PRE-BAR LECTURE NOTES

REMEDIAL LAW
CIVIL PROCEDURE
ATTY. GEORGE S.D. AQUINO
2018
WHAT ARE THE ASPECTS OF JURISDICTION?
(1) Jurisdiction over the subject matter
(2) Jurisdiction over the parties;
(3) Jurisdiction over the issues of the case; and
(4) Jurisdiction over the res or the thing which is the subject of the
litigation.

(Boston Equity Resources, Inc., vs. Court of Appeals and Lolita G.

Toledo, G.R. No. 173946, 19 June 2013)
SUBJECT MATTER JURISDICTION
• Jurisdiction over the subject matter is "the power to hear and
determine cases of the general class to which the proceedings in
question belong.
• It is conferred by law, which may either be the Constitution or a statute.
• Jurisdiction over the subject matter means "the nature of the cause of
action and the relief sought."
• Thus, the cause of action and character of the relief sought as alleged
in the complaint are examined to determine whether a court had
jurisdiction over the subject matter.
• Any decision rendered by a court without jurisdiction over the subject
matter of the action is void.
(Department of Finance v. Dela Cruz, G.R. No. 209331, 24 August
2015)
1. Jurisdiction over the subject matter is determined based on the law
in effect as of the filing of the complaint.
2. Jurisdiction depends on the allegations in the complaint, not on the
eventual decision, nor on the defenses raised by opposing party.
3. Doctrine of continuing jurisdiction – once jurisdiction has been
acquired, the court retains the same until it finally disposes of the case.
4. In Figueroa v. People, G.R. No. 147406, 14 July 2008: Supreme Court ruled
that jurisdiction over the subject matter is conferred by law (the sovereign
authority) and cannot be waived. Therefore, it cannot be conferred by
consent of the parties nor lost by estoppel.
5. However, the case of Tijam v. Sibonghanoy, G.R. No. L-21450, 15 April
1968, gives an exception to the aforementioned rule. In said case, the
Supreme Court introduced the doctrine of JURISDICTION by ESTOPPEL
where the Supreme Court ruled that when a party participated and sought
affirmative relief, he cannot thereafter repudiate that jurisdiction after an
adverse judgment has been rendered.
6. Doctrine of Primary Jurisdiction- if an administrative agency has
jurisdiction over a dispute, regular courts ought to respect that jurisdiction.
Jurisdiction over the parties
HOW DO COURTS ACQUIRE JURISDICTION OVER THE PLAINTIFF?
• upon the filing of the complaint.

HOW DO COURTS ACQUIRE JURISDICTION OVER THE DEFENDANT?

• either through the service of summons upon them or through their
voluntary appearance in court and their submission to its authority
(Chu v. Mach Asia Trading, G.R. No. 184333, 1 April 2013).
• Voluntary appearance comes by way of the filing of a motion or
pleading expressly submitting to the court’s jurisdiction or seeking
affirmative relief therefrom.
• In a case where the defendant filed an Urgent Motion to Set Aside
Order of Default and to Admit Attached Answer, she is deemed to
have submitted to the court’s jurisdiction even if there were
defects in the service of summons. (Planters’ Development Bank
v. Chandumal, G.R. No. 195619, 5 September 2012).
Jurisdiction over the parties

• However, if the defendant filed an Answer by way of Special

Appearance (without prejudice to jurisdictional challenges), this is
NOT to be considered a voluntary appearance. (Prudential Bank v.
Magdamit, Jr., G.R. No. 183795, 12 November 2014).

• Under Section 20, Rule 14 of the Rules of Court, when a party files a
Motion to Dismiss, even if he includes grounds other thank lack of
jurisdiction over the person, this shall NOT be considered a voluntary
appearance.
Jurisdiction over the Issues
• determined and conferred by the pleadings filed in the case by the
parties, or by their agreement in a pre-trial order or stipulation, or,
at times by their implied consent as by the failure of a party to object
to evidence on an issue not covered by the pleadings

(Regalado Law Compendium, cited in De Joya v. Marquez, G.R. No.

162416, 31 January 2006)
Jurisdiction over the Res
• This is acquired either:
(a) by the seizure of the property under legal process, whereby it is
brought into actual custody of the law, or
(b) as a result of the institution of legal proceedings, in which the
power of the court is recognized and made effective.
 RULE 1
GENERAL PROVISIONS
What are the rules on docket fees vis-à-vis its
commencement?
• Specify the amount of damages being prayed for not only in the body
of the pleading but also in the prayer.
• Any pleading that fails to comply with this requirement shall not be
accepted nor admitted, or shall otherwise be expunged from the
record.” (Manchester Development Corp. v. Court of Appeals, No. L-
75919, 7 May 1987)
• If 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 therefor shall constitute a lien on the
judgment.
(Sun Insurance Office, Ltd. v. Asuncion, G.R. Nos. 79937-38, 13
February 1989)
What are the actions governed by the Rules
of Court?
• Civil Action - action that seeks to enforce or protect a right or to
prevent a wrong
• Special Civil Action - an independent action based on specific grounds
• Criminal Action - action that seeks to prosecute an act or omission
punishable by law
• Special Proceeding - a remedy by which a party seeks to establish a
status, right or a particular fact. To initiate a special proceeding, a
petition and not a complaint should be filed.
Rules of Court not applicable in certain cases

• Election case EXCEPTION is when the application of

the provisions of the Rules of Court is
• Land Registration
only by analogy or in a suppletory
• Cadastral character and it is practicable and
• Naturalization convenient.

• Insolvency
• Rehabilitation
• Other cases
When is an action deemed commenced?

• On the date of the filing of the original complaint

oEXCEPTION - when an additional defendant is impleaded, the action is
commenced as to him on the date of the filing of the amended
pleading. BUT, with regard to the other parties, the action is
commenced still on the date of filing of the original complaint.
 RULE 2
CAUSE OF ACTION
Elements:
1. A right in favor of the plaintiff by whatever means and under
whatever law it arises or is created;
2. An obligation on the part of the named defendant to respect or not
to violate such right; and
3. Act or omission on the part of such 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.
(Swagman v. Court of Appeals, G.R. No. 161135, 8 April 2005)
• The test of the sufficiency of the facts alleged in the complaint is
whether or not, admitting the facts alleged, the court can render a
valid judgment upon the same in accordance with the prayer of
plaintiff.
• The focus is on the sufficiency, not the veracity, of the material
allegations.
• Failure to make a sufficient allegation of a cause of action in the
complaint warrants its dismissal.

(Anchor Savings Bank v. Furigay, G.R. No. 191178, 13 March 2013).

RULE 2
Failure to State a Cause of Action v. Lack of Cause of Action
Failure to State a Cause of Action is a ground to dismiss; lack of cause of
action is NOT.
Examples:
• Plaintiff filed case against defendant to compel the latter to extend a
contract of lease. Even assuming the allegations of the complaint are
true, this does not give rise to an actionable right as the extension of a
contract of lease must be mutually agreed upon and not compelled by
court action.
• In an action for injunction by a plaintiff against a defendant who is
allegedly encroaching on his property, defendant raised the defense
of “lack of cause of action” because he allegedly had title over the
property. Defendant argued that in effect, plaintiff was seeking to
nullify his title. The Supreme Court ruled that plaintiff had stated a
sufficient cause of action because his allegations (as to ownership and
alleged encroachment) are hypothetically admitted as true. (Ceroferr
v. CA, 5 February 2002)
HYPOTHETICAL ADMISSIONS DO NOT EXTEND
TO CONCLUSIONS
(Westmont Bank v. Funai, 8 July 2015).
• Unless the plaintiff has a valid and subsisting cause of action at the
time his action is commenced, the defect cannot be cured or
remedied by the acquisition or accrual of one while the action is
pending, and a supplemental complaint or an amendment setting up
such after-accrued cause of action is not permissible
(Swagman v. Court of Appeals, G.R. No. 161135, 8 April 2005)
WHAT IS ANTICIPATORY BREACH?
• “If the contract is divisible in its performance and the future periodic
deliveries are not yet due, and if the obligor has already manifested
his refusal to comply with his future periodic obligations, ‘the
contract is entire and the breach total’, hence, there can only be one
action for damages.”
• (Danfoss, Inc. v. Continental Cement Corp., G.R. No. 143788, 9
September 2005, citing Blossom & Company, Inc. v. Manila Gas
Corporation, G.R. No. L-32958, 8 November 1930)
WHAT IS THE RULE ON CAUSES OF ACTION?

• A party cannot split a single cause of action but may JOIN as

many causes of action against an opposing party.
TEST AS TO WHETHER THE CASE INVOLVES
THE SAME CAUSE OF ACTION:
(a)whether the same evidence would support and sustain both the first
and second causes of action (also known as the "same evidence" test),
(b) whether the defenses in one case may be used to substantiate the
complaint in the other.
(c) whether the cause of action in the second case existed at the time
of the filing of the first complaint.
(Umale v. Canoga, G.R. No. 167246, 20 July 2011)
Examples of splitting a cause of action:

• In Riviera v. CCA, 17 June 2015, the SC ruled that two cases which are
based on (a) failure to pay license fees and (b) damages due to
unearned profits, respectively, SPLIT a cause of action because they
are “ultimately anchored” on the breach of one agreement.

• In Marilag v. Martinez, 22 July 2015, a petitioner instituted an action

for JUDICIAL foreclosure and later on filed a personal action for
collection of the debt. This was considered as SPLITTING a CAUSE
OF ACTION. But note that this does not preclude a filing for motion
for the deficiency judgment after the foreclosure sale.
• When there are several installment payments due, each payment due
constitutes one cause of action. However, ALL due as of the time of filing
must be brought in the same action. (BPI v. Coscolluela, 27 June 2006)

Q: In one case, a lessee who violated the terms of its lease was subjected
to an unlawful detainer case. (Case 1) While Case 1 was pending
appeal, the lease agreement expired and the lessor filed another
unlawful detainer case (Case 2). Is this considered as “splitting a
cause of action”?

A: No. In Umale v. Canoga, 20 July 2011, the Supreme Court ruled that
the violations of the terms of the lease and the eventual expiration of
the lease constitute separate causes of action, and they do not
constitute a “SPLITTING”.
RULES ON JOINDER:
Sec. 5. Joinder of causes of action. – A party may in one pleading
assert, in the alternative or otherwise, as many causes of action as he
may have against an opposing party, subject to the following
conditions:

(a) The party joining the causes of action shall comply with the
rules on joinder of parties;

(b) The joinder shall not include special civil actons or actions
governed by special rules;
RULES ON JOINDER:
(c) Where the causes of action are between the same parties but
pertain to different venues or jurisdiction, the joinder may be
allowed in the Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and 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. (5a)
EFFECT OF SPLITTING A CAUSE OF ACTION:

• If two or more suits are instituted on the basis of the same cause of
action, the filing of one or a judgment on the merits in any one is ground
for the dismissal of the others. (Umale v. Canoga, G.R. No. 167246, 20
July 2011).
• NOTE: It need not be the second action that is dismissed.
• Considerations to determine which action should prevail:
1. The date of the filing, with preference generally to the first action filed
to be retained;
2. Whether the action sought to be dismissed was filed merely to
preempt the later action or to anticipate its filing and lay the basis for is
dismissal; and

3. Whether the action is the appropriate vehicle for litigating the issues
between the parties.”
• The dismissal may occur while the two actions are pending (based on
litis pendentia) or, after the first case is filed and terminated, a second
case may be barred by res judicata.
(Benavidez v. Salvador, G.R. No. 173331, 11 December 2013)
Joinder of causes of action allowed in the RTC
even if other causes of action pertain to the MTC
provided one of the causes of action falls within its
jurisdiction
• As the RTC has jurisdiction over the action to declare the interest
rates and foreclosure void, the RTC is allowed to decide the action for
violation of the Truth Lending Act which was jointly instituted even if
such cause of action falls within the jurisdiction of the MTC (UCPB v.
Spouses Beluso, GR No. 159912, August 17, 2007)
Where all the causes of action are principally for
recovery of money, what is the test of jurisdiction?

• The aggregate amount claimed.

o This embodies the "totality rule" as exemplified by Section 33 (1) of B.P.
Blg. 129 which states, among others, that "where there are several claims
or causes of action between the same or different parties, embodied in
the same complaint, the amount of the demand shall be the totality of the
claims in all the causes of action, irrespective of whether the causes of
action arose out of the same or different transactions."
Misjoinder of causes of action NOT a ground
for dismissal

• Misjoinder of the action for quieting of tile which is a special civil

action under Rule 63 and an action for declaration of nullity in one
suit is not a ground for the dismissal of the case (Roman Catholic
Archbishop of San Fernando v. Soriano, GR Nos. 153829 and 160909,
August 17, 2011)
What is the effect of a misjoinder of causes of
action and parties?
• The Court can order:
1. The severance of the misjoined cause of action, to be proceeded
with separately (in case of misjoinder of causes of action); and/or
2. The dropping of a party and the severance of any claim against
said misjoined party, also to be proceeded with separately (in
case of misjoinder of parties). (Republic v. Herbieto)
RULE 3
PARTIES
Who are parties to a civil action?
• Plaintiff
• Defendant

Who may be plaintiffs/defendants?

• Natural or
• Juridical Persons or
• entities authorized by law (Section 1, Rule 3)
EXAMPLES:
• When a group of individuals claiming to represent an association filed a
case and all signed the verification, and the association was not duly
registered or incorporated, the Supreme Court held that the plaintiff
had no personality to sue (Dueñas v. Santos Subdivision Homeowners
Association, G.R. No. 149417, 4 June 2004).
• When a dissolved corporation filed a case beyond the 3-year winding up
period, it was considered to be without personality to sue. The Supreme
Court explained the rule that if the corporation commenced the suit within
the 3-year period, even if litigation ends after the said period, the
corporation is deemed to have personality. (Alabang Development
Corporation v. Alabang Hills, G.R. No. 187456, 2 June 2014).
• Note: under Section 122 of the Corporation Code, the suit of the dissolved
corporation must be in connection with the closure and settlement of its affairs.

NOTE: under Section 15 of Rule 3, as a party defendant, “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.”
Examples of entities authorized by law to be
parties:
1. Estate of a deceased person
2. Legitimate Labor organization
3. Corporation under dissolution under Section 122 of the Corporation
Code.
REAL PARTY IN INTEREST
• Who is a real party in interest?
o One who has a material interest in the case and stands to be benefited or
injured by the judgment in the case. The rule is that every civil action must
be prosecuted in the name of the real party in interest.
• The rule is that every civil action must be prosecuted in the name of
the real party in interest.
o What is the ground for dismissal if it is not?
 Failure of the complaint to state a cause of action
EXAMPLE:
• A Petition for Declaration of Nullity of Marriage may only be
brought by the husband or wife. Hence, even if an heir of one of
the spouses will benefit (by inheritance) if the marriage is
declared null, he/she cannot file the Petition himself/herself.
(Carlos v. Sandoval, G.R. No. 179922, 16 December 2008)
Who is the real party in interest in an action
for recovery of possession or ownership?
• The rule is that any one of the co-owners may bring any kind of
action for the recovery of co-owned properties since the suit is
presumed to have been filed for the benefit of all co-owners. This
clear under Article 487 of the Civil Code which covers all kinds of
action for the recovery of possession and ownership (Estreller v.
Ysmael, GR No. 170264, March 13, 2009).
Rule 3
INDISPENSABLE PARTIES:
Q: When can an agent sue in his own name?
A: When:
(1) the agent acted in his own name during the transaction;
(2) the agent acted for the benefit of an undisclosed principal; and
(3) the transaction did not involve the property of the principal.
(Section 3, Rule 3)
REAL PARTY IN INTEREST

In V-Gent v. Morning Star, 22 July 2015, the Supreme Court ruled that
V-Gent, which purchased various airline tickets for individual
passengers, cannot sue the travel agency without impleading the
individual ticketholders.
The Supreme Court held:

“In the present case, only the first element is present; the
purchase order and the receipt were in the name of V-Gent.
However, the remaining elements are absent because: (1)
V-Gent disclosed the names of the passengers to Morning
Star — in fact the tickets were in their names; and (2) the
transaction was paid using the passengers' money.
Therefore, Rule 3, Section 3 of the Rules of Court cannot
apply.
INDISPENSABLE PARTIES (SECTION 7, RULE 3)

Who is an indispensable party?

An indispensable party is one whose interest in a case is such that a
final judgment cannot be rendered therein without affecting his
interest. His interest is inextricably linked and not separable from the
interest of the other parties to the case.
EXAMPLES:
• In a case for nullification of title, the registered owner of the property
is an indispensable party (Cagatao v. Almonte, G.R. No. 174004, 9
October 2013)
• All co-owners in a partition suit are indispensable parties. (Salvador v.
Court of Appeals, G.R. No. 109910, 5 April 1995)
• However, not ALL co-owners are indispensable parties to bring an
action against a third party who poses a challenge to their land
(Article 487, Civil Code).
• In a Petition for Certiorari, the main respondent is the public
respondent. Not all of the private parties in the case a quo are
indispensable parties. (Siok Ping Tang v. Subic Bay Distribution, Inc.,
G.R. No. 162575, 15 December 2010)
What is the effect of the failure to implead an
indispensable party?

