. resulted to the bone fracture of the petitioner’s leg.
 A party may not institute more than one suit Petitioner filed a complaint for damages
for a single cause of action. (Sec. 3, Rule 2) against Perez, as owner, based on a breach of contract of
carriage, and against Sioson and Villanueva, the owner
 If two or more suits are instituted on the basis
and driver of the pick-up truck, based on quasi-delict.
of the same cause of action, the filing of one or
Petitioner impleaded Pagarigan and Vargas, since he
a judgment upon the merits in any one is
could not ascertain who the real owners of the pick-up
available as a ground for the dismissal of the
truck and the cargo truck were. Perez filed a cross-claim
others. (Sec. 4, Rule 2)
against the other respondents for indemnity, in the
 Applies also to counterclaims and cross-
event that she is ordered to pay.
claims.
The other respondents paid petitioner's claim
for injuries, so they were released from liability. They
Examples
also paid Perez for her claim of damages. They
thereafter filed a Motion to Exonerate and Exclude
Single cause of action (Cannot be filed separately)
themselves since they’ve already paid Joseph by way of
 A suit for the recovery of land and a separate
amicable settlement and Perez’s claim for damages.
suit to recover the fruits
Perez filed an Opposition to the motion since the
 Action to recover damages to person and
release of claim executed by petitioner in favor of the
action for damages to same person’s car
other respondents allegedly inured to his benefit. RTC
 Action for recovery of taxes and action to
dismissed the case.
demand surcharges resulting from
delinquency in payment of said taxes
ISSUE: Whether the judgment on the compromise
 Action to collect debt and to foreclose
agreement under the cause of action based on quasi-
mortgage
delict is a bar to the cause of action for breach of
 Action for partition and action for the
contract of carriage
recovery of compensation on the
YES. A single act or omission can be violative
improvements
of various rights at the same time, as when the act
 Action for annulment of sale and action to
constitutes a juridical a violation of several separate
recover dividends
and distinct legal obligations. However, where there is
only one delict or wrong, there is but a single cause of
Distinct causes of action (separate filing allowed)
action regardless of the number of rights that may have
 Action for reconveyance of title over property
been violated belonging to one person. Nevertheless, if
and action for forcible entry or unlawful
only one injury resulted from several wrongful acts,
detainer
only one cause of action arises.
 Action for damages to a car in a vehicular
There is no question that petitioner sustained
accident, and another action for damages for
a single injury on his person, which vested in him a
injuries to a passenger other than the owner
single cause of action, albeit with the correlative rights
of the car
of action against the different respondents through the
 Action to collect loan and action for rescission
appropriate remedies allowed by law. Only one cause of
of mortgage
action was involved although the bases of recovery
 Action based on breach of contract of carriage
invoked by petitioner against the defendants therein
and action based on quasi-delict
were not necessarily identical since the respondents
were not identically circumstanced.

JOSEPH v. BAUTISTA
DEL ROSARIO v. FEBTC
(170 SCRA 540, 1989)
(537 SCRA 571, 2007)

MENDEZ, IVAN VIKTOR (2D, ’13)


It is well established, however, that a party cannot,
by varying the form of action or adopting a different
method of presenting his case, or by pleading
justifiable circumstances as herein petitioners are
doing, escape the operation of the principle that one
and the same cause of action shall not be twice
litigated.
FACTS: PDCP extended a P4.4 million loan to DATICOR,
which that DATICOR shall pay: a service fee of 1% per
annum (later increased 6% per annum) on the
outstanding balance; 12% per annum interest; and
penalty charges 2% per month in case of default. The
loans were secured by real estate mortgages over six
(6) parcels of land and chattel mortgages over
machinery and equipment.
DATICOR paid a total of P3 million to PDCP,
which the latter applied to interest, service fees and
penalty charges. This left them with an outstanding
balance of P10 million according to PDCP’s
computation.
DATICOR filed a complaint against PDCP for
violation of the Usury Law and annulment of contract
and damages. The CFI dismissed the complaint. The IAC
set aside the dismissal and declared void and of no
effect the stipulation of interest in the loan agreement.
PDCP appealed the IAC's decision to SC.
In the interim, PDCP assigned a portion of its
receivables from DATICOR to FEBTC for of P5.4 M.
FEBTC and DATICOR, in a MOA, agreed to P6.4
million as full settlement of the receivables.
SC affirmed in toto the decision of the IAC,
nullifying the stipulation of interests. DATICOR thus
filed a Complaint for sum of money against PDCP and
FEBTC to recover the excess payment which they
computed to be P5.3 million. RTC ordered PDCP to pay
petitioners P4.035 million, to bear interest at 12% per
annum until fully paid; to release or cancel the
mortgages and to return the corresponding titles to
petitioners; and to pay the costs of the suit.
RTC dismissed the complaint against FEBTC
for lack of cause of action since the MOA between
petitioners and FEBTC was not subject to SC decision,
FEBTC not being a party thereto.
Petitioners and PDCP appealed to the CA,
which held that petitioners' outstanding obligation
(determined to be only P1.4 million) could not be
increased or decreased by any act of the creditor PDCP,
and held that when PDCP assigned its receivables, the
amount payable to it by DATICOR was the same amount
payable to assignee FEBTC, irrespective of any
stipulation that PDCP and FEBTC might have provided
in the Deed of Assignment, DATICOR not having been a
party thereto, hence, not bound by its terms.
By the principle of solutio indebiti, the CA held
that FEBTC was bound to refund DATICOR the excess
payment of P5 million it received; and that FEBTC could
recover from PDCP the P4.035 million for the
overpayment for the assigned receivables. But since
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER10
DATICOR claimed in its complaint only of P965,000
from FEBTC, the latter was ordered to pay them only
that amount.
Petitioners filed before the RTC another
Complaint against FEBTC to recover the balance of the
excess payment of P4.335 million.
The trial court dismissed petitioners'
complaint on the ground of res judicata and splitting of
cause of action. It recalled that petitioners had filed an
action to recover the alleged overpayment both from
PDCP and FEBTC and that the CA Decision, ordering
PDCP to release and cancel the mortgages and FEBTC to
pay P965,000 with interest became final and executory.
ISSUE: Whether FEBTC can be held liable for the balance
of the overpayment of P4.335 million plus interest which
petitioners previously claimed against PDCP in a
previously decided case
NO. A cause of action is the delict or the
wrongful act or omission committed by the defendant
in violation of the primary rights of the plaintiff. In the
two cases, petitioners imputed to FEBTC the same
alleged wrongful act of mistakenly receiving and
refusing to return an amount in excess of what was due
it in violation of their right to a refund. The same facts
and evidence presented in the first case were the very
same facts and evidence that petitioners presented in
the second case.
A party cannot, by varying the form of action
or adopting a different method of presenting his case,
or by pleading justifiable circumstances as herein
petitioners are doing, escape the operation of the
principle that one and the same cause of action shall not
be twice litigated.
SC held that to allow the re-litigation of an
issue that was finally settled as between petitioners and
FEBTC in the prior case is to allow the splitting of a
cause of action, a ground for dismissal under Section 4
of Rule 2 of the Rules of Court.
This rule proscribes a party from dividing a
single or indivisible cause of action into several parts or
claims and instituting two or more actions based on it.
Because the plaintiff cannot divide the grounds for
recovery, he is mandated to set forth in his first action
every ground for relief which he claims to exist and
upon which he relies; he cannot be permitted to rely
upon them by piecemeal in successive actions to
recover for the same wrong or injury.
Both the rules on res judicata and splitting of
causes of action are based on the salutary public policy
against unnecessary multiplicity of suits—interest
reipublicae ut sit finis litium. Re-litigation of matters
already settled by a court's final judgment merely
burdens the courts and the taxpayers, creates
uneasiness and confusion, and wastes valuable time and
energy that could be devoted to worthier cases.
PROGRESSIVE DEVELOPMENT CORP. v. CA
(301 SCRA 367, 1991)

When a single delict or wrong is committed — like
the unlawful taking or detention of the property of
another — there is but one single cause of action
regardless of the number of rights that may have
been violated, and all such rights should be alleged
in a single complaint as constituting one single cause
of action. In a forcible entry case, the real issue is the
physical possession of the real property. The
question of damages is merely secondary or
incidental, so much so that the amount thereof does
not affect the jurisdiction of the court. In other
words, the unlawful act of a deforciant in taking
possession of a piece of land by means of force and
intimidation against the rights of the party actually
in possession thereof is a delict or wrong, or a cause
of action that gives rise to two (2) remedies,
namely, the recovery of possession and recovery of
damages arising from the loss of possession, but
only to one action. For obvious reasons, both
remedies cannot be the subject of two (2)
separate and independent actions, one for
recovery of possession only, and the other, for the
recovery of damages. That would inevitably lead to
what is termed in law as splitting up a cause of
action.
FACTS: PDC leased to Westin a parcel of land with a
commercial building for 9 years and 3 months, with a
monthly rental of approximately P600,000. Westin
failed to pay rentals despite several demands. The
arrearages amounted to P8,6M. PDC repossessed the
leased premises, inventoried the movable properties
found within and owned by Westin, and scheduled a
public auction for the sale of the movables, with notice
to Westin.
Westin filed a forcible entry case with the
MeTC against PDC for with damages and a prayer for a
temporary restraining order and/or writ of preliminary
injunction. A TRO enjoined PDC from selling Westin's
properties.
At the continuation of the hearing, the parties
agreed, among others, that Westin would deposit with
the PCIB (Bank) P8M to guarantee payment of its back
rentals. Westin did not comply with its undertaking, and
instead, with the forcible entry case still pending,
Westin instituted another action for damages against
PDC with the RTC.
The forcible entry case had as its cause of
action the alleged unlawful entry by PDC into the leased
premises out of which three (3) reliefs arose: (a) the
restoration by PDC of possession of the leased premises
to the lessee; (b) the claim for actual damages due to
losses suffered by Westin; and, (c) the claim for
attorney’s fees and cost of suit.
On the other hand, the complaint for damages
prays for a monetary award consisting of moral and
exemplary damages; actual damages and compensatory
damages representing unrealized profits; and,
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER11
attorney's fees and costs, all based on the alleged
forcible takeover of the leased premises by PDC.
PDC filed a motion to dismiss the damage suit
on the ground of litis pendencia and forum shopping.
The RTC, instead of ruling on the motion, archived the
case pending the outcome of the forcible entry case.
Westin filed with the RTC an amended
complaint for damages, which was granted. It also filed
an Urgent Ex-Parte Motion for the Issuance of a TRO
and Motion for the Grant of a Preliminary Prohibitory
and Preliminary Mandatory Injunction, which were all
granted. PDC’s motion to dismiss was denied.
Thus, PDC filed with the CA a special civil
action for certiorari and prohibition. But the CA
dismissed the petition. It clarified that since the
damages prayed for in the amended complaint with the
RTC were those caused by the alleged high-handed
manner with which PDC reacquired possession of the
leased premises and the sale of Westin's movables
found therein, the RTC and not the MeTC had
jurisdiction over the action of damages.
ISSUE: Whether Westin may institute a separate suit for
damages with the RTC after having instituted an action
for forcible entry with damages with the MeTC
NO. Sec. 1 of Rule 70 of the Rules of Court
provides that all cases for forcible entry or unlawful
detainer shall be filed before the MTC which shall
include not only the plea for restoration of possession
but also all claims for damages and costs arising
therefrom. Otherwise expressed, no claim for damages
arising out of forcible entry or unlawful detainer may be
filed separately and independently of the claim for
restoration of possession.
Under Sec. 3 of Rule 2 of the Revised Rules of
Court, as amended, a party may not institute more than
one suit for a single cause of action. Under Sec. 4 of the
same Rule, if two or more suits are instituted on the
basis of the same cause of action, the filing of one or a
judgment upon the merits in any one is available as a
ground for the dismissal of the other or others.
Westin's cause of action in the forcible entry
case and in the suit for damages is the alleged illegal
retaking of possession of the leased premises by PDC
from which all legal reliefs arise. Simply stated, the
restoration of possession and demand for actual
damages in the case before the MeTC and the demand
for damages with the RTC both arise from the same
cause of action, i.e., the forcible entry by PDC into the
least premises. The other claims for moral and
exemplary damages cannot succeed considering that
these sprung from the main incident being heard before
the MeTC. Jurisprudence says that when a single delict
or wrong is committed — like the unlawful taking or
detention of the property of the another — there is but
one single cause of action regardless of the number of
rights that may have been violated, and all such rights
should be alleged in a single complaint as constituting
one single cause of action. In a forcible entry case, the
real issue is the physical possession of the real property.
The question of damages is merely secondary or

incidental, so much so that the amount thereof does not
affect the jurisdiction of the court. In other words, the
unlawful act of a deforciant in taking possession of a
piece of land by means of force and intimidation against
the rights of the party actually in possession thereof is a
delict or wrong, or a cause of action that gives rise to
two (2) remedies, namely, the recovery of possession
and recovery of damages arising from the loss of
possession, but only to one action. For obvious reasons,
both remedies cannot be the subject of two (2) separate
and independent actions, one for recovery of possession
only, and the other, for the recovery of damages. That
would inevitably lead to what is termed in law as
splitting up a cause of action.
What then is the effect of the dismissal of the
other action? Since the rule is that all such rights should
be alleged in a single complaint, it goes without saying
that those not therein included cannot be the subject of
subsequent complaints for they are barred forever. If a
suit is brought for a part of a claim, a judgment obtained
in that action precludes the plaintiff from bringing a
second action for the residue of the claim,
notwithstanding that the second form of action is not
identical with the first or different grounds for relief are
set for the second suit. This principle not only embraces
what was actually determined, but also extends to every
matter which the parties might have litigated in the
case. This is why the legal basis upon which Westin
anchored its second claim for damages, i.e., Art. 1659 in
relation to Art. 1654 of the Civil Code, not otherwise
raised and cited by Westin in the forcible entry case,
cannot be used as justification for the second suit for
damages.
CGR CORP. V. TREYES
(522 SCRA 765, 2007)
Petitioners’ filing of an independent action for
damages grounded on the alleged destruction of
CGR’s property, other than those sustained as a
result of dispossession in the Forcible Entry case
could not be considered as splitting of a cause of
action.
FACTS: CGR Corporation, Herman Benedicto and
Alberto Benedicto, petitioners, claim to have occupied
37 ha. of public land in Negros Occidental, pursuant to a
lease agreement granted to them by the Secretary of
Agriculture for a period of 25 years (to last October
2000 to December 2024). On November 2000, however,
respondent Treyes allegedly forcibly and unlawfully
entered the leased premises and barricaded the
entrance to the fishponds of the petitioners. Treyes and
his men also harvested tons of milkfish and fingerlings
from the petitioners’ ponds.
Petitioners then filed a complaint for Forcible
Entry with the MTC. Another complaint to claim for
damages was also filed by the petitioners against the
same respondent Treyes grounded on the allegations
that Treyes and his men also destroyed and ransacked
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER12
the Chapel built by petitioner CGR Corporation and
decapitated the heads of the religious figures.
ISSUE: Whether during the pendency of a separate
complaint for Forcible Entry, the petitioner can
independently institute and maintain an action for
damages which they claim arose from incidents
occurring after the forcible entry of Treyes and his men
YES. The only recoverable damages in the
forcible entry and detainer cases instituted first by the
petitioners with the MTC are the “rents” or fair rental
value of the property from the time of dispossession by
the respondent. Hence, other damages being claimed by
the petitioners must be claimed in another ordinary
civil action.
It is noteworthy that the second action
instituted by the petitioners (complaint for damages)
have NO direct relation to their loss of possession of the
leased premises – which is the main issue in the first
action they instituted. The second action for claim of
damages had to do with the harvesting and carting
away of milkfish and other marine products, as well as
the ransacking of the chapel built by CGR Corp. Clearly,
the institution of the two cases is not a splitting of a
cause of action, since both are concerned with entirely
different issues.
ENRIQUEZ v. RAMOS
(7 SCRA 265, 1963)
An examination of the first complaint filed against
appellant in CFI showed that it was based on
appellants' having unlawfully stopped payment of
the check for P2,500.00 she had issued in favor of
appellees; while the complaint in the second and
present action was for non-payment of the balance
of P96,000.00 guaranteed by the mortgage. The
claim for P2,500.00 was, therefore, a distinct debt
not covered by the security. The two causes of
action being different, section 4 of Rule 2 does not
apply.
FACTS: Rodrigo Enriquez and the Dizon spouses sold to
Socorro Ramos 11 parcels of land for P101,000. Ramos
paid P5,000 downpayment, P2,500 in cash, and with a
P2,500.00 check drawn against PNB, and agreed to
satisfy the balance of P96,000.00 within 90 days. To
secure the said balance, Ramos, in the same deed of
sale, mortgaged the 11 parcels in favor of the vendors.
Ramos mortgaged a lot on Malinta Estate as additional
security, as attorney-in-fact of her four children and as
judicial guardian of her minor child.
Ramos failed to comply with the conditions of
the mortgage, so an action for foreclosure was filed by
the vendors-mortgagees. Ramos moved to dismiss,
alleging that the plaintiffs previously had filed action
against her in the CFI of Manila for the recovery of
P2,500.00 paid by check as part of the down payment
on the price of the mortgaged lands; that at the time
this first suit was filed, the mortgage debt was already

accrued and demandable; that plaintiffs were guilty of
splitting a single cause of action, and under section 4 of
Rule 2 of the Rules of Court, the filing of the first action
for P2,500.00 was a defense that could be pleaded in
abatement of the second suit.
CFI of Quezon City denied the motion to
dismiss. Defendant Ramos re-pleaded the averments as
a special defense in her answer. The CFI ruled against
defendant Ramos; ordered her to pay P96,000.00, with
12% interest, attorney's fees, and the costs of the suit;
and further decreed the foreclosure sale of the
mortgaged properties in case of non-payment within 90
days. Ramos appealed directly to SC,
ISSUE: Whether there was splitting of cause of action
NO, there is no splitting of cause of action in
this case. An examination of the first complaint filed
against appellant in CFI showed that it was based on
appellants' having unlawfully stopped payment of the
check for P2,500.00 she had issued in favor of appellees,
while the complaint in the second and present action
was for non-payment of the balance of P96,000.00
guaranteed by the mortgage. The claim for P2,500.00
was, therefore, a distinct debt not covered by the
security. The two causes of action being different,
section 4 of Rule 2 does not apply.
Remedy against splitting a single cause of action
(a) Motion to dismiss (Sec 1 [e] or [f], Rule 16)—
Within the time for but before filing the
answer to the complaint or pleading asserting
a claim, a motion to dismiss may be made on
any of the following grounds:
xxx
(e) That there is another action pending
between the same parties for the same cause;
(f) That the cause of action is barred by a
prior judgment or by the statute of limitations
xxx
(b) Answer alleging affirmative defense (Sec. 6,
Rule 16)—
If no motion to dismiss has been filed, any of
the grounds for dismissal provided for in this
Rule may be pleaded as an affirmative defense
in the answer and, in the discretion of the
court, a preliminary hearing may be had
thereon as if a motion to dismiss had been
filed.
NOTE: As to which action should be dismissed (the first
or second one) would depend upon judicial discretion
and the prevailing circumstances of the case.
Joinder of causes of action
Joinder of causes of action is the assertion of as many
causes of action as a party may have against another in
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER13
one pleading. It is the process of uniting two or more
demands or rights of action in one action.
 This is merely permissive, NOT compulsory,
because of the use of the word “may” in Sec. 5,
Rule 2.
It is subject to the following conditions:
(a) The party joining the causes of action shall
comply with the rules on joinder of parties;
i. The right to relief should arise out of
the same transaction or series of
transaction, and
ii. There exists a common question of
law or fact. (Sec. 6, Rule 3)
(b) The joinder shall not include special civil
actions or actions governed by special rules;
 Example: An action for claim of
money cannot be joined with an
action for ejectment, or with an
action for foreclosure.
(c) Where the causes of action are between the
same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in
the RTC provided
i. one of the causes of action falls
within the jurisdiction of said court,
and
ii. the venue lies therein; and
(d) Where the claims in all the causes of action are
principally for recovery of money, the
aggregate amount claimed shall be the test of
jurisdiction. (Sec. 5, Rule 2)
Misjoinder of causes of action
Misjoinder of causes of action is NOT a ground for
dismissal of an action. A misjoined cause of action may
be severed and proceeded with separately:
(a) on motion of a party, or
(b) on the initiative of the court. (Sec. 6, Rule 2)
FLORES v. MALLARE-PHILLIPPS
(144 SCRA 277, 1986)
Application of the Totality Rule under Sect. 33(l)
BP129 and Sect. 11 of the Interim Rules is subject
to the requirements for the Permissive Joinder of
Parties under Sec. 6 of Rule 3.
In cases of permissive joinder of parties,
the total of all the claims shall be the first
jurisdictional test. If instead of a joinder, separate
actions are filed by or against the parties, the
amount demanded in each complaint shall be the
second jurisdictional test.
FACTS: Binongcal and Calion, in separate transactions,
purchased truck tires on credit from Flores. The two
allegedly refused to pay their debts, so Flores filed a
complaint where the first cause of action was against

Binongcal for P11, 643, and the second was against
Calion for P10, 212. Binongcal filed a Motion to Dismiss
on the ground of lack of jurisdiction since under Sec.
19(8) of BP129 RTC shall exercise exclusive original
jurisdiction if the amount of the demand is more than
P20, 000, and that the claim against him is less than
that amount. He averred further that although Calion
was also indebted to Flores, his obligation was separate
and distinct from the other, so the aggregate of the
claims cannot be the basis of jurisdiction. Calion joined
in moving for the dismissal of the complaint during the
hearing of the motion. Petitioner opposed the Motion to
Dismiss. RTC dismissed the complaint for lack of
jurisdiction.
ISSUE: Whether RTC has jurisdiction over the case
following the Totality Rule
YES. The Totality Rule (under Sec. 33 of BP129
and Sec. 11 of the Interim Rules) applies not only to
cases where two or more plaintiffs having separate
causes of action against a defendant join in a single
complaint, but also to cases where a plaintiff has
separate causes of action against two or more
defendants joined in a single complaint. However, the
said causes of action should arise out of the same
transaction or series of transactions and there should
be a common question of law or fact, as provided in Sec.
6 of Rule 3.
In cases of permissive joinder of parties, the
total of all the claims shall be the first jurisdictional test.
If instead of joining or being joined in one complaint,
separate actions are filed by or against the parties, the
amount demanded in each complaint shall be the
second jurisdictional test.
In the case at bar, the lower court correctly
held that the jurisdictional test is subject to the Rules on
Joinder of Parties pursuant to Sec. 5 of Rule 2 and Sec. 6
of Rule 3 of the Rules of Court. Moreover, after a careful
scrutiny of the complaint, It appears that there is a
misjoinder of parties for the reason that the claims
against Binongcal and Calion are separate and distinct
and neither of which falls within its jurisdiction.
UNIWIDE HOLDINGS, INC. v. CRUZ
(529 SCRA 664, 2007)
Exclusive venue stipulation embodied in a contract
restricts or confines parties thereto when the suit
relates to breach of said contract. But where the
exclusivity clause does not make it necessarily
encompassing, such that even those not related to
the enforcement of the contract should be subject
to the exclusive venue, the stipulation designating
exclusive venues should be strictly confined to the
specific undertaking or agreement.
FACTS: Uniwide Holdings, Inc. (UHI) granted Cruz, a 5yr.
franchise to adopt and use the "Uniwide Family Store
System" for the establishment and operation of a
"Uniwide Family Store" in Marikina. The agreement
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER14
obliged Cruz to pay UHI a P50,000 monthly service fee
or 3% of gross monthly purchases, whichever is higher,
payable within 5 days after the end of each month
without need of formal billing or demand from UHI. In
case of any delay in the payment of the monthly service
fee, Cruz would be liable to pay an interest charge of 3%
per month.
It appears that Cruz had purchased goods
from UHI’s affiliated companies FPC and USWCI. FPC
and USWCI assigned all their rights and interests over
Cruz’s accounts to UHI. Cruz had outstanding
obligations with UHI, FPC, and USWCI in the total
amount of P1,358,531.89, which remained unsettled
despite the demands made.
Thus UHI filed a complaint for collection of
sum of money before RTC of Paranñ aque Cruz on the
following causes of action: (1) P1,327,669.832 in actual
damages for failure to pay the monthly service fee; (2)
P64,165.96 of actual damages for failure to pay
receivables assigned by FPC to UHI; (3) P1,579,061.36
of actual damages for failure to pay the receivables
assigned by USWCI to UHI; (4) P250,000.00 of
attorney’s fees.
Cruz filed a motion to dismiss on the ground
of improper venue, invoking Article 27.5 of the
agreement which reads:
27.5 Venue Stipulation – The Franchisee
consents to the exclusive jurisdiction of the courts of
Quezon City, the Franchisee waiving any other venue.
Paranñ aque RTC granted Cruz’s motion to
dismiss. Hence, the present petition.
ISSUE: Whether a case based on several causes of action
is dismissible on the ground of improper venue where
only one of the causes of action arises from a contract
with exclusive venue stipulation
NO. The general rule on venue of personal
actions provides actions may be commenced and tried
where the plaintiff or any of the principal plaintiffs
resides, or where the defendant or any of the principal
defendants resides, or in the case of a nonresident
defendant, where he may be found, at the election of the
plaintiff. The parties may also validly agree in writing
on an exclusive venue. The forging of a written
agreement on an exclusive venue of an action does not,
however, preclude parties from bringing a case to other
venues.
Where there is a joinder of causes of action
between the same parties and one action does not arise
out of the contract where the exclusive venue was
stipulated upon, the complaint, as in the one at bar, may
be brought before other venues provided that such
other cause of action falls within the jurisdiction of the
court and the venue lies therein.
Based on the allegations in petitioner’s
complaint, the second and third causes of action are
based on the deeds of assignment executed in its favor
by FPC and USWCI. The deeds bear no exclusive venue
stipulation with respect to the causes of action
thereunder. Hence, the general rule on venue applies –

that the complaint may be filed in the place where the
plaintiff or defendant resides.
It bears emphasis that the causes of action on
the assigned accounts are not based on a breach of the
agreement between UHI and Cruz. They are based on
separate, distinct and independent contracts—deeds of
assignment in which UHI is the assignee of Cruz’s
obligations to the assignors FPC and USWCI. Thus, any
action arising from the deeds of assignment cannot be
subjected to the exclusive venue stipulation embodied
in the agreement.
Exclusive venue stipulation embodied in a
contract restricts or confines parties thereto when the
suit relates to breach of said contract. But where the
exclusivity clause does not make it necessarily
encompassing, such that even those not related to the
enforcement of the contract should be subject to the
exclusive venue, the stipulation designating exclusive
venues should be strictly confined to the specific
undertaking or agreement. Otherwise, the basic
principles of freedom to contract might work to the
great disadvantage of a weak party-suitor who ought to
be allowed free access to courts of justice.
What is the totality rule?
Where the claims in all the causes of action are
principally for recovery of money, the aggregate amount
claimed shall be the test of jurisdiction. (Sec. 5, Rule 2)
PARTIES TO CIVIL ACTIONS (RULE 3)
Parties (Sec. 1, Rule 3)
(1) Plaintiff—
The plaintiff is the claiming party or the original
claiming party and is the one who files the
complaint.
 It may also apply to a defendant who files
a counterclaim, a cross-claim or a third
party complaint.
(2) Defendant—
The defendant refers to the original defending
party, and also the defendant in a counterclaim, the
cross-defendant, or the third party defendant.
 If a counterclaim is filed against the
original plaintiff, the latter becomes the
defendant.
Who may be parties? (Sec. 1, Rule 3)
(1) Natural persons
(2) Juridical persons
(a) The State and its political subdivisions;
(b) Other corporations, institutions and entities
for public interest or purpose, created by law;
and
(c) Corporations, partnerships and associations
for private interest r purpose to which the law
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER15
grants a juridical personality, separate and
distinct from each shareholder, partner or
member. (Art. 44, Civil Code)
(3) Entities authorized by law, even if they lack juridical
personality
(a) Corporation by estoppel (Sec. 21, Corporation
Code);
(b) Partnership having a capital of P3,000 or more
but fails to comply with the registration
requirements (Art. 1768, Civil Code);
(c) Estate of a deceased person
(d) A legitimate labor organization (Art. 242 [e],
Labor Code);
(e) The Ramon Catholic Church;
(f) A dissolved corporation may prosecute and
defend in suits which:
a. Occur within 3 years after
dissolution; and
b. Are connected with the settlement
and closure of its affairs (Sec. 122,
Corporation Code)
CLASSIFICATION OF PARTIES
Real party-in-interest
A real party in interest is the party who stands to be
benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit.
 Unless otherwise authorized by law or these
Rules, every action must be prosecuted or
defended in the name of the real party in
interest. (Sec. 2, Rule 3)
 Real interest—a present substantial interest as
distinguished from a mere expectancy or a
future, contingent subordinate or
consequential interest. It is material and
direct, as distinguished from a mere incidental
interest.
 The owner of the right of violated is the real
party in interest as plaintiff, and the person
responsible for the violation is the real party
in interest as defendant.
Not real party in interest
 A person who has not taken part in a contract
 Third party who has not taken part in a
compromise agreement
 Mere agent in a contract of sale
Lack of personality to sue
EVANGELISTA v. SANTIAGO
(475 SCRA 744)

The term "lack of capacity to sue" refers to a
plaintiff's general disability to sue, such as on
account of minority, insanity, incompetence, lack of
juridical personality or any other general
disqualifications of a party. "Lack of personality to
sue” refers to the fact that the plaintiff is not the
real party- in-interest. The first can be a ground for
a motion to dismiss based on the ground of lack of
legal capacity to sue; whereas the second can be
used as a ground for a motion to dismiss based on
the fact that the complaint, on the face thereof,
evidently states no cause of action.
FACTS: The Subject Property was part of a vast tract of
land called “Hacienda Quibiga” which was awarded to
Don Hermogenes Rodriguez by the Queen of Spain and
evidenced by a Spanish title. Don Ismael Favila,
claiming to be one of the heirs and successors-in-
interest of Rodriguez, and pursuant to an SPA executed
by his “mga kapatid,” assigned portions of the property
to the petitioners in exchange for the labor and work
they and their predecessors have done on the property.
Petitioners were informed that Santiago was
planning to evict them; two of them received notices to
vacate. Their investigations revealed that the property
was included in TCTs which originated from OCT No.
670, and is now in the name of respondent.
Petitioners filed an action for declaration of
nullity of respondent’s certificates of title on the basis
that OCT No. 670 was fake and spurious.
As an affirmative defense, respondent claimed
that the petitioners had no legal capacity to file the
Complaint, and thus, the Complaint stated no cause of
action. He averred that since OCT No. 670 was genuine
and authentic on its face, then the OCT and all land
titles derived therefrom, are incontrovertible,
indefeasible and conclusive against the petitioners and
the whole world.
RTC dismissed the complaint on the ground
that the action filed was in effect an action for reversion,
and therefore should have been initiated by the OSG,
not private individuals. In the end, it concluded that the
petitioners were not the owners of the subject property.
CA affirmed the RTC, and likewise dismissed
the complaint.
ISSUE: Whether the respondent’s action is properly based
on petitioners’ lack of legal capacity to sue
NO. The term "lack of capacity to sue" should
not be confused with the term "lack of personality to
sue." The former refers to a plaintiff's general disability
to sue, such as on account of minority, insanity,
incompetence, lack of juridical personality or any other
general disqualifications of a party, while the latter
refers to the fact that the plaintiff is not the real party-
in-interest. The first can be a ground for a motion to
dismiss based on the ground of lack of legal capacity to
sue; whereas the second can be used as a ground for a
motion to dismiss based on the fact that the complaint,
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER16
on the face thereof, evidently states no cause of action.
In the present case, this Court may assume that the
respondent is raising the affirmative defense that the
Complaint filed by the petitioners before the trial court
stated no cause of action because the petitioners lacked
the personality to sue, not being the real party-in-
interest.
ISSUE: Whether the complaint stated no cause of action
since petitioners had no personality to sue
YES. Petitioners had no personality to file the
said action, not being the parties-in-interest, and their
Complaint should be dismissed for not stating a cause
of action.
The action is really one for the removal of a
cloud on or quieting of title and according to Article 477
of the Civil Code, the plaintiff in such an action must
have legal or equitable title to, or interest in, the real
property which is the subject matter of the action.
Petitioners failed to establish any legal or equitable title
to, or legitimate interest in, the Subject Property so as
to justify their right to file an action to remove a cloud
on or to quiet title.
Also, the title to and possession of the Subject
Property by petitioners’ predecessors-in-interest could
be traced only as far back as the Spanish title of
Rodriguez. Petitioners, having acquired portions of the
Subject Property by assignment, could acquire no better
title to the said portions than their predecessors-in-
interest.
Standing to sue
DOMINGO v. CARAGUE
(456 SCRA 744, 2005)
Judicial power is the power to hear and decide
cases pending between parties who have the right
to sue in courts of law and equity. Corollary to this
dictum is the principle of locus standi of a litigant.
He who is directly affected and whose interest is
immediate and substantial has the standing to sue.
Thus, a party must show a personal stake in the
outcome of the case or an injury to himself that can
be redressed by a favorable decision in order to
warrant an invocation of the court’s jurisdiction and
justify the exercise of judicial power on his behalf.
FACTS: Petitioners Domingo, Gangan and Banaria are
retired Chairmen, while Ursal and Cruz are retired
Commissioners of COA (Commission on Audit) and the
other petitioners are incumbent officers or employees
of COA. All claim “to maintain a deep-seated abiding
interest in the affairs of COA,” especially in its
Organizational Restructuring Plan, as concerned
taxpayers.
These petitioners claim that they were
divested of their designations/ranks upon
implementation of the COA Organizational
Restructuring Plan without just cause and without due
process, in violation of Civil Service Law. Moreover, they

were deprived of their respective Representation and
Transportation Allowances (RATA), thus causing them
undue financial prejudice.
Petitioners now invoke this Court’s judicial
power to strike down the COA Organizational
Restructuring Plan for being unconstitutional or illegal.
Petitioners invoke Chavez v. Public Estates
Authority, Agan, Jr. v. Philippine International Air
Terminals Co., Inc. and Information Technology
Foundation of the Philippines v. Commission on Elections
where the court ruled that where the subject matter of
a case is a matter of public concern and imbued with
public interest, then this fact alone gives them legal
standing to institute the instant petition. Petitioners
contend that the COA Organizational Restructuring Plan
is not just a mere reorganization but a revamp or
overhaul of the COA, which will have an impact upon
the rest of the government bodies subject to its audit
supervision, thus, should be treated as a matter of
transcendental importance. Consequently, petitioners’
legal standing should be recognized and upheld.
The respondents, through the OSG assail
the standing of the petitioners to file the present case.
Among others, they allege that the petitioners: (1) have
not shown "a personal stake in the outcome of the case
or an actual or potential injury that can be redressed by
a favorable decision of the Court, (2) failed to show any
"present substantial interest" in teh outcome of the
case, nor (3) may the petitioenrs claim that as taxpayers
they have legal standing because nowhere in the
petition do they claim that public funds are spent in
violation of law.
ISSUE: Whether the petitioners have standing to sue
NO. The Petitioners have not shown any
direct and personal interest in the COA Organizational
Restructuring Plan. There is no indication that they
have sustained or are in imminent danger of sustaining
some direct injury as a result of its implementation. In
fact, they admitted that “they do not seek any
affirmative relief nor impute any improper or
improvident act against the respondents” and “are not
motivated by any desire to seek affirmative relief from
COA or from respondents that would redound to their
personal benefit or gain.” Clearly, they do not have any
legal standing to file the instant suit.
Judicial power is the power to hear and
decide cases pending between parties who have the
right to sue in courts of law and equity. Corollary to this
dictum is the principle of locus standi of a litigant. He
who is directly affected and whose interest is
immediate and substantial has the standing to sue.
Thus, a party must show a personal stake in the
outcome of the case or an injury to himself that can be
redressed by a favorable decision in order to warrant an
invocation of the court’s jurisdiction and justify the
exercise of judicial power on his behalf.
In Chavez V. PEA, the Court ruled that the
petitioner has legal standing since he is a taxpayer and
his purpose in filing the petition is to compel the Public
Estate Authority (PEA) to perform its constitutional
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER17
duties with respect to: (a) the right of the citizens to
information on matters of public concern; and (b) the
application of a constitutional provision intended to
insure the equitable distribution of alienable lands of
the public domain among Filipino citizens - such were
matters of transcendental importance.
In Agan,Jr. V. PIATCO, the Court held that
petitioners have legal standing as they have a direct and
substantial interest to protect. By the implementation
of the PIATCO contracts, they stand to lose their source
of livelihood, a property right zealously protected by the
Constitution and such financial prejudice on their part
is sufficient to confer upon them the requisite locus
standi.
In Information Technology Foundation V.
COMELEC, there were two reasons why petitioners’
standing was recognized— (1) the award for the
automation of the electoral process was a matter of
public concern, imbued with public interest, and (2) the
individual petitioners, as taxpayers, asserted a material
interest in seeing to it that public funds are properly
used.
Representative parties
Where the action is allowed to be prosecuted or
defended by a representative or someone acting in a
fiduciary capacity, the beneficiary shall be included in
the title of the case and shall be deemed to be the real
party in interest.
A representative may be
(1) a trustee of an express trust,
(2) a guardian,
(3) an executor or administrator, or
(4) a party authorized by law or these Rules.
An agent acting in his own name and for the benefit of
an undisclosed principal may sue or be sued without
joining the principal except when the contract involves
things belonging to the principal. (Sec. 3, Rule 3)
OPOSA v. FACTORAN
(224 SCRA 792, 1993)
Petitioners’ personality to sue in behalf of the
succeeding generations can only be based on the
concept of intergenerational responsibility insofar
as the right to a balanced and healthful ecology is
concerned, since the subject matter of the
complaint is of common and general interest to all
citizens of the Philippines.
FACTS: The petitioners, all minors, sought the help of
the Supreme Court to order the respondent, then
Secretary of DENR, to cancel all existing Timber License
Agreement (TLA) in the country and to cease and desist
from receiving, accepting, processing, renewing or
approving new TLAs. They alleged that the massive
commercial logging in the country is causing vast
abuses on rainforest.

