CIVIL PROCEDURE REVIEWER1

CIVIL PROCEDURE REVIEWER
Based on Justice De Leon’s Outline, Civil Procedure by Riano, San Beda Reviewer, and 1997 Rules of Court Digests (by Abdulwahid, Cabal, Comafay, Fuster, Leynes, Mendame, Mendez, Paras & Regis) further summarized. BASIC PRINCIPLES Difference between remedial law SUBSTANTIVE LAW It creates, defines and regulates rights and duties concerning life, liberty or property, which when violated gives rise to a cause of action. substantive and

It is a remedy by which a party seeks to establish a status, a right or a particular fact.

GENERAL PROVISIONS (Rule 1) Rule-making power of the Supreme Court The Supreme Court has the constitutional power to promulgate rules concerning: (1) Pleading,

(2) Practice, and
(3) Procedure. Three (3) limitations on the SC’s rule-making power:

REMEDIAL LAW It prescribes the methods of enforcing those rights and obligations created by substantive law by providing a procedural system for obtaining redress for the invasion of rights and violations of duties and by prescribing rules as to how suits are filed, tried and decided upon by the courts.

(1) The rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases;

(2) shall be uniform for courts of the same
grade; and (3) shall not diminish, increase, or modify substantive rights. Article 6, Sec. 30, Constitution— No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence. Procedural and substantive rules Substantive law creates, defines, regulates, and extinguishes rights and obligations, while remedial or procedural law provides the procedure for the enforcement of rights and obligations. Force and effect of Rules of Court The Rules of Court have the force and effect of law, unless they happen to be inconsistent with positive law. Power of Supreme Court to suspend the Rules of Court Whenever demanded by justice, the Supreme Court has the inherent power to

Civil actions, criminal actions, and special proceedings

(1) Civil actions—
It is one by which a party sues another for the protection of a right or the prevention or redress of a wrong. Its primary purpose is compensatory. Civil actions may be:

(a) Ordinary, or
(b) Special. Both are governed by rules for ordinary civil actions, subject to specific rules prescribed for special civil actions.

(a) suspend its own rules or
(b) exempt a particular case from the operation of said rules. May parties change the rules of procedure? General rule: They may not. This is because these are matters of public interest. Exceptions: Matters of procedure which may be

(2) Criminal actions—
It is one by which the State prosecutes a person for an act or omission punishable by law. Its primary purpose is punishment.

(3) Special proceedings—

Agreed upon by the parties— Venue may be changed by written agreement of the parties (Rule 4, Sec. 4[b])

MENDEZ, IVAN VIKTOR (2D, ’13)

CIVIL PROCEDURE REVIEWER2

Waived— Venue may be waived if not objected to in a motion to dismiss or in the answer. (Rule 16, Sec. 6); judgment in default may be waived by failure to answer within 15 days. Fall within the discretion of the court— The period to plead may be extended on motion of a party. (Rule 11, Sec. 11); rules of procedure may be relaxed in the interest of justice.

(2) the parties;

(3) the

res if jurisdiction over defendant cannot be acquired;

the

(4) the issue of the case; and
(5) Payment of docket fees. Jurisdiction over the subject matter is a matter of substantive law. Jurisdiction over the parties, the res and the issues are matters of procedure. Jurisdiction over the parties and the res are covered by the rule on summons, while jurisdiction over the issues is subsumed under the rule on pleadings. (a) As to subject matter Jurisdiction over the subject matter is conferred by the Constitution or by law. Therefore, jurisdiction over the subject matter cannot be conferred by (1) Administrative policy of any court; (2) Court’s unilateral assumption of jurisdiction; (3) Erroneous belief by the court that it has jurisdiction; (4) By contract or by the parties;

JURISDICTION It is the power and authority of a court to hear, try and decided a case. 1. Generally  The statute in force at the time of the commencement of the action determines the jurisdiction of the court.

Before looking into other matters, it is the duty of the court to consider the question of jurisdiction without waiting for it to be raised.

If court has jurisdiction, such must be exercised. Otherwise, it may be enforced by a mandamus proceeding.

If court has no jurisdiction, the court shall dismiss the claim and can do so motu proprio. Doctrine of primary jurisdiction— The courts will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal. Doctrine of continuing jurisdiction— Once jurisdiction has attached to a court, it retains that jurisdiction until it finally disposes of the case. Hence, it is not lost by

(5)

By agreement, or by any act or omission of the parties, nor by acquiescence of the court; or (6) By the parties’ silence, acquiescence or consent

The passage of new laws transferring the jurisdiction to another tribunal except when expressly provided by the statute; Subsequent filing of a notice of appeal; The mere fact that a party who is a public official ceased to be in office; or Finality of judgment (the court still has jurisdiction to enforce and execute it)

General Rule: It is determined by the material allegations of the initiatory pleading (e.g., the complaint), not the answer of the defendant. Once acquired, jurisdiction is not lost because of the defendant’s contrary allegation. Exception: In ejectment cases, where tenancy is averred by way of defense and is proved to be the real issue, the case should be dismissed for not being properly filed with the DARAB. It is determined by the cause of action alleged, not by the amount substantiated and awarded. Example: If a complaint alleges a recoverable amount of P1M, RTC has jurisdiction even if evidence proves the only P300k may be recovered.


Note: Jurisdiction over the subject matter CANNOT be waived, enlarged or diminished by stipulation of the parties. (b) As to res or property

Elements of a valid exercise of jurisdiction (1) Jurisdiction over the subject matter or nature of the case;
MENDEZ, IVAN VIKTOR (2D, ’13)

CIVIL PROCEDURE REVIEWER3

Jurisdiction over the res refers to the court’s jurisdiction over the thing or the property which is the subject of the action. Jurisdiction over the res is acquired by

from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (Rule 14, Sec. 20) Examples: When defendant files  The necessary pleading;  A motion for reconsideration;  Petition to set aside judgment o f default;  An answer;

(1) Custodia legis—placing the property or
thing under the court’s custody (e.g., attachment)

(2) Statutory authority—statute conferring
the court with power to deal with the property or thing within its territorial jurisdiction

(3) Summons by publication

or other modes of extraterritorial service (Rule 14, Sec. 15)

 (c) As to the issues Issue— a disputed point or question to which parties to an action have narrowed down their several allegations and upon which they are desirous of obtaining a decision. Thus, where there is no disputed point, there is no issue. Jurisdiction over the issue may be conferred or determined by

Petition for certiorari without questioning the court’s jurisdiction over his person; or When the parties jointly submit a compromise agreement for approval

BUT the filing of an answer should not be treated automatically as a voluntary appearance when such answer is precisely to object to the court’s jurisdiction over the defendant’s person. La Naval v. CA: A defendant should be allowed to put up his own defenses alternatively or hypothetically. It should not be the invocation of available additional defenses that should be construed as a waiver of the defense of lack of jurisdiction over the person, but the failure to raise the defense. Note: Jurisdiction over a non-resident defendant cannot be acquired if the action is in personam. 2. Estoppel to deny jurisdiction HEIRS OF BERTULDO HINOG v. MELICOR (455 SCRA 460, 2005) Since the deceased defendant participated in all stages of the case before the trial court, he is estopped from denying the jurisdiction of the court. The petitioners merely stepped into the shoes of their predecessor and are effectively barred by estoppel from challenging RTC’s jurisdiction. FACTS: Bertuldo Hinog allegedly occupied and built a small house on a portion of a property owned by respondents Balane for 10 years at a nominal annual rental. After 10 years, Bertuldo refused to heed demands made by respondents to return said portion and to

(1) Examination of the pleadings—
Generally, jurisdiction over the issues is determined by the pleadings of the parties.

(2) Pre-trial—
It may be conferred by stipulation of the parties in the pre-trial, as when they enter into stipulations of facts and documents or enter into an agreement simplifying the issues of the case (Rule 18, Sec. 2)

(3) Waiver—
Failure to object to presentation of evidence on a matter not raised in the pleadings. Said issues tried shall be treated as if they had been raised in the pleadings. (d) As to the parties The court acquires jurisdiction over the

Plaintiff— when he files his complaint

Defendant—

i. ii.

Valid service of summons upon him, or Voluntary appearance: “The defendant’s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside

MENDEZ, IVAN VIKTOR (2D, ’13)

CIVIL PROCEDURE REVIEWER4

remove the house constructed thereon. Respondents filed a complaint against him. Bertuldo filed his Answer, alleging ownership of the disputed property by virtue of a Deed of Absolute Sale. Bertuldo died without completing his evidence during the direct examination. Bertuldo’s original counsel was replaced by Atty. Petalcorin who entered his appearance as new counsel for the heirs of Bertuldo. Atty. Petalcorin filed a motion to expunge the complaint from the record and nullify all court proceedings on the ground that private respondents failed to specify in the complaint the amount of damages claimed so as to pay the correct docket fees; and that under Manchester doctrine, nonpayment of the correct docket fee is jurisdictional. ISSUE: Whether the petitioners are barred by estoppel from questioning the jurisdiction of RTC YES. The petitioners are barred from questioning jurisdiction of the trial court. Although the issue of jurisdiction at any stage of the proceedings as the same is conferred by law, it is nonetheless settled that a party may be barred from raising it on the ground of estoppel. After the deceased Bertuldo participated in all stages of the case before the trial court, the petitioners merely stepped into the shoes of their predecessor and are effectively barred by estoppel from challenging RTC’s jurisdiction. 3. Jurisdiction at the time of filing of action PEOPLE v. CAWALING (293 SCRA 267, 1998) The jurisdiction of a court to try a criminal case is determined by the law in force at the time of the institution of the action. Once the court acquires jurisdiction, it may not be ousted from the case by any subsequent events, such as a new legislation placing such proceedings under the jurisdiction of another tribunal. Exceptions to this rule arise when: (1) there is an express provision in the statute, or (2) the statute is clearly intended to apply to FACTS: Brothers Vicente and Ronie Elisan were drinking tuba at the kitchenette of one of the accused, Fontamilla. When they were about to leave, they were warned by Luz Venus that the six (6) accused consisting of Mayor Cawaling, four (4) policemen and a civilian, had been watching and waiting for them outside the
MENDEZ, IVAN VIKTOR (2D, ’13)

restaurant. Nevertheless, the two went out and were chased by the armed men. Vicente successfully ran and hid behind a coconut tree while Ronie unfortunately went to the ricefield and was shot to death there. An Information alleging murder was filed in the RTC against the 6 accused. RTC convicted them of murder. On appeal, the appellants questioned the jurisdiction of the RTC over the case, insisting that the Sandiganbayan was the tribunal with jurisdiction since the accused were public officers at the time of the killing. ISSUE: Whether the Sandiganbayan had jurisdiction NO. The jurisdiction of a court to try a criminal case is determined by the law in force at the time of the institution of the action. Once the court acquires jurisdiction, it may not be ousted from the case by any subsequent events, such as a new legislation placing such proceedings under the jurisdiction of another tribunal. Exceptions to this rule arise when: (1) there is an express provision in the statute, or (2) the statute is clearly intended to apply to actions pending before its enactment. Section 4-a-2 of PD 1606, as amended by PD 1861 lists two requisites that must concur before the Sandiganbayan may exercise exclusive and original jurisdiction over a case: (a) the offense was committed by the accused public officer in relation to his office; and (b) the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or higher than a fine of P6,000. Sanchez vs. Demetriou clarified that murder or homicide may be committed both by public officers and by private citizens, and that public office is not a constitutive element of said crime. The relation between the crime and the office contemplated should be direct and not accidental. The Information filed against the appellants contains no allegation that appellants were public officers who committed the crime in relation to their office. The charge was only for murder. In the absence of any allegation that the offense was committed in relation to the office of appellants or was necessarily connected with the discharge of their functions, the regional trial court, not the Sandiganbayan, has jurisdiction to hear and decide the case. REGULAR COURTS (MTC, RTC, CA, SC) (See San Beda Reviewer) SPECIAL COURTS (Sandiganbayan) (See San Beda Reviewer)

CIVIL PROCEDURE REVIEWER5

QUASI-JUDICIAL BODIES Securities and Exchange Commission (Sec. 5.2, RA 8799) The Commission shall retain jurisdiction over

Pending cases involving intracorporate disputes submitted for final resolution which should be resolved within one (1) year from the enactment of this Code, and Jurisdiction over pending suspension of payments/rehabilitation cases filed as of 30 June 2000 until finally disposed.

Civil Service Commission MAGPALE v. CSC (215 SCRA 398, 1992) Under Section 47 of the Administrative Code, the CSC shall decide on appeal all administrative disciplinary cases involving the imposition of “… (d) removal or dismissal from office.” The MPSB decision did not involve dismissal or separation from office, rather, the decision exonerated petitioner and ordered him reinstated to his former position. The MSPB decision was not a proper subject of appeal to the CSC. FACTS: Magpale, port manager of Philippine Ports Authority-Port Management Unit (PPAPMU) of Tacloban, was found by the Secretary of DOTC guilty of Gross Negligence on two counts: (a) for his failure to account for the 44 units of equipment and (b) for failing to render the required liquidation of his cash advances amounting to P44,877.00 for a period of 4 yrs. He was also found guilty of frequent and unauthorized absences. He was meted the penalty of dismissal from the service with the corresponding accessory penalties. He appealed to the Merit System and Protection Board (MSPB) of the Civil Service Commission (CSC). The MSPB reversed the decision. PPA filed an appeal with the Civil Service Field Office-PPA, which indorsed the appeal to CSC. Magpale moved for the implementation of the MSPB decision which was opposed by the PPA. MSPB ordered the immediate implementation of its decision, which became final and executory. Respondent CSC reversed MPSB’s decision and held Magpale guilty.

ISSUE: Whether the law authorized an appeal by the government from an adverse decision of the MSBP NO. Under the Administrative Code of 1987, decisions of the MPSB shall be final, except only “those involving dismissal or separation from the service which may be appealed to the Commission” While it is true that the CSC does have the power to hear and decide administrative cases instituted by or brought before it directly or on appeal, the exercise of the power is qualified by and should be read together with Sec. 49 of Executive Order 292, which prescribes, among others that “(a) the decision must be appealable.” Under Section 47 of the Administrative Code, the CSC shall decide on appeal all administrative disciplinary cases involving the imposition of:

(a) (b)

a penalty of suspension for more than 30 days;

fine in an amount exceeding 30 days salary; (c) demotion in rank or salary or transfer; or (d) removal or dismissal from office. The MPSB decision did not involve dismissal or separation from office, rather, the decision exonerated petitioner and ordered him reinstated to his former position. The MSPB decision was not a proper subject of appeal to the CSC. Settled is the rule that a tribunal, board, or officer exercising judicial functions acts without jurisdiction if no authority has been conferred by law to hear and decide the case. Housing and Land Use Regulatory Board (HLURB) SANDOVAL v. CAÑEBA (190 SCRA 77, 1991) It is not the ordinary courts but the National Housing Authority (NHA) which has exclusive jurisdiction to hear and decide cases of (a) unsound real estate business practices; (b) claims involving refund and any other claims filed by subdivision lot or condominium unit buyer against the project owner, developer, dealer, broker or salesman; and (c) cases involving specific performance of contractual and statutory obligations filed by buyers of subdivision lot or condominium unit against the owner,

MENDEZ, IVAN VIKTOR (2D, ’13)

CIVIL PROCEDURE REVIEWER6

FACTS: Estate Developers and Investors Corporation (Estate) filed a complaint against Nestor Sandoval (Sandoval) in the RTC for the collection of unpaid installments of a subdivision lot, pursuant to a promissory note, plus interest. Sandoval alleges that he suspended payments thereof because of the failure of the developer to develop the subdivision pursuant to their agreement. The RTC ruled in favor of Estate, and ordered Sandoval to pay. A writ of execution was issued which thereafter became final and executory. Sandoval filed a motion to vacate judgment and to dismiss the complaint on the ground that the RTC had no jurisdiction over the subject matter. A motion for reconsideration of the writ of execution was also filed by petitioner. Estate opposed both motions. RTC denied the motion to vacate for the reason that it is now beyond the jurisdiction of the court to do so. A new writ of execution was issued. Sandoval filed a petition alleging that the RTC committed grave abuse of discretion since the exclusive and original jurisdiction over the subject-matter thereof is vested with the Housing and Land Use Regulatory Board (HLURB) pursuant to PD 957. ISSUE: Whether the ordinary courts have jurisdiction over the collection of unpaid installments regarding a subdivision lot NO. Under Section 1 of Presidential Decree No. 957 the National Housing Authority (NHA) was given the exclusive jurisdiction to hear and decide certain cases of the following nature: (a) Unsound real estate business practices: (b) Claims involving refund and any other claims filed by subdivision lot or condominium unit buyer against the project owner, developer, dealer, broker or salesman; and (c) Cases involving specific performance of contractual and statutory obligations filed by buyers of subdivision lot or condominium unit against the owner, developer, dealer, broker or salesman. The exclusive jurisdiction over the case between the petitioner and private respondent is vested not on the RTC but on the NHA. The NHA was re-named Human Settlements Regulatory Commission and thereafter it was re-named as the Housing and Land Use Regulatory Board (HLURB). KINDS OF ACTION 1. As to cause or foundation
MENDEZ, IVAN VIKTOR (2D, ’13)

The distinction between a real action and a personal action is important for the purpose of determining the venue of the action. (a) Personal Personal actions are those other than real actions. (Sec. 2, Rule 4) Examples  Action for specific performance  Action for damages to real property  Action for declaration of the nullity of marriage  Action to compel mortgagee to accept payment of the mortgage debt and release the mortgage (b) Real An action is real when it affects title to or possession of real property, or an interest therein. (Sec. 1, Rule 4) To be a real action, it is not enough that it deals with real property. It is important that the matter in litigation must also involve any of the following issues: (a) Title; (b) Ownership; (c) Possession; (d) Partition;

(e) Foreclosure of mortgage; or
(f) Any interest in real property Examples  Action to recover possession of real property plus damages (damages is merely incidental)  Action to annul or rescind a sale of real property

2. As to object The distinctions are important

(a) to determine whether the jurisdiction
of the defendant is required, and (b) to determine the type of summons to be employed (a) In rem An action is in rem when it is directed against the whole world. It is for the determination of the state or condition of a thing. Examples  Probate proceeding  Cadastral proceeding (b) In personam A proceeding in personam is a proceeding to enforce personal rights and obligations

5. (Sec. the chairman fail in his mediation efforts within said period. Its purpose is to impose some responsibility or liability directly upon the person of the defendant. not lawyers. Failure to comply with a condition precedent is an independent ground  (3) Signed by them. (4) Naturalization. he shall constitute the Pangkat Tagapagkasundo. NOTE: These rules are inapplicable in the following cases: (1) Election cases. 4. Examples  Action for sum of money  Action for damages (c) Quasi in rem An action quasi in rem is one wherein an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property. or on the date of the filing of the later pleading if an additional defendant is impleaded irrespective of whether the motion for its admission. if necessary. Condition precedent — matters which must be complied with before a cause of action arises. when contract so provides Katarungang Pambarangay (RA 7160) Purpose: To reduce the number of court litigations and prevent the deterioration of the quality of justice which has been brought by the indiscriminate filing of cases in the courts. no juridical entities. (with respect only to the defendant later impleaded) (5) Should 1. a motion to dismiss a civil complaint may be filed. (3) Cadastral. Rule 16) Examples:  Tender of payment before consignation  Exhaustion of administrative remedies  Prior resort to barangay conciliation proceedings  Earnest efforts towards a compromise  Arbitration proceedings. (2) Land registration. (6) If no amicable settlement is reached. and MENDEZ. except for minors and incompetents who may be assisted by their next-of-kin.   (6) Other cases not herein provided for. and whenever practicable and convenient. All amicable settlements shall be (1) In writing. the chairman shall issue a certification to file action. but which are intended to operate on these questions only as between the particular parties to the proceedings. and not to ascertain or cut-off the rights or interests of all possible claimants.  When a claim is subject to a condition precedent. is denied by the court. (5) Insolvency proceedings. 1 [j]. Such action deals with the status. for a motion to dismiss. ownership or liability of a particular property. Conciliation proceedings required is not a jurisdictional requirement. IVAN VIKTOR (2D. Hence. ’13) . BUT the court may not motu proprio dismiss the case for failure to undergo conciliation. Rule 16).CIVIL PROCEDURE REVIEWER7 brought against the person and is based on the jurisdiction of the person. no one other than the defendant is sought to be held liable. (Sec. In an action in personam. Parties must personally appear in all KB proceedings and without assistance of counsel or representatives. Rule 1) A civil action is commenced  Initiation of proceedings (1) Payment of appropriate filing fee (2) Oral or written complaint to the Punong Barangay (chairman of the Lupon) (3) Chairman shall summon respondents to appear the next working day (4) Mediation proceedings for 15 days   by the filing of the original complaint in court. compliance must be alleged in the pleading. NOTE: Failure to undergo the barangay conciliation proceedings is noncompliance of a condition precedent. (Sec. 1 [j]. except by analogy or in a suppletory character. Rule 1) COMMENCEMENT OF ACTION (Sec. (2) In a language or dialect known to the parties.   Only individuals shall be parties to KB proceedings.

as MENDEZ. 2. Lumbuan referred the matter to the Barangay Chairman’s Office but no amicable settlement was reached. The fee may be paid within the applicable prescriptive or reglementary period. the entire case will be remanded to the MeTC for it to decide the case anew. unless: when the mandatory mediation and conciliation in the barangay level had not been complied with. or (2) Petition to nullify the award has been filed before the proper city or municipal ourt Execution shall issue upon expiration of 10 days from settlement. the parties met at the office of the Barangay Chairman for possible settlement. both in the body of the pleadings and in the assessment of the filing fees. there was substantial compliance with Section 412(a) of R. ’13)  All complaints. The act of Lumbuan in raising the matter to the Katarungang Pambarangay and the subsequent confrontation of the lessee and lessor before the Lupon Chairman or the pangkat is sufficient compliance with the precondition for filing the case in court. and (b) the leased premises shall be used only for lessee’s fastfood business. and similar pleadings must specify the amount of damages being prayed for. it is significant that the Barangay Chairman or Punong Barangay is herself the Chairman of the Lupon under the Local Government Code. It should be noted that although no pangkat was formed since no amicable settlement was reached by the parties before the Katarungang Pambarangay. 7160. the parties met at the office of the Barangay Chairman for possible settlement. Lumbuan filed an action for Unlawful Detainer with MeTC of Manila which ordered respondent Ronquillo to vacate the leased premises and to pay P46. Ronquillo failed to abide by the conditions. Effect The amiable settlement and arbitration award shall have the effect of a final judgment of a court upon expiration of 10 days from date thereof. Manchester v. The CA reversed the RTC and ordered the dismissal of the ejectment case.A.000 as unpaid rentals. and refused to pay or vacate the leased premises despite Lumbuan’s repeated verbal demands.   . CA: Any defect in the original pleading resulting in underpayment of the docket fee cannot be cured by amendment. The barangay chairman issued a Certificate to File Action. While admittedly no pangkat was constituted. RTC set aside the MeTC decision and directed the parties to go back to the Lupon Chairman or Punong Barangay for further proceedings and to comply strictly with the condition that should the parties fail to reach an amicable settlement. This is true notwithstanding the mandate of Section 410(b) of the same law that the Barangay Chairman shall constitute a pangkat if he fails in his mediation efforts. FACTS: Lumbuan (lessor) leased a lot to respondent Ronquillo (lessee) for 3 years at a rental of P5000/month. 2006) While admittedly no pangkat was constituted. The court acquires jurisdiction upon payment of the correct docket fees. and for all legal purposes. petitions. as the case may be. LUMBUAN v. On this score. Section 410(b) should be construed together with Section 412. ruling that when a complaint is prematurely instituted.CIVIL PROCEDURE REVIEWER8 (4) Attested to by the lupon chairman or the pangkat chairman. the court should dismiss the case and not just remand the records to the court of origin so that the parties may go through the prerequisite proceedings. Thereby. answers. the act of petitioner Lumbuan in raising the matter to the Katarungang Pambarangay and the subsequent confrontation of the lessee and lessor before the Lupon Chairman or the pangkat is sufficient compliance with the precondition for filing the case in court. ISSUE: Whether the CA properly dismissed complaint for failure of the parties to comply with the mandatory mediation and conciliation proceedings in the barangay level NO. Payment of filing fee Payment of the prescribed docket fee vests a trial court with jurisdiction over the subject matter or nature of the action. They agreed that: (a) there will be an annual 10% increase in rent for the next 2 years. (1) Repudiation of the settlement has been made. IVAN VIKTOR (2D. BUT nonpayment of filing fees does not automatically cause the dismissal of the case. RONQUILLO (489 SCRA 650. as well as the circumstances obtaining in and peculiar to the case. the court acquired no jurisdiction in such case.

moral. Thus. the Manchester rule does not apply. The complaint sought the payment of actual. Petitioners allege that while Uy had paid P182. FACTS: Respondents filed a complaint against Bertuldo for recovery of ownership of the premises leased by the latter.824.70. SUN INSURANCE OFFICE v. While the payment of the prescribed docket fee is a jurisdictional requirement. the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period. Bertuldo died without completing his evidence during the direct examination. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee. when insufficient filing fees were initially paid by the plaintiffs and there was no intention to defraud the government. Atty. and that under Manchester doctrine. 2005) Non-payment at the time of filing does not automatically cause the dismissal of the case. non-payment of the correct docket fee is jurisdictional. Bertuldo alleged ownership of the property by virtue of a Deed of Absolute Sale. Ltd. Not having paid the same. Uy filed a complaint in the RTC for the refund of premiums and the issuance of a writ of preliminary attachment initially against petitioner SIOL. exemplary and liquidated damages. Uy paid only P210. the docket fee that should be paid by private respondent is P257. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien FACTS Sun Insurance Office.810. or if specified the same has been left for the court’s determination. more so when the party involved demonstrates a willingness to abide by the rules prescribing such payment.601.CIVIL PROCEDURE REVIEWER9 HEIRS OF BERTULDO HINOG v. (SIOL) filed a complaint against Uy for the consignation of a premium refund on a fire insurance policy with a prayer for the judicial declaration of its nullity. petitioners contend that the complaint should be dismissed and all incidents arising therefrom should be annulled. ISSUE: Whether or not a court acquires jurisdiction over case when the correct and proper docket fee has not yet been paid YES. more or less. Where the trial court acquires jurisdiction over a claim by the filing of the pleading and payment of prescribed filing fees but the judgment awards a claim not specified in the pleading.00 as docket fee. more so when the party involved demonstrates a willingness to abide by the rules prescribing such payment. expenses of litigation and costs of the suit. even its non-payment at the time of filing does not automatically cause the dismissal of the case. ISSUE: Whether the nonpayment of the correct docket fee is jurisdictional in the present case NO.623.000. ’13) .49.90 as docket fee. IVAN VIKTOR (2D. but thereafter included Philipps and Warby as additional defendants. the additional filing fee shall constitute a lien on the judgment. Uy was declared in default for failure to file the required answer within the reglementary period. MELICOR (455 SCRA 460. the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period. as long as the fee is paid within the applicable prescriptive or reglementary period. Thus. the Manchester rule does not apply. 1989) Where the filing of the initiatory pleading is not accompanied by payment of the docket fee. attorney's fees. compensatory. when insufficient filing fees were initially paid by the plaintiffs and there was no intention to defraud the government. Where the trial court MENDEZ. and considering that the total amount sought in the amended and supplemental complaint is P64. ASUNCION (170 SCRA 274. Although the prayer in the complaint did not quantify the amount of damages sought said amount may be inferred from the body of the complaint to be about P50. which prompted petitioners' counsel to raise his objection for under-assessment of docket fees.000. Petalcorin replaced the original counsel and filed a motion to expunge the complaint from the record and nullify all court proceedings on the ground that private respondents failed to specify in the complaint the amount of damages claimed as needed to pay the correct docket fees. as long as the fee is paid within the applicable prescriptive or reglementary period.

elements (1) There must be a good cause. ’13) JOSEPH v. (Sec. 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. and another action for damages for injuries to a passenger other than the owner of the car  Action to collect loan and action for rescission of mortgage  Action based on breach of contract of carriage and action based on quasidelict CAUSE OF ACTION (RULE 2) Cause of Action A cause of action is the act or omission by which a party violates the rights of another. 4. 3. the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. BAUTISTA (170 SCRA 540. subsequently. the additional filing fee therefore shall constitute a lien on the judgment. (2) A correlative obligation on the part of the named defendant to respect or to not violate such right.  A party may not institute more than one suit for a single cause of action. the formal statement of operative facts giving rise to a remedial right. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee. Rule 2) If two or more suits are instituted on the basis of the same cause of action. or if specified the same has been left for determination by the court. 1. Right of action. (Sec. the judgment awards a claim not specified in the pleading.CIVIL PROCEDURE REVIEWER10 acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but. Splitting a cause of action Splitting of cause of action is the act of dividing a single or indivisible cause of action MENDEZ. and (3) Act or omission on the part of defendant in violation of the right of the plaintiff. (2) A compliance with all the conditions precedent to the bringing of the action. Distinguished from right of action Cause of action is the reason for bringing an action. A right of action is the remedy for bringing an action and is solely dependent on substantive law.   Examples Single cause of action (Cannot be filed separately)  A suit for the recovery of land and a separate suit to recover the fruits  Action to recover damages to person and action for damages to same person’s car  Action for recovery of taxes and action to demand surcharges resulting from delinquency in payment of said taxes  Action to collect debt and to foreclose mortgage  Action for partition and action for the recovery of compensation on the improvements  Action for annulment of sale and action to recover dividends Distinct causes of action (separate filing allowed)  Action for reconveyance of title over property and action for forcible entry or unlawful detainer  Action for damages to a car in a vehicular accident. 1989) . Rule 2) Applies also to counterclaims and cross-claims. (Sec. third party claims and similar pleadings. and (3) The action must be instituted by the proper party. Rule 2) Every ordinary civil action must be based on a cause of action. into several parts or claims and bringing several actions thereon. Rule 2) Elements: (1) A legal right in favor of the plaintiff. which shall not be considered filed until and unless the filing fee prescribed therefore is paid. 2. (Sec. The same rule applies to permissive counterclaims. IVAN VIKTOR (2D. and is governed by procedural law.

FACTS: PDCP extended a P4. service fees and penalty charges. They thereafter filed a Motion to Exonerate and Exclude themselves since they’ve already paid Joseph by way of amicable settlement and Perez’s claim for damages. ’13) action was involved although the bases of recovery invoked by petitioner against the defendants therein were not necessarily identical since the respondents were not identically circumstanced. so they were released from liability. by varying the form of action or adopting a different method of presenting his case. nullifying the stipulation of interests. Nevertheless. 12% per annum interest. agreed to P6. in the event that she is ordered to pay. RTC ordered PDCP to pay petitioners P4. albeit with the correlative rights of action against the different respondents through the appropriate remedies allowed by law. based on a breach of contract of carriage. which vested in him a single cause of action. since he could not ascertain who the real owners of the pick-up truck and the cargo truck were. or by pleading justifiable circumstances as herein petitioners are doing. There is no question that petitioner sustained a single injury on his person. that a party cannot.CIVIL PROCEDURE REVIEWER11 Where there is only one delict or wrong. DATICOR thus filed a Complaint for sum of money against PDCP and FEBTC to recover the excess payment which they computed to be P5. This resulted to the bone fracture of the petitioner’s leg.4 million as full settlement of the receivables. as when the act constitutes a juridical a violation of several separate and distinct legal obligations. which that DATICOR shall pay: a service fee of 1% per annum (later increased 6% per annum) on the outstanding balance. Only one cause of MENDEZ. and to pay the costs of the suit. boarded Perez’s cargo truck with a load of livestock. and penalty charges 2% per month in case of default. SC affirmed in toto the decision of the IAC. the truck driver overtook a tricycle but hit a mango tree when a pick-up truck tried to overtake him at the same time. They also paid Perez for her claim of damages. however. escape the operation of the principle that one and the same cause of action shall not be twice litigated. DEL ROSARIO v. as owner. to bear interest at 12% per annum until fully paid. FEBTC (537 SCRA 571. petitioner. In the interim.3 million. the owner and driver of the pick-up truck. which the latter applied to interest. Petitioner impleaded Pagarigan and Vargas. if only one injury resulted from several wrongful acts. However. DATICOR paid a total of P3 million to PDCP. The loans were secured by real estate mortgages over six (6) parcels of land and chattel mortgages over machinery and equipment. only one cause of action arises. based on quasi-delict. where there is only one delict or wrong. PDCP appealed the IAC's decision to SC. FEBTC and DATICOR. IVAN VIKTOR (2D.4 million loan to DATICOR. This left them with an outstanding balance of P10 million according to PDCP’s computation. Perez filed an Opposition to the motion since the release of claim executed by petitioner in favor of the other respondents allegedly inured to his benefit. in a MOA. The IAC set aside the dismissal and declared void and of no effect the stipulation of interest in the loan agreement. Petitioner filed a complaint for damages against Perez.035 million. if only one injury resulted from several wrongful acts. The other respondents paid petitioner's claim for injuries. FACTS: Joseph. DATICOR filed a complaint against PDCP for violation of the Usury Law and annulment of contract and damages. PDCP assigned a portion of its receivables from DATICOR to FEBTC for of P5. A single act or omission can be violative of various rights at the same time.4 M. The CFI dismissed the complaint. 2007) It is well established. At the highway. there is but a single cause of action regardless of the number of rights that may have been violated belonging to one person. to release or cancel the mortgages and to return the corresponding titles to petitioners. Nevertheless. and against Sioson and Villanueva. RTC dismissed the case. ISSUE: Whether the judgment on the compromise agreement under the cause of action based on quasi-delict is a bar to the cause of action for breach of contract of carriage YES. Perez filed a cross-claim against the other respondents for indemnity. RTC dismissed the complaint against FEBTC for lack of cause of action since the . there is but a single cause of action regardless of the number of rights that may have been violated belonging to one person. only one cause of action arises.

the amount payable to it by DATICOR was the same amount payable to assignee FEBTC. A party cannot. 1991) When a single delict or wrong is committed — like the unlawful taking or detention of the property of another — there is but one single cause of action regardless of the number of rights that may have been violated. or by pleading justifiable circumstances as herein petitioners are doing. FEBTC not being a party thereto. or a cause of action that gives rise to two (2) remedies. which held that petitioners' outstanding obligation (determined to be only P1. he is mandated to set forth in his first action every ground for relief which he claims to exist and upon which he relies. For obvious reasons. IVAN VIKTOR (2D. one for recovery of possession only.000 from FEBTC. DATICOR not having been a party thereto. ordering PDCP to release and cancel the mortgages and FEBTC to pay P965. but only to one action. Petitioners filed before the RTC another Complaint against FEBTC to recover the balance of the excess payment of P4. hence. Because the plaintiff cannot divide the grounds for recovery. Re-litigation of matters already settled by a court's final judgment merely burdens the courts and the taxpayers. the recovery of possession and recovery of damages arising from the loss of possession. In other words. The same facts and evidence presented in the first case were the very same facts and evidence that petitioners presented in the second case.035 million for the overpayment for the assigned receivables. The question of damages is merely secondary or incidental. the real issue is the physical possession of the real property. and wastes valuable time and energy that could be devoted to worthier cases. and all such rights should be alleged in a single complaint as constituting one single cause of action. the CA held that FEBTC was bound to refund DATICOR the excess payment of P5 million it received. This rule proscribes a party from dividing a single or indivisible cause of action into several parts or claims and instituting two or more actions based on it. the latter was ordered to pay them only that amount. by varying the form of action or adopting a different method of presenting his case. By the principle of solutio indebiti. The trial court dismissed petitioners' complaint on the ground of res judicata and splitting of cause of action. Petitioners and PDCP appealed to the CA. It recalled that petitioners had filed an action to recover the alleged overpayment both from PDCP and FEBTC and that the CA Decision. A cause of action is the delict or the wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff. But since DATICOR claimed in its complaint only of P965. creates uneasiness and confusion. MENDEZ. v. petitioners imputed to FEBTC the same alleged wrongful act of mistakenly receiving and refusing to return an amount in excess of what was due it in violation of their right to a refund.335 million plus interest which petitioners previously claimed against PDCP in a previously decided case NO. In the two cases. he cannot be permitted to rely upon them by piecemeal in successive actions to recover for the same wrong or injury.000 with interest became final and executory. and the . In a forcible entry case. and held that when PDCP assigned its receivables. a ground for dismissal under Section 4 of Rule 2 of the Rules of Court. and that FEBTC could recover from PDCP the P4. not bound by its terms. ’13) SC held that to allow the re-litigation of an issue that was finally settled as between petitioners and FEBTC in the prior case is to allow the splitting of a cause of action. Both the rules on res judicata and splitting of causes of action are based on the salutary public policy against unnecessary multiplicity of suits—interest reipublicae ut sit finis litium. both remedies cannot be the subject of two (2) separate and independent actions. escape the operation of the principle that one and the same cause of action shall not be twice litigated. irrespective of any stipulation that PDCP and FEBTC might have provided in the Deed of Assignment.335 million.4 million) could not be increased or decreased by any act of the creditor PDCP. the unlawful act of a deforciant in taking possession of a piece of land by means of force and intimidation against the rights of the party actually in possession thereof is a delict or wrong. namely. so much so that the amount thereof does not affect the jurisdiction of the court. PROGRESSIVE DEVELOPMENT CORP. ISSUE: Whether FEBTC can be held liable for the balance of the overpayment of P4. CA (301 SCRA 367.CIVIL PROCEDURE REVIEWER12 MOA between petitioners and FEBTC was not subject to SC decision.

The forcible entry case had as its cause of action the alleged unlawful entry by PDC into the leased premises out of which three (3) reliefs arose: (a) the restoration by PDC of possession of the leased premises to the lessee. that Westin would deposit with the PCIB (Bank) P8M to guarantee payment of its back rentals. actual damages and compensatory damages representing unrealized profits. and all such rights should be alleged in a single complaint as constituting one single cause of action. and instead. the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the other or others. but only to one MENDEZ.. no claim for damages arising out of forcible entry or unlawful detainer may be filed separately and independently of the claim for restoration of possession. PDC filed a motion to dismiss the damage suit on the ground of litis pendencia and forum shopping. instead of ruling on the motion. archived the case pending the outcome of the forcible entry case. PDC’s motion to dismiss was denied. PDC filed with the CA a special civil action for certiorari and prohibition. Westin filed with the RTC an amended complaint for damages. Under Sec. the unlawful act of a deforciant in taking possession of a piece of land by means of force and intimidation against the rights of the party actually in possession thereof is a delict or wrong. or a cause of action that gives rise to two (2) remedies. the forcible entry by PDC into the least premises. i. IVAN VIKTOR (2D.000. which were all granted. so much so that the amount thereof does not affect the jurisdiction of the court. and scheduled a public auction for the sale of the movables. the real issue is the physical possession of the real property. inventoried the movable properties found within and owned by Westin. Westin filed a forcible entry case with the MeTC against PDC for with damages and a prayer for a temporary restraining order and/or writ of preliminary injunction. (c) the claim for attorney’s fees and cost of suit. 3 of Rule 2 of the Revised Rules of Court. PDC repossessed the leased premises. Westin failed to pay rentals despite several demands. and. the RTC and not the MeTC had jurisdiction over the action of damages. 1 of Rule 70 of the Rules of Court provides that all cases for forcible entry or unlawful detainer shall be filed before the MTC which shall include not only the plea for restoration of possession but also all claims for damages and costs arising therefrom. with the forcible entry case still pending. among others. the restoration of possession and demand for actual damages in the case before the MeTC and the demand for damages with the RTC both arise from the same cause of action. But the CA dismissed the petition.6M. ’13) . On the other hand. 4 of the same Rule. all based on the alleged forcible takeover of the leased premises by PDC. ISSUE: Whether Westin may institute a separate suit for damages with the RTC after having instituted an action for forcible entry with damages with the MeTC NO. It clarified that since the damages prayed for in the amended complaint with the RTC were those caused by the alleged high-handed manner with which PDC reacquired possession of the leased premises and the sale of Westin's movables found therein. namely. Simply stated. It also filed an Urgent Ex-Parte Motion for the Issuance of a TRO and Motion for the Grant of a Preliminary Prohibitory and Preliminary Mandatory Injunction. In a forcible entry case. In other words. The RTC. A TRO enjoined PDC from selling Westin's properties. Westin instituted another action for damages against PDC with the RTC. Jurisprudence says that when a single delict or wrong is committed — like the unlawful taking or detention of the property of the another — there is but one single cause of action regardless of the number of rights that may have been violated. with notice to Westin. a party may not institute more than one suit for a single cause of action. and. attorney's fees and costs. The other claims for moral and exemplary damages cannot succeed considering that these sprung from the main incident being heard before the MeTC. the recovery of possession and recovery of damages arising from the loss of possession. At the continuation of the hearing. the complaint for damages prays for a monetary award consisting of moral and exemplary damages. The arrearages amounted to P8. Sec.CIVIL PROCEDURE REVIEWER13 FACTS: PDC leased to Westin a parcel of land with a commercial building for 9 years and 3 months. Thus. Westin did not comply with its undertaking. The question of damages is merely secondary or incidental.e. if two or more suits are instituted on the basis of the same cause of action. which was granted. Under Sec. the parties agreed. (b) the claim for actual damages due to losses suffered by Westin. as amended. with a monthly rental of approximately P600. Westin's cause of action in the forcible entry case and in the suit for damages is the alleged illegal retaking of possession of the leased premises by PDC from which all legal reliefs arise. Otherwise expressed.

other than those sustained as a result of dispossession in the Forcible Entry case could not be considered as splitting of a cause of action. Another complaint to claim for damages was also filed by the petitioners against the same respondent Treyes grounded on the allegations that Treyes and his men also destroyed and ransacked the MENDEZ. a judgment obtained in that action precludes the plaintiff from bringing a second action for the residue of the claim. FACTS: Rodrigo Enriquez and the Dizon spouses sold to Socorro Ramos 11 parcels of land for P101.500. the institution of the two cases is not a splitting of a cause of action. Ramos paid P5. FACTS: CGR Corporation.000. 1654 of the Civil Code. The claim for P2. section 4 of Rule 2 does not apply. pursuant to a lease agreement granted to them by the Secretary of Agriculture for a period of 25 years (to last October 2000 to December 2024). 1659 in relation to Art. and with a P2. not otherwise raised and cited by Westin in the forcible entry case. What then is the effect of the dismissal of the other action? Since the rule is that all such rights should be alleged in a single complaint.000 downpayment. Petitioners then filed a complaint for Forcible Entry with the MTC. mortgaged the 11 parcels in favor of the vendors. For obvious reasons. petitioners. claim to have occupied 37 ha.. ENRIQUEZ v. for the recovery of damages.CIVIL PROCEDURE REVIEWER14 action. CGR CORP. ’13) Chapel built by petitioner CGR Corporation and decapitated the heads of the religious figures. TREYES (522 SCRA 765. On November 2000. If a suit is brought for a part of a claim. notwithstanding that the second form of action is not identical with the first or different grounds for relief are set for the second suit. That would inevitably lead to what is termed in law as splitting up a cause of action. Clearly. IVAN VIKTOR (2D. The two causes of action being different.00 check drawn against PNB. This is why the legal basis upon which Westin anchored its second claim for damages. The only recoverable damages in the forcible entry and detainer cases instituted first by the petitioners with the MTC are the “rents” or fair rental value of the property from the time of dispossession by the respondent. . as attorney-in-fact of her four children and as judicial guardian of her minor child. as well as the ransacking of the chapel built by CGR Corp. the petitioner can independently institute and maintain an action for damages which they claim arose from incidents occurring after the forcible entry of Treyes and his men YES. both remedies cannot be the subject of two (2) separate and independent actions. RAMOS (7 SCRA 265. To secure the said balance. other damages being claimed by the petitioners must be claimed in another ordinary civil action. it goes without saying that those not therein included cannot be the subject of subsequent complaints for they are barred forever.00 she had issued in favor of appellees. The second action for claim of damages had to do with the harvesting and carting away of milkfish and other marine products. cannot be used as justification for the second suit for damages. This principle not only embraces what was actually determined.000.500 in cash. Herman Benedicto and Alberto Benedicto. Hence. Treyes and his men also harvested tons of milkfish and fingerlings from the petitioners’ ponds. a distinct debt not covered by the security. ISSUE: Whether during the pendency of a separate complaint for Forcible Entry. i.000. Ramos.00 within 90 days. respondent Treyes allegedly forcibly and unlawfully entered the leased premises and barricaded the entrance to the fishponds of the petitioners. 1963) An examination of the first complaint filed against appellant in CFI showed that it was based on appellants' having unlawfully stopped payment of the check for P2. P2. but also extends to every matter which the parties might have litigated in the case.500. in the same deed of sale. one for recovery of possession only. Art. therefore. 2007) Petitioners’ filing of an independent action for damages grounded on the alleged destruction of CGR’s property. while the complaint in the second and present action was for nonpayment of the balance of P96. It is noteworthy that the second action instituted by the petitioners (complaint for damages) have NO direct relation to their loss of possession of the leased premises – which is the main issue in the first action they instituted. V. of public land in Negros Occidental. and the other.500.00 was. Ramos mortgaged a lot on Malinta Estate as additional security. however. since both are concerned with entirely different issues. and agreed to satisfy the balance of P96.e.00 guaranteed by the mortgage.