• Failure to implead an indispensable party is not a ground for

dismissal of case. Neither misjoinder nor non joinder of parties is a
ground for dismissal of an action (Leonis Navigation v. Catalina
Villamater, GR No. 179169, March 3, 2010).
What is the proper remedy when an indispensable party
has not been impleaded as a party to the case?

• The proper remedy is to implead the indispensable party at any stage

of the action even after a judgment has been rendered. (Leonis
Navigation v. Catalina Villamater, GR No. 179169, March 3, 2010).
Who is a necessary party?

• A necessary party is one who is not an indispensable party but

one who should be joined as a party in order to accord a
complete relief to the original parties or to have a complete
determination of the claim subject of the case.
What is the test for determining if a party is a
necessary party?

• The test is by ascertaining the relief prayed for in the complaint.

If a complete relief cannot be afforded to the original parties or a
complete determination of the claim subject of the case cannot
be made without impleading the party, then such party is a
necessary party.
NECESSARY PARTIES
• EXAMPLES:
• Joint Obligors
• Junior Mortgagees
• If one co-owner files a case, on behalf of property, other co-
owners are necessary parties
Q: A private law office was engaged by a GOCC. The payment of
fees to the Law office was disallowed by the COA. The private
law office filed a Petition to the Supreme Court challenging the
disallowance. Is a private law office the real party in interest to
challenge the disallowance by the COA?

A: Yes. The law office does not have “a mere incidental interest and
the interest is not merely consequential. xxx The net effect of
upholding or setting aside the assailed COA rulings would be to
either disallow or allow the payment of legal fees to (the law
office).” (Law Firm of Laguesma v. COA, 13 January 2015).
Q: Should the GOCC be a party to the case?

A: Yes, it is a necessary party as it will ultimately be ordered to pay.

Its inclusion will accord a complete relief to the original parties or
to have complete determination of the claim subject of the case.
Foreign corporations and their capacities to
sue
• An unlicensed foreign corporation not doing business in the
Philippines has the capacity to sue
• An unlicensed foreign corporation doing business in the Philippines
cannot sue before Philippine courts but such corporation can sue if it
is not doing business (Sec. 133, Corporation Code).
• A private company owned by a foreign government is not immune
from suit
A misjoinder of party plaintiff is not a ground
for dismissal of the complaint

What is the remedy in case of misjoinder of parties?

• The remedy is to move for the dropping of misjoined parties from the
complaint. This may be done through amendment of the complaint or
through motu propio order of the RTC.
Substitution in case of death of parties
• When a party dies in an action that survives, the deceased party shall
be substituted by his heirs, administrator or legal representative
• The rule does not apply to all kinds of actions. Substitution is
required only in actions that survive the death of the party
• Purpose of the rule: to protect the right to due process of parties who
may be affected by the death of a party. It is not a jurisdictional
requirement but non compliance of the rule results in violation of the
right to due process of those affected by the judgment.
What is the test for determining whether an
action survives the death of the plaintiff?

• Ascertain the nature of the action and the damage sued for. If the
complained acts affect or relate to property and property rights, the
action survives. If they affect or relate to the person, the action does
not survive.
What is the effect of the failure to effect
substitution of parties on the proceedings or
judgment?

• If no valid substitution of parties is made, the proceedings and

judgment are void because the court acquired no jurisdiction over the
person of the heirs upon whom the judgment would be binding.
• Moreover, the attorneys for the offended party ceased to be the
attorneys for the deceased upon the death of the latter, the principal.
The deceased cannot be substituted by a person who
is not an heir, legal representative, or administrator

• The reason for the rule is to protect all those who may be affected by
the death. A substitute should not have a claim against the interest
of the deceased through the transfer of the latter’s interest in the
litigation to another party (Judge Sumaljag v. Literato).
What are the requirements for automatic
qualification as indigent parties?
1. The income requirement: the applicant’s gross income and that of
his family must not exceed an amount double the monthly
minimum wage of an employee
2. The property requirement: the applicant must not own real
property with a fair market value of more than P300,000.

• If these requirements are met, the motion shall be granted

automatically and as a matter of right (Spouses Algura v. LGU)
When is a hearing required to determine if a party
is entitled to litigate as a pauper litigant?

• If one or both of these requirements have not been met, the motion
should not be denied outright but the trial court shall set the case for
hearing to enable the applicant to prove that he has no money
sufficient and available for food, shelter and basic necessities for
himself and his family in accordance with Section 21, Rule 3 and use
its sound discretion in determining the merits of the prayer for
exemption (Id.)
CLASS SUIT:
• Requisites:
(1) that the subject matter of the controversy is one of common
or general interest to many persons; and
(2) that the parties are so numerous that it is impracticable to
bring them all before the court
(Sulo ng Bayan v. Araneta, G.R. No. L-31061, 17 August 1976).
CLASS SUIT
• Action to dissolve a voluntary association, for accounting and
liquidation was considered a class suit. (Borlasa v. Polistico, G.R. No.
L-22909, 28 January 1925).
• Families of airplane crash victims CANNOT bring a class suit because
the basis for their damages would be different (Bar 1991)
• An association of sugar planters cannot bring a class suit on behalf of
individual planters against a magazine for alleged libel because the
circumstances of the planters are all different. (Newsweek. V. IAC,
G.R. No. L-63559, 30 May 1986).
RULE 4
VENUE
Venue

• Not jurisdictional – it is procedural

• Waivable - When improper venue is not objected to in a motion to
dismiss, it is deemed waived except in criminal cases.
oImproper venue should be raised seasonably, else it is deemed waived.
It should be raised either in a motion to dismiss or in the affirmative
defense in the Answer.
What is the purpose of the rule on venue?

• To provide convenience to the parties, rather than restrict their

access to the courts.
• To make it more convenient for the parties to file actions pursuant to
the policy that everyone should be allowed free access to courts of
justice.
Venue in personal actions
• Venue is in the court of the place where the plaintiff or the defendant
resides at the election of the plaintiff.

• EXCEPTION: The rule on venue does not apply when there is an

exclusive venue stipulation of the parties in a contract (Spouses Lantin
v. Jane Lantion). Here, the loan and mortgage documents – which
plaintiffs seek to annul - contain an exclusive venue stipulation
restricting the venue of any suit in Metro Manila. Thus, the action
filed in Lipa Batangas was improperly laid.
EXCLUSIVE VENUE STIPULATIONS
• The mere stipulation on the venue of an action is not enough to
preclude parties from bringing a case in other venues. The parties
must be able to show that such stipulation is exclusive. In the
absence of qualifying or restrictive words, the stipulation should be
deemed as merely an agreement on an additional forum, not as
limiting venue to the specified place. (Spouses Lantin v. Lantion, G.R.
No. 160052, 28 August 2006.)
• WHAT IS THE EFFECT IF THE VENUE STIPULATION IS NOT
RESTRICITVE?
• The said stipulation merely provides for another permissible
venue. But the venue stipulation is NOT per se invalidated.
(Philbanking Corporation v. Tensuan, G.R. No. 104649, 28
February 1994)
• Examples of “restrictive words”: "only," "solely," "exclusively in this
court," "in no other court save —," "particularly," "nowhere else
but/except —," or words of equal import. (Pacific Consultants v.
Schonfeld, G.R. No. 166920, 19 February 2007).
EXCLUSIVE VENUE STIPULATIONS
• Can there be a valid venue stipulation for real actions?
• Yes. (See Briones v. Court of Appeals, G.R. No. 204444, 14 January 2015).

• If the case merely assails the provisions of the agreement, the venue
stipulation stated therein is valid and must be followed (Spouses
Lantin v. Lantion, G.R. No. 160052, 28 August 2006.) But if what is
assailed is the very validity of the agreement containing the
stipulation, the venue stipulation is no longer controlling (Briones v.
Court of Appeals, G.R. No. 204444, 14 January 2015).
Q: Will an exclusive venue stipulation in a Real Estate Mortgage
apply to extrajudicial foreclosure proceedings?

A: No. In Ochoa v. Chinabank, 23 March 2011, the SC ruled that an

exclusive venue stipulation cannot apply to extrajudicial
foreclosure. “(W)ith respect to the venue of extrajudicial
foreclosure sales, Act No. 3135, as amended, applies, it being a
special law dealing particularly with extrajudicial foreclosure
sales of real estate mortgages, and not the general provisions of
the Rules of Court on Venue of Actions.
RULE 4
EXAMPLE OF COMPLEMENTARY-CONTRACTS-CONSTRUED
TOGETHER DOCTRINE:

Q: In a case, there was a Promissory Note with an exclusive venue

stipulation and a Surety Agreement which did not contain the venue
stipulation. If a case is filed enforcing the Surety Agreement, will the
venue stipulation govern?

A: Yes. In PBCom V. Lim, 12 April 2005, the SC ruled that “(i)n enforcing a
surety contract, the complementary-contracts-construed-together
doctrine finds application. According to this principle, an accessory
contract must be read in its entirety and together with the principal
agreement. This principle is used in construing contractual
stipulations in order to arrive at their true meaning; certain
stipulations cannot be segregated and then made to control.”
Where is the venue in derivative suits?

• The place of principal office of the corporation

o Venue is in the court of the place where the corporation holds its principal
office (Hi-Yield v. CA).
Illustrative Cases:
• A case which prays for the declaration of nullity of a loan agreement and
its accompanying surety agreement and real and chattel mortgage was
deemed to be a PERSONAL ACTION. The Supreme Court noted that
because there was no transfer of the real property yet, it could not be
categorized as a real action (BPI v. Hontanosas, G.R. No. 157163, 25
June 2014)
• An action to recover the deficiency after extrajudicial foreclosure is a
PERSONAL ACTION. (BPI v. Yujuico, G.R. No. 175796, 22 July 2015)
• What is the venue for a revival of action? It depends on the nature of
the prayer for revival. In a case where the original action was for
specific performance and damages, the action to revive which now
focused on the delivery of a certain real property arising from the
judgment – was considered a REAL ACTION. (Infante v. Aran
Builders, G.R. No. 156596, 24 August 2007).
• The inclusion of a party plaintiff who was NOT the principal plaintiff in
the action cannot justify filing the case in said party’s place of
residence. (Marcos-Araneta v. Court of Appeals, G.R. No. 154096, 22
August 2008).
Where is the venue of the action if there is
more than one plaintiff?
• Residence of the principal party
oThe residence of the principal parties is the basis for determining venue
if there is more than one plaintiff in a personal action. (Irene Marcos
Araneta v. CA) Here, the complaint for reconveyance of shares was
dismissed for improper venue. While her MR was pending, Irene filed
an amended complaint in which 3 individuals appeared as additional
plaintiffs – all of whom are from Ilocos Norte and allegedly Irene’s new
trustees
• Purpose of the rule: to prevent the plaintiff from choosing the
residence of a minor plaintiff or defendant as the venue which would
thereby defeat the purpose of the rule as the minor party would not
have the degree of interest in the subject of the action.
Rule 5 – Uniform Procedure in Trial Courts
An appeal of a judgment for unlawful detainer
before the RTC is not covered by Summary
Procedure

• Proceedings in the RTC are not covered by the Summary Rules even
for appeal of cases that are covered by the Summary Rules (Estate of
Macadangdang v. Gaviola).
• The failure of a defendant to file an answer or to appear at a
preliminary conference shall entitle the plaintiff to a judgment on the
basis of the facts alleged in the complaint (Soriente v. Estate of
Concepcion)
• A Motion for Reconsideration is a prohibited pleading. The filing
thereof will render the order of dismissal final and executory
o MR is prohibited under the summary rules. Sec 19 (c) considers a motion for
reconsideration of a judgment a prohibited pleading. The filing thereof did
not interrupt or stop the running of the period for appeal. Thus, the period
for appeal had long lapsed when Spouses filed their appeal. The lapse of the
period for appeal rendered the RTC without any jurisdiction to entertain
much less grant the appeal from the final and immutable judgment of the
MTC. (Spouses Edillo v. Spouses Dulpina)
RULE 6 –KINDS OF
PLEADINGS
WHAT IS A PLEADING?
• statement of a party’s claims or defenses in an action that is
submitted to the court for appropriate judgment

IS A MOTION A PLEADING?
• strictly speaking, NO.
• Sec 1, Rule 15: a motion is an application for relief other than by a
pleading
WHAT ARE THE PLEADINGS ALLOWED UNDER
THE ROC?
• complaint
• counterclaim
• crossclaim
• third party complaint
• complaint in intervention
• answer to a pleading asserting a claim
• reply to answer
WHAT ARE THE TWO KINDS OF DEFENSES?
• NEGATIVE DEFENSE
• AFFIRMATIVE DEFENSE

WHAT IS A NEGATIVE DEFENSE?

• a defense that specifically denies the material facts alleged in the
complaint
WHAT IS AN AFFIRMATIVE DEFENSE?
• an allegation of a new matter which would bar recovery by plaintiffs
even if the allegations in the complaint are hypothetically admitted

• Fraud • Illegality
• Prescription • Statute of Frauds
• Payment • Estoppel
• Release • Discharge in bankruptcy
WHAT IS AN ANSWER EX ABUNDANTE AD
CAUTELA?
• the answer is being filed “out of abundant caution”

WHAT IS THE EFFECT OF ITS FILING?

• same effect as filing of an answer as long as it sets forth the party’s
defenses to the claim asserted against it in the complaint.
• Its filing does not make it less of an answer.
• The contention of defendants that plaintiff cannot take deposition
on them as they had not yet served their answers was incorrect
since defendants had already filed an ex abundanti ad cautela
answer after their motion to dismiss on the ground of lack of subject
matter jurisdiction was denied (Rosete v. Lim, G.R. No. 136051, June
8, 2006).
WHAT IS A COUNTERCLAIM?
• a claim by a defending party against an opposing party.
• may either be a compulsory or permissive counterclaim.

WHEN IS IT COMPULSORY?
(Reillo v. San Jose, G.R. No. 166393, June 18, 2009)
(a) it arises out of or is necessarily connected with the transaction or
occurrence subject of the opposing party's claim;
(b) it is existing at the time of the filing of the answer; and
(c) it does not require for its adjudication the presence of third parties of
whom the court cannot acquire jurisdiction
WHEN IS IT PERMISSIVE?
• if it does not arise out of or is not necessarily connected with the
subject matter of the opposing party's claim
• permissive counterclaim- essentially an independent claim that may
be filed separately in another case.
COMPULSORY COUNTERCLAIM
• FOR CASES FILED BEFORE THE MTC
• must be within its jurisdiction both as to the amount and nature of
the case

• FOR CASES FILED BEFORE THE RTC

• counterclaim is compulsory even if the amount is within the
jurisdiction of the MTC
 COMPULSORY v. PERMISSIVE

COMPULSORY PERMISSIVE
• necessarily connected with the claim • independent of the claim asserted in
asserted in the complaint, the complaint.
• should be set up in the answer in • may be filed separately in another
the same action; otherwise, they case.
would be barred forever
• Payment of docket fee is not • payment of docket fees is necessary
required before the court could acquire
jurisdiction over the counterclaim.
 TEST FOR DETERMINING WHETHER A
COUNTERCLAIM IS COMPULSORY
(Financial Building Corp. v. Forbes Park Association, GR 133119, August 17, 2000)
• Are the same issues of fact or law raised by the claim and
counterclaim?
• Would res judicata bar a subsequent suit on defendant’s claim absent
the compulsory counterclaim rule?
• Will substantially the same evidence support or refute plaintiff’s claim
as well as the defendant’s counterclaim?
• Is there any logical relation between the claim and the counterclaim?
COMPULSORY COUNTERCLAIM MUST BE RAISED IN THE
ANSWER. OTHERWISE, SUCH CLAIM WILL BE BARRED

• If a compulsory counterclaim is not raised in the answer, a party is barred

from interposing such claim in a future litigation.

EXCEPTION: The claim is not barred even if it was necessarily connected with the claim in the
complaint where the claim did not exist or mature at the time of the filing of the answer. (BDO v.
CA G.R. No. 160354, August 25, 2005)

The SC held that BDO’s claim for deficiency of debtor’s obligations after foreclosure of debtor’s
property could not have been raised when the bank filed its answer with compulsory counterclaim
to the debtor’s complaint. At that time, the cause of action for the deficiency amount had not yet
arisen. It only arose after the foreclosure of the properties and after the debtor has refused and
failed to settle the deficiency amount.
• If a party files a motion to dismiss the complaint instead of setting up
a compulsory counterclaim in an answer and the complaint is
dismissed, he is already barred from prosecuting such claim
(Financial Building Corp. v. Forbes Park Association, GR 133119,
August 17, 2000).
• DISMISSAL OF COMPLAINT RESULTS IN DISMISSAL OF
COMPULSORY COUNTERCLAIM
(Financial Building Corp. v. Forbes Park Association, GR 133119, August 17, 2000)

EXCEPTION: Dismissal of the complaint due to the fault of the plaintiff does not
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. (Pinga v. Heirs of German Santiago, GR 170354, June
30, 2006). (Spouses Corpuz v. Citibank, GR 175677, July 31, 2009)

Sec 6 Rule 16 also provides that “the dismissal of the complaint shall be without
prejudice to the prosecution in the same action or separate action of a counterclaim
pleaded in the answer” – the provision does not distinguish whether counterclaim is
compulsory or permissive.
• FILING OF A MOTION TO DISMISS IS AN IMPLIED WAIVER OF
COMPULSORY COUNTERCLAIM
• the grant of the motion results in the dismissal of the
counterclaim.