They furthered the rights of their generation
and the rights of the generations yet unborn to a
balanced and healthful ecology.
ISSUE: Whether or not the petitioners have a locus standi
YES. Locus standi means the right of the
litigant to act or to be heard. Under Section 16, Article II
of the 1987 constitution: “The state shall protect and
advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and
harmony of nature.”
Petitioners, minors assert that they represent
their generation as well as generation yet unborn. We
find no difficulty in ruling that they can, for themselves,
for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in
behalf of the succeeding generations can only be based
on the concept of intergenerational responsibility
insofar as the right to a balanced and healthful ecology
is concerned. Such a right, as hereinafter expounded
considers the “rhythm and harmony of nature”. Nature
means the created world in its entirety. Such rhythm
and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal
and conservation of the country’s forest, mineral, land,
waters fisheries, wildlife, off- shore areas and other
natural resources to the end that their exploration,
development and utilization be equitably accessible to
the present as well as future generations.
Needless to say, every generation has a responsibility to
the next to preserve that rhythm and harmony for the
full enjoyment of a balanced and healthful ecology. Put a
little differently, the minor’s assertion of their right to a
sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection
of that right for the generations to come.
This landmark case has been ruled as a class suit
because the subject matter of the complaint is of
common and general interest, not just for several but
for all citizens of the Philippines.
Indispensable parties
An indispensable party is a party in interest without
whom no final determination can be had of an action.
(1) They shall be joined either as plaintiffs or
defendants. (Sec. 7, Rule 3)
(2) The presence of all indispensable parties is a
condition sine qua non for the exercise of
judicial power.
(3) When an indispensable party is not before the
court, the action should be dismissed.
NOTE: The failure to join an indispensable party does
not result in the outright dismissal of the action. Non-
joinder or misjoinder of parties is not a ground for
dismissal of an action.
 It is when the order of the court to implead
the indispensable party goes unheeded may
the case be dismissed.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER18
(4) Remedy: Parties may be dropped or added by
the court on motion of any party, or on its
own initiative at any stage of the action and
on such terms as are just. (Sec. 11, Rule 3)
DOMINGO v. SCHEER
(421 SCRA 792, 1993)
The joinder of indispensable parties under Sec 7,
Rule 3 is mandatory. Without presence of
indispensable parties to the suit, the judgment of the
court cannot attain real finality. Strangers to a case
are not bound by the judgment rendered by the
court. The absence of an indispensable party renders
all subsequent actions of the court null and void.
There is a lack of authority to act not only as to the
absent party but also as to those present. The
responsibility of impleading all the indispensable
parties rest on the petitioner/plaintiff. However, the
non-joinder of indispensable parties is not a ground
for dismissal of an action.
FACTS: Vice Consul Jutta Hippelein informed the
Philippine Ambassador to Bonn, Germany that
respondent Emil Scheer had police records and
financial liabilities in Germany. The Board of
Commissioners (BOC) therefore cancelled respondent’s
permanent residence visa, and ordered his summary
deportation and permanent exclusion from the
Philippines and inclusion of his name on the Bureaus
Blacklist.
Respondent filed an Urgent Motion for
Reconsideration of the order, but the BOC did not
resolve the respondent’s motion. The respondent was
neither arrested nor deported.
Meanwhile, the District Court of Straubing
dismissed the criminal case against the respondent for
physical injuries. The German Embassy in Manila,
thereafter, issued a temporary passport to the
respondent.
Respondent informed Commissioner Verceles
that his passport had been renewed following the
dismissal of the said criminal case. He reiterated his
request for the cancellation of the Summary
Deportation Order and the restoration of his permanent
resident status. The BOC still failed to resolve the
respondents Urgent Motion for Reconsideration.
In the meantime, petitioner Immigration
Commissioner Andrea T. Domingo assumed office, and
inquired with German Embassy if the respondent was
wanted by the German police. The German Embassy
replied in the negative.
At about midnight on June 6, 2002, Marine
operatives and Bureau of Immigration and Deportation
(BID) agents apprehended the respondent in his
residence on orders of the petitioner and was held in
custody in the BID Manila Office while awaiting his
deportation.
Respondent’s counsel filed with the BID a
motion for bail to secure the respondents temporary

liberty and filed with the Court of Appeals a petition for
certiorari, prohibition and mandamus with a prayer for
temporary restraining order and writ of preliminary
injunction, to enjoin the petitioner from proceeding
with the respondent’s deportation. The CA issued a
TRO. Petitioner argues that the respondent’s petition
with the CA should have been dismissed for failure to
implead the real party-in-interest, which is the BOC.
ISSUE: Whether the BOC was an indispensable party to
the petition
YES. The BOC was an indispensable party to
the petition, BUT the non-joinder of indispensable
parties is not a ground for dismissal of the action.
The respondent was arrested and detained on
the basis of the Summary Deportation Order of the BOC.
The petitioner caused the arrest of the respondent in
obedience to the said Deportation Order. The
respondent, in his Memorandum, prayed that the CA
annul not only the Summary Deportation Order of the
BOC but also the latter’s Omnibus Resolution, and order
the respondent’s immediate release.
The respondent also prayed that the CA issue
a writ of mandamus for the immediate resolution of his
Urgent Motion for Reconsideration. The said motion
had to be resolved by the BOC as the order sought to be
resolved and reconsidered was issued by it and not by
the petitioner alone. The powers and duties of the BOC
may not be exercised by the individual members of the
Commission.
The joinder of indispensable parties is
mandatory. Without the presence of indispensable
parties to the suit, the judgment of the court cannot
attain real finality. Strangers to a case are not bound by
the judgment rendered by the court. The absence of an
indispensable party renders all subsequent actions of
the court null and void. Lack of authority to act not only
of the absent party but also as to those present. The
responsibility of impleading all the indispensable
parties rests on the petitioner/plaintiff.
However, the non-joinder of indispensable
parties is not a ground for the dismissal of an action.
Parties may be added by order of the court on motion of
the party or on its own initiative at any stage of the
action and/or such times as are just. If the
petitioner/plaintiff refuses to implead an indispensable
party despite the order of the court, the latter may
dismiss the complaint/petition for the
petitioner/plaintiffs failure to comply therefor. The
remedy is to implead the non-party claimed to be
indispensable.
The Court may be curing the defect in this case
by adding the BOC as party petitioner. Indeed, it may no
longer be necessary to do so taking into account the
unique backdrop in this case, involving as it does an
issue of public interest. After all, the Office of the
solicitor General has represented the petitioner in the
instant proceedings, as well as the appellate court, and
maintained the validity of the deportation order and of
the BOC’s Omnibus Resolution. It cannot, thus, be
claimed by the State that the BOC was not afforded its
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER19
day in court, simply because only the petitioner, the
chairperson of the BOC, was the respondent in the CA,
and the petitioner in the instant recourse.
UY v. CA
(494 SCRA 535, 2006)
An indispensable party is one whose interest will be
affected by the court's action in the litigation, and
without whom no final determination of the case
can be had. The party's interest in the subject
matter of the suit and in the relief sought are so
inextricably intertwined with the other parties' that
his legal presence as a party to the proceeding is an
absolute necessity.
FACTS: The Heritage Memorial Park is a flagship project
of the Bases Conversion Development Authority (BCDA)
in Fort Bonifacio. To implement the project, the BCDA
entered into Pool Formation Trust Agreement (PFTA)
with the PNB and the PEA. BCDA was designated as
Project Owner; PEA, the Project Manager; and PNB as
the Trustee.
PEA, as project manager, is tasked to
implement and complete the various engineering works
and improvements of Heritage Park.
PEA and petitioner Uy, a single proprietorship
doing business under the name of Edison Development
and Construction, executed a Landscaping and
Construction Agreement whereby the petitioner
undertook to do all the landscaping, including the
construction of a terrasoleum of the Heritage Park.
Subsequently, the certificate holders of the
project organized themselves into a non-stock, non-
profit corporation, the Heritage Park Management
Corporation (HPMC), now the private respondent
herein.
The Heritage Park Executive Committee,
however, terminated the construction contracts due to
delays and discrepancies. PEA then assumed the duties
of the terminated party. Petitioner filed a complaint
against the PEA before the Construction Industry
Arbitration Commission (CIAC) where it sought to
recover payment for its progress billings on the said
projects. CIAC ruled in favor of petitioner. Respondent
appealed to the CA on the ground that CIAC had no
jurisdiction over the subject matter since HPMC was not
impleaded as a party, thereby depriving it of its right to
be heard. CA ruled in favor of respondent. Hence this
petition
ISSUE: Whether HPMC is a real party in interest or an
indispensable party
YES. An indispensable party is one whose
interest will be affected by the court's action in the
litigation, and without whom no final determination of
the case can be had. The party's interest in the subject
matter of the suit and in the relief sought are so
inextricably intertwined with the other parties' that his

legal presence as a party to the proceeding is an
absolute necessity.
Based on the Construction Agreement, PEA
entered into it in its capacity as Project Manager,
pursuant to the PFTA. According to the provisions of the
PFTA, upon the formation of the HPMC, the PEA would
turn over to the HPMC all the contracts relating to the
Heritage Park. At the time of the filing of the CIAC Case,
PEA ceased to be the Project Manager. Through a Deed
of Assignment, PEA assigned its interests in all the
existing contracts it entered into as the Project Manager
for Heritage Park to HPMC.
PEA officially turned over to HPMC all the
documents and equipment in its possession related to
the Heritage Park Project, and petitioner was duly
informed of these incidents. Apparently, as of the date
of the filing of the CIAC Case, PEA is no longer a party-
in-interest. Instead, it is now private respondent HPMC,
as the assignee, who stands to be benefited or injured
by the judgment in the suit. In its absence, there cannot
be a resolution of the dispute of the parties before the
court which is effective, complete or equitable.
Necessary party or proper party
A necessary party is not indispensable to the action
since a final determination of the case can be had even
when a necessary party is not joined.
BUT a necessary party ought to be joined if
complete relief is to be accorded to those already
parties. (Sec. 8, Rule 3)
Non-joinder of necessary party
Whenever in any pleading in which a claim is asserted a
necessary party is not joined, the pleader shall set forth
(1) his name, if known, and
(2) shall state why he is omitted.
Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person may be
obtained. (Sec. 9, Rule 3)
LAPERAL DEV’T. CORP. v. CA
(223 SCRA 261, 1993)
A proper party is one which ought to be a party if
complete relief is to be accorded as between those
already parties. A party is indispensable if no final
determination can be had of an action unless it is
joined either as plaintiff or defendant.
FACTS: Atty. Banzon sought to recover attorney’s fees
for professional services rendered in several pending
and past cases from Laperal, Laperal Dev’t Corp., and
Imperial Dev’t Corp., referring to Sunbeams Inc. only as
“Mr. Laperal’s Corporation.” This particular civil case
was decided on the basis of a Compromise Agreement
where Banzon waived all other money claims against
the defendants. Subsequently, Banzon filed a complaint
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER20
against Laperal, Laperal Dev’t, Imperial Dev’t,
Sunbeams Convenience Foods, Inc., and Acsay for (1)
annulment of a portion of the Compromise Agreement;
(2) collection of attorney’s fees for services in the cases
rendered for Imperial, Sunbeams, and Laperal Dev’t.;
(3) recovery of P10k adjudged to be payable to him as
attorney’s fees by Ascario Tuason; and (4) payment to
him of nominal damages and attorney’s fees.
RTC dismissed the case on the ground that it had no
jurisdiction to annul the Compromise Agreement, as
approved by an equal and coordinate court. It held that
the issue was cognizable by the CA. Moreover, it was
held that the Compromise Agreement already covered
the plaintiff’s professional services in the questioned
cases.
The CA affirmed the RTC on the issue of
jurisdiction, but held Atty. Banzon entitled to attorney’s
fees from Sunbeams Inc. since it was not subject to the
compromise agreement which waived all money claims
against defendants named therein, having been referred
to only as “Mr. Laperal’s corporation.”
ISSUE: Whether Sunbeams Inc., is liable to pay attorneys
fees
NO. Sunbeams Inc., which was referred to in
the complaint as “Mr. Laperal’s Corp.” was not named as
a party defendant. The private respondent believed
that Laperal, being the President of the said company,
was directly obligated to him for attorney’s fees due
him for his handling of the case for Sunbeams.
However, there is no evidence that Sunbeams and
Laperal are one and the same person. Sunbeams should
have been joined as party defendant in order that the
judgment of the lower court could legally affect it. But
even if it was not impleaded, the court could still validly
proceed with the case because Sunbeams was not an
indispensable party but only a proper party. A proper
party is one which ought to be a party if complete relief
is to be accorded as between those already parties. A
party is indispensable if no final determination can be
had of an action unless it is joined either as plaintiff or
defendant.
The Compromise Agreement upon which the
decision of the court was based was between plaintiff
Atty. Banzon and the defendants represented by
Laperal. Thus, since Sunbeams was not a party to this
agreement, it could not be affected by it. However,
Banzon’s claim for attorney’s fees pertaining to
Sunbeams was waived by him not by virtue of the
Compromise Agreement, whereby Sunbeams was not a
defendant. What militates against his claim is his own
judicial admission that he had waived his attorney’s
fees for the cases he had handled from 1974-1981 for
Laperal and his corporations, including those not
impleaded in his complaint.
Permissive joinder of parties
Parties may be joined in as plaintiffs or defendants in a
single complaint when
(1) Any right to relief arises out of the same
transaction or series of transactions;

(2) There is a question of law or fact common to
all such plaintiffs or to all such defendants;
(3) Such joinder is not otherwise proscribed by
the Rules on jurisdiction and venue.
BUT the court may make such orders as may be just to
prevent any plaintiff or defendant from being
embarrassed or put to expense in connection with any
proceedings in which he may have no interest. (Sec. 6,
Rule 3)
Effects of misjoinder and non-joinder of parties
A party is misjoined when he is made a party to the
action although he should not be impleaded.
A party is not joined when is supposed to be
joined but is not impleaded in the actions.
Neither misjoinder nor non-joinder of parties is a
ground for dismissal. Parties may be dropped or added
by order of the court
(1) on motion of any party or on its own initiative
(2) at any stage of the action and
(3) on such terms as are just.
Any claim against a misjoined party may be severed and
proceeded with separately. (Sec. 11, Rule 3)
NOTE: Failure to obey the order of the court to drop or
add a party is a ground for the dismissal of the
complaint. (Sec. 3, Rule 17)
Class suits
A class suit is an action where one or more may sue for
the benefit of all.
 An action does not become a class suit merely
because it is designated as such in the
pleadings. It depends upon the attendant
facts.
Requisites
(1) The subject matter of the controversy is one of
the common or general interest to many
persons
(2) The persons are so numerous that it is
impracticable to join all as parties,
(3) The parties bringing the class suit are
sufficiently numerous and representative as to
fully protect the interests of all concerned.
(4) The representative sues or defends for the
benefit of all.
NOTE: Any party in interest shall have the right to
intervene to protect his individual interest. (Sec. 12,
Rule 3)
MATHAY v. CONSOLIDATED BANK
(58 SCRA 559, 1974)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER21
Requirements of a class suit: 1. That the subject
matter of the controversy be one of common or
general interest to many persons, and 2. That such
persons be so numerous as to make it impracticable
to bring them all to the court.
FACTS: Mathay, Reyes and Dionisio, plaintiffs-appellants
and stockholders in the Consolidated Mines, Inc. (CMI)
alleged that the latter passed a resolution to organize
Consolidated Bank & Trust Co. (CBTC), providing that
all CMI stockholders are entitled to subscribe to the
capital stock of the proposed bank at par value, and to
the same extent and amount as their shareholdings in
CMI. Circular letters with Pre-Incorporation
Agreements to subscribe were sent to CMI
stockholders. Plaintiffs-apellants and other
stockholders accomplished and filed their respective
pre-incorporation agreements and paid the
subscription. However, after some months, the Board of
Organizers executed the Articles of Incorporation of the
CBTC which reflected that only the six (6) individual
defendants paid and subscribed to the initial 50,000
shares. When the paid-in capital stock was increased,
the plaintiff-appellants and other CMI stockholders
were again excluded. The plaintiffs-appellants filed this
complaint as a class suit to annul and transfer the
subscription and shareholdings of the defendants to
them and other stockholders who had been denied the
right to subscribe.
They alleged as well that some of the
defendants falsely certified to the calling of a special
stockholders' meeting, when plaintiffs-appellants and
other CMI stockholders were not notified thereof.
Further, the defendants increased the number of
Directors, illegally creating the Position of Director
filled up by a defendant, who was incompetent.
Sevilla, one of the original plaintiffs, withdrew.
Four CMI stockholders filed a motion to intervene, and
to join the plaintiffs-appellants on record, Defendants
filed a motion to dismiss on the ground that the
plaintiffs had no legal standing or capacity to institute
the alleged class suit.
Some subscribers to the capital stock of the
Bank filed separate manifestations that they were
opposing and disauthorizing the suit of plaintiffs-
appellants.
The defendants-appellee filed a supplemental
ground for their motion to dismiss for the reason that
the stockholders who had abstained at their regular
annual meeting unanimously ratified and confirmed all
the actuations of the organizers. CFI granted the motion
to dismiss, hence the appeal.
ISSUE: Whether the instant action could be maintained
as a class suit
NO. An action does not become a class suit
merely because it is designated as such in the pleadings.
Whether the suit is or is not a class quit depends upon
the attending facts, and the complaint, or other pleading
initiating the class action should allege the existence of

the necessary facts, to wit, the existence of a subject
matter of common interest, and the existence of a class
and the number of persons in the alleged class, in order
that the court might be enabled to determine whether
the members of the class are so numerous as to make it
impracticable to bring them all before the court, to
contrast the number appearing on the record with the
number in the class and to determine whether
claimants on record adequately represent the class and
the subject matter of general or common interest.
The complaint in the instant case explicitly
declared that the plaintiffs- appellants instituted the
"present class suit under Section 12, Rule 3, of the Rules
of Court in. behalf of CMI subscribing stockholders" but
did not state the number of said CMI subscribing
stockholders so that the trial court could not infer,
much less make sure as explicitly required by the
sufficiently numerous and representative in order that
all statutory provision.
The interest that ppellants, plaintiffs and
intervenors, and the CMI stockholders had in the
subject matter of this suit — the portion of stocks
offering of the Bank left unsubscribed by CMI
stockholders who failed to exercise their right to
subscribe on or before January 15, 1963 — was several,
not common or general in the sense required by the
statute. Each one of the appellants and the CMI
stockholders had determinable interest; each one had a
right, if any, only to his respective portion of the stocks.
No one of them had any right to, or any interest in, the
stock to which another was entitled.
Even if it be assumed, for the sake of
argument, that the appellants and the CMI stockholders
suffered wrongs that had been committed by similar
means and even pursuant to a single plan of the Interim
Board of Organizers of the Bank, the wrong suffered by
each of them would constitute a wrong separate from
those suffered by the other stockholders, and those
wrongs alone would not create that common or general
interest in the subject matter of the controversy as
would entitle any one of them to bring a class suit on
behalf of the others.
The right to preemption, it has been said, is
personal to each stockholder. By analogy, the right of
each of the appellants to subscribe to the waived stocks
was personal, and no one of them could maintain on
behalf of others similarly situated a representative suit.
Defendants
(1) Unwilling co-plaintiff
An unwilling co-plaintiff is a party who is supposed to
be a plaintiff but whose consent to be joined as a
plaintiff cannot be obtained, as when he refuses to be a
party to the action. In that case,
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER22
(1) he may be made a defendant and
(2) the reason therefor shall be stated in the
complaint. (Sec. 10, Rule 3)
(2) Alternative defendant
Where the plaintiff is uncertain against who of several
persons he is entitled to relief, he may join any or all of
them as defendants in the alternative, although a right
to relief against one may be inconsistent with a right of
relief against the other. (Sec. 13, Rule 3)
Example:
A pedestrian injured in the collision of two vehicles may
sue the vehicle owners or drivers in the alternative if he
is uncertain whose vehicle caused the injury.
(3) Unknown defendant
Whenever the identity or name of a defendant is
unknown, he may be sued
(1) as the unknown owner, heir, devisee, or
(2) by such other designation as the case may
require;
When his identity or true name is discovered, the
pleading must be amended accordingly. (Sec. 14, Rule 3)
Service upon defendant whose identity or whereabouts
are unknown.
Service may, by leave of court, be effected by publication
in a newspaper of general circulation and in such places
and for such time as the court may order in any action
where
(1) the defendant is designated as an unknown
owner, or the like, or
(2) whenever his whereabouts are unknown and
cannot be ascertained by diligent inquiry. (Sec.
14, Rule 14)
(4) Entity without juridical personality as
defendant
When two or more persons not organized as an entity
with juridical personality enter into a transaction, they
may be sued under the name by which they are
generally or commonly known.
In the answer of such defendant the names
and addresses of the persons composing said entity
must all be revealed. (Sec. 15, Rule 3)
Service upon entity without juridical personality.—
Service may be effected upon all the defendants by
serving upon
(1) any one of them, or
(2) upon the person in charge of the office or
place of business maintained in such name.

BUT such service shall not bind individually any person
whose connection with the entity has, upon due notice,
been severed before the action was brought. (Sec. 8,
Rule 14)
Death of party; duty of counsel
(1) If plaintiff dies during pendency of the case
Whenever a party to a pending action dies, and the
claim is not thereby extinguished, it shall be the duty of
his counsel
(1) to inform the court within thirty (30) days
after such death of the fact thereof, and
(2) to give the name and address of his legal
representative or representatives.
NOTE: This duty is mandatory. Failure of counsel to
comply with this duty shall be a ground for disciplinary
action.
Upon notice of death, action of court
Upon receipt of notice of death, the court shall
determine whether the claim is extinguished by the
death. If the claim does not survive, the court shall
dismiss the case.
If the claim survives, substitution
The court shall forthwith order said legal representative
or representatives to appear and be substituted within
a period of thirty (30) days from notice.
 The heirs of the deceased may be allowed to
be substituted for the deceased, without
requiring the appointment of an executor or
administrator and the court may appoint a
guardian ad litem for the minor heirs.
NOTE: The heirs do not need to first secure
the appointment of an administrator.
 The court may order the opposing party,
within a specified time, to procure the
appointment of an executor or administrator
for the estate of the deceased if:
i. no legal representative is named by
the counsel for the deceased party or
ii. if the one so named shall fail to
appear within the specified period,
The latter shall immediately appear for and on
behalf of the deceased. The court charges in
procuring such appointment, if defrayed by
the opposing party, may be recovered as costs.
(Sec. 16, Rule 3)
Examples of actions which survive the party’s death
 Actions arising from delict
 Actions based on tortuous conduct of the
defendant
 Actions to recover real and personal property
 Actions to enforce a lien on property
 Actions to quieting of title with damages
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER23
 Ejectment case
 Actions for recovery of money
(2) If defendant dies, effect of his death depends
upon the nature of the pending action
When action will not be dismissed
The action will be allowed to continue until entry of
final judgment when:
i. the action is for recovery of money arising
from contract, express or implied, and
ii. the defendant dies before entry of final
judgment in the court in which the action was
pending at the time of such death
A favorable judgment obtained by the plaintiff therein
shall be enforced in the manner especially provided in
these Rules for prosecuting claims against the estate of
a deceased person. (Sec. 20, Rule 3)
Effect of non-substitution of deceased party
Non-compliance with the rules on substitution of a
deceased party renders the proceedings of the trial
court infirm because it acquired no jurisdiction over the
person of the legal representative of heirs of the
deceased.
 However, in an ejectment case, non-
substitution of the deceased does not deprive
the court of jurisdiction (Florendo Jr. v. Colona)
HEIRS OF BERTULDO HINOG v. MELICOR
(455 SCRA 460, 2005)
Non-compliance with the rule on substitution
would render the proceedings and judgment of the
trial court infirm because the court acquires no
jurisdiction over the persons of the legal
representatives or of the heirs on whom the trial
and the judgment would be binding.
FACTS: Respondents filed a complaint against Bertuldo
for recovery of ownership of the premises leased by the
latter. Bertuldo alleged ownership of the property by
virtue of a Deed of Absolute Sale. Bertuldo died without
completing his evidence during the direct examination.
Atty. Petalcorin replaced the original counsel and filed a
motion to expunge the complaint from the record and
nullify all court proceedings on the ground that
private respondents failed to specify in the
complaint the amount of damages claimed as needed
to pay the correct docket fees, and that under
Manchester doctrine, non-payment of the correct docket
fee is jurisdictional.
ISSUE: Whether the proceedings in the trial court are
infirm
YES. No formal substitution of the parties was
effected within thirty (30) days from date of death of
Bertuldo, as required by Sec. 16, Rule 3 of the Rules of
Court. Needless to stress, the purpose behind the rule

on substitution is the protection of the right of every
party to due process. It is to ensure that the deceased
would continue to be properly represented in the suit
through the duly appointed legal representative of his
estate. Non-compliance with the rule on substitution
would render the proceedings and judgment of the trial
court infirm because the court acquires no jurisdiction
over the persons of the legal representatives or of the
heirs on whom the trial and the judgment would be
binding.
DE LA CRUZ v. JOAQUIN
(464 SCRA 576, 2005)
When due process is not violated, as when the right
of the representative or heir is recognized and
protected, noncompliance or belated formal
compliance with the Rules cannot affect the validity
of a promulgated decision. Mere failure to substitute
for a deceased plaintiff is not a sufficient ground to
nullify a trial court's decision. The alleging party
must prove that there was an undeniable violation
of due process.
FACTS: Pedro Joaquin alleged that he had obtained a
P9,000 loan, payable after five (5) years, from
petitioners, the spouses De la Cruz. To secure the
payment of the obligation, he executed a Deed of Sale
for a parcel of land in favor of petitioners. The parties
also executed another document entitled Kasunduan
which allegedly showed the Deed of Sale to be actually
an equitable mortgage. Spouses De la Cruz contended
that this document was merely an accommodation to
allow the repurchase of the property, a right that he
failed to exercise.
The RTC issued a Decision in Joaquin’s favor,
declaring that the parties had entered into a sale with a
right of repurchase. It held that respondent had made a
valid tender of payment on two separate occasions to
exercise his right of repurchase. Accordingly, petitioners
were required to reconvey the property upon his
payment. CA sustained the ruling of the trial court, and
denied reconsideration. It further ordered the
substitution by legal representatives, in view of
Joaquin’s death. Petitioner’s assert the RTC lacked
jurisdiction since the respondent died during the
pendency of the case and no substitution was made.
ISSUES: Whether the trial court lost jurisdiction over the
case upon the death of Pedro Joaquin
NO. Strictly speaking, the rule on the
substitution by heirs is not a matter of jurisdiction, but
a requirement of due process. Thus, when due process
is not violated, as when the right of the representative
or heir is recognized and protected, noncompliance or
belated formal compliance with the Rules cannot affect
the validity of a promulgated decision. Mere failure to
substitute for a deceased plaintiff is not a sufficient
ground to nullify a trial court's decision. The alleging
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER24
party must prove that there was an undeniable
violation of due process.
The records of the present case contain a
Motion for Substitution of Party Plaintiff filed before the
CA. It was deemed granted and the heirs, to have
substituted for the deceased, Pedro Joaquin. There
being no violation of due process, the issue of
substitution cannot be held as a ground of nullify the
court’s decision.
LIMBAUAN v. ACOSTA
(2006)
The instant action for unlawful detainer, like any
action for recovery of real property, is a real action
and as such survives the death of Faustino Acosta.
FACTS: Faustino Acosta took possession of a parcel of
government land which was originally intended to be
used as a site for a leprosarium. He subsequently
registered the land and built a fence around it.
Paulino Calanday intruded upon Acosta’s land
without the former’s permission and built a beerhouse
on it. Acosta remonstrated so Calanday filed a criminal
case for Unjust Vexation and Malicious Mischief; it was
however, dismissed.
Calanday then conveyed the beerhouse to
Juanita Roces who agreed to pay a P60 monthly rental
to Acosta. She then conveyed the premises to Charles
Limbauan, petitioner in the present case. A few months
later, petitioner stopped paying rentals so respondent
filed a case for unlawful detainer against respondent.
Petitioner reasoned that since the land belonged to the
government, respondent had no right to collect rentals
therefrom. Hence the suit was never continued.
Eight years later, the government converted
the parcel of land in which the premises in dispute are
included into residential land. Respondent then revived
his previous suit of unlawful detainer against petitioner.
Unfortunately, Acosta died while the case was still on
appeal to the CA. Petitioner avers that the case has
become moot and academic since he was not informed
of the death of respondent and no proper substitution
of parties was instituted.
ISSUE: Whether the case has become moot and academic
due to the death of respondent and the failure to
substitute his heirs as parties to the case
NO. It is well settled that the failure of counsel
to comply with his duty under Section 16 to inform the
court of the death of his client and no substitution of
such party is effected, will not invalidate the
proceedings and the judgment thereon if the action
survives the death of such party. Moreover, the decision
rendered shall bind his successor-in-interest. The
instant action for unlawful detainer, like any action for
recovery of real property, is a real action and as such
survives the death of Faustino Acosta. His heirs have
 CIVIL PROCEDURE REVIEWER25

taken his place and now represent his interests in the
instant petition. Hence, the present case cannot be
rendered moot despite the death of respondent.
Death or separation of party who is a public officer
An action may be continued by or against the successor
of the deceased public officer when
(1) a public officer is a party in an action in his
official capacity and
(2) dies, resigns, or otherwise ceases to hold
office during its pendency,
(3) it is shown within thirty (30) days after the
successor takes office or such time as the
court may grant, that there is a substantial
need for continuing or maintaining the action,
and that
(4) the successor adopts or continues or
threatens to adopt or continue the action of
his predecessor.
(5) the party or officer to be affected, unless
expressly assenting thereto, has been given
reasonable notice of the application therefor
and accorded an opportunity to be heard. (Sec.
17, Rule 3)
Incompetency or incapacity
If a party becomes incompetent or incapacitated, the
court,
 upon motion
 with notice,
may allow the action to be continued by or against the
incompetent or incapacitated person assisted by his
legal guardian or guardian ad litem. (Sec. 18, Rule 3)
on any judgment rendered in the case favorable to the
indigent, unless the court otherwise provides.
Any adverse party may contest the grant of such
authority at any time before judgment is rendered by
the trial court.
If the court should determine after hearing that the
party declared as an indigent is in fact a person with
sufficient income or property, the proper docket and
other lawful fees shall be assessed and collected by the
clerk of court. If the payment is not made within the
time fixed by the court, execution shall issue or the
payment thereof, without prejudice to such other
sanctions as the court may impose. (Sec. 21, Rule 3)
Notice to Solicitor General
The court, in its discretion, may require the appearance
of the Solicitor General in any action involving the
validity of any
(1) treaty,
(2) law,
(3) ordinance,
(4) executive order,
(5) presidential decree,
(6) rules
(7) or regulations,
He may be heard in person or through a representative
duly designated by him. (Sec. 22, Rule 3)
NOTE: Actions filed in the name of the Republic or its
agencies and instrumentalities, if not initiated by the
Solicitor General shall be summarily dismissed.

Transfer of interest
VENUE OF ACTIONS (RULE 4)
In case of any transfer of interest, the action may be
continued by or against the original party, unless the
Venue defined
court upon motion directs the person to whom the
Venue is the place or the geographical area where an
interest is transferred
action is to be filed and tried. It relates only to the place
(1) to be substituted in the action or of the suit and not to the jurisdiction of the court.
(2) joined with the original party. (Sec. 19, Rule 3)  Venue becomes jurisdiction only in a criminal
case.
Indigent party  The parties can waive the venue of a case.
A party may be authorized to litigate his action, claim or
defense as an indigent if the court,
 upon an ex parte application
 and hearing,
is satisfied that the party is one who has no money or Distinguished from jurisdiction
property sufficient and available for food, shelter and
basic necessities for himself and his family. VENUE JURISDICTION
The place where the case The authority to hear
Such authority shall include is to be heard or tried and determine a case
(1) an exemption from payment of docket and A matter of procedural Matter of substantive
other lawful fees, and law law
(2) of transcripts of stenographic notes which the Establishes a relation
Establishes a relation
court may order to be furnished him. between plaintiff and
between the court and
The amount of the docket and other lawful fees which defendant, or petitioner
the subject matter
the indigent was exempted from paying shall be a lien and respondent

MENDEZ, IVAN VIKTOR (2D, ’13)


May be conferred by the Fixed by law and cannot
act or agreement of the be conferred by
parties agreement of the parties
Lack of jurisdiction over
Not a ground for motu
the subject matter is a
proprio dismissal, except
ground for a motu
in summary procedure
proprio dismissal
Venue of real actions
Real action—action affecting title to or possession of
real property, or interest therein.
Real actions shall be commenced and tried in
the proper court which has jurisdiction over the area
wherein the real property involved, or a portion thereof,
is situated.
Forcible entry and detainer actions shall be commenced
and tried in the municipal trial court of the municipality
or city wherein the real property involved, or a portion
thereof, is situated. (Sec. 1, Rule 4)
Venue of personal actions
Personal actions may be commenced and tried where
the plaintiff or any of the principal plaintiffs, or where
the defendant or any of the principal defendants
resides, at the election of the plaintiff.
In the case of a non-resident defendant it may be
commenced and tried where he may be found, at the
election of the plaintiff. (Sec. 2, Rule 4)
Venue of actions against non-residents
If any of the defendants
(1) does not reside and is not found in the
Philippines, and
(2) the action affects the personal status of the
plaintiff, 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, or
 where the property or any portion thereof is
situated or found.
Quasi in rem
Actions which affect the personal status of the plaintiff
are to be filed at the residence of the plaintiff.
In rem
Actions affecting the property of the defendant in the
Philippines shall be filed where the property is located.
When rule not applicable
This Rule shall not apply—
(a) In those cases where a specific rule or law
provides otherwise; or
(b) Where the parties have validly agreed in
writing before the filing of the action on the
exclusive venue thereof. (Sec. 4, Rule 4)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER26
(a) Where a specific rule or law provides otherwise
DIAZ v. ADIONG
(219 SCRA 631, 1993)
An offended party who is at the same time a public
official can only institute an action arising from libel
in 2 venues: (1) the place where he holds office; or
(2) the place where the alleged libelous articles
were printed and first published
Venue in an action arising from libel is
only mandatory if it is not waived by defendant.
Thus, objections to venue in civil actions arising
from libel may be waived; it does not, after all,
involve a question of jurisdiction.
FACTS: The Mindanao Kris, a newspaper of general
circulation in Cotabato City, published in its front page
the news article captioned “6-Point Complaint Filed vs.
Macumbal,” and in its Publisher’s Notes the editorial,
“Toll of Corruption,” which exposed alleged anomalies
by key officials in the Regional Office of the DENR.
Subsequently, the public officers alluded to instituted
separate criminal and civil complaints in the City
Prosecutor’s Office and RTC in Marawi City. Diaz,
publisher-editor, and Pagandaman, who executed a
sworn statement attesting the alleged corruption were
named respondents. The City Prosecutor’s Office
dismissed the criminal case.
Thereafter, a civil complaint for damages was
filed. Diaz filed an answer, then later moved for the
dismissal of the action for damages on the ground that
the trial court did not have jurisdiction over the subject
matter. He vehemently argued that the complaint
should have been filed in Cotabato City and not in
Marawi City. The respondent judge denied petitioner’s
Motion to Dismiss for lack of merit.
ISSUE: Whether the venue was improperly laid
NO, petitioner is not correct. Petition is
dismissed for lack of merit. The case is remanded to the
court of origin for further proceedings.
Not one of the respondents held office in
Cotabato City nor they held their principal office in that
province. It is clear that an offended party who is at the
same time a public official can only institute an action
arising from libel in 2 venues: (1) the place where he
holds office; or (2) the place where the alleged libelous
articles were printed and first published. (Art. 360,
RPC)
Venue was indeed improperly laid. However,
unless and until the defendant objects to the venue in a
motion to dismiss prior to a responsive pleading, the
venue in a motion to dismiss cannot truly be said to
have been improperly laid since, for all practical intents
and purposes, the venue though technically wrong may
yet be considered acceptable to the parties for whose
convenience the rules on venue had been devised. Diaz,
then, as defendant should have timely challenged the
venue laid in Marawi City in a motion to dismiss,

pursuant to Rule 4, Sec. 4, of the Rules of Court.
Unfortunately, he had already submitted himself to the
jurisdiction of trial court when he filed his Answer.
Well-settled is the rule that improper venue may be
waived and such waiver may occur by laches. Moreover,
venue in an action arising from libel is only mandatory
if it is not waived by defendant. Thus, objections to
venue in civil actions arising from libel may be waived;
it does not, after all, involve a question of jurisdiction.
The laying of venue is procedural rather than
substantive, relating as it does to jurisdiction of the
court over the person rather than the subject matter.
Venue relates to trial and not jurisdiction.
Furthermore, Rule 16, Sec. 1, provides that
objections to improper venue must be made in a motion
to dismiss before any responsive pleading is filed.
Responsive pleadings are those which seek affirmative
relief and set up defenses. Having already submitted
his person to the jurisdiction of the court, petitioner
may no longer object to the venue which, although
mandatory in the instant case, is nevertheless waivable.
As such, improper venue must be seasonably raised.
Otherwise, it may be deemed waived.
(b) Where parties have validly agreed in writing on
the exclusive venue thereof before the filing of the
action
The parties may agree on a specific venue which could
be in a place where neither of them resides, as long as
the agreement is:
(1) In writing;
(2) Made before the filing of the action; and
(3) Exclusive as to the venue.
LEGASPI v. REPUBLIC
(559 SCRA 410, 2008)
It must be shown that such stipulation as to venue is
exclusive. In the absence of qualifying or restrictive
words, such as "exclusively," "waiving for this
purpose any other venue," "shall only" preceding
the designation of venue, "to the exclusion of the
other courts," or words of similar import, the
stipulation should be deemed as merely an
agreement on an additional forum, not as limiting
venue to the specified place.
FACTS: Jesusito D. Legaspi, as owner and manager of
petitioner J.D. Legaspi Construction, entered into a
Construction Agreement with respondent Social
Security System (SSS) for the construction of a four-
storey building in Baguio City which will serve as
respondent's branch office.
The Philippine peso collapsed as against the
U.S. Dollar in 1997, thus the cost of imported materials
which petitioner contracted to use and install on the
project shot up, and petitioner incurred expenses more
than the original contract price. Petitioner had several
meetings with respondent's representatives during
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER27
which he informed them of his difficulty in meeting his
obligations under the contract due to the peso
devaluation. After several failed meetings, petitioner
sent a letter to respondent requesting an adjustment in
the contract price, which was denied by respondent.
Hence, petitioner filed a civil action with the
RTC. Instead of filing an answer, respondent,
represented by the OSG, filed a Motion to Dismiss on the
grounds that venue was improperly laid and petitioner
had no cause of action. It was respondent's argument
that the Construction Agreement provided that all
actions may be brought before the proper court in
Quezon City and that petitioner waived any other
venue. The RTC denied respondent's Motion to Dismiss.
Respondent moved to reconsider the Order but this was
denied by the RTC. The petition for certiorari with the
Court of Appeals was granted. Hence, the present
petition for review on certiorari under Rule 45 of the
Rules of Court.
ISSUE: Whether the stipulation as to venue in this case is
controlling
YES. As regards restrictive stipulations on
venue, jurisprudence instructs that it must be shown
that such stipulation is exclusive. In the absence of
qualifying or restrictive words, such as "exclusively,"
"waiving for this purpose any other venue," "shall only"
preceding the designation of venue, "to the exclusion of
the other courts," or words of similar import, the
stipulation should be deemed as merely an agreement
on an additional forum, not as limiting venue to the
specified place.
In the Construction Agreement, petitioner
agreed to file any action in Quezon City “expressly
waiving any other venue.” This connotes exclusivity of
the designated venue. The terms clearly stipulate
exclusively the venue where actions arising from the
Construction Agreement should be filed.
Petitioner, however, contends that the case
does not arise from the Construction Agreement; hence,
it may be filed in Makati City, which is his place of
residence. Contrary to petitioner's contention, the
allegations in his complaint indubitably show that his
cause of action arose from the Construction Agreement.
Waiver of improper venue
(1) Express waiver
Made through written agreement
(2) Implied waiver
Made through failure to seasonably object to
improper venue in a motion to dismiss or in
the answer
DACOYCOY v. IAC
(195 SCRA 641, 1993)

Where defendant fails to challenge timely the
venue in a motion to dismiss as provided by
Section 4 of Rule 4 of the Rules of Court, and allows
the trial to be held and a decision to be rendered,
he cannot on appeal or in a special action be
permitted to challenge belatedly the wrong venue,
which is deemed waived.
FACTS: Petitioner Jesus Dacoycoy, filed before the RTC,
Antipolo, Rizal, a complaint against private respondent
Rufino de Guzman for the annulment of two deeds of
sale involving a parcel of riceland situated in Barrio
Estanza, Lingayen, Pangasinan, the surrender of the
produce thereof, and damages due to private
respondent's refusal to have said deeds of sale set aside
upon petitioner's demand.
Before summons could be served on private
respondent as defendant therein, the RTC issued an
order requiring counsel for petitioner to confer with
respondent trial judge on the matter of venue.
After said conference, the trial court dismissed
the complaint on the ground of improper venue. It
found, based on the allegations of the complaint, that
petitioner's action is a real action as it sought not only
the annulment of the deeds of sale but also the
recovery of ownership of the subject parcel of riceland
located in Estanza, Lingayen, Pangasinan, which is
outside the territorial jurisdiction of the trial court.
Petitioner appealed to the Intermediate
Appellate Court, now Court of Appeals, which in its
decision of April 11, 1986, affirmed the order of
dismissal of his complaint.
ISSUE: Whether or not the trial court can pre-empt the
defendant’s prerogative to object to improper venue by
motu propio dismissing the case
NO. The motu proprio dismissal of petitioner's
complaint by respondent trial court on the ground of
improper venue is plain error, obviously attributable to
its inability to distinguish between jurisdiction and
venue.
Venue is procedural rather than substantive. It
relates to the jurisdiction of the court over the person
rather than the subject matter. Provisions relating to
venue establish a relation between the plaintiff and the
defendant and not between the court and the subject
matter. Venue relates to trial not to jurisdiction, touches
more of the convenience of the parties rather than the
substance of the case. Jurisdiction treats of the power of
the court to decide a case on the merits; while venue
deals on the locality, the place where the suit may be
had.
Dismissing the complaint on the ground of
improper venue is certainly not the appropriate course
of action at this stage of the proceeding, particularly as
venue, in inferior courts as well as in the courts of first
instance (now RTC), may be waived expressly or
impliedly. Where defendant fails to challenge timely the
venue in a motion to dismiss as provided by Section 4 of
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER28
Rule 4 of the Rules of Court, and allows the trial to be
held and a decision to be rendered, he cannot on appeal
or in a special action be permitted to challenge
belatedly the wrong venue, which is deemed waived.
Indeed, it was grossly erroneous for the trial
court to have taken a procedural short-cut by
dismissing motu proprio the complaint on the ground of
improper venue without first allowing the procedure
outlined in the Rules of Court to take its proper course.
How to question improper venue
(1) Motion to dismiss—
By filing a motion to dismiss before a responsive
pleading (answer) on the ground of improper venue
(Sec. 1[c], Rule 16)
(2) Affirmative defense in answer—
By impleading improper venue as an affirmative
defense in the answer (Sec. 6, Rule 16)
PLEADINGS
(Substantial Requirements)
In general
Pleadings defined
Pleadings are the written statements of the respective
claims and defenses of the parties submitted to the
court for appropriate judgment. (Sec. 1, Rule 6)
 Pleadings are not supposed to allege
conclusions. It must only aver ultimate facts,
or the facts essential to a party’s cause of
action or defense.
 Evidentiary matters are to be presented
during the trial of the case, not in the
pleadings. These and conclusions may be
subject of a motion to strike.
 All pleadings shall be liberally construed.
 The intention of the pleader is the controlling
factor in construing a pleading and should be
read in accordance with its substance, not its
form.
 Parties are strictly by the allegations,
statements or admissions made in his
pleadings and cannot be permitted to take a
contradictory position.
Distinguished from motion
A motion is an application for relief other than by a
pleading. (Sec. 1, Rule 15)
What allowed
The claims of a party are asserted in a
(1) complaint,
(2) counterclaim,
(3) cross-claim,
(4) third (fourth, etc.)—party complaint, or
(5) complaint-in-intervention.

