PRE-BAR LECTURE NOTES over the subject matter is conferred by law (the
REMEDIAL LAW sovereign authority) and cannot be waived.
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
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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
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• 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
Land Registration
Cadastral
Naturalization
Insolvency
Rehabilitation
Other cases
• When is an action deemed commenced?
On the date of the filing of the original
complaint
o EXCEPTION - 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
3
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
4
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:
• The severance of the
misjoined cause of action, to
be proceeded with separately
5
(in case of misjoinder of
causes of action); and/or
• 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).
6
Rule 3
INDISPENSABLE PARTIES:
Q: When can an agent sue in his own
name?
A: When:
• the agent acted in his own
name during the transaction;
• the agent acted for the benefit
of an undisclosed principal;
and
• 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:
• 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
7
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?
8
• 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
• 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.
o Improper 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.
9
(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
10
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
o The 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
11
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
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
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
12
• If a compulsory counterclaim is not
raised in the answer, a party is
barred from interposing such claim
in a future litigation.
• 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)
• 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.
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 • There is no such thing as permissive cross-
liable to the plaintiff or to the defendant for all claim.
or part of the plaintiff's claim against the original • The cross-claim must be existing as of the
defendant, although the third-party defendant's time of the filing of the answer
liability arises out of another transaction or to
both the plaintiff and the defendant; and • CROSS-CLAIM CANNOT HOLD CROSS-
(3) whether the third-party defendant may DEFENDANT DIRECTLY LIABLE TO
assert any defenses which the third-party PLAINTIFF
plaintiff has or may have to the plaintiff's claim • Unlike a third party complaint, a
• THIRD PARTY COMPLAINT cross-claim cannot pray that cross-
It is settled that a defendant in a contract action defendant be held directly liable to
may join as third-party defendants those who the plaintiff.
may be liable to him in tort for the plaintiffs • WHAT IS THE FUNCTION OF A REPLY?
claim against him, or even DIRECTLY to the to deny or address new matters alleged by
plaintiff. (Philtranco Services v. Paras, 25 April way of defense in the answer
2012)  • If no reply is filed, all new matters alleged
• THIRD PARTY DEFENDANT MAY RAISE in the answer are deemed controverted
DEFENSES WHICH THIRD PARTY
PLAINTIFF MAY HAVE AGAINST THE • RULE 7
ORIGINAL PLAINTIFF PARTS OF A PLEADING
• When is a pleading sufficient in form?
• Sec. 13, Rule 6: a third party • A pleading is sufficient in form
defendant may allege in his when it contains the following:
answer his defenses, • Caption, setting forth the
counterclaims, cross-claims, name of the court, the title
including such defenses that the of the action indicating the
third party plaintiff may have names of the parties, and
against the original plaintiff’s claim. the docket number
• THIRD PARTY DEFENDANT MAY • Body, reflecting the
ASSERT A COUNTERCLAIM AGAINST designation, the
ORIGINAL PLAINTIFF allegations of the party's
• Sec. 13, Rule 6: in proper cases such claims or defenses, the
as when the third party plaintiff imputes relief prayed for, and the
direct liability to the third party date of the pleading
defendant, the latter may assert a • Signature and Address of
counterclaim against the original the party or counsel
plaintiff in respect of the latter’s claim • Verification for some
against the third party plaintiff. pleadings - designed to
secure an assurance that
NOTE: the allegations have been
WHAT IS A CROSS-CLAIM? made in good faith, or are
a claim by one party against a co-party. true and correct and not
merely speculative
WHAT ARE THE REQUISITES OF A CROSS- • Certificate of Non-forum
CLAIM? Shopping for initiatory
• the claim must arise out of the transaction pleadings, which although
or occurrence subject of the complaint or not jurisdictional, the same
counterclaim. Otherwise, it is not proper to is obligatory
assert such claim in a cross-claim. • Explanation where the
pleading is not filed

13
 personally to the Court • FACTS REQUIRED TO BE STATED IN
and served personally to THE CERTIFICATION AGAINST FORUM
the parties for pleadings SHOPPING:
subsequent to the • Party has not commenced any action or
complaint filed any claim involving the same issues in
any court, tribunal or quasi-judicial agency
• Additional requirements include: and to the best of his knowledge, no such
Proof of service other action or claim is pending therein
Roll of attorney’s number • If there is such other pending action or
Professional tax receipt claim, a complete statement of the present
number status thereof
IBP Official Receipt • If should thereafter learn that the same or
number similar action has been filed or pending, he
MCLE Compliance shall report that fact within 5 days
certificate number and therefrom to the court.
date of issue • PARTY WHO SHOULD SIGN THE
CERTIFICATION AGAINST FORUM
SHOPPING
• WHAT IS THE SIGNIFICANCE OF • Sec. 5, Rule 7: the plaintiff or principal
COUNSEL’S SIGNATURE IN A party shall sign the certification. Thus, all
PLEADING? plaintiffs or principal parties must sign the
• signature of counsel constitutes an certification; otherwise, those who did not
assurance by him: sign will be dropped as parties to the case.