The two causes of action being different. ’13) Example: An action for claim of money cannot be joined with an action for ejectment. NOT compulsory.500. NOTE: As to which action should be dismissed (the first or second one) would depend upon judicial discretion and the prevailing circumstances of the case.  This is merely permissive. The claim for P2. and further decreed the foreclosure sale of the mortgaged properties in case of nonpayment within 90 days. or with an action for foreclosure. the aggregate amount claimed . and the venue lies therein.00 was a defense that could be pleaded in abatement of the second suit.500. that plaintiffs were guilty of splitting a single cause of action. while the complaint in the second and present action was for non-payment of the balance of P96. alleging that the plaintiffs previously had filed action against her in the CFI of Manila for the recovery of P2. CFI of Quezon City denied the motion to dismiss. Joinder of causes of action Joinder of causes of action is the assertion of as many causes of action as a party may have against another in one pleading. 5.00. ISSUE: Whether there was splitting of cause of action NO. The right to relief should arise out of the same transaction or series of transaction.CIVIL PROCEDURE REVIEWER15 Ramos failed to comply with the conditions of the mortgage. that at the time this first suit was filed. and (d) Where the claims in all the causes of action are principally for recovery of money. 6. 6. attorney's fees. with 12% interest.500. therefore. It is the process of uniting two or more demands or rights of action in one action. because of the use of the word “may” in Sec. a motion to dismiss may be made on any of the following grounds: xxx (e) That there is another action pending between the same parties for the same cause. (Sec. there is no splitting of cause of action in this case. Rule 3) (b) The joinder shall not include special civil actions or actions governed by special rules. ii. Rule 2. a distinct debt not covered by the security.000. (f) That the cause of action is barred by a prior judgment or by the statute of limitations xxx MENDEZ. ii. i. and There exists a common question of law or fact. any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and. ordered her to pay P96.00 she had issued in favor of appellees.00 paid by check as part of the down payment on the price of the mortgaged lands. and under section 4 of Rule 2 of the Rules of Court. The CFI ruled against defendant Ramos. Rule 16)— Within the time for but before filing the answer to the complaint or pleading asserting a claim.  (a) Motion to dismiss (Sec 1 [e] or [f]. Defendant Ramos re-pleaded the averments as a special defense in her answer. It is subject to the following conditions: (a) The party joining the causes of action shall comply with the rules on joinder of parties. a preliminary hearing may be had thereon as if a motion to dismiss had been filed. and the costs of the suit. Remedy against splitting a single cause of action (b) Answer alleging affirmative defense (Sec.00 was. the mortgage debt was already accrued and demandable. one of the causes of action falls within the jurisdiction of said court. in the discretion of the court.00 guaranteed by the mortgage. (c) Where the causes of action are between the same parties but pertain to different venues or jurisdictions. Ramos appealed directly to SC. the filing of the first action for P2. Rule 16)— If no motion to dismiss has been filed. so an action for foreclosure was filed by the vendorsmortgagees. An examination of the first complaint filed against appellant in CFI showed that it was based on appellants' having unlawfully stopped payment of the check for P2.000. the joinder may be allowed in the RTC provided i. IVAN VIKTOR (2D. Ramos moved to dismiss.500. section 4 of Rule 2 does not apply.

Moreover. the amount demanded FACTS: Binongcal and Calion. In the case at bar.CIVIL PROCEDURE REVIEWER16 shall be the test of jurisdiction. It appears that Cruz had purchased goods from UHI’s affiliated companies FPC and USWCI. the lower court correctly held that the jurisdictional test is subject to the Rules on Joinder of Parties pursuant to Sec. 2007) Exclusive venue stipulation embodied in a contract restricts or confines parties thereto when the suit relates to breach of said contract. INC. 11 of the Interim Rules) applies not only to cases where two or more plaintiffs having separate causes of action against a defendant join in a single complaint. his obligation was separate and distinct from the other. 5. or (b) on the initiative of the court. Binongcal filed a Motion to Dismiss on the ground of lack of jurisdiction since under Sec. A misjoined cause of action may be severed and proceeded with separately: (a) on motion of a party. 6 of Rule 3 of the Rules of Court. the total of all the claims shall be the first jurisdictional test. franchise to adopt and use the "Uniwide Family Store System" for the establishment and operation of a "Uniwide Family Store" in Marikina. Cruz had outstanding obligations with UHI. 6 of Rule 3.89. separate actions are filed by or against the parties. and the second was against Calion for P10. Rule 2) Misjoinder of causes of action Misjoinder of causes of action is NOT a ground for dismissal of an action. 6 of Rule 3. The Totality Rule (under Sec. the said causes of action should MENDEZ. as provided in Sec. In cases of permissive joinder of parties. In cases of permissive joinder of parties. (Sec. It appears that there is a misjoinder of parties for the reason that the claims against Binongcal and Calion are separate and distinct and neither of which falls within its jurisdiction. FPC. 000. a 5yr. so Flores filed a complaint where the first cause of action was against Binongcal for P11. ’13) arise out of the same transaction or series of transactions and there should be a common question of law or fact. the total of all the claims shall be the first jurisdictional test. The agreement obliged Cruz to pay UHI a P50.000 monthly service fee or 3% of gross monthly purchases. In case of any delay in the payment of the monthly service fee. purchased truck tires on credit from Flores. Inc. such that even those not related to the enforcement of the contract should be subject to the exclusive venue. 212. If instead of joining or being joined in one complaint. Cruz would be liable to pay an interest charge of 3% per month. RTC dismissed the complaint for lack of jurisdiction. 1986) Application of the Totality Rule under Sect. If instead of a joinder. (UHI) granted Cruz. Thus UHI filed a complaint for collection of sum of money before RTC of Parañaque Cruz on the following causes of action: (1) P1. 643. and that the claim against him is less than that amount. and USWCI in the total amount of P1. but also to cases where a plaintiff has separate causes of action against two or more defendants joined in a single complaint. MALLARE-PHILLIPPS (144 SCRA 277. IVAN VIKTOR (2D. However. 33 of BP129 and Sec. 5 of Rule 2 and Sec. Calion joined in moving for the dismissal of the complaint during the hearing of the motion.832 in actual damages . Rule 2) FLORES v. 11 of the Interim Rules is subject to the requirements for the Permissive Joinder of Parties under Sec. Petitioner opposed the Motion to Dismiss. ISSUE: Whether RTC has jurisdiction over the case following the Totality Rule YES.669. payable within 5 days after the end of each month without need of formal billing or demand from UHI. 6. in separate transactions. after a careful scrutiny of the complaint. which remained unsettled despite the demands made.531. whichever is higher. 19(8) of BP129 RTC shall exercise exclusive original jurisdiction if the amount of the demand is more than P20.358. 33(l) BP129 and Sect. separate actions are filed by or against the parties. so the aggregate of the claims cannot be the basis of jurisdiction.327. But where the exclusivity clause does not make it necessarily encompassing. UNIWIDE HOLDINGS. CRUZ (529 SCRA 664. v. the amount demanded in each complaint shall be the second jurisdictional test. the stipulation designating exclusive venues should be strictly confined to the FACTS: Uniwide Holdings. FPC and USWCI assigned all their rights and interests over Cruz’s accounts to UHI. He averred further that although Calion was also indebted to Flores. The two allegedly refused to pay their debts. (Sec.

the general rule on venue applies – that the complaint may be filed in the place where the plaintiff or defendant resides. or where the defendant or any of the principal defendants resides. the aggregate amount claimed shall be the test of jurisdiction. may be brought before other venues provided that such other cause of action falls within the jurisdiction of the court and the venue lies therein. such that even those not related to the enforcement of the contract should be subject to the exclusive venue.579. Thus. preclude parties from bringing a case to other venues. Otherwise. Rule 3) (1) Natural persons (2) Juridical persons (a) The State and its political subdivisions.  It may also apply to a defendant who files a counterclaim.165.  If a counterclaim is filed against the original plaintiff. any action arising from the deeds of assignment cannot be subjected to MENDEZ. invoking Article 27. where he may be found. (4) P250. (2) Defendant— The defendant refers to the original defending party. Exclusive venue stipulation embodied in a contract restricts or confines parties thereto when the suit relates to breach of said contract.96 of actual damages for failure to pay receivables assigned by FPC to UHI.5 Venue Stipulation – The Franchisee consents to the exclusive jurisdiction of the courts of Quezon City. Based on the allegations in petitioner’s complaint. the stipulation designating exclusive venues should be strictly confined to the specific undertaking or agreement. at the election of the plaintiff. created by law. 1. separate and distinct from each shareholder.36 of actual damages for failure to pay the receivables assigned by USWCI to UHI.5 of the agreement which reads: 27. The general rule on venue of personal actions provides actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides. a cross-claim or a third party complaint. (Sec.000. Hence. and also the defendant in a counterclaim. Rule 2) PARTIES TO CIVIL ACTIONS (RULE 3) Parties (Sec. the latter becomes the defendant. The forging of a written agreement on an exclusive venue of an action does not. (b) Other corporations. the basic principles of freedom to contract might work to the great disadvantage of a weak party-suitor who ought to be allowed free access to courts of justice. ISSUE: Whether a case based on several causes of action is dismissible on the ground of improper venue where only one of the causes of action arises from a contract with exclusive venue stipulation NO. They are based on separate. 1. however. the present petition. or the third party defendant. Parañaque RTC granted Cruz’s motion to dismiss.CIVIL PROCEDURE REVIEWER17 for failure to pay the monthly service fee. institutions and entities for public interest or purpose. Where there is a joinder of causes of action between the same parties and one action does not arise out of the contract where the exclusive venue was stipulated upon. partnerships and associations for private interest r purpose to which the law grants a juridical personality. the Franchisee waiving any other venue. Cruz filed a motion to dismiss on the ground of improper venue. and (c) Corporations. the cross-defendant. IVAN VIKTOR (2D. 44. Civil Code) . (2) P64. (Art.061. Hence. Rule 3) (1) Plaintiff— The plaintiff is the claiming party or the original claiming party and is the one who files the complaint. But where the exclusivity clause does not make it necessarily encompassing. distinct and independent contracts—deeds of assignment in which UHI is the assignee of Cruz’s obligations to the assignors FPC and USWCI. partner or member. as in the one at bar. or in the case of a nonresident defendant. the complaint. The parties may also validly agree in writing on an exclusive venue. What is the totality rule? Where the claims in all the causes of action are principally for recovery of money. (3) P1. It bears emphasis that the causes of action on the assigned accounts are not based on a breach of the agreement between UHI and Cruz. ’13) the exclusive venue stipulation embodied in the agreement. Who may be parties? (Sec. 5. the second and third causes of action are based on the deeds of assignment executed in its favor by FPC and USWCI.00 of attorney’s fees. The deeds bear no exclusive venue stipulation with respect to the causes of action thereunder.

"Lack of personality to sue” refers to the fact that the plaintiff is not the real party. and likewise dismissed the complaint. 670. indefeasible and conclusive against the petitioners and the whole world. Rule 3) Real interest—a present substantial interest as distinguished from a mere expectancy or a future. As an affirmative defense. insanity. 2. and pursuant to an SPA executed by his “mga kapatid. are incontrovertible. CA affirmed the RTC. even if they lack juridical personality (a) Corporation by estoppel (Sec. 1768. not private individuals. Corporation Code).   Not real party in interest  A person who has not taken part in a contract  Third party who has not taken part in a compromise agreement  Mere agent in a contract of sale MENDEZ. In the end. 670 was genuine and authentic on its face. The first can be a ground for a motion to dismiss based on the ground of lack of legal capacity to sue. Corporation Code) CLASSIFICATION OF PARTIES Real party-in-interest A real party in interest is the party who stands to be benefited or injured by the judgment in the suit. (f) A dissolved corporation may prosecute and defend in suits which: a. (b) Partnership having a capital of P3. every action must be prosecuted or defended in the name of the real party in interest. it concluded that the petitioners were not the owners of the subject property. and thus. and Are connected with the settlement and closure of its affairs (Sec. dissolution. the Complaint stated no cause of action. such as on account of minority. Civil Code). It is material and direct. respondent claimed that the petitioners had no legal capacity to file the Complaint. Labor Code). Petitioners filed an action for declaration of nullity of respondent’s certificates of title on the basis that OCT No. IVAN VIKTOR (2D. 242 [e]. SANTIAGO (475 SCRA 744) The term "lack of capacity to sue" refers to a plaintiff's general disability to sue. lack of juridical personality or any other general disqualifications of a party. or the party entitled to the avails of the suit. incompetence. (c) Estate of a deceased person (d) A legitimate labor organization (Art.in-interest. 21. ’13) . as distinguished from a mere incidental interest. and is now in the name of respondent.000 or more but fails to comply with the registration requirements (Art. (Sec. two of them received notices to vacate. The owner of the right of violated is the real party in interest as plaintiff. Occur within 3 years after b. EVANGELISTA v. and therefore should have been initiated by the OSG.” assigned portions of the property to the petitioners in exchange for the labor and work they and their predecessors have done on the property. Their investigations revealed that the property was included in TCTs which originated from OCT No. and the person responsible for the violation is the real party in interest as defendant. 670 was fake and spurious. on the face FACTS: The Subject Property was part of a vast tract of land called “Hacienda Quibiga” which was awarded to Don Hermogenes Rodriguez by the Queen of Spain and evidenced by a Spanish title. Don Ismael Favila.  Unless otherwise authorized by law or these Rules. 122. then the OCT and all land titles derived therefrom. contingent subordinate or consequential interest. Petitioners were informed that Santiago was planning to evict them. RTC dismissed the complaint on the ground that the action filed was in effect an action for reversion.CIVIL PROCEDURE REVIEWER18 Lack of personality to sue (3) Entities authorized by law. He averred that since OCT No. claiming to be one of the heirs and successors-in-interest of Rodriguez. whereas the second can be used as a ground for a motion to dismiss based on the fact that the complaint. (e) The Ramon Catholic Church.

In the present case. lack of juridical personality or any other general disqualifications of a party. or interest in." The former refers to a plaintiff's general disability to sue. IVAN VIKTOR (2D. whereas the second can be used as a ground for a motion to dismiss based on the fact that the complaint.. Petitioners.in-interest. Petitioners had no personality to file the said action. the plaintiff in such an action must have legal or equitable title to. All claim “to maintain a deep-seated abiding interest in the affairs of COA. The respondents. Among others. could acquire no better title to the said portions than their predecessors-in-interest. ’13) .CIVIL PROCEDURE REVIEWER19 ISSUE: Whether the respondent’s action is properly based on petitioners’ lack of legal capacity to sue NO. Agan. The term "lack of capacity to sue" should not be confused with the term "lack of personality to sue. a party must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision in order to warrant an invocation of the court’s jurisdiction and justify the exercise of judicial power on his behalf. Philippine International Air Terminals Co. evidently states no cause of action. Public Estates Authority. thus causing them undue financial prejudice. insanity. The action is really one for the removal of a cloud on or quieting of title and according to Article 477 of the Civil Code. the real property which is the subject matter of the action. while the latter refers to the fact that the plaintiff is not the real party. Inc. Moreover. Thus. not being the parties-ininterest. Gangan and Banaria are retired Chairmen. Also. He who is directly affected and whose interest is immediate and substantial has the standing to sue. Standing to sue DOMINGO v. FACTS: Petitioners Domingo. which will have an impact upon the rest of the government bodies subject to its audit supervision. then this fact alone gives them legal standing to institute the instant petition. Petitioners failed to establish any legal or equitable title to. Petitioners now invoke this Court’s judicial power to strike down the COA Organizational Restructuring Plan for being unconstitutional or illegal. should be treated as a matter of transcendental importance. Petitioners contend that the COA Organizational Restructuring Plan is not just a mere reorganization but a revamp or overhaul of the COA. Consequently.” especially in its Organizational Restructuring Plan. on the face thereof. having acquired portions of the Subject Property by assignment. such as on account of minority. 2005) Judicial power is the power to hear and decide cases pending between parties who have the right to sue in courts of law and equity. through the OSG assail the standing of the petitioners to file the present case. petitioners’ legal standing should be recognized and upheld. CARAGUE (456 SCRA 744. in violation of Civil Service Law. and their Complaint should be dismissed for not stating a cause of action. thus. The first can be a ground for a motion to dismiss based on the ground of lack of legal capacity to sue. and Information Technology Foundation of the Philippines v. Jr. they allege that the petitioners: (1) have not shown "a personal stake in the outcome of the case or an actual or potential injury that can be redressed by a MENDEZ. they were deprived of their respective Representation and Transportation Allowances (RATA). the Subject Property so as to justify their right to file an action to remove a cloud on or to quiet title. ISSUE: Whether the complaint stated no cause of action since petitioners had no personality to sue YES. Corollary to this dictum is the principle of locus standi of a litigant. incompetence. not being the real party-in-interest. this Court may assume that the respondent is raising the affirmative defense that the Complaint filed by the petitioners before the trial court stated no cause of action because the petitioners lacked the personality to sue. while Ursal and Cruz are retired Commissioners of COA (Commission on Audit) and the other petitioners are incumbent officers or employees of COA. Commission on Elections where the court ruled that where the subject matter of a case is a matter of public concern and imbued with public interest. These petitioners claim that they were divested of their designations/ranks upon implementation of the COA Organizational Restructuring Plan without just cause and without due process. or legitimate interest in. as concerned taxpayers. Petitioners invoke Chavez v. v. the title to and possession of the Subject Property by petitioners’ predecessorsin-interest could be traced only as far back as the Spanish title of Rodriguez.

FACTS: The petitioners. sought the help of the Supreme Court to order the respondent. They furthered the rights of their generation and the rights of the generations yet unborn to a balanced and healthful ecology. or (4) a party authorized by law or these Rules.CIVIL PROCEDURE REVIEWER20 favorable decision of the Court. (Sec. the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. In Chavez V. ISSUE: Whether the petitioners have standing to sue NO. the Court held that petitioners have legal standing as they have a direct and substantial interest to protect. 1993) Petitioners’ personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. PIATCO. Judicial power is the power to hear and decide cases pending between parties who have the right to sue in courts of law and equity. there were two reasons why petitioners’ standing was MENDEZ. FACTORAN (224 SCRA 792. Article II of the 1987 constitution: “The state shall protect and advance the right .Jr.” Clearly. A representative may be (1) a trustee of an express trust. since the subject matter of the complaint is of common and general interest to all citizens of the Philippines. renewing or approving new TLAs. ISSUE: Whether or not the petitioners have a locus standi YES. By the implementation of the PIATCO contracts. COMELEC. In Information Technology Foundation V. Under Section 16. (2) failed to show any "present substantial interest" in teh outcome of the case. nor (3) may the petitioenrs claim that as taxpayers they have legal standing because nowhere in the petition do they claim that public funds are spent in violation of law. processing. Corollary to this dictum is the principle of locus standi of a litigant. Rule 3) OPOSA v. Locus standi means the right of the litigant to act or to be heard. to cancel all existing Timber License Agreement (TLA) in the country and to cease and desist from receiving. ’13) recognized— (1) the award for the automation of the electoral process was a matter of public concern. they do not have any legal standing to file the instant suit. accepting. PEA. Representative parties Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity. The Petitioners have not shown any direct and personal interest in the COA Organizational Restructuring Plan. a party must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision in order to warrant an invocation of the court’s jurisdiction and justify the exercise of judicial power on his behalf. the Court ruled that the petitioner has legal standing since he is a taxpayer and his purpose in filing the petition is to compel the Public Estate Authority (PEA) to perform its constitutional duties with respect to: (a) the right of the citizens to information on matters of public concern. In Agan. (2) a guardian. V. as taxpayers. There is no indication that they have sustained or are in imminent danger of sustaining some direct injury as a result of its implementation. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal.such were matters of transcendental importance. IVAN VIKTOR (2D. then Secretary of DENR. and (b) the application of a constitutional provision intended to insure the equitable distribution of alienable lands of the public domain among Filipino citizens . a property right zealously protected by the Constitution and such financial prejudice on their part is sufficient to confer upon them the requisite locus standi. He who is directly affected and whose interest is immediate and substantial has the standing to sue. They alleged that the massive commercial logging in the country is causing vast abuses on rainforest. 3. In fact. (3) an executor or administrator. they stand to lose their source of livelihood. asserted a material interest in seeing to it that public funds are properly used. all minors. imbued with public interest. Thus. they admitted that “they do not seek any affirmative relief nor impute any improper or improvident act against the respondents” and “are not motivated by any desire to seek affirmative relief from COA or from respondents that would redound to their personal benefit or gain. and (2) the individual petitioners.

Rule 3 is mandatory. the judicious disposition. Non-joinder or misjoinder of parties is not a ground for dismissal of an action. Without presence of indispensable parties to the suit. There is a lack of authority to act not only as to the absent party but also as to those present. In the meantime. Put a little differently. Indispensable parties An indispensable party is a party in interest without whom no final determination can be had of an action. the minor’s assertion of their right to a sound environment constitutes. The German Embassy replied in the negative. Nature means the created world in its entirety. management. at the same time. minors assert that they represent their generation as well as generation yet unborn. issued a temporary passport to the respondent. or on its own initiative at any stage of the action and on such terms as are just.” Petitioners. every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. but the BOC did not resolve the respondent’s motion. as hereinafter expounded considers the “rhythm and harmony of nature”. SCHEER (421 SCRA 792. The German Embassy in Manila. Such rhythm and harmony indispensably include. We find no difficulty in ruling that they can. file a class suit. NOTE: The failure to join an indispensable party does not result in the outright dismissal of the action. renewal and conservation of the country’s forest.CIVIL PROCEDURE REVIEWER21 of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. The Board of Commissioners (BOC) therefore cancelled respondent’s permanent residence visa. (Sec. for others of their generation and for the succeeding generations. inter alia. the performance of their obligation to ensure the protection of that right for the generations to come. the judgment of the court cannot attain real finality. However. Such a right. and inquired with German Embassy if the respondent was wanted by the German police. offshore areas and other natural resources to the end that their exploration. Domingo assumed office. Rule 3) (2)The presence of all indispensable parties is a condition sine qua non for the exercise of judicial power. land. mineral. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. 11. Needless to say. (Sec. for themselves. and ordered his summary deportation and permanent exclusion from the Philippines and inclusion of his name on the Bureaus Blacklist. (4)Remedy: Parties may be dropped or added by the court on motion of any party. Meanwhile. the District Court of Straubing dismissed the criminal case against the respondent for physical injuries. thereafter. ’13) . the action should be dismissed. Germany that respondent Emil Scheer had police records and financial liabilities in Germany. IVAN VIKTOR (2D. Respondent informed Commissioner Verceles that his passport had been renewed following the dismissal of the said criminal case. The absence of an indispensable party renders all subsequent actions of the court null and void. Strangers to a case are not bound by the judgment rendered by the court. This landmark case has been ruled as a class suit because the subject matter of the complaint is of common and general interest. the non-joinder FACTS: Vice Consul Jutta Hippelein informed the Philippine Ambassador to Bonn. 7. The respondent was neither arrested nor deported. development and utilization be equitably accessible to the present as well as future generations. MENDEZ. The responsibility of impleading all the indispensable parties rest on the petitioner/plaintiff. The BOC still failed to resolve the respondents Urgent Motion for Reconsideration. utilization. waters fisheries. wildlife.  It is when the order of the court to implead the indispensable party goes unheeded may the case be dismissed. not just for several but for all citizens of the Philippines. He reiterated his request for the cancellation of the Summary Deportation Order and the restoration of his permanent resident status. Rule 3) DOMINGO v. petitioner Immigration Commissioner Andrea T. (1)They shall be joined either as plaintiffs or defendants. (3)When an indispensable party is not before the court. 1993) The joinder of indispensable parties under Sec 7. Respondent filed an Urgent Motion for Reconsideration of the order.

the non-joinder of indispensable parties is not a ground for the dismissal of an action. The joinder of indispensable parties is mandatory. Indeed. Lack of authority to act not only of the absent party but also as to those present. and maintained the validity of the deportation order and of the BOC’s Omnibus Resolution. The party's interest in the subject matter of the suit and in the relief sought are so inextricably intertwined with the other parties' that his legal presence as a party to the proceeding is an absolute FACTS: The Heritage Memorial Park is a flagship project of the Bases Conversion Development Authority (BCDA) in Fort Bonifacio. a single proprietorship doing business under the name of Edison Development and Construction. The respondent was arrested and detained on the basis of the Summary Deportation Order of the BOC.CIVIL PROCEDURE REVIEWER22 At about midnight on June 6. Without the presence of indispensable parties to the suit. IVAN VIKTOR (2D. the BCDA entered into Pool Formation Trust Agreement (PFTA) with the PNB and the PEA. BCDA was designated as Project Owner. Subsequently. CA (494 SCRA 535. be claimed by the State that the BOC was not afforded its day in court. 2002. thus. to enjoin the petitioner from proceeding with the respondent’s deportation. The remedy is to implead the non-party claimed to be indispensable. prayed that the CA annul not only the Summary Deportation Order of the BOC but also the latter’s Omnibus Resolution. BUT the non-joinder of indispensable parties is not a ground for dismissal of the action. the Office of the solicitor General has represented the petitioner in the instant proceedings. If the petitioner/plaintiff refuses to implead an indispensable party despite the order of the court. Parties may be added by order of the court on motion of the party or MENDEZ. ’13) on its own initiative at any stage of the action and/or such times as are just. Marine operatives and Bureau of Immigration and Deportation (BID) agents apprehended the respondent in his residence on orders of the petitioner and was held in custody in the BID Manila Office while awaiting his deportation. the judgment of the court cannot attain real finality. which is the BOC. in his Memorandum. The said motion had to be resolved by the BOC as the order sought to be resolved and reconsidered was issued by it and not by the petitioner alone. The powers and duties of the BOC may not be exercised by the individual members of the Commission. the certificate holders of the project organized themselves into a non- . The Court may be curing the defect in this case by adding the BOC as party petitioner. After all. The BOC was an indispensable party to the petition. The responsibility of impleading all the indispensable parties rests on the petitioner/plaintiff. UY v. To implement the project. 2006) An indispensable party is one whose interest will be affected by the court's action in the litigation. is tasked to implement and complete the various engineering works and improvements of Heritage Park. prohibition and mandamus with a prayer for temporary restraining order and writ of preliminary injunction. The petitioner caused the arrest of the respondent in obedience to the said Deportation Order. and order the respondent’s immediate release. it may no longer be necessary to do so taking into account the unique backdrop in this case. PEA. and without whom no final determination of the case can be had. the chairperson of the BOC. as project manager. involving as it does an issue of public interest. The respondent also prayed that the CA issue a writ of mandamus for the immediate resolution of his Urgent Motion for Reconsideration. It cannot. Strangers to a case are not bound by the judgment rendered by the court. Petitioner argues that the respondent’s petition with the CA should have been dismissed for failure to implead the real party-in-interest. PEA and petitioner Uy. as well as the appellate court. ISSUE: Whether the BOC was an indispensable party to the petition YES. The respondent. and PNB as the Trustee. executed a Landscaping and Construction Agreement whereby the petitioner undertook to do all the landscaping. including the construction of a terrasoleum of the Heritage Park. simply because only the petitioner. However. was the respondent in the CA. the latter may dismiss the complaint/petition for the petitioner/plaintiffs failure to comply therefor. The CA issued a TRO. Respondent’s counsel filed with the BID a motion for bail to secure the respondents temporary liberty and filed with the Court of Appeals a petition for certiorari. PEA. the Project Manager. The absence of an indispensable party renders all subsequent actions of the court null and void. and the petitioner in the instant recourse.

as the assignee. PEA then assumed the duties of the terminated party. complete or equitable. and Laperal Dev’t. PEA entered into it in its capacity as Project Manager. however. the Heritage Park Management Corporation (HPMC). and Acsay for (1) annulment of a portion of the Compromise Agreement. as of the date of the filing of the CIAC Case.” This particular civil case was decided on the basis of a Compromise Agreement where Banzon waived all other money claims against the defendants. CIAC ruled in favor of petitioner. IVAN VIKTOR (2D. BUT a necessary party ought to be joined if complete relief is to be accorded to those already parties. and (4) payment to him of nominal damages and attorney’s fees. terminated the construction contracts due to delays and discrepancies. In its absence. The Heritage Park Executive Committee. Should the court find the reason for the omission unmeritorious. Hence this petition ISSUE: Whether HPMC is a real party in interest or an indispensable party YES. Laperal Dev’t. Moreover. ’13) . FACTS: Atty. Petitioner filed a complaint against the PEA before the Construction Industry Arbitration Commission (CIAC) where it sought to recover payment for its progress billings on the said projects. Based on the Construction Agreement. as approved by an equal and coordinate court. Necessary party or proper party A necessary party is not indispensable to the action since a final determination of the case can be had even when a necessary party is not joined. (Sec. thereby depriving it of its right to be heard. only as “Mr. The party's interest in the subject matter of the suit and in the relief sought are so inextricably intertwined with the other parties' that his legal presence as a party to the proceeding is an absolute necessity. (2) collection of attorney’s fees for services in the cases rendered for Imperial. it was held that the Compromise Agreement already covered the plaintiff’s professional services in the questioned cases. Inc. but held Atty. Imperial Dev’t. v. PEA is no longer a party-in-interest. and petitioner was duly informed of these incidents. pursuant to the PFTA. and without whom no final determination of the case can be had. At the time of the filing of the CIAC Case. CA ruled in favor of respondent. According to the provisions of the PFTA. Instead. Rule 3) LAPERAL DEV’T. it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. A party is indispensable if no final determination can be had of an action unless it is joined either as plaintiff or defendant.. PEA ceased to be the Project Manager. Banzon sought to recover attorney’s fees for professional services rendered in several pending and past cases from Laperal. who stands to be benefited or injured by the judgment in the suit. non-profit corporation.. it is now private respondent HPMC. PEA officially turned over to HPMC all the documents and equipment in its possession related to the Heritage Park Project. Banzon entitled to attorney’s fees from Sunbeams Inc. CORP.CIVIL PROCEDURE REVIEWER23 stock. Banzon filed a complaint against Laperal. 9. since it was not subject to the compromise agreement MENDEZ. if known. Sunbeams Convenience Foods. Apparently. Laperal’s Corporation. Rule 3) Non-joinder of necessary party Whenever in any pleading in which a claim is asserted a necessary party is not joined. The CA affirmed the RTC on the issue of jurisdiction. PEA assigned its interests in all the existing contracts it entered into as the Project Manager for Heritage Park to HPMC. now the private respondent herein. 1993) A proper party is one which ought to be a party if complete relief is to be accorded as between those already parties. An indispensable party is one whose interest will be affected by the court's action in the litigation. there cannot be a resolution of the dispute of the parties before the court which is effective.. Subsequently. and Imperial Dev’t Corp. 8. Sunbeams. It held that the issue was cognizable by the CA. and (2) shall state why he is omitted. upon the formation of the HPMC. the PEA would turn over to the HPMC all the contracts relating to the Heritage Park.. (Sec. the pleader shall set forth (1) his name. (3) recovery of P10k adjudged to be payable to him as attorney’s fees by Ascario Tuason. CA (223 SCRA 261. Through a Deed of Assignment. RTC dismissed the case on the ground that it had no jurisdiction to annul the Compromise Agreement. Laperal Dev’t Corp. referring to Sunbeams Inc. Respondent appealed to the CA on the ground that CIAC had no jurisdiction over the subject matter since HPMC was not impleaded as a party.

However. A party is not joined when is supposed to be joined but is not impleaded in the actions. ’13) . It depends upon the attendant facts. Permissive joinder of parties Parties may be joined in as plaintiffs or defendants in a single complaint when connection with any proceedings in which he may have no interest. was directly obligated to him for attorney’s fees due him for his handling of the case for Sunbeams. Any claim against a misjoined party may be severed and proceeded with separately. Sunbeams should have been joined as party defendant in order that the judgment of the lower court could legally affect it. (3) Such joinder is not otherwise proscribed by the Rules on jurisdiction and venue. whereby Sunbeams was not a defendant. Rule 3) Effects of misjoinder and non-joinder of parties A party is misjoined when he is made a party to the action although he should not be impleaded. Banzon and the defendants represented by Laperal. Rule 3) NOTE: Failure to obey the order of the court to drop or add a party is a ground for the dismissal of the complaint. since Sunbeams was not a party to this agreement. Requisites (1) The subject matter of the controversy is one of the common or general interest to many persons (2) The persons are so numerous that it is impracticable to join all as parties. the court could still validly proceed with the case because Sunbeams was not an indispensable party but only a proper party. 3. (Sec. Rule 17) Class suits A class suit is an action where one or more may sue for the benefit of all. Thus. or series of (4) The representative sues or defends for the benefit of all. Sunbeams Inc. Banzon’s claim for attorney’s fees pertaining to Sunbeams was waived by him not by virtue of the Compromise Agreement.” was not named as a party defendant.  An action does not become a class suit merely because it is designated as such in the pleadings. including those not impleaded in his complaint. being the President of the said company. But even if it was not impleaded.” ISSUE: Whether Sunbeams Inc. there is no evidence that Sunbeams and Laperal are one and the same person. Neither misjoinder nor non-joinder of parties is a ground for dismissal.. 6. is liable to pay attorneys fees NO. However. A party is indispensable if no final determination can be had of an action unless it is joined either as plaintiff or defendant. it could not be affected by it. What militates against his claim is his own judicial admission that he had waived his attorney’s fees for the cases he had handled from 1974-1981 for Laperal and his corporations. (1) Any right to relief arises out of the same transaction transactions. (Sec.. (Sec. which was referred to in the complaint as “Mr. A proper party is one which ought to be a party if complete relief is to be accorded as between those already parties. Parties may be dropped or added by order of the court (1)on motion of any party or on its own initiative (2)at any stage of the action and (3) on such terms as are just. The Compromise Agreement upon which the decision of the court was based was between plaintiff Atty.CIVIL PROCEDURE REVIEWER24 which waived all money claims against defendants named therein. CONSOLIDATED BANK (58 SCRA 559. NOTE: Any party in interest shall have the right to intervene to protect his individual interest. 12. IVAN VIKTOR (2D. Laperal’s corporation. 1974) (2) There is a question of law or fact common to all such plaintiffs or to all such defendants. (Sec. BUT the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in MENDEZ. (3) The parties bringing the class suit are sufficiently numerous and representative as to fully protect the interests of all concerned. Rule 3) MATHAY v. having been referred to only as “Mr. The private respondent believed that Laperal. 11. Laperal’s Corp.

withdrew. if any. and to join the plaintiffsappellants on record. it has been said. and the complaint. who was incompetent. the plaintiff-appellants and other CMI stockholders were again excluded. when plaintiffsappellants and other CMI stockholders were not notified thereof. one of the original plaintiffs. Reyes and Dionisio. the existence of a subject matter of common interest. after some months. Even if it be assumed. and the existence of a class and the number of persons in the alleged class. That the subject matter of the controversy be one of common or general interest to many persons. The interest that ppellants. behalf of CMI subscribing stockholders" but did not state the number of said CMI subscribing stockholders so that the trial court could not infer. Four CMI stockholders filed a motion to intervene. much less make sure as explicitly required by the sufficiently numerous and representative in order that all statutory provision. plaintiffsappellants and stockholders in the Consolidated Mines. of the Rules of Court in. CFI granted the motion to dismiss. each one had a right. (CBTC). the Board of Organizers executed the Articles of Incorporation of the CBTC which reflected that only the six (6) individual defendants paid and subscribed to the initial 50. and the CMI stockholders had in the subject matter of this suit — the portion of stocks offering of the Bank left unsubscribed by CMI stockholders who failed to exercise their right to subscribe on or before January 15. MENDEZ. in order that the court might be enabled to determine whether the members of the class are so numerous as to make it impracticable to bring them all before the court. By . hence the appeal. that the appellants and the CMI stockholders suffered wrongs that had been committed by similar means and even pursuant to a single plan of the Interim Board of Organizers of the Bank. An action does not become a class suit merely because it is designated as such in the pleadings. The complaint in the instant case explicitly declared that the plaintiffsappellants instituted the "present class suit under Section 12. ’13) ISSUE: Whether the instant action could be maintained as a class suit NO. illegally creating the Position of Director filled up by a defendant. for the sake of argument. Sevilla. However. The plaintiffs-appellants filed this complaint as a class suit to annul and transfer the subscription and shareholdings of the defendants to them and other stockholders who had been denied the right to subscribe. Further. The defendants-appellee filed a supplemental ground for their motion to dismiss for the reason that the stockholders who had abstained at their regular annual meeting unanimously ratified and confirmed all the actuations of the organizers. The right to preemption. the wrong suffered by each of them would constitute a wrong separate from those suffered by the other stockholders. 1963 — was several. Inc. to contrast the number appearing on the record with the number in the class and to determine whether claimants on record adequately represent the class and the subject matter of general or common interest. Some subscribers to the capital stock of the Bank filed separate manifestations that they were opposing and disauthorizing the suit of plaintiffs-appellants. Each one of the appellants and the CMI stockholders had determinable interest. is personal to each stockholder. No one of them had any right to. plaintiffs and intervenors. providing that all CMI stockholders are entitled to subscribe to the capital stock of the proposed bank at par value. Whether the suit is or is not a class quit depends upon the attending facts. and to the same extent and amount as their shareholdings in CMI. and those wrongs alone would not create that common or general interest in the subject matter of the controversy as would entitle any one of them to bring a class suit on behalf of the others. to wit. Plaintiffs-apellants and other stockholders accomplished and filed their respective pre-incorporation agreements and paid the subscription. or other pleading initiating the class action should allege the existence of the necessary facts. the stock to which another was entitled. IVAN VIKTOR (2D. FACTS: Mathay. or any interest in. Defendants filed a motion to dismiss on the ground that the plaintiffs had no legal standing or capacity to institute the alleged class suit. When the paid-in capital stock was increased.CIVIL PROCEDURE REVIEWER25 Requirements of a class suit: 1. (CMI) alleged that the latter passed a resolution to organize Consolidated Bank & Trust Co. only to his respective portion of the stocks. That such persons be so numerous as to make it impracticable to bring them all to the court. Rule 3. They alleged as well that some of the defendants falsely certified to the calling of a special stockholders' meeting. and 2. the defendants increased the number of Directors.000 shares. Circular letters with Pre-Incorporation Agreements to subscribe were sent to CMI stockholders. not common or general in the sense required by the statute.