The defenses of a party are alleged in the answer to the
pleading asserting a claim against him.
An answer may be responded to by a reply. (Sec.2, Rule
6)
Pleadings allowed under Summary Procedure
The only pleadings under the Rules on Summary
Procedure are:
(1) complaint;
(2) compulsory counterclaim;
(3) cross-claim pleaded in the answer; and
(4) answers.
Pleadings not allowed in a petition for writ of amparo or
habeas data
The following are prohibited motions in the mentioned
petitions:
(1) counterclaim;
(2) cross-claim;
(3) third-party complaint;
(4) reply; and
(5) pleadings in intervention
Parts of a pleading
(1) Caption—
The caption sets forth
(1) The name of the court;
(2) The title of the action;
The title of the action indicates the names of
the parties. They shall all be named in the
original complaint or petition; but in
subsequent pleadings, it shall be sufficient if
the name of the first party on each side be
stated with an appropriate indication when
there are other parties.
Their respective participation in the
case shall be indicated.
(3) The docket number if assigned.
NOTE: It is NOT the caption, but the allegations which
determine the nature of the action.
(2) The Body—
The body of the pleading sets forth
(1) its designation,
(2) the allegations of the party’s claims or
defenses,
(3) the relief prayed for, and
(4) the date of the pleading.
(a) Paragraphs.—The allegations in the body of a
pleading shall be
i. divided into paragraphs so numbered as
to be readily identified,
ii. each of which shall contain a statement of
a single set of circumstances so far as that
can be done with convenience.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER29
A paragraph may be referred to by its number in all
succeeding pleadings.
(b) Headings—
For joined actions: The statement of the first shall
be prefaced by the words “first cause of action,” of
the second by “second cause of action,” and so on
for the others.
Paragraphs in the answer addressed to one of
several causes of action in the complaint shall be
prefaced by the words
 “answer to the first cause of action” or
“answer to the second cause of action”
and so on;
Paragraphs of the answer addressed to several
causes of action, they shall be prefaced by words to
that effect.
(c) Relief.—The pleading shall specify the relief
sought, BUT it may add a general prayer for such
further or other relief as may be deemed just or
equitable.
 The relief or prayer does not
constitute a part of the statement of
the cause of action.
 The court may grant a relief not
prayed for as long as the relief is
warranted by the allegations of the
complaint and the proof.
(d) Date.—Every pleading shall be dated. (Sec. 2,
Rule 7)
(3) Signature and address—
Every pleading must be
(1) signed by the party or counsel representing
him, and
(2) state in either case his address which should
not be a post office box.
The signature of counsel constitutes a certification
(1) that he has read the pleading;
(2) that to the best of his knowledge, information,
and belief there is good ground to support it;
and
(3) that it is not interposed for delay.
An unsigned pleading produces NO legal effect.
 However, 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.
Counsel shall be subject to appropriate disciplinary
action if:
(1) he deliberately files an unsigned pleading,
(2) signs a pleading in violation of this Rule,

(3) alleges scandalous or indecent matter therein,
or
(4) fails to promptly report to the court a change
of his address. (Sec 3, Rule 7)
NOTE: Counsel’s authority and duty to sign a pleading
are personal to him. Hence, he MAY NOT delegate it to
just any person. A blanket authority entrusted to just
anyone is void since it will amount to signing by
unqualified persons.
(4) Verification—
General Rule: Pleadings NEED NOT be under oath,
verified or accompanied by affidavit.
Exception: when otherwise specifically
required by law or rule. The follow pleadings must be
verified:
 Petition to take deposition before action;
 Petition for relief from judgment;
 Appeal by Certiorari from CA to SC;
 Application for Preliminary Injunction or
Temporary Restraining Order;
 Application for Appointment of a Receiver;
 Petition for Certiorari, Prohibition, or
Mandamus;
 All pleadings of forcible entry and unlawful
detainer;
 Petition for appointment of general guardian;
 Petition of guardian for leave to sell or
encumber property of estate;
 Petition to declare competency of ward;
 Application for Writ of habeas corpus;
 Petition for change of name;
 Petition for voluntary dissolution of
corporation;
 Petition to correct entries in civil registry;
 Pleadings in Summary Procedure.
The following need not be verified but must be under
oath:
 Denial of genuineness and dues execution of
actionable document;
 Denial of allegations of usury;
 Motion to set aside order of default;
 Answer to written interrogatories;
 Answer to request for admission.
Affidavit of merit or supporting affidavit is required in
the following:
 Motion for summary judgment or opposition
thereto;
 Motion for new trial;
 Affidavit of third-party claim on levied
property;
 Proof required of redemptioner;
 Complaint with prayer for preliminary
attachment;
 Affidavit of third-party claim on attached
property;
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER30
 Motion to dissolve preliminary injunction on
ground of irreparable damage to movant while
adverse party can be fully compensated
 Complaint for replevin:
 Claim against estate of decedent.
How pleading is verified
A pleading is verified by an affidavit
(1) that the affiant has read the pleading and
(2) that the allegations therein are true and
correct of his personal knowledge or based on
authentic records.
NOTE: A pleading required to be verified shall be
treated as an unsigned pleading if it contains a
verification
(1) based on “information and belief,”
(2) upon “knowledge, information and belief,” or
(3) lacks a proper verification
Remedies
 The court may order the correction of the
pleading if lacking verification
 The court may also acct on the pleading
despite failure to properly verify if under the
circumstances, strict compliance with the
rules may be dispensed with
 The absence of verification may be corrected
by requiring an oath.
(5) Certification against forum shopping—
Forum shopping is the filing of multiple suits in different
courts, either simultaneously or successively, involving
the same parties, to ask the courts to rule on the same
or related causes and/or to grant the same or
substantially the same relief.
 It is an act of malpractice
 The same shall constitute direct contempt, a
cause for administrative sanctions, as well as a
ground for the summary dismissal of the case
with prejudice.
The certification against forum shopping is a sworn
statement by the plaintiff or principal party certifying in
an initiatory pleading:
(a) that he has not commenced any action or filed
any claim involving the same issues in any
court, tribunal or quasi-judicial agency and, to
the best of his knowledge, no such other
action or claim is pending therein;
(b) if there is such other pending action or claim,
a complete statement of the present status
thereof; and
(c) if he should thereafter learn that the same or
similar action or claim has been filed or is
pending, he shall report that fact within five
(5) days therefrom to the court wherein his
aforesaid complaint or initiatory pleading has
been filed.

NOTE: The certification must be executed by the party
NOT the counsel, unless the latter is authorized
specifically to do so. A certification signed by the
counsel is a defective certification and is a valid cause
for dismissal. BUT This rule must be liberally
interpreted:
 Failure of parties to sign because they were
abroad may be a reasonable cause to exempt
the parties from compliance with the
requirement
 Signing by one of the petitioners was held to
be substantial compliance
 When plaintiff is a juridical person—this may
be signed by the properly authorized persons.
This requirement is mandatory in the filing of a
complaint and other initiatory pleading, but it is NOT
jurisdictional. The rule applies also to special civil
actions.
Initiatory pleadings include
(1) Original complaint;
(2) Permissive counterclaim;
(3) Cross-claim;
(4) Third (fourth, etc.)-party complaint;
(5) Complaint in intervention; and
(6) Petition or application wherein the party
asserts his claim or relief.
NOTE: No certification required for a compulsory
counterclaim since it is NOT an initiatory pleading.
Effect of failure to comply
(1) It shall NOT be curable by mere amendment of
the complaint or other initiatory pleading.
(2) BUT it shall be cause for the dismissal of the
case without prejudice, unless otherwise
provided, upon motion and after hearing.
Effect of the submission of a false certification or non-
compliance with any of the undertakings therein:
(1) Indirect contempt;
(2) Administrative and criminal actions.
Effect of willful and deliberate forum shopping by the
party or his counsel:
(1) ground for summary dismissal with prejudice
(2) direct contempt, and
(3) a cause for administrative sanctions. (Sec. 5,
Rule 7)
How to determine existence of forum shopping
The most important question is whether the elements
of litis pendentia are present OR whether a final
judgment in one case will result to res judicata.
The TEST is whether in the two or more cases
pending, there is:
(a) identity of parties;
(b) identity of rights or causes of action, and
(c) identity of reliefs sought.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER31
HOW ALLEGATIONS MADE
In general
Every pleading shall contain in a methodical and logical
form, a plain, concise and direct statement of the
ultimate facts on which the party pleading relies for his
claim or defense, as the case may be, omitting the
statement of mere evidentiary facts.
If a defense relief on is based on law,
 the pertinent provisions thereof and
 their applicability to him shall be clearly and
concisely stated. (Sec. 1, Rule 8)
Ultimate facts are those which directly form the basis of
the right sought to be enforced, or the defense relied
upon. They are the very facts without which, for
example, the cause of action stated in a complaint
would be insufficient.
 Test of sufficiency—
If from the facts alleged, a valid judgment may
be rendered for the plaintiff, the complaint is
prima facie sufficient.
No need to allege the following in the pleadings:
(1) evidentiary or probative facts
(2) those presumed by law
(3) facts of judicial notice
(4) inferences, arguments and conclusions of law
derived or inferred from the stated ultimate
facts
Capacity
The following must be averred:
(1) Facts showing the capacity of a party to sue or
be sued:
(2) The authority of a party to sue or be sued in a
representative capacity; or
(3) The legal existence of an organized association
of persons that is made a party.
Contesting the capacity of a party
A party desiring to raise an issue as to the legal
existence of any party or the capacity of any party to
sue or be sued in a representative capacity, shall do so
by specific denial, which shall include such supporting
particulars as are peculiarly within the pleader’s
knowledge. (Sec. 4, Rule 8)
Specific denial
How to make a specific denial:
(1) Absolute denial—specify each material
allegation of fact the truth of which he does
not admit and, whenever practicable, set forth
the substance of the matters upon which he
relies to support his denial.
(2) Partial denial—where only a part of an
averment is denied, he specify so much of it as

is true and material and deny only the
remainder.
(3) Denial by disavowal of knowledge—where
defendant is without knowledge or informa-
tion sufficient to form a belief as to the truth of
a material averment in the complaint, he shall
so state, and this shall have the effect of a
denial. (Sec. 10, Rule 8)
NOTE: Allegations not specifically denied are deemed
admitted. Exception:
 amount of unliquidated damages, which must
always be proved;
 allegations of usury in a complaint to recover
usurious interest are admitted if not denied
under oath. (Sec. 11, Rule 8)
Alternative claims and defenses
A party may set forth two or more statements of a claim
or defense 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. (Sec. 2, Rule 8)
Examples
Alternative cause of action: Breach of contract
of carriage or tort
Alternative defense: Payment; even if not paid,
action has prescribed
Conditions precedent
In any pleading a general averment of the performance
or occurrence of all conditions precedent shall be
sufficient. (Sec. 3, Rule 8)
Example: Exhaustion of administrative remedies.
Fraud and mistake, condition of mind
In all averments, the circumstances constituting the
following must be stated with particularity:
(1) fraud or
(2) mistake
NOTE: If the above rule is not complied with,
 the complaint may be dismissed, or
 the answer may be stricken off the records
and he will be declared in default.
The following may be averred generally:
(1) malice,
(2) intent,
(3) knowledge or
(4) other condition of the mind of a person.
(Sec. 5, Rule 8)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER32
Judgments
In pleading a judgment or decision of a domestic or
foreign court, judicial or quasi-judicial tribunal, or of a
board or officer, it is sufficient
 to aver the judgment or decision without
setting forth matter showing jurisdiction to
render it. (Sec. 6, Rule 8)
Official documents
In pleading an official document or official act, it is
sufficient to aver:
 that the document was issued or the act done
in compliance with law. (Sec. 9, Rule 8)
Need to bring in new parties
When the presence of parties other than those to the
original action is required for the granting of complete
relief in the determination of a counterclaim or cross-
claim, the court shall ORDER them to be brought in as
defendants, if jurisdiction over them can be obtained.
(Sec. 12, Rule 6)
COMPLAINT
Defined and in general
The complaint is the pleading alleging the plaintiff’s
cause or causes of action. The names and residences of
the plaintiff and defendant must be stated in the
complaint. (Sec. 3, Rule 6)
 It is the first pleading a party filed in court.
 It must be in writing.
Allegations
In general
Every pleading shall contain in a methodical and logical
form, a plain, concise and direct statement of the
ultimate facts on which the party pleading relies for his
claim or defense, as the case may be, omitting the
statement of mere evidentiary facts.
If a defense relief on is based on law,
 the pertinent provisions thereof and
their applicability to him shall be clearly and concisely
stated.
REYES v. RTC MAKATI
(2008)

Allegations of deceit, machination, false pretenses,
misrepresentation, and threats are largely
conclusions of law that, without supporting
statements of the facts to which the allegations of
fraud refer, do not sufficiently state an effective
cause of action.
FACTS: Pedro and Anastacia Reyes, along with their two
children Oscar, Rodrigo, owned shares of stock in Zenith
Insurance Corporation (Zenith). When Pedro and
Anastacia died, Rodrigo owned 4,250 shares while
Oscar owned 8,715,637 shares. Pedro’s estate was
properly partitioned in the 70’s but Anastacia’s estate
was not partitioned (which includes her shares in
Zenith).
Zenith and Rodrigo filed a complaint
designated as a derivative suit with the SEC against
Oscar to obtain an accounting of the funds and assets of
Zenith which are now or formerly in the control,
custody, and/or possession of petitioner Oscar and to
determine the shares of stock of deceased Reyes
spouses that were “arbitrarily and fraudulently”
appropriated by Oscar for himself and which were not
collated and taken into account in the partition,
distribution, and/or settlement of the estate of the
deceased spouses. The complaint prayed that Oscar be
ordered to account for all the income from the time he
took these shares, and deliver to his brothers and
sisters their just and respective shares.
In his Answer with Counterclaim, Oscar
denied the charge that he illegally acquired the shares
of Anastacia, asserting that he purchased the shares
with his own funds from Zenith’s unissued stocks, and
that the suit is not a bona fide derivative suit because
the requisites have not been complied with. He
questioned the SEC's jurisdiction to entertain the
complaint because it pertains to the settlement of the
estate of Anastacia Reyes.
The RTC was later conferred with jurisdiction
over the matter due to a presidential declaration
confirming the former as a special commercial court.
Oscar filed a Motion to Declare Complaint as Nuisance
or Harassment Suit. The RTC denied the motion and the
CA affirmed. Hence this petition
ISSUE: Whether the allegations against Oscar were
sufficient to hold him guilty of fraud
NO. The rule is that a complaint must contain
a plain, concise, and direct statement of the ultimate
facts constituting the plaintiff's cause of action and
must specify the relief sought. Section 5, Rule 8 of the
Revised Rules of Court provides that in all averments of
fraud or mistake, the circumstances constituting fraud
or mistake must be stated with particularity. These
rules find specific application to Section 5(a) of P.D. No.
902-A which speaks of corporate devices or schemes
that amount to fraud or misrepresentation detrimental
to the public and/or to the stockholders.
Allegations of deceit, machination, false
pretenses, misrepresentation, and threats are largely
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER33
conclusions of law that, without supporting statements
of the facts to which the allegations of fraud refer, do
not sufficiently state an effective cause of action. Fraud
and mistake are required to be averred with
particularity to enable the opposing party to controvert
the particular facts allegedly constituting such fraud or
mistake.
The charges of fraud against Oscar were not
properly supported by the required factual allegations.
While the complaint contained allegations of fraud
purportedly committed by him, these allegations are
not particular enough to bring the controversy within
the special commercial court's jurisdiction; they are not
statements of ultimate facts, but are mere conclusions
of law: how and why the alleged appropriation of
shares can be characterized as "illegal and fraudulent"
were not explained nor elaborated on.
Capacity of parties
The following must be averred:
(1) Facts showing the capacity of a party to sue or
be sued:
(2) The authority of a party to sue or be sued in a
representative capacity; or
(3) The legal existence of an organized association
of persons that is made a party.
Contesting the capacity of a party
A party desiring to raise an issue as to the legal
existence of any party or the capacity of any party to
sue or be sued in a representative capacity, shall do so
by specific denial, which shall include such supporting
particulars as are peculiarly within the pleader’s
knowledge. (Sec. 4, Rule 8)
Actions based upon a document
Whenever an action or defense is based upon a written
instrument or document, the party shall:
(1) set forth in the pleading the substance of such
instrument or document , and
(2) attach the original or a copy thereof an exhibit,
which shall be deemed to be a part of the
pleading, or
(3) set forth said copy be in the pleading with like
effect. (Sec. 7, Rule 8)
Actionable document is one which is the basis of the
claim or defense. Examples:
 promissory note
 deed of sale
 contract
NOTE: Letters by parties regarding the actionable
document are not actionable documents, but mere
evidence of the existence of the actionable document.
To contest an actionable document
The party must

(1) specifically deny the genuineness and due
execution of the document under oath; and
(2) set forth what he claims to be the facts.
NOTE: A mere specific denial is insufficient. The denial
must be coupled with an oath; the denial must be
verified.
 Absence of an oath will be deemed an implied
admission of the due execution and
genuineness of the document.
 When a party is deemed to have admitted
genuineness and due execution of an
actionable document, defenses implied from
said admission are waived (forgery, lack of
authority to execute the document, no
capacity to sign, non-delivery of the document,
defense that the document was not in words
and figures as set out in the pleadings)
 The following are NOT cut-off by the implied
admission since they are unrelated to the
genuineness and due execution of the
document:
(1) Payment;
(2) Want of consideration;
(3) Illegality of consideration;
(4) Usury;
(5) Fraud;
(6) Prescription,
(7) Release;
(8) Waiver;
(9) Statute of frauds;
(10) Estoppel;
(11)Former recovery or discharge in
bankruptcy, etc.
When an oath is not required
A specific denial under oath will not apply in the
following cases:
(1) When the adverse party does not appear to be
a party to the document, or
(2) When compliance with an order for an
inspection of the original instrument is
refused. (Sec. 8, Rule 8)
ANSWER
Defined and in general
An answer is a pleading in which a defending party sets
forth his defenses. (Sec. 4, Rule 6)
 This pleading may be an answer to the
complaint, to a counterclaim, or an answer to
a cross-claim.
 There is NO answer to a reply.
 There may be an answer to a third-party
complaint or complaint-in-intervention.
Types of defenses
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER34
Negative
A negative defense is the specific denial of the material
fact or facts alleged in the pleading of the claimant
essential to his cause or causes of action. (Sec. 5[a], Rule
6)
A defense is negative when the material
averments alleged in the pleading of the claimant are
specifically denied. (Sec. 5, Rule 3)
How alleged, generally
It is alleged in the form of a specific denial.
 If the denial is not under Sec. 10,
Rule 8, it is deemed a general denial.
 A general denial is an admission.
Specific denial
How to make a specific denial:
(1) Absolute denial—specify each material
allegation of fact the truth of which he
does not admit and, whenever
practicable, set forth the substance of the
matters upon which he relies to support
his denial.
(2) Partial denial—where only a part of an
averment is denied, he specify so much of
it as is true and material and deny only
the remainder.
(3) Denial by disavowal of knowledge—where
defendant is without knowledge or
information sufficient to form a belief as
to the truth of a material averment in the
complaint, he shall so state, and this shall
have the effect of a denial. (Sec. 10, Rule
8)
Capacity of parties
The following must be averred:
(1) Facts showing the capacity of a party
to sue or be sued:
(2) The authority of a party to sue or be
sued in a representative capacity; or
(3) The legal existence of an organized
association of persons that is made a
party.
Contesting the capacity of a party
A party desiring to raise an issue as to the
legal existence of any party or the capacity of
any party to sue or be sued in a representative
capacity, shall do so by specific denial, which
shall include such supporting particulars as
are peculiarly within the pleader’s knowledge.
(Sec. 4, Rule 8)
Genuineness of documents
Whenever an action or defense is based upon
a written instrument or document, the party
shall:

(1) set forth in the pleading the
substance of such instrument or
document , and
(2) attach the original or a copy thereof
an exhibit, which shall be deemed to
be a part of the pleading, or
(3) set forth said copy be in the pleading
with like effect. (Sec. 7, Rule 8)
Actionable document is one which is the basis
of the claim or defense. Examples:
 promissory note
 deed of sale
 contract
NOTE: Letters by parties regarding the
actionable document are not actionable
documents, but mere evidence of the existence
of the actionable document.
To contest an actionable document
The party must
(1) specifically deny the genuineness
and due execution of the document
under oath; and
(2) set forth what he claims to be the
facts.
NOTE: A mere specific denial is insufficient.
The denial must be coupled with an oath; the
denial must be verified.
 Absence of an oath will be deemed
an implied admission of the due
execution and genuineness of the
document.
 When a party is deemed to have
admitted genuineness and due
execution of an actionable document,
defenses implied from said
admission are waived (forgery, lack
of authority to execute the
document, no capacity to sign, non-
delivery of the document, defense
that the document was not in words
and figures as set out in the
pleadings)
 The following are NOT cut-off by the
implied admission since they are
unrelated to the genuineness and
due execution of the document:
(1) Payment;
(2) Want of consideration;
(3) Illegality of consideration;
(4) Usury;
(5) Fraud;
(6) Prescription,
(7) Release;
(8) Waiver;
(9) Statute of frauds;
(10) Estoppel;
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER35
(11) Former recovery or
discharge in bankruptcy,
etc.
When an oath is not required
A specific denial under oath will not apply in
the following cases:
(3) When the adverse party does not
appear to be a party to the
document, or
(4) When compliance with an order for
an inspection of the original
instrument is refused. (Sec. 8, Rule 8)
MEMITA v. MASONGSONG
(2007)
The genuineness and due execution of the
instrument shall be deemed admitted unless the
adverse party, under oath, specifically denies them,
and sets forth what he claims to be the facts. A
defendant must specify each material allegation of
fact the truth of which he does not admit and,
whenever practicable, shall set forth the substance
of the matters upon which he relies to support his
denial.
FACTS: Masongsong, under the business name of RM
Integrated Services, was the distributor of San Miguel
Foods, Inc.’s Magnolia chicken products. He supplied
said products on a 25-day payment credit to Memita’s
Vicor Store.
Masongsong filed a complaint before the RTC,
alleging that Memita’s P603,520.50 credit on goods
purchased remain unpaid despite his several demands.
He also prayed for the issuance of a writ of attachment
against Memita.
Thereafter, the RTC ordered the issuance of a
writ of attachment against Memita, taking into account:
(1) the allegations of the verified complaint; (2) the
testimonies of Masongsong and Joel Go, his sales
person; and (3) Masongsong’s bond. According to the
sheriff’s return of service, the Provincial Sheriff issued a
notice of levy on attachment to the Registrar of the TO
and a notice of embargo to the Register of Deeds of
Bacolod City.
Memita did not deny that he purchased goods
on credit from Masongsong, but based his refusal to pay
on the following grounds: (1) questionable deliveries;
(2) short deliveries and discrepancies; and (3) possible
manipulation of delivery receipts. He made a
counterclaim and asked for P300,000 in actual damages
for the seizure of two of his vehicles; P500,000 as moral
damages; at least P200,000 as exemplary damages; and
P150,000 as attorney’s fees.
The RTC ruled that Masongsong was entitled
to the reliefs prayed for. However, Memita filed a notice
of appeal with the trial court. In his brief, Memita
averred that the trial court erroneously admitted as
evidence the machine copies of the seventy-two (72)

sales invoices despite the patent lack of proof of due
execution and authenticity; and in holding that Memita
acknowledged receipt of the deliveries made by
Masongsong.
The appellate court upheld the trial court’s
decision. They said Memita failed to explicitly deny or
contest the genuineness and due execution of the
receipts or any signatures on the receipts.
ISSUES: Whether Memita was able to contest the
genuineness and due execution of the 72 sales invoices
NO. Without specifying the date of purchase
or the receipt number, Memita denied the quantities
and value of his purchases. He alleged that there were
questionable deliveries and questionable number of
kilos per crate, and concluded that Masongsong might
have manipulated the delivery receipts. However, he
failed to point out any particular Sales Invoice which
substantiates his claim of short deliveries or
questionable deliveries. The appellate court reiterated
the trial court’s position and stated that Memita’s The
Answer failed to explicitly deny or contest the
genuineness and due execution of any of the receipts
nor any of his signatures or that of his authorized
representative appearing therein.
Section 8 of Rule 8 provides that the
genuineness and due execution of the instrument shall
be deemed admitted unless the adverse party, under
oath, specifically denies them, and sets forth what he
claims to be the facts.
Memita, in alleging "questionable" and "short"
deliveries, in effect alleges that Masongsong committed
fraud. Whoever alleges fraud or mistake affecting a
transaction must substantiate his allegation, since it is
presumed that a person takes ordinary care of his
concerns and private concerns have been fair and
regular. Memita chose to present evidence which did
not "set forth the facts" nor the "substance of the
matters upon which he relies to support his denial.”
Negative pregnant
Denial in the form of a negative pregnant—
It is a denial which at the same time involves
an affirmative implication favorable to the
opposing party, and is thus an admission of an
averment to which it is directed. It is a literal
denial pregnant with admission.
 It does not qualify as a specific denial.
It is conceded to be actually an
admission.
 It is a negative implying also an
affirmative and which although
stated in a negative form really
admits the allegations to which it
relates.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER36
PHILIPPINE AMERICAN GENERAL INSURANCE CO.,
INC. v. SWEET LINES
(212 SCRA 194, 1993)
Even granting that petitioner’s averment in their
reply amounts to a denial, it has the procedural
earmarks a negative pregnant, that is, a denial
pregnant with the admission of the substantial
facts in the pleadings responded to which are not
squarely denied. While the petitioners objected to
the validity of such agreement for being contrary to
public policy, the existence of the bills of lading and
said stipulations were impliedly admitted by them
FACTS: In March 1977, the vessel SS "VISHVA YASH" a
foreign common carrier, took on board at Baton Rouge,
LA, two (2) consignments of cargoes for shipment to
Manila and later for transshipment to Davao City,
consisting of bags of Low Density Polyethylene both
consigned to the order of FEBTC Manila, with arrival
notice to TPI in Davao City. The said vessel arrived at
Manila and discharged its cargoes in the Port of Manila.
For transshipment to Davao, the carrier awaited and
made use of the services of M/V "Sweet Love" owned
and operated by SLI interisland carrier.
Subject cargoes were loaded and were
commingled with similar cargoes belonging o other two
other companies. The shipments were discharged from
the interisland carrier into the custody of the consignee.
However, of the 7,000 bags originally contained in 175
pallets, only a total of 5,820 bags were delivered to the
consignee in good order condition, leaving a balance of
1,080 bags. Defendants were sued for such losses.
Before trial, a compromise agreement was
entered into between petitioners, as plaintiffs, and
defendants S.C.I. Line and F.E. Zuellig. The trial court
granted petitioners motion to dismiss on the ground of
said amicable settlement and the case as to S.C.I. Line
and F.E. Zuellig was consequently dismissed. CA
reversed the RTC on supposed ground of prescription
when SLI failed to adduce any evidence in support
thereof and that the bills of lading said to contain the
shortened periods for filing a claim and for instituting a
court action against the carrier were never offered in
evidence.
ISSUE: Whether the non-inclusion of the controverted
bills of lading in the formal offer of evidence would bar
respondent from raising the defense of prescription
NO. In the case at bar, prescription as an
affirmative defense was seasonably raised by SLI in its
answer, except that the bills of lading embodying the
same were not formally offered in evidence.
As petitioners are suing upon SLI's contractual
obligation under the contract of carriage as contained in
the bills of lading, such bills of lading can be categorized
as actionable documents which under the Rules must
be properly pleaded either as causes of action or
defenses, and the genuineness and due execution of
which are deemed admitted unless specifically denied
under oath by the adverse party.
 CIVIL PROCEDURE REVIEWER37

Petitioners failed to controvert the existence
of the bills of lading; hence, they impliedly admitted the
same when they merely assailed the validity of subject
stipulations. Petitioners' failure to specifically deny the
existence, much less the genuineness and due
execution, of the instruments in question amounts to an
admission. Judicial admissions, verbal or written, made
by the parties in the pleadings or in the course of the
trial or other proceedings in the same case are
conclusive, no evidence being required to prove the
same, and cannot be contradicted unless shown to have
been made through palpable mistake or that no such
admission was made. Moreover, when the due
execution and genuineness of an instrument are
deemed admitted because of the adverse party's failure
to make a specific verified denial thereof, the
instrument need not be presented formally in evidence
for it may be considered an admitted fact.
Petitioners failed to touch on the matter of the
non-presentation of the bills of lading in their brief and
earlier on in the appellate proceedings in this case.
Petitioners acknowledged the existence of said bills of
lading. By having the cargo shipped on respondent
carrier's vessel and later making a claim for loss on the
basis of the bills of lading, petitioners for all intents and
purposes accepted said bills.
General rule: Defenses and objections not pleaded
either in a motion to dismiss or in the answer are
deemed waived.
Exception: The grounds of
(1) Lack of jurisdiction over the subject matter;
(2) Litis pendentia (that there is another action
pending between the same parties for the
same cause);
(3) Res judicata (that the action is barred by a
prior judgment), and
(4) Prescription
Periods to plead
Answer to the complaint—
Within 15 days after service of summons, unless a
different period is fixed by the court (Sec. 1, Rule 11)
Answer of a defendant foreign private juridical entity.—
Within 30 days after receipt of summons where the
defendant is
(1) a foreign private juridical entity and
(2) service of summons is made on the
government official designated by law to
receive the same. (Sec. 2, Rule 11)

Affirmative Answer to amended complaint:

An affirmative defense is an allegation of a new matter
which, while hypothetically admitting the material Filed as a matter of right—
allegations in the pleading of the claimant would Within 15 days after being served with a copy of the
nevertheless prevent or bar recovery by him. amended complaint.
 It is not a denial of an essential ingredient in
the plaintiff’s cause of action, but one which, if Not a matter of right—
established, will be a good defense, an Within 10 days from notice of the Order admitting the
avoidance of the claim. same
 It must be of such nature as to bar the plaintiff  An answer earlier filed may serve as the
from claiming on his cause of action. answer to the amended complaint, if no new
 The plaintiff may deny or controvert it by answer is filed.
filing a reply. If no reply is, affirmative
defenses are deemed controverted except NOTE: This Rule applies to answers to
those which are required to be under oath. (1) an amended counterclaim,
(2) amended cross-claim,
The affirmative defenses include (3) amended third (fourth, etc.)— party
(1) fraud, complaint, and
(2) statute of limitations, (4) amended complaint-in-intervention.
(3) release, (Sec. 3, Rule 11)
(4) payment,
(5) illegality, Waiver of defenses
(6) statute of frauds, A compulsory counterclaim, or a cross-claim, not set up
(7) estoppel, shall be barred. (Sec. 2, Rule 9)
(8) former recovery,
(9) discharge in bankruptcy, and COUNTERCLAIMS
(10) any other matter by way of confession and
avoidance Defined and in general
A counterclaim is any claim which a defending party
may have against an opposing party. (Sec. 6, Rule 6)
 It partakes of a complaint by the defendant
against the plaintiff
Implied admissions  “claim” may refer to a claim for

MENDEZ, IVAN VIKTOR (2D, ’13)


(a) Money; or
(b) Some other relief against an
opposing party
 Upon filing of the counterclaim, the defendant
becomes the plaintiff, while the original
plaintiff becomes the defendant.
 It gives rise to two complaints: the original
complaint and the counterclaim.
How raised
Included in answer
A counterclaim may be asserted against an original
counter-claimant. (Sec. 9, Rule 6)
A compulsory, counterclaim or a cross-claim that a
defending party has at the time he files his answer shall
be contained therein. (Sec. 8, Rule 11)
After answer
A counterclaim may be asserted against an original
counter-claimant. (Sec. 9, Rule 6)
A counterclaim or a cross-claim which either
(1) matured or
(2) was acquired by a party after serving his
pleading
may, with the permission of the court, be presented as a
counterclaim or a cross-claim by supplemental pleading
before judgment. (Sec. 9, Rule 11)
Kinds of counterclaims
Compulsory
A compulsory counterclaim is one which, being
cognizable by the regular courts of justice,
(1) Arises out of or is connected with the
transaction or occurrence constituting the
subject matter of the opposing party’s claim
and
(2) Does not require for its adjudication the
presence of third parties of whom the court
cannot acquire jurisdiction.
(3) Such a counterclaim must be within the
jurisdiction of the court both as to the amount
and the nature thereof, except that in an
original action before the RTC, the
counterclaim may be considered compulsory
regardless of the amount. (Sec. 7, Rule 6)
NOTE: A compulsory counterclaim, or a cross-claim, not
set up shall be barred. (Sec. 2, Rule 9)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER38
-It cannot be independently adjudicated
BA FINANCE CORP v. CO
(224 SCRA 163, 1993)
Compulsory counterclaim, being ancillary to the
principal controversy, cannot "remain pending for
independent adjudication by the court." Dismissal
of the complaint carries with it the dismissal of the
compulsory counterclaim.
FACTS: BA Finance brought an action recover a sum of
money from a credit accommodation in the form of a
discounting line which it granted to Rufino Co, and from
certain suretyship agreements executed in its favor by
his co-respondents. As their counterclaim, respondents
alleged overpayments and damages. They asserted that
they are no longer indebted to petitioner and are in fact
entitled to reimbursement for overpayments. They
asked for damages for expenses incurred and
inconveniences suffered by them as a result of the filing
of the present action.
After respondents' Amended Answer to
Complaint with Compulsory Counterclaim was
admitted, the case was set for Pre-Trial Conference. The
conference was repeatedly reset. Counsel for BA
Finance failed to attend the Pre-Trial Conference.
Consequently, Co moved for dismissal of the case
without prejudice. The motion was granted.
Respondents moved to set the reception of
their evidence in support of their counterclaim. Trial
court denied the motion. CA reversed the lower court’s
order and directed it to set the reception of their
evidence on their counterclaim. Motion for
reconsideration was denied, hence the instant petition
alleging that the dismissal of the complaint carried with
it the dismissal of respondent’s counterclaim.
ISSUE: Whether the dismissal of the complaint carries
with it the dismissal of the counterclaim
YES. A compulsory counterclaim cannot
"remain pending for independent adjudication by the
court." This is because it is auxiliary to the proceeding
in the original suit and merely derives its jurisdictional
support therefrom. Thus, if the trial court no longer
possesses jurisdiction to entertain the main action of
the case, an when it dismisses the same, then the
compulsory counterclaim being ancillary to the
principal controversy, must likewise be similarly
dismissed since no jurisdiction remains for the grant of
any relief under the counterclaim.
In the case at bar, the same evidence needed to
sustain the counterclaim of respondents would also
refute the cause of action in petitioner's complaint. If
private respondents could successfully show that they
actually made overpayments on the credit
accommodations extended by petitioner, then the
complaint must fail. Therefore the counterclaim is

compulsory. However, with the dismissal of the
complaint on defendant's own motion, it likewise
dismissed the counterclaim questioning the complaint.
What the defendants could have done instead
of moving for dismissal was to ask the trial court to
declare petitioners to be "non-suited" on their
complaint so that the latter can no longer present his
evidence thereon, and simultaneously move that he be
declared as in default on the compulsory counterclaim,
and reserve the right to present evidence ex parte on
his counterclaim. This will enable defendant who was
unjustly haled to court to prove his compulsory
counterclaim, which is intertwined with the complaint,
because the trial court retains jurisdiction over the
complaint and of the whole case. The non-dismissal of
the complaint, the non-suit notwithstanding, provides
the basis for the compulsory counterclaim to remain
active and subsisting.
-Jurisdiction (both as to amount and nature;
exception)
MACEDA v. CA
(1989)
The MTC does not have original jurisdiction over
the counterclaim as it exceeds P20,000, hence the
RTC did not have appellate jurisdiction over the
claim.
FACTS: Spouses Arturo and Maxima emigrated to the
U.S. and leased their house and lot to their nephew,
Maceda, for P200 per month. With the spouses’
permission, petitioner repaired and renovated the
house subject to reimbursement for expenses. The
remodeling job cost P40,000. The spouses made plans
to reimburse him. Maceda introduced more
improvements.
When Arturo passed away in the US, his
attorney-in-fact promised to sell to Maceda the
property for P125,000 after the transfer of title to his
widowed aunt. However, it was later sold by the aunt to
Mr. Gomez, and the latter to Pablo Zubiri. Ejectment
cases were filed against Maceda, but all were dismissed.
Maxima died in the US.
Zubiri sold the property to Cement Center,
Inc., who asked petitioner to vacate because of a
housing project it had for its employees. Maceda
insisted on being reimbursed for his improvements as
the original owners had promised to do. Formal
demands to vacate and for payment of P4,000 monthly
rental from April 15, 1982 were sent to him by the
company. Another ejectment suit was filed against him
in the MTC.
In his answer to the complaint, Maceda set up
a P240,000 counterclaim, the alleged value of his
improvements. The MTC ordered him to vacate the
premises and pay Cement Center rent. The latter was
ordered to reimburse him for the improvements.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER39
The RTC set aside the decision and ordered
Cement Center to pay Maceda P182,000 as necessary
and useful improvements.
The CA reversed the decision because of
MTC’s lack of jurisdiction, and, in consequence the RTC
decision’s lack of legal basis.
ISSUE: Whether the MTC had jurisdiction over an
ejectment case where the lessee's counterclaim exceeds
the court's jurisdictional limit
NO. The MTC did not have original jurisdiction
over his counterclaim as it exceeds P20,000.
Correspondingly, the RTC did not have appellate
jurisdiction over the claim. The decision of the MTC
awarding Maceda P158,000 on his counterclaim, and
that of the RTC raising the award to P182,200, were
invalid for lack of jurisdiction. The jurisdiction of the
MTC in a civil action for sum of money is limited to a
demand that "does not exceed P20,000 exclusive of
interest and costs but inclusive of damages of whatever
kind." (Sec. 33, subpar. 1, B.P. Blg. 129.) A counterclaim
in the municipal or city court beyond that jurisdictional
limit may be pleaded only by way of defense to weaken
the plaintiffs claim, but not to obtain affirmative relief.
-Filing fees and non-forum certification not
required
Permissive
A permissive counterclaim is one which does not arise
out of the opposing party’s claim or necessarily
connected with the transaction or occurrence
constituting the subject matter of the opposing party’s
claim.
 It is not connected with the plaintiff’s cause of
action.
 It is NOT barred even if not pleaded in the
answer.
 It may be filed as an independent action by the
defendant as plaintiff.
Examples
 Counterclaim for damages based on culpa
aquiliana in a complaint for collection of a
loan
 Counterclaim for damages based on quasi-
delict
 Counterclaim for the payment of the price of a
car in an action to recover a piece of land
Distinctions between compulsory and permissive
counterclaim
PERMISSIVE COMPULSORY
May be set up as an
Must be contained in
independent action and
the answer; if it is not
will not be barred if not
set up, it shall be barred
in the answer
Not an initiatory
An initiatory pleading
pleading
 CIVIL PROCEDURE REVIEWER40