(Financial Building Corp. v. Forbes Park Association, GR 133119, August 17, 2000).

Financial Building filed an injunction case after Forbes Park Association enjoined prevented
it from doing further construction work. The case was dismissed upon motion of Forbes
Park Association. Thereafter, Forbes Park filed a complaint for damages against Financial
Building. The SC held that Forbes Park’s claim is already barred due to its failure to set it up
as a compulsory counterclaim in the prior injunction suit.
WHAT IS A THIRD-PARTY COMPLAINT?
• a claim that a defending party may, with leave of court, file against a
person not a party to the action, for contribution, indemnity, subrogation
or any other relief, in respect of his opponent's claim.

THIRD PARTY COMPLAINT

• In a case where the plaintiff sued defendant for the payment and rentals
for various equipment, and the defendant sought to implead a third party
in whose project the equipment were allegedly used, the Supreme Court
ruled that this is not a proper third-party complaint on the ground that
they were separate transactions. (Asian Construction v. Court of Appeals,
G.R. No. 160242, 17 May 2005).
 TEST IN DETERMINING PROPRIETY OF A THIRD-
PARTY COMPLAINT
(Asian Construction v. CA, GR 160242, May 17, 2005)

(1) whether the 3rd party claim arises from the same transaction subject of
the complaint; or whether the 3rd party claim, although arising out of
different transaction, is connected with the plaintiff's claim;
(2) whether the third-party defendant would be liable to the plaintiff or to
the defendant for all or part of the plaintiff's claim against the original
defendant, although the third-party defendant's liability arises out of
another transaction or to both the plaintiff and the defendant; and
(3) whether the third-party defendant may assert any defenses which the
third-party plaintiff has or may have to the plaintiff's claim
THIRD PARTY COMPLAINT

It is settled that a defendant in a contract action may join as third-

party defendants those who may be liable to him in tort for the
plaintiffs claim against him, or even DIRECTLY to the plaintiff.
(Philtranco Services v. Paras, 25 April 2012)
• THIRD PARTY DEFENDANT MAY RAISE DEFENSES WHICH
THIRD PARTY PLAINTIFF MAY HAVE AGAINST THE
ORIGINAL PLAINTIFF

• Sec. 13, Rule 6: a third party defendant may allege in his answer
his defenses, counterclaims, cross-claims, including such defenses
that the third party plaintiff may have against the original
plaintiff’s claim.
• THIRD PARTY DEFENDANT MAY ASSERT A COUNTERCLAIM
AGAINST ORIGINAL PLAINTIFF
• Sec. 13, Rule 6: in proper cases such as when the third party plaintiff imputes
direct liability to the third party defendant, the latter may assert a
counterclaim against the original plaintiff in respect of the latter’s claim
against the third party plaintiff.

NOTE:
Where the complaint was dismissed not because of lack of cause of action
but because of a compromise agreement between the plaintiff and the
defendant (third party plaintiff), the third party complaint shall survive the
termination of the main action as it involved a finding of liability on the part
of the defendant. (Banez v. CA, GR No. 119321, March 18, 1997)
WHAT IS A CROSS-CLAIM?
• a claim by one party against a co-party.

WHAT ARE THE REQUISITES OF A CROSS-CLAIM?

• the claim must arise out of the transaction or occurrence subject of
the complaint or counterclaim. Otherwise, it is not proper to assert
such claim in a cross-claim.
• There is no such thing as permissive cross-claim.
• The cross-claim must be existing as of the time of the filing of the
answer
•CROSS-CLAIM CANNOT HOLD CROSS-
DEFENDANT DIRECTLY LIABLE TO PLAINTIFF
• Unlike a third party complaint, a cross-claim cannot pray that
cross-defendant be held directly liable to the plaintiff.
WHAT IS THE FUNCTION OF A REPLY?

• to deny or address new matters alleged by way of defense in the

answer
• If no reply is filed, all new matters alleged in the answer are
deemed controverted
 RULE 7
PARTS OF A PLEADING
When is a pleading sufficient in form?
• A pleading is sufficient in form when it contains the following:
• Caption, setting forth the name of the court, the title of the
action indicating the names of the parties, and the docket
number
• Body, reflecting the designation, the allegations of the party's
claims or defenses, the relief prayed for, and the date of the
pleading
• Signature and Address of the party or counsel
• Verification for some pleadings - designed to secure an
assurance that the allegations have been made in good faith, or
are true and correct and not merely speculative
• Certificate of Non-forum Shopping for initiatory pleadings,
which although not jurisdictional, the same is obligatory
• Explanation where the pleading is not filed personally to the
Court and served personally to the parties for pleadings
subsequent to the complaint
• Additional requirements include:
• Proof of service
• Roll of attorney’s number
• Professional tax receipt number
• IBP Official Receipt number
• MCLE Compliance certificate number and date of issue
WHAT IS THE SIGNIFICANCE OF COUNSEL’S
SIGNATURE IN A PLEADING?
• signature of counsel constitutes an assurance by him:
• that he has read the pleading;
• that, to the best of his knowledge, information and belief, there is
a good ground to support it; and
• that it is not interposed for delay.
• PARTY CAN SIGN A PLEADING.
• COUNSEL CAN DELEGATE SIGNING TO ANOTHER LAWYER BUT
NOT TO A NON-LAWYER

Under Section 3, Rule 7, a party may sign a pleading. Counsel's authority

and duty to sign a pleading are personal to him. He may not delegate it to
just any person. He may delegate it to another lawyer but cannot do so in
favor of one who is not. (Republic v. Kenrick Development Corp, GR 149576,
August 8, 2006)
WHAT IS THE EFFECT OF A PLEADING SIGNED
BY A NON-LAWYER?
• A pleading signed by a non-lawyer is an unsigned pleading which
produces no legal effect. It is as if the pleading was not filed in court.
• Such pleading can be stricken out pursuant to Sec. 12, Rule 8.
PLEADINGS IN WHICH CERTIFICATION IS
REQUIRED
• It is required in a complaint or other initiatory pleading asserting
a claim for relief
• Certification not required in appeal.
FACTS REQUIRED TO BE STATED IN THE CERTIFICATION
AGAINST FORUM SHOPPING:
• Party 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
• If there is such other pending action or claim, a complete statement
of the present status thereof
• If should thereafter learn that the same or similar action has been
filed or pending, he shall report that fact within 5 days therefrom to
the court.
PARTY WHO SHOULD SIGN THE CERTIFICATION AGAINST
FORUM SHOPPING
• Sec. 5, Rule 7: the plaintiff or principal party shall sign the
certification. Thus, all plaintiffs or principal parties must sign the
certification; otherwise, those who did not sign will be dropped as
parties to the case.

EXCEPTION: When all the plaintiffs or petitioners share a common interest and
invoke a common cause of action or defense, the signature of only one of them
substantially complies with the Rule (Mactan-Cebu International Airport
Authority v. Heirs of Minoza, GR 186045, Feb. 2, 2011).
• If the party is a corporation, the certification should be signed by its
duly authorized officer pursuant to Section 23, in relation to Sec. 25
of the Corporation Code.
• The certification should be accompanied be a Secretary’s Certificate
or Board Resolution showing the authority of the officer to sign the
certification.
• Failure to attach the proof of authority shall merit the dismissal of the
complaint or petition.
• EXCEPTION:
• When the merits of the petition justify the relaxation of the rule
(Kaunlaran Lending v. Uy, GR 154974, February 4, 2008).
• When it is signed by an officer who is in a position to verify the
truthfulness and correctness of the allegations in the petition such
as the Chairman of the Board, President, General Manager,
Personnel Officer (Mid-Pasig Land v. Mario Tablante, GR No.
162924, February 4, 2010).
EFFECT OF FAILURE TO COMPLY WITH THE
RULE ON CERTIFICATION
• If no certification is attached to an initiatory pleading, the case shall
be dismissed without prejudice unless otherwise provided upon
motion and after hearing.
• Submission of a false certification and non-compliance with the
undertakings therein shall constitute indirect contempt of court.
• This should be distinguished from the effect of a willful and deliberate
forum shopping which shall be a ground for dismissal with prejudice
and shall constitute direct contempt.
Distinction between violation of the rule on certification and willful
forum shopping is:
(Madara v. Hon. Perello , GR No. 172449, August 20, 2008)

Violation of the rule on certification Willful forum shopping

Both are grounds for dismissal
• Dismissal shall be upon motion • Dismissal can be done motu
and only after hearing, proprio and summarily
• dismissal is without prejudice • dismissal is with prejudice
unless otherwise provided
• constitutes indirect contempt • constitutes direct contempt of
court
CERTIFICATION AGAINST FORUM-SHOPPING
The Supreme Court enumerated the ways by which forum shopping may be
committed, thus:
(1) filing multiple cases based on the same cause of action and with the same
prayer, the previous case not having been resolved yet (where the ground for
dismissal is litis pendentia);
(2) filing multiple cases based on the same cause of action and the same prayer, the
previous case having been finally resolved (where the ground for dismissal is 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)
(Chua v. MetroBank, G.R. No. 182311, 19 August 2009, 596 SCRA 524, 535-536).
How is a pleading verified?
• A pleading is verified by an affidavit that the affiant has read the
pleading and that the allegations therein are true and correct of his
personal knowledge or based on authentic records.
• A pleading required to be verified which contains a verification based
on “information and belief” or upon “knowledge, information and
belief,” or lacks a proper verification, shall be treated as an unsigned
pleading.
• If a corporate officer verifies, he must be clothed with authority from the
corporation.

• However, in Mid Pasig Land v. Tablante, G.R. No. 162924, 4 February 2010, the
Supreme Court explained that “the following officials or employees of the
company can sign the verification and certification without need of a board
resolution:

(1) the Chairperson of the Board of Directors,

(2) the President of a corporation,

(3) the General Manager or Acting General Manager,

(4) Personnel Officer, and

(5) an Employment Specialist in a labor case.”

 RULE 8
MANNER OF MAKING ALLEGATIONS
PLEADING REQUIREMENT UNDER THE RULES OF COURT
• ONLY ULTIMATE FACTS SHALL BE ALLEGED
• Section 1 of Rule 8 declares that every pleading, including, of course, a complaint,
"shall contain in a methodical and logical form, a plain, concise and direct
statement of the ultimate facts . . . omitting the statement of mere evidentiary
facts."

WHAT ARE ULTIMATE FACTS?

• Ultimate facts are the essential and substantial facts which form the basis of the
primary right and duty or which directly make up the wrongful acts or omissions
of the defendant.
• Evidentiary facts are those which tend to prove or establish said ultimate facts.
What facts may be averred generally in a
pleading?
(a) performance of conditions precedent (Sec. 3)
(b) Malice, Intent, Knowledge, or Other Condition of the Mind of a
Person (Sec. 5)
What must be averred with PARTICULARITY?

(a) Fraud, mistake, or circumstances surrounding fraud or mistake (Sec. 5)

(b) Facts showing the capacity of a party to sue or be sued; authority of a
party to sue or be sued in a representative capacity; legal existence of an
organized association of persons (Sec. 4)
• A party desiring to raise an issue as to the legal existence of any party or
capacity to sue or be sued in a representative capacity, shall do so by
SPECIFIC DENIAL and SHALL INCLUDE SUCH SUPPORTING PARTICULARS
AS ARE PECULIARLY WITHIN THE PLEADER’S KNOWLEDGE
WHAT IS AN ACTIONABLE DOCUMENT?
• A document that serves as basis of the plaintiff’s cause of action or
defendant’s defense must be attached to the complaint or answer, as
the case may be.
Failure to attach the document to the complaint will be dismissed for failure to
state a cause of action or the answer will have no leg to stand on (Malayan
Insurance v. Regis, GR 172156, November 23, 2007).

In that case, the plaintiff filed a complaint for collection in its capacity as
subrogee but it failed to attach to its complaint the document that serves as basis
of its right to subrogation, i.e., the marine insurance policy. The SC held that its
failure to do so casts an irremissible cloud on the substance of its very cause of
action.
• An actionable document must be set forth in pleading in two
ways:

1. ATTACHMENT: The substance of the actionable document shall

be set forth in the pleading, and the original or a copy thereof shall
be attached to the pleading as an exhibit (Annex).

2. COPYING IN. A copy of the actionable document (in its entirety)

is set forth in the pleading.
What are considered admitted?
• By the admission of the genuineness and due execution of an instrument, as
provided in this section, is meant that the party whose signature it bears admits:

(a) that he signed it or that it was signed by another for him with his authority;
(b) that at the time it was signed it was in words and figures exactly as set out in
the pleading of the party relying upon it;
(c) that the document was delivered; and that any formal requisites required by
law, such as a seal, an acknowledgment, or revenue stamp, which it lacks, are
waived by him.

(See Hibberd v. Rohde, G.R. No. 8418, 9 December 1915)

The following defenses are therefore barred:
(a) that the signature is a forgery (Puritan Mfg. Co. v. Toti & Gradi, 14 N.
M., 425; Cox v. Northwestern Stage Co., 1 Idaho, 376; Woollen v.
Whitacre, 73 Ind., 198; Smith v. Ehnert, 47 Wis., 479; Faelnar v. Escaho,
11 Phil. Rep., 92);
(b) or that it was unauthorized, as in the case of an agent signing for his
principal, or one signing in behalf of a partnership (County Bank v.
Greenberg, 127 Cal., 26; Henshaw v. Root, 60 Ind., 220; Naftzker v. Lantz,
137 Mich., 441), or of a corporation (Merchant v. International Banking
Corporation, 6 Phil. Rep., 314; Wanita v. Rollins, 75 Miss., 253; Barnes v.
Spencer & Barnes Co., 162 Mich., 509);
(c) or that, in the case of the latter, that the corporation was not
authorized under its charter to sign the instrument
(d) or that the party charged signed the instrument in some other capacity
than that alleged in the pleading setting it out
(e)or that it was never delivered (Hunt v. Weir, 29 Ill., 83; Elbring v.
Mullen 4 Idaho, 199; Thorp v. Keokuk Co., 48 N. Y., 253; Fire Association
of Philadelphia vs: Ruby, 60 Neb., 216)
The following defenses are NOT bared:
• Fraud
• mistake
• compromise
• payment
• prescription
• estoppel
• want of consideration.
When oath is NOT required:
• The requirement of a specific denial under oath will not apply in either of
the following cases:
(a)When the adverse party does not appear to be a party to the
instrument, or
(b) When compliance with an order for an inspection of the original
instrument is refused (Sec. 8, Rule 8, Rules of Court).

An actionable document may be attached in an Answer. In such a case, the

Plaintiff has to file a Reply under oath, otherwise, the document will be
deemed admitted (Casent Realty v. Philbanking, G.R. No. 150731, 14
September 2007)
HOW TO DENY ALLEGATIONS IN THE
COMPLAINT?
• Each allegation of fact has to be denied specifically
• Modes of specific denial
• By specifying the allegation that is denied and whenever
practicable stating the allegations supporting the denial
• By specifying a part of the allegation that is true and denying the
remainder thereof
• By stating that defendant is without knowledge or information
sufficient to form a belief as to the truth of the allegation
HOW TO MAKE A SPECIFIC DENIAL?
• What is a “negative pregnant” denial? How do you avoid making a
negative pregnant denial?

Each allegation of fact must be specifically denied. Where the allegation of fact is
qualified, both the allegation and the qualification must be specifically denied. If
an allegation contains more than one thought or conveys more than one idea or
fact, the allegation must be dissected and divided into separate allegations of
facts and each allegation of fact must be specifically denied. Otherwise, the
denial is a negative pregnant, i.e., a denial pregnant with the admission of
substantial facts (Republic v. SB, GR No. 152154, July 15, 2003).
Examples of Negative Pregnant:
“(a) The defense alleges: “I had never borrowed money from the plaintiff
from 2011 to 2013,” may imply that the pleader had borrowed money at
some other time and was only denying that he did so during the years
mentioned.

(b) A complaint alleges: “Plaintiff extended a loan to Defendant in the amount

of P500,000 on July 27, 2016 in Baguio City.” The defendant, In his answer,
alleges: “Defendant specifically denies that Plaintiff extended a loan to
Defendant in the amount of P500,000 in Baguio City.”

(c) The plaintiff alleged that the defendant evicted the lawful occupants
of the property by intimidating them with an assault rifle. The defendant
alleged in his answer: “Defendant denies vigorously that he used or
brandished an assault rifle against the plaintiffs.” The answer could be an
admission of having intimidated the plaintiffs but not through the use of an
assault rifle.” (RIANO, Civil Procedure, Vol. 1, 2016 ed.)
WHEN IS “LACK OF KNOWLEDGE” FORM OF DENIAL
CONSIDERED AN EFFECTIVE DENIAL?

• When the facts to which defendant claims to have no knowledge are

not within the knowledge or control of the defendant nor are they
readily accessible to him. (Republic v. SB, GR No. 152154, July 15, 2003).
(Warner Barnes v. Reyes, GR L-9531, May 14, 1958).
WHAT IS THE EFFECT OF FAILURE TO SPECIFICALLY
DENY UNDER OATH AN ACTIONABLE DOCUMENT?