• that he has read the pleading; • If the party is a corporation, the certification
• that, to the best of his knowledge, should be signed by its duly authorized
information and belief, there is a officer pursuant to Section 23, in relation to
good ground to support it; and Sec. 25 of the Corporation Code.
• that it is not interposed for delay. • The certification should be accompanied
be a Secretary’s Certificate or Board
• PARTY CAN SIGN A PLEADING. Resolution showing the authority of the
• COUNSEL CAN DELEGATE SIGNING TO officer to sign the certification.
ANOTHER LAWYER BUT NOT TO A • Failure to attach the proof of authority shall
NON-LAWYER merit the dismissal of the complaint or
petition.
• WHAT IS THE EFFECT OF A PLEADING • EXCEPTION:
SIGNED BY A NON-LAWYER? • When the merits of the petition justify the
• A pleading signed by a non-lawyer is an relaxation of the rule (Kaunlaran Lending
unsigned pleading which produces no legal v. Uy, GR 154974, February 4, 2008).
effect. It is as if the pleading was not filed • When it is signed by an officer who is in a
in court. position to verify the truthfulness and
• Such pleading can be stricken out pursuant correctness of the allegations in the
to Sec. 12, Rule 8. petition such as the Chairman of the
Board, President, General Manager,
• PLEADINGS IN WHICH CERTIFICATION Personnel Officer (Mid-Pasig Land v.
IS REQUIRED Mario Tablante, GR No. 162924,
• It is required in a complaint or other February 4, 2010).
initiatory pleading asserting a claim for • EFFECT OF FAILURE TO COMPLY WITH
relief THE RULE ON CERTIFICATION
• Certification not required in appeal. • If no certification is attached to an initiatory
pleading, the case shall be dismissed

14
 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)
• 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.
15
• 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.
• 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.
16
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?
• 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.
17
(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
18
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.
19
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
o 15 days from service for amended
pleading filed as a matter of right
o 10 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.
o The answer shall serve as the
answer to the
amended/supplemental complaint.
• Counterclaim and cross-claim arising after
filing of answer
20
• 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:
• Order the striking out of the
pleading or the portions
thereof or
• 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?
• Personal Filing – by presenting the
originals personally to the clerk of
court
• 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).
21
• What are the modes of service of
pleadings, orders, or judgments?
• 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.
• Registered Mail
• Ordinary Mail - if no registry service is
available in the locality of either the
sender or the addressee
• 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
o the written or stamped
acknowledgement of its
filing by the clerk of court.
• Proof of filing by registered mail –
o the 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),
22
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?
• 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.
• 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.
• Constructive Service – e.g., by
publication in a newspaper of general
circulation
• Extra-territorial Service – service of
summons abroad
• What are the requirements of substituted
service?
• 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
o i.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. whether individuals, domestic
SB, GR 170122, October 12, 2009). juridical entity or foreign
juridical entity;
• Substituted service • In personam actions against
• In substituted service, it is not necessary foreign corporations;
that the person in charge of the defendant's • In personam actions against
regular place of business be specifically residents who are temporarily
authorized to receive the summons. It is out of the Philippines.
enough that he appears to be in charge.
(Guanzon v. Arradaza, GR 155392, • When can constructive notice by
December 6, 2006). publication be resorted to?
• Substituted service to a representative of a • Actions in rem and quasi in rem
law firm who claims to be the defendant’s against any defendant, whether
counsel is ineffective. (Potenciano v. individuals or foreign corporation;
Barnes, GR 159421, August 20, 2008). • In personam actions against foreign
corporations;
• In personam actions against residents
• What are the 2 modes for effecting who are temporarily out of the
substituted service of summons? Philippines; and
• By leaving copies of the summons at • In personam actions against a
the defendant’s residence with some defendant whose identity or
person of suitable age and discretion whereabouts is unknown.
then residing therein, or • Rule on service of summons
• by leaving the copies at defendant's • The rule on service of summons depends
office or regular place of business on the nature of the action and whether the
with some competent person in defendant is an individual, domestic
charge thereof. juridical entity or foreign juridical entity.
• When does extraterritorial service apply? • Where the defendant is an individual and
• Extraterritorial service of summons applies the action is in personam, the general rule
only where action is in rem or quasi in rem, is PERSONAL SERVICE or
but not if an action is in personam ( Perken SUBSTITUTED SERVICE, when
Elmer v. Dakila Trading, G.R. No. 172242. appropriate.