If the claim does not survive. Rule 3) Example: A pedestrian injured in the collision of two vehicles may sue the vehicle owners or drivers in the alternative if he is uncertain whose vehicle caused the injury. (3) Unknown defendant Whenever the identity or name of a defendant is unknown. the court shall determine whether the claim is extinguished by the death. he may be sued Service upon entity without juridical personality. the court shall dismiss the case. and (2) to give the name and address of his legal representative or representatives. (Sec. 10. Rule 3) Service upon defendant whose identity or whereabouts are unknown. Rule 14) Death of party. or the like. ’13) . BUT such service shall not bind individually any person whose connection with the entity has. In the answer of such defendant the names and addresses of the persons composing said entity must all be revealed. (Sec. (4) Entity without juridical personality as defendant When two or more persons not organized as an entity with juridical personality enter into a transaction. and the claim is not thereby extinguished. (2) whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry. by leave of court. 8. (Sec. If the claim survives. substitution The court shall forthwith order said legal representative or representatives to appear (1) the defendant is designated as an unknown owner. 13. the pleading must be amended accordingly. and no one of them could maintain on behalf of others similarly situated a representative suit. heir. (Sec. devisee. Rule 3) (1) he may be made a defendant and (2) the reason therefor shall be stated in the complaint. (Sec. or (2) upon the person in charge of the office or place of business maintained in such name. or (2) by such other designation as the case may require. In that case. Rule 3) (2) Alternative defendant Where the plaintiff is uncertain against who of several persons he is entitled to relief. be effected by publication in a newspaper of general circulation and in such places and for such time as the court may order in any action where (1) to inform the court within thirty (30) days after such death of the fact thereof. upon due notice. action of court Upon receipt of notice of death. Service may. been severed before the action was brought.— Service may be effected upon all the defendants by serving upon (1) any one of them. IVAN VIKTOR (2D. Rule 14) Defendants (1) Unwilling co-plaintiff An unwilling co-plaintiff is a party who is supposed to be a plaintiff but whose consent to be joined as a plaintiff cannot be obtained. the right of each of the appellants to subscribe to the waived stocks was personal. Failure of counsel to comply with this duty shall be a ground for disciplinary action. 14. (Sec.CIVIL PROCEDURE REVIEWER26 analogy. although a right to relief against one may be inconsistent with a right of relief against the other. duty of counsel (1) If plaintiff dies during pendency of the case Whenever a party to a pending action dies. it shall be the duty of his counsel (1) as the unknown owner. as when he refuses to be a party to the action. they may be sued under the name by which they are generally or commonly known. 14. NOTE: This duty is mandatory. When his identity or true name is discovered. he may join any or all of them as defendants in the alternative. Upon notice of death. or MENDEZ. 15.

The court charges in procuring such appointment. to procure the appointment of an executor or administrator for the estate of the deceased if: no legal representative is named by the counsel for the deceased party or ii. 20. 2005) Non-compliance with the rule on substitution would render the proceedings and judgment of the trial court infirm because the court acquires no jurisdiction over the persons of the legal representatives or of the heirs on whom the trial and the judgment would be binding. The court may order the opposing party. Petalcorin replaced the original counsel and filed a motion to expunge the complaint from the record and nullify all court proceedings on the ground that private respondents failed to specify in the complaint the amount of damages claimed as needed to pay the correct docket fees. nonsubstitution of the deceased does not deprive the court of jurisdiction (Florendo Jr. non-payment of the correct docket fee is jurisdictional. The latter shall immediately appear for and on behalf of the deceased. ISSUE: Whether the proceedings in the trial court are infirm YES. Rule 3) A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person. No formal substitution of the parties was effected within thirty (30) days from date of death of Bertuldo. the action is for recovery of money arising from contract.  The heirs of the deceased may be allowed to be substituted for the deceased. if the one so named shall fail to appear within the specified period.   i. the purpose behind the rule on substitution is the protection of the right of every party to due process. Rule 3) Effect of non-substitution of deceased party Non-compliance with the rules on substitution of a deceased party renders the proceedings of the trial court infirm because it acquired no jurisdiction over the person of the legal representative of heirs of the deceased. FACTS: Respondents filed a complaint against Bertuldo for recovery of ownership of the premises leased by the latter. (Sec. express or implied. (Sec. and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death MENDEZ. However. in an ejectment case. MELICOR (455 SCRA 460. Bertuldo died without completing his evidence during the direct examination. v. Rule 3 of the Rules of Court. may be recovered as costs.CIVIL PROCEDURE REVIEWER27 and be substituted within a period of thirty (30) days from notice. as required by Sec. Non-compliance with the rule on substitution would render the proceedings and judgment of the trial court infirm because the court Examples of actions which survive the party’s death        Actions arising from delict Actions based on tortuous conduct of the defendant Actions to recover real and personal property Actions to enforce a lien on property Actions to quieting of title with damages Ejectment case Actions for recovery of money (2) If defendant dies. NOTE: The heirs do not need to first secure the appointment of an administrator. Colona) HEIRS OF BERTULDO HINOG v. effect of his death depends upon the nature of the pending action When action will not be dismissed The action will be allowed to continue until entry of final judgment when: i. 16. ii. Atty. within a specified time. Needless to stress. without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. and that under Manchester doctrine. ’13) . 16. IVAN VIKTOR (2D. Bertuldo alleged ownership of the property by virtue of a Deed of Absolute Sale. It is to ensure that the deceased would continue to be properly represented in the suit through the duly appointed legal representative of his estate. if defrayed by the opposing party.

Paulino Calanday intruded upon Acosta’s land without the former’s permission and built a beerhouse on it. is a real action and as such survives the death of Faustino Acosta. to have substituted for the deceased. Strictly speaking. Mere failure to substitute for a deceased plaintiff is not a sufficient ground to nullify a trial court's decision. the issue of substitution cannot be held as a ground of nullify the court’s decision. he executed a Deed of Sale for a parcel of land in favor of petitioners. To secure the payment of the obligation. DE LA CRUZ v. the government converted the parcel of land in which the premises in dispute are included into residential land. Pedro Joaquin. in view of Joaquin’s death. The RTC issued a Decision in Joaquin’s favor. the spouses De la Cruz. Thus. respondent had no right to collect rentals therefrom. noncompliance or belated formal compliance with the Rules cannot affect the validity of a promulgated decision. like any action for recovery of real property. ACOSTA (2006) The instant action for unlawful detainer. Calanday then conveyed the beerhouse to Juanita Roces who agreed to pay a P60 monthly rental to Acosta. ISSUES: Whether the trial court lost jurisdiction over the case upon the death of Pedro Joaquin NO. Petitioner reasoned that since the land belonged to the government. Petitioner avers that the case has become moot and academic since he was not informed of the death of respondent and no proper substitution of parties was instituted. noncompliance or belated formal compliance with the Rules cannot affect the validity of a promulgated decision. as when the right of the representative or heir is recognized and protected. The alleging MENDEZ. petitioner in the present case. dismissed. CA sustained the ruling of the trial court. payable after five (5) years. ’13) ISSUE: Whether the case has become moot and academic due to the death of respondent and the failure to substitute his heirs as parties to the case . JOAQUIN (464 SCRA 576. Spouses De la Cruz contended that this document was merely an accommodation to allow the repurchase of the property. It further ordered the substitution by legal representatives. FACTS: Pedro Joaquin alleged that he had obtained a P9. party must prove that there was an undeniable violation of due process. LIMBAUAN v.000 loan. She then conveyed the premises to Charles Limbauan. Unfortunately. Respondent then revived his previous suit of unlawful detainer against petitioner. Mere failure to substitute for a deceased plaintiff is not a sufficient ground to nullify a trial court's decision. The alleging party must prove that there was an undeniable violation of due process. petitioner stopped paying rentals so respondent filed a case for unlawful detainer against respondent. Acosta died while the case was still on appeal to the CA.CIVIL PROCEDURE REVIEWER28 acquires no jurisdiction over the persons of the legal representatives or of the heirs on whom the trial and the judgment would be binding. Hence the suit was never continued. from petitioners. The records of the present case contain a Motion for Substitution of Party Plaintiff filed before the CA. and denied reconsideration. the rule on the substitution by heirs is not a matter of jurisdiction. It held that respondent had made a valid tender of payment on two separate occasions to exercise his right of repurchase. declaring that the parties had entered into a sale with a right of repurchase. Acosta remonstrated so Calanday filed a criminal case for Unjust Vexation and Malicious Mischief. it was however. There being no violation of due process. petitioners were required to reconvey the property upon his payment. A few months later. Accordingly. FACTS: Faustino Acosta took possession of a parcel of government land which was originally intended to be used as a site for a leprosarium. when due process is not violated. a right that he failed to exercise. as when the right of the representative or heir is recognized and protected. Petitioner’s assert the RTC lacked jurisdiction since the respondent died during the pendency of the case and no substitution was made. The parties also executed another document entitled Kasunduan which allegedly showed the Deed of Sale to be actually an equitable mortgage. It was deemed granted and the heirs. Eight years later. He subsequently registered the land and built a fence around it. IVAN VIKTOR (2D. but a requirement of due process. 2005) When due process is not violated.

the decision rendered shall bind his successor-in-interest. or otherwise ceases to hold office during its pendency. (2) law. without prejudice to such other sanctions as the court may impose. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent. ’13) . Moreover. is satisfied that the party is one who has no money or property sufficient and available for food. the proper docket and other lawful fees shall be assessed and collected by the clerk of court. Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial court. He may be heard in person or through a representative duly designated by him.  (2) dies. 22.CIVIL PROCEDURE REVIEWER29 NO. that there is a substantial need for continuing or maintaining the action. resigns. (Sec. Rule 3) Notice to Solicitor General The court. if not initiated by the Solicitor General shall be summarily dismissed. (3) it is shown within thirty (30) days after the successor takes office or such time as the court may grant. (Sec. Rule 3) Incompetency or incapacity If a party becomes incompetent incapacitated. IVAN VIKTOR (2D. in its discretion. the court. The instant action for unlawful detainer. (6) rules (7) or regulations. (3) ordinance. (4) executive order. and (2) of transcripts of stenographic notes which the court may order to be furnished him. may require the appearance of the Solicitor General in any action involving the validity of any (1) treaty. Rule 3) NOTE: Actions filed in the name of the Republic or its agencies and instrumentalities. is a real action and as such survives the death of Faustino Acosta. (Sec. 17. (5) the party or officer to be affected. the present case cannot be rendered moot despite the death of respondent. Hence. (Sec. or upon motion  with notice. unless expressly assenting thereto. may allow the action to be continued by or against the incompetent or incapacitated person assisted by his legal guardian or guardian ad litem. 21. 19. (5) presidential decree. Rule 3) MENDEZ. the action may be continued by or against the original party. like any action for recovery of real property. If the payment is not made within the time fixed by the court. It is well settled that the failure of counsel to comply with his duty under Section 16 to inform the court of the death of his client and no substitution of such party is effected. shelter and basic necessities for himself and his family. unless the court otherwise provides. has been given reasonable notice of the application therefor and accorded an opportunity to be heard. (Sec. execution shall issue or the payment thereof. claim or defense as an indigent if the court. Death or separation of party who is a public officer An action may be continued by or against the successor of the deceased public officer when (1) a public officer is a party in an action in his official capacity and Indigent party A party may be authorized to litigate his action. and that (4) the successor adopts or continues or threatens to adopt or continue the action of his predecessor. unless the court upon motion directs the person to whom the interest is transferred (1) to be substituted in the action or (2) joined with the original party. Rule 3)  Transfer of interest In case of any transfer of interest. His heirs have taken his place and now represent his interests in the instant petition. Such authority shall include (1) an exemption from payment of docket and other lawful fees. 18. If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property. upon an ex parte application  and hearing. will not invalidate the proceedings and the judgment thereon if the action survives the death of such party.

(Sec. at the election of the plaintiff. 4. It relates only to the place of the suit and not to the jurisdiction of the court. Rule 4) Venue of personal actions Personal actions may be commenced and tried where the plaintiff or any of the principal plaintiffs. or interest therein. or a portion thereof. IVAN VIKTOR (2D.” and in its Publisher’s Notes the editorial. it does not.” which exposed alleged anomalies by key officials in the Regional Office of the Venue of real actions Real action—action affecting title to or possession of real property. Rule 4) (a) Where a specific rule or law provides otherwise DIAZ v. is situated.CIVIL PROCEDURE REVIEWER30 VENUE OF ACTIONS (RULE 4) Venue defined Venue is the place or the geographical area where an action is to be filed and tried. published in its front page the news article captioned “6Point Complaint Filed vs. a newspaper of general circulation in Cotabato City. or petitioner and respondent May be conferred by the act or agreement of the parties Not a ground for motu proprio dismissal. Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved.  Venue becomes jurisdiction only in a criminal case. at the election of the plaintiff. In rem Actions affecting the property of the defendant in the Philippines shall be filed where the property is located. “Toll of Corruption. is situated. Macumbal. after all. When rule not applicable This Rule shall not apply— (a) In those cases where a specific rule or law provides otherwise. or (2) the place where the alleged libelous articles were printed and first published Venue in an action arising from libel is only mandatory if it is not waived by defendant. or (b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. Rule 4) Venue of actions against non-residents If any of the defendants (1) does not reside and is not found in the Philippines. Thus. found. or where the property or any portion thereof is situated or found. (Sec. except in summary procedure JURISDICTION The authority to hear and determine a case Matter of substantive law Establishes a relation between the court and the subject matter Fixed by law and cannot be conferred by agreement of the parties Lack of jurisdiction over the subject matter is a ground for a motu proprio dismissal where the plaintiff resides. or where the defendant or any of the principal defendants resides. objections to venue in civil actions arising from libel may be waived. ADIONG (219 SCRA 631. In the case of a non-resident defendant it may be commenced and tried where he may be MENDEZ. Quasi in rem Actions which affect the personal status of the plaintiff are to be filed at the residence of the plaintiff. the action may be commenced and tried in the court of the place  The parties can waive the venue of a case. involve a FACTS: The Mindanao Kris.   Distinguished from jurisdiction VENUE The place where the case is to be heard or tried A matter of procedural law Establishes a relation between plaintiff and defendant. or any property of said defendant located in the Philippines. 2. 1. (Sec. or a portion thereof. 1993) An offended party who is at the same time a public official can only institute an action arising from libel in 2 venues: (1) the place where he holds office. and (2) the action affects the personal status of the plaintiff. Real actions shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved. ’13) .

the public officers alluded to instituted separate criminal and civil complaints in the City Prosecutor’s Office and RTC in Marawi City. Otherwise. However. In the absence of qualifying or restrictive words. pursuant to Rule 4. Thus. As such. 1. petitioner sent a letter to respondent requesting an adjustment in the contract price. 4." "waiving for this purpose any other venue. and petitioner incurred expenses more than the original contract price. The respondent judge denied petitioner’s Motion to Dismiss for lack of merit. Diaz. Petition is dismissed for lack of merit. petitioner is not correct. a civil complaint for damages was filed.S. Moreover. as owner and manager of petitioner J. or (2) the place where the alleged libelous articles were printed and first published." or words of similar import. It is clear that an offended party who is at the same time a public official can only institute an action arising from libel in 2 venues: (1) the place where he holds office.CIVIL PROCEDURE REVIEWER31 DENR.D. Petitioner had several meetings with respondent's representatives during which he informed them of his difficulty in meeting his obligations under the contract due to the peso devaluation. ISSUE: Whether the venue was improperly laid NO. entered into a Construction Agreement with respondent Social Security System (SSS) for the construction of a fourstorey building in Baguio City which will serve as respondent's branch office. 360. (Art. The case is remanded to the court of origin for further proceedings. venue in an action arising from libel is only mandatory if it is not waived by defendant. Responsive pleadings are those which seek affirmative relief and set up defenses. the venue in a motion to dismiss cannot truly be said to have been improperly laid since. for all practical intents and purposes. such as "exclusively. Wellsettled is the rule that improper venue may be waived and such waiver may occur by laches. as long as the agreement is: (1) In writing. (2) Made before the filing of the action. the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised." "shall only" preceding the designation of venue. (b) Where parties have validly agreed in writing on the exclusive venue thereof before the filing of the action The parties may agree on a specific venue which could be in a place where neither of them resides. Legaspi Construction. 2008) It must be shown that such stipulation as to venue is exclusive. After several failed meetings. "to the exclusion of the other courts. provides that objections to improper venue must be made in a motion to dismiss before any responsive pleading is filed. Sec. unless and until the defendant objects to the venue in a motion to dismiss prior to a responsive pleading. RPC) Venue was indeed improperly laid. ’13) . relating as it does to jurisdiction of the court over the person rather than the subject matter. Rule 16. LEGASPI v. Thereafter. Dollar in 1997. the stipulation should be deemed as merely an agreement on an additional forum. Having already submitted his person to the jurisdiction of the court. and (3) Exclusive as to the venue. publisher-editor. Not one of the respondents held office in Cotabato City nor they held their principal office in that province. The City Prosecutor’s Office dismissed the criminal case. after all. he had already submitted himself to the jurisdiction of trial court when he filed his Answer. improper venue must be seasonably raised. who executed a sworn statement attesting the alleged corruption were named respondents. although mandatory in the instant case. Furthermore. is nevertheless waivable. He vehemently argued that the complaint should have been filed in Cotabato City and not in Marawi City. objections to venue in civil actions arising from libel may be waived. thus the cost of imported materials which petitioner contracted to use and install on the project shot up. Diaz filed an answer. The laying of venue is procedural rather than substantive. of the Rules of Court. Diaz. Venue relates to trial and not jurisdiction. REPUBLIC (559 SCRA 410. The Philippine peso collapsed as against the U. it may be deemed waived. Unfortunately. and Pagandaman. petitioner may no longer object to the venue which. which was denied by MENDEZ. Legaspi. then later moved for the dismissal of the action for damages on the ground that the trial court did not have jurisdiction over the subject matter. IVAN VIKTOR (2D. Sec. as defendant should have timely challenged the venue laid in Marawi City in a motion to dismiss. not as limiting venue to the specified FACTS: Jesusito D. then. Subsequently. involve a question of jurisdiction. it does not.

now Court of Appeals. 1986. ISSUE: Whether the stipulation as to venue in this case is controlling YES. It was respondent's argument that the Construction Agreement provided that all actions may be brought before the proper court in Quezon City and that petitioner waived any other venue. Instead of filing an answer. such as "exclusively." "shall only" preceding the designation of venue. and allows the trial to be held and a decision to be rendered. the RTC issued an order requiring counsel for petitioner to confer with respondent trial judge on the matter of venue. In the absence of qualifying or restrictive words. filed before the RTC. Contrary to petitioner's contention. based on the allegations of the complaint. petitioner agreed to file any action in Quezon City “expressly waiving any other venue. and damages due to private respondent's refusal to have said deeds of sale set aside upon petitioner's demand. contends that the case does not arise from the Construction Agreement. hence. Pangasinan. The petition for certiorari with the Court of Appeals was granted. touches more of the convenience of the parties rather than the substance of the case. Antipolo. Pangasinan.CIVIL PROCEDURE REVIEWER32 respondent. the trial court dismissed the complaint on the ground of improper venue. ISSUE: Whether or not the trial court can preempt the defendant’s prerogative to object to improper venue by motu propio dismissing the case NO. The terms clearly stipulate exclusively the venue where actions arising from the Construction Agreement should be filed. not as limiting venue to the specified place. a complaint against private respondent Rufino de Guzman for the annulment of two deeds of sale involving a parcel of riceland situated in Barrio Estanza. Petitioner appealed to the Intermediate Appellate Court.” This connotes exclusivity of the designated venue. however. IAC MENDEZ. (195 SCRA 641. 1993) Where defendant fails to challenge timely the venue in a motion to dismiss as provided by Section 4 of Rule 4 of the Rules of Court. respondent. obviously attributable to its inability to distinguish between jurisdiction and venue. filed a Motion to Dismiss on the grounds that venue was improperly laid and petitioner had no cause of action. Hence. Venue relates to trial not to jurisdiction. the surrender of the produce thereof. the allegations in his complaint indubitably show that his cause of action arose from the Construction Agreement. "to the exclusion of the other courts. represented by the OSG. It relates to the jurisdiction of the court over the person rather than the subject matter. which in its decision of April 11. Lingayen. while Waiver of improper venue (1) Express waiver Made through written agreement (2) Implied waiver Made through failure to seasonably object to improper venue in a motion to dismiss or in the answer DACOYCOY v. Venue is procedural rather than substantive. that petitioner's action is a real action as it sought not only the annulment of the deeds of sale but also the recovery of ownership of the subject parcel of riceland located in Estanza. Rizal. petitioner filed a civil action with the RTC. It found. After said conference. the present petition for review on certiorari under Rule 45 of the Rules of Court. it may be filed in Makati City. IVAN VIKTOR (2D. the stipulation should be deemed as merely an agreement on an additional forum. The motu proprio dismissal of petitioner's complaint by respondent trial court on the ground of improper venue is plain error. As regards restrictive stipulations on venue. In the Construction Agreement. Jurisdiction treats of the power of the court to decide a case on the merits." or words of similar import. ’13) . affirmed the order of dismissal of his complaint. Lingayen. Respondent moved to reconsider the Order but this was denied by the RTC. Before summons could be served on private respondent as defendant therein. The RTC denied respondent's Motion to Dismiss. he cannot on appeal or in a special action be permitted to challenge belatedly the wrong venue." "waiving for this purpose any other venue. Petitioner. jurisprudence instructs that it must be shown that such stipulation is exclusive. FACTS: Petitioner Jesus Dacoycoy. which is his place of residence. which is outside the territorial jurisdiction of the trial court. which is deemed waived. Hence. Provisions relating to venue establish a relation between the plaintiff and the defendant and not between the court and the subject matter.

Pleadings not allowed in a petition for writ of amparo or habeas data The following are prohibited motions in the mentioned petitions: (1) counterclaim. Indeed.    MENDEZ. in inferior courts as well as in the courts of first instance (now RTC). and (5) pleadings in intervention Parts of a pleading (1) Caption— The caption sets forth  Pleadings are not supposed to allege conclusions. These and conclusions may be subject of a motion to strike. It must only aver ultimate facts. Rule 16) (2) Affirmative defense in answer— By impleading improper venue as an affirmative defense in the answer (Sec. (2) cross-claim. Dismissing the complaint on the ground of improper venue is certainly not the appropriate course of action at this stage of the proceeding. 1. and allows the trial to be held and a decision to be rendered. ’13) . and (4) answers. or the facts essential to a party’s cause of action or defense. not its form. but in subsequent pleadings. (3) cross-claim pleaded in the answer. IVAN VIKTOR (2D. They shall all be named in the original complaint or petition. Rule 6) Pleadings allowed under Summary Procedure The only pleadings under the Rules on Summary Procedure are: (1) complaint. Rule 6) (4) reply. An answer may be responded to by a reply. (2) The title of the action. All pleadings shall be liberally construed. Rule 15) What allowed The claims of a party are asserted in a (1) complaint. 1[c]. statements or admissions made in his pleadings and cannot be permitted to take a contradictory position. he cannot on appeal or in a special action be permitted to challenge belatedly the wrong venue. it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. may be waived expressly or impliedly. (Sec. The intention of the pleader is the controlling factor in construing a pleading and should be read in (1) The name of the court. (2) counterclaim. (2) compulsory counterclaim.CIVIL PROCEDURE REVIEWER33 venue deals on the locality. Rule 16) accordance with its substance. The title of the action indicates the names of the parties. 1. Where defendant fails to challenge timely the venue in a motion to dismiss as provided by Section 4 of Rule 4 of the Rules of Court. (3) third-party complaint. or (5) complaint-in-intervention.2. not in the pleadings. 6. The defenses of a party are alleged in the answer to the pleading asserting a claim against him. PLEADINGS (Substantial Requirements) In general Pleadings defined Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. Their respective participation in the case shall be indicated. (4) third (fourth. it was grossly erroneous for the trial court to have taken a procedural short-cut by dismissing motu proprio the complaint on the ground of improper venue without first allowing the procedure outlined in the Rules of Court to take its proper course. (3) cross-claim.  Parties are strictly by the allegations. which is deemed waived. Distinguished from motion A motion is an application for relief other than by a pleading.)—party complaint. How to question improper venue (1) Motion to dismiss— By filing a motion to dismiss before a responsive pleading (answer) on the ground of improper venue (Sec. particularly as venue. the place where the suit may be had. (Sec. etc. Evidentiary matters are to be presented during the trial of the case. (Sec.

(Sec. A paragraph may be referred to by its number in all succeeding pleadings. Petition for Certiorari. Paragraphs of the answer addressed to several causes of action. (4) Verification— General Rule: Pleadings NEED NOT be under oath. or Mandamus. Rule 7) (3) Signature and address— MENDEZ. or (4) fails to promptly report to the court a change of his address. to appropriate Counsel shall be subject disciplinary action if: (1) he deliberately files an unsigned pleading.” and so on for the others. (c) Relief. (3) alleges scandalous or indecent matter therein. • The relief or prayer does not constitute a part of the statement of the cause of action.—Every pleading shall be dated. Exception: when otherwise specifically required by law or rule. (2) the allegations of the party’s claims or defenses. Every pleading must be (1) signed by the party representing him. the court may. The court may grant a relief not prayed for as long as the relief is warranted by the allegations of the complaint and the proof. (d) Date. and or counsel (2) state in either case his address which should not be a post office box. The follow pleadings must be verified:  Petition to take deposition before action. (Sec 3. each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. (2) that to the best of his knowledge. NOTE: It is NOT the caption. verified or accompanied by affidavit. (2) The Body— The body of the pleading sets forth (1) its designation. IVAN VIKTOR (2D.—The allegations in the body of a pleading shall be i.  Petition for relief from judgment. a (3) the relief prayed for. Paragraphs in the answer addressed to one of several causes of action in the complaint shall be prefaced by the words  “answer to the first cause of action” or “answer to the second cause of action” and so on. The signature of counsel constitutes certification (1) that he has read the pleading. in its discretion. allow such deficiency to be remedied if • • it shall appear that the same was due to mere inadvertence and not intended for delay. Prohibition. Rule 7) NOTE: Counsel’s authority and duty to sign a pleading are personal to him. BUT it may add a general prayer for such further or other relief as may be deemed just or equitable. he MAY NOT delegate it to just any person. Application for Preliminary Injunction or Temporary Restraining Order. •    Appeal by Certiorari from CA to SC.” of the second by “second cause of action. ’13)  . information. (b) Headings— For joined actions: The statement of the first shall be prefaced by the words “first cause of action.CIVIL PROCEDURE REVIEWER34 (3) The docket number if assigned. and (4) the date of the pleading.  However. 2. divided into paragraphs so numbered as to be readily identified. and (3) that it is not interposed for delay.—The pleading shall specify the relief sought. and belief there is good ground to support it. ii. (2) signs a pleading in violation of this Rule. (a) Paragraphs. Application for Appointment of a Receiver. but the allegations which determine the nature of the action. they shall be prefaced by words to that effect. A blanket authority entrusted to just anyone is void since it will amount to signing by unqualified persons. Hence. An unsigned pleading produces NO legal effect.

no such other action or claim is pending therein. Petition to declare competency of ward.  Answer to written interrogatories. (3) lacks a proper verification Remedies  The court may order the correction of the pleading if lacking verification  The court may also acct on the pleading despite failure to properly verify if under the circumstances.  Denial of allegations of usury. as well as a ground for the summary dismissal of the case with prejudice. Application for Writ of habeas corpus. to the best of his knowledge.  Affidavit of third-party claim on levied property. The certification against forum shopping is a sworn statement by the plaintiff or principal party certifying in an initiatory pleading:      The following need not be verified but must be under oath:  Denial of genuineness and dues execution of actionable document.CIVIL PROCEDURE REVIEWER35     All pleadings of forcible entry and unlawful detainer. Petition for appointment of general guardian. information and belief. he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Petition of guardian for leave to sell or encumber property of estate. A certification signed by the counsel is a defective certification and is a valid cause for dismissal. tribunal or quasijudicial agency and. to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same relief. (b) if there is such other pending action or claim. strict compliance with the rules may be dispensed with  The absence of verification may be corrected by requiring an oath. (5) Certification against forum shopping— Forum shopping is the filing of multiple suits in different courts. a cause for administrative sanctions. ’13) . a complete statement of the present status thereof.  Proof required of redemptioner.” (2) upon “knowledge.  Complaint with prayer for preliminary attachment. BUT This rule must be liberally interpreted:  Failure of parties to sign because they were abroad may be a reasonable cause to exempt the parties from compliance with the requirement  Signing by one of the petitioners was held to be substantial compliance (1) that the affiant has read the pleading and (2) that the allegations therein are true and correct of his personal knowledge or based on authentic records. NOTE: The certification must be executed by the party NOT the counsel. either simultaneously or successively. IVAN VIKTOR (2D.  Answer to request for admission.  Motion to set aside order of default. NOTE: A pleading required to be verified shall be treated as an unsigned pleading if it contains a verification (1) based on “information and belief. Petition for change of name.  It is an act of malpractice  The same shall constitute direct contempt. unless the latter is authorized specifically to do so.  Motion to dissolve preliminary injunction on ground of irreparable damage to movant while adverse party can be fully compensated  Complaint for replevin:  Claim against estate of decedent. Petition for voluntary dissolution of corporation.  Motion for new trial. and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending.” or MENDEZ. Petition to correct entries in civil registry. How pleading is verified A pleading is verified by an affidavit (a) that he has not commenced any action or filed any claim involving the same issues in any court. Affidavit of merit or supporting affidavit is required in the following:  Motion for summary judgment or opposition thereto. involving the same parties.  Affidavit of third-party claim on attached property. Pleadings in Summary Procedure.

the complaint is prima facie sufficient. a plain. etc. NOTE: No certification required for a compulsory counterclaim since it is NOT an initiatory pleading. IVAN VIKTOR (2D. 1. 5. which shall include such supporting particulars as are peculiarly within the pleader’s knowledge. arguments and conclusions of law derived or inferred from the stated ultimate facts Capacity The following must be averred: (2) BUT it shall be cause for the dismissal of the case without prejudice.CIVIL PROCEDURE REVIEWER36  When plaintiff is a juridical person— this may be signed by the properly authorized persons. upon motion and after hearing. unless otherwise provided. Rule 8) (5) Complaint in intervention. Initiatory pleadings include (1) Original complaint. (4) Third (fourth. No need to allege the following in the pleadings: (1) evidentiary or probative facts (2) those presumed by law (3) facts of judicial notice (4) inferences. (3) The legal existence of an organized association of persons that is made a party. Rule 7) How to determine existence of forum shopping The most important question is whether the elements of litis pendentia are present OR whether a final judgment in one case will result to res judicata. and (6) Petition or application wherein the party asserts his claim or relief. as the case may be. Rule 8) Specific denial How to make a specific denial: (b) identity of rights or causes of action. They are the very facts without which. If a defense relief on is based on law.  Test of sufficiency— If from the facts alleged. (2) Permissive counterclaim. Effect of the submission of a false certification or non-compliance with any of the undertakings therein: (1) Indirect contempt. omitting the statement of mere evidentiary facts. but it is NOT jurisdictional. ’13) . (1) HOW ALLEGATIONS MADE Absolute denial—specify each material allegation of fact the truth of which he does not admit and. (Sec. a valid judgment may be rendered for the plaintiff. or (2) direct contempt. (2) Administrative and criminal actions. The TEST is whether in the two or more cases pending. concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense. set forth the MENDEZ. Contesting the capacity of a party A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity. 4. This requirement is mandatory in the filing of a complaint and other initiatory pleading. In general Every pleading shall contain in a methodical and logical form. (3) Cross-claim. shall do so by specific denial. (Sec. the cause of action stated in a complaint would be insufficient. and (c) identity of reliefs sought. and (3) a cause for administrative sanctions. (Sec.)-party complaint. for example.   the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. Effect of failure to comply (1) It shall NOT be curable by mere amendment of the complaint or other initiatory pleading. or the defense relied upon. whenever practicable. Ultimate facts are those which directly form the basis of the right sought to be enforced. there is: (a) identity of parties. Effect of willful and deliberate forum shopping by the party or his counsel: (1) Facts showing the capacity of a party to sue or be sued: (1) ground for summary dismissal with prejudice (2) The authority of a party to sue or be sued in a representative capacity. The rule applies also to special civil actions.

he specify so much of it as is true and material and deny only the remainder. that the document was issued or the act done in compliance with law. The names and residences of the plaintiff and defendant must be stated in the complaint. 11. (Sec. the court shall ORDER them to be brought in as defendants. Rule 8) Examples Alternative cause of action: Breach of contract of carriage or tort Alternative defense: Payment. (Sec. ’13) . it is sufficient to aver:    in one cause of action or defense or in separate causes of action or defenses. Rule 8)  to aver the judgment or decision without setting forth matter showing jurisdiction to render it. (2) intent. either Official documents In pleading an official document or official act. Fraud and mistake. (Sec. Rule 6)  It is the first pleading a party filed in court. 6.CIVIL PROCEDURE REVIEWER37 substance of the matters upon which he relies to support his denial. which must always be proved. 3. (2) Partial denial—where only a part of an averment is denied. 12. the circumstances constituting the following must be stated with particularity: Allegations In general Every pleading shall contain in a methodical and logical form. condition of mind In all averments. if jurisdiction over them can be obtained. or the answer may be stricken off the records and he will be declared in default. he shall so state. (Sec. NOTE: If the above rule is not complied with. Rule 8) NOTE: Allegations not specifically denied are deemed admitted. 2. Rule 8) Alternative claims and defenses A party may set forth two or more statements of a claim or defense alternatively or hypothetically. (Sec. a plain. concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense. IVAN VIKTOR (2D. (Sec. and this shall have the effect of a denial.   the complaint may be dismissed. Exhaustion of administrative Need to bring in new parties When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim.  It must be in writing. (Sec. even if not paid. (Sec. judicial or quasijudicial tribunal. (3) Denial by disavowal of knowledge—where defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment in the complaint. 3. the pleading is NOT made insufficient by the insufficiency of one or more of the alternative statements. Rule 8) Example: remedies. 10. Rule 8) Judgments In pleading a judgment or decision of a domestic or foreign court. 5. Exception:  amount of unliquidated damages. Rule 6) COMPLAINT Defined and in general The complaint is the pleading alleging the plaintiff’s cause or causes of action. The following may be averred generally: (1) malice. 9. (1) fraud or (2) mistake MENDEZ. it is sufficient  allegations of usury in a complaint to recover usurious interest are admitted if not denied under oath. (3) knowledge or (4) other condition of the mind of a person. Rule 8) When two or more statements are made in the alternative and one of them if made independently would be sufficient. (Sec. or of a board or officer. action has prescribed Conditions precedent In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient.

902-A which speaks of corporate devices or schemes that amount to fraud or misrepresentation detrimental to the public and/or to the stockholders. false pretenses.250 shares while Oscar owned 8. or (3) The legal existence of an organized association of persons that is made a party. distribution. FACTS: Pedro and Anastacia Reyes. RTC MAKATI (2008) Allegations of deceit. these allegations are not particular enough to bring the controversy within the special commercial court's jurisdiction. Allegations of deceit. Oscar denied the charge that he illegally acquired the shares of Anastacia. misrepresentation. If a defense relief on is based on law. He questioned the SEC's jurisdiction to entertain the complaint because it pertains to the settlement of the estate of Anastacia Reyes. custody. concise. IVAN VIKTOR (2D.  the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. and/or settlement of the estate of the deceased spouses. The rule is that a complaint must contain a plain. In his Answer with Counterclaim. but are mere conclusions of law: how and why the alleged appropriation of shares can be characterized as "illegal and fraudulent" were not explained nor elaborated on. and deliver to his brothers and sisters their just and respective shares. without supporting statements of the facts to which the allegations of fraud refer. do not sufficiently state an effective cause of action. The RTC denied the motion and the CA affirmed. the circumstances constituting fraud or mistake must be stated with particularity. Zenith and Rodrigo filed a complaint designated as a derivative suit with the SEC against Oscar to obtain an accounting of the funds and assets of Zenith which are now or formerly in the control. ’13) (1) Facts showing the capacity of a party to sue or be sued: (2) The authority of a party to sue or be sued in a representative capacity. along with their two children Oscar. Hence this petition ISSUE: Whether the allegations against Oscar were sufficient to hold him guilty of fraud NO. and/or possession of petitioner Oscar and to determine the shares of stock of deceased Reyes spouses that were “arbitrarily and fraudulently” appropriated by Oscar for himself and which were not collated and taken into account in the partition. Capacity of parties The following must be averred: REYES v. The complaint prayed that Oscar be ordered to account for all the income from the time he took these shares.CIVIL PROCEDURE REVIEWER38 as the case may be. and direct statement of the ultimate facts constituting the plaintiff's cause of action and must specify the relief sought. Fraud and mistake are required to be averred with particularity to enable the opposing party to controvert the particular facts allegedly constituting such fraud or mistake. they are not statements of ultimate facts. without supporting statements of the facts to which the allegations of fraud refer. Rodrigo. and threats are largely conclusions of law that. Contesting the capacity of a party . While the complaint contained allegations of fraud purportedly committed by him.637 shares. and that the suit is not a bona fide derivative suit because the requisites have not been complied with. owned shares of stock in Zenith Insurance Corporation (Zenith). The charges of fraud against Oscar were not properly supported by the required factual allegations.D. Rodrigo owned 4. misrepresentation. Pedro’s estate was properly partitioned in the 70’s but Anastacia’s estate was not partitioned (which includes her shares in Zenith). These rules find specific application to Section 5(a) of P. and threats are largely conclusions of law that. When Pedro and Anastacia died.715. machination. false pretenses. Oscar filed a Motion to Declare Complaint as Nuisance or Harassment Suit. Rule 8 of the Revised Rules of Court provides that in all averments of fraud or mistake. asserting that he purchased the shares with his own funds from Zenith’s unissued stocks. No. MENDEZ. omitting the statement of mere evidentiary facts. Section 5. The RTC was later conferred with jurisdiction over the matter due to a presidential declaration confirming the former as a special commercial court. do not sufficiently state an effective cause of action. machination.

CIVIL PROCEDURE REVIEWER39 A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity. defenses implied from said admission are waived (forgery. 7.  A general denial is an admission. (3) Illegality of consideration. When a party is deemed to have admitted genuineness and due execution of an actionable document. There is NO answer to a reply. NOTE: A mere specific denial is insufficient. 5. IVAN VIKTOR (2D. Types of defenses Negative A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. or (2) When compliance with an order for an inspection of the original instrument is refused. the denial must be verified. and (2) set forth what he claims to be the facts. When an oath is not required A specific denial under oath will not apply in the following cases: (1) When the adverse party does not appear to be a party to the document.  If the denial is not under Sec. generally It is alleged in the form of a specific denial. (Sec. (7) Release. (2) Want of consideration. defense that the document was not in words and figures as set out in the pleadings) The following are NOT cut-off by the implied admission since they are  MENDEZ. Rule 8. but mere evidence of the existence of the actionable document. (8) Waiver. Rule 3) How alleged. shall do so by specific denial. Examples:  promissory note  deed of sale  contract NOTE: Letters by parties regarding the actionable document are not actionable documents. Rule 8) ANSWER Defined and in general An answer is a pleading in which a defending party sets forth his defenses. ’13) . which shall include such supporting particulars as are peculiarly within the pleader’s knowledge. 8. Rule 8) Actions based upon a document Whenever an action or defense is based upon a written instrument or document. (1) set forth in the pleading the substance of such instrument or document . (Sec. (6) Prescription.   This pleading may be an answer to the complaint. (Sec. the party shall: unrelated to the genuineness and due execution of the document: (1) Payment. Rule 6) A defense is negative when the material averments alleged in the pleading of the claimant are specifically denied. 10. or Former recovery or discharge in bankruptcy. (Sec. (5) Fraud. The denial must be coupled with an oath. no capacity to sign. 4. lack of authority to execute the document. non-delivery of the document. and (11) (2) attach the original or a copy thereof an exhibit. etc. Rule 8) Actionable document is one which is the basis of the claim or defense. 5[a]. There may be an answer to a thirdparty complaint or complaint-inintervention. (Sec. (10) Estoppel. to a counterclaim. (3) set forth said copy be in the pleading with like effect. (4) Usury. or an answer to a cross-claim. which shall be deemed to be a part of the pleading. (Sec. (9) Statute of frauds. it is deemed a general denial. Rule 6)  To contest an actionable document The party must (1) specifically deny the genuineness and due execution of the document under oath. 4.   Absence of an oath will be deemed an implied admission of the due execution and genuineness of the document.