Should be accompanied Meanwhile, in another case, KEB filed a

by a certification against Complaint against Magno et al and PHDI before the RTC
forum shopping and for sum of money and reformation of the real estate
Does not require
when legally required, a mortgage executed by PHDI. PHDI and Magno, et al.
certifications
certificate to file action filed a motion to dismiss on the ground of forum
by the Lupong shopping, asserting that the KEB should have filed its
Tagapamayapa counterclaim for collection and the reformation of the
Failure to answer this is mortgage in the first civil case. They averred that the
NOT a cause for a essential elements of litis pendentia were present.
Must be answered by the default declaration. However, the RTC denied the motion to dismiss.
party against whom it is Compulsory PHDI and Magno, et al. therefore filed their
interposed, otherwise, he counterclaims merely answer with counterclaims in the second case where
may be declared in reiterating special they denied indebtedness to the KEB, alleging the same
default defenses are deemed facts in their complaint in the first civil case. KEB filed a
controverted even motion to dismiss these counterclaims, alleging that the
without a reply causes of action for PHDI’s complaint for collection of
No need to pay docket $160,000.00 and damages, and for the counterclaims in
fees this second case for the set-off of the said amount
Docket and other lawful against its claim of $500,000.00 were identical; hence,
BUT NOTE: AM 4-2-04 their counterclaims should be dismissed for forum
fees should be paid
now requires payment shopping.
of fees for compulsory PHDI, et al. opposed the motion to dismiss the
counterclaims (Riano) complaint, alleging that KEB failed to include forum
shopping as a ground in its motion to dismiss their
KOREA EXCHANGE BANK v. GONZALES complaint in the first case; hence, it is bound by the
(456 SCRA 224, 2005) omnibus motion rule. PHDI, et al. also opposed the
motion to dismiss their counterclaims on the ground
Forum shopping is a ground for summary dismissal that the causes of action in the two cases were
of both initiatory pleadings without prejudice to the unrelated. They asserted that the subject matter, causes
taking of appropriate action against the counsel or of action and the issues in the two cases were different.
party concerned. The RTC denied KEB's motion to dismiss the complaint
The counterclaims of the PHDI, et al., for and motion to dismiss the counterclaims.KEB filed its
moral and exemplary damages were merely answer to the counterclaims of the PHDI, et al., in the
permissive; hence, they were mandated to append second case.
thereto a certification of non-forum shopping. CA, in a joint decision, affirmed the RTC with
respect to the first case, but dismissed respondents’
counterclaims in the second case for forum-shopping.
FACTS: PHDI and Magno et al, filed a complaint in the
The CA declared that the counterclaims of the PHDI, et
RTC against Aum, a Korean National and president of
al., for moral and exemplary damages were merely
PHDI, and the Korea Exchange Bank (KEB). They
permissive; hence, they were mandated to append
alleged that through the machination of Aum, KEB
thereto a certification of non-forum shopping.
granted a $500,000.00 loan to the PHDI with the
condition that the said loan be deposited with the KEB
ISSUE: Whether the counterclaim in the second case
in the name of PHDI. Thereafter, the plaintiffs executed
should be dismissed for the absence of a certificate of
a real estate mortgage over their properties as security
non-forum shopping, and whether the first case should be
for the said loan.
dismissed for forum shopping
Under PHDI’s board resolution, only Aum and
YES. In interposing their counterclaim for set-
Mendoza were authorized signatories to all applications
off of the $160,000.00 against their loan of $500,000.00
for withdrawals from the said accounts. Aum withdrew
in the second case, as well as the counterclaims for
$160,000.00 from the account by forging Mendoza’s
moral damages, and exemplary damages, the
signature. He was made another withdrawal, leaving a
respondents thereby engaged in forum shopping.
balance of $163,000.00. Aum allegedly could not have
The general rule is that compliance with the
withdrawn said deposits without the KEB’s connivance.
certificate of forum shopping is separate from and
Aum's failure to heed demands for an accounting of the
independent of the avoidance of the act of forum
said withdrawals and for the restitution of the said
shopping itself. Forum shopping is a ground for
amounts constituted large scale estafa for which they
summary dismissal of both initiatory pleadings without
are liable for exemplary and moral damages. The KEB
prejudice to the taking of appropriate action against the
filed a Motion to Dismiss the complaint, which the trial
counsel or party concerned.
court denied. The KEB filed a petition for certiorari and
There is forum shopping when, between an
prohibition with the CA for the nullification of the
action pending before the court and another one, there
orders of the RTC.
exist:(a) identity of parties, or at least such parties as

MENDEZ, IVAN VIKTOR (2D, ’13)


represent the same interests in both actions; (b)
identity of rights asserted and relief prayed for, the
relief being founded on the same facts; and (c) the
identity of the two preceding particulars is such that
any judgment rendered in the other action will,
regardless of which party is successful, amount to res
judicata in the action under consideration.
There is forum shopping where a litigant sues
the same party against whom another action or actions
for the alleged violation of the same right and the
enforcement of the same relief is/are still pending. The
defense of litis pendentia in one case is a bar to the
other/others; and, a final judgment is one that would
constitute res judicata and thus would cause the
dismissal of the rest. Absolute identity of parties is not
required. It is enough that there is substantial identity
of parties.
Remedies
For failure to raise compulsory counterclaim
A compulsory counterclaim, or a cross-claim, not set up
shall be barred. (Sec. 2, Rule 9)
 This refers to a counterclaim defendant has at
the time of filing of the answer
Oversight, inadvertence, excusable neglect
When a pleader fails to set up a counterclaim or a cross-
claim through
(1) oversight,
(2) inadvertence,
(3) excusable neglect, or
(4) when justice requires,
He may, by leave of court, set up the counterclaim or
cross-claim by amendment before judgment. (Sec. 10,
Rule 11)
ANSWER TO COUNTERCLAIM
In general
An answer is a pleading in which a defending party sets
forth his defenses. (Sec. 4, Rule 6)
Period to plead
A counterclaim or cross-claim must be answered within
10 days from service. (Sec. 4, Rule 11)
REPLY
Defined and in general
A reply is a pleading, the office or function of which is to
deny, or allege facts in denial or avoidance of new
matters alleged by way of defense in the answer and
thereby join or make issue as to such new matters.
 A reply is the responsive pleading to an
answer, not to counterclaim or cross-claim.
 Not mandatory—If a party does not file such
reply, all the new matters alleged in the
answer are deemed controverted.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER41
 If the plaintiff wishes to interpose any claims
arising out of the new matters so alleged such
claims shall be set forth in an amended or
supplemental complaint. (Sec. 10, Rule 6)
When required
Challenge due to authenticity of documents
When an action or defense is founded upon a written
instrument, copied in or attached to the corresponding
pleading, the genuineness and due execution of the
instrument shall be deemed admitted unless the
adverse party
(1) specifically denies them, and
(2) sets forth what he claims to be the facts;
(3) under oath.
BUT the requirement of an oath does not apply when
(1) the adverse party does not appear to be a
party to the instrument or
(2) when compliance with an order for an
inspection of the original instrument is
refused. (Sec. 8, Rule 8)
CASENT REALTY DEV’T CORP v. PHILBANKING
CORPORATION
(2007)
When the defense in the answer is based on an
actionable document, a Reply specifically denying it
under oath must be made; otherwise the
genuineness and due execution of the document
will be deemed admitted.
FACTS: Philbanking Corporation (PhilBanking) filed a
complaint against Casent Realty Corporation (Casent)
before the RTC for collection on two promissory notes
assigned by Rare Realty Corporation. In its Answer,
Casent raised, among others, as defenses the Dacion en
Pago (Dacion) executed between petitioner and
respondent, and the Confirmation Statement issued by
respondent stating that petitioner had no loans with the
bank as of December 31, 1988. Petitioner then filed a
Motion for Judgment on Demurrer to the Evidence,
pointing out that the PhilBanking’s failure to file a Reply
to the Answer constituted an admission of the
genuineness and execution of said documents; and that
since the Dacion obliterated petitioner’s obligation
covered by the promissory notes, the bank had no right
to collect anymore.
The RTC ruled in favor of Casent and
dismissed the complaint.
On appeal, the CA found that under the Deed
of Assignment, respondent PhilBanking clearly had the
right to proceed against the promissory notes assigned
by Rare Realty.
ISSUE: Whether respondent’s failure to file a Reply and
deny the Dacion and Confirmation Statement under oath
constituted a judicial admission of the genuineness and
due execution of these documents

YES. When an action or defense is founded
upon a written instrument, copied in or attached to the
corresponding pleading as provided in the preceding
section, the genuineness and due execution of the
instrument shall be deemed admitted unless the
adverse party, under oath, specifically denies them, and
sets forth, what he claims to be the facts; but the
requirement of an oath does not apply when the
adverse party does not appear to be a party to the
instrument or when compliance with an order for an
inspection of the original instrument is refused.
Since respondent failed to file a Reply, in
effect, respondent admitted the genuineness and due
execution of said documents. This judicial admission
should have been considered by the appellate court in
resolving the demurrer to evidence.
Rule 8, Section 8 specifically applies to actions
or defenses founded upon a written instrument, and
provide the manner of denying it. It is more controlling
than Rule 6, Section 10 which merely provides the effect
of failure to file a Reply. Thus, where the defense in the
Answer is based on an actionable document, a Reply
specifically denying it under oath must be made;
otherwise, the genuineness and due execution of the
document will be deemed admitted. Since respondent
failed to deny the genuineness and due execution of the
Dacion and Confirmation Statement under oath, then
these are deemed admitted and must be considered by
the court in resolving the demurrer to evidence.
It must be noted, however, that admission of the
genuineness and due execution of the Dacion and
Confirmation Statement does not prevent the
introduction of evidence showing that the Dacion
excludes the promissory notes. Petitioner, by way of
defense, should have presented evidence to show that
the Dacion includes the promissory notes.
THIRD/FOURTH-PARTY COMPLAINT
Defined
A third (fourth, etc.)-party complaint is a claim that a
defending party may, with leave of court, file against a
person not a party to the action, called the third (fourth,
etc.)—party defendant, for
(1) contribution,
(2) indemnity,
(3) subrogation or
(4) any other relief, in respect of his opponent’s
claim. (Sec. 11, Rule 6)
NOTE: It is NOT proper to file a third-party complaint
against one who is already a party to the action, such as
against a plaintiff or a co-defendant. But a cross-claim
may be filed against them.
Remedies when denied
When a complaint is dismissed, the third-party
complaint is also dismissed. But if the plaintiff appeals
the dismissal, the defendant-third-party plaintiff must
also appeal to obtain affirmative relief.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER42
ANSWER TO THIRD/FOURTH-PARTY COMPLAINT
In general
A third (fourth, etc.)—party defendant may allege in his
answer
(1) his defenses,
(2) counterclaims,
(3) cross-claims,
(4) defenses that the third (fourth, etc.)—party
plaintiff may have against the original
plaintiff’s claim, or
(5) a counterclaim against the original plaintiff in
respect of the latter’s claim against the third-
party plaintiff, in proper cases.
(Sec. 13, Rule 6)
Time to plead
The same period as the answer to the complaint (Sec. 5,
Rule 11): within 15 days from service of summons.
EXTENSION OF TIME TO PLEAD
The court may extend the time to plead provided in
these Rules:
(1) Upon motion and
(2) on such terms as may be just.
Motion to extend period to plead
 Must be in writing, and before filed before the
lapse of period
 Time to plead can only be extended, no
shortened
The court may also, upon like terms, allow an answer or
other pleading to be filed after the time fixed by these
Rules. (Sec. 11, Rule 11)
 An order allowing the filing of a late answer or
other pleading is interlocutory, and therefore,
unappealable.
(Formal Requirements)
FILING AND SERVICE OF PLEADINGS,
MOTIONS AND ORDERS
Verification
General Rule: Pleadings NEED NOT be under oath,
verified or accompanied by affidavit.
Exception: when otherwise specifically
required by law or rule. The follow pleadings must be
verified:
 Petition to take deposition before action;
 Petition for relief from judgment;
 Appeal by Certiorari from CA to SC;
 Application for Preliminary Injunction or
Temporary Restraining Order;
 Application for Appointment of a Receiver;
 Petition for Certiorari, Prohibition, or
Mandamus;
 All pleadings of forcible entry and unlawful
detainer;

 Petition for appointment of general guardian;
 Petition of guardian for leave to sell or
encumber property of estate;
 Petition to declare competency of ward;
 Application for Writ of habeas corpus;
 Petition for change of name;
 Petition for voluntary dissolution of
corporation;
 Petition to correct entries in civil registry;
 Pleadings in Summary Procedure.
The following need not be verified but must be under
oath:
 Denial of genuineness and dues execution of
actionable document;
 Denial of allegations of usury;
 Motion to set aside order of default;
 Answer to written interrogatories;
 Answer to request for admission.
Affidavit of merit or supporting affidavit is required in
the following:
 Motion for summary judgment or opposition
thereto;
 Motion for new trial;
 Affidavit of third-party claim on levied
property;
 Proof required of redemptioner;
 Complaint with prayer for preliminary
attachment;
 Affidavit of third-party claim on attached
property;
 Motion to dissolve preliminary injunction on
ground of irreparable damage to movant while
adverse party can be fully compensated
 Complaint for replevin:
 Claim against estate of decedent.
How pleading is verified
A pleading is verified by an affidavit
(3) that the affiant has read the pleading and
(4) that the allegations therein are true and
correct of his personal knowledge or based on
authentic records.
NOTE: A pleading required to be verified shall be
treated as an unsigned pleading if it contains a
verification
(4) based on “information and belief,”
(5) upon “knowledge, information and belief,” or
(6) lacks a proper verification
Remedies
 The court may order the correction of the
pleading if lacking verification
 The court may also acct on the pleading
despite failure to properly verify if under the
circumstances, strict compliance with the
rules may be dispensed with
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER43
 The absence of verification may be corrected
by requiring an oath.
Certification against forum shopping
Forum shopping is the filing of multiple suits in different
courts, either simultaneously or successively, involving
the same parties, to ask the courts to rule on the same
or related causes and/or to grant the same or
substantially the same relief.
 It is an act of malpractice
 The same shall constitute direct contempt, a
cause for administrative sanctions, as well as a
ground for the summary dismissal of the case
with prejudice.
The certification against forum shopping is a sworn
statement by the plaintiff or principal party certifying in
an initiatory pleading:
(d) that he has not commenced any action or filed
any claim involving the same issues in any
court, tribunal or quasi-judicial agency and, to
the best of his knowledge, no such other
action or claim is pending therein;
(e) if there is such other pending action or claim,
a complete statement of the present status
thereof; and
(f) if he should thereafter learn that the same or
similar action or claim has been filed or is
pending, he shall report that fact within five
(5) days therefrom to the court wherein his
aforesaid complaint or initiatory pleading has
been filed.
NOTE: The certification must be executed by the party
NOT the counsel, unless the latter is authorized
specifically to do so. A certification signed by the
counsel is a defective certification and is a valid cause
for dismissal. BUT This rule must be liberally
interpreted:
 Failure of parties to sign because they were
abroad may be a reasonable cause to exempt
the parties from compliance with the
requirement
 Signing by one of the petitioners was held to
be substantial compliance
This requirement is mandatory in the filing of a
complaint and other initiatory pleading, but it is NOT
jurisdictional. The rule applies also to special civil
actions.
Initiatory pleadings include
(7) Original complaint;
(8) Permissive counterclaim;
(9) Cross-claim;
(10) Third (fourth, etc.)-party complaint;
(11) Complaint in intervention; and
(12) Petition or application wherein the party
asserts his claim or relief.

NOTE: No certification required for a compulsory
counterclaim since it is NOT an initiatory pleading.
Effect of failure to comply
(1) It shall NOT be curable by mere amendment of
the complaint or other initiatory pleading.
(2) BUT it shall be cause for the dismissal of the
case without prejudice, unless otherwise
provided, upon motion and after hearing.
Effect of the submission of a false certification or non-
compliance with any of the undertakings therein:
(1) Indirect contempt;
(2) Administrative and criminal actions.
Effect of willful and deliberate forum shopping by the
party or his counsel:
(1) ground for summary dismissal with prejudice
(2) direct contempt, and
(3) a cause for administrative sanctions. (Sec. 5,
Rule 7)
How to determine existence of forum shopping
The most important question is whether the elements
of litis pendentia are present OR whether a final
judgment in one case will result to res judicata.
The TEST is whether in the two or more cases
pending, there is:
(d) identity of parties;
(e) identity of rights or causes of action, and
(f) identity of reliefs sought.
AO-AS v. CA
(491 SCRA 353, 2006)
If the forum shopping is not considered willful and
deliberate, the subsequent cases shall be dismissed
without prejudice on one of the two grounds
mentioned above. However, if the forum shopping is
willful and deliberate, both (or all, if there are more
than two) actions shall be dismissed with prejudice.
FACTS: The Lutheran Church in the Philippines (LCP)
has local Lutheran congregations in three districts,
managed by seven directors—two for each district, and
one as the national president. Three districts were
added, thus a total of eleven (11) directors managed the
LCP. Controversies arose when the board of directors
terminated the services of Eclesio Hipe, business
mana45ger and corporate secretary.
The Ao-As group, former LCP directors and
officers, filed SEC-SICD Case No. 3587 against the
Batong group, the LCP directors at that time. The case
sought accounting and damages, and appointment of a
management committee. Its causes of action are: (a)
non-liquidation and/or non-accounting of the P64,000
proceeds of the La Trinidad land transaction; (b) on-
liquidation and/or unaccounting of P323,750 worth of
cash advances; (c) dissipation of the P4.8M general
fund; (d) non-registration of LCP’s land in Leyte; (e)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER44
severance of church-partnership with Lutheran Church-
Missouri Synod; and (f) transfer of corporate books.
Several other cases were also instituted
against the Batong group. An NLRC case questioned the
board resolutions which terminated employees, a Civil
Case questioned another board resolution authorizing
the transfer of corporate records, and another SEC-SICD
Case (No. 3524) questioned the legality of the 11
members of the LCP Board. Also, in another SEC Case
(No. 3556), a motion was made to appoint a
management committee. This motion was denied since
the same is an incident of SEC Case 3587.
After hearing in SEC Case 3587, the SEC-SICD
ordered the creation of a management committee and
declared all board resolutions passed by the LCP board
void ab initio.
The CA, however, ruled that the Ao-As group
were guilty of forum shopping.
ISSUE: Whether the Ao-As group is guilty of forum
shopping
NO. The six grounds originally relied upon by
the Ao-As group in SEC Case 3587 are entirely different
from the causes of action in the NRLC, Civil, and the two
other SEC cases. It is true that the causes of action in the
latter cases were included as additional grounds in Case
3587 for the appointment of properties and assets of
LCP which may have come into their possession during
their incumbency as officers and/or directors of LCP.
However, the creation of a management committee and
the prayer for accounting could not have been asked for
in the labor and forcible entry cases.
As regards the other SEC Cases, though, the
Ao-As group could have indeed prayed for the creation
of the management committee and the accounting of
the funds of the LCP. In fact, the petitioner in SEC-SICD
Case No. 3556 had prayed for the appointment of a
management committee in a motion which was
subsequent to the filing of SEC-SICD Case No. 3857. SEC
dismissed Case No. 3556 considering that it was one of
the incidents of Case No. 3857. In effect, it was denied
on the ground of litis pendentia.
However, this is not a case of willful and
deliberate forum shopping and, hence, the Case No.
3857 should not be dismissed. The reason for this is the
strict evidentiary requirement needed to grant a prayer
to create a management committee. The SEC has the
power to create a management committee when there
is “imminent danger of dissipation, loss, wastage or
destruction of assets or other properties or paralization
of business operations” It should be difficult to deduce
the "imminent danger of dissipation, loss, wastage or
destruction of assets or other properties" from an
allegation of a single act of previous misappropriation
or dissipation on the part of the Batong group. It is
often only when the previous misappropriations and
dissipations have become extensive and out of control
that it can be candidly said that there is an imminent
danger of further dissipation. The Ao-As group cannot
be faulted therefore for not praying for the creation of a
management committee in the first couple of cases it

filed with the SEC, and neither can they be faulted for
using the causes of action in previously filed cases to
prove their allegation of imminent dissipation. We
cannot rule out the possibility that the danger of
imminent dissipation of the corporate assets became
apparent only in the acts of the respondents subsequent
to the filing of the first two SEC cases.
As the present jurisprudence now stands,
forum shopping can be committed in three ways: (1)
filing multiple cases based on the same cause of action
and with the same prayer, the previous case not having
been resolved yet (litis pendentia); (2) filing multiple
cases based on the same cause of action and the same
prayer, the previous case having been finally resolved
(res judicata); and (3) filing multiple cases based on the
same cause of action but with different prayers
(splitting of causes of action, where the ground for
dismissal is also either litis pendentia or res judicata). If
the forum shopping is not considered willful and
deliberate, the subsequent cases shall be dismissed
without prejudice on one of the two grounds mentioned
above. However, if the forum shopping is willful and
deliberate, both (or all, if there are more than two)
actions shall be dismissed with prejudice.
Forum shopping certificate for a corporation
When plaintiff is a juridical person—this may be signed
by the properly authorized persons.
PAL v. FASAP
(479 SCRA 605, 2006)
Only individuals vested with authority by a valid
board resolution may sign the certificate of non-
forum shopping in behalf of a corporation. In
addition, proof of said authority must be attached.
Failure to provide a certificate of non-forum
shopping is sufficient ground to dismiss the petition.
Likewise, the petition is subject to dismissal if a
certification was submitted unaccompanied by
proof of the signatory’s authority.
FACTS: Flight Attendants and Stewards Association of
the Philippines (FASAP) and Bhagwani filed a complaint
for unfair labor practice, illegal suspension and illegal
dismissal against PAL and some of its officers before the
NLRC Labor Arbiter The Labor Arbiter upheld FASAP
and Bhagwani and, ordered PAL to pay them damages.
The NLRC modified the decision, setting aside the
finding that PAL was guilty of unfair labor practice, but
affirming the rest of the decision.
PAL filed a petition for certiorari with the CA,
accompanied by a Certification of Non-Forum Shopping
executed by Cesar Lamberte and Susan Del Carmen, VP
Human Resources and Asst. VP Cabin Services of PAL,
respectively, who are not parties to the case. The
certification was without proof that the two affiants had
authority to sign in behalf of petitioners. The CA
dismissed the case for failure to show the affiants’
authority to sign for PAL and for failure of the other
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER45
petitioners to join in the execution of the certification. A
motion for reconsideration was filed with a Secretary’s
Certificate attached evidencing that affiants Lamberte
and Del Carmen have been authorized by board
resolution to initiate and/or cause to be filed on behalf
of PAL petitions and pleadings in all labor-related cases.
A perusal of the Secretary’s Certificate
submitted reveals that the authority to cause the filing
of the petition was granted on February 15, 2000. The
petition, on the other hand, was filed on January 24,
2000 and was dismissed by the CA on January 31, 2000.
As to the other petitioners, it was argued that
they are mere nominal parties so that their failure to
execute the certification does not justify dismissal of the
petition. CA denied the motion.
ISSUE: Whether the certification of non-forum shopping
was properly executed
NO. The certification of non-forum shopping
attached was without proof of authority to sign. When a
motion for reconsideration was filed, a Secretary’s
Certificate was submitted as proof that the board of
directors of PAL had authorized the two to execute the
certificate. Nonetheless, the Court finds that this belated
submission is an insufficient compliance with the
certification requirement.
The required certification must be valid at the
time of filing of the petition. An invalid certificate
cannot be remedied by the subsequent submission of a
Secretary’s Certificate that vests authority only after the
petition had been filed. At the time the certification was
signed, Lamberte and Del Carmen were not duly
authorized and, consequently, their signing and
attestations were not in representation of PAL. This
effectively translates to a petition that was filed without
a certification at all as none was issued by PAL, the
principal party to the case.
Rule 65, Section 1, in relation to Rule 46,
Section 3 of the Rules of Court requires the certification
of non-forum shopping to be executed by the
corresponding petitioner or petitioners. As no
distinction is made as to which party must execute the
certificate, this requirement is made to apply to both
natural and juridical entities. When the petitioner is a
corporation, the certification should be executed by a
natural person. Furthermore, not just any person can be
called upon to execute the certification, although such a
person may have personal knowledge of the facts to be
attested to.
The power of a corporation to sue in any court
is generally lodged with the board of directors, who can
delegate the physical acts needed to sue, which may be
performed only by natural persons, to its attorneys-in-
fact by a board resolution, if not already authorized
under the corporate by-laws. Thus, only individuals
vested with authority by a valid board resolution may
sign the certificate of non-forum shopping in behalf of a
corporation. In addition, proof of said authority must be
attached. Failure to provide a certificate of non-forum
shopping is sufficient ground to dismiss the petition.
Likewise, the petition is subject to dismissal if a

certification was submitted unaccompanied by proof of
the signatory’s authority.
Filing and service defined
Filing—the act of presenting the pleading or other
paper to the clerk of court
Service—the act of providing a party with a copy of the
pleading or paper concerned.
 If any party has appeared by counsel, service
upon him shall be made upon his counsel or
one of them, unless service upon the party
himself is ordered by the court.
 Where one counsel appears for several parties,
he shall only be entitled to one copy of any
paper served upon him by the opposite side.
(Sec. 2, Rule 3)
Coverage
This Rule governs
(1) the filing of all pleadings and other papers,
and
(2) the service thereof
EXCEPT those for which a different mode of service is
prescribed (Sec. 1, Rule 13)
Papers required to be filed and served—
(1) judgments,
(2) resolutions,
(3) orders,
(4) pleading subsequent to the complaint,
(5) written motions,
(6) notices,
(7) appearances,
(8) demands,
(9) offers of judgment, or
(10) similar papers shall be filed with the court,
and served upon the parties affected
(Sec. 4, Rule 13)
Modes of service
There are two modes of service of pleadings, motions,
orders, judgments and other papers:
(1) personally, or
(2) by mail
In general, filing
The filing of pleadings, appearances, motions, notices,
orders, judgments and all other papers shall be made
(1) Personally—
By presenting the original copies thereof,
plainly indicated as such, personally to the
clerk of court
 the clerk of court shall endorse on
the pleading the date and hour of
filing.
(2) By mail—
By sending them by registered mail.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER46
 The date of the mailing of motions,
pleadings, or any other papers or
payments or deposits, as shown by
the post office stamp on the envelope
or the registry receipt, shall be
considered as the date of their filing,
payment, or deposit in court. The
envelope shall be attached to the
record of the case. (Sec. 3, Rule 13)
In general, service
Service of pleadings, motions, notices, orders,
judgments and other papers shall be made either
(1) personally or
(2) by mail. (Sec. 5, Rule 13)
Service of judgments, final orders, or resolutions.—
Judgments, final orders or resolutions shall be served
(1) personally
(2) by registered mail, or
(3) by publication, at the expense of the prevailing
party, in cases where a party was
a. summoned by publication, and
b. has failed to appear in the action.
(Sec. 9, Rule 13)
Personal
Personal service of the papers may be made
(1) by delivering personally a copy to the party or
his counsel,
(2) by leaving it in his office with his clerk or with
a person having charge thereof, or
(3) by leaving the copy, between 8am and 6pm, at
the party’s or counsel’s residence, if known,
with a person of sufficient age and discretion
then residing therein, in cases where
a. no person is found in his office,
b. his office is not known, or
c. he has no office, then. (Sec. 6, Rule
13)
Mail
Service by registered mail shall be made
(1) by depositing the copy in the office,
(2) in a sealed envelope,
(3) plainly addressed to the party or his counsel
at his office, if known, otherwise at his
residence, if known,
(4) with postage fully prepaid, and
(5) with instructions to the postmaster to return
the mail to the sender after ten (10) days if
undelivered.
Service by ordinary mail may be done if no registry
service is available in the locality of either the sender or
the addressee (Sec. 7, Rule 13)
Substituted service

Substituted service is made if service of pleadings,
motions, notices, resolutions, orders and other papers
cannot be made under the two preceding sections, the
office and place of residence of the party or his counsel
being unknown.
Substituted service is done
(1) by delivering the copy to the clerk of court,
with proof of failure of both personal service
and
(2) service by mail.
The service is complete at the time of such delivery. (Sec.
8, Rule 13)
Priority
Whenever practicable, the service and filing of
pleadings and other papers shall be done personally.
 A resort to other modes must be accompanied
by a written explanation why the service or
filing was not done personally.
 Exception: Papers emanating from the court.
 A violation of this Rule may be cause to
consider the paper as not filed. (Sec. 11, Rule
13)
Upon party in default (Sec. 3, Rule 9)
A defending party shall be declared in default when
(1) Ground: He fails to answer within the time
allowed therefor, the court shall,
(2) The claiming party files a motion to declare
the defending party in default, furnishing
proof of failure to answer
(3) Said party gives notice of such motion to the
defending party,
The court shall proceed to render judgment granting
the claimant such relief as his pleading may warrant,
 unless the court in its discretion requires the
claimant to submit evidence.
 Such reception of evidence may be delegated
to the clerk of court. (1a, R18)
(a) Effect of order of default.—A party in default shall be
entitled to notice of subsequent proceedings but NOT to
take part in the trial.
(b) Relief from order of default.—A party declared in
default may at any time after notice thereof and before
judgment file a motion under oath to set aside the order
of default upon proper showing that his failure to
answer was due to fraud, accident, mistake or excusable
negligence and that he has a meritorious defense. In
such case, the order of default may be set aside on such
terms and conditions as the judge may impose in the
interest of justice.
(c) Effect of partial default.—When a pleading asserting
a claim states a common cause of action against several
defending parties, some of whom answer and the
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER47
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.
(d) Extent of relief to be awarded.—A judgment
rendered against a party in default shall not exceed the
amount or be different in kind from that prayed for nor
award unliquidated damages.
(e) Where no defaults allowed.—If the defending party
in an action for annulment or declaration of nullity of
marriage or for legal separation fails to answer, the
court shall order the prosecuting attorney to investigate
whether or not a collusion between the parties exists,
and if there is no collusion, to intervene for the State in
order to see to it that the evidence submitted is not
fabricated. (Sec. 3, Rule 9)
Completion of service
Personal service—
 upon actual delivery
Service by ordinary mail—
 upon the expiration of ten (10) days after
mailing, unless the court otherwise provides.
Service by registered mail—
 upon actual receipt by the addressee, or
 after five (5) days from the date he received
the first notice of the postmaster, whichever
date is earlier. (Sec. 10, Rule 13)
Proof of filing and service
The filing of a pleading or paper shall be proved by
Personal service
(1) its existence in the record of the case;
(2) the written or stamped acknowledgment of its
filing by the clerk of court on a copy of the
same, if it is not in the record, but is claimed to
have been filed personally;
Registered mail
(1) by the registry receipt and
(2) by the affidavit of the person who did the
mailing, containing
a. a full statement of the date and place
of depositing the mail in the post
office in a sealed envelope addressed
to the court,
b. with postage fully prepaid, and
c. with instructions to the postmaster
to return the mail to the sender after
ten (10) days if not delivered. (Sec.
12, Rule 13)
The service of a pleading or paper shall be proved by
Personal service
(1) written admission of the party served,

(2) the official return of the server, or
(3) the affidavit of the party serving, containing a
full statement of the date, place and manner of
service.
Ordinary mail
(1) affidavit of the person mailing of facts
showing compliance with section 7 of this
Rule.
 Service by ordinary mail may be
done if no registry service is
available in the locality of either the
sender or the addressee (Sec. 7, Rule
13)
Registered Mail—
(1) such affidavit and
(2) the registry receipt issued by the mailing
office.
 NOTE: The registry return card shall be filed
immediately upon its receipt by the sender, or
in lieu thereof of the unclaimed letter together
with the certified or sworn copy of the notice
given by the postmaster to the addressee. (Sec.
13, Rule 13)
Lis pendens
A notice of lis pendens may be recorded in the office of
the registry of deeds of the province in which the
property is situated
(1) by the plaintiff and the defendant;
(2) in an action affecting the title or the right of
possession of real property,
(3) when affirmative relief is claimed in the
answer,
Said notice shall contain
(1) the names of the parties
(2) the object of the action or defense, and
(3) a description of the property in that province
affected thereby.
Effects
(1) Constructive notice to a purchaser or
encumbrancer from the time of filing such
notice for record.
(2) Is notice only against the parties designated
by their real names.
Cancellation
The notice of lis pendens hereinabove mentioned may
be cancelled
(1) only upon order of the court,
(2) after proper showing that
a. the notice is for the purpose of
molesting the adverse party, or
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER48
b. that it is not necessary to protect the
rights of the party who caused it to
be recorded. (Sec. 14, Rule 13)
AMENDED AND SUPPLEMENTAL PLEADINGS
Amendments
In general
Pleadings may be amended
(1) by adding or striking out an allegation or the
name of any party, or
(2) by correcting a mistake in the name of a party
or a mistaken or inadequate allegation or
description in any other respect
Purpose: So that the actual merits of the controversy
may speedily be determined, without regard to
technicalities, and in the most expeditious and
inexpensive manner.
Liberality
BARFEL DEV’T. CORP v. CA
(223 SCRA 268)
As a general policy, liberality in allowing
amendments is greatest in the early stages of a law
suit, decreases as it progresses and changes at
times to a strictness amounting to a prohibition.
This is further restricted by the condition that the
amendment should not prejudice the adverse party
or place him at a disadvantage.
FACTS: Barfel sold to Reginas two parcels of land with
two houses erected thereon in Ayala Alabang,
stipulating that the Barfel will apply the payment of the
cash portion of the purchase price to the removal of any
and all liens on the properties. The contract stated that
apart from a BPI mortgage and the Deed of Restrictions
annotated at the back of the title, the subject property
was free from all liens. Reginas made the downpayment
upon signing the agreement.
It was later discovered that there was
apparently a second mortgage with the PISO/Central
Bank. Upon this information, Victor Barrios assured the
buyer that the second mortgage has been reduced and
that he will submit the necessary documents to support
a legal and valid acceptable arrangement for the release
of such mortgage. Thereafter, the PSB granted Reginas
loan, which again subjected aforesaid properties to a
mortgage. PSB now promises to pay directly to BPI
from the proceeds of the loan and pay the sellers the
purchase price. The latter conformed to the
arrangement.

Given the prior assurance of a workable
arrangement regarding the Central Bank mortgage, the
buyers now manifested its willingness to pay P2M
ahead of the proceeds for the PSB loan.
Notwithstanding such negotiations however, the sellers
here are in gross and evident bad faith and malicious
breach of contract for they have failed to comply with
the obligation to release the second mortgage. BPI
further averred that the sellers actually disauthorized
them to consummate the transaction despite previous
arrangements.
Reginas and Zaragoza filed a complaint for
specific performance and damages against Barfel and
the Spouses Barrios. Pre-trial was conducted and both
parties presented evidence.
During Barfel’s presentation, Reginas filed a
motion for leave to file an amended complaint and
motion to admit the same. The amendment sought to
implead PISO bank as additional party defendant and
compel it to accept payment of the existing second
mortgage from Reginas, since no complete relief can be
had unless the second mortgage is released.
Barfel opposed. The RTC admitted the
amended complaint. The CA sustained the lower
court’s order saying that the amendment was made
without intent to delay the action. The essence of
liberal construction was accorded by the courts.
ISSUE: Whether the amended complaint should be
allowed
NO. The amendment was made with intent to
delay the action and substantially alters the cause of
action of Reginas and the defense of Barfel. After the
case is set for hearing, substantial amendments may be
made only upon leave of court. Such leave may be
refused if it appears that the motion was made with
intent to delay the action or that the cause of action or
defense is substantially altered. (Sec. 3, Rule 10)
The amendment sought by private
respondents, which is to include a new party defendant
at a late stage in the proceeding, is not a formal but a
substantial one. Private respondents will have to
present additional evidence on the PISO second
mortgage. The effect would be to start trial anew with
the parties recasting their theories of the case. The
correct amount of the second mortgage owed by
petitioners to PISO bank (apparently a controverted
point), would have to be litigated and this could be time
consuming.
As a general policy, liberality in allowing
amendments is greatest in the early stages of a law suit,
decreases as it progresses and changes at times to a
strictness amounting to a prohibition. This is further
restricted by the condition that the amendment should
not prejudice the adverse party or place him at a
disadvantage.
Form
When any pleading is amended, the following shall be
filed:
(1) a new copy of the entire pleading,
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER49
(2) incorporating the amendments, which shall be
indicated by appropriate marks,. (Sec. 7, Rule
13)
Effect
An amended pleading supersedes the pleading it
amends.
 However, admissions in superseded pleadings
may be received in evidence against the
pleader; and
 Claims or defenses alleged therein not
incorporated in the amended pleading shall be
deemed waived. (Sec. 8, Rule 10)
Kinds
Formal amendment
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 so no prejudice is caused thereby to
the adverse party. (Sec. 4, Rule 10)
Substantial amendments
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. (Sec. 2, Rule 10)
Matter of discretion
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.
 Substantial amendments may be made only
(1) upon motion filed in court, and
(2) after notice to the adverse party, and
an opportunity to be heard. (Sec. 3,
Rule 10)
To conform to evidence
Amendment to conform to evidence
Issues not raised by pleadings may be deemed as if they
were raised:
(1) When issues are not raised by the pleadings,
and
(2) They are tried with the express or implied
consent of the parties
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
(1) upon motion of any party
(2) at any time, even after judgment;
Failure to amend
Failure to amend does not affect the result of the trial of
these issues.
Amendment to authorize presentation of evidence
This amendment may be made
 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 substantial justice will be served
thereby. The court may grant a continuance to
enable the amendment to be made. (Sec. 5,
Rule 10)
SWAGMAN HOTELS & TRAVEL, INC. v. CA
(2008)
The curing effect under Section 5 of Rule 10 of the
1997 Rules of Civil Procedure is applicable only if a
cause of action exists at the time the complaint is
filed, but the complaint is defective for failure to
allege the essential facts. A complaint whose cause
of action has not yet accrued cannot be cured or
remedied by an amended or supplemental pleading
alleging the existence or accrual of a cause of action
while the case is pending.
FACTS: Swagman Hotels and Travel, Inc., obtained from
respondent Neal B. Christian loans evidenced by three
promissory notes dated 1997, each in the amount of
$50,000 payable after three years (200) from its date
with a 15% interest per annum payable every three
months. Later on, Christian informed the Swagman that
he was terminating the loans and demanded from the
latter payment in the total amount of $150,000 plus the
unpaid interests of $13,500.
In 1999, Christian filed a complaint for the
unpaid loans, alleging that petitioner, instead of paying
the 15% monthly interest, started paying only 6%.
Swagman filed an Answer, raising as defense the lack of
cause of action of the principal obligations because the
three promissory notes were not yet due and
demandable.
The trial court ruled that the first two
promissory notes were already due and demandable
and ordered Swagman to pay the amount of the checks
plus 6% interest. It ruled that although at the time of
the complaint, the notes were not yet due and
demandable, it was cured when they became due
during the trial.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER50
ISSUE: Whether or not lack of cause of action may be
cured by evidence presented during the trial and
amendments to conform to the evidence
NO. Amendments of pleadings are allowed
under Rule 10 in order that the actual merits of a case
may be determined in the most expeditious and
inexpensive manner without regard to technicalities,
and that all other matters included in the case may be
determined in a single proceeding, thereby avoiding
multiplicity of suits. Section 5 thereof applies to
situations wherein evidence not within the issues
raised in the pleadings is presented by the parties
during the trial, and to conform to such evidence the
pleadings are subsequently amended on motion of a
party.
The curing effect under Section 5 is applicable
only if a cause of action in fact exists at the time the
complaint is filed, but the complaint is defective for
failure to allege the essential facts.
It thus follows that a complaint whose cause of
action has not yet accrued cannot be cured or remedied
by an amended or supplemental pleading alleging the
existence or accrual of a cause of action while the case
is pending. Such an action is prematurely brought and
is, therefore, a groundless suit, which should be
dismissed by the court upon proper motion seasonably
filed by the defendant. The underlying reason for this
rule is that a person should not be summoned before
the public tribunals to answer for complaints which are
immature.
Remedies
Periods to answer
Amendments
Amendment as a matter of right—
The defendant shall answer the same within fifteen (15)
days after being served with a copy thereof.
Amendment not a matter of right—
The defendant shall answer within ten (10) days from
notice of the Order admitting the same.
 An answer earlier filed may serve as the
answer to the amended complaint, if no new
answer is filed.
Applicability
This Rule shall apply to the answer to
(1) an amended counterclaim,
(2) amended cross-claim,
(3) amended third (fourth, etc.)— party
complaint, and
(4) amended complaint-in-intervention. (Sec. 3,
Rule 11)
Supplemental complaint
This may be answered within ten (10) days from notice
of the order admitting the same, unless a different
period is fixed by the court.