August 14, 2007).
o EXCEPTIONS: o Exceptions are:
• Extraterritorial service • When defendant or his
applies even in action whereabouts is
in personam in case of unknown (Sec. 14,
foreign corporations Rule 14) and
under the amendment • When defendant is a
to Sec. 12, Rule 14. Philippine resident
• It also applies even in temporarily out of the
actions in personam Philippines (Sec. 16),
against residents who where
are temporarily out of CONSTRUCTIVE
the Philippines. NOTICE and EXTRA-
• When does extraterritorial service apply? TERRITORIAL
• In short, extraterritorial service applies in SERVICE may be
the following: resorted.
• Actions in rem and quasi in
rem against any defendant,

23
• 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).
o Exception 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).
24
• 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?
President
Managing Partner
General Manager
Corporate Secretary
Treasurer
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?
• 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;
• The person served must sign a
receipt or the sheriff's return; and
• 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.
25
• 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 matter
• Lack of jurisdiction over the person of the
defendant
• Improper venue
• Lack of legal capacity to sue
• Litis pendentia
• 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)
26
• 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
27
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)
• 175507, 8 October 2014)
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
28
• 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.
• 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
29
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?
• 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.
• Relevancy of books, documents or
things does not appear
• 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?
30
• 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)
• 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)
• 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
• The witness is not bound
thereby.
• 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?
• To enable the parties to a case to
learn all the material and relevant
facts
• To uncover evidence (absence of
evidence)
• To preserve evidence
• Emphasize issues
• Prepare our evidence (preparing
opponents)
• Pin and size up the witness and
counsel (harassment value)
• 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
31
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?
• Oral Examination
• Written Interrogatories
• When is leave of court necessary? individually, but also those known to their
• As a rule, leave of court is not necessary adversaries. (Republic v. SB, G.R. No.
before deposition may be taken in pending 90478, November 21, 1991)
actions.
o EXCEPTIONS:
• Before service of • Requirements for oral examination and
answer: Leave of written interrogatories on a witness
court is necessary • Oral Examination - A notice of
because issues are deposition upon oral examination
not yet joined and the shall be served upon the adverse
disputed facts are not party stating (1) the time and place for
clear. the taking of deposition and (2) the
• Deposition before name and address of the person to be
action as when a examined and the deposing officer
person desires to • Written Interrogatories - A notice of
perpetuate his own or deposition and written interrogatories
that of another person shall be served upon the adverse
(Sec. 1, Rule 24) party stating the name and address of
• Deposition pending the deponent and the name, address
appeal or before and descriptive title of the deposing
taking of appeal as officer.
when a party desires
to perpetuate • Period for serving cross, re-direct, and
testimonies of recross interrogatories
witnesses for use in • Cross Interrogatories – 10 days
the event of further • Re-direct Interrogatories – 5 days
proceedings (Sec. 7, • Re-cross Interrogatories – 3 days
Rule 24) • Who shall answer written interrogatories
served on juridical entities?
• Scope of examination in deposition: Any • Interrogatories served on a juridical entity
relevant matter, not privileged shall be answered by any officer competent
• What is chiefly contemplated is the to testify in its behalf.
discovery of every bit of information which
may be useful in the preparation for trial, • What is the remedy from a notice of or
such as order for deposition?
• Relevant facts that are not • Party or deponent may move for a
privileged protection order, i.e., that it may be taken
• Identity and location of only on written interrogatories or oral
persons having knowledge of interrogatories, that certain matters shall
relevant facts not be inquired into, that secret processes,
• Existence, description, nature, developments or research need not be
custody, condition, and disclosed, to protect the deponent from
location of any books, annoyance, embarrassment or oppression
documents, or other tangible (Secs. 16 for oral examination and 28 for
things. written interrogatories).
• Evidentiary matters may be inquired into
and learned by the parties before trial. It is • Manner of taking depositions in the
the policy of the law that parties before trial Philippines
should discover all the facts relevant to the • Deposition within the Philippines may be
action, not only those known to them taken before any judge, notary public or

32
 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:
• Secretary of embassy or
legation, consul general,
consul, vice consul, or
consular agent of the Republic
of the Philippines;(Sec. 11)
• Person or officer as may be
appointed by commission or
foreign court or tribunal under
letters rogatory; or (Sec. 11)
• 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
33
• 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?
• Examination is being conducted in
bad faith
• Examination is being conducted in
such a manner as to annoy,
embarrass, or oppress the person
subject to the inquiry.