(Sec. an averment is denied. MENDEZ. (3) Illegality of consideration. (1) (2) (3) Facts showing the capacity of a party to sue or be sued: The authority of a party to sue or be sued in a representative capacity. but mere evidence of the existence of the actionable document. which shall be deemed to be a part of the pleading. 10. (4) Usury. (Sec.  When a party is deemed to have admitted genuineness and due execution of an actionable document. Rule 8) Genuineness of documents Whenever an action or defense is based upon a written instrument or document. or Absence of an oath will be deemed an implied admission of the due execution and genuineness of the document. and (2) set forth what he claims to be the facts. 4. which shall include such supporting particulars as are peculiarly within the pleader’s knowledge. set forth the substance of the matters upon which he relies to support his denial. the denial must be verified. he specify so much of it as is true and material and deny only the remainder.CIVIL PROCEDURE REVIEWER40 Specific denial How to make a specific denial: (3) (1) Absolute set forth said copy be in the pleading with like effect. The denial must be coupled with an oath. he shall so state. ’13) . shall do so by specific denial. NOTE: A mere specific denial is insufficient. and attach the original or a copy thereof an exhibit. (2) Want of consideration. defenses implied from said admission are waived (forgery. whenever practicable. Rule 8) Capacity of parties The following must be averred: (1) specifically deny the genuineness and due execution of the document under oath. or The legal existence of an organized association of persons that is made a party. lack of authority to execute the document. and this shall have the effect of a denial. Examples:  promissory note  deed of sale  contract NOTE: Letters by parties regarding the actionable document are not actionable documents. (Sec. IVAN VIKTOR (2D. no capacity to sign. Rule 8) Actionable document is one which is the basis of the claim or defense. Contesting the capacity of a party A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity. 7. (2) Partial denial—where only a part of (3) Denial by disavowal of knowledge —where defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment in the complaint. non-delivery of the document. the party shall:  (1) (2) set forth in the pleading the substance of such instrument or document . defense that the document was not in words and figures as set out in the pleadings)  The following are NOT cut-off by the implied admission since they are unrelated to the genuineness and due execution of the document: (1) Payment. To contest an actionable document The party must denial—specify each material allegation of fact the truth of which he does not admit and.

’s Magnolia chicken products. he failed to point out any particular Sales Invoice which substantiates his claim of short deliveries or questionable deliveries. The appellate court upheld the trial court’s decision.000 as moral damages. his sales person. Memita.520. the RTC ordered the issuance of a writ of attachment against Memita.” . He supplied said products on a 25day payment credit to Memita’s Vicor Store. specifically denies them. The appellate court reiterated the trial court’s position and stated that Memita’s The Answer failed to explicitly deny or contest the genuineness and due execution of any of the receipts nor any of his signatures or that of his authorized representative appearing therein. Whoever alleges fraud or mistake affecting a transaction must substantiate his allegation. The RTC ruled that Masongsong was entitled to the reliefs prayed for. Memita filed a notice of appeal with the trial court. (2) the testimonies of Masongsong and Joel Go. He alleged that there were questionable deliveries and questionable number of kilos per crate. FACTS: Masongsong. (8) Waiver. etc. In his brief. Thereafter. shall set forth the substance of the matters upon which he relies to support his denial. They said Memita failed to explicitly deny or contest the genuineness and due execution of the receipts or any signatures on the receipts. (11) Former recovery or discharge in bankruptcy. under the business name of RM Integrated Services. and in holding that Memita acknowledged receipt of the deliveries made by Masongsong. When an oath is not required A specific denial under oath will not apply in the following cases: (3) When the adverse party does not appear to be a party to the document. but based his refusal to pay on the following grounds: (1) questionable deliveries.000 as attorney’s fees. and concluded that Masongsong might have manipulated the delivery receipts. (2) short deliveries MENDEZ. in alleging "questionable" and "short" deliveries. Memita denied the quantities and value of his purchases. Memita chose to present evidence which did not "set forth the facts" nor the "substance of the matters upon which he relies to support his denial.000 as exemplary damages. IVAN VIKTOR (2D. the Provincial Sheriff issued a notice of levy on attachment to the Registrar of the TO and a notice of embargo to the Register of Deeds of Bacolod City. (6) Prescription. Rule 8) MEMITA v. (10) Estoppel. He made a counterclaim and asked for P300. Inc. ISSUES: Whether Memita was able to contest the genuineness and due execution of the 72 sales invoices NO. However. ’13) and discrepancies. under oath. and (3) Masongsong’s bond. Without specifying the date of purchase or the receipt number.50 credit on goods purchased remain unpaid despite his several demands.CIVIL PROCEDURE REVIEWER41 (5) Fraud. whenever practicable. and P150. since it is presumed that a person takes ordinary care of his concerns and private concerns have been fair and regular. specifically denies them. He also prayed for the issuance of a writ of attachment against Memita. (Sec. taking into account: (1) the allegations of the verified complaint. A defendant must specify each material allegation of fact the truth of which he does not admit and. and sets forth what he claims to be the facts. (9) Statute of frauds. Memita averred that the trial court erroneously admitted as evidence the machine copies of the seventy-two (72) sales invoices despite the patent lack of proof of due execution and authenticity. P500. 8. Memita did not deny that he purchased goods on credit from Masongsong. MASONGSONG (2007) The genuineness and due execution of the instrument shall be deemed admitted unless the adverse party. Section 8 of Rule 8 provides that the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party. in effect alleges that Masongsong committed fraud. and (3) possible manipulation of delivery receipts. According to the sheriff’s return of service.000 in actual damages for the seizure of two of his vehicles. at least P200. and sets forth what he claims to be the facts. Masongsong filed a complaint before the RTC. or (4) When compliance with an order for an inspection of the original instrument is refused. alleging that Memita’s P603. under oath. However. was the distributor of San Miguel Foods. (7) Release.

’13) .E. INC. Petitioners PHILIPPINE AMERICAN GENERAL INSURANCE CO. condition.820 bags were delivered to the consignee in good order MENDEZ.   It does not qualify as a specific denial. The shipments were discharged from the interisland carrier into the custody of the consignee. Line and F. leaving a balance of 1. CA reversed the RTC on supposed ground of prescription when SLI failed to adduce any evidence in support thereof and that the bills of lading said to contain the shortened periods for filing a claim and for instituting a court action against the carrier were never offered in evidence. Zuellig. when the due execution and genuineness of an instrument are deemed admitted because of the adverse party's failure to make a specific verified denial thereof. of the 7. consisting of bags of Low Density Polyethylene both consigned to the order of FEBTC Manila. 1993) Even granting that petitioner’s averment in their reply amounts to a denial. a compromise agreement was entered into between petitioners. Subject cargoes were loaded and were commingled with similar cargoes belonging o other two other companies. Zuellig was consequently dismissed. Petitioners failed to touch on the matter of the non-presentation of the bills of lading in their brief and earlier on in the appellate proceedings in this case. Defendants were sued for such losses. Judicial admissions.000 bags originally contained in 175 pallets. It is a literal denial pregnant with admission.I.CIVIL PROCEDURE REVIEWER42 Negative pregnant Denial in the form of a negative pregnant— It is a denial which at the same time involves an affirmative implication favorable to the opposing party.C. much less the genuineness and due execution. it has the procedural earmarks a negative pregnant. and is thus an admission of an averment to which it is directed. Petitioners failed to controvert the existence of the bills of lading. such bills of lading can be categorized as actionable documents which under the Rules must be properly pleaded either as causes of action or defenses. a denial pregnant with the admission of the substantial facts in the pleadings responded to which are not squarely denied. The said vessel arrived at Manila and discharged its cargoes in the Port of Manila.E. Before trial.I. that is. Line and F.C. only a total of 5.. no evidence being required to prove the same. and the genuineness and due execution of which are deemed admitted unless specifically denied under oath by the adverse party. The trial court granted petitioners motion to dismiss on the ground of said amicable settlement and the case as to S. SWEET LINES (212 SCRA 194. Moreover. took on board at Baton Rouge. two (2) consignments of cargoes for shipment to Manila and later for transshipment to Davao City. As petitioners are suing upon SLI's contractual obligation under the contract of carriage as contained in the bills of lading. prescription as an affirmative defense was seasonably raised by SLI in its answer. v. the instrument need not be presented formally in evidence for it may be considered an admitted fact. LA.080 bags. as plaintiffs. except that the bills of lading embodying the same were not formally offered in evidence. with arrival notice to TPI in Davao City. It is a negative implying also an affirmative and which although stated in a negative form really admits the allegations to which it relates. IVAN VIKTOR (2D. Petitioners' failure to specifically deny the existence. hence. of the instruments in question amounts to an admission. the carrier awaited and made use of the services of M/V "Sweet Love" owned and operated by SLI interisland carrier. the vessel SS "VISHVA YASH" a foreign common carrier. they impliedly admitted the same when they merely assailed the validity of subject stipulations. verbal or written. and defendants S. In the case at bar. ISSUE: Whether the non-inclusion of the controverted bills of lading in the formal offer of evidence would bar respondent from raising the defense of prescription NO. While the petitioners objected to the validity of such agreement for being contrary to public policy. made by the parties in the pleadings or in the course of the trial or other proceedings in the same case are conclusive. the existence of the bills of lading and said stipulations were impliedly admitted by them FACTS: In March 1977. For transshipment to Davao. However. and cannot be contradicted unless shown to have been made through palpable mistake or that no such admission was made. It is conceded to be actually an admission.

(1) an amended counterclaim. will be a good defense. unless a different period is fixed by the court (Sec. By having the cargo shipped on respondent carrier's vessel and later making a claim for loss on the basis of the bills of lading. (Sec. and (4) Prescription Periods to plead MENDEZ. Rule 11) Answer to amended complaint: Filed as a matter of right— Within 15 days after being served with a copy of the amended complaint. statute of frauds. (Sec. while the original plaintiff becomes the defendant. Rule 6)  It partakes of a complaint by the defendant against the plaintiff  “claim” may refer to a claim for (a) Money. etc. Rule 9) COUNTERCLAIMS Defined and in general A counterclaim is any claim which a defending party may have against an opposing party. but one which. if no new answer is filed. or a cross-claim. and (10) any other matter by way of confession and avoidance Implied admissions General rule: Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. It must be of such nature as to bar the plaintiff from claiming on his cause of action.— Within 30 days after receipt of summons where the defendant is (1) a foreign private juridical entity and (2) service of summons is made on the government official designated by law to receive the same. (Sec. (2) amended cross-claim. Rule 11) Answer of a defendant foreign private juridical entity.  The affirmative defenses include (1) fraud. by a prior judgment). illegality.)— party complaint. 2. affirmative defenses are deemed controverted except those which are required to be under oath. the defendant becomes the plaintiff. or (b) Some other relief against an opposing party  Upon filing of the counterclaim. if established. The plaintiff may deny or controvert it by filing a reply. ’13) same (3) Res judicata (that the action is barred  It gives rise to two complaints: the original complaint and the counterclaim. and (4) amended complaint-in-intervention. estoppel. IVAN VIKTOR (2D. 1. (4) (5) (6) (7) (8) payment. former recovery. (9) discharge in bankruptcy. If no reply is. 3. 2. Affirmative An affirmative defense is an allegation of a new matter which. Exception: The grounds of (1) Lack of jurisdiction over the subject matter. (Sec. (3) release. Not a matter of right— Within 10 days from notice of the Order admitting the same  An answer earlier filed may serve as the answer to the amended complaint. Answer to the complaint— Within 15 days after service of summons. 6. (3) amended third (fourth. NOTE: This Rule applies to answers to   It is not a denial of an essential ingredient in the plaintiff’s cause of action. an avoidance of the claim.CIVIL PROCEDURE REVIEWER43 acknowledged the existence of said bills of lading. petitioners for all intents and purposes accepted said bills. How raised . Rule 11) Waiver of defenses A compulsory counterclaim. not set up shall be barred. (2) Litis pendentia (that there is another action pending between the parties for the same cause). while hypothetically admitting the material allegations in the pleading of the claimant would nevertheless prevent or bar recovery by him. (2) statute of limitations.

then (1) matured or (2) was acquired by a party after serving his pleading may. The conference was repeatedly reset." Dismissal of the complaint carries with it the dismissal of the compulsory counterclaim. As their counterclaim. Rule 11) After answer A counterclaim may be asserted against an original counter-claimant. Motion for reconsideration was denied. 9. (Sec. Rule 6) A compulsory. or a crossclaim. 9. (Sec. Co moved for dismissal of the case without prejudice. Counsel for BA Finance failed to attend the Pre-Trial Conference. After respondents' Amended Answer to Complaint with Compulsory Counterclaim was admitted. The motion was granted. (Sec. hence the instant petition alleging that the dismissal of the complaint carried with it the dismissal of respondent’s counterclaim. except that in an original action before the RTC. (3) Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof. cannot "remain pending for independent adjudication by the court. be presented as a counterclaim or a cross-claim by supplemental pleading before judgment. Thus. not set up shall be barred. respondents alleged overpayments and damages. If private respondents could successfully show that they actually made overpayments on the credit accommodations extended by petitioner. Rule 6) A counterclaim or a cross-claim which either Compulsory counterclaim. the counterclaim may be considered compulsory regardless of the amount. A compulsory counterclaim cannot "remain pending for independent adjudication by the court. Rule 11) Kinds of counterclaims Compulsory A compulsory counterclaim is one which. then the compulsory counterclaim being ancillary to the principal controversy. CO (224 SCRA 163. 2. ISSUE: Whether the dismissal of the complaint carries with it the dismissal of the counterclaim YES. Trial court denied the motion. being ancillary to the principal controversy. FACTS: BA Finance brought an action recover a sum of money from a credit accommodation in the form of a discounting line which it granted to Rufino Co. 7. must likewise be similarly dismissed since no jurisdiction remains for the grant of any relief under the counterclaim. (Sec. Rule 9) -It cannot be independently adjudicated BA FINANCE CORP v. They asserted that they are no longer indebted to petitioner and are in fact entitled to reimbursement for overpayments. an when it dismisses the same.CIVIL PROCEDURE REVIEWER44 Included in answer A counterclaim may be asserted against an original counter-claimant. ’13) . counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. if the trial court no longer possesses jurisdiction to entertain the main action of the case. 8. the same evidence needed to sustain the counterclaim of respondents would also refute the cause of action in petitioner's complaint." This is because it is auxiliary to the proceeding in the original suit and merely derives its jurisdictional support therefrom. (Sec. (Sec. IVAN VIKTOR (2D. Rule 6) NOTE: A compulsory counterclaim. They asked for damages for expenses incurred and inconveniences suffered by them as a result of the filing of the present action. Consequently. In the case at bar. 1993) MENDEZ. with the permission of the court. and from certain suretyship agreements executed in its favor by his corespondents. 9. Respondents moved to set the reception of their evidence in support of their counterclaim. CA reversed the lower court’s order and directed it to set the reception of their evidence on their counterclaim. (1) Arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and (2) Does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. the case was set for Pre-Trial Conference. being cognizable by the regular courts of justice.

The spouses made plans to reimburse him. The latter was ordered to reimburse him for the improvements. -Jurisdiction (both nature. Maceda introduced more improvements. his attorney-in-fact promised to sell to Maceda the property for P125. but not to obtain affirmative relief. the RTC did not have appellate jurisdiction over the claim. Maceda set up a P240. it likewise dismissed the counterclaim questioning the complaint.000. but all were dismissed.000. petitioner repaired and renovated the house subject to reimbursement for expenses. as to amount and   It is NOT barred even if not pleaded in the answer.  It is not connected with the plaintiff’s cause of action. hence the RTC did not have appellate jurisdiction over the claim." (Sec. IVAN VIKTOR (2D. Another ejectment suit was filed against him in the MTC. CA (1989) The MTC does not have original jurisdiction over the counterclaim as it exceeds P20. 1.CIVIL PROCEDURE REVIEWER45 the complaint must fail. 129. The remodeling job cost P40. B. -Filing fees and non-forum certification not required Permissive A permissive counterclaim is one which does not arise out of the opposing party’s claim or necessarily connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim. Ejectment cases were filed against Maceda. and reserve the right to present evidence ex parte on his counterclaim. the non-suit notwithstanding. and leased their house and lot to their nephew. The CA reversed the decision because of MTC’s lack of jurisdiction. Inc. for P200 per month.P. 33.000 monthly rental from April 15. FACTS: Spouses Arturo and Maxima emigrated to the U. The jurisdiction of the MTC in a civil action for sum of money is limited to a demand that "does not exceed P20.000 after the transfer of title to his widowed aunt. In his answer to the complaint. and that of the RTC raising the award to P182. It may be filed as an independent action by the defendant as plaintiff. Examples  Counterclaim for damages based on culpa aquiliana in a complaint for collection of a loan . and the latter to Pablo Zubiri.000 as necessary and useful improvements. were invalid for lack of jurisdiction.200.000. with the dismissal of the complaint on defendant's own motion. Therefore the counterclaim is compulsory.000 exclusive of interest and costs but inclusive of damages of whatever kind. 1982 were sent MENDEZ. Zubiri sold the property to Cement Center. Formal demands to vacate and for payment of P4. When Arturo passed away in the US. exception) MACEDA v. The MTC did not have original jurisdiction over his counterclaim as it exceeds P20. The RTC set aside the decision and ordered Cement Center to pay Maceda P182. The decision of the MTC awarding Maceda P158. Blg. This will enable defendant who was unjustly haled to court to prove his compulsory counterclaim. and. it was later sold by the aunt to Mr.S. The nondismissal of the complaint. Maceda insisted on being reimbursed for his improvements as the original owners had promised to do. because the trial court retains jurisdiction over the complaint and of the whole case. However. and simultaneously move that he be declared as in default on the compulsory counterclaim. The MTC ordered him to vacate the premises and pay Cement Center rent. who asked petitioner to vacate because of a housing project it had for its employees. However.000 counterclaim.) A counterclaim in the municipal or city court beyond that jurisdictional limit may be pleaded only by way of defense to weaken the plaintiffs claim. provides the basis for the compulsory counterclaim to remain active and subsisting. ISSUE: Whether the MTC had jurisdiction over an ejectment case where the lessee's counterclaim exceeds the court's jurisdictional limit NO. What the defendants could have done instead of moving for dismissal was to ask the trial court to declare petitioners to be "nonsuited" on their complaint so that the latter can no longer present his evidence thereon.000 on his counterclaim. in consequence the RTC decision’s lack of legal basis. Maceda. which is intertwined with the complaint. Correspondingly. ’13) to him by the company.. With the spouses’ permission. subpar. Maxima died in the US. the alleged value of his improvements. Gomez.

KEB granted a $500. Aum withdrew $160. he may be declared in default Failure to answer this is NOT a cause for a default declaration. He was made another withdrawal.CIVIL PROCEDURE REVIEWER46   Counterclaim for damages based on quasi-delict Counterclaim for the payment of the price of a car in an action to recover a piece of land compulsory and Distinctions between permissive counterclaim PERMISSIVE May be set up as an independent action and will not be barred if not in the answer An initiatory pleading Should be accompanied by a certification against forum shopping and when legally required. which the trial court denied. alleging the same facts in their complaint in the first civil case. PHDI. the plaintiffs executed a real estate mortgage over their properties as security for the said loan.00 from the account by forging Mendoza’s signature. et al. hence. Aum allegedly could not have withdrawn said deposits without the KEB’s connivance.. and the Korea Exchange Bank (KEB). alleging that the causes of action for PHDI’s complaint for collection of $160. They alleged that through the machination of Aum. leaving a balance of $163.000. Thereafter. only Aum and Mendoza were authorized signatories to all applications for withdrawals from the said accounts.000. in another case. and for the counterclaims in this second case for the set-off of the said amount against its claim of $500. filed a motion to dismiss on the ground of forum shopping. et al. alleging that KEB failed to include forum shopping as a ground in its motion to dismiss their complaint in the first case.00 were identical. Meanwhile. Aum's failure to heed demands for an accounting of the said withdrawals and for the restitution of the said amounts constituted large scale estafa for which they are liable for exemplary and moral damages. a certificate to file action by the Lupong Tagapamayapa COMPULSORY Must be contained in the answer.00 and damages. et al. they were mandated to append thereto a certification of non-forum shopping.000.00 loan to the PHDI with the condition that the said loan be deposited with the KEB in the name of PHDI. if it is not set up. the RTC denied the motion to dismiss. et al. a Korean National and president of PHDI. FACTS: PHDI and Magno et al. hence. otherwise. GONZALES (456 SCRA 224. However.00. asserting that the KEB should have filed its counterclaim for collection and the reformation of the mortgage in the first civil case. Under PHDI’s board resolution. hence. it is bound by the omnibus motion rule.000. therefore filed their answer with counterclaims in the second case where they denied indebtedness to the KEB. 2005) Forum shopping is a ground for summary dismissal of both initiatory pleadings without prejudice to the taking of appropriate action against the counsel or party concerned.000. it shall be barred Not an initiatory pleading Does not require certifications Must be answered by the party against whom it is interposed. KEB filed a motion to dismiss these counterclaims. IVAN VIKTOR (2D. also opposed the motion to dismiss their counterclaims on the ground that the causes of action in the two cases were MENDEZ. The KEB filed a petition for certiorari and prohibition with the CA for the nullification of the orders of the RTC. PHDI and Magno. They averred that the essential elements of litis pendentia were present. filed a complaint in the RTC against Aum. opposed the motion to dismiss the complaint. Compulsory counterclaims merely reiterating special defenses are deemed controverted even without a reply No need to pay docket fees BUT NOTE: AM 4-204 now requires payment of fees for compulsory counterclaims (Riano) Docket and other lawful fees should be paid KOREA EXCHANGE BANK v. their counterclaims should be dismissed for forum shopping. et al. PHDI and Magno. for moral and exemplary damages were merely permissive. ’13) . PHDI. KEB filed a Complaint against Magno et al and PHDI before the RTC for sum of money and reformation of the real estate mortgage executed by PHDI. The counterclaims of the PHDI. The KEB filed a Motion to Dismiss the complaint.

and (c) the identity of the two preceding particulars is such that any judgment rendered in the other action will. IVAN VIKTOR (2D. (Sec. CA. a final judgment is one that would constitute res judicata and thus would cause the dismissal of the rest. 4. set up the counterclaim or cross-claim by amendment before judgment. inadvertence. as well as the counterclaims for moral damages. In interposing their counterclaim for set-off of the $160. (2) inadvertence. and exemplary damages.000.. There is forum shopping when. (Sec. they were mandated to append thereto a certification of non-forum shopping.000. causes of action and the issues in the two cases were different. regardless of which party is successful. The RTC denied KEB's motion to dismiss the complaint and motion to dismiss the counterclaims. for moral and exemplary damages were merely permissive. the office or function which is to deny. The defense of litis pendentia in one case is a bar to the other/others. 4. there exist:(a) identity of parties. ’13) . but dismissed respondents’ counterclaims in the second case for forum-shopping. The general rule is that compliance with the certificate of forum shopping is separate from and independent of the avoidance of the act of forum shopping itself. Rule 11) ANSWER TO COUNTERCLAIM In general An answer is a pleading in which a defending party sets forth his defenses. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged such claims shall be set forth in an amended or supplemental complaint. It is enough that there is substantial identity of parties. affirmed the RTC with respect to the first case. all the new matters alleged in the answer are deemed controverted. amount to res judicata in the action under consideration. or a cross-claim. Rule 6)  When required Challenge due to authenticity of documents When an action or defense is founded upon a written instrument. Rule 6) Period to plead A counterclaim or cross-claim must be answered within 10 days from service. or allege facts in denial avoidance of new matters alleged by way defense in the answer and thereby join make issue as to such new matters. hence.KEB filed its answer to the counterclaims of the PHDI. et al. ISSUE: Whether the counterclaim in the second case should be dismissed for the absence of a certificate of non-forum shopping. copied in or attached to MENDEZ. Remedies For failure to raise compulsory counterclaim A compulsory counterclaim. in a joint decision. They asserted that the subject matter. et al. He may. the respondents thereby engaged in forum shopping. and. or (4) when justice requires. by leave of court. Rule 11) REPLY Defined and in general A reply is a pleading. excusable neglect When a pleader fails to set up a counterclaim or a cross-claim through (1) oversight. The CA declared that the counterclaims of the PHDI. 2. not set up shall be barred.CIVIL PROCEDURE REVIEWER47 unrelated. Absolute identity of parties is not required. There is forum shopping where a litigant sues the same party against whom another action or actions for the alleged violation of the same right and the enforcement of the same relief is/are still pending.00 in the second case. Forum shopping is a ground for summary dismissal of both initiatory pleadings without prejudice to the taking of appropriate action against the counsel or party concerned. in the second case. (Sec. the relief being founded on the same facts.00 against their loan of $500. (Sec. between an action pending before the court and another one. 10. 10.. (b) identity of rights asserted and relief prayed for. of or of or to or  Not mandatory—If a party does not file such reply. and whether the first case should be dismissed for forum shopping YES. not to counterclaim cross-claim. or at least such parties as represent the same interests in both actions. Rule 9)  This refers to a counterclaim defendant has at the time of filing of the answer Oversight. (3) excusable neglect. (Sec.  A reply is the responsive pleading an answer.

however. and that since the Dacion obliterated petitioner’s obligation covered by the promissory notes. (Sec. Since respondent failed to deny the genuineness and due execution of the Dacion and Confirmation Statement under oath. etc. what he claims to be the facts. (Sec. Rule 8. file against a person not a party to the action. When the defense in the answer is based on an actionable document. the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party. a Reply specifically denying it under oath must be made. respondent PhilBanking clearly had the right to proceed against the promissory notes assigned by Rare Realty. BUT the requirement of an oath does not apply when (1) the adverse party does not appear to be a party to the instrument or (2) when compliance with an order for an inspection of the original instrument is refused. THIRD/FOURTH-PARTY COMPLAINT Defined A third (fourth. with leave of court.CIVIL PROCEDURE REVIEWER48 the corresponding pleading. 1988. Rule 6) NOTE: It is NOT proper to file a third-party complaint against one who is already a party to the action. ISSUE: Whether respondent’s failure to file a Reply and deny the Dacion and Confirmation Statement under oath constituted a judicial admission of the genuineness and due execution of these documents YES. It must be noted. otherwise the genuineness and due execution of the document will be deemed admitted. . otherwise. On appeal. and (2) sets forth what he claims to be the facts. But a cross-claim may be filed against them. (3) under oath. Petitioner then filed a Motion for Judgment on Demurrer to the Evidence. Casent raised. This judicial admission should have been considered by the appellate court in resolving the demurrer to evidence. under oath. by way of defense. such as against a plaintiff or a co-defendant. FACTS: Philbanking Corporation (PhilBanking) filed a complaint against Casent Realty Corporation (Casent) before the RTC for collection on two promissory notes assigned by Rare Realty Corporation. In its Answer. The RTC ruled in favor of Casent and dismissed the complaint. the bank had no right to collect anymore. Section 8 specifically applies to actions or defenses founded upon a written instrument. Petitioner. Thus. Since respondent failed to file a Reply. (2) indemnity. It is more controlling than Rule 6. the CA found that under the Deed of Assignment. copied in or attached to the corresponding pleading as MENDEZ. ’13) provided in the preceding section. Section 10 which merely provides the effect of failure to file a Reply.)-party complaint is a claim that a defending party may.)—party defendant. IVAN VIKTOR (2D. specifically denies them. pointing out that the PhilBanking’s failure to file a Reply to the Answer constituted an admission of the genuineness and execution of said documents. called the third (fourth. then these are deemed admitted and must be considered by the court in resolving the demurrer to evidence. and the Confirmation Statement issued by respondent stating that petitioner had no loans with the bank as of December 31. for (1) contribution. respondent admitted the genuineness and due execution of said documents. as defenses the Dacion en Pago (Dacion) executed between petitioner and respondent. When an action or defense is founded upon a written instrument. and provide the manner of denying it. in respect of his opponent’s claim. the genuineness and due execution of the document will be deemed admitted. Rule 8) CASENT REALTY DEV’T PHILBANKING CORPORATION (2007) CORP v. but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. 8. among others. where the defense in the Answer is based on an actionable document. in effect. (3) subrogation or (4) any other relief. should have presented evidence to show that the Dacion includes the promissory notes. and sets forth. 11. that admission of the genuineness and due execution of the Dacion and Confirmation Statement does not prevent the introduction of evidence showing that the Dacion excludes the promissory notes. etc. a Reply specifically denying it under oath must be made. the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party (1) specifically denies them.

Motion to extend period to plead The following need not be verified but must be under oath:  Denial of genuineness and dues execution of actionable document. Prohibition. 11. unappealable. the third-party complaint is also dismissed. and therefore. allow an answer or other pleading to be filed after the time fixed by these Rules. or Mandamus. Application for Writ of habeas corpus. or (5) a counterclaim against the original plaintiff in respect of the latter’s claim against the third-party plaintiff. Application for Appointment of a Receiver. MOTIONS AND ORDERS Verification General Rule: Pleadings NEED NOT be under oath.CIVIL PROCEDURE REVIEWER49 Remedies when denied When a complaint is dismissed.  Motion for new trial. (3) cross-claims. no shortened The court may also. How pleading is verified   Must be in writing.  Complaint with prayer for preliminary attachment. Rule 11): within 15 days from service of summons. Petition for change of name. in proper cases.  Affidavit of third-party claim on levied property. Petition for appointment of general guardian. Affidavit of merit or supporting affidavit is required in the following:  Motion for summary judgment or opposition thereto. Petition to correct entries in civil registry.  Motion to set aside order of default. (Sec. ’13) .  Denial of allegations of usury. Rule 6) Time to plead The same period as the answer to the complaint (Sec.)— party plaintiff may have against the original plaintiff’s claim. Petition for voluntary dissolution of corporation. MENDEZ. 13.  Affidavit of third-party claim on attached property.      (2) counterclaims.    Appeal by Certiorari from CA to SC. etc. upon like terms. Application for Preliminary Injunction or Temporary Restraining Order. Pleadings in Summary Procedure. ANSWER TO COMPLAINT THIRD/FOURTH-PARTY Exception: when otherwise specifically required by law or rule. Rule 11)  An order allowing the filing of a late answer or other pleading is interlocutory.      EXTENSION OF TIME TO PLEAD The court may extend the time to plead provided in these Rules: (1) Upon motion and (2) on such terms as may be just.  Motion to dissolve preliminary injunction on ground of irreparable damage to movant while adverse party can be fully compensated  Complaint for replevin:  Claim against estate of decedent.)—party defendant may allege in his answer (1) his defenses. But if the plaintiff appeals the dismissal. Petition to declare competency of ward. (Sec. In general A third (fourth.  Answer to written interrogatories. verified or accompanied by affidavit. All pleadings of forcible entry and unlawful detainer.  Petition for relief from judgment. Petition for Certiorari. Petition of guardian for leave to sell or encumber property of estate. and before filed before the lapse of period Time to plead can only be extended. etc.  Answer to request for admission. the defendant-thirdparty plaintiff must also appeal to obtain affirmative relief. (4) defenses that the third (fourth. (Formal Requirements) FILING AND SERVICE OF PLEADINGS. IVAN VIKTOR (2D.  Proof required of redemptioner. 5. The follow pleadings must be verified:  Petition to take deposition before action.

a complete statement of the present status thereof. IVAN VIKTOR (2D. Effect of willful and deliberate forum shopping by the party or his counsel: (1) ground for summary dismissal with prejudice (d) that he has not commenced any action or filed any claim involving the same issues in any court. BUT This rule must be liberally interpreted:  Failure of parties to sign because they were abroad may be a reasonable cause to exempt the parties from compliance with the requirement  Signing by one of the petitioners was held to be substantial compliance This requirement is mandatory in the filing of a complaint and other initiatory pleading. MENDEZ. (2) Administrative and criminal actions. (10) Third (fourth. no such other action or claim is pending therein. involving the same parties. 5. as well as a ground for the summary dismissal of the case with prejudice. unless the latter is authorized specifically to do so. and (12) Petition or application wherein the party asserts his claim or relief. A certification signed by the counsel is a defective certification and is a valid cause for dismissal.” or NOTE: The certification must be executed by the party NOT the counsel. ’13) (2) direct contempt. to the best of his knowledge. and (f) if he should thereafter learn that the same or similar action or claim has been filed or is pending. strict compliance with the rules may be dispensed with  The absence of verification may be corrected by requiring an oath. NOTE: A pleading required to be verified shall be treated as an unsigned pleading if it contains a verification (4) based on “information and belief. (2) BUT it shall be cause for the dismissal of the case without prejudice.” (5) upon “knowledge. complaint. Effect of the submission of a false certification or non-compliance with any of the undertakings therein: (1) Indirect contempt.CIVIL PROCEDURE REVIEWER50 A pleading is verified by an affidavit (3) that the affiant has read the pleading and (4) that the allegations therein are true and correct of his personal knowledge or based on authentic records. Certification against forum shopping Forum shopping is the filing of multiple suits in different courts. he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. tribunal or quasijudicial agency and. . Effect of failure to comply (1) It shall NOT be curable by mere amendment of the complaint or other initiatory pleading. and (3) a cause for administrative sanctions. unless otherwise provided. but it is NOT jurisdictional. (9) Cross-claim. Rule 7) How to determine existence of forum shopping The most important question is whether the elements of litis pendentia are present OR whether a final judgment in one case will result to res judicata.  It is an act of malpractice  The same shall constitute direct contempt. (Sec. NOTE: No certification required for a compulsory counterclaim since it is NOT an initiatory pleading. a cause for administrative sanctions. Initiatory pleadings include (7) Original complaint. The rule applies also to special civil actions. (e) if there is such other pending action or claim.)-party (11) Complaint in intervention. (6) lacks a proper verification Remedies  The court may order the correction of the pleading if lacking verification  The court may also acct on the pleading despite failure to properly verify if under the circumstances. (8) Permissive counterclaim. to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same relief. either simultaneously or successively. upon motion and after hearing. information and belief. The certification against forum shopping is a sworn statement by the plaintiff or principal party certifying in an initiatory pleading: etc.

loss. business mana45ger and corporate secretary. 3556). this is not a case of willful and deliberate forum shopping and. As regards the other SEC Cases. FACTS: The Lutheran Church in the Philippines (LCP) has local Lutheran congregations in three districts. Several other cases were also instituted against the Batong group. 2006) If the forum shopping is not considered willful and deliberate. It is often only when the previous misappropriations and dissipations have become extensive and out of control that it can be candidly said that there is an imminent danger of further dissipation. the Ao-As group could have indeed prayed for the creation of the management committee and the accounting of the funds of the LCP.8M general fund. IVAN VIKTOR (2D. CA (491 SCRA 353. in another SEC Case (No. the Case No. In fact. The Ao-As group. 3556 had prayed for the appointment of a management committee in a motion which was subsequent to the filing of SEC-SICD Case No. In effect. the SEC-SICD ordered the creation of a management committee and declared all board resolutions passed by the LCP board void ab initio. The CA. ISSUE: Whether the Ao-As group is guilty of forum shopping NO.750 worth of cash advances. 3857. Also. The six grounds originally relied upon by the Ao-As group in SEC Case 3587 are entirely different from the causes of action in the NRLC. However. However. and (f) transfer of corporate books. (d) non-registration of LCP’s land in Leyte. Three districts were added.000 proceeds of the La Trinidad land transaction. managed by seven directors—two for each district. if the forum shopping is willful and deliberate. 3857 should not be dismissed. ruled that the Ao-As group were guilty of forum shopping. However. (e) severance of church-partnership with Lutheran Church-Missouri Synod. 3857. The case sought accounting and damages. there is: (d) identity of parties. wastage or destruction of assets or other properties" from an allegation of a single act of previous misappropriation or dissipation on the part of the Batong group. This motion was denied since the same is an incident of SEC Case 3587. (c) dissipation of the P4. The Ao-As group cannot be faulted therefore for not praying for the creation of a management committee in the first couple of cases it filed with the SEC. (b) on-liquidation and/or unaccounting of P323. Controversies arose when the board of directors terminated the services of Eclesio Hipe. (e) identity of rights or causes of action. a motion was made to appoint a management committee. An NLRC case questioned the board resolutions which terminated employees. thus a total of eleven (11) directors managed the LCP. 3524) questioned the legality of the 11 members of the LCP Board. hence. filed SEC-SICD Case No. loss. and another SECSICD Case (No. though. the LCP directors at that time. and neither can they be faulted for using the causes of action in previously filed cases to prove their allegation of imminent dissipation. SEC dismissed Case No. former LCP directors and officers. AO-AS v. Its causes of action are: (a) nonliquidation and/or non-accounting of the P64. ’13) . The SEC has the power to create a management committee when there is “imminent danger of dissipation. and appointment of a management committee. both (or all. The reason for this is the strict evidentiary requirement needed to grant a prayer to create a management committee. the petitioner in SEC-SICD Case No. and one as the national president. After hearing in SEC Case 3587. however. if there are more than two) actions shall be dismissed with prejudice. 3587 against the Batong group. a Civil Case questioned another board resolution authorizing the transfer of corporate records.CIVIL PROCEDURE REVIEWER51 The TEST is whether in the two or more cases pending. It is true that the causes of action in the latter cases were included as additional grounds in Case 3587 for the appointment of properties and assets of LCP which may have come into their possession during their incumbency as officers and/or directors of LCP. and (f) identity of reliefs sought. it was denied on the ground of litis pendentia. Civil. and the two other SEC cases. the creation of a management committee and the prayer for accounting could not have been asked for in the labor and forcible entry cases. 3556 considering that it was one of the incidents of Case No. wastage or destruction of assets or other properties or paralization of business operations” It should be difficult to deduce the "imminent danger of dissipation. the subsequent cases shall be dismissed without prejudice on one of the two grounds mentioned above. We cannot rule out the possibility that the danger of imminent dissipation of the corporate assets became MENDEZ.

Section 1. was filed on January 24. This effectively translates to a petition that was filed without a certification at all as none was issued by PAL. the previous case having been finally resolved (res judicata). An invalid certificate cannot be remedied by the subsequent submission of a Secretary’s Certificate that vests authority only after the petition had been filed. FASAP (479 SCRA 605. Failure to provide a certificate of non-forum shopping is sufficient ground to dismiss the petition. accompanied by a Certification of NonForum Shopping executed by Cesar Lamberte and Susan Del Carmen. CA denied the motion. The certification was without proof that the two affiants had authority to sign in behalf of petitioners. VP Cabin Services of PAL. When a motion for reconsideration was filed. If the forum shopping is not considered willful and deliberate. 2006) Only individuals vested with authority by a valid board resolution may sign the certificate of non-forum shopping in behalf of a corporation. the petition is subject to dismissal if a certification was submitted unaccompanied by proof of the signatory’s authority. setting aside the finding that PAL was guilty of unfair labor practice. ’13) and Asst. The petition. in relation to Rule 46. Section 3 of the Rules of Court requires the certification of non-forum shopping to be executed by the corresponding petitioner or petitioners. ordered PAL to pay them damages. forum shopping can be committed in three ways: (1) filing multiple cases based on the same cause of action and with the same prayer. At the time the certification was signed. the Court finds that this belated submission is an insufficient compliance with the certification requirement. a Secretary’s Certificate was submitted as proof that the board of directors of PAL had authorized the two to execute the certificate. their signing and attestations were not in representation of PAL. Nonetheless. The CA dismissed the case for failure to show the affiants’ authority to sign for PAL and for failure of the other petitioners to join in the execution of the certification. When the petitioner is a corporation. both (or all. Rule 65. In addition. this requirement is made to apply to both natural and juridical entities. However. who are not parties to the case. VP Human Resources MENDEZ. ISSUE: Whether the certification of non-forum shopping was properly executed NO.CIVIL PROCEDURE REVIEWER52 apparent only in the acts of the respondents subsequent to the filing of the first two SEC cases. where the ground for dismissal is also either litis pendentia or res judicata). A perusal of the Secretary’s Certificate submitted reveals that the authority to cause the filing of the petition was granted on February 15. on the other hand. but affirming the rest of the decision. The certification of non-forum shopping attached was without proof of authority to sign. it was argued that they are mere nominal parties so that their failure to execute the certification does not justify dismissal of the petition. and (3) filing multiple cases based on the same cause of action but with different prayers (splitting of causes of action. Lamberte and Del Carmen were not duly authorized and. IVAN VIKTOR (2D. if there are more than two) actions shall be dismissed with prejudice. the previous case not having been resolved yet (litis pendentia). the certification should be . (2) filing multiple cases based on the same cause of action and the same prayer. PAL v. consequently. As to the other petitioners. A motion for reconsideration was filed with a Secretary’s Certificate attached evidencing that affiants Lamberte and Del Carmen have been authorized by board resolution to initiate and/or cause to be filed on behalf of PAL petitions and pleadings in all labor-related cases. Forum shopping certificate for a corporation When plaintiff is a juridical person—this may be signed by the properly authorized persons. The required certification must be valid at the time of filing of the petition. 2000. Likewise. As the present jurisprudence now stands. FACTS: Flight Attendants and Stewards Association of the Philippines (FASAP) and Bhagwani filed a complaint for unfair labor practice. illegal suspension and illegal dismissal against PAL and some of its officers before the NLRC Labor Arbiter The Labor Arbiter upheld FASAP and Bhagwani and. the principal party to the case. the subsequent cases shall be dismissed without prejudice on one of the two grounds mentioned above. 2000. respectively. if the forum shopping is willful and deliberate. PAL filed a petition for certiorari with the CA. As no distinction is made as to which party must execute the certificate. 2000 and was dismissed by the CA on January 31. proof of said authority must be attached. The NLRC modified the decision.

orders or or (2) the service thereof EXCEPT those for which a different mode of service is prescribed (Sec. •  If any party has appeared by counsel. unless service upon the party himself is ordered by the court. appearances. In addition. or a. (6) notices. as shown by the post office stamp on the envelope or the registry receipt. Furthermore. or deposit in court. or (3) by publication. filing The filing of pleadings. service upon him shall be made upon his counsel or one of them. ’13) . Rule 13) Modes of service There are two modes of service of pleadings. at the expense of the prevailing party. he shall only be entitled to one copy of any paper served upon him by the opposite side. Where one counsel appears for several parties. final resolutions shall be served (1) personally orders. to its attorneys-in-fact by a board resolution. motions. 9. proof of said authority must be attached. (2) resolutions. in cases where a party was (5) written motions. (Sec. or (2) by mail In general. motions. and served upon the parties affected (Sec. and (1) personally or (2) by mail. (8) demands. (9) offers of judgment. if not already authorized under the corporate by-laws. Failure to provide a certificate of non-forum shopping is sufficient ground to dismiss the petition. the petition is subject to dismissal if a certification was submitted unaccompanied by proof of the signatory’s authority. summoned by publication. has failed to appear in the action. (7) appearances. notices. shall be considered as the date of their filing. 2. who can delegate the physical acts needed to sue.CIVIL PROCEDURE REVIEWER53 executed by a natural person. orders. (4) pleading subsequent to the complaint. IVAN VIKTOR (2D. MENDEZ. motions. judgments and all other papers shall be made (1) Personally— By presenting the original copies thereof.—Judgments. (Sec. The envelope shall be attached to the record of the case. (2) By mail— By sending them by registered mail. notices. 1. (10) similar papers shall be filed with the court. personally to the clerk of court • the clerk of court shall endorse on the pleading the date and hour of filing. pleadings. (2) by registered mail. Rule 13) Papers required to be filed and served— (1) judgments. (Sec. final resolutions. payment. 5. although such a person may have personal knowledge of the facts to be attested to. or any other papers or payments or deposits. which may be performed only by natural persons. orders. judgments and other papers: (1) personally. orders. Rule 13) Personal Personal service of the papers may be made (1) by delivering personally a copy to the party or his counsel. Rule 13) Service of judgments. service Service of pleadings. Rule 3)  The date of the mailing of motions. (3) orders. The power of a corporation to sue in any court is generally lodged with the board of directors. and b. plainly indicated as such. not just any person can be called upon to execute the certification. 4. Thus. 3. Rule 13) Coverage This Rule governs In general. Filing and service defined Filing—the act of presenting the pleading or other paper to the clerk of court Service—the act of providing a party with a copy of the pleading or paper concerned. judgments and other papers shall be made either (1) the filing of all pleadings and other papers. (Sec. Likewise. only individuals vested with authority by a valid board resolution may sign the certificate of non-forum shopping in behalf of a corporation.