 If no new or supplemental answer is filed—
The answer to the complaint shall serve as the
answer to the supplemental complaint. (Sec. 7,
Rule 11)
Supplemental pleadings
A supplemental pleading setting forth transactions,
occurrences or events which have happened since the
date of the pleading sought to be supplemented may be
permitted
(1) upon motion of a party
(2) reasonable notice and
(3) upon such terms as are just
Period to answer
The adverse party may plead thereto within ten (10)
days from notice of the order admitting the
supplemental pleading. (Sec. 6, Rule 11)
Distinguished from amended pleadings
SHOEMART, INC. v. CA
(190 SCRA 189, 1990)
A supplemental pleading supplies deficiencies in
aid of an original pleading not to entirely substitute
the latter.
FACTS: Anson Emporium Corp. (Anson) leased from
Shoemart portion of a building for two years. The lease
stipulated that if after termination of the lease,
Shoemart permits Anson to remain, the lease shall be
understood to be on a month to month basis in the
absence of a contrary written agreement.
Anson remained in possession after the two-
year period but on an increased rental. Four years later,
Shoemart terminated the lease and gave notice to
Anson to vacate, which the latter refused. A complaint
for ejectment was filed against him with the MTC.
Shoemart asked for, and was granted, leave to file
supplemental complaint which alleged that the rental of
all tenants of the premises had been increased to
P45,142.00, which Anson refused to pay. Anson alleged
that Shoemart’s claim for increased rentals has been
barred. MTC ruled for Anson.
The RTC reversed the judgment and ordered
Anson to vacate the premises and to pay P34,622 and
P45,142 respectively for the two lease agreements, with
1% interest from October 1977. Shoemart filed a
motion for reconsideration of the award of damages,
saying it is less than what is really due. RTC granted this
motion.
CA affirmed the ejectment of respondent but
reduced the damages awarded by stating that the 1%
interest will start to run from October 1987. Private
respondent sought the correction of the clerical error
regarding date of the effectivity of the payment for
damages. Said motion was granted
Petitioner's motion for reconsideration
seeking the reinstatement of the RTC’s decision was
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER51
denied. CA ruled that petitioner’s claim for damages is
limited to the P45,142 alleged in the supplemental
complaint.
ISSUE: Whether the subsequently amended complaint in
the case at bar renders the original complaint
abandoned or inexistent
NO. Petitioner's recovery is not limited by the
amount of P45,142.00 prayed for in the supplemental
complaint as increased rental. This is not a case of a
complaint subsequently amended, the effect of which is
to render the original complaint abandoned or
inexistent and let the amendment take form as the sole
substitute upon which the case stands for trial.
A supplemental complaint or pleading
supplies deficiencies in aid of an original pleading, not
to entirely substitute the latter. A perusal of the original
complaint shows that it prayed, among others, that the
private respondent be ordered to pay petitioner
P34,622.00 and all other rentals and charges that may
be due until respondent vacates the premises.
Petitioner, therefore, did not foreclose its right to
demand increased rentals that may be recovered
expressed in terms of the fair rental value or the
reasonable compensation for the use and occupation of
the real property. Unlike in an amended complaint, the
original complaint exists side by side with the
supplemental complaint.
The supplemental pleading merely served to
aver supervening facts which were then not ripe for
judicial relief when the original pleading was filed.
Supplemental pleadings are meant to supply
deficiencies in aid of the original pleading and not to
dispense with the latter.
The failure of petitioner to amend its
complaint or file additional supplemental pleadings to
allege subsequent rental increases is of no moment.
In view of the failure of private respondent to
object to the presentation of evidence showing that
there were four (4) rental increases on the subject
premises although three (3) of said increases are not
alleged in the pleadings, judgment may be rendered
validly as regards the said increases or issues which
shall be considered as if they have been raised in the
pleadings. As found by the RTC, private respondent did
not controvert the evidence submitted by petitioner in
determining the fair rental value of the premises
including those imposed on all other tenants of
petitioner occupying the Makati Arcade. If, indeed, the
rental increases were unconscionable, respondent
should have at least presented evidence to substantiate
its claim. The burden of proof to show that the rental
demanded is unconscionable or exorbitant rests upon
private respondent as the lessee.
Private respondent failed to discharge its
burden when it omitted to present any evidence at all
on what it considers is the fair rental value other than
what were submitted by petitioner. As a matter of fact,
all the other tenants did not question the
reasonableness of the rental increases

BILL OF PARTICULARS/INTERVENTION
Bill of particulars
Also called bill of definite statement
 It is a motion that applies to any pleading which in
the perception of the movant contains ambiguous
allegations (Riano)
 If a complaint makes out a cause of action, the
ambiguity in some allegations or failure to allege
facts with sufficient particularity does not justify
the filing of a motion to dismiss. The proper
remedy is to file a motion for bill of particulars.
Office and Purpose
 To seek an order from court directing the
pleader to submit a bill of particulars which
avers matters with “sufficient definiteness or
particularity” to enable the movant to file his
responsive pleading. (Sec. 1, Rule 12)
 “The proper preparation of an intelligent
answer requires information as to the precise
nature, character, scope and extent of the
cause of action in order that the pleader may
be able to squarely meet the issues raised,
thereby circumscribing them within
determined confines and preventing surprises
during trial, and in order that he may set forth
his defenses which may not be so readily
availed of if the allegation controverted are
vague, indefinite, uncertain or are mere
general conclusions” (Virata v.
Sandiganbayan)
 “The proper office of a bill of particulars is to
inform the opposite party and the court of the
precise nature and character of the ccause of
action.” (Tan v. Sandiganbayan)
VIRATA v. SANDIGANBAYAN
(221 SCRA 52, 1993)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER52
Object and purpose of a Bill of particular:
(1) Amplify or limit a pleading
(2) Specify more minutely and particularly a
claim or defense set up and pleaded in
general terms
(3) Give information, not contained in the
pleading, to the opposite party and the
court as to the precise nature, character,
scope, and extent of the cause of action or
defense relied on by the pleader
(4) Apprise the opposite party of the case
which he has to meet
(5) Define, clarify, particularize, and limit or
circumscribe the issues in the case
(6) Expedite the trial, and assist the court
(7) Prevent injustice or do justice in the case
when that cannot be accomplished
without the aid of such a bill.
(8) Proper preparation of a responsive
pleading
(9) Proper preparation of an intelligent
answer.
FACTS: Cesar Virata was among the forty-four co-
defendants of Benjamin (Kokoy) Romualdez in a
complaint filed by the Sandiganbayan. The complaint
was amended thrice, the last amendment thereto is
denominated as Second Amended Complaint. The
plaintiff alleged four actionable wrongs against
petitioner: (1) his participation in the reduction of the
electric franchise tax and the tariff duty of fuel oil
imports by all public utilities (2) his participation in the
the approval of the '3-Year Program for the Extension of
MERALCO's Services to Areas’ (3) his participation in
the formation of Erectors Holdings, Inc. and (4) his
acting as a dummy of corporations controlled by
Romualdez and Marcos.
Petitioner moved to dismiss the case on
various grounds including the failure of the expanded
Second Amended Complaint to state a cause of action.
The motion was denied by Sandiganbayan. SC affirmed
the Sandiganbayan, and advised petitioner that if he
perceive some ambiguity or vagueness therein, the
remedy is not a motion to dismiss, but rather for a bill
of particulars.
Petitioner filed a motion for bill of particulars,
claiming that the general and sweeping allegations of
the Second Amended Complaint and the purported
illegal acts imputed to them as well as the alleged
causes of actions are vague and ambiguous. They are
not averred with sufficient definiteness or particularity
as would enable defendant Virata to properly prepare
his answer or responsive pleading. Sandiganbayan
partially granted the motion; of the four actionable
wrongs, it granted the motion with respect only to the
fourth, since the other three actionable wrongs are not
squarely under the Tantuico case.
Not satisfied with the partial grant of the
motion, petitioner filed the instant petition under Rule
65 of the Revised Rules of Court.

ISSUE: Whether the Motion for Bill of Particulars should
be granted totally
YES. It was grave error for the Sandiganbayan
to state that "[a]lleging the specific nature, character,
time and extent of the phrase 'active collaboration'
would be a mere surplus age and would not serve any
useful purpose" for precisely, without any amplification
or particularization thereof, the petitioner would be
hard put in meeting the charges squarely and in
pleading appropriate defenses. Nor can We accept the
public respondent's postulation that "any question as to
the validity or legality of the transactions involved in
the charges against defendant-movant is irrelevant and
immaterial in the resolution of the instant incident,
inasmuch as the same is a matter of defense which shall
have its proper place during the trial on the merits, and
on the determination of the liability of defendant-
movant after the trial proper." This is absurd, for how
may the petitioner set up a defense at the time of trial if
in his own answer he was not able to plead such a
defense precisely because of the vagueness or
indefiniteness of the allegations in the complaint?
Unless he pleads the defense in his answer, he may be
deprived of the right to present the same during the
trial because of his waiver thereof.
Since the issues have not as yet been joined
and no evidence has so far been adduced by the parties
the Sandiganbayan was in no position to conclude that
the matters which the. petitioner seeks are "within his
intimate or personal knowledge."
It is the office or function, as well as object or
purpose, of a bill of particulars to (1) amplify or limit a
pleading, (2) specify more minutely and particularly a
claim or defense set up and pleaded in general terms,
(3) give information, not contained in the pleading, to
the opposite party and the court as to the precise
nature, character, scope, and extent of the cause of
action or defense relied on by the pleader, and (4)
apprise the opposite party of the case which he has to
meet, (a) to the end that the proof at the trial may be
limited to the matters specified, and (b) in order that
surprise at, and needless preparation for, the trial may
be avoided, and (c) that the opposite party may be
aided in framing his answering pleading and preparing
for trial. It has also been stated that it is the function or
purpose of a bill of particulars to (5) define, clarify,
particularize, and limit or circumscribe the issues in the
case, to (6) expedite the trial, and assist the court. A
general function or purpose of a bill of particulars is to
(7) prevent injustice or do justice in the case when that
cannot be accomplished without the aid of such a bill.
Moreover, the phrase "to enable him properly
to prepare his responsive pleading . . ." in Section 1 of
Rule 12 implies not just the opportunity to (8) properly
prepare a responsive pleading but also to (9) prepare
an intelligent answer. The proper preparation of an
intelligent answer requires information as to the
precise nature, character, scope and extent of the cause
of action in order that the pleader may be able to
squarely meet the issues raised, thereby circumscribing
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER53
them within determined confines and, preventing
surprises during the trial, and in order that he may set
forth his defenses which may not be so readily availed
of if the allegations controverted are vague, indefinite,
uncertain or are mere general conclusions.
What is beyond its scope
 “The complaint for which a bill for a more
definite statement is sought need only inform
the defendant of the essential (or ultimate)
facts to enable him, the defendant, to prepare
his answer… Any more ‘particulars’ in that
event would be evidentiary in character, which
must be adduced at the trial proper.” (Tan v.
Sandiganbayan)
Notes:
 If the purpose is for preparation for
trial, the appropriate remedy is to
avail discovery procedures or pre-
trial.
 It is erroneous to require disclosure
of evidence relied upon by the
adverse party in a motion for bill of
particulars.
 A motion for bill of particulars to
require a pleader to set forth matters
showing jurisdiction of a court to
render its judgment is not proper.
 To clarify allegations in the pleading
TAN v. SANDIGANBAYAN
(180 SCRA 34, 1989)
The complaint for which a bill for a more definite
statement is sought, need only inform the
defendant of the essential (or ultimate) facts to
enable the defendant to prepare an intelligent
answer.
FACTS: The PCGG filed a complaint against the twenty-
two petitioners, together with the late Ferdinand
Marcos, Mrs. Imelda Marcos, Don Ferry, and Federico
Moreno, praying, among others, for the return and
reconveyance of all funds and other property impressed
with constructive trust in favor of PCGG and the Filipino
people, as well as funds and other property acquired by
Defendants by abuse of right and power and through
unjust enrichment.
Subsequently, the PCGG filed an Expanded
Complaint. In essence, these are what the PCGG says:
1. The petitioner Lucio Tan was Mr. Marcos'
business partner;
2. Through undue influence, coercion, and abuse
of light they acquired shareholdings from
various firms, and built a business empire
therefrom;
3. The remaining petitioners acted as their
"dummies, nominees, or agents";

4. Together with the Marcoses, they maneuvered
their way into these firms and acquired
control thereof;
5. The same were accomplished through
unacceptable machinations such as insider
trading and similar acts, in violation of
existing laws;
6. They also unjustly enriched the petitioners at
the expense of the Republic of the Philippines
and the Filipino people.
Notwithstanding this, the twenty-two
petitioners moved for a bill of particulars.The
respondent Court denied the petitioners' motion, and
denied reconsideration. The petitioners submit that the
PCGG's averments are made up of bare generalizations,
presumptuous conclusions of fact and law, and plain
speculations, for which a motion for a more definite
statement or for a bill of particulars allegedly lies.
The Sandiganbayan's decided that Paragraphs
14 to 15, inclusive of the Expanded Complaint, had
already supplied or provided the specifications and
particulars theretofore lacking in the original
Complaint.
ISSUE: Whether the Motion for Bill of Particulars should
be granted
NO. The foregoing allegations of the PCGG are
actionable wrongs that are proper for a complaint. The
PCGG's Complaint/Expanded Complaint is garbled in
many respects, but this is no excuse for sloth on the part
of the petitioners. The Complaint/Expanded Complaint
is complete enough to perish fears of the PCGG pulling a
surprise subsequently.
It is not the office of a bill of particulars to
supply material allegations necessary to the validity of a
pleading, or to change a cause of action or defense
stated in the pleading, or to state a cause of action or
defense other than the one stated. Also it is not the
office or function, or a proper object, of a bill of
particulars to set forth the pleader's theory of his cause
of action or a rule of evidence on which he intends to
rely, or to furnish evidential information whether such
information consists of evidence which the pleader
proposes to introduce or of facts which constitute a
defense or offset for the other party or which will
enable the opposite party to establish an affirmative
defense not yet pleaded. The PCGG's complaint (as
amended) does set out allegations, however confusingly
put in print, which, interrelated to one another, are
enough to support a formal civil charge. If the
petitioners are not aware of the PCGG's asseverations,
the remedy is to deny the same in their answer for lack
of "knowledge or information sufficient to form a belief
as to the truth of the said averments. They cannot,
however, demand for any more particulars without
actually making the PCGG expose its evidence
unnecessarily before the trial stage.
When to file
It should be filed before a responsive pleading.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER54
 If directed to a complaint, 15 days after
service of summons
 If directed to a counterclaim, 10 days from
service of the counterclaim
 If directed to a reply, 10 days from the service
of said reply
Requisites
The motion shall point out
(a) defects complained of;
(b) paragraphs wherein they are contained; and
(c) the details desired.
Action of the court (Sec. 2, Rule 12)
Upon receipt of the motion, which the clerk must
immediately bring to the court’s attention, the court
may
(a) deny the motion outright;
(b) grant the motion outright; or
(c) hold a hearing on the motion.
Compliance with order (Sec. 3, Rule 12)
If the motion is granted, in whole or in part,
 within 10 days from notice of the order,
 unless court fixes a different period
If order is not obeyed, or in case of insufficient
compliance, the court may
(a) order the striking out of
a. the pleading, or
b. portions thereof, or
(b) make such orders as it deems just
INTERVENTION
Intervention is the legal proceeding by which a person
who is not a party to the action is permitted by the
court to become a party by intervening in a pending
action after meeting the conditions and requirements
set by the Rules of Court.
 It is a remedy by which a third party becomes
a litigant therein to enable him to protect or
preserve a right or interest which may be
affected by such proceeding.
 It is never and independent proceeding, but is
ancillary and supplemental to an existing
litigation.
 It cannot alter the nature of the action and the
issues already joined.
 It is neither compulsory nor mandatory but
only optional and permissive
Legal interest—
One that is actual and material, direct and of an
immediate character, not merely contingent or
expectant so that the intervenor will either gain or lose
by the direct legal operation of the judgment
Requisites; Who may intervene—

(1) There must be a motion for intervention filed
before rendition of judgment by the trial court;
and
(2) The movant must be a person who has a legal
interest
a. in the matter in litigation,
b. in the success of either of the parties,
or an interest against both, or
c. is so situated as to be adversely
affected by a distribution or other
disposition of property in the
custody of the court or of an officer
thereof.
(3) The intervention must not unduly delay or
prejudice the adjudication of the rights of the
original parties and that the intervenor’s
rights may not be fully protected in a separate
proceeding. (Sec. 1, Rule 19)
He may, with leave of court, be allowed to intervene in
the action.
The court shall consider
(1) whether or not the intervention will unduly
delay or prejudice the adjudication of the
rights of the original parties, and
(2) whether or not the intervenor’s rights may be
fully protected in a separate proceeding. (Sec.
1, Rule 19)
Time to intervene—
The motion to intervene may be filed at any time before
rendition of judgment by the trial court.
 A copy of the pleading-in-intervention shall be
attached to the motion and served on the
original parties. (Sec. 2, Rule 19)
Pleadings-in-intervention—
The intervenor shall file a complaint-in-intervention if
he asserts a claim against either or all of the original
parties.
He shall file an answer-in-intervention if he
unites with the defending party in resisting a claim
against the latter. (Sec. 3, Rule 19)
Answer to complaint-in-intervention—
The answer to the complaint-in-intervention shall be
filed within fifteen (15) days from notice of the order
admitting the same, unless a different period is fixed by
the court. (Sec. 4, Rule 19)
Ancillary to pending action
SAW v. CA
(195 SCRA 740)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER55
Intervention is "an act or proceeding by which a
third person is permitted to become a party to an
action or proceeding between other persons, and
which results merely in the addition of a new party
or parties to an original action, for the purpose of
hearing and determining at the same time all
conflicting claims which may be made to the
subject matter in litigation. It is not an
independent proceeding, but an ancillary and
supplemental one which, in the nature of things,
unless otherwise provided for by the statute or
Rules of Court, must be in subordination to the
main proceeding. It may be laid down as a general
rule that an intervenor is limited to the field of
litigation open to the original parties.
FACTS: Equitable Banking Corporation (Equitable) filed
a collection suit with preliminary attachment against
Freeman, Inc. (Freeman) and Saw Chiao Lian, its
President and General Manager. The petitioners (Ruben
Saw, et al.) moved to intervene, alleging that (1) the
loan transactions between Chiao Lian and Equitable
were not approved by the stockholders representing at
least 2/3 of corporate capital; (2) Chiao Lian had no
authority to contract such loans; and (3) there was
collusion between the officials of Freeman and
Equitable in securing the loans. The motion to intervene
was denied, and the petitioners appealed to the Court of
Appeals.
Meanwhile, Equitable and Chiao Lian entered
into a compromise agreement which was approved by
the lower court. However, it was not complied with, so
Equitable secured a writ of execution, and two lots
owned by Freeman, Inc. were levied upon and sold at
public auction.
The CA sustained the denial of the motion for
intervention, holding that the compromise agreement
will not necessarily prejudice petitioners whose rights
to corporate assets are at most inchoate, prior to the
dissolution of Freeman, and that intervention under
Sec. 2, Rule 12 of the Revised Rules of Court is proper
only when one's right is actual, material, direct and
immediate and not simply contingent or expectant.
ISSUE: Whether petitioners may be allowed to intervene
in the action
NO. To allow intervention, [a] it must be
shown that the movant has legal interest in the matter
in litigation, or otherwise qualified; and [b]
consideration must be given as to whether the
adjudication of the rights of the original parties may be
delayed or prejudiced, or whether the intervenor's
rights may be protected in a separate proceeding or not.
Both requirements must concur as the first is not more
important than the second.
The interest which entitles a person to
intervene in a suit between other parties must be in the
matter in litigation and of such direct and immediate
character that the intervenor will either gain or lose by
the direct legal operation and effect of the judgment.

Here, the interest, if it exists at all, of petitioners-
movants is indirect, contingent, remote, conjectural,
consequential and collateral. While a share of stock
represents a proportionate or aliquot interest in the
property of the corporation, it does not vest the owner
thereof with any legal right or title to any of the
property, his interest in the corporate property being
equitable or beneficial in nature. Shareholders are in no
legal sense the owners of corporate property, which is
owned by the corporation as a distinct legal person.
Intervention is "an act or proceeding by which
a third person is permitted to become a party to an
action or proceeding between other persons, and which
results merely in the addition of a new party or parties
to an original action, for the purpose of hearing and
determining at the same time all conflicting claims
which may be made to the subject matter in litigation. It
is not an independent proceeding, but an ancillary and
supplemental one which, in the nature of things, unless
otherwise provided for by the statute or Rules of Court,
must be in subordination to the main proceeding. It
may be laid down as a general rule that an intervenor is
limited to the field of litigation open to the original
parties.
In the case at bar, there is no more principal
action to be resolved as a writ of execution had already
been issued by the lower court and the claim of
Equitable had already been satisfied. The decision of
the lower court had already become final and in fact
had already been enforced. There is therefore no more
principal proceeding in which the petitioners may
intervene.
Exception
METROPOLITAN BANK & TRUST CO. v. PRESIDING
JUDGE
(182 SCRA 820, 1990)
The intervenor in a pending case is entitled to be
heard like any other party. An intervenor’s petition
showing it to be entitled to affirmative relief will be
preserved and heard regardless of the disposition of
the principal action.
FACTS: Metrobank loaned Good Earth Emporium (GEE)
P4.9M, and the latter mortgaged its air conditioning
units as security. Said units were purchased from
Raycor Air Control systems. However, Raycor was not
completely paid by GEE on the installation costs to the
extent of P150,000.
When GEE was foreclosed by BPI Consortium,
Metrobank filed a complaint for replevin to recover the
units. The defendants consortium filed their answer.
Subsequently, Raycor filed a motion for leave to
intervene, which was granted.
The complaint was later dismissed with
prejudice when the parties agreed to a compromise
settlement, without informing the intervenor Raycor.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER56
ISSUE: Whether or not the intervenor in a pending case is
entitled to be heard like any other party
YES. There is here no final dismissal of the
main case. The aforementioned order of the lower court
has the effect not only of allowing the intervention suit
to proceed but also of vacating its previous order of
dismissal. The reinstatement of the case in order to try
and determine the claims and rights of the intervenor is
proper. The joint motion of therein plaintiff and the
original defendants to dismiss the case, without notice
to and consent of the intervenor, has the effect of
putting to rest only the respective claims of the said
original parties inter se but the same cannot in any way
affect the claim of private respondent which was
allowed by the court to intervene without opposition
from the original parties.
After the intervenor has appeared in the
action, the plaintiff has no absolute right to put the
intervenor out of court by the dismissal of the action.
The parties to the original suit have no power to waive
or otherwise annul the substantial rights of the
intervenor. When an intervening petition has been filed,
a plaintiff may not dismiss the action in any respect to
the prejudice of the intervenor.
It has even been held that the simple fact that
the trial court properly dismissed plaintiff s action does
not require dismissal of the action of the intervenor. An
intervenor has the right to claim the benefit of the
original suit and to prosecute it to judgment. The right
cannot be defeated by dismissal of the suit by the
plaintiff after the filing of the petition and notice thereof
to the other parties. A person who has an interest in the
subject matter of the action has the right, on his own
motion, to intervene and become a party to the suit, and
even after the complaint has been dismissed, may
proceed to have any actual controversy established by
the pleadings determined in such action. The trial
court's dismissal of plaintiff’s action does not require
dismissal of the action of the intervenor.
The intervenor in a pending case is entitled to
be heard like any other party. A claim-in-intervention
that seeks affirmative relief prevents a plaintiff from
taking a voluntary dismissal of the main action. Where
a complaint in intervention was filed before plaintiff's
action had been expressly dismissed, the intervenor's
complaint was not subject to dismissal on the ground
that no action was pending, since dismissal of plaintiffs
action did not affect the rights of the intervenor or
affect the dismissal of intervenor's complaint. An
intervenor's petition showing it to be entitled to
affirmative relief will be preserved and heard
regardless of the disposition of the principal action.
SUMMONS (RULE 14)
Definition and purpose
Summons is the writ by which the defendant is notified
of the action brought against him.
 The issuance of summons is mandatory on the
part of the court.
 CIVIL PROCEDURE REVIEWER57

 In an action in personam, the purpose of (4) setting forth the grounds for the application.
summons is not only to notify the defendant of (Sec. 17, Rule 14)
the action, but also to acquire jurisdiction over
his person. Who serves
 Service of summons is required even if the The summons may be served by
defendant is aware of the filing of the action (1) the sheriff,
against him. (2) his deputy,
 In an action in rem or quasi in rem, the (3) other proper court officer, or
purpose of summons is mainly to satisfy the (4) any suitable person authorized by the court
constitutional requirements of due process. issuing the summons, for justifiable reasons.
(Sec. 3, Rule 14)
Duty to issue
The clerk of court shall issue the corresponding On whom
summons to the defendants
(1) upon the filing of the complaint and In general
The clerk of court shall issue the corresponding
(2) payment of the requisite legal fees. (Sec. 1,
summons to the defendants. (Sec. 1, Rule 14)
Rule 14)

Service in person on defendant—

Issuance of alias summons—
Whenever practicable, the summons shall be served
If a summons is returned without being served on any
(1) by handing a copy thereof to the defendant in
or all of the defendants, the server:
person, or
(1) shall also serve a copy of the return on the
(2) by tendering it to him, if he refuses to receive
plaintiff’s counsel,
and sign for it. (Sec. 6, Rule 14)
(2) stating the reasons for the failure of service,
(3) within five (5) days from such failure.
Entity without juridical personality
When persons associated in an entity without juridical
The clerk may issue an alias summons
personality are sued under the name by which they are
(1) on demand of the plaintiff,
generally or commonly known, service may be effected
(2) if the summons has been lost, or
(3) if the summons has been returned without (1) upon all the defendants by serving upon any
being served (Sec. 5, Rule 14) one of them, or
(2) upon the person in charge of the office or
Form place of business maintained in such name.

Content BUT such service shall not bind individually any person
The summons shall be whose connection with the entity has, upon due notice,
(1) directed to the defendant, been severed before the action was brought. (Sec. 8,
(2) signed by the clerk of court, and Rule 14)
(3) under seal.
Associations
The summons shall contain:
(a) the name of the court and the names of the Domestic
parties to the action; Service upon domestic private juridical entity—
Service may be made on
(b) a direction that the defendant answer within
(1) the president,
the time fixed by these Rules; and
(2) managing partner,
(c) a notice that unless the defendant so answers, (3) general manager,
plaintiff will take judgment by default and may (4) corporate secretary,
be granted the relief applied for. (5) treasurer, or
(6) in-house counsel. (Sec. 11, Rule 14)
A copy of the complaint and order for appointment of
guardian ad litem, if any, shall be attached to the List exclusive
original and each copy of the summons. (3a)
E.B. VILLAROSA & PARTNER CO., LTD. V. BENITO
If with leave of court (312 SCRA 65, 1999)
It shall be made
(1) by motion,
(2) in writing,
(3) supported by affidavit of the plaintiff or some
person on his behalf, and

MENDEZ, IVAN VIKTOR (2D, ’13)


The liberal construction rule cannot be invoked and
utilized as a substitute for the plain legal
requirements as to the manner in which summons
should be served on a domestic corporation. The
officer upon whom service is made must be the one
stated in the statute otherwise the service is
insufficient.
FACTS: Petitioner E.B. Villarosa, a limited partnership,
and private respondent Benita executed a deed of sale
with development agreement wherein Villarosa agreed
to develop certain parcels of land belonging to Benito
into a housing subdivision for the construction of low
cost housing units. They further agreed that in case of
litigation arising from any dispute, the venue shall be in
the proper courts of Makati.
The private respondent subsequently filed a
Complaint for Breach of Contract and Damages against
the petitioner before the Trial Court of Makati for lack
of developments within the aforesaid properties. The
Service of Summons as well as the complaint was
served upon the branch manager in Cagayan de Oro.
Plaintiff filed a Special Motion to Dismiss alleging that
the summons was improperly served and for lack of
jurisdiction over the person of the defendant.
Respondent says that the Service was improperly
served since it was given to an employee in its branch
office and not to one of the persons enunciated in Rule
14 section 11 of the ROC.
The trial court ruled in favor of respondent
hence this petition.
ISSUE: Whether the service of summons on the branch
manager was proper
NO. Section 11, Rule 14 allows service to the
general manager, not the branch manager. The maxim
expression unios est exclusion alterius applies in this
case. The enumeration of persons whom summons may
be served is restricted, limited and exclusive. The new
rule specifically changed the proper recipient of a
service from a mere manager to a general manager in
order to prevent ambiguous and illogical
interpretations in the future. The court therefore
acquires no jurisdiction over the person of the
defendant.
In the case at bar, since the service was given
to a mere branch manager in one of petitioner’s
branches instead of the general manager in its main
office in Davao, such service is deemed insufficient. The
courts therefore did not acquire jurisdiction over the
person of the petitioner.
Public corporation
When the defendant is the Republic of the Philippines,
service may be effected on the Solicitor General.
In case of a province, city or municipality, or like public
corporations, service may be effected on
(1) its executive head, or
(2) on such other officer or officers as the law or
the court may direct. (Sec. 13, Rule 14)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER58
Minors
When the defendant is a minor, service shall be made
(1) upon him personally and
(2) on his legal guardian if he has one, or if none,
upon his guardian ad litem whose
appointment shall be applied for by the
plaintiff, or
(3) on his father or mother, In the case of a minor,
service may also be made. (Sec. 10, Rule 14)
Insane, incompetents
When the defendant is insane or otherwise an
incompetent, service shall be made
(1) upon him personally and
(2) on his legal guardian if he has one, or if none,
upon his guardian ad litem whose
appointment shall be applied for by the
plaintiff. (Sec. 10, Rule 14)
Prisoners
When the defendant is a prisoner confined in a jail or
institution, service shall be effected upon him
 by the officer having the management of such
jail or institution who is deemed deputized as
a special sheriff for said purpose. (Sec. 9, Rule
14)
Unknown defendant or whereabouts unknown
Where the defendant is
(1) designated as an unknown owner, or the like,
or
(2) whenever his whereabouts are unknown and
cannot be ascertained by diligent inquiry,
Service may, by leave of court, be effected upon him by
(1) publication in a newspaper of general
circulation and
(2) in such places and for such time as the court
may order. (Sec. 14, Rule 14)
Whether in rem, quasi in rem or personal
Residents temporarily out
When any action is commenced against a defendant
who ordinarily resides within the Philippines, but who
is temporarily out of it, service may, by leave of court, be
also effected out of the Philippines by extraterritorial
service. (Sec. 16, Rule 14)
MONTEFALCON v. VASQUEZ
(554 SCRA 513, 2008)

The normal method of service of summons on one
temporarily absent is by substituted service
because personal service abroad and service by
publication are not ordinary means of summoning
defendants. Summons in a suit in personam against
a temporarily absent resident may be by
substituted service as domiciliaries of a State are
always amenable to suits in personam therein.
FACTS: Dolores P. Montefalcon filed a Complaint for
acknowledgment and support against Ronnie S.
Vasquez before the RTC, alleging that her son Laurence
Montefalcon is the illegitimate child of Vasquez. She
prayed that Vasquez be obliged to give support to
Laurence, whose certificate of live birth he signed as
father.
A sheriff tried to serve the summons and
complaint on Vasquez in Aro-aldao, Nabua, Camarines
Sur. Vasquez's grandfather received them as Vasquez
was in Manila. Vasquez's mother returned the
documents to the clerk of court, who informed the court
of the non-service of summons. Petitioners then filed a
motion to declare Vasquez in default, which was denied
for lack of proper service of summons.
The court issued an alias summons on
Vasquez at Taguigupon petitioners' motion. A Taguig
deputy sheriff served it by substituted service on
Vasquez's caretaker. Another alias summons was issued,
also received by the caretaker.
On petitioners' motion, the trial court declared
Vasquez in default for failure to file an answer despite
the substituted service of summons. Vasquez was
furnished with court orders and notices of the
proceedings at his last known address, but these were
returned as he had allegedly moved to another place
and left no new address.
In 2001, the court granted petitioners'
prayers. The court added that Vasquez admitted the
truth of the allegations by his silence.
In the same year, Vasquez surfaced and filed a
notice of appeal which petitioners opposed. Appeal was
granted. Before the appellate court, he argued that the
trial court never acquired jurisdiction over his person.
The appellate court noted that the service of summons
on Vasquez was "defective" as there was no explanation
of impossibility of personal service and an attempt to
effect personal service.
Petitioners argued that any attempt at
personal service of summons was needless as Vasquez
already left for abroad as an overseas seafarer when the
sheriff served the summons in Taguig. The appellate
court, however, denied the motion.
ISSUE: Whether there was a valid substituted service of
summons
YES. To acquire jurisdiction over the person of
a defendant, service of summons must be personal, or if
this is not feasible within a reasonable time, then by
substituted service. It is of judicial notice that overseas
Filipino seafarers are contractual employees. As an
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER59
overseas seafarer, Vasquez was a Filipino resident
temporarily out of the country. Hence, service of
summons on him is governed by Rule 14, Section 16,
which referred to extraterritorial service. Because
Section 16 of Rule 14 uses the words "may" and "also,"
it is not mandatory. Other methods of service of
summons allowed under the Rules may also be availed
of by the serving officer on a defendant-seaman.
Obviously, personal service of summons was
not practicable since the defendant was temporarily out
of the country. To proceed with personal service of
summons on a defendant-seaman who went on
overseas contract work would not only be impractical
and futile, it would also be absurd.
The substituted service in Taguig was valid
and justified because previous attempts were made by
the sheriffs to serve the summons, but to no avail. Also,
the caretaker who received the alias summons was of
suitable age and discretion, then residing at Vasquez's
dwelling. There is no quarrel that it was really
Vasquez's residence, as evidenced by his employment
contract, executed under the supervision and authority
of the POEA. It can be presumed that the caretaker must
have informed him one way or another of the suit upon
his return after finishing his nine-month contract with
Fathom Ship Management.
In Montalban v. Maximo, we held that the
normal method of service of summons on one
temporarily absent is by substituted service because
personal service abroad and service by publication are
not ordinary means of summoning defendants.
Summons in a suit in personam against a temporarily
absent resident may be by substituted service as
domiciliaries of a State are always amenable to suits in
personam therein.
More importantly, the absence in the final
sheriff's return of a statement about the impossibility of
personal service does not conclusively prove that the
service is invalid. Such failure should not unduly
prejudice petitioners if what was undisclosed was in
fact done. The sheriff's certificate of service of
summons is prima facie evidence of the facts set out in
it. Only clear and convincing evidence may overcome its
presumption of regularity. Given the circumstances in
the present case, we agree that the presumption of
regularity in the performance of duty on the part of the
sheriff stands.
Non-resident
When the defendant
(1) does not reside and is not found in the
Philippines, and
(2) the action affects
a. the personal status of the plaintiff or
b. relates to, or the subject of which is,
property within the Philippines, in
which the defendant has or claims a
lien or interest, actual or contingent;
or

c. in which the relief demanded
consists, wholly or in part, in
excluding the defendant from any
interest therein, or
d. the property of the defendant has
been attached within the Philippines,
Service may, by leave of court, be effected out of the
Philippines
(1) by personal service as under section 6; or
(2) by publication in a newspaper of general
circulation in such places and for such time as
the court may order,
 in which case a copy of the summons
and order of the court shall be sent
by registered mail to the last known
address of the defendant,
(3) or in any other manner the court may deem
sufficient.
Any order granting such leave shall specify a reasonable
time, which shall not be less than sixty (60) days after
notice, within which the defendant must answer. (Sec.
15, Rule 14)
in rem, quasi in rem
SANTOS v. PNOC
(556 SCRA 272, 2008)
Where the defendant could not be personally
served with summons despite diligent efforts to
locate his whereabouts, he may properly be served
with summons of publication.
FACTS: PNOC Exploration Corp. (respondent) filed a
complaint for a sum of money against Pedro T. Santos,
Jr. (petitioner), seeking to collect the P698,502.10
unpaid balance of the car loan advanced to Santos when
he was still member of the board of directors.
Personal service of summons to Santos failed
because he could not be located in his last known
address despite earnest efforts to do so. On PNOC’s
motion, the trial court allowed service of summons by
publication. PNOC then caused the publication of the
summons in Remate, a newspaper of general circulation
in the Philippines. Thereafter, PNOC submitted the
affidavit of publication of the advertising manager of
Remate and an affidavit of service of the PNOC’s
employee to the effect that he sent a copy of the
summons by registered mail to Santos’ last known
address.
When Santos failed to file his answer, PNOC
moved the case be set for the reception of its evidence
ex parte. The trial court granted the motion. An
omnibus motion for reconsideration was then sought by
Santos, alleging that the affidavit of service submitted
by PNOC failed to comply with Sec. 19, Rule 14, as it was
not executed by the Clerk of Court. He also claimed
denial of due process for he was not notified of the trial
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER60
court’s order. PNOC opposed the motion and insisted
that it complied with the rules on service by
publication. The trial court denied Santos’ motion.
ISSUE: Whether there is improper service of summons
because summons by publication only applies to actions
in rem, and not in personam
NO. Since petitioner could not be personally
served with summons despite diligent efforts to locate
his whereabouts, respondent sought and was granted
leave of court to effect service of summons upon him by
publication in a newspaper of general circulation. Thus,
petitioner was properly served with summons by
publication.
The in rem/in personam distinction was
significant under the old rule because it was silent as to
the kind of action to which the rule was applicable.
Because of this silence, the Court limited the application
of the old rule to in rem actions only. This has been
changed. The present rule expressly states that it
applies "[i]n any action where the defendant is
designated as an unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry." Thus, it now applies to
any action, whether in personam, in rem or quasi in
rem.
Service of summons by publication is proved
by the affidavit of the printer, his foreman or principal
clerk, or of the editor, business or advertising manager
of the newspaper which published the summons. The
service of summons by publication is complemented by
service of summons by registered mail to the
defendant's last known address. This complementary
service is evidenced by an affidavit "showing the
deposit of a copy of the summons and order for
publication in the post office, postage prepaid, directed
to the defendant by registered mail to his last known
address." The rules, however, do not require that the
affidavit of complementary service be executed by the
clerk of court. While the trial court ordinarily does the
mailing of copies of its orders and processes, the duty to
make the complementary service by registered mail is
imposed on the party who resorts to service by
publication.
The trial court acquired jurisdiction over the
person of petitioner by his own voluntary appearance
in the action against him. This was equivalent to service
of summons and vested the trial court with jurisdiction
over the person of petitioner.
Modes of service
Personal
Whenever practicable, the summons shall be served
(1) by handing a copy thereof to the defendant in
person, or
(2) by tendering it to him, if he refuses to receive
and sign for it. (Sec. 6, Rule 14)
Substituted