• Genuineness and due execution of the document will be deemed

admitted.
• Genuineness merely refers to the fact that the signatures were not
falsified and/or whether there was no substantial alteration to the
document. While due execution refers to whether the document was
signed by one with authority.
But the defendant is not precluded from presenting evidence to refute the
facts stated in the documents. (Casent Realty v. Philbanking Corp, GR No.
150731, September 14, 2007).
 RULE 9
EFFECT OF FAILURE TO PLEAD
WHAT IS THE EFFECT OF FAILURE TO RAISE DEFENSES AND
OBJECTIONS IN A MOTION TO DISMISS OR ANSWER?

• Under Section 1, Rule 9, defenses and objections that are not timely
raised in a motion to dismiss or answer are deemed waived.
EXCEPTIONS: The following defenses are not deemed waived even if they
are not raised in a motion to dismiss or answer:
• Lack of jurisdiction over the subject matter
• Litis pendencia – there is another action pending between the same parties
for the same cause
• Res Judicata – the action is barred by a prior judgment
• Prescription – the action is barred by statute of limitations
• Instances where the court can motu proprio dismiss an action:
• In addition to the four grounds above, the court can also dismiss
motu proprio when there is willful and deliberate violation of the
rule on forum shopping
WHAT IS THE EFFECT OF FAILURE TO SET UP
COMPULSORY COUNTERCLAIM OR CROSS-CLAIM
IN THE ANSWER?

• Section 2, Rule 9 states that they shall be barred if not set up in the
Answer.
• What are barred are claims existing at the time of the filing of Answer
(BDO V. CA, GR No. 160354, August 25, 2005).
When is a defendant declared in default?
1. Fails to file an answer within the time allowed
2. Failure to file pre-trial brief (defendant)
3. Failure to appear at pre-trial (defendant)
4. Failure to comply with discovery (Rule 29)

NOTE: Non-appearance of defendant and counsel at an ordinary

hearing is NOT a ground for default (Monzon v. Relova, G.R. No.
171827, 17 September 2008)
ORDER DECLARATION OF DEFAULT CAN BE MADE ONLY
UPON MOTION
• The court cannot motu proprio declare defendant in default. If no
motion to declare a defendant in default, no default order should be
issued by the court. (Santos v. PNOC, GR 170943, September 23,
2008).

EFFECT OF ORDER OR DECLARATION OF DEFAULT

• The court may render judgment on the basis of the allegations and
relief prayed for in the complaint or it may require the plaintiff to
present evidence.
• If the court requires plaintiff to submit evidence, the defaulting party
may not take part in the trial.
• The defaulting party is entitled to notice of subsequent proceedings.
(Santos v. PNOC, GR 170943, September 23, 2008).
• Being declared in default does not constitute a waiver of rights except
that of being heard and of presenting evidence in the trial court
REMEDIES AVAILABLE TO A PARTY DECLARED
IN DEFAULT:
• Before judgment, file a verified motion to set aside order of default
on the ground that the failure to file answer was due to fraud,
accident, mistake or excusable negligence and that he has a
meritorious defense (Sec. 3 (b), Rule 9)
• After judgment but before finality, file a motion for new trial under
Sec. 1 (a) of Rule 37 or appeal under Sec. 2 Rule 41 on the ground
that the judgment is contrary to evidence or the law
• After finality of judgment, file a petition for relief under Section of
Rule 38
EXTENT OF RELIEF THAT CAN BE AWARDED IN A
JUDGMENT BY DEFAULT

• It shall not exceed the amount prayed for

• It shall not be different in kind from that prayed for
• It shall not award unliquidated damages (Sec. 3, Rule 9)
WHEN IS THERE PARTIAL DEFAULT?
• Where there are several defendants, some of whom answer and the others
fail to do so, the court can proceed to render judgment against the
defaulting parties.
• Example – A,B and C are joint debtors. Only A answers. B and C can be
declared in default.
• However, when the complaint asserts a common cause of action against all
the defendants, the court shall try the case against all upon the answers
thus filed and render judgment upon the evidence presented.
• Example: A,B and C are solidary debtors. Only A answers. Case will be
decided based on A’s answer and evidence.
NO DEFAULT IN CERTAIN CASES:

• Action for annulment or declaration of nullity of marriage

• Legal separation
• Summary Procedure
Rule 10 – Amended and
Supplemental Pleadings
When are amendments a matter of right?
• Amendments are matter of right when they are filed before a
responsive pleading is served, or in the case of a Reply, within 10 days
after it is served. What is material is date of service of responsive
pleading, not date of filing.
• Amendment as a matter of right can only be done ONCE. Subsequent
amendments even if filed before a responsive pleading is served
require leave of court.
An amendment can introduce a new cause of
action or alter the theory of the case
• An amendment may change or alter a cause of action. (no prohibition
against this under the 1997 Rules of Court) Thus, when an original
complaint simply prayed for Injunction, and it was amended to
include “Reformation of Instrument”, the amendment was still
allowed (PPA v. Go thong and Aboitiz, G.R. No. 158401, 28 January
2008)
Can an amendment be done to cure a
jurisdictional error?

• Yes, if it was done before responsive pleading because court has not
exercised any jurisdiction yet. However, if there has already been a
responsive pleading filed, the court cannot grant a substantial
amendment which intends to grant jurisdiction (Rosario v.
Carandang, G.R. No. L-7076, 28 April 1955).
• If the original complaint stated a premature cause of action, the
accrual of the cause of action subsequently cannot be the basis for an
amendment (Swagman v. Court of Appeals, G.R. No. 161135, 8 April
2005).
• A motion to Dismiss is NOT a responsive pleading. Hence, if a
Complaint was amended after a Motion to Dismiss was filed, it can
still be amended as a matter of right (Bautista v. Mayamaya, G.R.
No. 148361, 29 November 2005; Marcos-Araneta v. Court of
Appeals, G.R. No. 154096, 22 August 2008)
Amendment of pleading can be made after
dismissal provided it is filed before the finality of
the dismissal
• Plaintiff may file an amended complaint even after the original
complaint was ordered dismissed provided that the order of
dismissal is not yet final (Bautista v. Maya Maya, GR No.
148361, November 29. 2005).
Effect of amended pleadings
• The amended pleading supersedes the original pleading.
• The settled rule is that the filing of an amended pleading does not
retroact to the date of the filing of the original; hence, the statute of
limitation runs until the submission of the amendment (Wallem
Philippines v. SR Farms, G.R. No. 161849. July 7, 2010).
• Admission made in the original pleading may be received in evidence
against the pleader
• Claims and defenses alleged in the original pleading which are not
incorporated in the amended pleading are deemed waived.
Supplemental pleadings
• Should be filed with leave of court
• Must allege facts – transactions, occurrences, or events – which have
happened since the date of the filing of the original pleading.
• Filing fees on additional claims alleged in a Supplemental Complaint
must be paid (Do-All Metal v. Security Bank, G.R. No. 176339,
January 10, 2011). In that case, the SC deleted the award of actual
damages as prayed for in the Supplemental Complaint for failure of
the plaintiffs to pay the required filing fees.
Rule 11 – When to File Responsive Pleadings
Period for filing answer
• 15 days unless a different period is fixed by the court.
• If a motion to dismiss is denied, period is the balance of the 15-day
period which shall not be less than 5 days from receipt of the denial
(Sec. 4, Rule 16).
• Period to file answer under Summary Rules is 10 days
• If motion for bill of particulars is filed, period is the balance of the 15-
day period which shall not be less than 5 days from service of the bill
of particulars or amended complaint or notice of denial of motion.
• Where the defendant is a foreign corporation and summons was
served on it through a government official designated by law, period
is 30 days after receipt of summons by such entity (Sec. 2, Rule 11).
• Where the defendant is a foreign corporation and extra-territorial
service of summons is made, period is “reasonable time” as may be
determined by the court which shall not be less than 60 days from
receipt of summons (Sec. 15, Rule 14).
• Answer to Amended Complaint/Counterclaim/Cross-claim/Third-
party Complaint
o15 days from service for amended pleading filed as a matter of right
o10 days from receipt of order for amended pleading filed with leave of
court
• Answer to Counterclaim/Cross-claim – 10 days from service
• Answer to Supplemental Complaint – 10 days from notice of Order
admitting the same, unless a different period is fixed by the court
• Answer to Complaint-in-Intervention – 15 days from notice of the
order admitting the same.
• Period for compliance with order for bill of particulars – 10 days from
notice of Order
Answer to original complaint deemed answer to
amended/supplemental complaint

• Where plaintiff filed an amended complaint or supplemental

complaint and defendant failed to file answer thereto, the
defendant cannot be declared in default if it filed an answer to
the original complaint.
oThe answer shall serve as the answer to the amended/supplemental
complaint.
Counterclaim and cross-claim arising after
filing of answer
• Before judgment, the counterclaim or cross-claim may be
presented by supplemental pleading.
• After judgment, it may be asserted in a separate action.
Omitted counterclaim/cross-claim
• Effect of failure to assert a compulsory counterclaim and cross-claim
in Answer: defendant shall be barred from asserting such claims.
• (Sec. 10, Rule 11)
Where deadline falls on a Saturday, Sunday, or
legal holiday
• Sec. 1, Rule 22 provides that where the last day of the period for
doing an act as provided by law falls on a Saturday, a Sunday or a legal
holiday in the place where the court sits, the time should not run until
the next working day. (Alarilla v. Ocampo, GR No. 144697, December
10, 2003).
• When the deadline falls on a holiday or weekend, an extension can be
filed the next working day but should count the extended period from
original deadline (Montajes v. People, G.R. 183449, 12 March 2012)
Rule 12 – Bill of Particulars
• When the causes of action alleged in the complaint are vaguely or obscurely
pleaded such that there is a need to clarify the basis of the action so that
defendant can intelligently prepare a responsive pleading. (Bantillo v. IAC,
G.R. No. 75311 October 18, 1988).

• Plaintiff filed a complaint for reconveyance for herself as a surviving heir and
in representation of other heirs of the owner of the property in question.

• Defendant filed a motion for bill of particulars seeking the identity of the
other heirs which she seeks to represent and her authority for representing
them.

• HELD: The filing of a motion for Bills of Particulars is proper as the complaint
failed to allege a factual matter which, under the Rules, must be alleged or
pleaded, i.e., identity of alleged co-heirs and co-plaintiffs is necessary for a
proper defense.
When to file a motion for a bill of particulars?

• COMPLAINT alleged that defendants acted in “unlawful concert”.

• Defendant filed a motion for a bill of particulars, for clarification on
the specific nature, manner and extent of his participation in the
acquisition of the assets cited. (Republic v. SB, G.R. No. 148154,
December 17, 2007).
• SC ruled that this is proper for Bill of Particulars.
Order for bill of particulars
• The order may direct the adverse party (a) to file a bill of
particulars, or (b) to make the pleading referred to in the motion
more definite and certain, either by amending or supplementing
the same. (Bantillo v. IAC, G.R. No. 75311 October 18, 1988).
What is the effect of the failure to comply
with an order for bill of particulars?
• Sec. 4, Rule 12 provides that the court may:
1. Order the striking out of the pleading or the portions thereof or
2. Make such other order as it deems just.
Rule 13 – Filing and Service of Pleadings,
Judgments, and other papers
What are the modes of filing of pleadings,
orders, or judgments?
1. Personal Filing – by presenting the originals personally to the clerk
of court
2. Registered Mail – date of mailing shall be considered as the date of
their filing
What is the rule on filing of pleadings, orders,
or judgments?
• The rule is that filing of pleadings shall be done personally. If
filing is done by registered mail, a written explanation must be
included in the pleading why filing was not done personally (Sec.
11, Rule 13).
What are the modes of service of pleadings,
orders, or judgments?
1. Personal Service - by delivering personally a copy to the party or
counsel or by leaving a copy at his office with a person having
charge thereof or if not available, at his residence with a person of
sufficient age and discretion residing therein.
2. Registered Mail
3. Ordinary Mail - if no registry service is available in the locality of
either the sender or the addressee
4. Substituted Service - by delivering a copy to the clerk of court, with
proof of failure of both personal service and service by mail.
What is the rule on service of pleadings,
orders, or judgments?
• The rule is service shall be done personally. Service by mail must be
accompanied by a written explanation why service was not done
personally.
• Sec. 11, Rule 13 provides that a violation of the rule may cause to
consider the paper as not filed.
Proof of filing
• Best evidence is the existence of a pleading in the record of the case.
• If a pleading is not in the record:
• Proof of personal filing
othe written or stamped acknowledgement of its filing by the
clerk of court.
• Proof of filing by registered mail –
othe registry receipt and the affidavit of the person who mailed.
Proof of service
• Proof of personal service – written acknowledgement of the party
served or affidavit of service of the person who served, or official
return of the server
• Proof of service by ordinary mail – Affidavit of service of the person
who mailed
• Proof of service by registered mail – Affidavit of service and registry
receipt issued by the Post Office. In one case, the SC held that "it is
the registry receipt issued by the mailing office and the affidavit of the
person mailing, which proves service made through registered mail."
Absent one or the other, or worse both, there is no proof of service.
(Republic v. Resins, G.R. No. 175891, January 12, 2010).
• Filing or Service by Courier is NOT one of the accepted modes of filing
service (Heirs of Miranda v. Miranda, G.R. No. 179638, 8 July 2013;
Palileo v. Planters Development Bank, G.R. No. 193650, 8 October
2014)
• For Requests for Admission under Rule 26, service to PARTY and not just
to counsel, is required.
• When party is represented by counsel, it is service to counsel that is
considered as proper service. (Delos Santos v. Elizalde, G.R. No. 141810
and 141812, 2 February 2007)
• IMPORTANCE OF PROPER FILING AND SERVICE: This is considered as the
reckoning period for compliance with/counting of, reglementary periods
• A pleading not served is also deemed as not filed.
What is notice of lis pendens?

• A Notice of Lis Pendens is a notice of the pendency of an action

affecting title to or possession of property that is recorded by
plaintiff in the Registry of Deeds. It serves as constructive notice
of the pendency of the action to purchasers of the property
affected by the notice.
Party affected by lis pendens
• A notice of lis pendens affects a purchaser or a transferee of the
property while the action is pending. He is bound by any judgment
which may be rendered for or against the transferor (defendant) and
his title is subject to the results of the pending litigation.
• It does not affect the title of one who is not a party to the case. A
notice of lis pendens concerns litigation between a transferor
(defendant) and a third party (plaintiff), where the transferee who
acquires property while the action is pending stands in the shoes of
the transferor and his title is subject to the results of the action.
(Spouses Vicente v. Avera, G.R. no. 169970, January 20, 2009)
Rule 14 - Summons
What are the modes of service of summons?

1. Personal Service - by handing a copy of summons to the defendant in

person or by tendering it to the defendant if he refuses to accept and
sign for it.
2. Substituted Service - by leaving a copy at the defendant’s residence
with a person of suitable age and discretion residing therein or at the
defendant’s office or place of business with a person in charge thereof.
3. Constructive Service – e.g., by publication in a newspaper of general
circulation
4. Extra-territorial Service – service of summons abroad
What are the requirements of substituted
service?

1. Impossibility of prompt personal service

o i.e., it must be shown that defendant cannot be served promptly
or there is impossibility of prompt service within a reasonable
time, i.e., the sheriff must show several attempts for personal
service of at least three times on at least two different dates
2. Specific details in the return
oi.e., the sheriff must describe in the Return of Summons the facts
and circumstances surrounding the attempted personal service
3. Substituted service effected on a person of suitable age and
discretion residing at defendant's house or residence; or on a
competent person in charge of defendant's office or regular place of
business (Garcia v. SB, GR 170122, October 12, 2009).
Substituted service
• In substituted service, it is not necessary that the person in charge of
the defendant's regular place of business be specifically authorized to
receive the summons. It is enough that he appears to be in charge.
(Guanzon v. Arradaza, GR 155392, December 6, 2006).
• Substituted service to a representative of a law firm who claims to be
the defendant’s counsel is ineffective. (Potenciano v. Barnes, GR
159421, August 20, 2008).
What are the 2 modes for effecting
substituted service of summons?
1. By leaving copies of the summons at the defendant’s residence
with some person of suitable age and discretion then residing
therein, or
2. by leaving the copies at defendant's office or regular place of
business with some competent person in charge thereof.
When does extraterritorial service apply?
• Extraterritorial service of summons applies only where action is in
rem or quasi in rem, but not if an action is in personam (Perken Elmer
v. Dakila Trading, G.R. No. 172242. August 14, 2007).
oEXCEPTIONS:
1. Extraterritorial service applies even in action in personam in case
of foreign corporations under the amendment to Sec. 12, Rule 14.