Rule 13) Priority Whenever practicable.—A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. accident. the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. plainly addressed to the party or his counsel at his office. then. notices. Substituted service is done  unless the court in its discretion requires the claimant to submit evidence. furnishing proof of failure to answer (3) Said party gives notice of such motion to the defending party. with a person of sufficient age and discretion then residing therein. Exception: Papers emanating from the court.—A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud. (d) Extent of relief to be awarded.  MENDEZ. R18) (a) Effect of order of default. if known. The service is complete at the time of such delivery. (Sec. (e) Where no defaults allowed. and (5) with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. Rule 13) (3) by leaving the copy. his office is not known. Such reception of evidence may be delegated to the clerk of court. the office and place of residence of the party or his counsel being unknown. or c. mistake or excusable negligence and that he has a meritorious defense. (Sec. in a sealed envelope. with proof of failure of both personal service and (2) service by mail. (b) Relief from order of default. Upon party in default (Sec. The court shall proceed to render judgment granting the claimant such relief as his pleading may warrant. In such case. the court shall. (c) Effect of partial default. by registered mail shall be made by depositing the copy in the office. in cases where a. (1a. the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. if known. resolutions. otherwise at his residence. between 8am and 6pm. 7. he has no office. the service and filing of pleadings and other papers shall be done personally. 11. 6. at the party’s or counsel’s residence.  (4) with postage fully prepaid. Rule 9) A defending party shall be declared in default when (1) Ground: He fails to answer within the time allowed therefor. no person is found in his office. Service by ordinary mail may be done if no registry service is available in the locality of either the sender or the addressee (Sec. 3. orders and other papers cannot be made under the two preceding sections. b. ’13) . IVAN VIKTOR (2D. 8. Rule 13) Substituted service Substituted service is made if service of pleadings.  A resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. the court shall order the prosecuting attorney to investigate (1) by delivering the copy to the clerk of court. or person having charge  A violation of this Rule may be cause to consider the paper as not filed. (Sec. some of whom answer and the others fail to do so.—When a pleading asserting a claim states a common cause of action against several defending parties. Rule 13) Mail Service (1) (2) (3) (2) The claiming party files a motion to declare the defending party in default. if known.—If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer.CIVIL PROCEDURE REVIEWER54 (2) by leaving it in his office with his clerk or with a thereof.—A party in default shall be entitled to notice of subsequent proceedings but NOT to take part in the trial. motions.

the notice is for the purpose of molesting the adverse party. containing a. or in lieu thereof of the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. (Sec. (Sec. whichever date is earlier. 13. with postage fully prepaid. (Sec. with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered. 3. Rule 13) Registered Mail— Service by registered mail— (1) such affidavit and (2) the registry receipt issued by the mailing office. Rule 13) The service of a pleading or paper shall be proved by Personal service (1) written admission of the party served. 12. (2) after proper showing that a. or after five (5) days from the date he received the first notice of the postmaster. ’13) . a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court. unless the court otherwise provides. or MENDEZ. Rule 13)  Proof of filing and service The filing of a pleading or paper shall be proved by Personal service NOTE: The registry return card shall be filed immediately upon its receipt by the sender.  upon actual delivery • Service by ordinary mail—  upon the expiration of ten (10) days after mailing.   upon actual receipt by the addressee. (2) the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same. Rule 13) (1) its existence in the record of the case. (1) Constructive notice to a purchaser or encumbrancer from the time of filing such notice for record. (3) when affirmative relief is claimed in the answer. and (3) a description of the property in that province affected thereby. Cancellation The notice of lis pendens hereinabove mentioned may be cancelled (1) only upon order of the court. Registered mail Lis pendens A notice of lis pendens may be recorded in the office of the registry of deeds of the province in which the property is situated (1) by the plaintiff and the defendant. to intervene for the State in order to see to it that the evidence submitted is not fabricated. Rule 9) Completion of service Personal service— (3) the affidavit of the party serving. (2) Is notice only against the parties designated by their real names. containing a full statement of the date. and if there is no collusion. (Sec. Effects (1) by the registry receipt and (2) by the affidavit of the person who did the mailing. 10. IVAN VIKTOR (2D. Service by ordinary mail may be done if no registry service is available in the locality of either the sender or the addressee (Sec. (2) in an action affecting the title or the right of possession of real property. or (2) the official return of the server. but is claimed to have been filed personally. 7. and c.CIVIL PROCEDURE REVIEWER55 whether or not a collusion between the parties exists. place and manner of service. b. Ordinary mail (1) affidavit of the person mailing of facts showing compliance with section 7 of this Rule. Said notice shall contain (1) the names of the parties (2) the object of the action or defense. if it is not in the record.

3. the sellers here are in gross and evident bad faith and malicious breach of contract for they have failed to comply with the obligation to release the second mortgage. CA (223 SCRA 268) As a general policy. CORP v. Pre-trial was conducted and both parties presented evidence. and in the most expeditious and inexpensive manner. Rule 13) AMENDED PLEADINGS AND SUPPLEMENTAL Amendments In general Pleadings may be amended (1) by adding or striking out an allegation or the name of any party. Given the prior assurance of a workable arrangement regarding the Central Bank mortgage. Upon this information. The amendment sought to implead PISO bank as additional party defendant and compel it to accept payment of the existing second mortgage from Reginas. stipulating that the Barfel will apply the payment of the cash portion of the purchase price to the removal of any and all liens on the properties. The effect would be to start trial anew with the . During Barfel’s presentation. Reginas made the downpayment upon signing the agreement. This is further restricted by the condition that the amendment should not prejudice the adverse party or place him at a disadvantage. Notwithstanding such negotiations however. BPI further averred that the sellers actually disauthorized them to consummate the transaction despite previous arrangements. without regard to technicalities. Victor Barrios assured the buyer that the second mortgage has been reduced and that he will submit the necessary documents to MENDEZ. which is to include a new party defendant at a late stage in the proceeding. decreases as it progresses and changes at times to a strictness amounting to a prohibition. The amendment was made with intent to delay the action and substantially alters the cause of action of Reginas and the defense of Barfel. After the case is set for hearing. Private respondents will have to present additional evidence on the PISO second mortgage. or (2) by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect Purpose: So that the actual merits of the controversy may speedily be determined. since no complete relief can be had unless the second mortgage is released. the PSB granted Reginas loan. Barfel opposed. which again subjected aforesaid properties to a mortgage. The contract stated that apart from a BPI mortgage and the Deed of Restrictions annotated at the back of the title. the subject property was free from all liens. Thereafter. that it is not necessary to protect the rights of the party who caused it to be recorded. (Sec. The CA sustained the lower court’s order saying that the amendment was made without intent to delay the action. PSB now promises to pay directly to BPI from the proceeds of the loan and pay the sellers the purchase price. Rule 10) The amendment sought by private respondents. The essence of liberal construction was accorded by the courts. The latter conformed to the arrangement. IVAN VIKTOR (2D. the buyers now manifested its willingness to pay P2M ahead of the proceeds for the PSB loan. Liberality BARFEL DEV’T. substantial amendments may be made only upon leave of court. ISSUE: Whether the amended complaint should be allowed NO. (Sec. ’13) support a legal and valid acceptable arrangement for the release of such mortgage. 14. The RTC admitted the amended complaint. Reginas filed a motion for leave to file an amended complaint and motion to admit the same. Reginas and Zaragoza filed a complaint for specific performance and damages against Barfel and the Spouses Barrios. FACTS: Barfel sold to Reginas two parcels of land with two houses erected thereon in Ayala Alabang. It was later discovered that there was apparently a second mortgage with the PISO/Central Bank. Such leave may be refused if it appears that the motion was made with intent to delay the action or that the cause of action or defense is substantially altered.CIVIL PROCEDURE REVIEWER56 b. is not a formal but a substantial one. liberality in allowing amendments is greatest in the early stages of a law suit.

2. would have to be litigated and this could be time consuming. the following shall be filed: (1) a new copy of the entire pleading. the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be served thereby. 4. Rule 10) SWAGMAN HOTELS & TRAVEL. The court may grant a continuance to enable the amendment to be made.  at its initiative or on motion. IVAN VIKTOR (2D.. The correct amount of the second mortgage owed by petitioners to PISO bank (apparently a controverted point).CIVIL PROCEDURE REVIEWER57 parties recasting their theories of the case.   But such leave may be refused if it appears to the court that the motion was made with intent to delay. Failure to amend Failure to amend does not affect the result of the trial of these issues.   provided so no prejudice is caused thereby to the adverse party. a responsive in the case of a reply. Rule 13) appropriate (1) When issues are not raised by the pleadings. liberality in allowing amendments is greatest in the early stages of a law suit. This is further restricted by the condition that the amendment should not prejudice the adverse party or place him at a disadvantage. CA (2008) Matter of discretion MENDEZ. which shall be indicated by marks. 7. Rule 10)   at any time before pleading is served or. Amendment to authorize presentation evidence This amendment may be made of Kinds Formal amendment A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action. Rule 10) To conform to evidence Amendment to conform to evidence Issues not raised by pleadings may be deemed as if they were raised: (2) incorporating the amendments. Rule 10)  Substantial amendments Matter of right A party may amend his pleading once as a matter of right if evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings. decreases as it progresses and changes at times to a strictness amounting to a prohibition. at any time within ten (10) days after it is served. even after judgment. admissions in superseded pleadings may be received in evidence against the pleader. v. 5. (Sec. 8. As a general policy. (Sec. (Sec. (Sec. INC. ’13) . 3. (Sec. Substantial amendments may be made only (1) upon motion filed in court. and Claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. Substantial amendments may be made only upon leave of court. Except as provided in the next preceding section.  However. (Sec. Rule 10)   (1) upon motion of any party (2) at any time. and (2) after notice to the adverse party. and an opportunity to be heard. Form When any pleading is amended. and (2) They are tried with the express or implied consent of the parties Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and  to raise these issues may be made Effect An amended pleading supersedes the pleading it amends.

It ruled that although at the time of the complaint. (3) amended third (fourth. Christian informed the Swagman that he was terminating the loans and demanded from the latter payment in the total amount of $150.)— party complaint. 3. FACTS: Swagman Hotels and Travel. Amendment not a matter of right— The defendant shall answer within ten (10) days from notice of the Order admitting the same. ISSUE: Whether or not lack of cause of action may be cured by evidence presented during the trial and amendments to conform to the evidence NO.. if no new answer is filed. but the MENDEZ. (Sec. thereby avoiding multiplicity of suits. therefore. Rule Supplemental pleadings A supplemental pleading setting forth transactions.500. Section 5 thereof applies to situations wherein evidence not within the issues raised in the pleadings is presented by the parties during the trial. Later on.000 plus the unpaid interests of $13. and to conform to such evidence the pleadings are subsequently amended on motion of a party.CIVIL PROCEDURE REVIEWER58 The curing effect under Section 5 of Rule 10 of the 1997 Rules of Civil Procedure is applicable only if a cause of action exists at the time the complaint is filed. (2) amended cross-claim. etc. Amendments of pleadings are allowed under Rule 10 in order that the actual merits of a case may be determined in the most expeditious and inexpensive manner without regard to technicalities. In 1999. Remedies Periods to answer Amendments Amendment as a matter of right— The defendant shall answer the same within fifteen (15) days after being served with a copy thereof. Rule 11) Supplemental complaint This may be answered within ten (10) days from notice of the order admitting the same. The curing effect under Section 5 is applicable only if a cause of action in fact exists at the time the complaint is filed. raising as defense the lack of cause of action of the principal obligations because the three promissory notes were not yet due and demandable. A complaint whose cause of action has not yet accrued cannot be cured or remedied by an amended or supplemental pleading alleging the existence or accrual of a cause of action while the case is pending. alleging that petitioner. instead of paying the 15% monthly interest. which should be dismissed by the court upon proper motion seasonably filed by the defendant.000 payable after three years (200) from its date with a 15% interest per annum payable every three months. The trial court ruled that the first two promissory notes were already due and demandable and ordered Swagman to pay the amount of the checks plus 6% interest. 7. the notes were not yet due and demandable. IVAN VIKTOR (2D. Such an action is prematurely brought and is. unless a different period is fixed by the court. Christian filed a complaint for the unpaid loans. and (4) amended complaint-in-intervention. Swagman filed an Answer. occurrences or events which have happened since the date of the pleading sought to be supplemented may be permitted (1) upon motion of a party . a groundless suit. each in the amount of $50. and that all other matters included in the case may be determined in a single proceeding.  An answer earlier filed may serve as the answer to the amended complaint. but the complaint is defective for failure to allege the essential facts. it was cured when they became due during the trial.  If no new or filed— The answer serve as supplemental 11) supplemental answer is to the complaint shall the answer to the complaint. Inc. started paying only 6%. The underlying reason for this rule is that a person should not be summoned before the public tribunals to answer for complaints which are immature. (Sec. It thus follows that a complaint whose cause of action has not yet accrued cannot be cured or remedied by an amended or supplemental pleading alleging the existence or accrual of a cause of action while the case is pending. ’13) complaint is defective for failure to allege the essential facts. obtained from respondent Neal B. Applicability This Rule shall apply to the answer to (1) an amended counterclaim. Christian loans evidenced by three promissory notes dated 1997.

As found by the RTC. with 1% interest from October 1977.142. Four years later. INC. 1990) A supplemental pleading supplies deficiencies in aid of an original pleading not to entirely substitute the latter. therefore. The lease stipulated that if after termination of the lease. (Sec. that the private respondent be ordered to pay petitioner P34. private respondent did not controvert the evidence submitted by petitioner in determining the fair rental value of the premises including those imposed on all other tenants of petitioner occupying the Makati Arcade. and was granted. Anson alleged that Shoemart’s claim for increased rentals has been barred. the lease shall be understood to be on a month to month basis in the absence of a contrary written agreement. which Anson refused to pay. ISSUE: Whether the subsequently amended complaint in the case at bar renders the original complaint abandoned or inexistent NO. The supplemental pleading merely served to aver supervening facts which were then not ripe for judicial relief when the original pleading was filed. not to entirely substitute the latter. FACTS: Anson Emporium Corp. v. IVAN VIKTOR (2D.00 prayed for in the supplemental complaint as increased rental. Shoemart terminated the lease and gave notice to Anson to vacate. RTC granted this motion. CA affirmed the ejectment of respondent but reduced the damages awarded by stating that the 1% interest will start to run from October 1987. Rule 11) Distinguished from amended pleadings SHOEMART.142 alleged in the supplemental complaint. did not foreclose its right to demand increased rentals that may be recovered expressed in terms of the fair rental value or the reasonable compensation for the use and occupation of the real property. CA (190 SCRA 189.CIVIL PROCEDURE REVIEWER59 (2) reasonable notice and (3) upon such terms as are just Period to answer The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. The failure of petitioner to amend its complaint or file additional supplemental pleadings to allege subsequent rental increases is of no moment. the original complaint exists side by side with the supplemental complaint. respondent should have at least presented evidence to substantiate its claim. Supplemental pleadings are meant to supply deficiencies in aid of the original pleading and not to dispense with the latter. The RTC reversed the judgment and ordered Anson to vacate the premises and to pay P34. the effect of which is to render the original complaint abandoned or inexistent and let the amendment take form as the sole substitute upon which the case stands for trial. indeed. A complaint for ejectment was filed against him with the MTC. Private respondent sought the correction of the clerical error regarding date of the effectivity of the payment for damages. In view of the failure of private respondent to object to the presentation of evidence showing that there were four (4) rental increases on the subject premises although three (3) of said increases are not alleged in the pleadings. Unlike in an amended complaint. This is not a case of a complaint subsequently amended. saying it is less than what is really due. If. A supplemental complaint or pleading supplies deficiencies in aid of an original pleading. which the latter refused. A perusal of the original complaint shows that it prayed. (Anson) leased from Shoemart portion of a building for two years. ’13) . leave to file supplemental complaint which alleged that the rental of all tenants of the premises had been increased to P45. among others. Petitioner. Said motion was granted Petitioner's motion for reconsideration seeking the reinstatement of the RTC’s decision was denied. Shoemart asked for. Shoemart filed a motion for reconsideration of the award of damages.142 respectively for the two lease agreements.00. Shoemart permits Anson to remain. judgment may be rendered validly as regards the said increases or issues which shall be considered as if they have been raised in the pleadings.622. CA ruled that petitioner’s claim for damages is limited to the P45. Petitioner's recovery is not limited by the amount of P45. MTC ruled for Anson. 6. Anson remained in possession after the two-year period but on an increased rental. Private respondent failed to discharge its burden when it omitted to present any MENDEZ.622 and P45. The burden of proof to show that the rental demanded is unconscionable or exorbitant rests upon private respondent as the lessee. the rental increases were unconscionable.00 and all other rentals and charges that may be due until respondent vacates the premises.142.

Petitioner filed a motion for bill of particulars. Petitioner moved to dismiss the case on various grounds including the failure of the expanded Second Amended Complaint to state a cause of action. character. 1. Inc. all the other tenants did not question the reasonableness of the rental increases BILL OF PARTICULARS/INTERVENTION Bill of particulars Also called bill of definite statement  It is a motion that applies to any pleading which in the perception of the movant contains ambiguous allegations (Riano)  If a complaint makes out a cause of action. claiming that the general and sweeping allegations of the Second Amended Complaint and the purported illegal acts imputed to them as well as the alleged causes of actions are vague and ambiguous. but rather for a bill of particulars.CIVIL PROCEDURE REVIEWER60 evidence at all on what it considers is the fair rental value other than what were submitted by petitioner. and assist the court (7) Prevent injustice or do justice in the case when that cannot be accomplished without the aid of such a bill. The proper remedy is to file a motion for bill of particulars. the remedy is not a motion to dismiss. and extent of the cause of action or defense relied on by the pleader (4) Apprise the opposite party of the case which he has to meet (5) Define. As a matter of fact. indefinite. and (4) his acting as a dummy of corporations controlled by Romualdez and Marcos. 1993) MENDEZ. to the opposite party and the court as to the precise nature. FACTS: Cesar Virata was among the forty-four co-defendants of Benjamin (Kokoy) Romualdez in a complaint filed by the Sandiganbayan. particularize. thereby circumscribing them within determined confines and preventing surprises during trial. the ambiguity in some allegations or failure to allege facts with sufficient particularity does not justify the filing of a motion to dismiss. the last amendment thereto is denominated as Second Amended Complaint. and in order that he may set forth his defenses which may not be so readily availed of if the allegation controverted are vague. uncertain or are mere general conclusions” (Virata v. Office and Purpose  To seek an order from court directing the pleader to submit a bill of particulars which avers matters with “sufficient definiteness or particularity” to enable the movant to file his responsive pleading. The motion was denied by Sandiganbayan. (8) Proper preparation of a responsive pleading (9) Proper preparation of an intelligent answer. ’13) . The plaintiff alleged four actionable wrongs against petitioner: (1) his participation in the reduction of the electric franchise tax and the tariff duty of fuel oil imports by all public utilities (2) his participation in the the approval of the '3-Year Program for the Extension of MERALCO's Services to Areas’ (3) his participation in the formation of Erectors Holdings. Rule 12)  “The proper preparation of an intelligent answer requires information as to the precise nature. not contained in the pleading. and advised petitioner that if he perceive some ambiguity or vagueness therein. and limit or circumscribe the issues in the case (6) Expedite the trial. They are not averred with sufficient definiteness or particularity as would enable defendant Virata VIRATA v. The complaint was amended thrice. IVAN VIKTOR (2D. (Sec. scope.” (Tan v. character. Sandiganbayan)  “The proper office of a bill of particulars is to inform the opposite party and the court of the precise nature and character of the ccause of action. clarify. scope and extent of the cause of action in order that the pleader may be able to squarely meet the issues raised. SANDIGANBAYAN (221 SCRA 52. SC affirmed the Sandiganbayan. Sandiganbayan) Object and purpose of a Bill of particular: (1) Amplify or limit a pleading (2) Specify more minutely and particularly a claim or defense set up and pleaded in general terms (3) Give information.

uncertain or are mere general conclusions. character. ’13) party may be aided in framing his answering pleading and preparing for trial. It is erroneous to require disclosure of evidence relied upon by the adverse party in a motion for bill of particulars. and on the determination of the liability of defendant-movant after the trial proper. not contained in the pleading. Sandiganbayan partially granted the motion. it granted the motion with respect only to the fourth." This is absurd. It has also been stated that it is the function or purpose of a bill of particulars to (5) define. character. The proper preparation of an intelligent answer requires information as to the precise nature. Nor can We accept the public respondent's postulation that "any question as to the validity or legality of the transactions involved in the charges against defendantmovant is irrelevant and immaterial in the resolution of the instant incident. the petitioner would be hard put in meeting the charges squarely and in pleading appropriate defenses." It is the office or function. clarify. the appropriate remedy is to avail discovery procedures or pretrial. and (c) that the opposite MENDEZ. IVAN VIKTOR (2D. ISSUE: Whether the Motion for Bill of Particulars should be granted totally YES. scope. (2) specify more minutely and particularly a claim or defense set up and pleaded in general terms. for how may the petitioner set up a defense at the time of trial if in his own answer he was not able to plead such a defense precisely because of the vagueness or indefiniteness of the allegations in the complaint? Unless he pleads the defense in his answer. preventing surprises during the trial. petitioner seeks are "within his intimate or personal knowledge. indefinite. scope and extent of the cause of action in order that the pleader may be able to squarely meet the issues raised. character. and needless preparation for. Not satisfied with the partial grant of the motion. time and extent of the phrase 'active collaboration' would be a mere surplus age and would not serve any useful purpose" for precisely. of the four actionable wrongs. petitioner filed the instant petition under Rule 65 of the Revised Rules of Court. 1989) . Sandiganbayan) Notes: • • • If the purpose is for preparation for trial. he may be deprived of the right to present the same during the trial because of his waiver thereof. to (6) expedite the trial. to the opposite party and the court as to the precise nature. and extent of the cause of action or defense relied on by the pleader. Moreover. . the trial may be avoided.  To clarify allegations in the pleading TAN v. Since the issues have not as yet been joined and no evidence has so far been adduced by the parties the Sandiganbayan was in no position to conclude that the matters which the." in Section 1 of Rule 12 implies not just the opportunity to (8) properly prepare a responsive pleading but also to (9) prepare an intelligent answer. the phrase "to enable him properly to prepare his responsive pleading . and limit or circumscribe the issues in the case. of a bill of particulars to (1) amplify or limit a pleading. (a) to the end that the proof at the trial may be limited to the matters specified. and assist the court.CIVIL PROCEDURE REVIEWER61 to properly prepare his answer or responsive pleading. It was grave error for the Sandiganbayan to state that "[a]lleging the specific nature. as well as object or purpose. to prepare his answer… Any more ‘particulars’ in that event would be evidentiary in character. thereby circumscribing them within determined confines and. A general function or purpose of a bill of particulars is to (7) prevent injustice or do justice in the case when that cannot be accomplished without the aid of such a bill. (3) give information. the defendant. and (4) apprise the opposite party of the case which he has to meet. . A motion for bill of particulars to require a pleader to set forth matters showing jurisdiction of a court to render its judgment is not proper. since the other three actionable wrongs are not squarely under the Tantuico case. particularize. What is beyond its scope  “The complaint for which a bill for a more definite statement is sought need only inform the defendant of the essential (or ultimate) facts to enable him.” (Tan v. and (b) in order that surprise at. and in order that he may set forth his defenses which may not be so readily availed of if the allegations controverted are vague. which must be adduced at the trial proper. SANDIGANBAYAN (180 SCRA 34. without any amplification or particularization thereof. inasmuch as the same is a matter of defense which shall have its proper place during the trial on the merits.

The PCGG's complaint (as amended) does set out allegations. They cannot. 15 days after service of summons  If directed to a counterclaim. Subsequently. nominees. which. among others.CIVIL PROCEDURE REVIEWER62 The complaint for which a bill for a more definite statement is sought. or to furnish evidential information whether such information consists of evidence which the pleader proposes to introduce or of facts which constitute a defense or offset for the other party or which will enable the opposite party to establish an affirmative defense not yet pleaded. The same were accomplished through unacceptable machinations such as insider trading and similar acts. In essence. but this is no excuse for sloth on the part of the petitioners. Notwithstanding this. ISSUE: Whether the Motion for Bill of Particulars should be granted NO. (b) grant the motion outright. (b) paragraphs wherein contained. or agents". Through undue influence. 2. 10 days from service of the counterclaim  If directed to a reply. the court may (a) deny the motion outright. The remaining petitioners acted as their "dummies. FACTS: The PCGG filed a complaint against the twenty-two petitioners. demand for any more particulars without actually making the PCGG expose its evidence unnecessarily before the trial stage. The Complaint/Expanded Complaint is complete enough to perish fears of the PCGG pulling a surprise subsequently. interrelated to one another. the PCGG filed an Expanded Complaint. these are what the PCGG says: 1. or a proper object. 5. and plain speculations. 10 days from the service of said reply Requisites The motion shall point out (a) defects complained of. however. ’13) for a complaint. and denied reconsideration. The foregoing allegations of the PCGG are actionable wrongs that are proper MENDEZ. in violation of existing laws. the twenty-two petitioners moved for a bill of particulars. the remedy is to deny the same in their answer for lack of "knowledge or information sufficient to form a belief as to the truth of the said averments. need only inform the defendant of the essential (or ultimate) facts to enable the defendant to prepare an intelligent answer. or to state a cause of action or defense other than the one stated. If the petitioners are not aware of the PCGG's asseverations. Also it is not the office or function. . 3. IVAN VIKTOR (2D. and abuse of light they acquired shareholdings from various firms. The petitioner Lucio Tan was Mr. Marcos' business partner. or (c) hold a hearing on the motion. for which a motion for a more definite statement or for a bill of particulars allegedly lies. Together with the Marcoses. 2. 6. praying. 4. The PCGG's Complaint/Expanded Complaint is garbled in many respects.  If directed to a complaint.The respondent Court denied the petitioners' motion. of a bill of particulars to set forth the pleader's theory of his cause of action or a rule of evidence on which he intends to rely. The petitioners submit that the PCGG's averments are made up of bare generalizations. Rule 12) Upon receipt of the motion. for the return and reconveyance of all funds and other property impressed with constructive trust in favor of PCGG and the Filipino people. and (c) the details desired. coercion. and built a business empire therefrom. together with the late Ferdinand Marcos. Mrs. It is not the office of a bill of particulars to supply material allegations necessary to the validity of a pleading. They also unjustly enriched the petitioners at the expense of the Republic of the Philippines and the Filipino people. presumptuous conclusions of fact and law. inclusive of the Expanded Complaint. had already supplied or provided the specifications and particulars theretofore lacking in the original Complaint. Don Ferry. and Federico Moreno. The Sandiganbayan's decided that Paragraphs 14 to 15. When to file It should be filed before a responsive pleading. they maneuvered their way into these firms and acquired control thereof. are enough to support a formal civil charge. as well as funds and other property acquired by Defendants by abuse of right and power and through unjust enrichment. however confusingly put in print. or to change a cause of action or defense stated in the pleading. they are Action of the court (Sec. Imelda Marcos. which the clerk must immediately bring to the court’s attention.

Rule 19) Time to intervene— The motion to intervene may be filed at any time before rendition of judgment by the trial court. Rule 19) Legal interest— One that is actual and material. (Sec. in the matter in litigation. or b. b. (Sec. Rule 19)  It is never and independent proceeding. 3. but is ancillary and supplemental to an existing litigation. in whole or in part. 3. rights of the original parties and that the intervenor’s rights may not be fully protected in a separate proceeding. in the success of either of the parties. IVAN VIKTOR (2D. 1. 2.  It is a remedy by which a third party becomes a litigant therein to enable him to protect or preserve a right or interest which may be affected by such proceeding. 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. (Sec. or an interest against both. Who may intervene— (1) There must be a motion for intervention filed before rendition of judgment by the trial court. (3) The intervention must not unduly delay or prejudice the adjudication of the MENDEZ. Rule 19) He may. be allowed to intervene in the action.  A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. It cannot alter the nature of the action and the issues already joined.CIVIL PROCEDURE REVIEWER63 Compliance with order (Sec. CA (195 SCRA 740) (2) The movant must be a person who has c. the court may (a) order the striking out of a. with leave of court. the pleading. and a legal interest a. unless a different period is fixed by the court. Rule 12) If the motion is granted. ’13) . or (b) make such orders as it deems just (1) whether or not the intervention will unduly delay or prejudice adjudication of the rights of original parties.  within 10 days from notice of the order. 4. Rule 19) Answer to complaint-in-intervention— The answer to the complaint-in-intervention shall be filed within fifteen (15) days from notice of the order admitting the same. (Sec. or Ancillary to pending action SAW v. may be fully protected in a separate proceeding. It is neither compulsory nor mandatory but only optional and permissive   Pleadings-in-intervention— The intervenor shall file a complaint-inintervention if he asserts a claim against either or all of the original parties. portions thereof. 1. The court shall consider  unless court fixes a different period If order is not obeyed. (Sec. or in case of insufficient compliance. and the the (2) whether or not the intervenor’s rights INTERVENTION Intervention is the legal proceeding by which a person who is not a party to the action is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirements set by the Rules of Court. direct and of an immediate character. He shall file an answer-in-intervention if he unites with the defending party in resisting a claim against the latter. not merely contingent or expectant so that the intervenor will either gain or lose by the direct legal operation of the judgment Requisites.

Meanwhile. or otherwise qualified. and two lots owned by Freeman. The motion to intervene was denied. It is not an independent proceeding. v. The decision of the lower court had already become final and in fact had already been enforced. its President and General Manager. IVAN VIKTOR (2D. it does not vest the owner thereof with any legal right or title to any of the property. et al. Both requirements must concur as the first is not more important than the second. there is no more principal action to be resolved as a writ of execution had already been issued by the lower court and the claim of Equitable had already been satisfied.) moved to intervene. unless otherwise provided for by the statute or Rules of Court. and that intervention under Sec. prior to the dissolution of Freeman. ’13) or whether the intervenor's rights may be protected in a separate proceeding or not. FACTS: Equitable Banking Corporation (Equitable) filed a collection suit with preliminary attachment against Freeman. It is not an independent proceeding. The interest which entitles a person to intervene in a suit between other parties must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. but an ancillary and supplemental one which. While a share of stock represents a proportionate or aliquot interest in the property of the corporation. and the petitioners appealed to the Court of Appeals. direct and immediate and not simply contingent or expectant. if it exists at all. so Equitable secured a writ of execution. However. in the nature of things. Rule 12 of the Revised Rules of Court is proper only when one's right is actual. It may be laid down as a general rule that an intervenor is limited to the field of litigation open to the original parties. Exception METROPOLITAN BANK & TRUST CO. Intervention is "an act or proceeding by which a third person is permitted to become a party to an action or proceeding between other persons.CIVIL PROCEDURE REVIEWER64 Intervention is "an act or proceeding by which a third person is permitted to become a party to an action or proceeding between other persons. holding that the compromise agreement will not necessarily prejudice petitioners whose rights to corporate assets are at most inchoate. The CA sustained the denial of the motion for intervention. were levied upon and sold at public auction. 1990) The intervenor in a pending case is entitled to be heard like any other party. and [b] consideration must be given as to whether the adjudication of the rights of the original parties may be delayed or prejudiced. of petitionersmovants is indirect. Inc. There is therefore no more principal proceeding in which the petitioners may intervene. must be in subordination to the main proceeding. material. which is owned by the corporation as a distinct legal person. It may be laid down as a general rule that an intervenor is limited to the field of litigation open to the original parties. An intervenor’s petition showing it to be entitled to affirmative relief will be preserved and heard regardless of the disposition of the principal action. for the purpose of hearing and determining at the same time all conflicting claims which may be made to the subject matter in litigation. The petitioners (Ruben Saw. remote. and which results merely in the addition of a new party or parties to an original action. his interest in the corporate property being equitable or beneficial in nature. To allow intervention. In the case at bar. (2) Chiao Lian had no authority to contract such loans. Shareholders are in no legal sense the owners of corporate property. in the nature of things. the interest. Equitable and Chiao Lian entered into a compromise agreement which was approved by the lower court. (Freeman) and Saw Chiao Lian. consequential and collateral. PRESIDING JUDGE (182 SCRA 820. must be in subordination to the main proceeding. but an ancillary and supplemental one which. for the purpose of hearing and determining at the same time all conflicting claims which may be made to the subject matter in litigation. 2. contingent. Here. . [a] it must be shown that the movant has legal interest in the matter in litigation. MENDEZ. and (3) there was collusion between the officials of Freeman and Equitable in securing the loans. and which results merely in the addition of a new party or parties to an original action. it was not complied with. alleging that (1) the loan transactions between Chiao Lian and Equitable were not approved by the stockholders representing at least 2/3 of corporate capital. Inc. conjectural. ISSUE: Whether petitioners may be allowed to intervene in the action NO. unless otherwise provided for by the statute or Rules of Court.

Said units were purchased from Raycor Air Control systems. The parties to the original suit have no power to waive or otherwise annul the substantial rights of the intervenor. The clerk may issue an alias summons (1) on demand of the plaintiff. SUMMONS (RULE 14) Definition and purpose Summons is the writ by which the defendant is notified of the action brought against him. When an intervening petition has been filed. The complaint was later dismissed with prejudice when the parties agreed to a compromise settlement. the purpose of summons is not only to notify the defendant of the action. and the latter mortgaged its air conditioning units as security. Where a complaint in intervention was filed before plaintiff's action had been expressly dismissed. Rule 14) Issuance of alias summons— If a summons is returned without being served on any or all of the defendants. However. the plaintiff has no absolute right to put the intervenor out of court by the dismissal of the action. The defendants consortium filed their answer. which was granted. An intervenor's petition showing it to be entitled to affirmative relief will be preserved and heard regardless of the disposition of the principal action.9M. IVAN VIKTOR (2D. The right cannot be defeated by dismissal of the suit by the plaintiff after the filing of the petition and notice thereof to the other parties. has the effect of putting to rest only the respective claims of the said original parties inter se but the same cannot in any way affect the claim of private respondent which was allowed by the court to intervene without opposition from the original parties. A person who has an interest in the subject matter of the action has the right. A claim-in-intervention that seeks affirmative relief prevents a plaintiff from taking a voluntary dismissal of the main action. ISSUE: Whether or not the intervenor in a pending case is entitled to be heard like any other party YES. Subsequently. the server: (1) shall also serve a copy of the return on the plaintiff’s counsel. (Sec. An intervenor has the right to claim the benefit of the original suit and to prosecute it to judgment. It has even been held that the simple fact that the trial court properly dismissed plaintiff s action does not require dismissal of the action of the intervenor. ’13) established by the pleadings determined in such action. Raycor filed a motion for leave to intervene. to intervene and become a party to the suit. When GEE was foreclosed by BPI Consortium. on his own motion. the intervenor's complaint was not subject to dismissal on the ground that no action was pending. There is here no final dismissal of the main case. but also to acquire jurisdiction over his person.   Duty to issue The clerk of court shall issue the corresponding summons to the defendants (1) upon the filing of the complaint and (2) payment of the requisite legal fees. Service of summons is required even if the defendant is aware of the filing of the action against him.CIVIL PROCEDURE REVIEWER65 FACTS: Metrobank loaned Good Earth Emporium (GEE) P4. The reinstatement of the case in order to try and determine the claims and rights of the intervenor is proper. After the intervenor has appeared in the action. a plaintiff may not dismiss the action in any respect to the prejudice of the intervenor. The intervenor in a pending case is entitled to be heard like any other party. since dismissal of plaintiffs action did not affect the rights of the intervenor or affect the dismissal of intervenor's complaint. may proceed to have any actual controversy MENDEZ. and even after the complaint has been dismissed. 1. (3) within five (5) days from such failure. Metrobank filed a complaint for replevin to recover the units.000. (2) stating the reasons for the failure of service. . The joint motion of therein plaintiff and the original defendants to dismiss the case. In an action in rem or quasi in rem. The aforementioned order of the lower court has the effect not only of allowing the intervention suit to proceed but also of vacating its previous order of dismissal. Raycor was not completely paid by GEE on the installation costs to the extent of P150.   The issuance of summons mandatory on the part of the court. without informing the intervenor Raycor. The trial court's dismissal of plaintiff’s action does not require dismissal of the action of the intervenor. is In an action in personam. the purpose of summons is mainly to satisfy the constitutional requirements of due process. without notice to and consent of the intervenor.

or (4) any suitable person authorized by the court issuing the summons. if he refuses to receive and sign for it. for justifiable reasons. BUT such service shall not bind individually any person whose connection with the entity has. (1) upon all the defendants by serving upon any one of them. (Sec. Rule 14) On whom In general The clerk of court shall issue the corresponding summons to the defendants. Rule 14) Entity without juridical personality When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known. (5) treasurer. The summons shall contain: (a) the name of the court and the names of the parties to the action. BENITO (312 SCRA 65. (2) his deputy. a limited partnership. The officer upon whom service is made must be the one stated in the statute otherwise the service is insufficient. (3a) If with leave of court It shall be made (1) by motion. (Sec.. Villarosa.B. (3) general manager. FACTS: Petitioner E. shall be attached to the original and each copy of the summons. They further agreed that in case of litigation arising from any dispute. the venue shall be in the proper courts of Makati.B. (Sec. ’13) . (b) a direction that the defendant answer within the time fixed by these Rules. IVAN VIKTOR (2D. (2) by tendering it to him. 3. 6. Rule 14) Service in person on defendant— Whenever practicable. (2) in writing. V. plaintiff will take judgment by default and may be granted the relief applied for. LTD. and (c) a notice that unless the defendant so answers. and (3) under seal. been severed before the action was brought. 11. The private respondent subsequently filed a Complaint for Breach of Contract and Damages against the petitioner before the (3) supported by affidavit of the plaintiff or some person on his behalf. (2) managing partner. if any. and (4) setting forth the grounds for the application. upon due notice. the summons shall be served (1) by handing a copy thereof to the defendant in person. or (3) if the summons has been returned without being served (Sec. A copy of the complaint and order for appointment of guardian ad litem. (Sec. 8. service may be effected (2) signed by the clerk of court. 17. and private respondent Benita executed a deed of sale with development agreement wherein Villarosa agreed to develop certain parcels of land belonging to Benito into a housing subdivision for the construction of low cost housing units. (Sec. Rule 14) Form Content The summons shall be (1) directed to the defendant. Rule 14) List exclusive E. (3) other proper court officer. or MENDEZ. 1999) The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal requirements as to the manner in which summons should be served on a domestic corporation. (4) corporate secretary.CIVIL PROCEDURE REVIEWER66 (2) if the summons has been lost. 1. (Sec. or (2) upon the person in charge of the office or place of business maintained in such name. VILLAROSA & PARTNER CO. 5. Rule 14) Who serves The summons may be served by (1) the sheriff. or (6) in-house counsel. Rule 14) Associations Domestic Service upon domestic private juridical entity— Service may be made on (1) the president.

