Action for money claim arising from contract expressed/implied:

Case: Y (debtor) owes money to Z (creditor). The debt became due. Y dies before Z
could file a claim against Y. What is the remedy of Z?

A: File a money claim to the settle of estate of Y.

Case: There is a pending case for the payment of claim. Y died. What happens now?

A: If the defendant dies BEFORE entry of judgment – the action must continue until
entry of judgment (final judgment). The action will proceed against the substituted
defendants (since the action is not extinguished by death). If a judgment is rendered in
favor of Z, he may enforce it by filing a money claim based on judgment on the
settlement of the estate of Y.

Case: The action is not based on contract. The defendant dies before the institution of
the action. What is the remedy of the plaintiff?

A: The remedy of the plaintiff is to file the action against the administrator/executor.

Venue:

First move – determine whether the action is real or personal (to determine what rules
on venue shall apply).

Case: The defendant is non-resident. Where may the action be filed?

A: Where the plaintiff resides if the action affects the status of the plaintiff. If it is a real
action, the action may be filed in the court where the property is located.

Case: The plaintiff is non-resident. The defendant is a resident. The plaintiff filed a
personal action against the defendant through his attorney-in-fact. Where should the
venue be laid?

A: The venue should be laid on the resident of the defendant and not the resident of the
plaintiff (non-resident) nor the resident of the plaintiff’s attorney-in-fact (not the plaintiff).

Note: The defense of improper venue may be raised only as an affirmative defense on
the answer, not on a motion to dismiss (prohibited motion).

RULE 6 – KINDS OF PLEADINGS

Affirmative Defenses: (CLINS)

 1. Lack of jurisdiction over the person of the defendant;
2. Improper venue;
3. No legal capacity to sue;
4. State no cause of action; and
5. Non-compliance with condition precedent.

Note: The court must motu proprio resolve the defenses within 30 calendar days from
the filing of the answer. No need for summary hearing.

Motion to Dismiss:

1. Lack of jurisdiction over the SM;

2. Res judicata;
3. Litis pendentia; and
4. Prescription.

Affirmative defenses which require summary hearing within 15 calendar days

from the filing of the answer (the court has 30 days to resolve the defense):

1. Fraud;
2. Prescription;
3. Release;
4. Payment;
5. Illegality;
6. Statute of Frauds;
7. Estoppel;
8. Former Recovery;
9. Bankruptcy; and
10. Other matter by way of confession and avoidance.

Case: Plaintiff v. Defendant. Summons was served Feb. 28. The defendant has until
March 30 to file an answer. On March 28 defendant filed a M to D alleging improper
venue. The court did not resolve the M to D. On April 1, the plaintiff filed a motion to
declare defendant in default. The court granted it. Is the court correct to grant the
motion to declare the defendant in default notwithstanding the non-resolution of the
latter’s Motion to Dismiss?

A: Yes, because the M to D on the ground of improper venue is a prohibited motion.

Thus, the court need not act on the motion.

Compulsory and Permissive Counterclaim:

1. CC – arises out of or is necessary connected with the transaction or occurrence

that is the subject matter of the opponent’s claim. Must be set-up in the same
 action. Otherwise, the CC barred. A CC need not be answered. Does not need a
certification.
2. PC – May not be set-up on the same action. Must be answered, otherwise, the
plaintiff upon motion of the defendant may be declared in default. It requires a
certification on non-forum shopping since it is an initiatory pleading.

Negative Defenses:

1. Specific Denial:

a. Absolute denial;
b. Partial denial; and
c. Denial by disavowal – must be made on GF.

2. General Denial = Admission

Note: To deny the genuineness of an actionable document, the denial must be

specific and under oath.

RULE 9

Grounds not waived:

1. Lack of jurisdiction over the SM;

2. Res judicata;
3. Litis pendentia; and
4. Prescription.

Note: There can be no motu proprio declaration of a party in default. A copy must be
served upon the defendant because such motion is a litigious motion.