If, for justifiable causes, the defendant cannot be served
within a reasonable time as provided in the preceding
section, service may be effected
(a) by leaving copies of the summons at the
defendant’s residence with some person of
suitable age and discretion then residing
therein, or
(b) by leaving the copies at defendant’s office or
regular place of business with some
competent person in charge thereof. (Sec. 7,
Rule 14)
ROBINSON v. MIRALLES
(510 SCRA 678, 2006)
Under our procedural rules, personal service is
generally preferred over substituted service, the
latter mode of service being a method
extraordinary in character. For substituted service
to be justified, the following circumstances must be
clearly established:
(a) personal service of summons within a
reasonable time was impossible;
(b) efforts were exerted to locate the party;
and
(c) the summons was served upon a person of
sufficient age and discretion residing at
the party’s residence or upon a competent
person in charge of the party’s office or
place of business.
Failure to do so would invalidate all subsequent
proceedings on jurisdictional grounds.
FACTS: Respondent Celita Miralles filed a complaint for
collection of sum of money against petitioner Remelita
Robinson, alleging that $20,054 was borrowed by
Robinson, as shown in the MOA they both executed.
Summons was served on Robinson at her
given address. However, per return of service of the
Sheriif, petitioner no longer resides there. Thus, the
trial court issued an alias summons to be served at
Muntinlupa City, petitioner’s new address.
Again, the Sheriff reported twice thereafter
that the summons could not be served on petitioner.
Sheriff Pontente, who was to serve the summons
interposed that he was stopped by the Security Guard of
Alabang Hills Village because they were allegedly told
by Robinson not to let anyone proceed to her house if
she is not around. Despite the explanations of the
Sheriff, the guards didn’t let him in. Thereafter, the
Sheriff just left a copy of the complaint to a guard, who
refused to affix his signature on the original copy, so he
will be the one to give the summons to petitioner
Robinson.
Eventually, petitioner Robinson was declared
in default for her failure to file an answer seasonably
despite service of summons. The trial court rendered its
decision in favor of Miralles ordering Robinson to pay
her obligations plus cost of damages. A copy of the
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER61
court Order was sent to petitioner by registered mail at
her new address and a writ of execution was also
issued.
Robinson filed a petition for relief from the
judgment by default. She claimed that summons was
improperly served upon her, thus, the trial court never
acquired jurisdiction over her and that all its
proceedings are void. Petitioner Robinson contends that
the service of the summons upon the subdivision guard
is not in compliance with Section 7, Rule 14 since he is
not related to her or staying at her residence, as
required by the rule.
ISSUE: Whether the substituted service of summons
effected is valid
YES. Although the SC have ruled that the
statutory requirements of substituted service must be
followed strictly, faithfully, and fully and any substituted
service other than that authorized by the Rules is
considered ineffective, the Court frowns upon an overly
strict application of the Rules. It is the spirit, rather than
the letter of the procedural rules, that governs.
Obviously, it was impossible for the sheriff to
effect personal or substituted service of summons upon
petitioner. We note that she failed to controvert the
sheriff’s declaration. Nor did she deny having received
the summons through the security guard. Considering
her strict instruction to the security guard, she must
bear its consequences. Thus, we agree with the trial
court that summons has been properly served upon
petitioner and that it has acquired jurisdiction over her.
Where the action is in personam and the
defendant is in the Philippines, the service of summons
may be made through personal or substituted service in
the manner provided for in Sections 6 and 7, Rule 14 of
the 1997 Rules of Procedure, as amended.
Under our procedural rules, personal service
is generally preferred over substituted service, the
latter mode of service being a method extraordinary in
character. For substituted service to be justified, the
following circumstances must be clearly established: (a)
personal service of summons within a reasonable time
was impossible; (b) efforts were exerted to locate the
party; and (c) the summons was served upon a person
of sufficient age and discretion residing at the party’s
residence or upon a competent person in charge of the
party’s office or place of business. Failure to do so
would invalidate all subsequent proceedings on
jurisdictional grounds.
Publication
Where the defendant is
(1) designated as an unknown owner, or the like,
or
(2) whenever his whereabouts are unknown and
cannot be ascertained by diligent inquiry,
Service may, by leave of court, be effected upon him by
(1) publication in a newspaper of general
circulation and
(2) in such places and for such time as the court
may order. (Sec. 14, Rule 14)

Extraterritorial
When the defendant
(1) does not reside and is not found in the
Philippines, and
(2) the action affects
a. the personal status of the plaintiff or
b. relates to, or the subject of which is,
property within the Philippines, in
which the defendant has or claims a
lien or interest, actual or contingent;
or
c. in which the relief demanded
consists, wholly or in part, in
excluding the defendant from any
interest therein, or
d. the property of the defendant has
been attached within the Philippines,
Service may, by leave of court, be effected out of the
Philippines
(4) by personal service as under section 6; or
(5) by publication in a newspaper of general
circulation in such places and for such time as
the court may order,
 in which case a copy of the summons
and order of the court shall be sent
by registered mail to the last known
address of the defendant,
(6) or in any other manner the court may deem
sufficient.
Any order granting such leave shall specify a reasonable
time, which shall not be less than sixty (60) days after
notice, within which the defendant must answer. (Sec.
15, Rule 14)
Residents temporarily out of the Philippines.
When any action is commenced against a defendant
who ordinarily resides within the Philippines, but who
is temporarily out of it, service may, by leave of court, be
also effected out of the Philippines by extraterritorial
service. (Sec. 16, Rule 14)
VALMONTE v. CA
(252 SCRA 92, 1996)
As petitioner Lourdes Valmonte is a nonresident
who is not found in the Philippines, service of
summons on her must be in accordance with Rule
14, §17. Such service, to be effective outside the
Philippines, must be made either (1) by personal
service; (2) by publication in a newspaper of
general circulation in such places and for such time
as the court may order, in which case a copy of the
summons and order of the court should be sent by
registered mail to the last known address of the
defendant; or (3) in any other manner which the
court may deem sufficient.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER62
FACTS: Rosita Dimalanta, sister of petitioner Lourdes
Valmonte, filed a complaint for partition of real
property and accounting of rentals against petitioners
Valmonte spouses. Lourdes Valmonte is a foreign
resident. The RTC denied private respondent's motion
to declare petitioner Lourdes A. Valmonte in default. A
motion for reconsideration was similarly denied.
Private respondent filed a petition for certiorari,
prohibition and mandamus with the Court of Appeals.
The Court of Appeals rendered a decision granting the
petition and declaring Lourdes in default. A copy of the
appellate court's decision was received by petitioner
Lourdes’ husband at his Manila law office and in Seattle,
Washington.
ISSUE: Whether in an action for partition filed against
her and her husband, who is also her attorney, summons
intended for her may be served on her husband, who has
a law office in the Philippines
NO. Private respondent's action, which is for
partition and accounting under Rule 69, is in the nature
of an action quasi in rem. Such an action is essentially
for the purpose of affecting the defendant's interest in a
specific property and not to render a judgment against
him. As petitioner Lourdes Valmonte is a nonresident
who is not found in the Philippines, service of summons
on her must be in accordance with Rule 14, §17. Such
service, to be effective outside the Philippines, must be
made either (1) by personal service; (2) by publication
in a newspaper of general circulation in such places and
for such time as the court may order, in which case a
copy of the summons and order of the court should be
sent by registered mail to the last known address of the
defendant; or (3) in any other manner which the court
may deem sufficient.
PERKIN ELMER SINGAPORE v. DAKILA TRADING
(530 SCRA 170)
Extraterritorial service of summons applies only
where the action is in rem or quasi in rem, but not if
an action is in personam.
FACTS: Dakila Trading Corp (Dakila) entered into a
Distribution Agreement with Perkin-Elmer Singapore
Pte. Ltd. (PES) which appointed Dakila as sole
distributor of its products in the Philippines. PES was
obligated to give Dakila a commission for the sale of its
products in the Philippines. Dakila was granted the
right to purchase and sell the products of PES. The
agreement further stipulated that Dakila shall order the
products of PES, which it shall sell in the Philippines,
either from PES itself or from PEIP.
However, PES unilaterally terminated the
Distribution Agreement, prompting Dakila to file before
the RTC a Complaint for Collection of Sum of Money and

Damages with Prayer for Issuance of a Writ of
Attachment against PES and its affiliate, Perkin-Elmer
Instruments Philippines Corporation (PEIP). RTC
denied respondent’s prayer.
Dakila filed Ex-Parte Motions for Issuance of
Summons and for Leave of Court to Deputize Dakila’s
General Manager (DGM) to Serve Summons Outside of
the Philippines. RTC granted this motion. Thus, an Alias
Summons was issued by the RTC to PES. But the said
Alias Summons was served and received by Perkin-
Elmer Asia (PEA), a corporation allegedly unrelated to
PES. PEIP moved to dismiss the Complaint filed by
Dakila. PEA, on the other hand, sent letters to Dakila
and RTC to inform them of the wrongful service of
summons.
Accordingly, Dakila filed an Ex-Parte Motion to
Admit Amended Complaint, together with the Amended
Complaint claiming that (1) PEA had become a sole
proprietorship owned by the PES, (2) PES changed its
name to PEA, (3) such changes did not avoid its due and
outstanding obligations to Dakila, and (4) the name of
PES in the complaint should be changed to PEA. RTC
admitted the Amended Complaint.
Dakila filed another Motion for the Issuance of
Summons and for Leave of Court to Deputize DGM to
serve summons outside the Philippines. RTC granted
the motion. RTC thus issued summons and the DGM
went to Singapore and served summons on PES.
Meanwhile, RTC denied the Motion to Dismiss
filed by PEIP, compelling the latter to file its Answer to
the Amended Complaint.
PES filed with the RTC a Special Appearance
and Motion to Dismiss the Amended Complaint, which
were denied. It held that even though the Amended
Complaint is primarily for damages, it does relate to a
property of PES, to which the latter has a claim interest,
or an actual or contingent lien, which will make it fall
under one of the requisites for extraterritorial service.
PES filed a Petition for Certiorari under Rule
65 with application for temporary restraining order
and/or preliminary injunction before the CA. The CA
affirmed the RTC Orders.
ISSUE: Whether summons were properly served under
the 2nd or 4th instance of extra-territorial service
NO. Extraterritorial service of
summons applies only where the action is in rem or
quasi in rem, but not if an action is in personam. In the
case at bar, there can never be a valid extraterritorial
service of summons upon it, because the case involving
collection of a sum of money and damages is an action
in personam, as it deals with the personal liability of
PES by reason of the alleged unilateral termination of
the Distribution Agreement. The objective sought in
Dakila’s Complaint was to establish a claim against PES.
Moreover, The action instituted by Dakila affects the
parties alone, not the whole world.
Thus, being an action in personam, personal
service of summons within the Philippines is necessary
in order for the RTC to validly acquire jurisdiction over
the person of PES, and this is not possible in the present
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER63
case because the PES is a non-resident and is not found
within the Philippines. Dakila’s allegation in its
Amended Complaint that PES had personal property
within the Philippines in the form of shares of stock in
PEIP did not make the case fall under any of the four
instances mentioned in Section 15, Rule 14 of the Rules
of Court, as to convert the action in personam to an
action in rem or quasi in rem and, subsequently, make
the extraterritorial service of summons upon the
petitioner valid.
The 2nd instance for extra-territorial service
has no application in the case. The action for collection
of a sum of money and damages was purely based on
the personal liability of the PES. For the action to be one
falling under the 2nd instance, the main subject matter
of the action must be the property itself of the PES in
the Philippines and in such instance, judgment will be
limited to the res. However, the allegations made by the
respondent that the petitioner has property within the
Philippines in support of its application for the issuance
of a writ of attachment was actually denied by the RTC.
Neither does the allegation that PES had
personal property within the Philippines in the form of
shares of stock in PEIP convert the case from an action
in personam to one quasi in rem, so as to qualify said
case under the 4th instance of extra-territorial service.
What is required is not a mere allegation of the
existence of personal property belonging to the non-
resident defendant within the Philippines but that the
non-resident defendant’s personal property located
within the Philippines must have been actually
attached. Evidently, PES’s personal property within the
Philippines, in the form of shares of stock in PEIP, had
not been attached; hence, the case for collection of sum
of money and damages remains an action in personam.
In the case at bar, there can never be a valid
extraterritorial service of summons upon it, because the
case involving collection of a sum of money and
damages is an action in personam, as it deals with the
personal liability of PES by reason of the alleged
unilateral termination of the Distribution Agreement.
The objective sought in Dakila’s Complaint was to
establish a claim against PES. Moreover, The action
instituted by Dakila affects the parties alone, not the
whole world.
Thus, being an action in personam, personal
service of summons within the Philippines is necessary
in order for the RTC to validly acquire jurisdiction over
the person of PES, and this is not possible in the present
case because the PES is a non-resident and is not found
within the Philippines. Dakila’s allegation in its
Amended Complaint that PES had personal property
within the Philippines in the form of shares of stock in
PEIP did not make the case fall under any of the four
instances mentioned in Section 15, Rule 14 of the Rules
of Court, as to convert the action in personam to an
action in rem or quasi in rem and, subsequently, make
the extraterritorial service of summons upon the
petitioner valid.
Registered mail invalid service of summons

Voluntary appearance
The defendant’s voluntary appearance in the action
shall be equivalent to service of summons.
The inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the person of
the defendant shall not be deemed a voluntary
appearance. (Sec. 20, Rule 14)
CEZAR v. RICAFORT-BAUTISTA
(506 SCRA 322, 2006)
The SC still holds that jurisdiction was validly
acquired by the trial court. Although the
substituted service upon him of summons was
defective, said defect was cured by his voluntary
appearance.
FACTS: Private respondent Specified Materials
Corporation filed a Complaint for collection of sum of
money against petitioner Cezar due to the latter’s
failure to pay the construction materials it purportedly
purchased under a credit line extended by private
respondent. At the time of the institution of the action,
petitioner’s obligation stood at P1,860,000.00, and
under the terms of the credit arrangement, materials
sold to petitioner were supposed to be paid within 30
days from date of delivery, subject to a 3% interest per
month for delayed payments.
After the filing of the complaint, summons was
issued, and this was received by a certain Robles. As
petitioner failed to file his answer to the complaint,
private respondent moved that he be declared in
default. This motion was granted.
Private respondent filed a Motion to Admit
Amended Complaint alleging that it erroneously
computed petitioner’s obligation to be P1,860,000.00,
when it should have amounted to P2,005,000.00. A
copy of the motion and the Amended Complaint were
personally received by petitioner as evidenced by his
signatures thereon. The Amended Complaint was
ordered admitted. The court ruled in favor of plaintiff.
Petitioner, by way of special appearance, argued
that the trial court did not acquire jurisdiction over his
person. This motion was denied. Petitioner filed before
the CA a Petition for Annulment of Judgment,
Preliminary Injunction with Prayer for Temporary
Restraining Order. This petition was dismissed for
“failure to attach an affidavit of merit alleging the facts
supporting the good and substantial defense, as well as
the affidavits of witnesses or document supporting the
defense.”
Petitioner filed a motion for reconsideration
but this was denied. Following this set-back, petitioner
filed before this Court a Petition for Review on
Certiorari of the resolutions of the CA, which was also
denied for failure to comply with procedural
requirements. Our resolution became final and
executory. Private respondent filed a Motion for
Execution before the trial court.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER64
ISSUE: Whether the court acquired jurisdiction over the
person of the petitioner by virtue of the substituted
service of summons effected by the sheriff
NO. The person who allegedly received the
summons was identified in the sheriff’s return as
Arsenio Robles, was not petitioner’s employee, was a
native of Batangas and was merely peddling mango
seedlings within the vicinity of his office when the
summons was served.
In the event that summons cannot be served
within a reasonable time, the Rules permit that
substituted service may be resorted to. In this case, the
sheriff employed the substituted service of
summons. The defect, however, in the manner in which
he implemented this mode of service of summons is
readily apparent on the face of the return. It must be
emphasized that laws providing for modes other than
the personal service of summons must be strictly
followed in order for the court to acquire jurisdiction
over the person of respondent or defendant. As the
sheriff’s return in the present case does not contain any
statement with regard to the impossibility of personal
service the same is patently defective and so the
presumption of regularity in the performance of official
functions will not lie.
ISSUE: Whether petitioner’s voluntary appearance cured
the defect in service of summons.
YES. In Flores v. Zurbito, we held that an
appearance in whatever form without expressly
objecting to the jurisdiction of the court over the
person, is a submission to the jurisdiction of the court
over the person of the defendant or respondent, thus:
He may appear without such formal
appearance and thus submit himself to the jurisdiction
of the court. He may appear by presenting a motion, for
example, and unless by such appearance he specifically
objects to the jurisdiction of the court, he thereby gives
his assent to the jurisdiction of the court over his
person.
Hence, in this case, petitioner’s filing of a
Motion for Re-setting of the Hearing effectively cured
the defect of the substituted service of summons.
Petitioner’s insistence of lack of jurisdiction over his
person is utterly lacking in any legal basis.
LHUILLER v. BRITISH AIRWAYS
(615 SCRA 380, 2010)
A defendant who files a motion to dismiss, assailing
the jurisdiction of the court over his person,
together with other grounds raised therein, is not
deemed to have appeared voluntarily before the
court
FACTS: Lhuillier took respondent British Airway’s flight
548 from London, United Kingdom to Rome, Italy. Once
on board, she allegedly requested Halliday, one of the
respondent’s flight attendants, to assist her in placing
her hand-carried luggage in the overhead bin. However,

Halliday allegedly refused to help and assist her, and
even sarcastically remarked that "If I were to help all
300 passengers in this flight, I would have a broken
back!"
Petitioner further alleged that when the plane
was about to land in Rome, Italy, another flight
attendant, Kerrigan, singled her out from among all the
passengers in the business class section to lecture on
plane safety. Allegedly, Kerrigan made her appear to the
other passengers to be ignorant, uneducated, stupid,
and in need of lecturing on the safety rules and
regulations of the plane. Affronted, petitioner assured
Kerrigan that she knew the plane’s safety regulations
being a frequent traveler. Thereupon, Kerrigan allegedly
thrust his face a mere few centimeters away from that
of the petitioner and menacingly told her that "We don’t
like your attitude."
Upon arrival in Rome, petitioner complained
to respondent’s ground manager and demanded an
apology. However, the latter declared that the flight
stewards were "only doing their job."
Thus, petitioner filed the complaint for
damages. Summons, together with a copy of the
complaint, was served on the respondent through
Echevarria, General Manager of Euro-Philippine Airline
Services, Inc.
Respondent, by way of special appearance
through counsel, filed a Motion to Dismiss on grounds
of lack of jurisdiction over the case and over the person
of the respondent. Respondent alleged that only the
courts of London, United Kingdom or Rome, Italy, have
jurisdiction over the complaint for damages pursuant to
the Warsaw Convention. Thus, since respondent is
domiciled in London; respondent’s principal place of
business is in London; petitioner bought her ticket in
Italy (through Jeepney Travel S.A.S, in Rome); and
Rome, Italy is petitioner’s place of destination, then it
follows that the complaint should only be filed in the
proper courts of London, United Kingdom or Rome,
Italy. Likewise, it was alleged that the case must be
dismissed for lack of jurisdiction over the person of the
respondent because the summons was erroneously
served on Euro-Philippine Airline Services, Inc. which is
not its resident agent in the Philippines.
Instead of filing a Comment/Opposition,
petitioner filed an Urgent Ex-Parte Motion to Admit
Formal Amendment to the Complaint and Issuance of
Alias Summons. Petitioner alleged that upon
verification with the SEC, she found out that the
resident agent of respondent in the Philippines is
Alonzo Q. Ancheta. Subsequently, petitioner filed a
Motion to Resolve Pending Incident and Opposition to
Motion to Dismiss.
ISSUE: Whether British Airways, in filing its motion to
dismiss may be deemed as having in fact and in law
submitted itself to the jurisdiction of the lower court,
NO. The Warsaw Convention has the force and
effect of law in this country. The Warsaw Convention
applies because the air travel, where the alleged
tortious conduct occurred, was between the United
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER65
Kingdom and Italy, which are both signatories to the
Warsaw Convention. Since the Warsaw Convention
applies in the instant case, then the jurisdiction over the
subject matter of the action is governed by the
provisions of the Warsaw Convention.
Respondent, in seeking remedies from the
trial court through special appearance of counsel, is not
deemed to have voluntarily submitted itself to the
jurisdiction of the trial court. Thus, a defendant who
files a motion to dismiss, assailing the jurisdiction of the
court over his person, together with other grounds
raised therein, is not deemed to have appeared
voluntarily before the court. What the rule on voluntary
appearance means is that the voluntary appearance of
the defendant in court is without qualification, in which
case he is deemed to have waived his defense of lack of
jurisdiction over his person due to improper service of
summons.
A special appearance before the court––
challenging its jurisdiction over the person through a
motion to dismiss even if the movant invokes other
grounds––is not tantamount to estoppel or a waiver by
the movant of his objection to jurisdiction over his
person; and such is not constitutive of a voluntary
submission to the jurisdiction of the court.
In this case, the special appearance of the
counsel of respondent in filing the Motion to Dismiss
and other pleadings before the trial court cannot be
deemed to be voluntary submission to the jurisdiction
of the said trial court.
Return of service
When the service has been completed, the server shall,
(1) within five (5) days therefrom,
(2) serve a copy of the return, personally or by
registered mail, to the plaintiff’s counsel, and
(3) shall return the summons to the clerk who
issued it,
(4) accompanied by proof of service. (Sec. 4, Rule
14)
Proof of service
The proof of service of a summons shall be
(1) made in writing by the server and
(2) shall set forth the manner, place, and date of
service;
(3) shall specify any papers which have been
served with the process and
(4) the name of the person who received the
same; and
(5) shall be sworn to when made by a person
other than a sheriff or his deputy. (Sec. 18,
Rule 14)
Publication
If the service has been made by publication, service may
be proved by
(1) the affidavit of the printer, his foreman or
principal clerk, or of the editor, business or
advertising manager,
(2) an attached copy of the publication, and

(3) an affidavit showing the deposit of a copy of
the summons and order for publication in the
post office, postage prepaid, directed to the
defendant by registered mail to his last known
address. (Sec. 19, Rule 14)
MOTIONS (RULE 15)
In general
A motion is an application for relief other than by a
pleading. (Sec. 1, Rule 15)
Form
General rule: All motions shall be in writing.
Exceptions:
(1) Motions made in open court or
(2) Motions made in the course of a hearing or
trial. (Sec. 2, Rule 15)
Generally
The Rules applicable to pleadings shall apply to written
motions so far as concerns
(1) caption,
(2) designation,
(3) signature, and
(4) other matters of form. (Sec. 10, Rule 15)
May be oral
General rule: All motions shall be in writing.
Exception Motions made in open court or in
the course of a hearing or trial. (Sec. 2, Rule 15)
Motion for leave
A motion for leave to file a pleading or motion shall be
accompanied by the pleading or motion sought to be
admitted. (Sec. 9, Rule 15)
Prohibited motion
The following pleadings and motions are prohibited in a
summary procedure:
(1) Motion to dismiss except on the ground of lack
of jurisdiction over subject matter and failure
to comply with barangay conciliation
proceedings;
(2) Motion for new trial, or for reconsideration of
a judgment, or for reopening of trial;
(3) Petition for relief from judgment;
(4) Motion for extension of time to file pleadings,
affidavits and other papers;
(5) Memoranda;
(6) Petition for certiorari, and mandamus or
prohibition against an interlocutory order of
the court;
(7) Motion to declare the defendant in default;
(8) Dilatory motions for postponement
(9) Reply;
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER66
(10) Third-party complaints;
(11) Interventions.
The following are prohibited in Small Claims Cases:
(1) Motion to dismiss the complaint, except on
ground of lack of jurisdiction’
(2) Motion for bill of particulars;
(3) Motion for new trial, or for reconsideration of
a judgment, or for reopening of trial;
(4) Petition for relief from judgment;
(5) Motion for extension of time to file pleadings,
affidavits and other papers;
(6) Memoranda;
(7) Petition for certiorari, and mandamus or
prohibition against an interlocutory order of
the court;
(8) Motion to declare the defendant in default;
(9) Dilatory motions for postponement
(10) Reply;
(11) Third-party complaints;
(12) Interventions.
Contents
A motion shall
(1) state the relief sought to be obtained
(2) the grounds upon which it is based, and
(3) shall be accompanied by supporting affidavits
and other papers, if required by these Rules or
necessary to prove facts alleged therein. (Sec.
3, Rule 15)
Omnibus motion rule
A motion attacking a pleading, order, judgment, or
proceeding shall include all objections then available,
and all objections not so included shall be deemed
waived. (Sec. 8, Rule 15)
Exceptions
The court shall dismiss the claim when it
appears from the pleadings or the evidence on
record that
(1) the court has no jurisdiction over the
subject matter,
(2) there is another action pending
between the same parties for the
same cause, or that
(3) the action is barred by a prior
judgment or
(4) barred by the statute of limitations.
(Sec. 1, Rule 9)
Notice of hearing
General Rule: Every written motion shall be set for
hearing by the applicant.
Exception: Motions which the court may act upon
without prejudicing the rights of the adverse party.
(Sec. 4, Rule 15)

NOTE: Every written motion required to be heard and
the notice of the hearing thereof shall be served
(1) in such a manner as to ensure its receipt by
the other party
(2) at least three (3) days before the date of
hearing, unless the court for good cause sets
the hearing on shorter notice.
Notice of hearing—
The notice of hearing shall be
(1) addressed to all parties concerned, and
(2) shall specify the time and date of the hearing
which must not be later than ten (10) days
after the filing of the motion. (Sec. 5, Rule 15)
General rule: without compliance — scrap of paper
A motion which does not meet the requirements of
Sections 4 and 5 of Rule 15 is a mere scrap of paper
which the clerk of court has not right to receive and the
trial court has no authority to act upon.
Defective notice of hearing
VICTORY LINER, INC. v. MALINIAS
(2007)
Under Sections 5 and 6 of Rule 15, the notice of
hearing shall be addressed to the parties
concerned and shall specify the time and date of
the hearing of the motion; no motion shall be acted
upon by the court without proof of service of the
notice thereof, except when the court is satisfied
that the rights of the adverse party are not affected.
FACTS: A vehicular collision happened between
petitioner Victory Liner, Inc. (VLI) and an Isuzu Truck
used by respondent Michael Malinias. No one died, but
both vehicles were damaged. Malinias filed a complaint
for damages against petitioner and the bus driver,
Leoncio Bulaong with the MTC, alleging pecuniary
damage to the truck worth P47,180 representing lost
income for the non-use of the truck. After pre-trial, the
bus driver was dropped as defendant in the case.
During trial, respondent finished presenting
his evidence and rested his case. Counsel for petitioner
VLI filed a motion to withdraw as counsel, but the same
was denied. When the case was called for reception of
petitioner’s evidence, no appearance was made for the
bus company. Respondent thus moved that petitioner
be declared to have waived its right to adduce evidence
in its favor. The case was deemed submitted for
judgment and the MTC ruled in favor of respondent
Malinias, ordering VLI to pay him.
VLI’s new counsel filed a Motion for
Reconsideration. The Notice of Hearing therein stated:
"Please submit the foregoing Motion for
Reconsideration for hearing before the CA at a schedule
and time convenient to the Court and the parties.” The
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER67
MTC ruled that the notice did not conform with the
mandatory requirements of Section 5, Rule 15, and that
the motion was thus a mere scrap of paper which did
not suspend the period to appeal.
Petitioner VLI thereafter filed a Notice of
Appeal and a motion for the inhibition by the MTC,
which was granted. The case was assigned to a new
MTC judge, who was tasked to rule on the Notice of
Appeal. The MTC ruled that it had been filed beyond the
reglementary period. Again, the MTC reiterated its
initial judgment in favor of Malinias since the fatally
defective MR did not toll the reglementary period for
appeal.
The RTC affirmed the judgment of the MTC
and held the decision final and executory.
ISSUE: Whether the Notice of Hearing filed was defective
YES. The most crucial failure on the part of
petitioner was to file a Motion for Reconsideration of
the MTC Judgment which contained a defective Notice
of Hearing, failing as it did to set a date for hearing.
Under Sections 5 and 6 of Rule 15, the notice of hearing
shall be addressed to the parties concerned and shall
specify the time and date of the hearing of the motion;
no motion shall be acted upon by the court without
proof of service of the notice thereof, except when the
court is satisfied that the rights of the adverse party are
not affected. Unless the movant sets the time and place
of hearing, the court will be unable to determine
whether the adverse party agrees or objects to the
motion, and if he objects, to hear him on his objection,
since the rules themselves do not fix any period within
which he may file his reply or opposition.
Not only did the defect render the motion for
reconsideration itself unworthy of consideration, it
more crucially failed to toll the period to appeal. A
motion without a notice of hearing is pro forma, a mere
scrap of paper that does not toll the period to appeal,
and upon the expiration of the 15-day period, the
questioned order or decision becomes final and
executory.
That did not mean that petitioner was left
bereft of further remedies under our Rules. For one,
petitioner could have assailed the MTC’s denial of the
Motion for Reconsideration through a special civil
action for certiorari under Rule 65 alleging grave abuse
of discretion amounting to lack of jurisdiction on the
part of the MTC in denying the motion. If that remedy
were successful, the effect would have been to void the
MTC’s denial of the Motion for Reconsideration, thus
allowing petitioner to again pursue such motion as a
means towards the filing of a timely appeal.
Another remedy for the petitioner is found
under Rule 38, which governs petitions for relief from
judgment. Indeed, Section 2, Rule 38 finds specific
application in this case, as it provides that "[w]hen a
judgment or final order is rendered by any court in a
case, and a party thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented from taking
an appeal, he may file a petition [for relief from denial
of appeal] in such court and in the same case praying

that the appeal be given due course." 36 Such petition
should be filed within sixty (60) days after the
petitioner learns of the judgment or final order, and not
more than six (6) months after such judgment or final
order was entered. The facts of this case indicate that
petitioner could have timely resorted to this remedy.
Exceptions
Motions which may be granted ex parte
An ex parte motion does not require that parties be
hard. An example is a motion to set the case for pre-
trial.
NOTE: A motion to dismiss, a motion for judgment on
the pleadings, and a summary judgment are litigated
motions.
Where adverse party had opportunity to oppose
LANTO v. DIMAPORO
(16 SCRA 599, 1966)
Existence of a cause of action or lack of it is
determined by a reference to the facts averred in
the challenged pleading. The question raised in the
motion is purely one of law. In this posture, oral
arguments on the motion are reduced to an
unnecessary ceremony and should be overlooked.
FACTS: Resolution No. 7, adopted by the Provincial
Board of Lanao del Norte, reverted a previous salary
appropriation for the position of Assistant Provincial
Assessor to the general fund. In effect, that position
then held by petitioner was then abolished. He sought
relief to various government officials, including the
President but was disappointed. He then went to the
court seeking mandamus praying for annulment of the
resolution, payment of backwages, restatement of
salary appropriations as well as reinstatement.
Respondents moved to dismiss stating lack of
cause of action. Petitioner’s counsel moved to postpone
the hearing, but failed to appear. The court below
granted such motion and dismissed said petition. Hence
this appeal.
ISSUE: Whether the dismissal order issued without any
hearing on the motion to dismiss is void
NO. Petitioner was given the chance to adduce
his case, yet it is because of his constant absences that
he was unable to present his arguments. One good
reason for the statutory requirement of hearing on a
motion is to enable the suitors to adduce evidence to
support their claims. But here the Motion to Dismiss is
grounded on the lack of cause of action. Existence of a
cause of action or lack of it is determined by a reference
to the facts averred in the challenged pleading. The
question raised in the motion is purely one of law. In
this posture, oral arguments on the motion are reduced
to an unnecessary ceremony and should be overlooked.
The hearing for the Motion to Dismiss was set, yet the
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER68
petitioner failed to appear (only his counsel showed
up). Moreover, without any clear showing to the
contrary, there is a presumption of regularity within the
actions of the court with regard to entertaining
motions. In the case at bar, petitioner failed to show
irregularity within the courts.
VLASON ENTERPRISES CORP v. CA
(330 SCRA 26, 1999)
(1) Where the counsel failed object on the ground
of lack of notice to a Motion addressed to a former
counsel, and was granted by the trial court 30 days
to file his opposition to it, the circumstances clearly
justify a departure from the literal application of
the notice of hearing rule.
(2) The issuance of an order of default is a
condition sine qua non in order that a judgment by
default be clothed with validity.
Furthermore, it is a legal impossibility to
declare a party-defendant to be in default before it
was validly served summons.
FACTS: Duraproof sought to enforce its preferred
salvors lien by filing with the RTC a petition for
certiorari, prohibition and mandamus assailing the
actions of the Customs Officers in forfeiting the vessel
and cargo owned by Omega, which Duraproof
contracted to repair. It impleaded PPA and Med Line
Philippines, Inc. as respondents.
Duraproof amended its petition to include the
former District Collector, and other companies involved,
including Vlason Enterprises. In both Petitions,
Duraproof failed to allege anything pertaining to Vlason
Enterprises, or any prayer for relief against it.
Summonses for the amended Petition were
served. Duraproof moved several times to declare the
respondents it impleaded in default. Out of those
respondents, only the following were declared by RTC
in default: the Singkong Trading Co., Commissioner
Mison, M/V Star Ace and Omega. Duraproof filed an ex
parte Motion to present evidence against the defaulting
respondents, which was granted.
Duraproof alleged that Vlason Enterprises,
through constant intimidation and harassment in
utilizing the PPA Management of La Union, caused
Duraproof to incur heavy overhead expenses, causing
irreparable damages of about P3 Million worth of ship
tackles, rigs, and appurtenances including radar
antennas and apparatuses, which were taken
surreptitiously by persons working for Vlason
Enterprises or its agents.
The RTC ruled that in favor of Duraproof and
ordered Vlason to pay P3 Million worth of damages.
Duraproof and the other companies entered into a
compromise agreement, except Vlason. Duraproof
moved for the execution of judgment. The Motion was
granted and a Writ of Execution was issued.

Vlason Enterprises filed a Motion for
Reconsideration addressed to Duraproof’s counsel, Atty.
Concepcion, on the ground that it was allegedly not
impleaded as a defendant, served summons or declared
in default, and hence Duraproof may not present
evidence against it in default. Duraproof opposed the
Motion, arguing that it was a mere scrap of paper due to
its defective notice of hearing.
RTC reversed its Decision, finding that there
never was issued an order of default against Vlason
Enterprises, so there could not have been any valid
default-judgment rendered against it.
The CA ruled that there was no need to serve
summons anew on Vlason Enterprises, since it had been
served summons when the second amended petition
was filed; and that Vlason Enterprisess Motion for
Reconsideration was defective and void, because it
contained no notice of hearing addressed to the counsel
of Duraproof in violation of Rule 16, Section 4 of the
Rules of Court.
ISSUE: Whether the motion for reconsideration filed by
Vlason was void for not containing a notice of hearing to
Duraproof’s counsel
NO. The Motion contained a notice of hearing
sent to Atty. Concepcion who had already died and had
since been substituted by Duraproof’s new counsel,
Atty. Desierto. Although Rule 15 of the Rules of Court
requires Vlason Enterprises to address and to serve on
the counsel of Duraproof the notice of hearing of the
Motion for Reconsideration, the case at bar, however, is
far from ideal. First, Vlason Enterprises was not validly
summoned and it did not participate in the trial of the
case in the lower court; thus, it was understandable that
Vlason Enterprises would not be familiar with the
parties and their counsels. Second, Atty. Desierto
entered his appearance only as collaborating counsel,
who is normally not entitled to notices even from this
Court. Third, Duraproof made no manifestation on
record that Atty. Concepcion was already dead. Besides,
it was Atty. Concepcion who signed the Amended
Petition, wherein Vlason Enterprises was first
impleaded as respondent and served a copy thereof.
Naturally, Vlason Enterprisess attention was focused on
this pleading, and it was within its rights to assume that
the signatory to such pleading was the counsel for
Duraproof.
The Court has consistently held that a motion
which does not meet the requirements of Sections 4 and
5 of Rule 15 of the Rules of Court is considered a
worthless piece of paper, which the clerk of court has
no right to receive and the trial court has no authority
to act upon. However, there are exceptions to the strict
application of this rule. These exceptions include: “(1)
where a rigid application will result in a manifest failure
or miscarriage of justice; especially if a party
successfully shows that the alleged defect in the
questioned final and executory judgment is not
apparent on its face or from the recitals contained
therein.” The present case falls under such exception
since Vlason Enterprises was not informed of any cause
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER69
of action or claim against it. All of a sudden, the vessels
which Vlason Enterprises used in its salvaging business
were levied upon and sold in execution to satisfy a
supposed judgment against it. To allow this to happen
simply because of a lapse in fulfilling the notice
requirement which, as already said, was satisfactorily
explained would be a manifest failure or miscarriage of
justice.
Circumstances in the case at bar show that
Duraproof was not denied procedural due process, and
that the very purpose of a notice of hearing had been
served. On the day of the hearing, Atty. Desierto did not
object to the said Motion for lack of notice to him; in
fact, he was furnished in open court with a copy of the
motion and was granted by the trial court thirty days to
file his opposition to it. These circumstances clearly
justify a departure from the literal application of the
notice of hearing rule. In other cases, after the trial
court learns that a motion lacks such notice, the prompt
resetting of the hearing with due notice to all the
parties is held to have cured the defect.
Proof of service
No written motion set for hearing shall be acted upon
by the court without proof of service thereof. (Sec. 6,
Rule 15)
Hearing of motion
General rule: All motions shall be scheduled for hearing
on Friday afternoons, or if Friday is a non-working day,
in the afternoon of the next working day
Exception: Motions requiring immediate action. (Sec. 7,
Rule 15)
MOTION TO DISMISS (RULE 16)
Four general types of motion to dismiss under the
Rules
(1) Motion to dismiss before answer (Rule 16)
(2) Motion to dismiss by plaintiff (Rule 17)
(3) Motion to dismiss on demurrer to evidence
after plaintiff has rested his case (Rule 33)
(4) Motion to dismiss appeal either in RTC
(Sec. 31, Rule 41), CA (Sec. 1, Rule 50) or SC
(Sec. 5, Rule 56)
Grounds
A motion to dismiss may be made on any of the
following grounds:
(a) That the court has no jurisdiction over the
person of the defending party;
(b) That the court has no jurisdiction over the
subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between
the same parties for the same cause;

(f) That the cause of action is barred by a prior
judgment or by the statute of limitations;
(g) That the pleading asserting the claim states no
cause of action;
(h) That the claim or demand set forth in the
plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded
is unenforceable under the provisions of the
statute of frauds; and
(j) That a condition precedent for filing the claim
has not been complied with.
Lack of jurisdiction
BOTICANO v. CHU
(148 SCRA 541, 1987)
Defect in service of summons cannot be raised for
the first time on appeal. Defects in jurisdiction
arising from irregularities in the commencement of
the proceedings, defective process or even absence
of process may be waived by a failure to make
seasonable objections.
FACTS: While loaded with logs, and properly parked by
its driver Maximo Dalangin at the shoulder of the
national highway in Nueva Ecija, Boticano’s Bedford
truck was hit and bumped at the rear by another
Bedford truck owned by private respondent Chu, Jr. and
driven by Sigua, the former’s co-defendant in the case.
Chu agreed to shoulder the expenses of the repair of the
damaged truck of the latter, but he failed to pay the
same.
Summons was issued but was returned
unserved because Sigua was no longer connected with
San Pedro Saw Mill, while Chu was properly served
through the receipt by his wife of such summons.
Boticano moved to dismiss the case against
Sigua and to declare Chu in default for failure to file
responsive pleadings within the reglementary period.
The motion was granted by the lower court allowing
petitioner to adduce his evidence ex parte. The RTC
found Chu responsible for the fault of his driver.
Chu filed a notice of appeal and a motion to
extend to file his record on appeal. Boticano motioned
to dismiss the appeal, which Chu’s counsel opposed. In
the end, Chu’s record on appeal was approved. The case
was brought to the CA, which set aside the RTC and
remanded the case to the court of origin for summons
to be properly served on Chu and for proceedings to be
taken. On appeal, Boticano questioned the CA’s ruling
that jurisdiction over Chu’s person was not acquired.
ISSUE: Whether the question of jurisdiction over the
person of the defendant can be raised for the first time on
appeal
NO. However, one of the circumstances
considered by the Court as indicative of waiver by
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER70
defendant-appellant of any alleged defect if jurisdiction
over his person arising from defective or even want of
process, is his failure to raise the question of
jurisdiction in the CFI and at the first opportunity.
Defects in jurisdiction arising from irregularities in the
commencement of the proceedings, defective process or
even absence of process may be waived by a failure to
make seasonable objections. During the stages of the
proceedings, in the case at bar, defendant-appellant
could have questioned the jurisdiction of the lower
court. But he did not. Chu here had voluntarily
submitted himself to the court’s jurisdiction. Thus,
jurisdiction was properly acquired by the trial court
over the person of respondent thru both service of
summons and voluntary appearance in court; he was
properly declared in default for not having filed any
answer; despite respondent’s failure to file a motion to
set aside the declaration of default, he has the right to
appeal the default of judgment but in the appeal only
the evidence of the petitioner may be considered,
respondent not having adduced any defense evidence.
Res judicata
DEL ROSARIO v. FEBTC
(537 SCRA 571, 2007)
Res judicata “bar by prior judgment,” as a ground to
dismiss the case has four essential requisites:
a) finality of the former judgment;
b) the court which rendered it had
jurisdiction over the subject matter and
the parties;
c) it must be a judgment on the merits; and
d) there must be, between the first and
second actions, identity of parties, subject
matter and causes of action.
FACTS: PDCP extended a P4.4 million loan to DATICOR,
which stipulated that DATICOR shall pay: a service fee
of 1% per annum (later increased 6% per annum) on
the outstanding balance; 12% per annum interest; and
penalty charges 2% per month in case of default. The
loans were secured by real estate mortgages over six
(6) parcels of land and chattel mortgages over
machinery and equipment.
DATICOR paid a total of P3 million to PDCP,
which the latter applied to interest, service fees and
penalty charges. This left them with an outstanding
balance of P10 million, according to PDCP’s
computation.
DATICOR filed a complaint against PDCP for
violation of the Usury Law and annulment of contract
and damages. The CFI dismissed the complaint. The IAC
set aside the dismissal and declared void and of no
effect the stipulation of interest in the loan agreement.
PDCP appealed the IAC's decision to SC.
In the interim, PDCP assigned a portion of its
receivables from DATICOR to FEBTC for of P5.4 M.