2008) (1) its executive head. (Sec. or like public corporations. 9. city or municipality. service may also be made. service shall be made (1) upon him personally and (2) on his legal guardian if he has one. (Sec. service may be effected on the Solicitor General. Rule 14) Prisoners When the defendant is a prisoner confined in a jail or institution. ’13) . by leave of court. or MENDEZ. Rule 14) MONTEFALCON v. 14. Rule 14) Insane. The court therefore acquires no jurisdiction over the person of the defendant. service shall be effected upon him  by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. limited and exclusive. 10. be effected upon him by (1) publication in a newspaper of general circulation and (2) in such places and for such time as the court may order. The trial court ruled in favor of respondent hence this petition. service shall be made (1) upon him personally and (2) on his legal guardian if he has one. or (2) whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry. Rule 14) Minors When the defendant is a minor. The courts therefore did not acquire jurisdiction over the person of the petitioner. Service may. The Service of Summons as well as the complaint was served upon the branch manager in Cagayan de Oro. 13. Rule 14 allows service to the general manager. The new rule specifically changed the proper recipient of a service from a mere manager to a general manager in order to prevent ambiguous and illogical interpretations in the future. not the branch manager. (Sec. IVAN VIKTOR (2D.CIVIL PROCEDURE REVIEWER67 Trial Court of Makati for lack of developments within the aforesaid properties. quasi in rem or personal Residents temporarily out When any action is commenced against a defendant who ordinarily resides within the Philippines. In the case at bar. service may be effected on (3) on his father or mother. such service is deemed insufficient. (Sec. VASQUEZ (554 SCRA 513. Public corporation When the defendant is the Republic of the Philippines. or (1) designated as an unknown owner. In the case of a minor. (Sec. or (2) on such other officer or officers as the law or the court may direct. Rule 14) Whether in rem. upon his guardian ad litem whose appointment shall be applied for by the plaintiff. since the service was given to a mere branch manager in one of petitioner’s branches instead of the general manager in its main office in Davao. 16. or if none. or if none. The enumeration of persons whom summons may be served is restricted. be also effected out of the Philippines by extraterritorial service. Section 11. by leave of court. Rule 14) or whereabouts Unknown defendant unknown Where the defendant is the like. In case of a province. service may. ISSUE: Whether the service of summons on the branch manager was proper NO. The maxim expression unios est exclusion alterius applies in this case. upon his guardian ad litem whose appointment shall be applied for by the plaintiff. incompetents When the defendant is insane or otherwise an incompetent. 10. Respondent says that the Service was improperly served since it was given to an employee in its branch office and not to one of the persons enunciated in Rule 14 section 11 of the ROC. (Sec. but who is temporarily out of it. Plaintiff filed a Special Motion to Dismiss alleging that the summons was improperly served and for lack of jurisdiction over the person of the defendant.

A Taguig deputy sheriff served it by substituted service on Vasquez's caretaker. the trial court declared Vasquez in default for failure to file an answer despite the substituted service of summons. the court granted petitioners' prayers. he argued that the trial court never acquired jurisdiction over his person. Petitioners argued that any attempt at personal service of summons was needless as Vasquez already left for abroad as an overseas MENDEZ. also received by the caretaker. She prayed that Vasquez be obliged to give support to Laurence. Camarines Sur. More importantly. Montefalcon filed a Complaint for acknowledgment and support against Ronnie S. Such failure should not unduly prejudice petitioners if what was undisclosed was in fact done. denied the motion. Vasquez's mother returned the documents to the clerk of court. In Montalban v. the caretaker who received the alias summons was of suitable age and discretion. Nabua. Vasquez was furnished with court orders and notices of the proceedings at his last known address. Vasquez before the RTC. Vasquez's grandfather received them as Vasquez was in Manila. The appellate court." it is not mandatory. The appellate court noted that the service of summons on Vasquez was "defective" as there was no explanation of impossibility of personal service and an attempt to effect personal service. who informed the court of the non-service of summons. ’13) seafarer when the sheriff served the summons in Taguig. It can be presumed that the caretaker must have informed him one way or another of the suit upon his return after finishing his nine-month contract with Fathom Ship Management. The sheriff's certificate of service of summons is prima facie evidence of the facts . The court added that Vasquez admitted the truth of the allegations by his silence. FACTS: Dolores P. In the same year. personal service of summons was not practicable since the defendant was temporarily out of the country. Appeal was granted. The court issued an alias summons on Vasquez at Taguigupon petitioners' motion. whose certificate of live birth he signed as father. or if this is not feasible within a reasonable time. To acquire jurisdiction over the person of a defendant. As an overseas seafarer. ISSUE: Whether there was a valid substituted service of summons YES. which was denied for lack of proper service of summons. Also. the absence in the final sheriff's return of a statement about the impossibility of personal service does not conclusively prove that the service is invalid. but to no avail. Summons in a suit in personam against a temporarily absent resident may be by substituted service as domiciliaries of a State are always amenable to suits in personam therein. alleging that her son Laurence Montefalcon is the illegitimate child of Vasquez. Because Section 16 of Rule 14 uses the words "may" and "also. Vasquez surfaced and filed a notice of appeal which petitioners opposed. however. service of summons must be personal. To proceed with personal service of summons on a defendant-seaman who went on overseas contract work would not only be impractical and futile. Hence. Another alias summons was issued. Vasquez was a Filipino resident temporarily out of the country. Other methods of service of summons allowed under the Rules may also be availed of by the serving officer on a defendant-seaman. A sheriff tried to serve the summons and complaint on Vasquez in Aro-aldao.CIVIL PROCEDURE REVIEWER68 The normal method of service of summons on one temporarily absent is by substituted service because personal service abroad and service by publication are not ordinary means of summoning defendants. There is no quarrel that it was really Vasquez's residence. In 2001. Section 16. service of summons on him is governed by Rule 14. Summons in a suit in personam against a temporarily absent resident may be by substituted service as domiciliaries of a State are always amenable to suits in personam therein. as evidenced by his employment contract. Maximo. Obviously. Before the appellate court. Petitioners then filed a motion to declare Vasquez in default. IVAN VIKTOR (2D. we held that the normal method of service of summons on one temporarily absent is by substituted service because personal service abroad and service by publication are not ordinary means of summoning defendants. then by substituted service. It is of judicial notice that overseas Filipino seafarers are contractual employees. then residing at Vasquez's dwelling. but these were returned as he had allegedly moved to another place and left no new address. executed under the supervision and authority of the POEA. The substituted service in Taguig was valid and justified because previous attempts were made by the sheriffs to serve the summons. which referred to extraterritorial service. On petitioners' motion. it would also be absurd.

in rem or quasi in rem.CIVIL PROCEDURE REVIEWER69 set out in it. actual or contingent. 2008) Where the defendant could not be personally served with summons despite diligent efforts to locate his whereabouts. Since petitioner could not be personally served with summons despite diligent efforts to locate his whereabouts. 15. On PNOC’s motion. 19. property within the Philippines. whether in personam. Rule 14) in rem. (3) or in any other manner the court may deem sufficient. (petitioner). a newspaper of general circulation in the Philippines. by leave of court. ’13) . Any order granting such leave shall specify a reasonable time. it now applies to any action. PNOC (556 SCRA 272. we agree that the presumption of regularity in the performance of duty on the part of the sheriff stands. d. as it was not executed by the Clerk of Court. Non-resident When the defendant (1) does not reside and is not found in the Philippines. The present rule expressly states that it applies "[i]n any action where the defendant is designated as an unknown owner.10 unpaid balance of the car loan advanced to Santos when he was still member of the board of directors. seeking to collect the P698. • in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant. The in rem/in personam distinction was significant under the old rule because it was silent as to the kind of action to which the rule was applicable. or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry. he may properly be served with summons of publication. respondent sought and was granted leave of court to effect service of summons upon him by publication in a newspaper of general circulation. in which the defendant has or claims a lien or interest. the trial court allowed service of summons by publication. Thus. IVAN VIKTOR (2D. Santos. in which the relief demanded consists. FACTS: PNOC Exploration Corp. When Santos failed to file his answer. and (2) the action affects a. or c. relates to. and not in personam NO. MENDEZ. The trial court granted the motion. Given the circumstances in the present case. He also claimed denial of due process for he was not notified of the trial court’s order.502. Jr. be effected out of the Philippines (1) by personal service as under section 6. petitioner was properly served with summons by publication. PNOC opposed the motion and insisted that it complied with the rules on service by publication. the personal status of the plaintiff or b. Rule 14. alleging that the affidavit of service submitted by PNOC failed to comply with Sec. Thereafter. or the subject of which is. wholly or in part. PNOC moved the case be set for the reception of its evidence ex parte. This has been changed. ISSUE: Whether there is improper service of summons because summons by publication only applies to actions in rem. which shall not be less than sixty (60) days after notice. or the property of the defendant has been attached within the Philippines. Because of this silence. (respondent) filed a complaint for a sum of money against Pedro T. Only clear and convincing evidence may overcome its presumption of regularity. within which the defendant must answer. in excluding the defendant from any interest therein. PNOC submitted the affidavit of publication of the advertising manager of Remate and an affidavit of service of the PNOC’s employee to the effect that he sent a copy of the summons by registered mail to Santos’ last known address. or (2) by publication in a newspaper of general circulation in such places and for such time as the court may order. PNOC then caused the publication of the summons in Remate. Personal service of summons to Santos failed because he could not be located in his last known address despite earnest efforts to do so. Service may. the Court limited the application of the old rule to in rem actions only. (Sec. An omnibus motion for reconsideration was then sought by Santos. The trial court denied Santos’ motion." Thus. or the like. quasi in rem SANTOS v.

Thus. the Sheriff just left a copy of the complaint to a guard.CIVIL PROCEDURE REVIEWER70 Service of summons by publication is proved by the affidavit of the printer. the duty to make the complementary service by registered mail is imposed on the party who resorts to service by publication. Rule 14) ROBINSON v. postage prepaid. business or advertising manager of the newspaper which published the summons. however. or of the editor. the Sheriff reported twice thereafter that the summons could not be served on petitioner. Petitioner Robinson contends that the service of the summons upon the subdivision guard is not in compliance with Section 7. Despite the explanations of the Sheriff. The trial court acquired jurisdiction over the person of petitioner by his own voluntary appearance in the action against him. 2006) MENDEZ. Rule 14 since (1) by handing a copy thereof to the defendant in person. She claimed that summons was improperly served upon her. (b) efforts were exerted to locate the party. Sheriff Pontente. A copy of the court Order was sent to petitioner by registered mail at her new address and a writ of execution was also issued. or (b) by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof. the guards didn’t let him in. Thereafter. the trial court issued an alias summons to be served at Muntinlupa City. service may be effected (a) by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein. alleging that $20. petitioner Robinson was declared in default for her failure to file an answer seasonably despite service of summons. Failure to do so would invalidate all FACTS: Respondent Celita Miralles filed a complaint for collection of sum of money against petitioner Remelita Robinson. so he will be the one to give the summons to petitioner Robinson. 7. the following circumstances must be clearly established: (a) personal service of summons within a reasonable time was impossible. his foreman or principal clerk. if he refuses to receive and sign for it. MIRALLES (510 SCRA 678. the defendant cannot be served within a reasonable time as provided in the preceding section. directed to the defendant by registered mail to his last known address." The rules. Again. the latter mode of service being a method extraordinary in character. personal service is generally preferred over substituted service. per return of service of the Sheriif. The trial court rendered its decision in favor of Miralles ordering Robinson to pay her obligations plus cost of damages. the summons shall be served Under our procedural rules. and (c) the summons was served upon a person of sufficient age and discretion residing at the party’s residence or upon a competent person in charge of the party’s office or place of business. petitioner no longer resides there. as shown in the MOA they both executed. (Sec. for justifiable causes. The service of summons by publication is complemented by service of summons by registered mail to the defendant's last known address. However. the trial court never acquired jurisdiction over her and that all its proceedings are void. Summons was served on Robinson at her given address. thus. For substituted service to be justified. 6. Robinson filed a petition for relief from the judgment by default.054 was borrowed by Robinson. IVAN VIKTOR (2D. This complementary service is evidenced by an affidavit "showing the deposit of a copy of the summons and order for publication in the post office. This was equivalent to service of summons and vested the trial court with jurisdiction over the person of petitioner. or (2) by tendering it to him. who refused to affix his signature on the original copy. Eventually. petitioner’s new address. While the trial court ordinarily does the mailing of copies of its orders and processes. do not require that the affidavit of complementary service be executed by the clerk of court. who was to serve the summons interposed that he was stopped by the Security Guard of Alabang Hills Village because they were allegedly told by Robinson not to let anyone proceed to her house if she is not around. Modes of service Personal Whenever practicable. Rule 14) Substituted If. ’13) . (Sec.

or c. personal service is generally preferred over substituted service. but who is temporarily out of it. Failure to do so would invalidate all subsequent proceedings on jurisdictional grounds. Although the SC have ruled that the statutory requirements of substituted service must be followed strictly. or (5) by publication in a newspaper of general circulation in such places and for such time as the court may order. be effected out of the Philippines (4) by personal service as under section 6. Publication Where the defendant is (2) in such places and for such time as the court may order. we agree with the trial court that summons has been properly served upon petitioner and that it has acquired jurisdiction over her. by leave of court. or the subject of which is. (Sec. or the property of the defendant has been attached within the Philippines. be also effected out of the Philippines by extraterritorial service. Rule 14) VALMONTE v. within which the defendant must answer. (Sec. 16. be effected upon him by (1) publication in a newspaper of general circulation and MENDEZ. Service may. Thus. Rule 14) Extraterritorial When the defendant (1) does not reside and is not found in the Philippines. property within the Philippines. (Sec. it was impossible for the sheriff to effect personal or substituted service of summons upon petitioner. in excluding the defendant from any interest therein. the latter mode of service being a method extraordinary in character. Where the action is in personam and the defendant is in the Philippines. ’13) . or the like. and (2) the action affects a. the Court frowns upon an overly strict application of the Rules. in which the defendant has or claims a lien or interest. faithfully. in which the relief demanded consists. IVAN VIKTOR (2D. Rule 14 of the 1997 Rules of Procedure. Any order granting such leave shall specify a reasonable time. It is the spirit. • in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant.CIVIL PROCEDURE REVIEWER71 he is not related to her or staying at her residence. that governs. by leave of court. Obviously. or (2) whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry. as required by the rule. 15. For substituted service to be justified. wholly or in part. the service of summons may be made through personal or substituted service in the manner provided for in Sections 6 and 7. actual or contingent. Service may. by leave of court. Under our procedural rules. and (c) the summons was served upon a person of sufficient age and discretion residing at the party’s residence or upon a competent person in charge of the party’s office or place of business. the following circumstances must be clearly established: (a) personal service of summons within a reasonable time was impossible. service may. (b) efforts were exerted to locate the party. 14. which shall not be less than sixty (60) days after notice. rather than the letter of the procedural rules. CA (252 SCRA 92. as amended. We note that she failed to controvert the sheriff’s declaration. relates to. d. ISSUE: Whether the substituted service of summons effected is valid YES. (6) or in any other manner the court may deem sufficient. Nor did she deny having received the summons through the security guard. 1996) (1) designated as an unknown owner. she must bear its consequences. the personal status of the plaintiff or b. and fully and any substituted service other than that authorized by the Rules is considered ineffective. Considering her strict instruction to the security guard. When any action is commenced against a defendant who ordinarily resides within the Philippines. Rule 14) Residents temporarily out of the Philippines.

service of summons on her must be in accordance with Rule 14. (2) by publication in a newspaper of general circulation in such places and for such time as the court may order. filed a complaint for partition of real property and accounting of rentals against petitioners Valmonte spouses. who has a law office in the Philippines NO. Ltd. But the said Alias Summons was served and received by Perkin-Elmer Asia (PEA). together with the Amended Complaint claiming that (1) PEA had become a sole proprietorship owned by the PES. DAKILA Extraterritorial service of summons applies only where the action is in rem or quasi in rem. RTC granted the motion. PERKIN ELMER TRADING (530 SCRA 170) SINGAPORE v. Lourdes Valmonte is a foreign resident. Perkin-Elmer Instruments Philippines Corporation (PEIP). (3) such changes did not avoid its due and outstanding obligations to Dakila. Dakila filed another Motion for the Issuance of Summons and for Leave of Court to Deputize DGM to serve summons outside the Philippines. Private respondent's action. Dakila filed Ex-Parte Motions for Issuance of Summons and for Leave of Court to Deputize Dakila’s General Manager (DGM) to Serve Summons Outside of the Philippines. IVAN VIKTOR (2D. compelling the latter to file its Answer to the Amended Complaint. ISSUE: Whether in an action for partition filed against her and her husband. Meanwhile. in which case a copy of the summons and order of the court should be sent by registered mail to the last known address of the defendant. Such an action is essentially for the purpose of affecting the defendant's interest in a specific property and not to render a judgment against him. summons intended for her may be served on her husband. RTC thus issued summons and the DGM went to Singapore and served summons on PES. an Alias Summons was issued by the RTC to PES. FACTS: Dakila Trading Corp (Dakila) entered into a Distribution Agreement with PerkinElmer Singapore Pte.CIVIL PROCEDURE REVIEWER72 As petitioner Lourdes Valmonte is a nonresident who is not found in the Philippines. must be made either (1) by personal service. sister of petitioner Lourdes Valmonte. §17. §17. to be effective outside the Philippines. prohibition and mandamus with the Court of Appeals. Valmonte in default. which it shall sell in the Philippines. PEIP moved to dismiss the Complaint filed by Dakila. RTC denied respondent’s prayer. (2) by publication in a newspaper of general circulation in such places and for such time as the court may order. The RTC denied private respondent's motion to declare petitioner Lourdes A. A motion for reconsideration was similarly denied. Washington. either from PES itself or from PEIP. RTC admitted the Amended Complaint. who is also her attorney. PES unilaterally terminated the Distribution Agreement. As petitioner Lourdes Valmonte is a nonresident who is not found in the Philippines. to be effective outside the Philippines. on the other hand. in which case a copy of the summons and order of the court should be sent by registered mail to the last known address of the defendant. is in the nature of an action quasi in rem. (PES) which appointed Dakila as sole distributor of its products in the Philippines. Dakila was granted the right to purchase and sell the products of PES. or (3) in any FACTS: Rosita Dimalanta. MENDEZ. Dakila filed an Ex-Parte Motion to Admit Amended Complaint. which is for partition and accounting under Rule 69. Private respondent filed a petition for certiorari. RTC denied the Motion to Dismiss filed by PEIP. PES was obligated to give Dakila a commission for the sale of its products in the Philippines. a corporation allegedly unrelated to PES. service of summons on her must be in accordance with Rule 14. RTC granted this motion. Thus. but not if an action is in personam. Such service. PEA. (2) PES changed its name to PEA. prompting Dakila to file before the RTC a Complaint for Collection of Sum of Money and Damages with Prayer for Issuance of a Writ of Attachment against PES and its affiliate. ’13) . and (4) the name of PES in the complaint should be changed to PEA. or (3) in any other manner which the court may deem sufficient. Accordingly. sent letters to Dakila and RTC to inform them of the wrongful service of summons. However. must be made either (1) by personal service. Such service. The agreement further stipulated that Dakila shall order the products of PES. The Court of Appeals rendered a decision granting the petition and declaring Lourdes in default. A copy of the appellate court's decision was received by petitioner Lourdes’ husband at his Manila law office and in Seattle.

the main subject matter of the action must be the property itself of the PES in the Philippines and in such instance. Rule 14 of the Rules of Court. make the extraterritorial service of summons upon the petitioner valid. Moreover. PES filed a Petition for Certiorari under Rule 65 with application for temporary restraining order and/or preliminary injunction before the CA.CIVIL PROCEDURE REVIEWER73 PES filed with the RTC a Special Appearance and Motion to Dismiss the Amended Complaint. in the form of shares of stock in PEIP. because the case involving collection of a sum of money and damages is an action in personam. subsequently. subsequently. or an actual or contingent lien. The 2nd instance for extra-territorial service has no application in the case. had not been attached. and this is not possible in the present case because the PES is a non-resident and is not found within the Philippines. The action instituted by Dakila affects the parties alone. It held that even though the Amended Complaint is primarily for damages. judgment will be limited to the res. being an action in personam. to which the latter has a claim interest. What is required is not a mere allegation of the existence of personal property belonging to the non-resident defendant within the Philippines but that the non-resident defendant’s personal property located within the Philippines must have been actually attached. RICAFORT-BAUTISTA (506 SCRA 322. IVAN VIKTOR (2D. but not if an action is in personam. The action for collection of a sum of money and damages was purely based on the personal liability of the PES. In the case at bar. being an action in personam. Thus. Registered summons mail invalid service of Voluntary appearance The defendant’s voluntary appearance in the action shall be equivalent to service of summons. Dakila’s allegation in its Amended Complaint that PES had personal property within the Philippines in the form of shares of stock in PEIP did not make the case fall under any of the four instances mentioned in Section 15. because the case involving collection of a sum of money and damages is an action in personam. The CA affirmed the RTC Orders. Rule 14 of the Rules of Court. there can never be a valid extraterritorial service of summons upon it. PES’s personal property within the Philippines. not the whole world. Moreover. as to convert the action in personam to an action in rem or quasi in rem and. Dakila’s allegation in its Amended Complaint that PES had personal property within the Philippines in the form of shares of stock in PEIP did not make the case fall under any of the four instances mentioned in Section 15. For the action to be one falling under the 2nd instance. the case for collection of sum of money and damages remains an action in personam. so as to qualify said case under the 4th instance of extra-territorial service. which were denied. hence. it does relate to a property of PES. In the case at bar. MENDEZ. there can never be a valid extraterritorial service of summons upon it. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. Rule 14) CEZAR v. and this is not possible in the present case because the PES is a non-resident and is not found within the Philippines. as it deals with the personal liability of PES by reason of the alleged unilateral termination of the Distribution Agreement. as to convert the action in personam to an action in rem or quasi in rem and. However. ’13) Neither does the allegation that PES had personal property within the Philippines in the form of shares of stock in PEIP convert the case from an action in personam to one quasi in rem. Thus. personal service of summons within the Philippines is necessary in order for the RTC to validly acquire jurisdiction over the person of PES. the allegations made by the respondent that the petitioner has property within the Philippines in support of its application for the issuance of a writ of attachment was actually denied by the RTC. (Sec. make the extraterritorial service of summons upon the petitioner valid. not the whole world. Evidently. The action instituted by Dakila affects the parties alone. 20. as it deals with the personal liability of PES by reason of the alleged unilateral termination of the Distribution Agreement. 2006) . which will make it fall under one of the requisites for extraterritorial service. personal service of summons within the Philippines is necessary in order for the RTC to validly acquire jurisdiction over the person of PES. Extraterritorial service of summons applies only where the action is in rem or quasi in rem. ISSUE: Whether summons were properly served under the 2nd or 4th instance of extraterritorial service NO. The objective sought in Dakila’s Complaint was to establish a claim against PES. The objective sought in Dakila’s Complaint was to establish a claim against PES.

for example. Petitioner filed before the CA a Petition for Annulment of Judgment. we held that an appearance in whatever form without expressly objecting to the jurisdiction of the court over the person. which was also denied for failure to comply with procedural requirements. ISSUE: Whether the court acquired jurisdiction over the person of the petitioner by virtue of the substituted service of summons effected by the sheriff MENDEZ. private respondent moved that he be declared in default. the Rules permit that substituted service may be resorted to. petitioner’s filing of a Motion for Re-setting of the Hearing effectively cured the defect of the substituted service of summons. Hence. thus: He may appear without such formal appearance and thus submit himself to the jurisdiction of the court. Zurbito. by way of special appearance. BRITISH AIRWAYS (615 SCRA 380. was a native of Batangas and was merely peddling mango seedlings within the vicinity of his office when the summons was served. Petitioner’s insistence of lack of jurisdiction over his person is utterly lacking in any legal basis. In Flores v. 2010) A defendant who files a motion to dismiss. the sheriff employed the substituted service of summons. Private respondent filed a Motion to Admit Amended Complaint alleging that it erroneously computed petitioner’s obligation to be P1. LHUILLER v. In the event that summons cannot be served within a reasonable time. together with other grounds raised therein. Petitioner. and under the terms of the credit arrangement. The court ruled in favor of plaintiff. was not petitioner’s employee. A copy of the motion and the Amended Complaint were personally received by petitioner as evidenced by his signatures thereon. and this was received by a certain Robles. is not deemed to have appeared voluntarily before the court . Private respondent filed a Motion for Execution before the trial court.000. The defect. Although the substituted service upon him of summons was defective. ’13) NO. petitioner filed before this Court a Petition for Review on Certiorari of the resolutions of the CA.005. It must be emphasized that laws providing for modes other than the personal service of summons must be strictly followed in order for the court to acquire jurisdiction over the person of respondent or defendant. is a submission to the jurisdiction of the court over the person of the defendant or respondent. IVAN VIKTOR (2D. summons was issued. The person who allegedly received the summons was identified in the sheriff’s return as Arsenio Robles. argued that the trial court did not acquire jurisdiction over his person. materials sold to petitioner were supposed to be paid within 30 days from date of delivery. Preliminary Injunction with Prayer for Temporary Restraining Order. as well as the affidavits of witnesses or document supporting the defense. This motion was granted. The Amended Complaint was ordered admitted. As the sheriff’s return in the present case does not contain any statement with regard to the impossibility of personal service the same is patently defective and so the presumption of regularity in the performance of official functions will not lie.” Petitioner filed a motion for reconsideration but this was denied. At the time of the institution of the action. He may appear by presenting a motion.00. when it should have amounted to P2. This motion was denied.00. After the filing of the complaint. As petitioner failed to file his answer to the complaint. said defect was cured by his voluntary appearance.860. FACTS: Private respondent Specified Materials Corporation filed a Complaint for collection of sum of money against petitioner Cezar due to the latter’s failure to pay the construction materials it purportedly purchased under a credit line extended by private respondent. he thereby gives his assent to the jurisdiction of the court over his person. Following this set-back. In this case.CIVIL PROCEDURE REVIEWER74 The SC still holds that jurisdiction was validly acquired by the trial court. and unless by such appearance he specifically objects to the jurisdiction of the court. ISSUE: Whether petitioner’s voluntary appearance cured the defect in service of summons. in the manner in which he implemented this mode of service of summons is readily apparent on the face of the return. in this case. Our resolution became final and executory. YES. assailing the jurisdiction of the court over his person. This petition was dismissed for “failure to attach an affidavit of merit alleging the facts supporting the good and substantial defense.00. subject to a 3% interest per month for delayed payments. however.000. petitioner’s obligation stood at P1.860.000.

uneducated. petitioner filed a Motion to Resolve Pending Incident and Opposition to Motion to Dismiss. ’13) Urgent Ex-Parte Motion to Admit Formal Amendment to the Complaint and Issuance of Alias Summons. petitioner filed an MENDEZ. Italy. to assist her in placing her hand-carried luggage in the overhead bin. United Kingdom or Rome. NO. Subsequently.S. Ancheta. it was alleged that the case must be dismissed for lack of jurisdiction over the person of the respondent because the summons was erroneously served on Euro-Philippine Airline Services. Allegedly. What the rule on voluntary appearance means is that the voluntary appearance of the defendant in court is without qualification. Italy is petitioner’s place of destination. the special appearance of the counsel of respondent in filing the Motion to Dismiss and other pleadings before the trial court cannot be deemed to be voluntary submission to the jurisdiction of the said trial court.A. in seeking remedies from the trial court through special appearance of counsel. Kerrigan made her appear to the other passengers to be ignorant. Likewise. together with a copy of the complaint. Italy. Respondent. Kerrigan. which are both signatories to the Warsaw Convention. Summons. United Kingdom to Rome. was served on the respondent through Echevarria. one of the respondent’s flight attendants. Return of service When the service has been completed. since respondent is domiciled in London. stupid. Inc. which is not its resident agent in the Philippines. was between the United Kingdom and Italy. in filing its motion to dismiss may be deemed as having in fact and in law submitted itself to the jurisdiction of the lower court. . (1) within five (5) days therefrom. IVAN VIKTOR (2D. where the alleged tortious conduct occurred. then the jurisdiction over the subject matter of the action is governed by the provisions of the Warsaw Convention. Halliday allegedly refused to help and assist her. then it follows that the complaint should only be filed in the proper courts of London. I would have a broken back!" Petitioner further alleged that when the plane was about to land in Rome. Italy. petitioner assured Kerrigan that she knew the plane’s safety regulations being a frequent traveler. However. Italy. However. in which case he is deemed to have waived his defense of lack of jurisdiction over his person due to improper service of summons. she allegedly requested Halliday. Once on board.CIVIL PROCEDURE REVIEWER75 FACTS: Lhuillier took respondent British Airway’s flight 548 from London. Since the Warsaw Convention applies in the instant case. ISSUE: Whether British Airways. together with other grounds raised therein. filed a Motion to Dismiss on grounds of lack of jurisdiction over the case and over the person of the respondent. Petitioner alleged that upon verification with the SEC. petitioner bought her ticket in Italy (through Jeepney Travel S. assailing the jurisdiction of the court over his person." Upon arrival in Rome. Instead of filing a Comment/Opposition. Kerrigan allegedly thrust his face a mere few centimeters away from that of the petitioner and menacingly told her that "We don’t like your attitude. petitioner complained to respondent’s ground manager and demanded an apology. Respondent alleged that only the courts of London. A special appearance before the court––challenging its jurisdiction over the person through a motion to dismiss even if the movant invokes other grounds––is not tantamount to estoppel or a waiver by the movant of his objection to jurisdiction over his person. respondent’s principal place of business is in London. In this case. singled her out from among all the passengers in the business class section to lecture on plane safety. is not deemed to have appeared voluntarily before the court. a defendant who files a motion to dismiss." Thus. United Kingdom or Rome. The Warsaw Convention has the force and effect of law in this country. Respondent. and such is not constitutive of a voluntary submission to the jurisdiction of the court. another flight attendant. Thus. in Rome). the latter declared that the flight stewards were "only doing their job. the server shall. The Warsaw Convention applies because the air travel. have jurisdiction over the complaint for damages pursuant to the Warsaw Convention. General Manager of EuroPhilippine Airline Services. Thus. and Rome. petitioner filed the complaint for damages. Thereupon. Affronted. she found out that the resident agent of respondent in the Philippines is Alonzo Q. by way of special appearance through counsel. and even sarcastically remarked that "If I were to help all 300 passengers in this flight. Inc. is not deemed to have voluntarily submitted itself to the jurisdiction of the trial court. and in need of lecturing on the safety rules and regulations of the plane.

and May be oral General rule: All motions shall be in writing. (2) Motion for new trial. 18. ’13) . personally or by registered mail. Rule 14) Proof of service The proof of service of a summons shall be (1) made in writing by the server and (2) shall set forth the manner. Rule 15) Form General rule: All motions shall be in writing. 10. service may be proved by (1) the affidavit of the printer. (Sec. to the plaintiff’s counsel. or of the editor. business or advertising manager. (6) Memoranda. 4. (3) Motion for new trial. (9) Dilatory motions for postponement (10) Reply. (Sec. directed to the defendant by registered mail to his last known address. 9. (Sec. and (3) an affidavit showing the deposit of a copy of the summons and order for publication in the post office. (4) Motion for extension of time to file pleadings. 19. (5) Memoranda. (8) Dilatory motions for postponement (9) Reply. IVAN VIKTOR (2D. (Sec. affidavits and other papers. (5) Motion for extension of time to file pleadings. 2. and (3) shall return the summons to the clerk who issued it. Exception Motions made in open court or in the course of a hearing or trial. except on ground of lack of jurisdiction’ (2) Motion for bill of particulars. (3) signature. 1. (2) designation. Rule 15) Prohibited motion The following pleadings and motions are prohibited in a summary procedure: (1) Motion to dismiss except on the ground of lack of jurisdiction over subject matter and failure to comply with barangay conciliation proceedings. (3) Petition for relief from judgment. affidavits and other papers. or for reopening of trial. (Sec. or for reopening of trial. (7) Motion to declare the defendant in default. (4) accompanied by proof of service. and (4) other matters of form. (2) an attached copy of the publication. 2. (7) Petition for certiorari. (4) Petition for relief from judgment. (5) shall be sworn to when made by a person other than a sheriff or his deputy. and mandamus or prohibition against an interlocutory order of the court. his foreman or principal clerk. Rule 14) Publication If the service has been made by publication. (10) Third-party complaints. (Sec. (11) Interventions. (3) shall specify any papers which have been served with the process and (4) the name of the person who received the same. Rule 14) (6) Petition for certiorari. postage prepaid. place. (8) Motion to declare the defendant in default. Rule 15) MENDEZ. The following are prohibited in Small Claims Cases: (1) Motion to dismiss the complaint. MOTIONS (RULE 15) In general A motion is an application for relief other than by a pleading. (Sec. Rule 15) Motion for leave A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted. Rule 15) Generally The Rules applicable to pleadings shall apply to written motions so far as concerns (1) caption. Exceptions: (1) Motions made in open court or (2) Motions made in the course of a hearing or trial. (Sec. or for reconsideration of a judgment. and mandamus or prohibition against an interlocutory order of the court.CIVIL PROCEDURE REVIEWER76 (2) serve a copy of the return. or for reconsideration of a judgment. and date of service.

INC.” The MTC ruled that the notice did not conform with the mandatory requirements of Section 5. respondent finished presenting his evidence and rested his case. (2) shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. Interventions. Contents A motion shall (1) state the relief sought to be obtained (2) the grounds upon which it is based. (Sec. 3. (2) there is another action pending between the same parties for the same cause. and all objections not so included shall be deemed waived. Counsel for petitioner VLI filed a motion to withdraw as counsel. The Notice of Hearing therein stated: "Please submit the foregoing Motion for Reconsideration for hearing before the CA at a schedule and time convenient to the Court and the parties. Rule 15. (Sec. (Sec. Inc. IVAN VIKTOR (2D. The case was deemed submitted for judgment and the MTC ruled in favor of respondent Malinias. order. if required by these Rules or necessary to prove facts alleged therein. Exception: Motions which the court may act upon without prejudicing the rights of the adverse party. the bus driver was dropped as defendant in the case.CIVIL PROCEDURE REVIEWER77 (11) (12) Third-party complaints. During trial. (Sec. but both vehicles were damaged. v. 1. ordering VLI to pay him. Rule 15) Omnibus motion rule A motion attacking a pleading. Rule 15) General rule: without compliance — scrap of paper A motion which does not meet the requirements of Sections 4 and 5 of Rule 15 is a mere scrap of paper which the clerk of court has not right to receive and the trial court has no authority to act upon. Rule 15) NOTE: Every written motion required to be heard and the notice of the hearing thereof shall be served (1) in such a manner as to ensure its receipt by the other party (2) at least three (3) days before the date of hearing. no appearance was made for the bus company. 4. Defective notice of hearing VICTORY LINER. Rule 9) Notice of hearing General Rule: Every written motion shall be set for hearing by the applicant. When the case was called for reception of petitioner’s evidence. 8. VLI’s new counsel filed a Motion for Reconsideration. 5. no motion shall be acted upon by the court without proof of service of the notice thereof. alleging pecuniary damage to the truck worth P47. and (3) shall be accompanied by supporting affidavits and other papers. but the same was denied. MALINIAS (2007) Under Sections 5 and 6 of Rule 15. judgment. or that (3) the action is barred by a prior judgment or (4) barred by the statute of limitations. except when the court is satisfied that the rights of the adverse party are not affected. (VLI) and an Isuzu Truck used by respondent Michael Malinias. Rule 15) Exceptions The court shall dismiss the claim when it appears from the pleadings or the evidence on record that (1) the court has no jurisdiction over the subject matter. No one died.180 representing lost income for the non-use of the truck. Notice of hearing— The notice of hearing shall be (1) addressed to all parties concerned. FACTS: A vehicular collision happened between petitioner Victory Liner. ’13) . Respondent thus moved that petitioner be declared to have waived its right to adduce evidence in its favor. Malinias filed a complaint for damages against petitioner and the bus driver. Leoncio Bulaong with the MTC. and that the motion was thus a mere scrap of paper which did not suspend the period to appeal. and MENDEZ. the notice of hearing shall be addressed to the parties concerned and shall specify the time and date of the hearing of the motion. unless the court for good cause sets the hearing on shorter notice. After pretrial. (Sec. or proceeding shall include all objections then available.

which governs petitions for relief from judgment. and not more than six (6) months after such judgment or final order was entered. restatement of salary appropriations as well as reinstatement. The court below granted such motion and dismissed said petition. The MTC ruled that it had been filed beyond the reglementary period. Unless the movant sets the time and place of hearing. For one. which was granted. ISSUE: Whether the dismissal order issued without any hearing on the motion to dismiss is void NO. The question raised in the motion is purely one of law. has been prevented from taking an appeal. including the President but was disappointed.CIVIL PROCEDURE REVIEWER78 Petitioner VLI thereafter filed a Notice of Appeal and a motion for the inhibition by the MTC. and upon the expiration of the 15-day period. He then went to the court seeking mandamus praying for annulment of the resolution. by fraud. Again. and if he objects. since the rules themselves do not fix any period within which he may file his reply or opposition. Exceptions Motions which may be granted ex parte An ex parte motion does not require that parties be hard. accident. or excusable negligence. ’13) order is rendered by any court in a case. and a summary judgment are litigated motions. yet it is because of his . The most crucial failure on the part of petitioner was to file a Motion for Reconsideration of the MTC Judgment which contained a defective Notice of Hearing. the effect would have been to void the MTC’s denial of the Motion for Reconsideration. A motion without a notice of hearing is pro forma. as it provides that "[w]hen a judgment or final MENDEZ. mistake. the court will be unable to determine whether the adverse party agrees or objects to the motion. Indeed. Petitioner’s counsel moved to postpone the hearing. it more crucially failed to toll the period to appeal. The RTC affirmed the judgment of the MTC and held the decision final and executory. Not only did the defect render the motion for reconsideration itself unworthy of consideration. Under Sections 5 and 6 of Rule 15. NOTE: A motion to dismiss. the questioned order or decision becomes final and executory. he may file a petition [for relief from denial of appeal] in such court and in the same case praying that the appeal be given due course. The facts of this case indicate that petitioner could have timely resorted to this remedy. but failed to appear. except when the court is satisfied that the rights of the adverse party are not affected. a mere scrap of paper that does not toll the period to appeal. Another remedy for the petitioner is found under Rule 38. If that remedy were successful. Where adverse party had opportunity to oppose LANTO v. a motion for judgment on the pleadings. oral arguments on the motion are reduced to an unnecessary ceremony and should be overlooked. reverted a previous salary appropriation for the position of Assistant Provincial Assessor to the general fund. Hence this appeal. An example is a motion to set the case for pre-trial. DIMAPORO (16 SCRA 599. who was tasked to rule on the Notice of Appeal. failing as it did to set a date for hearing. Rule 38 finds specific application in this case. That did not mean that petitioner was left bereft of further remedies under our Rules. payment of backwages. the MTC reiterated its initial judgment in favor of Malinias since the fatally defective MR did not toll the reglementary period for appeal. Petitioner was given the chance to adduce his case. the notice of hearing shall be addressed to the parties concerned and shall specify the time and date of the hearing of the motion. 7. FACTS: Resolution No. In effect. no motion shall be acted upon by the court without proof of service of the notice thereof. He sought relief to various government officials."36 Such petition should be filed within sixty (60) days after the petitioner learns of the judgment or final order. Respondents moved to dismiss stating lack of cause of action. ISSUE: Whether the Notice of Hearing filed was defective YES. adopted by the Provincial Board of Lanao del Norte. that position then held by petitioner was then abolished. and a party thereto. petitioner could have assailed the MTC’s denial of the Motion for Reconsideration through a special civil action for certiorari under Rule 65 alleging grave abuse of discretion amounting to lack of jurisdiction on the part of the MTC in denying the motion. The case was assigned to a new MTC judge. IVAN VIKTOR (2D. Section 2. thus allowing petitioner to again pursue such motion as a means towards the filing of a timely appeal. to hear him on his objection. In this posture. 1966) Existence of a cause of action or lack of it is determined by a reference to the facts averred in the challenged pleading.