2. It also applies even in actions in personam against residents who

are temporarily out of the Philippines.
When does extraterritorial service apply?
• In short, extraterritorial service applies in the following:
1. Actions in rem and quasi in rem against any defendant, whether
individuals, domestic juridical entity or foreign juridical entity;
2. In personam actions against foreign corporations;
3. In personam actions against residents who are temporarily out of
the Philippines.
When can constructive notice by publication
be resorted to?
1. Actions in rem and quasi in rem against any defendant, whether
individuals or foreign corporation;
2. In personam actions against foreign corporations;
3. In personam actions against residents who are temporarily out of
the Philippines; and
4. In personam actions against a defendant whose identity or
whereabouts is unknown.
Rule on service of summons
• The rule on service of summons depends on the nature of the action
and whether the defendant is an individual, domestic juridical entity
or foreign juridical entity.
• Where the defendant is an individual and the action is in personam,
the general rule is PERSONAL SERVICE or SUBSTITUTED SERVICE,
when appropriate.
 oExceptions are:
1. When defendant or his whereabouts is unknown (Sec. 14, Rule 14)
and
2. When defendant is a Philippine resident temporarily out of the
Philippines (Sec. 16), where CONSTRUCTIVE NOTICE and EXTRA-
TERRITORIAL SERVICE may be resorted.

• Where the defendant is an individual and the action is in rem or quasi

in rem, PERSONAL SERVICE, SUBSTITUTED SERVICE, CONSTRUCTIVE
NOTICE OR EXTRA-TERRITORIAL SERVICE may be resorted to.
• Where the defendant is a domestic juridical entity, the rule is
PERSONAL SERVICE OR SUBSTITUTED SERVICE on the officers
enumerated under Section 11, Rule 14. Exception is where the
identity of the defendant corporation is unknown such unknown
owner of a property that caused damage.
• Where the defendant is a foreign juridical entity that has transacted
business in the Philippines, EXTRATERRITORIAL SERVICE may be
resorted to regardless of the nature of the action. PERSONAL SERVICE
can also be made.
Service on individuals as defendants
• When the action is in personam, service must be made on the
individual within the Philippines, either by personal service or
substituted service, when appropriate. If the defendant is a non-
resident, summons cannot be served on him and the court cannot
acquire jurisdiction over him. (Gomez v. CA, GR 127692, March 10,
2004).
oException is where the defendant or his whereabouts is unknown or a
resident who is temporarily outside of the Philippines.
Service on individuals as defendants
• Where the action is in rem or quasi in rem, service of summons by
publication or personal service abroad may be availed of (Sec. 17,
Rule 14)
• Defect in the service of summons on defendant individual will not
invalidate the proceedings and judgment. HOWEVER, the defect will
preclude the court from rendering a judgment on the personal
liability of the defendants. (San Pedro v. Ong, GR 177598, October
17, 2008).
• A defendant whose identity or whereabouts is unknown may be
served by publication regardless of the nature of the action. I submit
that the law presumes that he is a resident.
Service on individuals as defendants
• A resident temporarily out of the Philippines may be served by
personal service abroad or by publication (Sec. 19, Rule 14). But if
the defendant is no longer residing and is already abroad at the time
of the service of summons even if he was still residing in the
Philippines 5 months before the date of service of summons, this rule
will not apply (Arcenas v. CA, GR No. 130401, 4 December 1998). The
SC ruled in that case that “residence” is determined at the time of
service of summons.
• In addition to that provided under Sec. 19, substituted service may
also be resorted to (Montefalcon v. Vasquez, G.R. No. 165016. June
17, 2008; (PCIB v. Alejandro, G.R. No. 175587. September 21, 2007).
To whom should service on a domestic
juridical entity be made?
1. President
2. Managing Partner
3. General Manager
4. Corporate Secretary
5. Treasurer
6. In-house counsel
• Service of summons to someone other than the corporation's
president, managing partner, general manager, corporate secretary,
treasurer, and in-house counsel, is not valid (Paramount Insurance v.
Ordonez, G.R. No. 175109, August 6, 2008).

• The enumeration under the new rule is restricted, limited and

exclusive, following the rule in statutory construction that expressio
unios est exclusio alterius. The doctrine of substantial compliance has
already been overturned by Villarosa (Spouses Mason v. CA, G.R. No.
144662, October 13, 2003).
What are the requisites for the application of
the doctrine of substantial compliance?
1. There must be actual receipt of the summons by the person served,
i.e., transferring possession of the copy of the summons from the
Sheriff to the person served;
2. The person served must sign a receipt or the sheriff's return; and
3. There must be actual receipt of the summons by the corporation
through the person on whom the summons was actually served.
• The third requisite is the most important for it is through such receipt that the
purpose of the rule on service of summons is attained (Millennium v. Tan,
G.R. No. 131724, February 28, 2000).
Service on foreign corporation
• Personal service or extraterritorial service may be made on a foreign
corporation that has transacted business in the Philippines regardless
of the nature of the action (Sec. 12, Rule 14, as amended).
• For registered foreign corporations, personal service or constructive
service may be resorted to. Personal service - for service on its
resident agent or any of its officers or agents in the Philippines.
Constructive notice - for service on a government official designated
by law like the SEC.
Service on foreign corporation
• For unregistered foreign corporations or foreign corporations without
resident agents, extraterritorial service of summons may be made by:
(a) personal service abroad, which must be coursed through the
appropriate court in the foreign country; (b) publication abroad and
registered mail at the last known address of defendant; (c ) facsimile
or other recognized electronic means that could generate proof of
service; (d) other means as the court may direct.
• Through AM 11-3-6-SC, the SC expanded the ways by which service of
summons may be done on a foreign corporation that has transacted
business in the Philippines.
Voluntary appearance
• Voluntary appearance is equivalent to service of summons.
• In a motion to dismiss challenging the jurisdiction of the court, the
inclusion of other grounds does not constitute voluntary appearance.
• The filing of a motion or pleading seeking an affirmative relief constitutes
or is tantamount to voluntary appearance. In a case wherein defendants
filed a "Motion for Inhibition without submitting themselves to the
jurisdiction of this Honorable Court" subsequent to their filing of a "Motion
to Dismiss (for Lack of Jurisdiction), the SC held that defendants sought
affirmative relief other than the dismissal of the case and thus have
manifested their voluntary submission to the court's jurisdiction (Philippine
Commercial International Bank v. Dy Hong Pi, G.R. No. 171137, June 5,
2009).
What does NOT constitute voluntary
appearance?
• The filing of pleadings by defendant solely for special appearance
with the purpose of challenging the jurisdiction of the court over his
cannot be deemed as voluntary appearance and submission to the
jurisdiction of the court (Garcia v. SB, GR 170122, October 12, 2009).
• Filing of an Answer ad cautelam with compulsory counterclaim
cannot be considered as voluntary appearance of petitioner before
the RTC. (Perken Elmer v. Dakila Trading, G.R. No. 172242. August
14, 2007).
Rule 15 - Motions
Notice of hearing
• The requirement of a notice of hearing, which should indicate the
date and time of hearing and the 3-day notice rule, which requires
the movant to ensure that the motion is filed and served at least
three (3) days before the hearing, is mandatory. Failure to strictly
comply with the requirements renders the motion fatally defective
(KKK Foundation v. Bargas, G.R. No. 163785. December 27, 2007).
Notice of hearing; defect substantially cured

• Where a motion contains a defective notice of hearing but the

adverse party was given the opportunity to file its comment
thereon, the defect is substantially cured.
3-day notice rule

• Every written motion required to be heard and the notice of hearing

thereof shall be served in such a manner as to ensure its receipt by
the other party at least three (3) days before the date of hearing,
unless the court for good cause sets the hearing on shorter notice.
(Camarines Sur v. Aquino G.R. No. 167691 September 23, 2008)
Notice/hearing of motion is for the benefit of
the opposing party
• The requirement of setting a motion for hearing is intended for the
benefit of the opposing party. The trial court can resolve the motion
without waiting for the hearing date provided it is not adverse to the
opposing party (China Banking Corp v. Abel, G.R. No. 182547,
January 10, 2011).
 RULE 16
MOTION TO DISMISS
 WHAT ARE THE GROUNDS FOR DISMISSAL ?
(Sec. 1, Rule 16)
• Lack of jurisdiction over the subject • Prescription
matter • Failure to state a cause of action
• Lack of jurisdiction over the person of • Payment, waiver, abandonment,
the defendant extinguishment of claim
• Improper venue • Claim is unenforceable under the
statute of frauds
• Lack of legal capacity to sue
• Failure to comply with a condition
• Litis pendentia precedent
• Res judicata
WHAT ARE THE OTHER GROUNDS FOR
DISMISSAL ?
• Dismissal upon notice by plaintiff (Sec. 1, Rule 17)
• Dismissal upon motion by plaintiff (Sec. 2, Rule 17)
• Dismissal due to fault of plaintiff (Sec. 3, Rule 17)
• Failure of plaintiff to appear at pre-trial (Sec. 5, Rule 18)
• Failure of plaintiff to file a pre-trial brief (Sec. 6, Rule 18)
• Failure to comply with the rule on certification against forum
shopping (Sec. 5, Rule 7)
• Commission of acts constituting willful and deliberate forum shopping
(Sec. 5, Rule 7)
• Failure to comply with an Order to implead an indispensable party
(Sec. 11, Rule 3)
• Failure to comply with an Order for bill of particulars, in relation to
failure of plaintiff to comply with an order of the court (Sec. 4, Rule
12).
 GROUNDS FOR DISMISSAL WHICH IF GRANTED
WOULD BAR THE REFILING OF THE SAME ACTION

• Res judicata (Sec. 5, Rule 16)

• Prescription (Id.)
• Payment, waiver, abandonment or extinguishment of claim (Id.)
• Claim is unenforceable under the Statute of Frauds (Id.)
• Dismissal upon notice by plaintiff which operates as an adjudication
upon the merits (Sec. 1, Rule 17)
• Dismissal upon motion by plaintiff when the order of dismissal states
that dismissal is with prejudice (Sec. 2, Rule 17)
• Dismissal due to fault of the plaintiff unless the order states
otherwise (Sec. 3, Rule 17)
• Dismissal due to willful and deliberate forum shopping
• Dismissal due to failure of plaintiff to appear at pre-trial or file a pre-
trial brief when the order of dismissal states that dismissal is with
prejudice.
GROUNDS FOR DISMISSAL WHICH IF
GRANTED DO NOT BAR REFILING
• Lack of jurisdiction over the subject matter
• Lack of jurisdiction over the person of the defendant
• Improper venue
• Lack of legal capacity to sue
• Litis pendencia
• Failure to state a cause of action
• Failure to comply with a condition precedent
 EFFECT OF, AND REMEDY FROM, DENIAL OF
MOTION TO DISMISS
• Defendant shall file his Answer within the balance of the period for
filing the same but in no case less than 5 days.
• Remedy is to file answer and go to trial or file petition for certiorari
under Rule 65 if there is grave abuse of discretion. But as a general
rule, the denial of a motion to dismiss cannot be questioned in a
certiorari proceeding under Rule 65 (Malicdem v. Flores, G.R. No.
151001, September 8, 2006).
 EFFECT OF AND REMEDY FROM DISMISSAL
OR GRANT OF MOTION TO DISMISS
• Action may be re-filed except where dismissal is based on res judicata,
prescription, payment, waiver, abandonment or extinguishment of claim
and claim is unenforceable under Statute of Frauds (Sec. 5, Rule 16).
• Remedy is appeal under Rule 41 if the order of dismissal is with
prejudice or petition for certiorari under Rule 65 if the order of dismissal
is without prejudice (Sec. 5, Rule 16 in relation to Sec. 1, Rule 41).
 GROUNDS FOR DISMISSAL AS AFFIRMATIVE
DEFENSES
• The grounds for dismissal under Rule 16 may be pleaded as affirmative
defenses in the Answer.
• Defendant is entitled to move for the hearing and resolution of its
affirmative defenses asserted in the Answer. The Rules provide a
preliminary hearing may be held as if a motion to dismiss had been filed
in the discretion of the court. (PDI v. Hon. Alameda, G.R. No. 160604,
March 28, 2008).
• The grounds raised in a Motion to Dismiss can be repleaded in the
Answer as affirmative defenses but defendant can no longer demand for
a preliminary hearing thereon. (exception: Rasdas v. Estenor, 13
December 2005)
WHAT ARE THE REQUISITES OF RES JUDICATA

• The former judgment or order must be final

• It must be a judgment or order on the merits
• The court which rendered it had jurisdiction over the subject matter
and the parties
• There must be between the first and second actions identity of
parties, subject matter and cause of action (Heirs of Abalos v. Bucal,
GR No. 156224, February 19, 2008)
 JUDICIAL COMPROMISE HAS THE EFFECT OF
RES JUDICATA
• A judicial compromise has the effect of res judicata and is
immediately executor and not appealable (Republic v. CA, GR
No. 110020, September 25, 1998).
 ASPECTS OF RES JUDICATA
• ACTION COULD BE BARRED EITHER BY:
• PRIOR JUDGMENT OR
• CONCLUSIVENESS OF JUDGMENT
• "Bar by prior judgment," is the effect of a judgment as a bar to the
prosecution of a second action upon the same claim, demand or
cause of action.
• "Conclusiveness of judgment," issues actually and directly resolved in
a former suit cannot again be raised in any future case between the
same parties involving a different cause of action (Francisco v. Co,
G.R. No. 151339, January 31, 2006).
CONCLUSIVENESS OF JUDGMENT OPERATES AS A
BAR EVEN IF THERE IS NO IDENTITY OF CAUSE OF
ACTION
 ONLY SUBSTANTIAL IDENTITY OF PARTIES IS
REQUIRED
• Exact identity of parties is not necessary. Only substantial identity is
necessary to warrant the application of res judicata. The principle of
res judicata may not be evaded by the mere expedient of including an
additional party to the first and second action. There is substantial
identity of parties when there is a community of interest between a
party in the first case and a party in the second case albeit the latter
was not impleaded in the first case. (Cruz v. CA, GR 164797, February
13, 2006)
PRESCRIPTION AS GROUND FOR DISMISSAL MUST
BE APPARENT FROM THE ALLEGATIONS OF THE
COMPLAINT
• Prescription can effectively be used in a motion to dismiss only when
the Complaint on its face shows that indeed the action has already
prescribed. If it involves evidentiary matters requiring a full-blown
trial on the merits, it cannot be determined in a motion to dismiss.
(Heirs of Dolleton v. Fil-Estate, G.R. No. 170750, April 7, 2009).
 DEFENSE OF PAYMENT, WAIVER OR ABANDONMENT OF
CLAIM HYPOTHETICALLY ADMITS THE ALLEGATIONS IN THE
COMPLAINT BUT THE COURT IS NOT CONFINED TO THE
ALLEGATIONS IN THE COMPLAINT

• This ground essentially admits the obligation set out in the complaint
but points out that such obligation has been extinguished, by
payment, waiver or abandonment. (Dona Rosana Realty v. Molave,
GR 180523, March 26, 2010)
 RULE 17
DISMISSAL OF ACTIONS
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.
DISMISSAL FOR FAILURE TO PROSECUTE IS AN
ADJUDICATION ON THE MERITS
 DISMISSAL UPON NOTICE BY PLAINTIFF IS
EFFECTIVE UPON ITS FILING IN COURT
• Dismissal is ipso facto upon notice. It is not filed through motion
but through mere notice. (Dael v. Spouses Benedicto, GR
156470, April 30, 2008).
DISMISSAL UPON NOTICE IS WITHOUT
PREJUDICE
• The rule is that dismissal upon notice by plaintiff is without prejudice.
• Dismissal upon notice of a case is without prejudice to the re-filing
thereof. Moreover, even if the same were tested under the rules on
litis pendentia and res judicata, the danger of conflicting decisions
cannot be present, since the case was dismissed even before a
responsive pleading was filed. (Benedicto v. Lacson, GR 141508, May
5, 2010).
EXCEPTIONS:
(1) Where the notice of dismissal so provides
(2) Where the plaintiff has previously dismissed a similar case in a court
of competent jurisdiction
(3) Even where the notice of dismissal does not provide that it is with
prejudice but it is premised on the fact of payment by the defendant of
the claims involved (Serrano v. Cabrera, 93 Phil 774 1953).
2-DISMISSAL RULE
• Second Dismissal must be by Notice
• Both dismissals must be upon the instance of the plaintiff (Ching v.
Cheng, G.R. No. 175507, 8 October 2014)
 EFFECT OF DISMISSAL OF COMPLAINT ON
MOTION OR DUE TO FAULT OF PLAINTIFF ON
COUNTERCLAIM OR CROSS-CLAIM

• Counterclaim and crossclaim will survive the dismissal of the

complaint whether compulsory or permissive.
 RULE 18
PRE-TRIAL
 WHO HAS THE DUTY TO HAVE THE CASE SET
FOR PRE-TRIAL?
• Section 1 of Rule 18 of the Rules of Court imposes upon the plaintiff
the duty to set the case for pre-trial after the last pleading is served
and filed.
• This duty of plaintiff is not affected by the fact that the Pre-trial
Guidelines mandates the Clerk of Court to promptly issue a notice of
pre-trial.
 SIGNIFICANCE OF DOCUMENTS PRESENTED AND MARKED
DURING PRE-TRIAL: CAN BE CONSIDERED AS EVIDENCE EVEN IF
NOT FORMALLY OFFERED
• As a rule, documents which are not formally offered in evidence shall
not be considered.
EXCEPTION:
• When the following requisites are present:
(1) The same must have been duly identified by testimony duly
recorded and,
(2) The same must have been incorporated in the records of the
case. (Ramos v. Spouses Dizon, GR 137247, Aug 7, 2006).
 WHO IS ENTITLED TO NOTICE OF PRE-TRIAL,
COUNSEL OR PARTY?
• As a rule, notice of pre-trial shall be served on counsel. A
separate notice is not required to be sent to a party as the
counsel is charged with the duty of notifying his client.
• EXCEPTION: A party who has no counsel is entitled to receive a
notice of pre-trial.
 WHO ARE REQUIRED TO APPEAR AT PRE-
TRIAL
• The parties and their counsel shall appear at the pre-trial.
• A representative may appear in behalf of a party provided that he is
fully authorized in writing to enter into an amicable settlement,
submit to alternative modes of dispute resolution, and to enter into
stipulations or admission of facts and documents.
EFFECT OF FAILURE TO APPEAR AT PRE-TRIAL

• Failure of plaintiff to appear at pre-trial shall be a cause for dismissal

with prejudice unless otherwise ordered by the court.
• Failure of defendant to appear is not a ground for default but the
effects of a default are applied, i.e., the court may allow the plaintiff
to present his evidence ex parte and render judgment on the basis
thereof.
EFFECT OF FAILURE TO FILE PRE-TRIAL BRIEF

• Failure of the defendant to file a pre-trial brief shall have the

same effect as failure to appear at the pre-trial, i.e., the plaintiff
may present his evidence ex parte and the court shall render
judgment on the basis thereof. (Saguid v. CA, GR 150611, June
10, 2003).
 RULE 19
INTERVENTION
REQUIREMENTS FOR INTERVENTION
(1) Legal interest (a) in the matter in controversy; or (b) in the success
of either of the parties; or (c) against both parties; or (d) person 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;
(2) Intervention will not unduly delay or prejudice the adjudication of
rights of original parties;
(3) Intervenor's rights may not be fully protected in a separate
proceeding.
WHEN INTERVENTION SHOULD BE MADE
• As a rule, intervention is allowed at any time before rendition of
judgment by the trial court. After the lapse of this period, it will not
be warranted anymore because intervention is not an independent
action but is ancillary and supplemental to an existing litigation.
(Salandanan v. Spouses Mendez, G.R. No. 160280, March 13, 2009)

EXCEPTION:
• Where intervenor was not impleaded despite being an indispensable
party, and had not known of the existence of the case before the trial
court and the effect of the final order is to deprive intervenor of his
property. (Asia’s Emerging Dragon v. DOTC, G.R. No. 169914, April
18, 2008).
Rule 19:
Q: In a case where the litigant terminated the services of her
counsel, and eventually settled the case amicably on her own,
can the previous counsel intervene in the pending case to
protect his contingency fee?