FEBTC and DATICOR, in a MOA, agreed to P6.4
million as full settlement of the receivables.
SC affirmed in toto the decision of the IAC,
nullifying the stipulation of interests. DATICOR thus
filed a Complaint for sum of money against PDCP and
FEBTC to recover the excess payment which they
computed to be P5.3 million. RTC ordered PDCP to pay
petitioners P4.035 million, to bear interest at 12% per
annum until fully paid; to release or cancel the
mortgages and to return the corresponding titles to
petitioners; and to pay the costs of the suit.
RTC dismissed the complaint against FEBTC
for lack of cause of action since the MOA between
petitioners and FEBTC was not subject to SC decision,
FEBTC not being a party thereto.
Petitioners and PDCP appealed to the CA,
which held that petitioners' outstanding obligation
(determined to be only P1.4 million) could not be
increased or decreased by any act of the creditor PDCP,
and held that when PDCP assigned its receivables, the
amount payable to it by DATICOR was the same amount
payable to assignee FEBTC, irrespective of any
stipulation that PDCP and FEBTC might have provided
in the Deed of Assignment, DATICOR not having been a
party thereto, hence, not bound by its terms.
By the principle of solutio indebiti, the CA held
that FEBTC was bound to refund DATICOR the excess
payment of P5 million it received; and that FEBTC could
recover from PDCP the P4.035 million for the
overpayment for the assigned receivables. But since
DATICOR claimed in its complaint only of P965,000
from FEBTC, the latter was ordered to pay them only
that amount.
Petitioners filed before the RTC another
Complaint against FEBTC to recover the balance of the
excess payment of P4.335 million.
The trial court dismissed petitioners'
complaint on the ground of res judicata and splitting of
cause of action. It recalled that petitioners had filed an
action to recover the alleged overpayment both from
PDCP and FEBTC and that the CA Decision, ordering
PDCP to release and cancel the mortgages and FEBTC to
pay P965,000 with interest became final and executory.
ISSUE: Whether the action should be dismissed on the
ground of res judicata
YES. There is no doubt that the judgment on
appeal relative to the first civil case was a final
judgment. Not only did it dispose of the case on the
merits, it also became executory as a consequence of
the denial of FEBTC’s motion for reconsideration and
appeal. In fact, authorities tend to widen rather than
restrict the doctrine of res judicata on the ground that
public as well as private interest demands the ending of
suits by requiring the parties to sue once and for all in
the same case all the special proceedings and remedies
to which they are entitled.
Section 47 of Rule 39 lays down two main
rules. Section 49(b) enunciates the first rule of res
judicata known as “bar by prior judgment” or “estoppel
by judgment,” which states that the judgment or decree
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER71
of a court of competent jurisdiction on the merits
concludes the parties and their privies to the litigation
and constitutes a bar to a new action or suit involving
the same cause of action either before the same or any
other tribunal.
Stated otherwise, “bar by former judgment”
makes the judgment rendered in the first case an
absolute bar to the subsequent action since that
judgment is conclusive not only as to the matters
offered and received to sustain it but also as to any
other matter which might have been offered for that
purpose and which could have been adjudged therein. It
is in this concept that the term res judicata is more
commonly and generally used as a ground for a motion
to dismiss in civil cases.
The second rule of res judicata embodied in
Section 47(c), Rule 39 is “conclusiveness of judgment.”
This rule provides that any right, fact, or matter in issue
directly adjudicated or necessarily involved in the
determination of an action before a competent court in
which a judgment or decree is rendered on the merits is
conclusively settled by the judgment therein and cannot
again be litigated between the parties and their privies
whether or not the claim or demand, purpose, or
subject matter of the two suits is the same. It refers to
a situation where the judgment in the prior action
operates as an estoppel only as to the matters actually
determined or which were necessarily included therein.
The case at bar satisfies the four essential
requisites of “bar by prior judgment,” viz:
a) finality of the former judgment;
b) the court which rendered it had jurisdiction
over the subject matter and the parties;
c) it must be a judgment on the merits; and
d) there must be, between the first and second
actions, identity of parties, subject matter and
causes of action.
Failure to state a cause of action
HALIMAO v. VILLANUEVA
(253 SCRA 1, 1996)
The rule that a motion to dismiss is to be
considered as a hypothetical admission of the facts
alleged in the complaint applies more particularly
to cases in which the ground for dismissal is the
failure of the complaint to state a cause of action.
FACTS: Reynaldo Halimao wrote a letter to the Chief
Justice, alleging that respondents, without lawful
authority and armed with armalites and handguns,
forcibly entered the Oo Kian Tiok Compound in Cainta,
Rizal, of which complainant was caretaker. Complainant
prayed that an investigation be conducted and that
respondents be disbarred.
Respondents Villanueva et. al. filed a
comment, claiming that the complaint is a mere
duplication of the complaint filed by Danilo Hernandez
 CIVIL PROCEDURE REVIEWER72

in Administrative Case No. 3835, which this Court had General rule: Averments in the complaint are
already dismissed for lack of merit. They pointed out deemed hypothetically admitted upon filing of a
that both complaints arose from the same incident and Motion to Dismiss grounded on failure to state a
the same acts complained of and that Danilo cause of action
Hernandez, who filed the prior case, is the same person
whose affidavit is attached to the complaint in this case. Exceptions: Motion to Dismiss does not admit the
Co-respondent Ferrer claimed that the two following:
complaints were filed for the purpose of harassing him 1) Epithets of fraud
because he was the principal lawyer of Atty. Daniel 2) Allegations of legal conclusions
Villanueva in two cases before the SEC. 3) Erroneous statements of law
This case was referred to the IBP, whose Board 4) Inferences or conclusions from facts not
of Governors dismissed the case. The Investigating stated
Commissioner found that the complaint is barred by the 5) Conclusions of law
decision in Administrative Case No. 3835 which 6) Allegations of fact, falsity of which is
involved the same incident. The complaints in the two subject to judicial notice
cases were similarly worded. 7) Matters of evidence
Complainant filed a motion for 8) Surplusage and irrelevant matter
reconsideration of the resolution of the IBP Board of 9) Scandalous or insulting matter
Governors, alleging that the commissioner erroneously 10) Legally impossible facts
dismissed the complaint since the respondents are 11) Unfounded facts by record incorporated in
deemed to have admitted the allegations of the pleading or document
complaint against them by filing a motion to dismiss
General averments contradicted
ISSUE: Whether the respondents hypothetically admitted
petitioner’s allegations by filing a motion to dismiss
NO. The rule that a motion to dismiss is to be
FACTS: Tan Keh sold two parcels of land to Tan Kiat, but
considered as a hypothetical admission of the facts
failed to effect the immediate transfer of the properties
alleged in the complaint applies more particularly to
since Tan Kiat was still a foreign national at the time of
cases in which the ground for dismissal is the failure of
the sale. Nevertheless Tan Keh secured the sale by
the complaint to state a cause of action. This rule does
executing a lease contract of 40 years in favor of Tan
not apply to other grounds for dismissal. In such cases,
Kiat.
the hypothetical admission is limited to the facts alleged
Four years later, Tan Keh sold the properties to
in the complaint which relate to and are necessary for
his brother, Tan. Tan knowingly held the property in
the resolution of these grounds as preliminary matters
trust for Tan Kiat until the latter acquires Filipino
involving substantive or procedural laws, but not to the
citizenship. The new TCTs were issued in the name of
other facts of the case.
Tan as trustee of Tan Kiat. Tank Keh and Tan executed
Two motions for reconsideration of this
another lease contract to secure the conveyance of the
resolution were filed by the complainant therein, both
property to Tan Kiat. Tan Kiat never paid rental and no
of which were denied. While the complainant (Danilo
demand for rentals was made on him.
Hernandez) in Administrative Case No. 3835 is different
Tan Died. Tan Kiat thereafter demanded for
from the complainant in the present case, the fact is that
the conveyance of the property as he was finally a
they have an identity of interest, as the Investigating
naturalized Filipino. Petitioners failed to convey them.
Commissioner ruled. Both complainants were
Tan Kiat filed a complaint for recovery of
employed at the Oo Kian Tiok Compound at the time of
property. Petitioners moved for its dismissal based,
the alleged incident. Both complain of the same act
among others, on failure to state a cause of action. RTC
allegedly committed by respondents. The resolution of
dismissed complaint acceding to all grounds set forth
this Court in Administrative Case No. 3835 is thus
by the petitioners. CA reversed and ordered that case be
conclusive in this case, it appearing that the complaint
remanded for further proceedings.
in this case is nothing but a duplication of the complaint
of Danilo Hernandez in the prior case.
ISSUE: Whether the complaint stated no cause of action
YES. Averments in the complaint are deemed
TAN v. CA
hypothetically admitted upon filing of a Motion to
(295 SCRA 247, 1998)
Dismiss grounded on failure to state a cause of action.
But there are also limitations to such rule.
In the case at bar, the “trust theory” claimed
by Tan Kiat does not hold water. The lease contract as
evidenced by document attached with the Motion to
Dismiss and admitted by Tan Kiat already belies the
latter’s claim of ownership. There is an apparent lessor-
lessee relationship. Ownership of Tan is further

MENDEZ, IVAN VIKTOR (2D, ’13)


supported by the annotated mortgage on the back of
the TCT which Tan executed in favor of a bank so as to
secure a loan. In truth, By the very nature of a mortgage
contract, Tan could not have mortgage the property if
he was not the real owner.
Having failed to prove the trust relationship, it
may be gleaned from the allegations that the
transaction was a double sale instead. Since Tan had the
TCT in his name, he is presumed to have the better
right.
Statute of Frauds
ASIA PRODUCTION CO., INC. v. PANO
(205 SCRA 458, 1992)
Under Article 1403, the contracts concerned are
simply "unenforceable" and the requirement that
they—or some note or memorandum thereof — be
in writing refers only to the manner they are to be
proved. It goes without saying then, that the statute
will apply only to executory rather than executed
contracts. Partial execution is even enough to bar
the application of the statute.
FACTS: Respondents Hua and Dy, owners of a building
constructed on a lot leased from Lucio San Andres and
located in Bulacan, sold the building to the petitioners
for P170,000.00, with the assurance that respondents
will also assign to them the contract of lease over the
land. The above agreement and promise were not
reduced to writing.
Private respondents undertook to deliver the
deed of conveyance over the building and the deed of
assignment of the contract of lease within sixty (60)
days upon the P20,000 downpayment. The balance was
to be paid in monthly installments. Petitioners paid the
downpayment and issued eight (8) postdated checks for
the payment of the eight (8) monthly installments.
Petitioners constructed a weaving factory on
the leased lot. Unfortunately, private respondents,
despite extensions granted, failed to comply with their
undertaking to execute the deed of sale and to assign
the contract despite the fact that they were able to
encash the checks in the total amount of P30,000.
Worse, the lot owner made it plain to petitioners that he
was unwilling to give consent to the assignment of the
lease unless petitioners agreed to certain onerous
terms, such as an increase in rental, or the purchase of
the land at a very unconscionable price.
Petitioners removed all their property,
machinery and equipment from the building, vacated
the same and returned its possession to private
respondents. They demanded from the latter the return
of their partial payment for the purchase price of the
building in the total sum of P50,000, which respondents
refused to return. Petitioner filed a complaint for
recovery and of actual, moral and exemplary damages
and attorney's fees with the CFI.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER73
Hua was declared in default. Dy filed a motion
to dismiss the complaint on the ground that the claim
on which the action is based — an alleged purchase of a
building which is not evidenced by any writing —
cannot be proved by parol evidence since Article 1356
in relation to Article 1358 of the Civil Code requires that
it should be in writing. The RTC granted the motion to
dismiss on the ground that the complaint is barred by
the Statute of Frauds. Their motion for reconsideration
was denied for the reason that the oral contract in this
case was not removed from the operation of the Statute
of Frauds because there was no full or complete
performance by the petitioners of the contract as
required by Jurisprudence.
ISSUE: Whether petitioner’s action is barred by the
Statute of Frauds
NO. Article 1403 of the Civil Code declares the
following contracts, among others, as unenforceable,
unless they are ratified: The purpose of the statute is to
prevent fraud and perjury in the enforcement of
obligations depending for their evidence on the
unassisted memory of witnesses by requiring certain
enumerated contracts and transactions to be evidenced
by a writing signed by the party to be charged. It was
not designed to further or perpetuate fraud.
Under Article 1403, the contracts concerned
are simply "unenforceable" and the requirement that
they—or some note or memorandum thereof — be in
writing refers only to the manner they are to be proved.
It goes without saying then, that the statute will apply
only to executory rather than executed contracts. Partial
execution is even enough to bar the application of the
statute.
The instant case is not for specific
performance of the agreement to sell the building and
to assign the leasehold right, but to recover the partial
payment for the agreed purchase price of the building.
By their motion to dismiss, private respondents
theoretically or hypothetically admitted the truth of the
allegations of fact in the complaint. The action is
definitely not one for specific performance; hence the
Statute of Frauds does not apply. And even if it were for
specific performance, partial execution thereof by
petitioners effectively bars the private respondents
from invoking it.
Condition precedent
SUNVILLE TIMBER PRODUCTS, INC. v. ABAD
(206 SCRA 482, 1992)
The doctrine of exhaustion of administrative
remedies calls for resort first to the appropriate
administrative authorities in the resolution of a
controversy falling under their jurisdiction before
the same may be elevated to the courts of justice for
review.
 CIVIL PROCEDURE REVIEWER74

FACTS: Sunville Timber Products (Sunville) was granted Who files

a Timber License Agreement (TLA), authorizing it to How pleaded
cut, remove and utilize timber within the concession Period
area covering 29,500 hectares of forest land in A motion to dismiss may be filed within the time for but
Zamboanga del Sur, for a period of 10 years. before filing the answer to the complaint or pleading
The respondents filed a petition with the asserting a claim. (Sec. 1, Rule 16)
DENR for the cancellation of the TLA and with the RTC
for injunction in a civil case, both on the ground of As affirmative defense
serious violations of its conditions and the provisions of If no motion to dismiss has been filed,
forestry laws. (1) any of the grounds for dismissal provided for
Sunville moved to dismiss this case on the in this Rule may be pleaded as an affirmative
ground that the plaintiffs had not yet exhausted defense in the answer, and
administrative remedies, among others.
(2) a preliminary hearing may be had thereon as
The motion to dismiss and the motion for
if a motion to dismiss had been filed, in the
reconsideration were denied. The CA sustained the
discretion of the court, (Sec. 6, Rule 16)
RTC’s decision. CA held that the doctrine of exhaustion
of administrative remedies was not without exception
-counterclaim which may be prosecuted in same or
and pointed to the several instances approved by this
separate action refers to permissive counterclaim
Court where it could be dispensed with. The applicable
exception was the urgent need for judicial intervention
Hearing and resolution
because City Council of Pagadian requested the Bureau
Hearing
of Forest Development to reserve 1,000 hectares in
At the hearing of the motion, the parties shall submit
Lison Valley. This request remained unacted upon.
(1) their arguments on the questions of law and
Instead a TLA covering 29,500 hectares, including the
(2) their evidence on the questions of fact
area requested, was given to petitioner Sunville. Due to
involved except those not available at that
the erosion caused by Sunville’s logging operations
time.
heavy floods have occurred in areas adjoining the
logging concessions. Thus, it is urgent that
NOTE: Should the case go to trial, the evidence
indiscriminate logging be stopped.
presented during the hearing shall automatically be
Sunville contends that the doctrine of
part of the evidence of the party presenting the same.
exhaustion of administrative remedies was not
(Sec. 2, Rule 16)
correctly applied
Resolution of motion
ISSUE: Whether the application of the doctrine of
After the hearing, the court may
exhaustion of administrative remedies is correct
(1) dismiss the action or claim,
NO. The doctrine of exhaustion of
administrative remedies calls for resort first to the (2) deny the motion, or
appropriate administrative authorities in the resolution (3) order the amendment of the pleading.
of a controversy falling under their jurisdiction before The court shall not defer the resolution of the motion
the same may be elevated to the courts of justice for for the reason that the ground relied upon is not
review. indubitable.
There is the explicit language of pertinent In every case, the resolution shall state clearly
laws vesting in the DENR the power and function "to and distinctly the reasons therefor. (Sec. 3, Rule 6)
regulate the development, disposition, extraction,
exploration and use of the country's forests" and "to
exercise exclusive jurisdiction" in the "management and
disposition of all lands of the public domain," and in the
Forest Management Bureau the responsibility for the
enforcement of the forestry laws aid regulations here
claimed to have been violated. This comprehensive MUNICIPALITY OF BINAN v. CA
conferment clearly implies at the very least that the (219 SCRA 69, 1993)
DENR should be allowed to rule in the first instance on
any controversy coming under its express powers
before the courts of justice may intervene. Preliminary Hearing under Sec 5, Rule 16 is not
The charge involves factual issues calling for mandatory even when the same is prayed for, It
the presentation of supporting evidence. Such evidence rests largely on the sound discretion of the trial
is best evaluated first by the administrative authorities, court.
employing their specialized knowledge of the A preliminary hearing on an affirmative
agreement and the rules allegedly violated, before the defense for failure to state a cause of action is not
courts may step in to exercise their powers of review. necessary.

MENDEZ, IVAN VIKTOR (2D, ’13)


FACTS: Petitioner Municipality of Binan filed for
unlawful detainer against private respondent Garcia,
stating that it was no longer amenable to the renewal of
its 25-year lease contract with private respondent over
the premises involved because of its pressing need to
use the same for national and provincial offices.
Garcia filed his answer to the complaint saying
that the contract of lease had not yet expired and,
assuming that it had expired, he has exercised his
option to stay in the premises for another 25 years as
expressly provided in the said contract.
Petitioner filed its reply. Subsequently private
respondent filed a "Motion for Preliminary Hearing as if
a Motion to Dismiss Has Been Filed" on the ground that
the complaint states no cause of action, reiterating his
previous argument.
The MTC ordered private respondent to vacate
the premises. Private respondent filed a
"Manifestation/Motion" in the nature of a motion to
dismiss, praying that the same be first resolved instead
of rendering judgment on the pleadings. Also, private
respondent filed a notice of appeal to the RTC.
Petitioner filed a motion for discretionary
execution, which was granted. A writ of execution was
issued directing the deputy sheriff to enforce the terms.
Private respondent filed with the CA an
appeal on the ground that the lower court failed to
conduct a preliminary hearing as prayed by his
previous motion. CA granted private respondent’s
appeal
ISSUE: Whether or not a preliminary hearing for a
Motion to Dismiss is mandatory
NO. It cannot be said that the lower court
committed a grave abuse of discretion or exceeded its
jurisdiction when it failed to conduct a preliminary
hearing, as prayed for in private respondent's "Motion
for Preliminary Hearing as if a Motion to Dismiss Has
Been Filed," before rendering judgment on the merits
of the case. The motion of private respondent is
anchored on the ground that the complaint states no
cause of action since the original term of 25 years
stipulated in the contract of lease had not yet expired
and assuming that it had expired, private respondent
had made known to petitioner his exclusive option to
renew it for another 25 years.
Section 5, Rule 16 allows the grounds for a
motion to dismiss to be set up as affirmative defenses in
the answer if no motion to dismiss has been filed.
However, contrary to the claim of private respondent,
the preliminary hearing permitted under the said
provision is not mandatory even when the same is
prayed for. It rests largely on the discretion of the trial
court. The use of the word "may" in said provision
shows that such a hearing is not a matter of right
demandable from the trial court. Where the provision
reads "may," this word shows that it is not mandatory
but discretional. It is an auxiliary verb indicating liberty,
opportunity, permission and possibility.
Moreover, a preliminary hearing on an
affirmative defense for failure to state a cause of action
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER75
is not necessary. It is a well-settled rule that in a motion
to dismiss based on the ground that the complaint fails
to state a cause of action, the question submitted to the
court for determination is the sufficiency of the
allegations in the complaint itself. Whether those
allegations are true or not is beside the point, for their
truth is hypothetically admitted by the motion. In other
words, to determine sufficiency of the cause of action,
only the facts alleged in the complaint, and no other
should be considered.
- preliminary hearing not mandatory
- preliminary hearing on an affirmative defense or
failure to state a cause of action not necessary
Effects
Of dismissal
An order granting a motion to dismiss based on the
following shall bar the refiling of the same action or
claim:
(1) That the cause of action is barred by a prior
judgment or by the statute of limitations;
(2) That the claim or demand set forth in the
plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished;
(3) That the claim on which the action is founded
is unenforceable under the provisions of the
statute of frauds; and
NOTE: They are still subject to the right of appeal
. (Sec. 5, Rule 16)
-appealable; refiling barred if motion based on Sec.
1 (f), (h), and (i)
On periods for pleading
If the motion is denied—
the movant shall file his answer within the balance of
the period prescribed by Rule 11 to which he was
entitled at the time of serving his motion, BUT not less
than five (5) days in any event, from his receipt of the
notice of the denial.
If the pleading is ordered to be amended—
He shall file his answer within the period prescribed by
Rule 11 counted from service of the amended pleading,
unless the court provides a longer period. (Sec. 4, Rule
16)
On other grounds and omnibus motion rule
A motion attacking a pleading, order, judgment, or
proceeding shall include all objections then available,
and all objections not so included shall be deemed
waived. (Sec. 8, Rule 15)
Exceptions
The court shall dismiss the claim when it appears from
the pleadings or the evidence on record that

(1) the court has no jurisdiction over the subject
matter,
(2) there is another action pending between the
same parties for the same cause, or that
(3) the action is barred by a prior judgment or
(4) barred by the statute of limitations. (Sec. 1,
Rule 9)
Remedies
If motion granted – appeal or refile complaint
If motion denied – file answer, unless without
jurisdiction, in which case, Rule 65 petition
NPC v. CA
(185 SCRA 169, 1990)
As a general rule, whenever a motion is denied, the
petitioner should file an answer, go to trial and if
the decision is adverse, reiterate the issue on
appeal. However, if the court who denies the motion
acts without or in excess of jurisdiction or with
grave abuse of discretion the proper move is to
proceed to a higher court for relief.
FACTS: FINE Chemicals, a company engaged in the
manufacturing of plastics applied with the NPC for
direct power connection. Meralco assured that it had
the capabilities to serve FINE but that to allow direct
connections will be detrimental to other consumers
since they’ll shoulder the additional subsidy burden.
However, NPC went on with the plan anyway
and provided its services with FINE. Because of this,
Meralco filed a petition for Prohibition, Mandamus and
Damages with Preliminary Injunction with the RTC.
FINE countered saying that Injuction would be moot
since the service has already been consummated and
the facilities have been installed and are functional.
Meralco amended its petition by incorporating
an application for a writ of preliminary mandatory
injunction. FINE moved to dismiss the amended
petition on the ground of insufficiency of the allegations
in the petition to plead a cause of action. The trial judge
allowed Meralco to adduce evidence over FINE’s
objection. FINE then filed a manifestation adopting its
Motion to Dismiss but was denied.
Undaunted, FINE proceeded directly to the CA
and filed a petition for Certiorari, Prohibition and
Mandamus. CA dismissed. Hence this petition.
ISSUE: Whether Meralco’s petition in the lower court
should be dismissed
YES. As a general rule, whenever a motion is
denied, the petitioner should file an answer, go to trial
and if the decision is adverse, reiterate the issue on
appeal. However, if the court who denies the motion
acts without or in excess of jurisdiction or with grave
abuse of discretion the proper move is to proceed to a
higher court for relief. It would be unfair to require the
defendant to undergo the ordeal and expense of trial
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER76
under such circumstances as the remedy of appeal
would not be plain and adequate.
More importantly, petitioner’s motion to
dismiss is based on the ground that the complaint
states no cause of action, so that there is no need for a
full blown trial. It is also important to note that the
courts will strive to settle the controversy in a single
proceeding leaving no root or branch to bear the seeds
of future litigation.
DISMISSAL OF ACTIONS (RULE 17)
Upon notice by plaintiff—before answer
A complaint may be dismissed by the plaintiff
(1) by filing a notice of dismissal
(2) at any time before service of the answer or of
a motion for summary judgment.
Upon such notice being filed, the court shall issue an
order confirming the dismissal.
 The court does not have to approve the
dismissal because it has no discretion on the
matter.
 Before an answer or motion for summary
judgment has been served upon plaintiff,
dismissal by the plaintiff is a matter of right.
 It occurs as of the filing of the notice, not upon
court’s confirmation.
General rule: The dismissal made by filing a notice of
dismissal is without prejudice.
Exceptions:
(1) The notice otherwise states; and
(2) When filed by a plaintiff who has once
dismissed in a competent court an action
based on or including the same claim, in
which case the notice operates as an
adjudication upon the merits. (Sec. 1, Rule 17)
O.B. JOVENIR v. MACAMIR REALTY
(2006)
The trial court has no discretion or option to deny
the motion, since dismissal by the plaintiff under
Section 1, Rule 17 is guaranteed as a matter of right
to the plaintiffs. Even if the motion cites the most
ridiculous of grounds for dismissal, the trial court
has no choice but to consider the complaint as
dismissed, since the plaintiff may opt for such
dismissal as a matter of right, regardless of ground.

FACTS: Macamir Realty and the Miranda Spouses
(principal stockholders) filed a complaint against
Jovenir Construction, seeking the annulment of the
construction project entered into by private
respondents with Jovenir, as well as for damages.
Jovenir n allegedly misrepresented itself as a legitimate
contractor.
Madeja and Mangrobang, Jr., the impleaded
defendants, filed their respective motions to dismiss.
Madeja alleged that while the spouses Miranda had
initiated the complaint on behalf of Macamir Realty, the
real party-in-interest, they failed to attach any Board
Resolution authorizing them to file suit on behalf of the
corporation. Madeja, a member of the Board of
Directors of Macamir Realty, averred as a fact that said
Board had not authorized the spouses Miranda to
initiate the complaint against Jovenir Realty.
Ten (10) days after the filing of the complaint,
private respondents filed a Motion to Withdraw
Complaint, alleging that during the initial hearing on
the prayer for preliminary injunction their counsel
discovered a supposed technical defect in the complaint
that may be a ground for the dismissal of this case.
Thus, they prayed to be allowed to withdraw the
complaint without prejudice. Jovenir Construction filed
an opposition.
However, just one day earlier, private
respondents filed another complaint against the same
defendants save for Madeja, and seeking the same
reliefs as the first complaint. This time, a Board
Resolution authorizing the spouses to file the Complaint
on behalf of Macamir Realty was attached to the
complaint. This second complaint was also filed with
the Makati RTC. The Verification and Certification of
Non-Forum Shopping in the second complaint was
accomplished by Rosauro Miranda.
Eleven (11) days after the filing of the Motion
to Withdraw Complaint and seven (7) days after the
filing of the second Complaint, the Makati RTC granted
the Motion to Withdraw Complaint. The RTC noted an
action may be dismissed by the plaintiffs even without
Order of the Court by filing a notice of dismissal at
anytime before the service of the answer under Rule 17,
Section 1 of the Rules of Court, and accordingly
considered the complaint withdrawn without prejudice.
Jovenir filed a Motion to Dismiss the second
complaint on the ground of forum-shopping. They
pointed out that at the time of the filing of the second
complaint, the first complaint was still pending. The
Makati RTC denied the Motion to Dismiss. This Order
was affirmed by the CA
ISSUE: Whether the dismissal was improper since
Macamir filed a Motion for Withdrawal instead of the
required Notice of Dismissal
NO. Section 1, Rule 17 of the 1964 Rules of
Civil Procedure stated:
Dismissal by the plaintiff — An action may be
dismissed by the plaintiff without order of
court by filing a notice of dismissal at any
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER77
time before service of the answer or of a
motion for summary judgment. Unless
otherwise stated in the notice, the
dismissal is without prejudice, except that a
notice operates as an adjudication upon the
merits when filed by a plaintiff who has once
dismissed in a competent court an action
based on or including the same claim. A class
suit shall not be dismissed or compromised
without the approval of the court.
Indubitably, the provision ordained the dismissal of the
complaint by the plaintiff as a matter of right at any
time before service of the answer. The plaintiff was
accorded the right to dismiss the complaint without the
necessity of alleging in the notice of dismissal any
ground nor of making any reservation.
Evidently, respondents had the right to
dismiss their complaint by mere notice when Jovenir
had not yet served their answer on respondents. The
Motion to Withdraw Complaint makes clear
respondents’ "desire to withdraw the complaint
without prejudice." That respondents resorted to a
motion to effect what they could have instead by mere
notice may be indicative of a certain degree of
ignorance of procedural rules on the part of
respondents’ counsel. Yet such "error," if it could be
called as such, should hardly be of fatal consequence.
Petitioners posit that the "remedy" of filing a notice of
dismissal is not exclusive, respondents having the
"option" of securing the court’s approval to the
dismissal. On the contrary, the trial court has no
discretion or option to deny the motion, since dismissal
by the plaintiff under Section 1, Rule 17 is guaranteed
as a matter of right to the plaintiffs. Even if the motion
cites the most ridiculous of grounds for dismissal, the
trial court has no choice but to consider the complaint
as dismissed, since the plaintiff may opt for such
dismissal as a matter of right, regardless of ground.
While the Motion to Withdraw Complaint is
styled as a "motion" and contains a "prayer", these are
innocuous errors and superfluities that do not detract
from its being a notice of dismissal made under said
Section 1 of Rule 17 and which ipso facto dismissed the
case. It is a hornbook rule that it is not the caption of a
pleading but the allegations thereat that determines its
nature.
Thus, the complaint could be properly
considered as having been dismissed or withdrawn as
of the filing of the Motion to Withdraw Complaint.
Accordingly, when respondents filed their new
complaint relating to the same cause of action on, the
old complaint was no longer pending.
As noted at the onset, the 1997 Rules of Civil
Procedure now requires that upon the filing of such
notice, the court issue an order confirming the
dismissal. The new requirement is intended to qualify
the right of a party to dismiss the action before the
adverse party files an answer or asks for summary
judgment. Still, there is no cause to apply the 1997
Rules retroactively to this case. A plaintiff’s right to

cause the dismissal of his complaint under the 1964
rules was unqualified. Procedural rules may not be
given retroactive effect if vested rights would be
disturbed, or if their application would not be feasible
or would work injustice.
Upon motion of plaintiff—after answer
SEC. 2. Dismissal upon motion of plaintiff.—Except as
provided in the preceding section, a complaint shall not
be dismissed at the plaintiff’s instance save upon
approval of the court and upon such terms and
conditions as the court deems proper. If a counterclaim
has been pleaded by a defendant prior to the service
upon him of the plaintiff’s motion for dismissal, the
dismissal shall be limited to the complaint. The
dismissal shall be without prejudice to the right of the
defendant to prosecute his counterclaim in a separate
action unless within fifteen (15) days from notice of the
motion he manifests his preference to have his
counterclaim resolved in the same action. Unless
otherwise specified in the order, a dismissal under this
paragraph shall be without prejudice. A class suit shall
not be dismissed or compromised without the approval
of the court. (2a)
Effect of counterclaim
Due to fault of plaintiff
SEC. 3. Dismissal due to fault of plaintiff.—If, for no
justifiable cause, the plaintiff fails to appear on the date
of the presentation of his evidence in chief on the
complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these
Rules or any order of the court, the complaint may be
dismissed upon motion of the defendant or upon the
court’s own motion, without prejudice to the right of
the defendant to prosecute his counterclaim in the same
or in a separate action. This dismissal shall have the
effect of an adjudication upon the merits, unless
otherwise declared by the court. (3a)
CRUZ v. CA
(2006)
Rule 17, Sec. 3 enumerates the instances where
the complaint may be dismissed due to plaintiff's
fault: (1) if he fails to appear on the date for the
presentation of his evidence in chief; (2) if he fails
to prosecute his action for an unreasonable
length of time; or (3) if he fails to comply with the
rules or any order of the court. Once a case is
dismissed for failure to prosecute, this has the
effect of an adjudication on the merits and is
understood to be with prejudice to the filing of
another action unless otherwise provided in the
order of dismissal. In other words, unless there
be a qualification in the order of dismissal that it
is without prejudice, the dismissal should be
regarded as an adjudication on the merits and is
with prejudice.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER78
FACTS: There are 4 cases involved in this controversy.
1st case: Unlawful Detainer before the MTC of
Gapan, Nueva Ecija, decided in 1998 in favor of
petitioner Cruz and Concepcion.
2nd case: Quieting of Title before the RTC of
Gapan, Nueva Ecija which was dismissed for failure to
prosecute as evidenced by the RTC in 2000. (Civil Case
1600)
3rd case: Suit for Injunction filed before the
RTC of Gapan City, which was dismissed on ground of
res judicata – because there was substantial identity of
parties with the 2nd case.
4th case: Annulment of Title With Damages filed
with RTC of Gapan City, where petitioners interposed a
Motion for Outright Dismissal of Civil Case, where the
court granted the Motion for Outright dismissal on g
reasoned that:ounds of res judicata and accion pendente
lite, after finding that – (1) the 3rd case involve the same
parties, subject matter and issue as that in the 1st case
and 2nd case; (2) in all 3 cases, Mariano Bunag was
included as party-plaintiff and Ernestina Concepcion as
party-defendant; (3) the subject matter is a 1,160 sq.m
parcel of land in San Nicolas, Gapan City;l (4) and the
issue is who between the 2 parties has the lawful title
over the same.
The court hereby sentenced guilty of indirect Contempt
of Court by reason of non-disclosure of Cases 1 and 2 in
the Certificate/Verification of their complaint – as
required by Section 5, Rule 7 of the ROC.
The respondents filed a MFR which the Court
granted by setting aside the order which granted the
defendant’s Motion for the Outright Dismissal and the
order citing the plaintiffs and counsel guilty for
contempt of court. The court thereby ordered the
defendants to file their answer/responsive pleading
within 15 days from receipt of the Court order.
Petitioners then appealed in the CA and the CA
dismissed the petition for lack of merit, reasoning that
there is no identity of parties between Case 1 and the
instant case for the simple reason that plaintiffs in the
case at bar were not parties in Case 1. Also, the
plaintiffs and their counsel can not be said to have
violated the rule against forum shopping. Plaintiffs and
their counsel did not file Case 1 and therefore they are
not obligated to inform this Court that they have filed a
similar action involving the same issue with other court.
In their comment, respondents Bunag and
Vda. de Bunag maintain that the CA did not err when it
held that there was no res judicata in the case at bar.
Petitioners claim that res judicata applies in
this case because all the elements thereof are present,
which are - (1) there must be a final judgment or order;
(2) said judgment or order must be on the merits; (3)
the Court rendering the same must have jurisdiction on
the subject matter and the parties; and (4) there must
be between the two cases identity of parties, identity of
subject matter, and identity of causes of action.
On the other hand, private respondents argue the
contrary alleging that the 2nd and 4th elements are
lacking.