The Motion contained a notice of hearing sent to Atty. ISSUE: Whether the motion for reconsideration filed by Vlason was void for not containing a notice of hearing to Duraproof’s counsel NO. Vlason Enterprises filed a Motion for Reconsideration addressed to Duraproof’s counsel. on the ground that it was allegedly not impleaded as a defendant. Duraproof moved for the execution of judgment. Atty. Commissioner Mison. Duraproof opposed the Motion. Inc. or any prayer for relief against it. But here the Motion to Dismiss is grounded on the lack of cause of action. FACTS: Duraproof sought to enforce its preferred salvors lien by filing with the RTC a petition for certiorari. so there could not have been any valid default-judgment rendered against it. causing irreparable damages of about P3 Million worth of ship tackles. The Motion was granted and a Writ of Execution was issued. Concepcion who had already died and had since been substituted by Duraproof’s new counsel. Out of those respondents. since it had been served summons when the second amended petition was filed. without any clear showing to the contrary. Although Rule 15 of the Rules of Court requires Vlason Enterprises to address and to serve on the counsel of Duraproof the notice of hearing of the Motion for Reconsideration. and other companies involved. In this posture. except Vlason. oral arguments on the motion are reduced to an unnecessary ceremony and should be overlooked. rigs. The question raised in the motion is purely one of law. because it contained no notice of hearing addressed to the counsel of Duraproof in violation of Rule 16. Duraproof moved several times to declare the respondents it impleaded in default. arguing that it was a mere scrap of paper due to its defective notice of hearing. M/V Star Ace and Omega. Concepcion. (2) The issuance of an order of default is a condition sine qua non in order that a judgment by default be clothed with validity. there is a presumption of regularity within the actions of the court with regard to entertaining motions. Duraproof and the other companies entered into a compromise agreement. through constant intimidation and harassment in utilizing the PPA Management of La Union. The hearing for the Motion to Dismiss was set. Duraproof filed an ex parte Motion to present evidence against the defaulting respondents. the case at bar. CA (330 SCRA 26. Duraproof alleged that Vlason Enterprises. as respondents. Vlason Enterprises was not validly summoned and it did not participate in the trial of the case in the . which was granted. Furthermore. It impleaded PPA and Med Line Philippines. served summons or declared in default. In the case at bar. ’13) following were declared by RTC in default: the Singkong Trading Co. Atty. IVAN VIKTOR (2D. The CA ruled that there was no need to serve summons anew on Vlason Enterprises. One good reason for the statutory requirement of hearing on a motion is to enable the suitors to adduce evidence to support their claims. Duraproof failed to allege anything pertaining to Vlason Enterprises. is far from ideal. the circumstances clearly justify a departure from the literal application of the notice of hearing rule. First. caused Duraproof to incur heavy overhead expenses. VLASON ENTERPRISES CORP v. including Vlason Enterprises. In both Petitions. which were taken surreptitiously by persons working for Vlason Enterprises or its agents. prohibition and mandamus assailing the actions of the Customs Officers in forfeiting the vessel and cargo owned by Omega. and was granted by the trial court 30 days to file his opposition to it. yet the petitioner failed to appear (only his counsel showed up). Moreover.. and appurtenances including radar antennas and apparatuses. Section 4 of the Rules of Court. and that Vlason Enterprisess Motion for Reconsideration was defective and void.CIVIL PROCEDURE REVIEWER79 constant absences that he was unable to present his arguments. 1999) (1) Where the counsel failed object on the ground of lack of notice to a Motion addressed to a former counsel. Existence of a cause of action or lack of it is determined by a reference to the facts averred in the challenged pleading. petitioner failed to show irregularity within the courts. finding that there never was issued an order of default against Vlason Enterprises. Duraproof amended its petition to include the former District Collector. which Duraproof contracted to repair. RTC reversed its Decision. Desierto. The RTC ruled that in favor of Duraproof and ordered Vlason to pay P3 Million worth of damages. Summonses for the amended Petition were served. however. and hence Duraproof may not present evidence against it in default. only the MENDEZ. it is a legal impossibility to declare a party-defendant to be in default before it was validly served summons.

waived. The Court has consistently held that a motion which does not meet the requirements of Sections 4 and 5 of Rule 15 of the Rules of Court is considered a worthless piece of paper. or if Friday is a non-working day. 6. Rule 56) Grounds A motion to dismiss may be made on any of the following grounds: (a) That the court has no jurisdiction over the person of the defending party. (Sec. On the day of the hearing. All of a sudden. especially if a party successfully shows that the alleged defect in the questioned final and executory judgment is not apparent on its face or from the recitals contained therein. 5. there are exceptions to the strict application of this rule. Concepcion who signed the Amended Petition. However. Desierto did not object to the said Motion for lack of notice to him. and (j) That a condition precedent for filing the claim has not been complied with. Rule 50) or SC (Sec. IVAN VIKTOR (2D. Concepcion was already dead. Lack of jurisdiction Proof of service MENDEZ. abandoned. Duraproof made no manifestation on record that Atty. CA (Sec. (Sec. Atty. No written motion set for hearing shall be acted upon by the court without proof of service thereof. he was furnished in open court with a copy of the motion and was granted by the trial court thirty days to file his opposition to it. after the trial court learns that a motion lacks such notice. In other cases. Rule 15) MOTION TO DISMISS (RULE 16) Four general types of motion to dismiss under the Rules (1) Motion to dismiss before answer (Rule 16) (2) Motion to dismiss by plaintiff (Rule 17) (3) Motion to dismiss on demurrer to evidence after plaintiff has rested his case (Rule 33) (4) Motion to dismiss appeal either in RTC (Sec. (h) That the claim or demand set forth in the plaintiff’s pleading has been paid. (c) That venue is improperly laid. Desierto entered his appearance only as collaborating counsel. it was Atty. the prompt resetting of the hearing with due notice to all the parties is held to have cured the defect. and that the very purpose of a notice of hearing had been served. Atty. These circumstances clearly justify a departure from the literal application of the notice of hearing rule. Rule 41). Naturally. (g) That the pleading asserting the claim states no cause of action. 7. Vlason Enterprisess attention was focused on this pleading. (d) That the plaintiff has no legal capacity to sue. These exceptions include: “(1) where a rigid application will result in a manifest failure or miscarriage of justice. Besides. 1. in fact. Second. was satisfactorily explained would be a manifest failure or miscarriage of justice. thus. Third. the vessels which Vlason Enterprises used in its salvaging business were levied upon and sold in execution to satisfy a supposed judgment against it. (f) That the cause of action is barred by a prior judgment or by the statute of limitations. (e) That there is another action pending between the same parties for the same cause. (b) That the court has no jurisdiction over the subject matter of the claim. Rule 15) Hearing of motion General rule: All motions shall be scheduled for hearing on Friday afternoons. (i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds. which the clerk of court has no right to receive and the trial court has no authority to act upon. in the afternoon of the next working day Exception: Motions requiring immediate action. as already said. ’13) . who is normally not entitled to notices even from this Court.” The present case falls under such exception since Vlason Enterprises was not informed of any cause of action or claim against it. and it was within its rights to assume that the signatory to such pleading was the counsel for Duraproof. or otherwise extinguished. it was understandable that Vlason Enterprises would not be familiar with the parties and their counsels. 31. wherein Vlason Enterprises was first impleaded as respondent and served a copy thereof. Circumstances in the case at bar show that Duraproof was not denied procedural due process. To allow this to happen simply because of a lapse in fulfilling the notice requirement which.CIVIL PROCEDURE REVIEWER80 lower court.

12% per annum interest. respondent not having adduced any defense evidence. c) it must be a judgment on the merits. he was properly declared in default for not having filed any answer. according to PDCP’s computation. Chu agreed to shoulder the expenses of the repair of the damaged truck of the latter. PDCP assigned a portion of its receivables from DATICOR to FEBTC for . between the first and second actions. one of the circumstances considered by the Court as indicative of waiver by defendant-appellant of any alleged defect if jurisdiction over his person arising from defective or even want of process. FACTS: While loaded with logs. jurisdiction was properly acquired by the trial court over the person of respondent thru both service of summons and voluntary appearance in court. During the MENDEZ. Boticano motioned to dismiss the appeal. in the case at bar. defendant-appellant could have questioned the jurisdiction of the lower court. The RTC found Chu responsible for the fault of his driver. defective process or even absence of process may be waived by a failure to make seasonable objections. and penalty charges 2% per month in case of default. which stipulated that DATICOR shall pay: a service fee of 1% per annum (later increased 6% per annum) on the outstanding balance. Jr. he has the right to appeal the default of judgment but in the appeal only the evidence of the petitioner may be considered. while Chu was properly served through the receipt by his wife of such summons. identity of parties. Defects in jurisdiction arising from irregularities in the commencement of the proceedings. despite respondent’s failure to file a motion to set aside the declaration of default. The motion was granted by the lower court allowing petitioner to adduce his evidence ex parte. and d) there must be. DATICOR filed a complaint against PDCP for violation of the Usury Law and annulment of contract and damages. b) the court which rendered it had jurisdiction over the subject matter and the parties.CIVIL PROCEDURE REVIEWER81 BOTICANO v.” as a ground to dismiss the case has four essential requisites: a) finality of the former judgment.4 million loan to DATICOR. but he failed to pay the same. Defects in jurisdiction arising from irregularities in the commencement of the proceedings. The IAC set aside the dismissal and declared void and of no effect the stipulation of interest in the loan agreement. But he did not. which set aside the RTC and remanded the case to the court of origin for summons to be properly served on Chu and for proceedings to be taken. ISSUE: Whether the question of jurisdiction over the person of the defendant can be raised for the first time on appeal NO. which the latter applied to interest. The case was brought to the CA. IVAN VIKTOR (2D. The loans were secured by real estate mortgages over six (6) parcels of land and chattel mortgages over machinery and equipment. the former’s co-defendant in the case. The CFI dismissed the complaint. Boticano’s Bedford truck was hit and bumped at the rear by another Bedford truck owned by private respondent Chu. subject matter and causes of action. service fees and penalty charges. However. Thus. 1987) Defect in service of summons cannot be raised for the first time on appeal. 2007) Res judicata “bar by prior judgment. In the end. This left them with an outstanding balance of P10 million. and properly parked by its driver Maximo Dalangin at the shoulder of the national highway in Nueva Ecija. Res judicata DEL ROSARIO v. ’13) stages of the proceedings. DATICOR paid a total of P3 million to PDCP. Summons was issued but was returned unserved because Sigua was no longer connected with San Pedro Saw Mill. and driven by Sigua. In the interim. FEBTC (537 SCRA 571. which Chu’s counsel opposed. Chu here had voluntarily submitted himself to the court’s jurisdiction. On appeal. FACTS: PDCP extended a P4. Boticano moved to dismiss the case against Sigua and to declare Chu in default for failure to file responsive pleadings within the reglementary period. is his failure to raise the question of jurisdiction in the CFI and at the first opportunity. Boticano questioned the CA’s ruling that jurisdiction over Chu’s person was not acquired. Chu filed a notice of appeal and a motion to extend to file his record on appeal. Chu’s record on appeal was approved. CHU (148 SCRA 541. PDCP appealed the IAC's decision to SC. defective process or even absence of process may be waived by a failure to make seasonable objections.

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of P5.4 M. FEBTC and DATICOR, in a MOA, agreed to P6.4 million as full settlement of the receivables. SC affirmed in toto the decision of the IAC, nullifying the stipulation of interests. DATICOR thus filed a Complaint for sum of money against PDCP and FEBTC to recover the excess payment which they computed to be P5.3 million. RTC ordered PDCP to pay petitioners P4.035 million, to bear interest at 12% per annum until fully paid; to release or cancel the mortgages and to return the corresponding titles to petitioners; and to pay the costs of the suit. RTC dismissed the complaint against FEBTC for lack of cause of action since the MOA between petitioners and FEBTC was not subject to SC decision, FEBTC not being a party thereto. Petitioners and PDCP appealed to the CA, which held that petitioners' outstanding obligation (determined to be only P1.4 million) could not be increased or decreased by any act of the creditor PDCP, and held that when PDCP assigned its receivables, the amount payable to it by DATICOR was the same amount payable to assignee FEBTC, irrespective of any stipulation that PDCP and FEBTC might have provided in the Deed of Assignment, DATICOR not having been a party thereto, hence, not bound by its terms. By the principle of solutio indebiti, the CA held that FEBTC was bound to refund DATICOR the excess payment of P5 million it received; and that FEBTC could recover from PDCP the P4.035 million for the overpayment for the assigned receivables. But since DATICOR claimed in its complaint only of P965,000 from FEBTC, the latter was ordered to pay them only that amount. Petitioners filed before the RTC another Complaint against FEBTC to recover the balance of the excess payment of P4.335 million. The trial court dismissed petitioners' complaint on the ground of res judicata and splitting of cause of action. It recalled that petitioners had filed an action to recover the alleged overpayment both from PDCP and FEBTC and that the CA Decision, ordering PDCP to release and cancel the mortgages and FEBTC to pay P965,000 with interest became final and executory. ISSUE: Whether the action should be dismissed on the ground of res judicata YES. There is no doubt that the judgment on appeal relative to the first civil case was a final judgment. Not only did it dispose of the case on the merits, it also became executory as a consequence of the
MENDEZ, IVAN VIKTOR (2D, ’13)

denial of FEBTC’s motion for reconsideration and appeal. In fact, authorities tend to widen rather than restrict the doctrine of res judicata on the ground that public as well as private interest demands the ending of suits by requiring the parties to sue once and for all in the same case all the special proceedings and remedies to which they are entitled. Section 47 of Rule 39 lays down two main rules. Section 49(b) enunciates the first rule of res judicata known as “bar by prior judgment” or “estoppel by judgment,” which states that the judgment or decree of a court of competent jurisdiction on the merits concludes the parties and their privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal. Stated otherwise, “bar by former judgment” makes the judgment rendered in the first case an absolute bar to the subsequent action since that judgment is conclusive not only as to the matters offered and received to sustain it but also as to any other matter which might have been offered for that purpose and which could have been adjudged therein. It is in this concept that the term res judicata is more commonly and generally used as a ground for a motion to dismiss in civil cases. The second rule of res judicata embodied in Section 47(c), Rule 39 is “conclusiveness of judgment.” This rule provides that any right, fact, or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which a judgment or decree is rendered on the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and their privies whether or not the claim or demand, purpose, or subject matter of the two suits is the same. It refers to a situation where the judgment in the prior action operates as an estoppel only as to the matters actually determined or which were necessarily included therein. The case at bar satisfies the four essential requisites of “bar by prior judgment,” viz: a) finality of the former judgment; b) the court which rendered it had jurisdiction over the subject matter and the parties; c) it must be a judgment on the merits; and d) there must be, between the first and second actions, identity of parties, subject matter and causes of action.

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Failure to state a cause of action HALIMAO v. VILLANUEVA (253 SCRA 1, 1996) The rule that a motion to dismiss is to be considered as a hypothetical admission of the facts alleged in the complaint applies more particularly to cases in which the ground for dismissal is the failure of the complaint to state a cause of action. FACTS: Reynaldo Halimao wrote a letter to the Chief Justice, alleging that respondents, without lawful authority and armed with armalites and handguns, forcibly entered the Oo Kian Tiok Compound in Cainta, Rizal, of which complainant was caretaker. Complainant prayed that an investigation be conducted and that respondents be disbarred. Respondents Villanueva et. al. filed a comment, claiming that the complaint is a mere duplication of the complaint filed by Danilo Hernandez in Administrative Case No. 3835, which this Court had already dismissed for lack of merit. They pointed out that both complaints arose from the same incident and the same acts complained of and that Danilo Hernandez, who filed the prior case, is the same person whose affidavit is attached to the complaint in this case. Co-respondent Ferrer claimed that the two complaints were filed for the purpose of harassing him because he was the principal lawyer of Atty. Daniel Villanueva in two cases before the SEC. This case was referred to the IBP, whose Board of Governors dismissed the case. The Investigating Commissioner found that the complaint is barred by the decision in Administrative Case No. 3835 which involved the same incident. The complaints in the two cases were similarly worded. Complainant filed a motion for reconsideration of the resolution of the IBP Board of Governors, alleging that the commissioner erroneously dismissed the complaint since the respondents are deemed to have admitted the allegations of the complaint against them by filing a motion to dismiss ISSUE: Whether the respondents hypothetically admitted petitioner’s allegations by filing a motion to dismiss NO. The rule that a motion to dismiss is to be considered as a hypothetical admission of the facts alleged in the complaint applies more particularly to cases in which the ground for dismissal is the failure of the complaint to
MENDEZ, IVAN VIKTOR (2D, ’13)

state a cause of action. This rule does not apply to other grounds for dismissal. In such cases, the hypothetical admission is limited to the facts alleged in the complaint which relate to and are necessary for the resolution of these grounds as preliminary matters involving substantive or procedural laws, but not to the other facts of the case. Two motions for reconsideration of this resolution were filed by the complainant therein, both of which were denied. While the complainant (Danilo Hernandez) in Administrative Case No. 3835 is different from the complainant in the present case, the fact is that they have an identity of interest, as the Investigating Commissioner ruled. Both complainants were employed at the Oo Kian Tiok Compound at the time of the alleged incident. Both complain of the same act allegedly committed by respondents. The resolution of this Court in Administrative Case No. 3835 is thus conclusive in this case, it appearing that the complaint in this case is nothing but a duplication of the complaint of Danilo Hernandez in the prior case. TAN v. CA (295 SCRA 247, 1998) General rule: Averments in the complaint are deemed hypothetically admitted upon filing of a Motion to Dismiss grounded on failure to state a cause of action Exceptions: Motion to Dismiss does not admit the following: 1) Epithets of fraud 2) Allegations of legal conclusions 3) Erroneous statements of law 4) Inferences or conclusions from facts not stated 5) Conclusions of law 6) Allegations of fact, falsity of which is subject to judicial notice 7) Matters of evidence 8) Surplusage and irrelevant matter 9) Scandalous or insulting matter 10) Legally impossible facts 11) Unfounded facts by record incorporated in pleading or document General averments contradicted FACTS: Tan Keh sold two parcels of land to Tan Kiat, but failed to effect the immediate transfer of the properties since Tan Kiat was still a foreign national at the time of the sale. Nevertheless Tan Keh secured the sale by

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executing a lease contract of 40 years in favor of Tan Kiat. Four years later, Tan Keh sold the properties to his brother, Tan. Tan knowingly held the property in trust for Tan Kiat until the latter acquires Filipino citizenship. The new TCTs were issued in the name of Tan as trustee of Tan Kiat. Tank Keh and Tan executed another lease contract to secure the conveyance of the property to Tan Kiat. Tan Kiat never paid rental and no demand for rentals was made on him. Tan Died. Tan Kiat thereafter demanded for the conveyance of the property as he was finally a naturalized Filipino. Petitioners failed to convey them. Tan Kiat filed a complaint for recovery of property. Petitioners moved for its dismissal based, among others, on failure to state a cause of action. RTC dismissed complaint acceding to all grounds set forth by the petitioners. CA reversed and ordered that case be remanded for further proceedings. ISSUE: Whether the complaint stated no cause of action YES. Averments in the complaint are deemed hypothetically admitted upon filing of a Motion to Dismiss grounded on failure to state a cause of action. But there are also limitations to such rule. In the case at bar, the “trust theory” claimed by Tan Kiat does not hold water. The lease contract as evidenced by document attached with the Motion to Dismiss and admitted by Tan Kiat already belies the latter’s claim of ownership. There is an apparent lessor-lessee relationship. Ownership of Tan is further supported by the annotated mortgage on the back of the TCT which Tan executed in favor of a bank so as to secure a loan. In truth, By the very nature of a mortgage contract, Tan could not have mortgage the property if he was not the real owner. Having failed to prove the trust relationship, it may be gleaned from the allegations that the transaction was a double sale instead. Since Tan had the TCT in his name, he is presumed to have the better right. Statute of Frauds ASIA PRODUCTION CO., INC. v. PANO (205 SCRA 458, 1992)

Under Article 1403, the contracts concerned are simply "unenforceable" and the requirement that they—or some note or memorandum thereof — be in writing refers only to the manner they are to be proved. It goes without saying then, that the statute will apply only to executory rather than executed contracts. Partial execution is even enough to bar the application of the statute. FACTS: Respondents Hua and Dy, owners of a building constructed on a lot leased from Lucio San Andres and located in Bulacan, sold the building to the petitioners for P170,000.00, with the assurance that respondents will also assign to them the contract of lease over the land. The above agreement and promise were not reduced to writing. Private respondents undertook to deliver the deed of conveyance over the building and the deed of assignment of the contract of lease within sixty (60) days upon the P20,000 downpayment. The balance was to be paid in monthly installments. Petitioners paid the downpayment and issued eight (8) postdated checks for the payment of the eight (8) monthly installments. Petitioners constructed a weaving factory on the leased lot. Unfortunately, private respondents, despite extensions granted, failed to comply with their undertaking to execute the deed of sale and to assign the contract despite the fact that they were able to encash the checks in the total amount of P30,000. Worse, the lot owner made it plain to petitioners that he was unwilling to give consent to the assignment of the lease unless petitioners agreed to certain onerous terms, such as an increase in rental, or the purchase of the land at a very unconscionable price. Petitioners removed all their property, machinery and equipment from the building, vacated the same and returned its possession to private respondents. They demanded from the latter the return of their partial payment for the purchase price of the building in the total sum of P50,000, which respondents refused to return. Petitioner filed a complaint for recovery and of actual, moral and exemplary damages and attorney's fees with the CFI. Hua was declared in default. Dy filed a motion to dismiss the complaint on the ground that the claim on which the action is based — an alleged purchase of a building which is not evidenced by any writing — cannot be proved by parol evidence since Article 1356 in relation to Article 1358 of the Civil Code requires that it

MENDEZ, IVAN VIKTOR (2D, ’13)

And even if it were for specific performance. was given to petitioner Sunville. The motion to dismiss and the motion for reconsideration were denied. Instead a TLA covering 29. There is the explicit language of pertinent laws vesting in the DENR the power and function "to regulate the development.CIVIL PROCEDURE REVIEWER85 should be in writing. remove and utilize timber within the concession area covering 29. Sunville moved to dismiss this case on the ground that the plaintiffs had not yet exhausted administrative remedies. the contracts concerned are simply "unenforceable" and the requirement that they—or some note or memorandum thereof — be in writing refers only to the manner they are to be proved. The action is definitely not one for specific performance.500 hectares of forest land in Zamboanga del Sur. It was not designed to further or perpetuate fraud. partial execution thereof by petitioners effectively bars the private respondents from invoking it. The respondents filed a petition with the DENR for the cancellation of the TLA and with the RTC for injunction in a civil case. The RTC granted the motion to dismiss on the ground that the complaint is barred by the Statute of Frauds. IVAN VIKTOR (2D. ’13) . exploration and use of the country's forests" and "to exercise exclusive jurisdiction" in the "management and disposition of all lands of the public domain. hence the Statute of Frauds does not apply. both on the ground of serious violations of its conditions and the provisions of forestry laws. v. Under Article 1403. private respondents theoretically or hypothetically admitted the truth of the allegations of fact in the complaint.500 hectares. as unenforceable. it is urgent that indiscriminate logging be stopped. The instant case is not for specific performance of the agreement to sell the building and to assign the leasehold right. among others. Partial execution is even enough to bar the application of the statute.000 hectares in Lison Valley. CA held that the doctrine of exhaustion of administrative remedies was not without exception and pointed to the several instances approved by this Court where it could be dispensed with. ISSUE: Whether petitioner’s action is barred by the Statute of Frauds NO. extraction. The doctrine of exhaustion of administrative remedies calls for resort first to the appropriate administrative authorities in the resolution of a controversy falling under their jurisdiction before the same may be elevated to the courts of justice for review. Sunville contends that the doctrine of exhaustion of administrative remedies was not correctly applied ISSUE: Whether the application of the doctrine of exhaustion of administrative remedies is correct NO. Thus. It goes without saying then. but to recover the partial payment for the agreed purchase price of the building. authorizing it to cut. MENDEZ. This request remained unacted upon. The applicable exception was the urgent need for judicial intervention because City Council of Pagadian requested the Bureau of Forest Development to reserve 1. By their motion to dismiss. Their motion for reconsideration was denied for the reason that the oral contract in this case was not removed from the operation of the Statute of Frauds because there was no full or complete performance by the petitioners of the contract as required by Jurisprudence. that the statute will apply only to executory rather than executed contracts. Due to the erosion caused by Sunville’s logging operations heavy floods have occurred in areas adjoining the logging concessions. Article 1403 of the Civil Code declares the following contracts. disposition. FACTS: Sunville Timber Products (Sunville) was granted a Timber License Agreement (TLA). including the area requested. The CA sustained the RTC’s decision. This comprehensive conferment clearly implies at the very least that the DENR should be allowed to rule in the first instance on any controversy coming under The doctrine of exhaustion of administrative remedies calls for resort first to the appropriate administrative authorities in the resolution of a controversy falling under their jurisdiction before the same may be elevated to the courts of justice for review. among others." and in the Forest Management Bureau the responsibility for the enforcement of the forestry laws aid regulations here claimed to have been violated. Condition precedent SUNVILLE TIMBER PRODUCTS. unless they are ratified: The purpose of the statute is to prevent fraud and perjury in the enforcement of obligations depending for their evidence on the unassisted memory of witnesses by requiring certain enumerated contracts and transactions to be evidenced by a writing signed by the party to be charged. ABAD (206 SCRA 482. for a period of 10 years. 1992) INC.

MUNICIPALITY OF BINAN v. Subsequently private respondent filed a "Motion for Preliminary Hearing as if a Motion to Dismiss Has Been Filed" on the ground that the complaint states no cause of action. CA granted private respondent’s appeal ISSUE: Whether or not a preliminary hearing for a Motion to Dismiss is mandatory NO. the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same. A preliminary hearing on an affirmative defense for failure to state a cause of action is not necessary. Such evidence is best evaluated first by the administrative authorities. The charge involves factual issues calling for the presentation of supporting evidence. 1. or (3) order the amendment of the pleading. stating that it was no longer amenable to the renewal of its 25-year lease contract with private respondent over the premises involved because of its pressing need to use the same for national and provincial offices. Rule 16) As affirmative defense If no motion to dismiss has been filed. 2. and (2) a preliminary hearing may be had thereon as if a motion to dismiss had been filed. Who files How pleaded Period A motion to dismiss may be filed within the time for but before filing the answer to the complaint or pleading asserting a claim. A writ of execution was issued directing the deputy sheriff to enforce the terms. he has exercised his option to stay in the premises for another 25 years as expressly provided in the said contract. praying that the same be first resolved instead of rendering judgment on the pleadings. before the courts may step in to exercise their powers of review. the resolution shall state clearly and distinctly the reasons therefor. (Sec. 3. assuming that it had expired. Petitioner filed its reply. The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. Also. NOTE: Should the case go to trial. (2) deny the motion. In every case. CA (219 SCRA 69. employing their specialized knowledge of the agreement and the rules allegedly violated. Private respondent filed a "Manifestation/Motion" in the nature of a motion to dismiss. as prayed for in private respondent's "Motion for Preliminary Hearing as if a Motion to Dismiss Has Been (1) any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer. IVAN VIKTOR (2D. Rule 16) -counterclaim which may be prosecuted in same or separate action refers to permissive counterclaim Hearing and resolution Hearing At the hearing of the motion. FACTS: Petitioner Municipality of Binan filed for unlawful detainer against private respondent Garcia. Rule 16) Resolution of motion After the hearing. (Sec. the parties shall submit (1) their arguments on the questions of law and (2) their evidence on the questions of fact involved except those not available at that time. private respondent filed a notice of appeal to the RTC. Petitioner filed a motion for discretionary execution. reiterating his previous argument. (Sec. the court may (1) dismiss the action or claim.CIVIL PROCEDURE REVIEWER86 its express powers before the courts of justice may intervene. It cannot be said that the lower court committed a grave abuse of discretion or exceeded its jurisdiction when it failed to conduct a preliminary hearing. Rule 6) MENDEZ. ’13) . 6. in the discretion of the court. Garcia filed his answer to the complaint saying that the contract of lease had not yet expired and. Rule 16 is not mandatory even when the same is prayed for. The MTC ordered private respondent to vacate the premises. (Sec. Private respondent filed with the CA an appeal on the ground that the lower court failed to conduct a preliminary hearing as prayed by his previous motion. 1993) Preliminary Hearing under Sec 5. which was granted. It rests largely on the sound discretion of the trial court.

" this word shows that it is not mandatory but discretional. and (i) On periods for pleading If the motion is denied— the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion.CIVIL PROCEDURE REVIEWER87 Filed. and no other should be considered. Rule 16) On other grounds and omnibus motion rule A motion attacking a pleading. refiling barred if based on Sec. However. Moreover. or proceeding shall include all objections then available. Rule 65 petition NPC v. permission and possibility. the question submitted to the court for determination is the sufficiency of the allegations in the complaint itself. Rule 16 allows the grounds for a motion to dismiss to be set up as affirmative defenses in the answer if no motion to dismiss has been filed. (2) That the claim or demand set forth in the plaintiff’s pleading has been paid. (Sec. waived. BUT not less than five (5) days in any event. 5.preliminary hearing on an affirmative defense or failure to state a cause of action not necessary Effects Of dismissal An order granting a motion to dismiss based on the following shall bar the refiling of the same action or claim: (1) That the cause of action is barred by a prior judgment or by the statute of limitations. ’13) . Rule 9) Remedies If motion complaint motion granted – appeal or refile If motion denied – file answer. 1990) MENDEZ. . (Sec. (Sec. If the pleading is ordered to be amended— He shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading. The use of the word "may" in said provision shows that such a hearing is not a matter of right demandable from the trial court. and NOTE: They are still subject to the right of appeal . unless the court provides a longer period. 4. private respondent had made known to petitioner his exclusive option to renew it for another 25 years. CA (185 SCRA 169. the preliminary hearing permitted under the said provision is not mandatory even when the same is prayed for. 8. a preliminary hearing on an affirmative defense for failure to state a cause of action is not necessary." before rendering judgment on the merits of the case. and all objections not so included shall be deemed waived. Whether those allegations are true or not is beside the point. (h). Rule 15) Exceptions The court shall dismiss the claim when it appears from the pleadings or the evidence on record that (1) the court has no jurisdiction over the subject matter. only the facts alleged in the complaint. Rule 16) -appealable. It rests largely on the discretion of the trial court. It is a well-settled rule that in a motion to dismiss based on the ground that the complaint fails to state a cause of action.preliminary hearing not mandatory . order. The motion of private respondent is anchored on the ground that the complaint states no cause of action since the original term of 25 years stipulated in the contract of lease had not yet expired and assuming that it had expired. It is an auxiliary verb indicating liberty. IVAN VIKTOR (2D. Where the provision reads "may. from his receipt of the notice of the denial. to determine sufficiency of the cause of action. contrary to the claim of private respondent. unless without jurisdiction. 1 (f). or that (3) the action is barred by a prior judgment or (4) barred by the statute of limitations. In other words. for their truth is hypothetically admitted by the motion. in which case. (2) there is another action pending between the same parties for the same cause. Section 5. or otherwise extinguished. judgment. (3) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds. (Sec. 1. abandoned. opportunity.

if the court who denies the motion acts without or in excess of jurisdiction or with grave abuse of discretion the proper move is to proceed to a higher court for relief. NPC went on with the plan anyway and provided its services with FINE. ISSUE: Whether Meralco’s petition in the lower court should be dismissed YES.CIVIL PROCEDURE REVIEWER88 As a general rule. FINE moved to dismiss the amended petition on the ground of insufficiency of the allegations in the petition to plead a cause of action. Meralco filed a petition for Prohibition. Because of this. . General rule: The dismissal made by filing a notice of dismissal is without prejudice. Meralco amended its petition by incorporating an application for a writ of preliminary mandatory injunction.B. not upon court’s confirmation. However.  The court does not have to approve the dismissal because it has no discretion on the matter. in which case the notice operates as an adjudication upon the merits. so that there is no need for a full blown trial. 1. Exceptions: (1)The notice otherwise states. However. reiterate the issue on appeal. reiterate the issue on appeal. if the court who denies the motion acts without or in excess of jurisdiction or with grave abuse of discretion the proper move is to proceed to a higher court for relief. FACTS: Macamir Realty and the Miranda Spouses (principal stockholders) filed a complaint against Jovenir Construction. go to trial and if the decision is adverse. FINE then filed a manifestation adopting its Motion to Dismiss but was denied. MACAMIR REALTY (2006) The trial court has no discretion or option to deny the motion. Meralco assured that it had the capabilities to serve FINE but that to allow direct connections will be detrimental to other consumers since they’ll shoulder the additional subsidy burden. dismissal by the plaintiff is a matter of right. CA dismissed. Rule 17) O. the trial court has no choice but to consider the complaint as dismissed. since dismissal by the plaintiff under Section 1. (Sec. go to trial and if the decision is adverse. The trial judge allowed Meralco to adduce evidence over FINE’s objection. ’13) leaving no root or branch to bear the seeds of future litigation. Undaunted. IVAN VIKTOR (2D. the court shall issue an order confirming the dismissal. Mandamus and Damages with Preliminary Injunction with the RTC. It is also important to note that the courts will strive to settle the controversy in a single proceeding MENDEZ. DISMISSAL OF ACTIONS (RULE 17) Upon notice by plaintiff—before answer A complaint may be dismissed by the plaintiff (1) by filing a notice of dismissal (2)at any time before service of the answer or of a motion for summary judgment. and (2)When filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. Hence this petition. petitioner’s motion to dismiss is based on the ground that the complaint states no cause of action. JOVENIR v. More importantly. Upon such notice being filed. However. regardless of ground. a company engaged in the manufacturing of plastics applied with the NPC for direct power connection.  Before an answer or motion for summary judgment has been served upon plaintiff. Rule 17 is guaranteed as a matter of right to the plaintiffs. FACTS: FINE Chemicals. whenever a motion is denied. the petitioner should file an answer. the petitioner should file an answer. FINE proceeded directly to the CA and filed a petition for Certiorari. Even if the motion cites the most ridiculous of grounds for dismissal. As a general rule.  It occurs as of the filing of the notice. since the plaintiff may opt for such dismissal as a matter of right. It would be unfair to require the defendant to undergo the ordeal and expense of trial under such circumstances as the remedy of appeal would not be plain and adequate. whenever a motion is denied. Prohibition and Mandamus. FINE countered saying that Injuction would be moot since the service has already been consummated and the facilities have been installed and are functional.

This second complaint was also filed with the Makati RTC. averred as a fact that said Board had not authorized the spouses Miranda to initiate the complaint against Jovenir Realty. Section 1 of the Rules of Court. The Makati RTC denied the Motion to Dismiss. IVAN VIKTOR (2D. and accordingly considered the complaint withdrawn without prejudice. as well as for damages. respondents had the right to dismiss their complaint by mere notice when Jovenir had not yet served their answer on respondents. Rule 17 of the 1964 Rules of Civil Procedure stated: Dismissal by the plaintiff — An action may be dismissed by the plaintiff without order of court by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. While the Motion to Withdraw Complaint is styled as a "motion" and contains a "prayer". The plaintiff was accorded the right to dismiss the complaint without the necessity of alleging in the notice of dismissal any ground nor of making any reservation.CIVIL PROCEDURE REVIEWER89 seeking the annulment of the construction project entered into by private respondents with Jovenir. Petitioners posit that the "remedy" of filing a notice of dismissal is not exclusive. the provision ordained the dismissal of the complaint by the plaintiff as a matter of right at any time before service of the answer. private respondents filed another complaint against the same defendants save for Madeja." if it could be called as such. the Makati RTC granted the Motion to Withdraw Complaint. private respondents filed a Motion to Withdraw Complaint. since dismissal by the plaintiff under Section 1. This time. alleging that during the initial hearing on the prayer for preliminary injunction their counsel discovered a supposed technical defect in the complaint that may be a ground for the dismissal of this case. The Verification and Certification of Non-Forum Shopping in the second complaint was accomplished by Rosauro Miranda. On the contrary. They pointed out that at the time of the filing of the second complaint. just one day earlier. the dismissal is without prejudice. a member of the Board of Directors of Macamir Realty. the real party-in-interest. Madeja. Indubitably. a Board Resolution authorizing the spouses to file the Complaint on behalf of Macamir Realty was attached to the complaint. the trial court has no discretion or option to deny the motion. should hardly be of fatal consequence. ’13) NO. Thus. It is a hornbook rule that it is not the . A class suit shall not be dismissed or compromised without the approval of the court. the impleaded defendants. Madeja and Mangrobang. except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. Jovenir Construction filed an opposition.. they prayed to be allowed to withdraw the complaint without prejudice. Section 1. However. Rule 17 is guaranteed as a matter of right to the plaintiffs. respondents having the "option" of securing the court’s approval to the dismissal. regardless of ground. they failed to attach any Board Resolution authorizing them to file suit on behalf of the corporation." That respondents resorted to a motion to effect what they could have instead by mere notice may be indicative of a certain degree of ignorance of procedural rules on the part of respondents’ counsel. The Motion to Withdraw Complaint makes clear respondents’ "desire to withdraw the complaint without prejudice. Even if the motion cites the most ridiculous of grounds for dismissal. the first complaint was still pending. filed their respective motions to dismiss. Yet such "error. Ten (10) days after the filing of the complaint. Jovenir filed a Motion to Dismiss the second complaint on the ground of forumshopping. Evidently. and seeking the same reliefs as the first complaint. Jovenir n allegedly misrepresented itself as a legitimate contractor. Eleven (11) days after the filing of the Motion to Withdraw Complaint and seven (7) days after the filing of the second Complaint. since the plaintiff may opt for such dismissal as a matter of right. Madeja alleged that while the spouses Miranda had initiated the complaint on behalf of Macamir Realty. This Order was affirmed by the CA ISSUE: Whether the dismissal was improper since Macamir filed a Motion for Withdrawal instead of the required Notice of Dismissal MENDEZ. these are innocuous errors and superfluities that do not detract from its being a notice of dismissal made under said Section 1 of Rule 17 and which ipso facto dismissed the case. The RTC noted an action may be dismissed by the plaintiffs even without Order of the Court by filing a notice of dismissal at anytime before the service of the answer under Rule 17. Unless otherwise stated in the notice. Jr. the trial court has no choice but to consider the complaint as dismissed.