A: Yes. This is considered as a legal interest in the matter in

litigation. (Malvar v. Kraft Foods, Inc., 9 September 2013)
Rule 21 - Subpoena
What are the modes of service of a
subpoena?

• Service of a subpoena shall be made in the same manner as personal

or substituted service of summons (Macaspac v. Flores, A.M. No. P-
05-2072, August 13, 2008)
What are the grounds for the quashal of a
subpoena duces tecum?
1. Subpoena is unreasonable and oppressive - has a tendency to
infringe on the right against invasion of privacy. (In re: Petition for
cancellation and correction of entries in the record of birth, Lee v.
CA G.R. No. 177861, July 13, 2010)
o In that case, the SC held that the grounds of unreasonableness and
oppresiveness are proper for subpoena duces tecum.
2. Relevancy of books, documents or things does not appear
3. Movant fails to advance reasonable cost of the production thereof.
(Sec. 4, Rule 21)
What are the grounds for the quashal of a
subpoena duces tecum?
4. Documents not specifically described or designated
5. Documents covered by privilege like attorney-client privilige
6. Documents covered by RA 1405 or the Banks Secrecy Law, but note
the exceptions
7. Documents covered by Foreign Currency Law
8. Executive Privilege
What are the grounds for the quashal of a
subpoena ad testificandum?
1. Where witness is being called to testify against his parents, other
direct ascendants, children or other direct descendants. (Sec. 25,
Rule 130 on parental and filial privilege)
2. Where the witness is disqualified by reason of privileged
communication – husband and wife as to communication received
in confidence during their marriage, attorney or his secretary as to
legal advice given to a client, a doctor in a civil case as to the advice
or treatment given to his patient, a priest regarding a confession
made to him or a public officer as to communication made to him in
confidence (Sec. 22 – 24, Rule 130)
3. Executive privilege
What are the grounds for the quashal of a
subpoena ad testificandum?
• Section 4, Rule 21 of the Rules of Civil Procedure, thus provides: The
court may quash a subpoena ad testificandum on the ground that
1. The witness is not bound thereby.

2. In either case, the subpoena may be quashed on the ground that the
witness fees and kilometrage allowed by these Rules were not tendered
when the subpoena was served.
Rule 23 – Depositions Pending Action
What is a deposition?
• To depose means to get the testimony of a person.
• Depositions serve as a device for ascertaining the facts relative to the
issues of the case. The evident purpose is to enable the parties,
consistent with recognized privileges, to obtain the fullest possible
knowledge of the issues and facts before civil trials and thus prevent
the said trials from being carried out in the dark. (San Luis v. Roxas,
G.R. No. 159127. March 3, 2008)
• Deposition serves the double function of a method of discovery —
with use on trial not necessarily contemplated — and a method of
presenting testimony (Hyatt Industrial v. Ley Construction, G.R. No.
147143. March 10, 2006).
What is the purpose of depositions/modes of
discovery?
1. To enable the parties to a case to learn all the material and relevant
facts
2. To uncover evidence (absence of evidence)
3. To preserve evidence
4. Emphasize issues
5. Prepare our evidence (preparing opponents)
6. Pin and size up the witness and counsel (harassment value)
7. Encourage settlement (dragging case)
Depositions may be taken at any time after
the filing of the complaint
• It may be done before and after trial, before and after appeal, and
even during execution of the judgment.
• Depositions may be taken at any time after the institution of any
action, whenever necessary or convenient provided jurisdiction has
been obtained over the defendant or property subject of the action.
A deposition cannot be refused on the ground that
it would violate the right against self-incrimination
of the deponent
• Thus, for a party in a civil case to possess the right to refuse to take
the witness stand, the civil case must also partake of the nature of a
criminal proceeding. ( Rosete v. Lim, G.R. No. 136051. June 8, 2006)
Delay is not a valid ground to refuse
deposition
• While speedy disposition of cases is important, such consideration
however should not outweigh a thorough and comprehensive
evaluation of cases, for the ends of justice are reached not only
through the speedy disposal of cases but more importantly, through a
meticulous and comprehensive evaluation of the merits of the case.
(Hyatt Industrial v. Ley Construction, G.R. No. 147143. March 10,
2006)
Availability of deponent to testify is not a ground to
refuse deposition. Taking of deposition is different
from the use of deposition on trial
• The availability of the proposed deponent to testify in court does not
constitute "good cause" to justify the court's order that his deposition
shall not be taken. That the witness is unable to attend or testify is
one of the grounds when the deposition of a witness may be used in
court during the trial. But the same reason cannot be successfully
invoked to prohibit the taking of his deposition.
Taking of deposition is different from the use
of deposition on trial

• The right to take statements and the right to use them in court have
been kept entirely distinct. The utmost freedom is allowed in taking
depositions; restrictions are imposed upon their use.
Taking of deposition is different from the use
of deposition on trial
• . . . [U]nder the concept adopted by the new Rules, the deposition
serves the double function of a method of discovery — with use on
trial not necessarily contemplated — and a method of presenting
testimony. Accordingly, no limitations other than relevancy and
privilege have been placed on the taking of depositions, while the use
at the trial is subject to circumscriptions looking toward the use of
oral testimony wherever practicable. (Hyatt Industrial v. Ley
Construction, G.R. No. 147143. March 10, 2006)
What are the forms of depositions?

1. Oral Examination
2. Written Interrogatories
When is leave of court necessary?

• As a rule, leave of court is not necessary before deposition may be

taken in pending actions.
o EXCEPTIONS:
1. Before service of answer: Leave of court is necessary because issues are
not yet joined and the disputed facts are not clear.
2. Deposition before action as when a person desires to perpetuate his
own or that of another person (Sec. 1, Rule 24)
3. Deposition pending appeal or before taking of appeal as when a party
desires to perpetuate testimonies of witnesses for use in the event of
further proceedings (Sec. 7, Rule 24)
Scope of examination in deposition: Any
relevant matter, not privileged
• What is chiefly contemplated is the discovery of every bit of
information which may be useful in the preparation for trial, such as
1. Relevant facts that are not privileged
2. Identity and location of persons having knowledge of relevant facts
3. Existence, description, nature, custody, condition, and location of any
books, documents, or other tangible things.
• Evidentiary matters may be inquired into and learned by the parties
before trial. It is the policy of the law that parties before trial should
discover all the facts relevant to the action, not only those known to
them individually, but also those known to their adversaries.
(Republic v. SB, G.R. No. 90478, November 21, 1991)
Requirements for oral examination and
written interrogatories on a witness
1. Oral Examination - A notice of deposition upon oral examination
shall be served upon the adverse party stating (1) the time and
place for the taking of deposition and (2) the name and address of
the person to be examined and the deposing officer
2. Written Interrogatories - A notice of deposition and written
interrogatories shall be served upon the adverse party stating the
name and address of the deponent and the name, address and
descriptive title of the deposing officer.
Period for serving cross, re-direct, and recross
interrogatories
1. Cross Interrogatories – 10 days
2. Re-direct Interrogatories – 5 days
3. Re-cross Interrogatories – 3 days
Who shall answer written interrogatories
served on juridical entities?
• Interrogatories served on a juridical entity shall be answered by
any officer competent to testify in its behalf.
What is the remedy from a notice of or order
for deposition?
• Party or deponent may move for a protection order, i.e., that it may
be taken only on written interrogatories or oral interrogatories, that
certain matters shall not be inquired into, that secret processes,
developments or research need not be disclosed, to protect the
deponent from annoyance, embarrassment or oppression (Secs. 16
for oral examination and 28 for written interrogatories).
Manner of taking depositions in the
Philippines
• Deposition within the Philippines may be taken before any judge,
notary public or any person authorized to administer oaths when
parties so stipulate in writing (Secs. 10 and 14, Rule 23)
• Deposing officer shall put deponent on oath and shall personally or
by someone acting under his direction and in his presence record the
testimony of the witness.(Sec. 17)
Manner of taking depositions in the
Philippines
• All objections made at the time of the examination to the
qualifications of deposing officer, manner of taking it, evidence
presented, conduct of any party and any other objection to the
proceedings shall be noted by the deposing officer.(Sec. 17) Evidence
objected to shall be taken subject to the objections.
• In lieu of oral examination, a party may opt to submit written
interrogatories to the deposing officer who shall propound them to
the witness and record the answers verbatim. (Sec. 17)
• Certification and filing by deposing officer of deposition (Sec. 20) and
notice of filing to parties (Sec. 27)
Manner of taking depositions abroad
• Depositions in foreign countries may be taken before:
1. Secretary of embassy or legation, consul general, consul, vice consul,
or consular agent of the Republic of the Philippines;(Sec. 11)

2. Person or officer as may be appointed by commission or foreign court

or tribunal under letters rogatory; or (Sec. 11)

3. Any person authorized to administer oaths as stipulated in writing by

the parties.(Sec. 14)
What is a commission?
• Commissions are directives to officials of the issuing jurisdiction.
Commissions are taken in accordance with the rules laid down by the
court issuing the commission
What is a letter rogatory?

• A letter rogatory is a request to a foreign court to give its aid, backed

by its power, to secure desired information. The methods of
procedure are under the control of the foreign tribunal. (Dulay v.
Dulay, G.R. No. 158857, November 11, 2005)
What is the remedy from an unreasonable
conduct of deposition?
• At any time during the taking of deposition, a party or deponent may
move for a protective order or termination of the taking of
deposition or limitation of the scope and manner of the taking of
deposition (Sec. 18)
When can a protective order be issued?
1. Examination is being conducted in bad faith
2. Examination is being conducted in such a manner as to annoy,
embarrass, or oppress the person subject to the inquiry.
3. When the inquiry touches upon the irrelevant facts
4. When the inquiry encroaches upon the recognized domains of
privilege. (Republic v. SB, G.R. No. 90478, November 21, 1991)
What is the effect of taking a deposition?

• A party taking the deposition is not bound to make the deponent his
own witness. He shall not be deemed to make the deponent his own
witness for any purpose by taking his deposition. He may opt not to
use at all the deposition as evidence (Sec. 7)
Use of deposition of a party and a witness

• Deposition of a party – Adverse party may use deposition:

1. To contradict or impeach the testimony of the party;

2. For any purpose, i.e., offer it in evidence in support of its claim.

• N.B. Deposition of officer, director or managing agent of a juridical

entity which is a party to an action is considered as DEPOSITION OF A
PARTY. Thus, it may be used for any purpose.
Use of deposition of a party and a witness
• Deposition of a witness - : Any party may use deposition:
1. To contradict or impeach the testimony of the party;
2. For any purpose if the court finds:
a. That the witness is dead; or
b. That the witness is out of the province and at a greater distance than 100 kilometers
from the place of trial or hearing, or is out of the Philippines, unless it appears that his
absence was procured by the party offering the deposition; or
c. That the witness is unable to attend to testify because of age, sickness, infirmity, or
imprisonment; or
d. That the party offering the deposition has been unable to procure the attendance of
the witness by subpoena; or
e. Upon application and notice, that such exceptional circumstances exist as to make it
desirable, in the interest of justice and with due regard to the importance of
presenting the testimony of witnesses orally in open court, to allow the deposition to
be used
Entire deposition may be required to be
introduced
• If only part of a deposition is offered in evidence by a party, the
adverse party may require him to introduce all of it which is relevant
to the party introduced, and any party may introduce any other parts.
What is the effect of participation in
deposition?
• No waiver of the right to object to its admissibility
o The act of cross-examining the deponent during the taking of the deposition
cannot, without more, be considered a waiver of the right to object to its
admissibility as evidence in the trial proper. A party is not estopped from
challenging the admissibility of the deposition just because he participated in
the taking thereof. (Sales v. Sabino, G.R. No. 133154. December 9, 2005)
What is the effect of using deposition?
• The rule is the introduction in evidence of the deposition or any part
therof for any purpose makes the deponent the witness of the party
introducing the deposition (Sec. 8).
oEXCEPTIONS:
1. Where the party used the deposition to contradict or impeach the
testimony of the deponent in court;

2. When the deponent is an officer, director or managing agent of

the adverse party.
What is the effect of substitution of parties and
dismissal of action on the right to use deposition?

• The rule is the right of a party to use deposition previously taken

before the substitution is binding on the substituted parties (Sec. 5)
• When an action has been dismissed and another action involving the
same subject is filed between the same parties, depositions taken in
the former action may be used in the latter as if originally taken
therefor (Sec. 5)
When to raise objections to errors or
irregularities in depositions?
• As to Notice of deposition – written objection should be promptly
served upon the party who gave the notice.
• As to Disqualification of officer – objection should be raised before
the taking of the deposition begins or as soon thereafter as the
disqualification becomes knows or could be discovered.
• As to competency or relevance of evidence –objection may be raised
when the deposition is introduced in evidence in court unless the
ground of objection might have been obviated or removed if
presented at that time
When to raise objections to errors or
irregularities in depositions?
• As to manner of taking deposition, form of questions or answers, oath
or affirmation, or conduct of parties in the deposition – objection
must be raised at the taking of deposition.
• As to the form of written interrogatories – objection must be raised
within the time for filing answer to interrogatories to parties or cross-
interrogatories.
• As to manner in which testimony is transcribed or deposition is
prepared, signed, certified, sealed, transmitted or filed – objections
must be raised within reasonable time from notice of such defect.
What is the effect of the failure to raise timely
objections to errors or irregularities in
deposition?
• The rule is the objections are deemed waived.
oEXCEPTION: Objections to competency, relevancy or materiality of
testimony are not waived even if they are not raised before or
during the taking of deposition.
Disqualifications of deposing officers

• The following are grounds for disqualification of the person before

whom deposition is to be taken:
1. Officer is a relative within the 6th degree of consanguinity or affinity of
any of the parties;
2. Officer is counsel or employee of any of the parties
3. Officer is a relative within the same degree or employee of such
counsel
4. Officer is financially interested in the action. (Sec. 13)
Rule 24 – Depositions before Action or
Pending Appeal
Deposition before action
• Any person may file a petition for deposition in order to perpetuate
his own testimony or that of another person regarding any matter
that is within the jurisdiction of Philippine courts.
• The petition shall be filed before the RTC of the place of residence of
any expected adverse party to take deposition.
Grounds for allowance of deposition before
action

• Where the perpetuation of the testimony may prevent a failure

or delay of justice.
Deposition before and after appeal

• A party may file a motion before the court in which the judgment was
rendered to take the deposition of witnesses to perpetuate their
testimony for use in the event of further proceedings in said court.
• Ground for allowance of motion for deposition is to prevent a failure
or delay of justice.
Rule 25 – Interrogatories to Parties
Leave of court not necessary after answer is
filed
• The rule is leave of court is not necessary when a party serves written
interrogatories to the adverse party AFTER an answer has been
served.
oEXCEPTIONS (which means leave of court is necessary):