ISSUE: Whether there was a proper dismissal of the
Civil Case 1600 (a case prior to the case at bar) - which
is a necessary element for res judicata to attach.
YES. Under the rule of res judicata, also known
as “bar by prior judgment,” a final judgment rendered
by a Court having jurisdiction of the subject matter and
of the parties, is conclusive in a subsequent case
between the same parties and their successor-in-
interest, litigating for the same thing and under the
same title and in the same capacity.
On the 2nd element of res judicata – that (2)
said judgment or order must be on the merits, the
private respondents argue that the dismissal of CASE 2
(Quieting of Title) was not a dismissal on the merits.
The dismissal of this case, they claim, will not bar the
filing of the instant case, Case 4 (for Annulment of Title)
because there was neither litigious consideration of the
evidence nor any stipulations submitted by the parties
at the trial. In fact, there was no pre-trial conference
and that after four years of court inactivity, the case
was dismissed for failure to prosecute.
The SC ruled that the argument raised by the
respondents is UNTENABLE. Section 3 of Rule 17 of the
ROC provides:
Section 3. Dismissal due to fault of plaintiff. – If,
for no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his
evidence in chief on the complaint, or to
prosecute his action for an unreasonable length
of time, or to comply with these Rules or any
order of the court, the complaint may be
dismissed upon motion of the defendant or
upon the court's own motion, without prejudice
to the right of the defendant to prosecute his
counterclaim in the same or in a separate
action. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise
declared by the court.
The rule enumerates the instances where
the complaint may be dismissed due to plaintiff's
fault: (1) if he fails to appear on the date for the
presentation of his evidence in chief; (2) if he fails to
prosecute his action for an unreasonable length of time;
or (3) if he fails to comply with the rules or any order of
the court. Once a case is dismissed for failure to
prosecute, this has the effect of an adjudication on the
merits and is understood to be with prejudice to the
filing of another action unless otherwise provided in the
order of dismissal. In other words, unless there be a
qualification in the order of dismissal that it is without
prejudice, the dismissal should be regarded as an
adjudication on the merits and is with prejudice.
In the case at bar, the order dismissing Case
2 / Civil Case No. 1600 is based on the failure of the
plaintiffs as well as counsel to appear on several
settings despite due notices, precisely for the reception
of plaintiffs’ evidence, upon motion of the defendant
through Atty. Mark Arcilla, this case is dismissed for
failure to prosecute.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER79
It is clear from the afore-mentioned order
that said case was dismissed, upon petitioners’
motion, for failure of private respondents and their
counsel to attend several scheduled hearings for the
presentation of their evidence. Since the order did
not contain a qualification whether same is with or
without prejudice, following Section 3, it is deemed to
be with prejudice and shall have the effect of an
adjudication on the merits. A ruling based on a motion
to dismiss, without any trial on the merits or formal
presentation of evidence, can still be a judgment on the
merits.
Effect on counterclaim
PINGA v. SANTIAGO
(2006)
Under Section 3, Rule 17 of the 1997 Rules of Civil
Procedure, the dismissal of the complaint due to the
fault of plaintiff does not necessarily carry with it
the dismissal of the counterclaim, compulsory or
otherwise. In fact, the dismissal of the complaint is
without prejudice to the right of defendants to
prosecute the counterclaim.
FACTS: Petitioner Eduardo Pinga was named as one of
two defendants in a complaint for injunction filed in
RTC Zamboanga del Sur, by respondent Heirs of German
Santiago, represented by Fernando Santiago. The
Complaint alleged in essence that petitioner Pinga and
co-defendant Saavedra had been unlawfully entering
the coco lands of the respondent, cutting wood and
bamboos and harvesting the fruits of the coconut trees
therein.
Respondents prayed that petitioner Pinga and
Saavedra be enjoined from committing "acts of
depredation" on their properties, and ordered to pay
damages.
In their Amended Answer with
Counterclaim, petitioner and his co-defendant disputed
respondents’ ownership of the properties in question,
asserting that petitioner’s father, Edmundo, from whom
defendants derived their interest in the properties, had
been in possession thereof since the 1930s.
By July of 2005, the trial of the case had not
yet been completed. Moreover, respondents, as
plaintiffs, had failed to present their evidence. It
appears that the RTC already ordered the dismissal of
the complaint after respondents’ counsel had sought
the postponement of the hearing scheduled
then. However, the order of dismissal was subsequently
reconsidered by the RTC in an Order dated 9 June 2005,
which took into account the assurance of respondents’
counsel that he would give priority to that case.
At the hearing, plaintiffs’ counsel on record
failed to appear, sending in his stead a representative
who sought the postponement of the hearing. Counsel
for defendants (who include herein petitioner) opposed
the move for postponement and moved instead for the

dismissal of the case. The RTC noted that it was obvious
that respondents had failed to prosecute the case for an
unreasonable length of time, in fact not having
presented their evidence yet. On that ground, the
complaint was dismissed. At the same time, the RTC
allowed defendants "to present their evidence ex-parte."
Respondents filed a Motion for
Reconsideration. RTC granted respondents’ Motion for
Reconsideration and dismissing the
counterclaim. Petitioner Pinga filed a Motion for
Reconsideration, but the same was denied by the RTC.
Respondents filed an Opposition to Defendants’ Urgent
Motion for Reconsideration, wherein they argued that
that "compulsory counterclaims cannot be adjudicated
independently of plaintiff’s cause of action," and "a
conversu, the dismissal of the complaint carries with it
the dismissal of the compulsory counterclaims." 1
The matter was elevated to this Court directly by way of
a Petition for Review under Rule 45 on a pure question
of law
ISSUE: Whether the dismissal of the complaint
necessarily carries the dismissal of the compulsory
counterclaim
NO. Under Section 3, Rule 17 of the 1997
Rules of Civil Procedure, the dismissal of the complaint
due to the fault of plaintiff does not necessarily carry
with it the dismissal of the counterclaim, compulsory or
otherwise. In fact, the dismissal of the complaint is
without prejudice to the right of defendants to
prosecute the counterclaim.
On a prefatory note, the RTC, in dismissing the
counterclaim, did not expressly adopt respondents’
argument that the dismissal of their complaint
extended as well to the counterclaim. Instead, the RTC
justified the dismissal of the counterclaim on the
ground that "there is no opposition to [plaintiff’s]
Motion for Reconsideration [seeking the dismissal of
the counterclaim]." This explanation is hollow,
considering that there is no mandatory rule requiring
that an opposition be filed to a motion for
reconsideration without need for a court order to that
effect; and, as posited by petitioner, the "failure to file
an opposition to the Plaintiff’s Motion for
Reconsideration is definitely not one among the
established grounds for dismissal [of the
counterclaim]." Still, the dismissal of the counterclaim
by the RTC betrays at very least a tacit recognition of
respondents’ argument that the counterclaim did not
survive the dismissal of the complaint. At most, the
dismissal of the counterclaim over the objection of the
defendant (herein petitioner) on grounds other than
the merits of the counterclaim, despite the provisions
under Rule 17 of the 1997 Rules of Civil Procedure,
constitutes a debatable question of law, presently
meriting justiciability through the instant action.
The doctrine that the complaint may not be
dismissed if the counterclaim cannot be
independently adjudicated is not available to, and
was not intended for the benefit of, a plaintiff who
prevents or delays the prosecution of his own
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER80
complaint. Otherwise, the trial of counterclaims would
be made to depend upon the maneuvers of the plaintiff,
and the rule would offer a premium to vexing or
delaying tactics to the prejudice of the
counterclaimants. It is in the same spirit that we have
ruled that a complaint may not be withdrawn over the
opposition of the defendant where the counterclaim is
one that arises from, or is necessarily connected with,
the plaintiff’s action and cannot remain pending for
independent adjudication.
Accordingly, the RTC clearly erred when it
ordered the dismissal of the counterclaim, since Section
3, Rule 17 mandates that the dismissal of the complaint
is without prejudice to the right of the defendant to
prosecute the counterclaim in the same or separate
action. If the RTC were to dismiss the counterclaim, it
should be on the merits of such counterclaim. Reversal
of the RTC is in order, and a remand is necessary for
trial on the merits of the counterclaim.
PERKIN ELMER v. DAKILA TRADING
(2007)
Extraterritorial service of summons applies only
where the action is in rem or quasi in rem, but not if
an action is in personam.
FACTS: Dakila Trading Corp (Dakila) entered into a
Distribution Agreement with Perkin-Elmer Singapore
Pte. Ltd. (PES) which appointed Dakila as sole
distributor of its products in the Philippines. PES was
obligated to give Dakila a commission for the sale of its
products in the Philippines. Dakila was granted the
right to purchase and sell the products of PES. The
agreement further stipulated that Dakila shall order the
products of PES, which it shall sell in the Philippines,
either from PES itself or from PEIP.
However, PES unilaterally terminated the
Distribution Agreement, prompting Dakila to file before
the RTC a Complaint for Collection of Sum of Money and
Damages with Prayer for Issuance of a Writ of
Attachment against PES and its affiliate, Perkin-Elmer
Instruments Philippines Corporation (PEIP). RTC
denied respondent’s prayer.
Dakila filed Ex-Parte Motions for Issuance of
Summons and for Leave of Court to Deputize Dakila’s
General Manager (DGM) to Serve Summons Outside of
the Philippines. RTC granted this motion. Thus, an Alias
Summons was issued by the RTC to PES. But the said
Alias Summons was served and received by Perkin-
Elmer Asia (PEA), a corporation allegedly unrelated to
PES. PEIP moved to dismiss the Complaint filed by
Dakila. PEA, on the other hand, sent letters to Dakila
and RTC to inform them of the wrongful service of
summons.
Accordingly, Dakila filed an Ex-Parte Motion to
Admit Amended Complaint, together with the Amended
Complaint claiming that (1) PEA had become a sole
proprietorship owned by the PES, (2) PES changed its
name to PEA, (3) such changes did not avoid its due and
outstanding obligations to Dakila, and (4) the name of

PES in the complaint should be changed to PEA. RTC
admitted the Amended Complaint.
Dakila filed another Motion for the Issuance of
Summons and for Leave of Court to Deputize DGM to
serve summons outside the Philippines. RTC granted
the motion. RTC thus issued summons and the DGM
went to Singapore and served summons on PES.
Meanwhile, RTC denied the Motion to Dismiss
filed by PEIP, compelling the latter to file its Answer to
the Amended Complaint.
PES filed with the RTC a Special Appearance
and Motion to Dismiss the Amended Complaint, which
were denied. It held that even though the Amended
Complaint is primarily for damages, it does relate to a
property of PES, to which the latter has a claim interest,
or an actual or contingent lien, which will make it fall
under one of the requisites for extraterritorial service.
PES filed a Petition for Certiorari under Rule
65 with application for temporary restraining order
and/or preliminary injunction before the CA. The CA
affirmed the RTC Orders.
ISSUE: Whether summons were properly served under
the 2nd or 4th instance of extra-territorial service
NO. Extraterritorial service of
summons applies only where the action is in rem or
quasi in rem, but not if an action is in personam. In the
case at bar, there can never be a valid extraterritorial
service of summons upon it, because the case involving
collection of a sum of money and damages is an action
in personam, as it deals with the personal liability of
PES by reason of the alleged unilateral termination of
the Distribution Agreement. The objective sought in
Dakila’s Complaint was to establish a claim against PES.
Moreover, The action instituted by Dakila affects the
parties alone, not the whole world.
Thus, being an action in personam, personal
service of summons within the Philippines is necessary
in order for the RTC to validly acquire jurisdiction over
the person of PES, and this is not possible in the present
case because the PES is a non-resident and is not found
within the Philippines. Dakila’s allegation in its
Amended Complaint that PES had personal property
within the Philippines in the form of shares of stock in
PEIP did not make the case fall under any of the four
instances mentioned in Section 15, Rule 14 of the Rules
of Court, as to convert the action in personam to an
action in rem or quasi in rem and, subsequently, make
the extraterritorial service of summons upon the
petitioner valid.
The 2nd instance for extra-territorial service
has no application in the case. The action for collection
of a sum of money and damages was purely based on
the personal liability of the PES. For the action to be one
falling under the 2nd instance, the main subject matter
of the action must be the property itself of the PES in
the Philippines and in such instance, judgment will be
limited to the res. However, the allegations made by the
respondent that the petitioner has property within the
Philippines in support of its application for the issuance
of a writ of attachment was actually denied by the RTC.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER81
Neither does the allegation that PES had
personal property within the Philippines in the form of
shares of stock in PEIP convert the case from an action
in personam to one quasi in rem, so as to qualify said
case under the 4th instance of extra-territorial service.
What is required is not a mere allegation of the
existence of personal property belonging to the non-
resident defendant within the Philippines but that the
non-resident defendant’s personal property located
within the Philippines must have been actually
attached. Evidently, PES’s personal property within the
Philippines, in the form of shares of stock in PEIP, had
not been attached; hence, the case for collection of sum
of money and damages remains an action in personam.
In the case at bar, there can never be a valid
extraterritorial service of summons upon it, because the
case involving collection of a sum of money and
damages is an action in personam, as it deals with the
personal liability of PES by reason of the alleged
unilateral termination of the Distribution Agreement.
The objective sought in Dakila’s Complaint was to
establish a claim against PES. Moreover, The action
instituted by Dakila affects the parties alone, not the
whole world.
Thus, being an action in personam, personal
service of summons within the Philippines is necessary
in order for the RTC to validly acquire jurisdiction over
the person of PES, and this is not possible in the present
case because the PES is a non-resident and is not found
within the Philippines. Dakila’s allegation in its
Amended Complaint that PES had personal property
within the Philippines in the form of shares of stock in
PEIP did not make the case fall under any of the four
instances mentioned in Section 15, Rule 14 of the Rules
of Court, as to convert the action in personam to an
action in rem or quasi in rem and, subsequently, make
the extraterritorial service of summons upon the
petitioner valid.
Remedy of plaintiff
KO v. PNB
(419 SCRA 298, 2006)
Considering that an order of dismissal for failure to
prosecute has the effect of an adjudication on the
merits, petitioners’ counsel should have filed a notice
of appeal with the appellate court within the
reglementary period. Instead of filing a petition under
Rule 45 of the Rules of Court, the proper recourse was
an ordinary appeal with the Court of Appeals under
Rule 41.
FACTS: This is a petition for review on certiorari
assailing the Order of the Regional Trial Court of Laoag
City.The case stemmed from an action filed by
petitioners in the trial court for Annulment of Mortgage,
Extra-judicial Foreclosure Sale, Annulment of Transfer
Certificate and Deed of Sale with a Prayer for
Preliminary Injunction and Restraining Order. The

complaint alleged that the assailed mortgage and the
foreclosure proceedings were null and void since the
written consent of petitioners, as beneficiaries of the
mortgaged property, were not secured. Respondent
bank denied the claim and alleged that in the execution
of the mortgage, petitioners in fact gave their consent.
During the course of the proceedings,
petitioners and their counsel failed to attend a
scheduled trial. Upon motion of respondent bank, the
complaint was dismissed. When the case was called,
Atty. Lorenzo Castillo, counsel for the plaintiffs did not
appear despite proper notice. No plaintiff appeared.
Atty. Eduardo Alcantara, counsel for defendant bank
appeared.
Atty. Alcantara manifested that there were numerous
occasions in the past when plaintiffs and counsel did
not attend. He pointed out that there is an apparent lack
of interest on the part of plaintiff to prosecute the
action. He moved to dismiss the case on that legal
ground.
Petitioners filed a motion for reconsideration claiming
that they have been continuously pursuing negotiations
with respondent bank to purchase back the property
and have gained positive results. Respondent bank
countered that from the time the complaint was filed, a
period of three years had elapsed but petitioners failed
to prosecute their case, showing lack of interest in the
early resolution thereof. The trial court denied the
motion for reconsideration.
ISSUE: Whether the petitioners, who failed to attend a
scheduled trial and dismissed by the court, may file a
petition for review on certiorari under Rule 45
NO. On the procedural aspect, we find that
petitioners erred in filing a petition for review on
certiorari under Rule 45 of the Rules of Court instead of
filing an appeal with the Court of Appeals. Section 3,
Rule 17 of the Rules of Court provides:
SEC. 3. Dismissal due to fault of plaintiff.—If,
for no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his
evidence in chief on the complaint, or to
prosecute his action for an unreasonable
length of time, or to comply with these Rules
or any order of the court, the complaint may
be dismissed upon the motion of the
defendant or upon the court’s own motion,
without prejudice to the right of the defendant
to prosecute his counterclaim in the same or
in a separate action. This dismissal shall
have the effect of an adjudication upon the
merits, unless otherwise declared by the
court.
Upon the order of dismissal, petitioners’
counsel filed a timely motion for reconsideration which
was denied by the trial court.
The rule is clear. In order to perfect an appeal
all that is required is a pro forma notice of appeal.
Perhaps due to failure to file a notice of appeal within
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER82
the remaining two days of the appeal period,
petitioners’ counsel instead filed the instant petition.
The rules of procedure, however, do not exist for the
convenience of the litigants. These rules are established
to provide order to and enhance the efficiency of our
judicial system. They are not to be trifled with lightly or
overlooked by mere expedience of invoking "substantial
justice."
Procedural law has its own rationale in the
orderly administration of justice, namely, to ensure
the effective enforcement of substantive rights by
providing for a system that obviates arbitrariness,
caprice, despotism or whimsicality in the
settlement of disputes. The enforcement of
procedural rules is not antithetical to the
substantive rights of the litigants.
The expeditious disposition of cases is as much the duty
of the plaintiff as the court. It must be remembered that
a defendant in a case likewise has the right to the
speedy disposition of the action filed against him 7
considering that any delay in the proceedings entail
prolonged anxiety and valuable time wasted.
In the case at bar, three years have since
lapsed from the filing of the complaint on May 3, 2002
and the order of dismissal on April 27, 2005.
Petitioners’ failure to prosecute their case and proceed
with the trial during the span of three years leads to no
other conclusion than that petitioners have no interest
in seeing their case terminated at the earliest possible
time; or that petitioners’ case is unmeritorious from
inception. Whichever the case may be, the dismissal
order of the trial court stand and is now immutable.
Petitioners cannot claim that they were
deprived of due process. True, the right to due process
safeguards the opportunity to be heard and to submit
any evidence one may have in support of his claim or
defense. Nonetheless, we have time and again held that
where the opportunity to be heard, either through
verbal arguments or pleadings, is accorded, and the
party can "present its side" or defend its "interest in due
course," there is no denial of due process. What the law
proscribes is the lack of opportunity to be heard.
Petitioners had the opportunity to present their case
and claim the relief they seek. But their inadvertence
and lack of circumspect renders the trial court’s order
dismissing their case final and executory.
Dismissal of counterclaim
SEC. 4. Dismissal of counterclaim, cross-claim, or third-
party complaint.—The provisions of this Rule shall
apply. to the dismissal of any counterclaim, cross-claim,
or third-party complaint. A voluntary dismissal by the
claimant by notice as in section 1 of this Rule, shall be
made before a responsive pleading or a motion for
summary judgment is served or, if there is none, before
the introduction of evidence at the trial or hearing. (4n)
DEFAULT (Rule 9, Sec. 3)
Nature in general
 CIVIL PROCEDURE REVIEWER83

A defending party shall be declared in default when (2006)

(1) Ground: He fails to answer within the time
allowed therefor, the court shall, No incompatibility bet. Section 3, Rule 9 of the 1997
(2) The claiming party files a motion to declare Rules of Civil Procedure and the rule on
the defending party in default, furnishing preponderance of evidence under Section 1, Rule 133
proof of failure to answer of the Rules of Court
(3) Said party gives notice of such motion to the
defending party,
FACTS: Ps filed a complaint before RTC of QC against R
The court shall proceed to render judgment granting seeking for annulment of the extra-judicial foreclosure
the claimant such relief as his pleading may warrant, and auction sale made by city sheriff of parcel of land
covered by TCT No. 16711 of the RD of QC the
 unless the court in its discretion requires the
conventional redemption thereof, and prayed for
claimant to submit evidence.
damages and the issuance of a writ of preliminary
 Such reception of evidence may be delegated
injunction.
to the clerk of court. (1a, R18)
Complaint alleged that: P Chua obtained a loan
from R bank in the amount of P75k secured by a real
(a) Effect of order of default.—A party in default shall be
estate mortgage over a parcel of land, and owned in
entitled to notice of subsequent proceedings but NOT to
common by Ps. the loan was not paid, R commenced
take part in the trial.
extra-judicial foreclosure, property was sold in the
auction sale to R for the sum of P24.9k Such sale was
(b) Relief from order of default.—A party declared in
tainted with irregularity because, the bid price was
default may at any time after notice thereof and before
shockingly or unconscionably, low; that the other Ps
judgment file a motion under oath to set aside the order
(Gajudos) failed to redeem the property due to their
of default upon proper showing that his failure to
lack of knowledge of their right of redemption, and
answer was due to fraud, accident, mistake or excusable
want of sufficient education; that Chua offered to buy
negligence and that he has a meritorious defense. In
back, and R also agreed to sell back, the foreclosed
such case, the order of default may be set aside on such
property, on the understanding that Chua would pay
terms and conditions as the judge may impose in the
Rthe amount of P40k, the sum that the bank paid at the
interest of justice.
auction sale, plus interest; that Chua made an initial
payment P4k,; that, in a sudden change of position, R
(c) Effect of partial default.—When a pleading asserting
wrote Chua asking that he could repurchase the
a claim states a common cause of action against several
property, but based on the current market value
defending parties, some of whom answer and the
thereof; R wrote Chua requiring him to tender a new
others fail to do so, the court shall try the case against
offer.
all upon the answers thus filed and render judgment
R filed its answer with counterclaim, asserting
upon the evidence presented.
that the foreclosure sale of the mortgaged property was
(d) Extent of relief to be awarded.—A judgment
done in accordance with law; and that the bid price was
rendered against a party in default shall not exceed the
neither unconscionable, nor shockingly low; that Ps
amount or be different in kind from that prayed for nor
slept on their rights when they failed to redeem the
award unliquidated damages.
property within the one year statutory period.
"Pre-trial having been concluded, the parties
(e) Where no defaults allowed.—If the defending party
entered upon trial, a big conflagration hit the City Hall
in an action for annulment or declaration of nullity of
of QC (amazing!) which destroyedthe records of the
marriage or for legal separation fails to answer, the
case. After the records were reconstituted, the
court shall order the prosecuting attorney to investigate
foreclosed property was sold by R to the Ceroferr Realty
whether or not a collusion between the parties exists,
Corporation, and that the notice of lis pendens
and if there is no collusion, to intervene for the State in
annotated on the certificate of title had already been
order to see to it that the evidence submitted is not
cancelled. P with leave of court, amended their
fabricated. (Sec. 3, Rule 9)
complaint, but the Trial Court dismissed the case
‘without prejudice’ due to P’s failure to pay additional
When may a defendant be declared in default?
filing fees.
(1) Failure to file answer
P re-filed the complaint with the same Court,
(2) Failure to furnish copy of answer
impleading as additional defendants the Ceroferr Realty
(3) Failure to appear at pre-trial
Corporation and additional cause of action, that new
(4) Failure to comply with modes of discovery
defendants conspired with R in canceling the notice of
lis pendens.
When allowed
Summons was served on R,P filed a motion to
set case for pre-trial, which motion was denied by the
Effect
TC in its Order of on the ground that R bank has not
yet filed its answer. P filed a motion to declare R in
GAJUDO v. TRB
MENDEZ, IVAN VIKTOR (2D, ’13)

default, alleging that no answer has been filed despite
the service of summons. TC declared the motion
submitted for resolution upon submission by Ps of
proof of service of the motion on R. Upon giving proof, R
was declared in default. P were allowed by the Court
allowed to present evidence ex parte. A partial decision
was made.
R filed a motion to set aside partial decision by
default and admit that their Answer with counterclaim:
averred that the erroneous filing of said answer was
due to an honest mistake of the typist and inadvertence
of its counsel.Motion was denied.
Respondent bank appealed the Partial
Decision to the CA which ruled in favor of R.
ISSUE: Whether CA erred in failing to apply the
provisions of Section 3, Rule 9 of the 1997 Rules of Civil
Procedure and in applying instead the rule on
preponderance of evidence under Section 1, Rule 133 of
the Rules of Court.
NO. The Petition has no merit.
Ps argue that the quantum of evidence for
judgments flowing from a default order under Section 3
of Rule 9 is not the same as that provided for in Section
1 of Rule 133.
Between the two rules, there is no
incompatibility that would preclude the application of
either one of them. To begin with, Section 3 of Rule 9
governs the procedure which the trial court is directed
to take when a defendant fails to file an answer.
According to this provision, the court "shall proceed to
render judgment granting the claimant such relief as his
pleading may warrant," subject to the court’s discretion
on whether to require the presentation of evidence ex
parte. The same provision also sets down guidelines on
the nature and extent of the relief that may be granted.
In particular, the court’s judgment "shall not exceed the
amount or be different in kind from that prayed for nor
award unliquidated damages."
parties must rely on the strength of their own
evidence, not upon the weakness of the defense offered
by their opponent. This principle holds true, especially
when the latter has had no opportunity to present
evidence because of a default order.
A defaulted defendant is not actually thrown
out of court. While in a sense it may be said that by
defaulting he leaves himself at the mercy of the court,
the rules see to it that any judgment against him must
be in accordance with law. The evidence to support the
plaintiff’s cause is, of course, presented in his absence,
but the court is not supposed to admit that which is
basically incompetent. Although the defendant would
not be in a position to object, elementary justice
requires that only legal evidence should be considered
against him. If the evidence presented should not be
sufficient to justify a judgment for the plaintiff, the
complaint must be dismissed. And if an unfavorable
judgment should be justifiable, it cannot exceed in
amount or be different in kind from what is prayed for
in the complaint.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER84
In sum, while petitioners were allowed to
present evidence ex parte under Section 3 of Rule 9,
they were not excused from establishing their claims for
damages by the required quantum of proof under
Section 1 of Rule 133. Stated differently, any advantage
they may have gained from the ex parte presentation of
evidence does not lower the degree of proof required.
Clearly then, there is no incompatibility between the
two rules.
VLASON ENTERPRISES v. CA
(310 SCRA 26, 1999)
(1) Where the counsel failed object on the ground of
lack of notice to a Motion addressed to a former
counsel, and was granted by the trial court 30 days to
file his opposition to it, the circumstances clearly
justify a departure from the literal application of the
notice of hearing rule.
(2) The issuance of an order of default is a condition
sine qua non in order that a judgment by default be
clothed with validity.
Furthermore, it is a legal impossibility to
declare a party-defendant to be in default before it was
validly served summons.
FACTS: Seizure proceedings were held over the cargo of
Omega’s vessel, M/V Star Ace, while it was docked in the
PPA compound at La Union. La Union was hit by 3
typhoons, which damaged the vessel. Because of this,
Omega entered into a salvage agreement with
Duraproof Services to secure and repair the vessel for
$1 million and fifty percent (50%) of the cargo after all
expenses, cost and taxes.
The District Collector of Customs lifted the
warrant of seizure, but the Customs Commissioner
declined to issue a clearance; instead, he forfeited the
vessel and its cargo.
This prompted Duraproof to enforce its
preferred salvors lien by filing with the RTC a petition
for certiorari, prohibition and mandamus assailing the
actions of the Customs Officers, and impleading PPA
and Med Line Philippines, Inc. as respondents.
Duraproof amended its petition to include the
former District Collector, and other companies involved,
including Vlason Enterprises. In both Petitions,
Duraproof failed to allege anything pertaining to Vlason
Enterprises, or any prayer for relief against it.
Summonses for the amended Petition were
served. Duraproof moved several times to declare the
respondents it impleaded in default. Out of those
respondents, only the following were declared by RTC
in default: the Singkong Trading Co., Commissioner
Mison, M/V Star Ace and Omega. Duraproof filed an ex
parte Motion to present evidence against the defaulting
respondents, which was granted.
Duraproof alleged that Vlason Enterprises,
through constant intimidation and harassment in
utilizing the PPA Management of La Union, caused

Duraproof to incur heavy overhead expenses, causing
irreparable damages of about P3 Million worth of ship
tackles, rigs, and appurtenances including radar
antennas and apparatuses, which were taken
surreptitiously by persons working for Vlason
Enterprises or its agents.
The RTC ruled that in favor of Duraproof and
ordered Vlason to pay P3 Million worth of damages.
Duraproof and the other companies entered into a
compromise agreement, except Vlason.
Duraproof moved for the execution of
judgment. The Motion was granted and a Writ of
Execution was issued.
Vlason Enterprises filed a Motion for
Reconsideration addressed to Duraproof’s counsel, Atty.
Concepcion, on the ground that it was allegedly not
impleaded as a defendant, served summons or declared
in default, and hence Duraproof may not present
evidence against it in default. Duraproof opposed the
Motion, arguing that it was a mere scrap of paper due to
its defective notice of hearing.
Despite this Motion, the auction sale was
conducted. The trial court ordered the deputy sheriffs
to cease and desist from implementing the Writ of
Execution and from levying on the personal property of
the defendants. The order was unheeded.
Duraproof filed with the CA a Petition for
Certiorari and Prohibition to nullify the cease and desist
orders of the trial court. CA issued a TRO against the
RTC order. Vlason received from a notice to pay
Duraproof P3 million. Not having any knowledge of the
CA case to which it was not impleaded, Vlason filed with
the RTC a Motion to Dismiss.
The sheriff levied Vlason Enterprises’
properties, so the latter filed a special appearance
before the CA, praying for the lifting of the levy on its
properties or, alternatively, for a temporary restraining
order against their auction until its Motion for
Reconsideration was resolved by the trial court.
RTC reversed its Decision, finding that there
never was issued an order of default against Vlason
Enterprises, so there could not have been any valid
default-judgment rendered against it.
The CA allowed Duraproof to implead Vlason
in the CA case. Thereafter, the CA rendered the assailed
Decision, stating that the decision of the RTC had
become final and executory, never having been disputed
or appealed to a higher court, and that the lower court
may now take appropriate action on the urgent ex-parte
motion for issuance of a writ of execution. The CA
clarified that there was no need to serve summons
anew on Vlason Enterprises, since it had been served
summons when the second amended petition was filed;
and that Vlason Enterprisess Motion for
Reconsideration was defective and void, because it
contained no notice of hearing addressed to the counsel
of Duraproof in violation of Rule 16, Section 4 of the
Rules of Court.
Vlason Enterprises filed (1) a Motion for
Clarification, praying for a declaration that the trial
court Decision against it was not valid; and (2) a partial
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER85
Motion for Reconsideration, seeking to set aside the
assailed Decision insofar as the latter affected it.
The RTC issued a Writ of Possession by virtue
of which Duraproof took possession of Vlason’s barge
Lawin.
Hence, this Petition.
ISSUE: Whether the RTC default judgment was binding
on Vlason
NO. Vlason was never declared in default. The
trial court denied Motion of Duraproof to declare all the
defendants in default, but it never acted on the latters
subsequent Motion to declare Vlason Enterprises
likewise.The RTC declared in default only Atty. Eddie
Tamondong, as well as the other defendants Hon.
Salvador Mison, M/V Star Ace, Omega Sea Transport Co.,
Inc. of Panama and Sinkong Trading Co., but despite due
notice to them, they failed to appear. Even Duraproof
cannot pinpoint which trial court order held petitioner
in default.
More important, the trial court admitted that
it never declared petitioner in default. There could not
have been any valid default-judgment rendered against
it. The issuance of an order of default is a condition sine
qua non in order that a judgment by default be clothed
with validity.
Furthermore, it is a legal impossibility to
declare a party-defendant to be in default before it was
validly served summons.
Order of default
When some answer and others default
Extent of relief to be awarded
Where not allowed
Procedure after order of default
-render judgment
-hearing ex parte
Remedy from order of default
Motion to set aside
RAMNANI v. CA
(221 SCRA 582, 1993)
A satisfactory showing by the movant of the
existence of fraud, accident, mistake or excusable
neglect is an indispensable requirement for the
setting aside of a judgment of default or order of
default.
FACTS: The Dizons filed a case for a sum of money
against the Ramnanis’ failure to remit the value of
jewelry that the latter received from the former on a
consignment basis.
Josephine Ramnani submitted an answer with
counterclaim stating the fact that it was the Dizons who
owed them money.
Pre-Trial was set but the Ramnanis did not
show up hence they were declared in default. The court

later received the evidence of the Dizons ex parte due to
the Ramnanis status of default. Lower court ruled in
favor of the Dizons.
Ramnanis stated a meritorious defense as an
excuse to set aside their order of default. They stated
that the obligation was entered into by Mrs Dizon
without Mr. Dizon’s consent ergo void. It was, however,
denied.
A Petition for Certiorari was filed with the CA
imputing error despite their meritorious defense.
Denied since the CA ruled that certiorari is a remedy
only for errors of jurisdiction, not errors in judgement.
ISSUE: Whether the order of default against the
petitioners should be set aside
NO. Remedies for a party held in default:
1.) Anytime after discovery thereof & before judgement:
FAME +meritorious defense
2.) If judgment already rendered upon discovery but
before it becomes final and executory: motion for new
trial.
3.) After it becomes final and executory: petition for
relief under Section 2 of rule 8
4.) Appeal from judgment as contrary to the evidence or
to the law.
In the case at bar, the petitioner failed to prove
that they were unable to attend the pre-trial hearing
due to FAME.
Remedies from judgment by default
Before finally
Motion for reconsideration or new trial
Appeal
MARTINEZ v. REPUBLIC
(2006)
A defendant party declared in default retains the
right to appeal from the judgment by default on the
ground that the plaintiff failed to prove the
material allegations of the complaint, or that the
decision is contrary to law, even without need of
the prior filing of a motion to set aside the order of
default.
FACTS: Jose R. Martinez filed a petition for the
registration in his name of three (3) parcels of land he
allegedly purchased from his uncle. He claimed
continuous possession of the lots; that the lots had
remained unencumbered; and that they became private
property through prescription pursuant to Section
48(b) of CA No. 141.
The OSG was furnished a copy of the petition.
The trial court set the case for hearing and directed the
publication of the corresponding Notice of Hearing in
the Official Gazette. The OSG, in behalf of the Republic of
the Philippines, opposed the petition.
Despite the opposition filed by the OSG, the
RTC issued an order of general default, even against the
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER86
Republic of the Philippines. This ensued when during
the hearing of even date, no party appeared before the
Court to oppose Martinez’s petition.
RTC received Martinez’s oral and
documentary evidence and concluded that Martinez
and his predecessors-in-interest had been for over 100
years in possession characterized as continuous, open,
public, and in the concept of an owner. The RTC thus
decreed the registration of the three (3) lots in the
name of Martinez.
From this Decision, the OSG filed a Notice of
Appeal, which was approved by the RTC. However, after
the records had been transmitted to the CA, the RTC
received a letter from the LRA stating that only two of
the lots sought to be registered were referred to in the
Notice of Hearing published in the Official Gazette, and
that the third lot was omitted due to the lack of an
approved survey plan for that property. LRA manifested
that this lot should not have been adjudicated to
Martinez for lack of jurisdiction. This letter was
referred by the RTC to the Court of Appeals for
appropriate action.
The CA reversed the RTC and ordered the
dismissal of the petition for registration. It found the
evidence presented by Martinez as insufficient to
support the registration of the subject lots.
Martinez directly assailed the CA decision
before the SC, claiming that the OSG no longer had
personality to oppose the petition, or appeal its
allowance by the RTC, following the order of general
default.
ISSUE: Whether an order of general default bars the
Republic from interposing an appeal from the trial
court’s subsequent decision
NO. We hold that a defendant party declared
in default retains the right to appeal from the judgment
by default on the ground that the plaintiff failed to
prove the material allegations of the complaint, or that
the decision is contrary to law, even without need of the
prior filing of a motion to set aside the order of default.
By 1997, the doctrinal rule concerning the
remedies of a party declared in default had evolved into
a fairly comprehensive restatement as offered in Lina v.
Court of Appeals:
a) The defendant in default may, at any time
after discovery thereof and before judgment,
file a motion, under oath, to set aside the
order of default on the ground that his failure
to answer was due to fraud, accident, mistake
or excusable neglect, and that he has
meritorious defenses; (Sec 3, Rule 18)
b) If the judgment has already been rendered
when the defendant discovered the default,
but before the same has become final and
executory, he may file a motion for new trial
under Section 1(a) of Rule 37;
c) If the defendant discovered the default after
the judgment has become final and executory,
he may file a petition for relief under Section 2
of Rule 38; and

d) He may also appeal from the judgment
rendered against him as contrary to the
evidence or to the law, even if no petition to
set aside the order of default has been
presented by him. (Sec. 2, Rule 41)
The fourth remedy, that of appeal, is anchored on
Section 2, Rule 41 of the 1964 Rules. Yet even after that
provision’s deletion under the 1997 Rules, the Court did
not hesitate to expressly rely again on the Lina doctrine,
including the pronouncement that a defaulted
defendant may appeal from the judgment rendered
against him.
Yet even if it were to assume the doubtful
proposition that this contested right of appeal finds no
anchor in the 1997 Rules, the doctrine still exists,
applying the principle of stare decisis. Jurisprudence
applying the 1997 Rules has continued to acknowledge
the Lina doctrine which embodies this right to appeal as
among the remedies of a defendant, and no argument in
this petition persuades the Court to rule otherwise.
NOTE: The RTC appears to have issued the order of
general default simply on the premise that no oppositor
appeared before it on the hearing. But it cannot be
denied that the OSG had already duly filed its
Opposition to Martinez’s petition long before the said
hearing. It was improper to declare the oppositor in
default simply because he failed to appear on the day
set for the initial healing. Strangely, the OSG did not
challenge the propriety of the default order. It would
thus be improper for the Court to make a
pronouncement on the validity of the default order
since the same has not been put into issue.
After finality
Petition for relief from judgment
Annulment of judgment
Is certiorari a proper remedy?
JAO v. CA
(251 SCRA 391, 1995)
The proper remedy of a party wrongly declared in
default is either to appeal from the judgment by
default or to file a petition for relief from judgment,
and not certiorari.
FACTS: Due to the non-appearance of the petitioner Jao
& Company, Inc., during the hearing on the merits, the
Regional Trial Court of Manila, Branch 51 — upon
motion of herein private respondent Top Service, Inc. —
issued an order dated April 14, 1989 declaring said
petitioner in default and allowed evidence to be
presented ex-parte. The petitioner however filed an
answer. On May 26, 1989, the trial court rendered a
decision ordering Jao to pay Top Service the agreed
rentals with 12% interest. A writ of preliminary
injunction was issued by the RTC. By virtue of such
decision, Top Service stated that Jao’s counsel had
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER87
withdrawn his appearance in the trial court and left no
forwarding address. No notice of the said order of
default and the decision could be given it. The former
contends that the latter’s remedy was timely appeal,
which the latter failed to perfect.
ISSUE: Whether the decision of the trial court,
promulgated on May 26, 1989, became final
YES. Under ordinary circumstances, the
proper remedy of a party wrongly declared in
default is either to appeal from the judgment by
default or to file a petition for relief from judgment,
and not certiorari. A default judgment is an
adjudication on the merits and is, thus, appealable.
Since appeal is the proper remedy, the extraordinary
writ of certiorari will not lie.
Petitioner contends that it could not be bound
by the questioned Order of April 14, 1989 declaring it in
default and the subsequent Decision of May 20, 1989
because it did not receive copies thereof. Respondents
counter that such non-service was due to petitioner's
fault in not furnishing the trial court with its
"forwarding address" after its counsel withdrew his
appearance. This Court is not in a position to settle this
issue of fact — as indeed the Supreme Court does not
decide such questions.
But it is not disputed that after receipt of the
decision, petitioner filed a motion for reconsideration.
Thus, whatever defects — if indeed there was any —
may have been committed by the trial court in failing to
give constructive notice of its erroneous default order
was cured by petitioner's voluntary filing of the said
motion for reconsideration. Upon denial thereof,
petitioner should have appealed. But instead of doing
that, it opted for the wrong remedy of certior
INDIANA AEROSPACE UNIVERSITY v. CHED
(356 SCRA 367, 2001)
The remedies available to a defendant VALIDLY
declared in default are as follows: (1) a motion to set
aside the order of default under Section 3(b), Rule 9
of the Rules of Court, if the default was discovered
before judgment could be rendered; (2) a motion for
new trial under Section 1(a) of Rule 37, if the default
was discovered after judgment but while appeal is
still available; (3) a petition for relief under Rule 38,
if judgment has become final and executory; and (4)
an appeal from the judgment under Section 1, Rule
41, even if no petition to set aside the order of
default has been resorted to.
FACTS: In 1996, the Chairman of the Technical Panel for
Engineering, Architecture, and Maritime Education
(TPRAM) of CHED, received a letter from Douglas
Macias –Chairman of the Board of Aeronautical
Engineering, PRC inquiring whether petitioner Indiana
Aerospace University had already acquired university

status in view of their representation in the
advertisement in the Manila Bulletin.
After investigation, it was found that there was
a violation committed by the IAU when it used the term
“university” when it had not yet complied with the basic
requirement of being a university as prescribed in
CHED Memoradum. Respondent CHED inquired from
the SEC as to the status of the registered name of
petitioner and it was affirmed that IAU (registered as
Indiana School of Aeronautics, Inc.) had not amended
its Articles of Incorporation to change its name to a
“university.” CHED ordered IAU to desist from using the
word “university.” IAU through its chairman and
founder appealed to the Order of CHED averring that
the school will encounter difficulties and suffer
damages if it will not be allowed to use the word
“university” in its school name.
Prior to the court decision granting the Cease
and Desist Order filed by CHED, petitioner IAU filed
Complaint for Damages before the Court. Respondent
CHED then filed a Special Appearance with Motion to
Dismiss the Complaint for damages. Petitioner IAU filed
Opposition to the Motion to Dismiss. The TC Judge
denied respondent CHED’s motion to dismiss and
issued a writ of preliminary injunction in favor of IAU.
The TC Judge also directed CHED to file its Answer to
the decision within 15 days from the receipt of the
Court Order – which was August 15, 1998. On
September 22, 1998, petitioner IAU filed Motion to
Declare Respondent in Default pursuant to Section 9,
Section 3 of RROC. On the same day, respondent CHED
filed for Motion for Extension of Time to File its Answer
until November 18, 1998, but CHED submitted its
Answer however on November 17, 1998. On November
11, petitioner IAU filed its Opposition to the Motion for
Extension of Time to File respondent’s Answer. Trial
Judge rendered its Decision and granted petitioner’s
motion to declare respondent CHED in Default.
Respondent CHED consequently filed with the
CA a petition for certiorari arguing that the RTC had
committed grave abuse of discretion in declaring
respondent CHED in default despite its Filing of an
Answer.
The CA ruled that respondent CHED should
NOT have been declared in default, because its answer
had been filed long before the RTC ruled upon
petitioner’s Motion to declare respondent in default.
Thus, respondent had not obstinately refused to file an
Answer; on the contrary, its failure to do so on time was
due to excusable negligence. (an express exception to
being declared in default under Rule 9, SecTion 3).
Thus, IAU instituted case at bar to appeal the CA
decision.
ISSUE: Whether respondent CHED should be declared in
default despite its filing of an answer, and whether its
failure to file answer on time be excused on ground that
it was due to excusable negligence
NO. The SC agreed with respondent CHED that
certiorari was the only plain, speedy and adequate
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER88
remedy in the ordinary course of law, because the
default Order had improvidently been issued.
The remedies available to a defendant
declared in default are as follows: (1) a motion to set
aside the order of default under Section 3(b), Rule 9 of
the Rules of Court, if the default was discovered before
judgment could be rendered; (2) a motion for new trial
under Section 1(a) of Rule 37, if the default was
discovered after judgment but while appeal is still
available; (3) a petition for relief under Rule 38, if
judgment has become final and executory; and (4) an
appeal from the judgment under Section 1, Rule 41,
even if no petition to set aside the order of default has
been resorted to.
These remedies, however, are available only to
a defendant who has been validly declared in default.
Such defendant irreparably loses the right to participate
in the trial. On the other hand, a defendant
improvidently declared in default may retain and
exercise such right after the order of default and the
subsequent judgment by default are annulled, and the
case remanded to the court of origin. The former is
limited to the remedy set forth in section 2, paragraph 3
of Rule 41 of the pre 1997 Rules of Court, and can
therefore contest only the judgment by default on the
designated ground that it is contrary to evidence or
law. The latter, however, has the following options: to
resort to this same remedy; to interpose a petition for
certiorari seeking the nullification of the order of
default, even before the promulgation of a judgment by
default; or in the event that judgment has been
rendered, to have such order and judgment declared
void.
In prohibiting appeals from interlocutory
orders, the law does not intend to accord executory
force to such writs, particularly when the effect
would be to cause irreparable damage. If in the
course of trial, a judge proceeds without or in
excess of jurisdiction, this rule prohibiting an
appeal does not leave the aggrieved party without
any remedy. In a case like this, a special civil action
of certiorari is the plain, speedy and adequate
remedy. (as such as what CHED had done).
Herein respondent CHED controverts the
judgment by default, not on the ground that it is
unsubstantiated by evidence or that it is contrary to
law, but on the ground that it is intrinsically void for
having been rendered pursuant to a patently invalid
order of default.