Remedies of the defendant declared in default:

1. Motion to set aside order of default – may be filed on the ground of F (extrinsic
fraud) AME. May be filed at any time from notice of declaration of default but
before judgment.
2. Motion for new trial – FAME. May be filed within the time for perfecting an
appeal.
3. Appeal – the right to appeal does not depend on the filing of a motion to set
aside order of default. The appeal may be had on the ground that the judgment
was excessive.
 4. Petition for relief from judgment – available only when judgment has attained
finality. FAME. May be filed within 60 days from notice of judgment but within 6
months from entry of judgment.
5. Action for annulment – May be filed on the ground of extrinsic fraud.
6. Petition for certiorari – on the ground that the court, in declaring him in default,
has acted with GADALEJ.

Q: What is the nature/extent of a judgment by default?

A: It cannot exceed the amount or be different in kind from that prayed for; or award
unliquidated damages.

Q: May the court in its judgment award more than that the plaintiff has prayed for in his
complaint?

A: Yes, except when the judgment is a judgment by default.

Case: There are multiple defendants. Some filed their respective answers while others
did not. Can the court declared those who did not file their answers in default and set a
trial for those who filed their answers?

A: The court should proceed to try the case based on the answer filed. The other
defendants who did not file their answer shall not be declared in default.

RULE 10 – AMENDMENTS

When to file responsive pleading? – 30 days – extension may be had for another 30
days.

Note: A motion for extension is not allowed except when it comes to a motion for
extension to file an answer.

Q: When to file an answer to an amended pleading?

A: It depends:

1. If the amendment is a made as a matter of right – 30 days from service of

summons.
2. If with LOC – 15 days from notice of the order of meeting the amended
complaint.

Q: If the defendant did not file an answer to the amended complaint, will he be declared
in default?
A: No, his answer in the original complaint will stand as his answer in the amended
complaint.

Modes of Filing:

1. Personal filing;
2. Filing by registered mail;
3. Filing by accredited courier; and
4. Electronic filing if expressly allowed by the rules.

Note: Initiatory pleadings may only be filed through conventional means.

Presumptive notice: A notice is presumed made if such was served 20 days (w/in
judicial region); 30 days (outside judicial region) prior to the scheduled hearing. This rule
applies only to notice of hearing.

RULE 14 – SUMMONS

Q: When may the plaintiff serve summons?

NEW RULE: When the summons is to be served outside the judicial court where the
case is pending; if the summons is returned without being served on any or all the
defendants; and if there is a failure to serve summons by the sheriff or his deputy.

Service of summons within the Philippines:

1. Personal service;
2. Substituted service (impossibility to serve within 30 days and after at least 3
attempts on 2 different days); and
3. Publication.

Tendering of summons - If the defendant refuses to receive and sign for it, by leaving
the summons within the view and in the presence of the defendant.

Substituted service – It is made by leaving a copy to the defendant’s residence to a

person at least 18 year of age and of sufficient discretion residing therein; or by leaving
a copy at the defendant’s office or place of business with some competent person in
charge thereof; or by leaving a copy if refused entry upon making his authority and
purpose known with any of the officer/head of security office of the condominium,
housing, etc. as the case may be.

Publication – It is made in any action where the identity of the defendant is unknown;
or the whereabouts of the defendant is unknown and cannot be ascertained by diligent
inquiry within 90 days from the commencement of the action; or if the defendant is non-
resident but the action can be maintained against him (action in rem/quasi in rem); or
the defendant is a resident but temporarily out of the country.

Service of summons outside the Philippines (extra-territorial service):

1. Personal service;
2. As provided for in international convention to which the PH is a party;
3. Publication (publication to a newspaper of general circulation or by sending the
summons by registered mail to the defendant’s last known address); and
4. Any other manner the court may deem sufficient.

Note: Filing a prohibited motion counts as voluntary appearance.

NEW RULE: When a counsel appears in court questioning the jurisdiction of the court
over the person of his/her client (the defendant) such as when summons was not
properly served, the court may deputize such counsel to serve the summons to his/her
client.

RULE 15 – MOTIONS

Non-litigious motion: It refers to those motions which the court may act upon without
causing prejudice to the rights of an adverse party. It must be resolved within 5 days
from the receipt of the motion.

Note: Summons has no definite lifetime, however, if the summons is lost/destroyed

without having been served, the court shall issue alias summons.