1. Before service of an answer to the complaint;

2. More than one set of interrogatories would be served on the same

party.
What is the effect of the failure to serve written
interrogatories on the adverse party?
• The adverse party may not be compelled to give testimony in
open court or to give a deposition pending appeal.
Answer to written interrogatories

• Answer shall be signed and sworn to by the person making them. If

the party served is a juridical entity, answer shall be made by any
officer thereof competent to testify in its behalf.
• Answer shall be filed within 15 days after service thereof or within
such time as the court may allow.
Objections to interrogatories

• Objections shall be filed within 10 days from service of the

interrogatories.
• Filing of objections shall defer the service and filing of answer to
interrogatories.
Rule 26 – Admission by Adverse Party
When request for admission can be filed

• After the defendant has filed his answer as the Rules provide that
a request for admission may be filed at any time after issues have
been joined.
Important requisite for request for admission

• Do not simply reproduce allegations in previous pleading

oA request for admission is not intended to merely reproduce or
reiterate the allegations of the requesting party's pleading but should
set forth relevant evidentiary matters of fact, or documents described
in and exhibited with the request, whose purpose is to establish said
party's cause of action or defense.(Po v. CA, G.R. No. L-34341, August
22, 1988)
What is the scope of the request for
admission?
• Under Section 1 of Rule 26 of the Rules of Court, the scope of matters
that a party may request the adversary to admit are:
1. The genuineness of any material and relevant document described in and
exhibited in the request; and
2. The truth of any material and relevant matter of fact set forth in the
request.
• The demand for admission relate to relevant and material matters of
facts— and not for admission of matters of law, conclusions, or
opinions. (DBP v. CA, G.R. No. 153034, September 20, 2005)
What is the period to file an answer to a
request for admission?
• 15 days from service of request for admission
• Such further time as the court may allow on motion and notice.
Form of answer to request for admission

• The Answer shall either deny specifically the matters of which an

admission is requested or set forth in detail the reasons why he
cannot truthfully either admit or deny those matters.
• Answer must be under oath
Request must be served directly upon the
party
• The request for admission must be served directly upon the party
(Briboneria v. CA, G.R. No. 101682, December 14, 1992). Otherwise,
the party to whom the request is directed cannot be deemed to have
admitted the genuineness of any relevant document described in and
exhibited with the request or relevant matters of fact set forth
therein, on account of failure to answer the request for admission.
What is the effect of the failure to file an
answer to a request for admission?
• The matters set forth in the request for admission are deemed
admitted by the requested party(Sec. 2, Rule 26). In short, the truth
of the matters upon which admissions were requested are deemed
admitted.
oEXCEPTION: If the factual allegations in the complaint or answer are the
very same allegations set forth in the request for admission and have
already been specifically denied or otherwise dealt with in the answer
or reply, a response to the request is no longer required.
Effect of failure to file an answer to request
for admission; Exception
• If the matters in a Request for Admission were already admitted or
denied in previous pleadings by the requested party, the latter cannot
be compelled to admit or deny them anew (Spouses Limos v. Spouses
Odones, G.R. No. 186979, August 11, 2010)
What is the effect where the answer to a
request for admissions is not under oath?
• That the Answer to Request for Admission was not under oath is not a
substantive, but merely a formal, defect which can be excused in the
interest of justice conformably to the well-entrenched doctrine that
all pleadings should be liberally construed as to do substantial justice.
(DBP v. CA, G.R. No. 153034, September 20, 2005)
What is the effect of an admission in a
request for admission?
• Admission is for the purpose of the pending action only. It shall
not constitute as an admission for any other purpose.
• Admission made in an action cannot be used against him in any
other proceeding.
Withdrawal of admission
• The court may allow a party to withdraw or amend an admission
upon such terms are may be just (Sec. 4, Rule 26).
What is the effect of the failure to file and
serve a request for admission?
• A party shall not be permitted to present evidence on relevant facts
which are within the personal knowledge of the adverse party
• The rule is the failure to file and serve request for admission on the
adverse party of material fact at issue which are or ought to be within
the personal knowledge of the adverse party – shall not be permitted
to present evidence on such facts.
o EXCEPTION: Good cause and to prevent a failure of justice
Rule 27 – Production or Inspection of
Documents or Things
Matters subject of motion for production or
inspection
• Documents, papers, books, accounts, letters, photographs, objects, or
tangible things
• Land or other property in possession or control of a party
What is the relief prayed for in a motion for
production or inspection?
• For documents, relief is to produce and permit inspection and
copying or photographing
• For land or other property, relief is to permit entry for the purpose of
inspecting, measuring, surveying or photographing
The rule on production of documents permits
fishing for evidence; Requirements

• Rule 27 of the Revised Rules of Court permits "fishing" for evidence,

the only limitation being that the documents, papers, etc., sought to
be produced are not privileged, they are in the possession of the
party ordered to produce them; and they are material to any matter
involved in the action. (Solidbank v. Gateway Electronics, G.R. No.
164805, April 30, 2008).
What are the requisites in order that a party may
compel the other party to produce or allow the
inspection of documents or things?
1. The party must file a motion for the production or inspection of
documents or things, showing good cause therefor;
2. Notice of the motion must be served to all other parties of the case;
3. The motion must designate the documents, papers, books,
accounts, letters, photographs, objects or tangible things which the
party wishes to be produced and inspected;
4. Such documents, etc., are not privileged;
5. Such documents, etc., constitute or contain evidence material to
any matter involved in the action, and
6. Such documents, etc., are in the possession, custody or control of
the other party. (Solidbank v. Gateway Electronics, G.R. No.
164805, April 30, 2008).
Rule 28 – Physical and Mental Examination of
Persons
When a motion for physical or mental
examination may be filed
• When the mental or phsical condition of a party is in controversy,
he may be required to submit to physical or mental examination.
Party examined entitled to a copy of written
report of findings
• The party examined may secure a copy of a detailed written
report of the examining physician setting out his findings and
conclusions.
Effect of securing copy of written report of
findings
• The party causing the examination shall be entitled to receive report
of previous examination of the same physical or mental condition.
• The party examined waives any privilege he may have in that action
or other action involving the same controversy regarding the
testimony of the examining physician in respect of the same mental
or physical examination.
Rule 29 – Refusal to Comply with Modes of
Discovery
What is the effect of the failure to comply
with the modes of discovery?
• The law imposes serious sanctions on the party who refuses to make
discovery (Republic v. SB, G.R. No. 90478, November 21, 1991), such
as:
1. Dismissing the action or proceeding or part thereof, rendering judgment by
default against disobedient party, striking out all or any any part of the
pleading of the party – Failure of a party to:
o Serve answers to written interrogatories under Rule 25
o Appear before the deposing officer for oral examination
o Comply with an order under Rule 27 to produce any document for inspection,
photocopying or photographing
 o Comply with an order under Rule 28 requiring him to submit to physical or
mental examination
o Comply with an order to answer designated questions upon oral examination or
written interrogatory
2. Contempt of court –
o Refusal of a witness to be sworn
o Refusal of a witness to answer any question after being directed to do so by
the court
3. Arrest of the party or agent of the party –
o In lieu of other consequences under Sec. 3 when a party fails or refuses to
comply with an order under Rule 27 on production of document, Rule 28 on
physical or mental examination or with an order to answer designated
questions.
4. Payment of the amount of reasonable expenses incurred in
obtaining a court order to compel discovery, including attorney’s
fees – Failure of a party to:
o Serve answers to written interrogatories under Rule 25
o Appear before the deposing officer for oral examination
5. Taking the matters inquired into as established in accordance with
the claim of the party seeking discovery – Failure of a party to:
o File a sworn answer to a Request for Admission
o Comply with an order under Rule 27 to produce any document for inspection,
photocopying or photographing
o Comply with an order under Rule 28 requiring him to submit to physical or
mental examination
o Comply with an order to answer designated questions upon oral examination
or written interrogatory
6. Refusal to allow the disobedient party support or oppose
designated claims or defenses or staying further proceedings –
Failure of a party to:
o Comply with an order under Rule 27 to produce any document for inspection,
photocopying or photographing
o Comply with an order under Rule 28 requiring him to submit to physical or
mental examination
o Comply with an order to answer designated questions upon oral examination
or written interrogatory
Rule 30 - Trial
Trial can be dispensed with by agreement of
the parties
• The trial court can render a decision without a full-blown trial, based
solely on the pleadings of the parties and the documents appended
to their memorandum where the parties themselves agreed to forego
a full-blown trial and to instead file their respective "Memorandum of
Authority" and to submit evidence in support of their respective
contentions. (Republic v. Vda De Neri, G.R. No. 139588, March 4,
2004).
Absence of a party during trial constitutes a waiver of
his right to present evidence or cross-examine the
opposing party’s witnesses
• The absence of a party during trial constitutes waiver of his right to
present evidence and cross-examine the opponent's witnesses.
• Although a defendant who answered the complaint but fails to
appear at the scheduled trial cannot be declared in default, the trial,
however, may proceed without his presence. And if the absence of a
party during the hearing was due to his own fault, he cannot later on
complain that he was deprived of his day in court. (Spouses Calo v.
Spouses Tan, G.R. No. 151266, November 29, 2005).
Rule 31 - Consolidation
What are the requisites of consolidation?
1. Two or more actions are pending before the court involving the same
parties;
2. Both or all actions arise from the same act, event transaction, involve the
same or like issues, and depend largely or substantially on the same
evidence
3. The court has jurisdiction over the cases to be consolidated (Republic v.
CA, G.R. No. 116463, June 10, 2003).
4. Consolidation would not result in prejudice to any of the parties or
would not cause complications, delay, or restrict the rights of a party.
(Teston v. DBP, G.R. No. 144374, November 11, 2005).
5. The nature of both actions is the same (Espinoza v. UOB, G.R. No.
175380, March 22, 2010)
What is the purpose of consolidation?
• The obvious purpose of the rule allowing consolidation is to avoid
multiplicity of suits to guard against oppression or abuse, to prevent
delays, to clear congested dockets, to simplify the work of the trial
court; in short the attainment of justice with the least expense and
vexation to the parties litigants.
Consolidation addressed to the sound
discretion of the court
• Consolidation of actions is addressed to the sound discretion of the
court and its action in consolidating will not be disturbed in the
absence of manifest abuse of discretion.
Court must have jurisdiction over the cases
sought to be consolidated
• In Republic v. CA, the SC held that an essential requisite of
consolidation is that the court must have jurisdiction over all the
cases consolidated before it. Since the Sandiganbayan does not have
jurisdiction over the collection case, the same cannot be consolidated
with the criminal cases even if these cases involve similar questions of
fact and law.
A civil case can be consolidated with a
criminal case
• As a rule, consolidation of civil and criminal cases is allowed when all
the requisites of consolidation are present. In one case, the SC
allowed a civil action not arising from the offense charged (arising ex
contractu) to be consolidated with the criminal action (Naguiat v.
Intermediate Appellate Court)
• In another case, the Court consolidated a civil action for the recovery
of wage differential with a criminal action for violation of the
Minimum Wage Law (Canos v. Peralta)
A civil case can be consolidated with a
criminal case; Exception
• EXCEPTION (which means that a civil case cannnot be consolidated
with the criminal case) -- If the civil case amounts to a counterclaim or
a third party complaint in a criminal case. In one case, the SC held
that a consolidation of the collection case with the criminal cases will
have the same effect of a counterclaim or a third-party complaint
against the complainant. In such case, the rule against counterclaims
and third-party complaints in criminal cases may be applied by
analogy. (Republic v. CA, G.R. No. 116463, June 10, 2003).
Rule 32 – Trial by Commissioner
Court can decide a case on the basis of a
commissioner’s report and adopt in whole the
findings of commissioners
• In one case, the trial court acted properly when it adopted the
Majority Report of the commissioners as part and parcel of its
Decision. That is allowed in Section 11, Rule 32 which provides that
the court may adopt, modify, or reject the report in whole or in part
or it may receive further evidence or may recommit it with
instructions. (Manotok Realty v. CLT Realty, G.R. No. 123346,
November 29, 2005)
• In this case, the overlapping of titles necessitates the assistance of
experts in the field of geodetic engineering. The very reason why
commissioners were appointed by the trial court, upon agreement of
the parties, was precisely to make an evaluation and analysis of the
titles in conflict with each other. Given their background, expertise
and experience, these commissioners are in a better position to
determine which of the titles is valid. Thus, the trial court may rely on
their findings and conclusions. It bears stressing that the parties
opted to submit the case for decision on the bases, among others, of
their respective objections/comments on the commissioners' reports.
Rule 33 – Demurrer to Evidence
What is a demurrer to evidence?
• Demurrer to evidence as "an objection by one of the parties in an
action, to the effect that the evidence which his adversary produced
is insufficient in point of law, whether true or not, to make out a case
or sustain the issue." (Casent Realty v. Philbanking, G.R. No. 150731,
September 14, 2007).
What is the purpose of a demurrer to
evidence?
• To discourage prolonged litigations.
oThe demurrer, therefore, is an aid or instrument for the expeditious
termination of an action, similar to a motion to dismiss, which a court
or tribunal may either grant or deny. Heirs of Santioque v. Heirs of
Calma, G.R. No. 160832, October 27, 2006
Evidence to be considered in demurrer to
evidence
• What should be resolved in a motion to dismiss based on a demurrer
to evidence is whether the plaintiff is entitled to the relief based on
the facts and the law. The evidence contemplated by the rule on
demurrer is that which pertains to the merits of the case, excluding
technical aspects such as capacity to sue.
• However, the plaintiff's evidence should not be the only basis in
resolving a demurrer to evidence. The "facts" referred to in Section 8
should include all the means sanctioned by the Rules of Court in
ascertaining matters in judicial proceedings. These include judicial
admissions, matters of judicial notice, stipulations made during the
pre-trial and trial, admissions, and presumptions, the only exclusion
being the defendant's evidence. (Casent Realty v. Philbanking, G.R.
No. 150731, September 14, 2007).
What is the effect of the filing of a demurrer
to evidence?
• If demurrer is denied, defendant’s right to offer evidence is not
waived as the case still remains before the trial court.
• If the demurrer is granted but on appeal, the dismissal is reversed,
defendant lose the right to present evidence. (Radiowealth v.
Spouses Del Rosario, G.R. No. 138739, July 6, 2000).
The appellate court should not remand the
case to the trial court

• CA should not remand case to trial court. It shall proceed to render

decision on the merits based on the evidence on record.
(Radiowealth v. Spouses Del Rosario, G.R. No. 138739, July 6, 2000).
RULE 34 AND 35
JUDGMENT ON THE PLEADINGS/SUMMARY
JUDGMENT
• The existence or appearance of ostensible issues in the pleadings, on
the one hand, and their sham or fictitious character, on the other, are
what distinguish a proper case for summary judgment from one for a
judgment on the pleadings.
• In a proper case for judgment on the pleadings, there is no ostensible
issue at all because of the failure of the defending party’s answer to
raise an issue.
• On the other hand, in the case of a summary judgment, issues
apparently exist i.e. facts are asserted in the complaint regarding
which there is as yet no admission, disavowal or qualification; or
specific denials or affirmative defenses are in truth set out in the
answer but the issues thus arising from the pleadings are sham,
fictitious or not genuine, as shown by affidavits, depositions, or
admissions.
• In other words, a judgment on the pleadings is a judgment on the
facts as pleaded, while a summary judgment is a judgment on the
facts as summarily proven by affidavits, depositions, or admissions
(Narra Integrated Company v. Court of Appeals, G.R. No. 137915, 15
November 2000)
Illustrative examples:
1. A was the lessor of B. B subleased the premises without permission
from A. A padlocked the premises to prevent B and sublessees from
entering. B filed a case for damages. A filed an Answer alleging that
the proper interpretation of the contract disallows a sublease. Is
this proper for Judgment on the Pleadings?

A: Yes. The only issue was as to the interpretation of contract

(Sunbanun v. Go, 2 February 2010)
2. A was the lessor of B. During the term of the lease, B pre-
terminated the contract and vacated the premises. A claimed that
the lease agreement does not provide for pre-termination and filed
a case for damages. B filed an Answer admitting that he had
vacated and argued that based on the Civil Code, he could pre-
terminate the lease because of a change in the circumstances. Is
JUDGMENT on the PLEADINGS still proper?

A: YES. A judgment can be based exclusively upon the allegations

appearing in the pleadings of the parties and the accompanying
annexes. The defense which is based on an interpretation of law
can be resolved through a review of the pleadings. (Comglasco v.
Santos Car Check, 25 March 2015).
3. A failed to pay B insurance premium for one quarter. B sued A for
collection of unpaid premiums. A raised in its Answer the defense
that collection is not proper because legally, the effect of non-
payment is that the insurance/reinsurance contracts becomes
ineffective. Hence, there is no cause of action for collection. A
claimed asked for Judgment on the Pleadings. Proper?

A: Yes. The answer depended solely on the legal interpretation of

the effect of non-payment of an insurance premium. This can be
resolved based on the pleadings and an interpretation of the
applicable law. (GSIS v. Prudential, 20 November 2013)
4. A executed a Real Estate Mortgage in favor of B, in connection with a loan it
incurred. After B foreclosed on the REM, A filed a case to annul the foreclosure
sale claiming that he merely took on the loan for his company, and proceeds did
not go to him. B filed an Answer admitting the material allegations, but
countered that the evidence shows that A incurred the obligation solidarily with
his company. B then moved for Summary Judgment. Proper?