Upon motion of plaintiff—after answer SEC.m parcel of land in San Nicolas. (3) the subject matter is a 1. CA (2006) Rule 17. or if their application would not be feasible or would work injustice. unless there be a qualification in the order of dismissal that it is without prejudice. In other words. without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate MENDEZ. (2) in all 3 cases. A plaintiff’s right to cause the dismissal of his complaint under the 1964 rules was unqualified. a dismissal under this paragraph shall be without prejudice. Once a case is dismissed for failure to prosecute. Dismissal due to fault of plaintiff. ’13) action. This dismissal shall have the effect of an adjudication upon the merits. the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint. Nueva Ecija which was dismissed for failure to prosecute as evidenced by the RTC in 2000. for no justifiable cause. 2nd case: Quieting of Title before the RTC of Gapan. decided in 1998 in favor of petitioner Cruz and Concepcion. IVAN VIKTOR (2D. (Civil Case 1600) 3rd case: Suit for Injunction filed before the RTC of Gapan City. Mariano Bunag was included as party-plaintiff and Ernestina Concepcion as party-defendant.l (4) and the issue is who between the 2 parties has the lawful title over the same. a complaint shall not be dismissed at the plaintiff’s instance save upon approval of the court and upon such terms and conditions as the court deems proper. Thus. 1st case: Unlawful Detainer before the MTC of Gapan. Dismissal upon motion of plaintiff. where the court granted the Motion for Outright dismissal on g reasoned that:ounds of res judicata and accion pendente lite. the 1997 Rules of Civil Procedure now requires that upon the filing of such notice. . Gapan City. Procedural rules may not be given retroactive effect if vested rights would be disturbed. or (3) if he fails to comply with the rules or any order of the court.— Except as provided in the preceding section. the dismissal shall be limited to the complaint. 3. Sec. this has the effect of an adjudication on the merits and is understood to be with prejudice to the filing of another action unless otherwise provided in the order of dismissal. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Nueva Ecija. the complaint may be dismissed upon motion of the defendant or upon the court’s own motion.CIVIL PROCEDURE REVIEWER90 caption of a pleading but the allegations thereat that determines its nature. (2a) Effect of counterclaim Due to fault of plaintiff SEC. subject matter and issue as that in the 1st case and 2nd case. Unless otherwise specified in the order. A class suit shall not be dismissed or compromised without the approval of the court. (2) if he fails to prosecute his action for an unreasonable length of time. (3a) CRUZ v. 4th case: Annulment of Title With Damages filed with RTC of Gapan City. the dismissal FACTS: There are 4 cases involved in this controversy. unless otherwise declared by the court. after finding that – (1) the 3rd case involve the same parties. Still. As noted at the onset.160 sq. The court hereby sentenced guilty of indirect Contempt of Court by reason of non-disclosure of Cases 1 and 2 in the Certificate/Verification of their complaint – as required by Section 5. The new requirement is intended to qualify the right of a party to dismiss the action before the adverse party files an answer or asks for summary judgment. there is no cause to apply the 1997 Rules retroactively to this case. or to prosecute his action for an unreasonable length of time. the court issue an order confirming the dismissal. where petitioners interposed a Motion for Outright Dismissal of Civil Case. when respondents filed their new complaint relating to the same cause of action on. or to comply with these Rules or any order of the court. the old complaint was no longer pending. which was dismissed on ground of res judicata – because there was substantial identity of parties with the 2nd case. 2. Accordingly. Rule 7 of the ROC.—If. the complaint could be properly considered as having been dismissed or withdrawn as of the filing of the Motion to Withdraw Complaint. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion for dismissal. 3 enumerates the instances where the complaint may be dismissed due to plaintiff's fault: (1) if he fails to appear on the date for the presentation of his evidence in chief.

or (3) if he fails to comply with the rules or any order of the court. respondents Bunag and Vda. the complaint may be dismissed upon motion of the defendant or upon the court's own motion.which is a necessary element for res judicata to attach. The court thereby ordered the defendants to file their answer/responsive pleading within 15 days from receipt of the Court order. (3) the Court rendering the same must have jurisdiction on the subject matter and the parties. On the 2nd element of res judicata – that (2) said judgment or order must be on the merits. In other words. the order dismissing Case 2 / Civil Case No. The SC ruled that the argument raised by the respondents is UNTENABLE. ISSUE: Whether there was a proper dismissal of the Civil Case 1600 (a case prior to the case at bar) . upon motion of the defendant through Atty. upon petitioners’ motion. for no justifiable cause. this case is dismissed for failure to prosecute. it is deemed to be with prejudice and shall have the effect of an adjudication on the merits. Also. The rule enumerates the instances where the complaint may be dismissed due to plaintiff's fault: (1) if he fails to appear on the date for the presentation of his evidence in chief. or to prosecute his action for an unreasonable length of time. is conclusive in a subsequent case between the same parties and their successorin-interest. following Section 3. (2) said judgment or order must be on the merits. – If. Plaintiffs and their counsel did not file Case 1 and therefore they are not obligated to inform this Court that they have filed a similar action involving the same issue with other court. YES. Section 3 of Rule 17 of the ROC provides: Section 3.” a final judgment rendered by a Court having jurisdiction of the subject matter and of the parties. IVAN VIKTOR (2D. the case was dismissed for failure to prosecute. Since the order did not contain a qualification whether same is with or without prejudice. identity of subject matter. 1600 is based on the failure of the plaintiffs as well as counsel to appear on several settings despite due notices. Mark Arcilla. Under the rule of res judicata. Petitioners then appealed in the CA and the CA dismissed the petition for lack of merit.(1) there must be a final judgment or order. In their comment. The dismissal of this case. and identity of causes of action. which are . (2) if he fails to prosecute his action for an unreasonable length of time. Petitioners claim that res judicata applies in this case because all the elements thereof are present. without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. Once a case is dismissed for failure to prosecute. unless otherwise declared by the court. reasoning that there is no identity of parties between Case 1 and the instant case for the simple reason that plaintiffs in the case at bar were not parties in Case 1. de Bunag maintain that the CA did not err when it held that there was no res judicata in the case at bar. This dismissal shall have the effect of an adjudication upon the merits. and (4) there must be between the two cases identity of parties. this has the effect of an adjudication on the merits and is understood to be with prejudice to the filing of another action unless otherwise provided in the order of dismissal. there was no pre-trial conference and that after four years of court inactivity. Case 4 (for Annulment of Title) because there was neither litigious consideration of the evidence nor any stipulations submitted by the parties at the MENDEZ. litigating for the same thing and under the same title and in the same capacity. On the other hand. Dismissal due to fault of plaintiff. private respondents argue the contrary alleging that the 2nd and 4th elements are lacking. In the case at bar.CIVIL PROCEDURE REVIEWER91 The respondents filed a MFR which the Court granted by setting aside the order which granted the defendant’s Motion for the Outright Dismissal and the order citing the plaintiffs and counsel guilty for contempt of court. unless there be a qualification in the order of dismissal that it is without prejudice. also known as “bar by prior judgment. In fact. precisely for the reception of plaintiffs’ evidence. the private respondents argue that the dismissal of CASE 2 (Quieting of Title) was not a dismissal on the merits. It is clear from the aforementioned order that said case was dismissed. the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint. will not bar the filing of the instant case. they claim. the dismissal should be regarded as an adjudication on the merits and is with prejudice. or to comply with these Rules or any order of the court. the plaintiffs and their counsel can not be said to have violated the rule against forum shopping. ’13) trial. A ruling based . for failure of private respondents and their counsel to attend several scheduled hearings for the presentation of their evidence.

sending in his stead a representative who sought the postponement of the hearing. the RTC. Instead. At the same time. Under Section 3. Rule 17 of the 1997 Rules of Civil Procedure." Still. Effect on counterclaim PINGA v. in fact not having presented their evidence yet. the dismissal of the complaint due to the fault of plaintiff does not necessarily carry with it the dismissal of the counterclaim. asserting that petitioner’s father. and ordered to pay damages. in dismissing the counterclaim. Respondents filed an Opposition to Defendants’ Urgent Motion for Reconsideration."1 The matter was elevated to this Court directly by way of a Petition for Review under Rule 45 on a pure question of law ISSUE: Whether the dismissal of the complaint necessarily carries the dismissal of the compulsory counterclaim NO. had been in possession thereof since the 1930s. Rule 17 of the 1997 Rules of Civil Procedure." This explanation is hollow. petitioner and his co-defendant disputed respondents’ ownership of the properties in question. The Complaint alleged in essence that petitioner Pinga and co-defendant Saavedra had been unlawfully entering the coco lands of the respondent. represented by Fernando Santiago. can still be a judgment on the merits. as plaintiffs. plaintiffs’ counsel on record failed to appear. which took into account the assurance of respondents’ counsel that he would give priority to that case. It appears that the RTC already ordered the dismissal of the complaint after respondents’ counsel had sought the postponement of the hearing scheduled then. cutting wood and bamboos and harvesting the fruits of the coconut trees therein. did not expressly adopt respondents’ argument that the dismissal of their complaint extended as well to the counterclaim. had failed to present their evidence. considering that there is no mandatory rule requiring that an opposition be filed to a motion for reconsideration without need for a court order to that effect. Moreover. By July of 2005. RTC granted respondents’ Motion for Reconsideration and dismissing the counterclaim. but the same was denied by the RTC. SANTIAGO (2006) Under Section 3. respondents. the trial of the case had not yet been completed. However. and. the RTC justified the dismissal of the counterclaim on the ground that "there is no opposition to [plaintiff’s] Motion for Reconsideration [seeking the dismissal of the counterclaim]. In fact. the dismissal of the counterclaim over the objection of the defendant (herein petitioner) on grounds other than the merits of the counterclaim. the order of dismissal was subsequently reconsidered by the RTC in an Order dated 9 June 2005. On a prefatory note. FACTS: Petitioner Eduardo Pinga was named as one of two defendants in a complaint for injunction filed in RTC Zamboanga del Sur. ’13) was obvious that respondents had failed to prosecute the case for an unreasonable length of time. In their Amended Answer with Counterclaim. the complaint was dismissed. compulsory or otherwise. wherein they argued that that "compulsory counterclaims cannot be adjudicated independently of plaintiff’s cause of action. as posited by petitioner. despite the provisions under . the dismissal of the complaint carries with it the dismissal of the compulsory counterclaims. At most. by respondent Heirs of German Santiago. the dismissal of the complaint is without prejudice to the right of defendants to prosecute the counterclaim. the RTC allowed defendants "to present their evidence ex-parte." and "a conversu. the "failure to file an opposition to the Plaintiff’s Motion for Reconsideration is definitely not one among the established grounds for dismissal [of the counterclaim]. compulsory or otherwise. The RTC noted that it MENDEZ. the dismissal of the complaint due to the fault of plaintiff does not necessarily carry with it the dismissal of the counterclaim. Counsel for defendants (who include herein petitioner) opposed the move for postponement and moved instead for the dismissal of the case. In fact.CIVIL PROCEDURE REVIEWER92 on a motion to dismiss. Respondents prayed that petitioner Pinga and Saavedra be enjoined from committing "acts of depredation" on their properties. Edmundo. the dismissal of the counterclaim by the RTC betrays at very least a tacit recognition of respondents’ argument that the counterclaim did not survive the dismissal of the complaint. Petitioner Pinga filed a Motion for Reconsideration. the dismissal of the complaint is without prejudice to the right of defendants to prosecute the counterclaim. At the hearing. without any trial on the merits or formal presentation of evidence. IVAN VIKTOR (2D. On that ground." Respondents filed a Motion for Reconsideration. from whom defendants derived their interest in the properties.

because the case involving collection of a sum of money and damages is an action in personam. or is necessarily connected with. But the said Alias Summons was served and received by Perkin-Elmer Asia (PEA). Extraterritorial service of summons applies only where the action is in rem or quasi in rem. a plaintiff who prevents or delays the prosecution of his own complaint. PES filed a Petition for Certiorari under Rule 65 with application for temporary restraining order and/or preliminary injunction before the CA. Thus. RTC granted this motion. prompting Dakila to file before the RTC a Complaint for Collection of Sum of Money and Damages with Prayer for Issuance of a Writ of Attachment against PES and its affiliate. or an actual or contingent lien. Dakila filed an Ex-Parte Motion to Admit Amended Complaint. it does relate to a property of PES. Moreover. sent letters to Dakila and RTC to inform them of the wrongful service of summons. In the case at bar. PES unilaterally terminated the Distribution Agreement. The doctrine that the complaint may not be dismissed if the counterclaim cannot be independently adjudicated is not available to. DAKILA TRADING (2007) Extraterritorial service of summons applies only where the action is in rem or quasi in rem. Accordingly. The agreement further stipulated that Dakila shall order the products of PES. PERKIN ELMER v. PEIP moved to dismiss the Complaint filed by Dakila. Dakila was granted the right to purchase and sell the products of PES. IVAN VIKTOR (2D. RTC denied the Motion to Dismiss filed by PEIP. (2) PES changed its name to PEA. and the rule would offer a premium to vexing or delaying tactics to the prejudice of the counterclaimants. RTC denied respondent’s prayer. (3) such changes did not avoid its due and outstanding obligations to Dakila. which will make it fall under one of the requisites for extraterritorial service. the trial of counterclaims would be made to depend upon the maneuvers of the plaintiff. as it deals with the personal liability of PES by reason of the alleged unilateral termination of the Distribution Agreement. a corporation allegedly unrelated to PES. RTC granted the motion. since Section 3. However. presently meriting justiciability through the instant action. Ltd. (PES) which appointed Dakila as sole distributor of its products in the Philippines. Dakila filed another Motion for the Issuance of Summons and for Leave of Court to Deputize DGM to serve summons outside the Philippines. constitutes a debatable question of law. to which the latter has a claim interest. and was not intended for the benefit of. PES filed with the RTC a Special Appearance and Motion to Dismiss the Amended Complaint. on the other hand. Meanwhile. RTC thus issued summons and the DGM went to Singapore and served summons on PES. The CA affirmed the RTC Orders. PES was obligated to give Dakila a commission for the sale of its products in the Philippines. Perkin-Elmer Instruments Philippines Corporation (PEIP). which were denied. PEA. which it shall sell in the Philippines. it should be on the merits of such counterclaim. and (4) the name of PES in the complaint should be changed to PEA. Reversal of the RTC is in order. together with the Amended Complaint claiming that (1) PEA had become a sole proprietorship owned by the PES. If the RTC were to dismiss the counterclaim. RTC admitted the Amended Complaint. The objective sought in Dakila’s Complaint was to establish a claim against PES. ISSUE: Whether summons were properly served under the 2nd or 4th instance of extraterritorial service NO. an Alias Summons was issued by the RTC to PES. Rule 17 mandates that the dismissal of the complaint is without prejudice to the right of the defendant to prosecute the counterclaim in the same or separate action. there can never be a valid extraterritorial service of summons upon it. Otherwise. the plaintiff’s action and cannot remain pending for independent adjudication. either from PES itself or from PEIP. but not if an action is in personam. The . MENDEZ. and a remand is necessary for trial on the merits of the counterclaim. It held that even though the Amended Complaint is primarily for damages. Accordingly. the RTC clearly erred when it ordered the dismissal of the counterclaim. but not if an action is in personam. FACTS: Dakila Trading Corp (Dakila) entered into a Distribution Agreement with PerkinElmer Singapore Pte. compelling the latter to file its Answer to the Amended Complaint. It is in the same spirit that we have ruled that a complaint may not be withdrawn over the opposition of the defendant where the counterclaim is one that arises from.CIVIL PROCEDURE REVIEWER93 Rule 17 of the 1997 Rules of Civil Procedure. ’13) Dakila filed Ex-Parte Motions for Issuance of Summons and for Leave of Court to Deputize Dakila’s General Manager (DGM) to Serve Summons Outside of the Philippines.

personal service of summons within the Philippines is necessary in order for the RTC to validly acquire jurisdiction over the person of PES. petitioners’ counsel should have filed a notice of appeal with the appellate court within the reglementary period. petitioners and their counsel failed to attend a scheduled trial. subsequently. there can never be a valid extraterritorial service of summons upon it. Instead of filing a petition under Rule 45 of the Rules of Court. as to convert the action in personam to an action in rem or quasi in rem and. counsel for defendant bank appeared. and this is not possible in the present case because the PES is a non-resident and is not found within the Philippines. Rule 14 of the Rules of Court. What is required is not a mere allegation of the existence of personal property belonging to the non-resident defendant within the Philippines but that the non-resident defendant’s personal property located within the Philippines must have been actually attached. The objective sought in Dakila’s Complaint was to establish a claim against PES. Thus. Atty.CIVIL PROCEDURE REVIEWER94 action instituted by Dakila affects the parties alone. personal service of summons within the Philippines is necessary in order for the RTC to validly acquire jurisdiction over the person of PES. Lorenzo Castillo. 2006) Considering that an order of dismissal for failure to prosecute has the effect of an adjudication on the merits. During the course of the proceedings. Dakila’s allegation in its Amended Complaint that PES had personal property within the Philippines in the form of shares of stock in PEIP did not make the case fall under any of the four instances mentioned in Section 15. as beneficiaries of the mortgaged property. as to convert the action in personam to an action in rem or quasi in rem and. Dakila’s allegation in its Amended Complaint that PES had personal property within the Philippines in the form of shares of stock in PEIP did not make the case fall under any of the four instances mentioned in Section 15. hence. PES’s personal property within the Philippines. Atty. He pointed out MENDEZ. subsequently. Alcantara manifested that there were numerous occasions in the past when plaintiffs and counsel did not attend. Moreover. the allegations made by the respondent that the petitioner has property within the Philippines in support of its application for the issuance of a writ of attachment was actually denied by the RTC. as it deals with the personal liability of PES by reason of the alleged unilateral termination of the Distribution Agreement. The action for collection of a sum of money and damages was purely based on the personal liability of the PES. Remedy of plaintiff KO v.The case stemmed from an action filed by petitioners in the trial court for Annulment of Mortgage. ’13) . counsel for the plaintiffs did not appear despite proper notice. make the extraterritorial service of summons upon the petitioner valid. When the case was called. Annulment of Transfer Certificate and Deed of Sale with a Prayer for Preliminary Injunction and Restraining Order. FACTS: This is a petition for review on certiorari assailing the Order of the Regional Trial Court of Laoag City. judgment will be limited to the res. had not been attached. in the form of shares of stock in PEIP. PNB (419 SCRA 298. Evidently. IVAN VIKTOR (2D. the complaint was dismissed. Respondent bank denied the claim and alleged that in the execution of the mortgage. In the case at bar. Upon motion of respondent bank. Extra-judicial Foreclosure Sale. the main subject matter of the action must be the property itself of the PES in the Philippines and in such instance. not the whole world. the case for collection of sum of money and damages remains an action in personam. Atty. The complaint alleged that the assailed mortgage and the foreclosure proceedings were null and void since the written consent of petitioners. because the case involving collection of a sum of money and damages is an action in personam. Rule 14 of the Rules of Court. The action instituted by Dakila affects the parties alone. Thus. The 2nd instance for extra-territorial service has no application in the case. the proper recourse was an ordinary appeal with the Court of Appeals under Rule 41. make the extraterritorial service of summons upon the petitioner valid. and this is not possible in the present case because the PES is a non-resident and is not found within the Philippines. For the action to be one falling under the 2nd instance. not the whole world. so as to qualify said case under the 4th instance of extra-territorial service. petitioners in fact gave their consent. Neither does the allegation that PES had personal property within the Philippines in the form of shares of stock in PEIP convert the case from an action in personam to one quasi in rem. No plaintiff appeared. However. were not secured. being an action in personam. Eduardo Alcantara. being an action in personam.

petitioners’ counsel filed a timely motion for reconsideration which was denied by the trial court. On the procedural aspect. ISSUE: Whether the petitioners. True. Petitioners cannot claim that they were deprived of due process. In order to perfect an appeal all that is required is a pro forma notice of appeal. for no justifiable cause. A voluntary dismissal by the claimant by notice as in section 1 of this Rule. unless otherwise declared by the court. But their inadvertence and lack of circumspect renders the trial court’s order dismissing their case final and executory. The enforcement of procedural rules is not antithetical to the substantive rights of the litigants. He moved to dismiss the case on that legal ground. is accorded. What the law proscribes is the lack of opportunity to be heard. the dismissal order of the trial court stand and is now immutable. ’13) mere expedience of invoking "substantial justice. Respondent bank countered that from the time the complaint was filed." there is no denial of due process. to the dismissal of any counterclaim. In the case at bar. cross-claim. Perhaps due to failure to file a notice of appeal within the remaining two days of the appeal period. Dismissal due to fault of plaintiff. or third-party complaint. the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint. or to prosecute his action for an unreasonable length of time. before the introduction of evidence at the trial or hearing. without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. The trial court denied the motion for reconsideration. 2002 and the order of dismissal on April 27. Petitioners’ failure to prosecute their case and proceed with the trial during the span of three years leads to no other conclusion than that petitioners have no interest in seeing their case terminated at the earliest possible time. Petitioners filed a motion for reconsideration claiming that they have been continuously pursuing negotiations with respondent bank to purchase back the property and have gained positive results. however. This dismissal shall have the effect of an adjudication upon the merits. The expeditious disposition of cases is as much the duty of the plaintiff as the court. Whichever the case may be. the complaint may be dismissed upon the motion of the defendant or upon the court’s own motion. 2005. Rule 17 of the Rules of Court provides: SEC. and the party can "present its side" or defend its "interest in due course. a period of three years had elapsed but petitioners failed to prosecute their case. Nonetheless. do not exist for the convenience of the litigants. if there is none. namely. shall be made before a responsive pleading or a motion for summary judgment is served or.—The provisions of this Rule shall apply. despotism or whimsicality in the settlement of disputes. (4n) ." Procedural law has its own rationale in the orderly administration of justice. The rules of procedure. 4. These rules are established to provide order to and enhance the efficiency of our judicial system. Dismissal of counterclaim SEC. showing lack of interest in the early resolution thereof. Dismissal of counterclaim. They are not to be trifled with lightly or overlooked by MENDEZ. or that petitioners’ case is unmeritorious from inception. caprice. either through verbal arguments or pleadings.CIVIL PROCEDURE REVIEWER95 that there is an apparent lack of interest on the part of plaintiff to prosecute the action. It must be remembered that a defendant in a case likewise has the right to the speedy disposition of the action filed against him7 considering that any delay in the proceedings entail prolonged anxiety and valuable time wasted. who failed to attend a scheduled trial and dismissed by the court. the right to due process safeguards the opportunity to be heard and to submit any evidence one may have in support of his claim or defense.—If. Upon the order of dismissal. Petitioners had the opportunity to present their case and claim the relief they seek. we have time and again held that where the opportunity to be heard. or third-party complaint. may file a petition for review on certiorari under Rule 45 NO. cross-claim. to ensure the effective enforcement of substantive rights by providing for a system that obviates arbitrariness. The rule is clear. three years have since lapsed from the filing of the complaint on May 3. we find that petitioners erred in filing a petition for review on certiorari under Rule 45 of the Rules of Court instead of filing an appeal with the Court of Appeals. 3. Section 3. or to comply with these Rules or any order of the court. IVAN VIKTOR (2D. petitioners’ counsel instead filed the instant petition.

(1a. R commenced extrajudicial foreclosure. furnishing proof of failure to answer (3) Said party gives notice of such motion to the defending party. In such case. the foreclosed property. 16711 of the RD of QC the conventional redemption thereof. (b) Relief from order of default. and that the bid price was neither (1) Ground: He fails to answer within the time allowed therefor. 3) Nature in general A defending party shall be declared in default when exists.9k Such sale was tainted with irregularity because. R18) (a) Effect of order of default. (2) The claiming party files a motion to declare the defending party in default. asserting that the foreclosure sale of the mortgaged property was done in accordance with law.—A party in default shall be entitled to notice of subsequent proceedings but NOT to take part in the trial. R wrote Chua asking that he could repurchase the property. that Chua made an initial payment P4k. Rule 9 of the 1997 Rules of Civil Procedure and the rule on preponderance of evidence under Section 1. that the other Ps (Gajudos) failed to redeem the property due to their lack of knowledge of their right of redemption. to intervene for the State in order to see to it that the evidence submitted is not fabricated.—A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud. that Chua offered to buy back.CIVIL PROCEDURE REVIEWER96 DEFAULT (Rule 9. IVAN VIKTOR (2D. that. TRB (2006) No incompatibility bet. some of whom answer and the others fail to do so. the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. ’13) . (d) Extent of relief to be awarded. The court shall proceed to render judgment granting the claimant such relief as his pleading may warrant. in a sudden change of position. 3. mistake or excusable negligence and that he has a meritorious defense.—If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer.—When a pleading asserting a claim states a common cause of action against several defending parties. but based on the current market value thereof. Sec. (e) Where no defaults allowed. accident.   unless the court in its discretion requires the claimant to submit evidence. and R also agreed to sell back. Complaint alleged that: P Chua obtained a loan from R bank in the amount of P75k secured by a real estate mortgage over a parcel of land. the sum that the bank paid at the auction sale. property was sold in the auction sale to R for the sum of P24. (c) Effect of partial default. and if there is no collusion. R wrote Chua requiring him to tender a new offer. the bid price was shockingly or unconscionably.—A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. the loan was not paid. the court shall. R filed its answer with counterclaim. plus interest. Such reception of evidence may be delegated to the clerk of court. on the understanding that Chua would pay Rthe amount of P40k. and want of sufficient education. the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. (Sec. Rule 133 of the Rules of Court FACTS: Ps filed a complaint before RTC of QC against R seeking for annulment of the extrajudicial foreclosure and auction sale made by city sheriff of parcel of land covered by TCT No. and owned in common by Ps. and prayed for damages and the issuance of a writ of preliminary injunction. Section 3.. Rule 9) When may a defendant be declared in default? (1) Failure to file answer (2) Failure to furnish copy of answer (3) Failure to appear at pre-trial (4) Failure to comply with modes of discovery When allowed Effect GAJUDO v. the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties MENDEZ. low.

but the Trial Court dismissed the case ‘without prejudice’ due to P’s failure to pay additional filing fees. CA (310 SCRA 26. This principle holds true. the court’s judgment "shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. of course. a big conflagration hit the City Hall of QC (amazing!) which destroyedthe records of the case. Although the defendant would not be in a position to object. The same provision also sets down guidelines on the nature and extent of the relief that may be granted. Stated differently. the rules see to it that any judgment against him must be in accordance with law. not upon the weakness of the defense offered by their opponent.P filed a motion to set case for pre-trial. If the evidence presented should not be sufficient to justify a judgment for the plaintiff. P were allowed by the Court allowed to present evidence ex parte. "Pre-trial having been concluded. and that the notice of lis pendens annotated on the certificate of title had already been cancelled. To begin with." parties must rely on the strength of their own evidence. which motion was denied by the TC in its Order of on the ground that R bank has not yet filed its answer. any advantage they may have gained from the ex parte presentation of evidence does not lower the degree of proof required. the foreclosed property was sold by R to the Ceroferr Realty Corporation. it cannot exceed in amount or be different in kind from what is prayed for in the complaint. Respondent bank appealed the Partial Decision to the CA which ruled in favor of R. Ps argue that the quantum of evidence for judgments flowing from a default order under Section 3 of Rule 9 is not the same as that provided for in Section 1 of Rule 133. Rule 9 of the 1997 Rules of Civil Procedure and in applying instead the rule on preponderance of evidence under Section 1. Clearly then. VLASON ENTERPRISES v. presented in his absence. P with leave of court. A defaulted defendant is not actually thrown out of court. Summons was served on R. While in a sense it may be said that by defaulting he leaves himself at the mercy of the court. The evidence to support the plaintiff’s cause is. alleging that no answer has been filed despite the service of summons. the parties entered upon trial. ISSUE: Whether CA erred in failing to apply the provisions of Section 3. P re-filed the complaint with the same Court. there is no incompatibility that would preclude the application of either one of them. that new defendants conspired with R in canceling the notice of lis pendens. TC declared the motion submitted for resolution upon submission by Ps of proof of service of the motion on R. IVAN VIKTOR (2D. According to this provision.Motion was denied. there is no incompatibility between the two rules. but the court is not supposed to admit that which is basically incompetent. After the records were reconstituted. Section 3 of Rule 9 governs the procedure which the trial court is directed to take when a defendant fails to file an answer." subject to the court’s discretion on whether to require the presentation of evidence ex parte. Between the two rules. especially when the latter has had no opportunity to present evidence because of a default order. Upon giving proof. the complaint must be dismissed. A partial decision was made. In sum. ’13) proceed to render judgment granting the claimant such relief as his pleading may warrant. the court "shall MENDEZ. amended their complaint. And if an unfavorable judgment should be justifiable. R was declared in default. 1999) . The Petition has no merit. P filed a motion to declare R in default.CIVIL PROCEDURE REVIEWER97 unconscionable. while petitioners were allowed to present evidence ex parte under Section 3 of Rule 9. they were not excused from establishing their claims for damages by the required quantum of proof under Section 1 of Rule 133. that Ps slept on their rights when they failed to redeem the property within the one year statutory period. impleading as additional defendants the Ceroferr Realty Corporation and additional cause of action. In particular. nor shockingly low. NO. Rule 133 of the Rules of Court. elementary justice requires that only legal evidence should be considered against him. R filed a motion to set aside partial decision by default and admit that their Answer with counterclaim: averred that the erroneous filing of said answer was due to an honest mistake of the typist and inadvertence of its counsel.

. In both Petitions. RTC reversed its Decision. Duraproof moved several times to declare the respondents it impleaded in default. because it contained no notice of hearing addressed to the counsel of Duraproof in . except Vlason. Duraproof moved for the execution of judgment. which damaged the vessel. (2) The issuance of an order of default is a condition sine qua non in order that a judgment by default be clothed with validity. Commissioner Mison. since it had been served summons when the second amended petition was filed. or any prayer for relief against it. for a temporary restraining order against their auction until its Motion for Reconsideration was resolved by the trial court. Duraproof amended its petition to include the former District Collector. only the following were declared by RTC in default: the Singkong Trading Co. Summonses for the amended Petition were served. the CA rendered the assailed Decision. Despite this Motion. caused Duraproof to incur heavy overhead expenses. causing irreparable damages of about P3 Million worth of ship tackles. but the Customs Commissioner declined to issue a clearance. prohibition and mandamus assailing the actions of the Customs Officers. MENDEZ. CA issued a TRO against the RTC order. Duraproof alleged that Vlason Enterprises. The Motion was granted and a Writ of Execution was issued. while it was docked in the PPA compound at La Union. ’13) The RTC ruled that in favor of Duraproof and ordered Vlason to pay P3 Million worth of damages. he forfeited the vessel and its cargo.CIVIL PROCEDURE REVIEWER98 (1) Where the counsel failed object on the ground of lack of notice to a Motion addressed to a former counsel. Vlason Enterprises filed a Motion for Reconsideration addressed to Duraproof’s counsel. Because of this. instead. Omega entered into a salvage agreement with Duraproof Services to secure and repair the vessel for $1 million and fifty percent (50%) of the cargo after all expenses. M/V Star Ace. so the latter filed a special appearance before the CA. stating that the decision of the RTC had become final and executory. The District Collector of Customs lifted the warrant of seizure. as respondents. so there could not have been any valid default-judgment rendered against it. The sheriff levied Vlason Enterprises’ properties. Concepcion. praying for the lifting of the levy on its properties or. Not having any knowledge of the CA case to which it was not impleaded. on the ground that it was allegedly not impleaded as a defendant. rigs. and was granted by the trial court 30 days to file his opposition to it. La Union was hit by 3 typhoons. Duraproof opposed the Motion. including Vlason Enterprises. arguing that it was a mere scrap of paper due to its defective notice of hearing. it is a legal impossibility to declare a party-defendant to be in default before it was validly served summons. Duraproof and the other companies entered into a compromise agreement. The order was unheeded. and hence Duraproof may not present evidence against it in default. The CA allowed Duraproof to implead Vlason in the CA case. Atty. and impleading PPA and Med Line Philippines. FACTS: Seizure proceedings were held over the cargo of Omega’s vessel. Thereafter. IVAN VIKTOR (2D. never having been disputed or appealed to a higher court. which was granted. and that the lower court may now take appropriate action on the urgent ex-parte motion for issuance of a writ of execution. The trial court ordered the deputy sheriffs to cease and desist from implementing the Writ of Execution and from levying on the personal property of the defendants. This prompted Duraproof to enforce its preferred salvors lien by filing with the RTC a petition for certiorari. and other companies involved. Vlason received from a notice to pay Duraproof P3 million. Duraproof failed to allege anything pertaining to Vlason Enterprises. which were taken surreptitiously by persons working for Vlason Enterprises or its agents. the auction sale was conducted. Out of those respondents. alternatively. Inc. through constant intimidation and harassment in utilizing the PPA Management of La Union. finding that there never was issued an order of default against Vlason Enterprises. cost and taxes. Furthermore. Duraproof filed an ex parte Motion to present evidence against the defaulting respondents. M/V Star Ace and Omega. Vlason filed with the RTC a Motion to Dismiss. Duraproof filed with the CA a Petition for Certiorari and Prohibition to nullify the cease and desist orders of the trial court. the circumstances clearly justify a departure from the literal application of the notice of hearing rule. and that Vlason Enterprisess Motion for Reconsideration was defective and void. The CA clarified that there was no need to serve summons anew on Vlason Enterprises. and appurtenances including radar antennas and apparatuses. served summons or declared in default.

praying for a declaration that the trial court Decision against it was not valid. 3. CA (221 SCRA 582. this Petition. Pre-Trial was set but the Ramnanis did not show up hence they were declared in default. Vlason Enterprises filed (1) a Motion for Clarification. The trial court denied Motion of Duraproof to declare all the defendants in default. ISSUE: Whether the RTC default judgment was binding on Vlason NO. however. Ramnanis stated a meritorious defense as an excuse to set aside their order of default. The issuance of an order of default is a condition sine qua non in order that a judgment by default be clothed with validity. and (2) a partial Motion for Reconsideration. 1993) A satisfactory showing by the movant of the existence of fraud. Hence. Even Duraproof cannot pinpoint which trial court order held petitioner in default. the petitioner failed to prove that they were unable to attend the pre-trial hearing due to FAME. accident. Lower court ruled in favor of the Dizons..) If judgment already rendered upon discovery but before it becomes final and executory: motion for new trial. Eddie Tamondong. More important. The RTC issued a Writ of Possession by virtue of which Duraproof took possession of Vlason’s barge Lawin. It was. Remedies for a party held in default: 1. Omega Sea Transport Co. MENDEZ. Josephine Ramnani submitted an answer with counterclaim stating the fact that it was the Dizons who owed them money.. In the case at bar. REPUBLIC (2006) A defendant party declared in default retains the right to appeal from the judgment by default on the ground that the plaintiff failed to prove the material allegations of the complaint. IVAN VIKTOR (2D. Section 4 of the Rules of Court. FACTS: The Dizons filed a case for a sum of money against the Ramnanis’ failure to remit the value of jewelry that the latter received from the former on a consignment basis. it is a legal impossibility to declare a party-defendant to be in default before it was validly served summons. Dizon’s consent ergo void. Furthermore. but despite due notice to them. Vlason was never declared in default. ISSUE: Whether the order of default against the petitioners should be set aside NO. or that the decision is contrary to law. denied. ’13) . mistake or excusable neglect is an indispensable requirement for the setting aside of a judgment of default or order of default.) After it becomes final and executory: petition for relief under Section 2 of rule 8 4. seeking to set aside the assailed Decision insofar as the latter affected it. but it never acted on the latters subsequent Motion to declare Vlason Enterprises likewise.CIVIL PROCEDURE REVIEWER99 violation of Rule 16. Inc. Denied since the CA ruled that certiorari is a remedy only for errors of jurisdiction. Remedies from judgment by default Before finally Motion for reconsideration or new trial Appeal MARTINEZ v. not errors in judgement. the trial court admitted that it never declared petitioner in default. as well as the other defendants Hon. Salvador Mison. even without need of the prior filing of a motion to set aside the order of default. A Petition for Certiorari was filed with the CA imputing error despite their meritorious defense.The RTC declared in default only Atty. M/V Star Ace.) Anytime after discovery thereof & before judgement: FAME +meritorious defense 2. of Panama and Sinkong Trading Co.) Appeal from judgment as contrary to the evidence or to the law. Order of default When some answer and others default Extent of relief to be awarded Where not allowed Procedure after order of default -render judgment -hearing ex parte Remedy from order of default Motion to set aside RAMNANI v. They stated that the obligation was entered into by Mrs Dizon without Mr. they failed to appear. The court later received the evidence of the Dizons ex parte due to the Ramnanis status of default. There could not have been any valid default-judgment rendered against it.

to set aside the order of default on the ground that his failure to answer was due to fraud. Yet even after that provision’s deletion under the 1997 Rules. It was improper to declare the oppositor in default simply because he failed to . LRA manifested that this lot should not have been adjudicated to Martinez for lack of jurisdiction. Martinez filed a petition for the registration in his name of three (3) parcels of land he allegedly purchased from his uncle. which was approved by the RTC. Rule 18) b) If the judgment has already been rendered when the defendant discovered the default. following the order of general default. at any time after discovery thereof and before judgment. c) If the defendant discovered the default after the judgment has become final and executory. accident. and d) He may also appeal from the judgment rendered against him as contrary to the evidence or to the law. the RTC received a letter from the LRA stating that only two of the lots sought to be registered were referred to in the Notice of Hearing published in the Official Gazette. the Court did not hesitate to expressly rely again on the Lina doctrine. The OSG was furnished a copy of the petition. under oath. The OSG. (Sec 3. ISSUE: Whether an order of general default bars the Republic from interposing an appeal from the trial court’s subsequent decision NO. open. The trial court set the case for hearing and directed the publication of the corresponding Notice of Hearing in the Official Gazette. NOTE: The RTC appears to have issued the order of general default simply on the premise that no oppositor appeared before it on the hearing. and that the third lot was omitted due to the lack of an approved survey plan for that property. after the records had been transmitted to the CA. even against the Republic of the Philippines. The RTC thus decreed the registration of the three (3) lots in the name of Martinez. (Sec. Jurisprudence applying the 1997 Rules has continued to acknowledge the Lina doctrine which embodies this right to appeal as among the remedies of a defendant. but before the same has become final and executory. However. the RTC issued an order of general default. mistake or excusable neglect. that of appeal. and in the concept of an owner.CIVIL PROCEDURE REVIEWER100 FACTS: Jose R. is anchored on Section 2. This letter was referred by the RTC to the Court of Appeals for appropriate action. Rule 41 of the 1964 Rules. He claimed continuous possession of the lots. Court of Appeals: a) The defendant in default may. But it cannot be denied that the OSG had already duly filed its Opposition to Martinez’s petition long before the said hearing. claiming that the OSG no longer had personality to oppose the petition. Martinez directly assailed the CA decision before the SC. the doctrinal rule concerning the remedies of a party declared in default had evolved into a fairly comprehensive restatement as offered in Lina v. This ensued when during the hearing of even date. IVAN VIKTOR (2D. The CA reversed the RTC and ordered the dismissal of the petition for registration. Rule 41) The fourth remedy. in behalf of the Republic of the Philippines. It found the evidence presented by Martinez as insufficient to support the registration of the subject lots. even without need of the prior filing of a motion to set aside the order of default. and no argument in this petition persuades the Court to rule otherwise. Yet even if it were to assume the doubtful proposition that this contested right of appeal finds no anchor in the 1997 Rules. the OSG filed a Notice of Appeal. Despite the opposition filed by the OSG. 2. applying the principle of stare decisis. From this Decision. the doctrine still exists. no party appeared before the Court to oppose Martinez’s petition. We hold that a defendant party declared in default retains the right to appeal from the judgment by default on the ground that the plaintiff failed to prove the material allegations of the complaint. RTC received Martinez’s oral and documentary evidence and concluded that Martinez and his predecessors-in-interest had been for over 100 years in possession characterized as continuous. ’13) decision is contrary to law. and that they became private property through prescription pursuant to Section 48(b) of CA No. he may file a motion for new trial under Section 1(a) of Rule 37. and that he has meritorious defenses. 141. public. even if no petition to set aside the order of default has been presented by him. opposed the petition. file a motion. or that the MENDEZ. that the lots had remained unencumbered. he may file a petition for relief under Section 2 of Rule 38. By 1997. including the pronouncement that a defaulted defendant may appeal from the judgment rendered against him. or appeal its allowance by the RTC.

petitioner filed a motion for reconsideration.CIVIL PROCEDURE REVIEWER101 appear on the day set for the initial healing. PRC inquiring whether petitioner Indiana Aerospace University had already acquired university status in view of their representation in the advertisement in the Manila Bulletin. thus. 1989 declaring said petitioner in default and allowed evidence to be presented ex-parte. Upon denial thereof. promulgated on May 26. became final YES. 1989 because it did not receive copies thereof. CA (251 SCRA 391. Respondents MENDEZ. the proper remedy of a party wrongly declared in default is either to appeal from the judgment by default or to file a petition for relief from judgment. petitioner should have appealed. A default judgment is an adjudication on the merits and is. the Regional Trial Court of Manila. After finality Petition for relief from judgment Annulment of judgment Is certiorari a proper remedy? JAO v. Top Service stated that Jao’s counsel had withdrawn his appearance in the trial court and left no forwarding address. ISSUE: Whether the decision of the trial court. It would thus be improper for the Court to make a pronouncement on the validity of the default order since the same has not been put into issue. 1989 declaring it in default and the subsequent Decision of May 20. Strangely. But instead of doing that. if judgment has become final and executory. received a letter from Douglas Macias –Chairman of the Board of Aeronautical Engineering. IVAN VIKTOR (2D. 2001) The remedies available to a defendant VALIDLY declared in default are as follows: (1) a motion to set aside the order of default under Section 3(b). Architecture. CHED (356 SCRA 367. Inc. the OSG did not challenge the propriety of the default order. Petitioner contends that it could not be bound by the questioned Order of April 14. — issued an order dated April 14. (2) a motion for new trial under Section 1(a) of Rule 37. even if no petition to set aside the order of default has been resorted to. and not certiorari. 1995) The proper remedy of a party wrongly declared in default is either to appeal from the judgment by default or to file a petition for relief from judgment. After investigation. the extraordinary writ of certiorari will not lie. the Chairman of the Technical Panel for Engineering. if the default was discovered after judgment but while appeal is still available. ’13) counter that such non-service was due to petitioner's fault in not furnishing the trial court with its "forwarding address" after its counsel withdrew his appearance. On May 26.. the trial court rendered a decision ordering Jao to pay Top Service the agreed rentals with 12% interest. Since appeal is the proper remedy. which the latter failed to perfect. appealable. 1989. it opted for the wrong remedy of certior INDIANA AEROSPACE UNIVERSITY v. This Court is not in a position to settle this issue of fact — as indeed the Supreme Court does not decide such questions. Respondent CHED inquired from the SEC as to the status of the registered name of petitioner and it was affirmed that IAU (registered as Indiana School of Aeronautics.) had not amended its Articles of Incorporation to change its name to a “university. it was found that there was a violation committed by the IAU when it used the term “university” when it had not yet complied with the basic requirement of being a university as prescribed in CHED Memoradum. But it is not disputed that after receipt of the decision. (3) a petition for relief under Rule 38. if the default was discovered before judgment could be rendered. Thus. A writ of preliminary injunction was issued by the RTC. FACTS: Due to the non-appearance of the petitioner Jao & Company. Inc. No notice of the said order of default and the decision could be given it. Rule 9 of the Rules of Court. By virtue of such decision. FACTS: In 1996. Rule 41. The petitioner however filed an answer. and not certiorari. whatever defects — if indeed there was any — may have been committed by the trial court in failing to give constructive notice of its erroneous default order was cured by petitioner's voluntary filing of the said motion for reconsideration. and Maritime Education (TPRAM) of CHED. 1989. Inc. and (4) an appeal from the judgment under Section 1. The former contends that the latter’s remedy was timely appeal. Branch 51 — upon motion of herein private respondent Top Service. Under ordinary circumstances.” CHED ordered IAU to desist from . during the hearing on the merits.

on the contrary. The latter. On the same day. The CA ruled that respondent CHED should NOT have been declared in default. 1998. respondent CHED filed for Motion for Extension of Time to File its Answer until November 18. Thus.” IAU through its chairman and founder appealed to the Order of CHED averring that the school will encounter difficulties and suffer damages if it will not be allowed to use the word “university” in its school name. Herein respondent CHED controverts the judgment by default. ’13) to set aside the order of default under Section 3(b). paragraph 3 of Rule 41 of the pre 1997 Rules of Court. (as such as what CHED had done). . however. Such defendant irreparably loses the right to participate in the trial. and (4) an appeal from the judgment under Section 1. this rule prohibiting an appeal does not leave the aggrieved party without any remedy. petitioner IAU filed its Opposition to the Motion for Extension of Time to File respondent’s Answer. 1998. Thus. The TC Judge denied respondent CHED’s motion to dismiss and issued a writ of preliminary injunction in favor of IAU. a judge proceeds without or in excess of jurisdiction. SecTion 3). 1998. not on the ground that it is unsubstantiated by evidence or that it is contrary to law. if the default was discovered before judgment could be rendered. are available only to a defendant who has been validly declared in default. The SC agreed with respondent CHED that certiorari was the only plain. if judgment has become final and executory. If in the course of trial. if the default was discovered after judgment but while appeal is still available. (an express exception to being declared in default under Rule 9. even if no petition to set aside the order of default has been resorted to. petitioner IAU filed Complaint for Damages before the Court. the law does not intend to accord executory force to such writs. and whether its failure to file answer on time be excused on ground that it was due to excusable negligence NO. Prior to the court decision granting the Cease and Desist Order filed by CHED. The remedies available to a defendant declared in default are as follows: (1) a motion MENDEZ. respondent had not obstinately refused to file an Answer. Petitioner IAU filed Opposition to the Motion to Dismiss. In prohibiting appeals from interlocutory orders. speedy and adequate remedy in the ordinary course of law. because the default Order had improvidently been issued. The TC Judge also directed CHED to file its Answer to the decision within 15 days from the receipt of the Court Order – which was August 15. Rule 9 of the Rules of Court. IAU instituted case at bar to appeal the CA decision. and the case remanded to the court of origin. its failure to do so on time was due to excusable negligence. but on the ground that it is intrinsically void for having been rendered pursuant to a patently invalid order of default. a defendant improvidently declared in default may retain and exercise such right after the order of default and the subsequent judgment by default are annulled. speedy and adequate remedy. On September 22. even before the promulgation of a judgment by default. Section 3 of RROC. IVAN VIKTOR (2D. but CHED submitted its Answer however on November 17. Respondent CHED then filed a Special Appearance with Motion to Dismiss the Complaint for damages. On November 11. or in the event that judgment has been rendered.CIVIL PROCEDURE REVIEWER102 using the word “university. Trial Judge rendered its Decision and granted petitioner’s motion to declare respondent CHED in Default. The former is limited to the remedy set forth in section 2. (2) a motion for new trial under Section 1(a) of Rule 37. On the other hand. ISSUE: Whether respondent CHED should be declared in default despite its filing of an answer. a special civil action of certiorari is the plain. particularly when the effect would be to cause irreparable damage. to interpose a petition for certiorari seeking the nullification of the order of default. Rule 41. to have such order and judgment declared void. has the following options: to resort to this same remedy. Respondent CHED consequently filed with the CA a petition for certiorari arguing that the RTC had committed grave abuse of discretion in declaring respondent CHED in default despite its Filing of an Answer. (3) a petition for relief under Rule 38. These remedies. 1998. In a case like this. petitioner IAU filed Motion to Declare Respondent in Default pursuant to Section 9. however. and can therefore contest only the judgment by default on the designated ground that it is contrary to evidence or law. because its answer had been filed long before the RTC ruled upon petitioner’s Motion to declare respondent in default.

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