• When the inquiry touches upon the
irrelevant facts
• 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:
• To contradict or impeach the
testimony of the party;
• 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:
• To contradict or impeach the
testimony of the party;
• For any purpose if the court
finds:
• That the witness is
dead; or
• 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
• That the witness is
unable to attend to
testify because of age,
sickness, infirmity, or
imprisonment; or
• That the party offering
the deposition has
been unable to
procure the
attendance of the
witness by subpoena;
or
• 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
34
• 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).
o EXCEPTIONS:
• Where the party used
the deposition to
contradict or impeach
the testimony of the
deponent in court;
• 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.
o EXCEPTION: Objections to
competency, relevancy
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:
• Officer is a relative within the
6th degree of consanguinity or
affinity of any of the parties;
• Officer is counsel or employee
of any of the parties
• Officer is a relative within the
same degree or employee of
such counsel
• 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
or 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.
35
 o EXCEPTIONS (which means leave
of court is necessary):
• Before service of an
answer to the
complaint;
• 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
o A 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
36
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:
• The genuineness of any
material and relevant
document described in and
exhibited in the request; and
• 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.
o EXCEPTION: 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.
37
• 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).
 • The party examined waives any privilege
• What are the requisites in order that a party he may have in that action or other action
may compel the other party to produce or involving the same controversy regarding
allow the inspection of documents or the testimony of the examining physician in
things? respect of the same mental or physical
• The party must file a motion for the examination.
production or inspection of documents
or things, showing good cause • Rule 29 – Refusal to Comply with Modes of
therefor; Discovery
• Notice of the motion must be served • What is the effect of the failure to comply
to all other parties of the case; with the modes of discovery?
• The motion must designate the • The law imposes serious sanctions on the
documents, papers, books, accounts, party who refuses to make discovery
letters, photographs, objects or (Republic v. SB, G.R. No. 90478,
tangible things which the party wishes November 21, 1991), such as:
to be produced and inspected; • Dismissing the action or
proceeding or part thereof,
4. Such documents, etc., are not rendering judgment by default
privileged; against disobedient party,
5. Such documents, etc., constitute or striking out all or any any part
contain evidence material to any of the pleading of the party –
matter involved in the action, and Failure of a party to:
6. Such documents, etc., are in the o Serve answers to written
possession, custody or control of the interrogatories under Rule
other party. (Solidbank v. Gateway 25
Electronics, G.R. No. 164805, April o Appear before the
30, 2008). deposing officer for oral
examination
• Rule 28 – Physical and Mental o Comply with an order
Examination of Persons under Rule 27 to produce
• When a motion for physical or mental any document for
examination may be filed inspection, photocopying
• When the mental or phsical condition of a or photographing
party is in controversy, he may be required
to submit to physical or mental o Comply with an order
examination. under Rule 28 requiring
him to submit to physical
• Party examined entitled to a copy of written or mental examination
report of findings o Comply with an order to
• The party examined may secure a copy of answer designated
a detailed written report of the examining questions upon oral
physician setting out his findings and examination or written
conclusions. interrogatory
• Contempt of court –
• Effect of securing copy of written report of o Refusal of a witness to be sworn
findings
o Refusal of a witness to answer any
• The party causing the examination shall be
question after being directed to do
entitled to receive report of previous
so by the court
examination of the same physical or mental
• Arrest of the party or agent of the
condition.
party –

38
 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.
• 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
• 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
• 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
39
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?
• Two or more actions are pending
before the court involving the same
parties;
• 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
• The court has jurisdiction over the
cases to be consolidated (Republic v.
CA, G.R. No. 116463, June 10, 2003).
• 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).
• 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)
40
• 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.
o The 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
41
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
42
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)
• 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
43
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:
44
(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)
45
• 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
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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
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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 • FRAUD AS GROUND TO SET ASIDE
execution, Judgment Obligor may demand FOREIGN JUDGMENT IS EXTRINSIC
of the Judgment Obligee to execute an FRAUD
admission to the satisfaction of judgment or • Fraud to hinder the enforcement within the
file a Motion for an Order to enter jurisdiction of a foreign judgment must be
satisfaction of judgment. extrinsic, i.e., fraud based on facts not
• RECOGNITION OF FOREIGN controverted or resolved in the case where
JUDGMENT judgment is rendered or that which would
EFFECT OF IN REM FOREIGN JUDGMENT go to the jurisdiction of the court or would
AND IN PERSONAM FOREIGN JUDGMENT deprive the party against whom judgment
• For an action in rem, the foreign judgment is rendered a chance to defend the action
is deemed conclusive upon the title to the to which he has a meritorious defense.
thing. Intrinsic fraud is one which goes to the very
• In an action in personam, the foreign existence of the cause of action is deemed
judgment is presumptive, and not already adjudged, and it, therefore, cannot
conclusive, of a right as between the militate against the recognition or
parties and their successors in interest by a enforcement of the foreign judgment.
subsequent title. (Asiavest v. CA G.R. No. 110263, July 20,
• In both cases, the foreign judgment is 2001)
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)

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