A: Yes, proper, because there was no genuine issue raised by A. A does not
deny the loan nor that his property was mortgaged. Even assuming A just lent
his name as guarantor for the loan, B can still claim from A and his property.
(Evangelista v. Mercator Finance, 21 August 2003)

Q: Why is this not proper for Judgment of the Pleadings instead?

A: Because there appears to be a defense, but it is “sham” as a perusal of the

evidence will clearly belie the claim.
5. Napocor and a private individual, A, entered into an agreement in
connection with Napocor’s use of a portion of the property for
transmission lines and towers. After Napocor had entered into the
property, A discovered that Napocor paid his neighbors a higher
amount per square meter. Thus, A filed a case for rescission of
contract and damages. B filed an Answer claiming that the proper
amount had already been paid. Proper for Summary Judgment?

A: Yes. “What remained for the determination of the RTC was the
proper amount of damages due the respondents for the portions of
their lots taken by the petitioner.” (NAPOCOR v. Vda. De Capin, 17
October 2008)
 RULE 36
JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
REQUISITES OF A VALID JUDGMENT
• Even a dismissal of a case for failure to prosecute must comply with the
requirements that the same clearly state the facts and law upon which
it is based. (Shimizu Philippines Contractors v. Magsalin, G.R. No.
170026, 20 June 2012)
Nunc pro tunc judgments have been defined and characterized by this
Court in the following manner:
• The office of a judgment nunc pro tunc is to record some act of the
court done at a former time which was not then carried into the
record, and the power of a court to make such entries is restricted to
placing upon the record evidence of judicial action which has been
actually taken.
• It may be used to make the record speak the truth, but not to make it
speak what it did not speak but ought to have spoken.
• If the court has not rendered a judgment that it might or should have
rendered, or if it has rendered an imperfect or improper judgment, it
has no power to remedy these errors or omissions by ordering the
entry nunc pro tunc of a proper judgment.
• Hence a court in entering a judgment nunc pro tunc has no power
to construe what the judgment means, but only to enter of record
such judgment as had been formerly rendered, but which had not
been entered of record as rendered.
• In all cases the exercise of the power to enter judgments nunc pro
tunc presupposes the actual rendition of a judgment, and a mere
right to a judgment will not furnish the basis for such an entry
(Briones-Vasquez v. Court of Appeals, G.R. No. 144882, 4 February
2005)
Q: A filed a case against B for easement of right of way. A claimed
that it is through B’s property that A has best access to a
highway. Since B closed the said pathway, A sought court relief
to declare the same a legal easement. The Court ruled that there
was another pathway through the southern portion of B’s
property, and DISMISSED the case. When A sought to use the
southern pathway, B again closed it. Can A move to open the
southern portion based on the court’s previous decision?

A: NO. The dispositive portion of the decision merely denied the

complaint. Though the Court stated, as its reason, the existence
of the southern pathway, that was an issue in the case and hence
not part of the dispositive portion. (Obra v. Badua, 9 August
2007)
Q: What is a several judgment?

A: “A several judgment is proper only when the liability of each

party is clearly separable and distinct from that of his co-parties,
such that the claims against each of them could have been the
subject of separate suits, and judgment for or against one of
them will not necessarily affect the other. Where a common
cause of action exists against the defendants, as in actions
against solidary debtors, a several judgment is not proper.” (De
Leon v. Court of Appeals, 6 June 2002)
RULE 39
Rule on Execution - only final and
executory judgments may be executed
Exceptions:
1. Judgments pending appeal

2. Immediately executory judgments (N.B. Both judgments are not final but may
already be executed)

3. Supervening event which renders execution unjust or impossible such as where

the decision of the CA was superceded by Compromise Agreement (Republic v.
Antonio)
Rule on Execution - only final and
executory judgments may be executed
4. Equitable grounds such as where there is a change in the situation of
the parties
5. Judgment has been novated by parties
6. Judgment has become dormant
7. Judgment turns out to be incomplete.
(Items 3 to 7 can be used as grounds for quashal of writ of execution)
Execution of final and executory
judgment - matter of right
REQUISITES – The requisites for the grant of an execution of a final and
executory judgment are:
(a) Motion by judgment obligee;
(b) Notice to adverse party ;
(c) Before court of origin;
(d) Submit certified copy of judgment and entry of judgment.
• Only trial court may issue the writ but appellate court may direct trial
court to issue in the interest of justice
Execution pending appeal – discretionary
REQUISITES - The requisites for the grant of an execution of a judgment
pending appeal are the following:
(a) there must be a motion by the prevailing party with notice to the
adverse party;
(b) there must be good reasons for execution pending appeal;
(c) the good reasons must be stated in the special order; and
(d) trial court while it has jurisdiction and is in possession of the original
record/appellate court after the trial court has lost jurisdiction.
EXAMPLES:
a. Appeal is unmeritorious
• The well-established rule is that it is not for the trial court to determine
the merits of the decision it rendered and use the same as basis for its
order allowing execution pending appeal. The authority to determine
the merits of the appeal and the correctness of the findings and
conclusions of the trial court is lodged in the appellate court. (Heirs of
Sangkay v. Napocor, G.R. No. 141447. May 4, 2006)
b. Appeal is dilatory
• That the appeal is merely dilatory is not a good reason for granting
execution pending appeal. Only an appellate court can appreciate the
dilatory intent of an appeal as an additional good reason in upholding an
order for execution pending appeal. (Heirs of Sangkay v. Napocor, G.R.
No. 141447. May 4, 2006)
EXAMPLES:
c. Financial distress of prevailing company
• The Court held that even the financial distress of the prevailing company
is not sufficient reason to call for execution pending appeal.
• The financial distress of a juridical entity is not comparable to a case
involving a natural person — such as a very old and sickly one without
any means of livelihood, an heir seeking an order for support and
monthly allowance for subsistence, or one who dies or who is ill, of
advanced age or dying as to justify execution pending appeal.
• Financial distress arising from a lone collection suit and not due to the
advanced age of the party is not an urgent or compelling reason that
would justify the immediate levy on the properties of Urban Bank
pending appeal.
(Urban Bank v. Pena, G.R. No. 145817, October 19, 2011)
EXAMPLES:
d. If only one of the defendants held solidarily liable is insolvent
• In cases where the two or more defendants are made subsidiarily or
solidarily liable by the final judgment of the trial court, discretionary
execution can be allowed if all the defendants have been found to be
insolvent. (Urban Bank v. Pena, G.R. No. 145817, October 19, 2011)
e. The prevailing party’s husband was ill and said party was willing to
post a bond.
• (Stronghold Insurance v. Felix)
EXAMPLES:
(f) Advanced age and illness of one of the prevailing parties, losing party’s
dilatory and frivolous appeal and strong likelihood of becoming insolvent
during the pendency of the appeal.
• SC ruling – Only Rosario is in her old age and suffers from life threatening
ailments. But the trial court has allowed execution pending appeal for all of
the Florendos, not just for Rosario whose share in the subject lands had
not been established. Paramount’s delaying tactics and the possibility that
it could become insolvent during the appeal are purely speculative. As for
the Florendos’ fear of Paramount’s insolvency, such is wholly irrelevant
since the judgment did not require it to pay them any form of damages.
Indeed, the Florendos are the ones required by the RTC to reimburse
Paramount the value of its bid and the amounts of real estate taxes that it
had paid on the properties. Lastly, the Florendos’ posting of a P4 million
bond to answer for the damages that respondent Paramount might suffer
in case the RTC decision is reversed on appeal is quite insufficient. The
lands had a market value of P42 million in 2001. (Florendo v. Paramount,
G.R. No. 167976 January 20, 2010)
• If an execution pending appeal is issued, what is the remedy of the
defeated party to stay the execution pending appeal?
• Filing of supersedeas bond

• Immediately executory judgments - executable upon rendition but

may be stayed by trial court or on appeal.
• Injunction, receivership, accounting, support, support pendente lite

• Effect of reversal of executed judgment

• orders of restitution or reparation of damages
Mode of obtaining a writ of execution
a. By Motion - within 5 years from date of entry of judgment; period is
tolled when delay is caused by judgment obligor (Yao v. Silverio)
• Writ issued and levy within 5 years, execution sale after 5 years
• still okay provided sale is made within 10 years.

b. By action - after 5 years from date of entry of judgment but before it

is barred by prescription; in such case, judgment becomes a mere right
of action
Execution in case of death of obligor (obligor
dies before actual levy of his property)
• If judgment is for recovery of property, execution shall be against
executor or administrator.
• What about if judgment is for payment of money?
• If obligor dies after actual levy of property, the property in the name of
deceased obligor may be sold.
Writ of execution is directed to the Sheriff
• Contents: must state amount of interest as of the date of issuance of
the writ
• Where decision does not include payment of interest, writ shall not
include legal interest but may include 12% legal interest from the time
the judgment became final and executory
• Where decision includes interest, writ shall include 6 % legal interest
from date of filing of complaint or demand and may include 12% legal
interest from the date the judgment became final and executory
Execution of Money Judgment – Manner of
enforcement
A. Demand for Immediate Payment – cash, MC or other acceptable
form of payment, payment shall be made directly to obligee or in his
absence to executing Sheriff.
B. Levy upon properties of obligor - obligor has option to choose
property to be levied on. If option not exercised, Sheriff shall levy on
personal properties first and then real properties.
• Judgment for sum of money cannot be executed by issuing a writ of
possession over a real property (Cardinal v. Asset). There is nothing in the
rules that authorize the issuance of a writ of possession over a property of
the judgment obligor in the execution of a money judgment.
Execution of Money Judgment – Manner of
enforcement
C. Garnishment - made by service of notice upon third persons. Garnishee
to make a report whether obligor has sufficient funds to satisfy judgment
or if not sufficient state the amount of funds in its possession.
• Garnished amount shall be paid in the name of obligee, not Sheriff.
Payment shall be delivered within 10 working days from notice of delivery
by Sheriff.

• Instead of levy upon property and sale on execution, Court may order any
property or money of Judgment Obligor in his possession or of another
person to be applied to the satisfaction of the judgment (Sec 40)
Execution of Specific Act Judgment
A. Judgments directing the (a) execution of Deeds of Conveyance of
land or personal property or (b) delivery of documents
• Should a party fail to comply within the time specified - court may direct
the act to be done by another person. But if land or personal property is in
the Phil, court in lieu of directing a conveyance thereof, may issue an order
divesting title of obligor and vesting it in the obligee. This shall have the
effect of a conveyance executed in due form of the law.
B. Delivery of Real Property
• Sheriff to serve a Notice to Vacate within 3 working days. If obligor fails to
vacate, Sheriff shall oust obligor and ALL PERSONS claiming rights under
him.
• Improvements introduced by obligor on real property shall not be
destroyed or removed without a special order of demolition by the
court. Demolition order shall be issued after hearing and after obligor
fails to remove the same within a reasonable time. Removal of
improvements is relevant only if obligor is a builder in good faith.
Execution of Special Judgment
• Judgment declaring stockholders’ meeting and election of board of
directors void, permanent injunction, validity and legality of certain
acts or things – examples of a special judgment

• How enforced? - Sheriff to serve the writ and certified copy of

judgment upon the party against whom judgment is rendered.
Remedy of a third person whose property is
levied on execution
• Serve Affidavit of 3rd Party Claim stating his right to possession or title
on Sheriff and obligee.
• Effect of serving such Affidavit - it won't stop delivery or sale of property
but Sheriff for his protection may require obligee to post bond. Sheriff
may or may not require obligee to post bond.
• Claim for damages against the bond - action shall be made within 120
days from filing of bond; otherwise it is barred. BUT 3rd party may
still file a separate action for damages or action for recovery of
property. Obligee may claim damages in the same or separate action
against 3rd party for filing a frivolous or spurious claim.
• Fermin v. Estevez – The claim of terceria is available to a third person
other than the judgment obligor who claims a property levied on and
put on auction by Sheriff. This is not the appropriate remedy where
the third person’s property is subject of a writ of execution or writ of
demolition arising from a civil case to which said third person was not
a party and whose rights do not arise from the defendant in the said
case.
Property Exempt From Execution

• Claim for exemption of family home from execution must be set

up and proved before the sale of the property at public auction
(Honrado v. CA)
• Exemption shall not apply to judgments for foreclosure of
mortgage thereon or recovery for its price.
Validity of Writ of Execution
• valid and effective during the period within which the judgment may
be enforced, i.e. 5 years from date of entry of judgment.
• Shall be returned when judgment has been satisfied in full or part or
30 days from receipt of Writ and every 30 days thereafter until
judgment is satisfied in full.

Judgment obligee who purchases the property need not

pay the amount of the bid.
Conveyance of Real Property
• Sheriff shall execute a Certificate of Sale in favor of the purchaser
which shall be registered in the RD.

Redemption of real property sold (only real property

may be redeemed)

a. Who may redeem: judgment obligor or his successor in interest and

redeeming creditor or redemptioner
b. Period of redemption: 1 year from date of registration of certificate
of sale

WITHIN THE 1-YEAR PERIOD OF REDEMPTION

a. Rents, earnings and income of property during redemption
belong to Judgment Obligor
b. Possession remains with Judgment Obligor
c. No limit as to the number of times a property may be redeemed
d. Notice requirement for redemption – must be given to Sheriff, RD;
notice must indicate payment of taxes and liens; otherwise, these wont
be paid by subsequent redemptioner
e. Effect of redemption by judgment obligor – no further redemption
shall be allowed and he is restored to his estate.
Effect of No Redemption
a. Upon expiration of redemption period, judgment obligor shall be
divested of all his rights, title, interest and claim to the property and
the same shall be vested in the purchaser (Sec 33)
b. Purchaser entitled to Deed of Final Conveyance and delivery of
possession of the property.

Sheriff to execute the Final Deed of Conveyance, but there is a need to

file a Petition for Issuance of a New Title and with respect to possesion
to file an ex parte Motion for Writ of Possession
Remedy when judgment is unsatisfied
A. Motion to require judgment obligor or debtor of judgment obligor to
appear and be examined concerning his property and income
• Provided the court or commissioner is within the city where such obligor
resides.

• Any other person may also be compelled to attend and testify on such
matters

B. Motion to require Judgment Obligor to pay in fixed monthly

installments where his salary or earnings are more than necessary for
the support of his family.
Remedy where debtor of Judgment Obligor denies
the debt or another person claims the property:

• File an action, with leave of the executing court, for the recovery of
debt or interest and forbid a transfer or disposition of such debt or
interest within 120 days from notice of order.
Entry of Satisfaction of Judgment
• Clerk of Court shall enter satisfaction of a judgment in the court
docket and in the execution book upon the filing of the Sheriff's
Return or admission to the satisfaction of judgment by Judgment
Obligee.
• If judgment is satisfied other than by execution, Judgment Obligor
may demand of the Judgment Obligee to execute an admission to the
satisfaction of judgment or file a Motion for an Order to enter
satisfaction of judgment.
RECOGNITION OF FOREIGN JUDGMENT
EFFECT OF IN REM FOREIGN JUDGMENT AND IN PERSONAM FOREIGN
JUDGMENT
• For an action in rem, the foreign judgment is deemed conclusive upon the
title to the thing.
• In an action in personam, the foreign judgment is presumptive, and not
conclusive, of a right as between the parties and their successors in
interest by a subsequent title.
• In both cases, the foreign judgment is susceptible to impeachment in our
local courts on the grounds of want of jurisdiction or notice to the party,
collusion, fraud, or clear mistake of law or fact. (Mijares v. Ranada, G.R.
No. 139325, April 12, 2005)
FILING FEE OF ENFORCEMENT OF FOREIGN
MONEY JUDGMENT
• Foreign judgment may be deemed as subsumed under Section 7(b)(3)
of Rule 141, i.e., within the class of "all other actions not involving
property." Thus, only the blanket filing fee of minimal amount is
required. (Mijares v. Ranada, G.R. No. 139325, April 12, 2005)
HOW TO ENFORCE IN REM FOREIGN
JUDGMENT
• It is clear then that it is usually necessary for an action to be filed in
order to enforce a foreign judgment, even if such judgment has
conclusive effect as in the case of in rem actions, if only for the
purpose of allowing the losing party an opportunity to challenge the
foreign judgment, and in order for the court to properly determine its
efficacy. Consequently, the party attacking a foreign judgment has the
burden of overcoming the presumption of its validity. (Mijares v.
Ranada, G.R. No. 139325, April 12, 2005)
FRAUD AS GROUND TO SET ASIDE FOREIGN
JUDGMENT IS EXTRINSIC FRAUD
• Fraud to hinder the enforcement within the jurisdiction of a foreign
judgment must be extrinsic, i.e., fraud based on facts not
controverted or resolved in the case where judgment is rendered or
that which would go to the jurisdiction of the court or would deprive
the party against whom judgment is rendered a chance to defend the
action to which he has a meritorious defense. Intrinsic fraud is one
which goes to the very existence of the cause of action is deemed
already adjudged, and it, therefore, cannot militate against the
recognition or enforcement of the foreign judgment. (Asiavest v. CA
G.R. No. 110263, July 20, 2001)