Example of Litigious motion:

1. Bill of particulars;
2. MTD;
3. MNT/MR;
4. Motion for execution pending appeal;
5. Motion to amend after a respondent pleading is filed;
6. Motion to cancel a statutory lien;
7. Writ of demolition;
8. Motion for intervention;
9. Motion for judgment on the pleadings;
10. Motion for summary judgment;
11. Demurrer;
12. Motion to declare defendant in default;
Note: LM must be resolved by the court within 15 days from the receipt of the
opposition or upon expiration of the period to file an opposition if no opposition has been
filed.

NEW RULE: If the motion is non-litigious, no notice of hearing is required; if it is

litigious, the court may (discretionary) issue a notice of hearing.

Case: Plaintiff files an action. Defendant files an answer containing affirmative

defenses. The court denied the affirmative defenses. May the defendant file a MR?

A: No, MR in this case is a prohibited motion.

Case: Plaintiff files an action. Defendant files an answer containing affirmative

defenses. Court found that such defense exists and dismissed the complaint. May the
plaintiff file a MR?

A: Yes, MR in this case is not a prohibited motion. He may also file an appeal in case
the MR is denied.

RULE 17 – DISMISSAL OF ACTION

The plaintiff may dismiss his own complaint:

1. Notice of dismissal;
2. Motion to dismiss.

Note: A MTD filed by the plaintiff to dismiss his own complaint is not a prohibited
motion.

Note: Notice of dismissal may be filed before an answer or a motion for summary
judgment has been filed. If an answer has already been filed, the dismissal by the
plaintiff must be through a MTD – the dismissal is limited to the complaint and without
prejudice to the right of the defendant to prosecute his counterclaim in the same action
or a separate action.

Note: The dismissal by notice of dismissal shall be without prejudice, except when the
notice of dismissal states that it is with prejudice; or if the refilling of the complaint is
barred by the 2-dismissal rule.

Motu proprio dismissal by the court:

1. Failure to appear when required to do so;

2. Failure to prosecute; or
3. Failure to obey the court or the rules of court.
Note: The aforementioned dismissal is with prejudice unless the court states in the
order dismissing the complaint that the dismissal is without prejudice.

Remedy if with prejudice: Appeal. The dismissal is not interlocutory as is puts an end
to the case.

Remedy if without prejudice: Re-file the complaint.

RULE 18 – PRETRIAL

When: After the last responsive pleading has been served and filed, the case may now
be set for pre-trial (not later than 60 days after the filing of the last responsive pleading).

Failure of party and counsel to appear during the pre-trial despite notice, effects:

1. Waiver of any objections to the faithfulness of the reproduction of documentary

evidence marked and their genuineness and due execution;
2. Failure of both plaintiff and counsel to appear despite notice shall cause the
dismissal of the complaint without prejudice unless the court ordered otherwise;
3. Failure of the both defendant and counsel to appear despite due notice shall be
cause to allow the plaintiff to present his/her evidence ex parte.

Note: Failure to bring evidence at the pre-trial shall be deemed a waiver of the
presentation of such evidence; however, if the evidence is not available during the pre-
trial, it may be reserved.

Note: A representative may appear on behalf of a party during a pre-trial, CAM or JDR
if such representative is full authorized by the party to enter into an amicable settlement
or enter into stipulation and admission of facts or documents.

Note: The court may render a judgment on the pleadings or summary judgment after
the pre-trial. It may be done on motion of a party.

DEMURRER TO EVIDENCE

After the plaintiff has rested its case, the defendant may file a demurrer to
evidence, on the ground that upon the facts and the law plaintiff has shown no right to
relief – the evidence presented by the plaintiff is insufficient to sustain a judgment in his
favor by preponderance of evidence.

Note: LOC is not required for the filing of a demurrer in a civil case.
DTE, effects:

1. If denied – the remedy of the defendant is to present his own evidence. The filing
of a DTE is not a waiver to present one’s own evidence.
2. If granted – the complaint is dismissed. The plaintiff may appeal from the order
dismissing his complaint. If the appellate court finds that the evidence presented
by the plaintiff is sufficient (reversal of judgment), the appellate court may now
decide the case on the basis of the evidence presented by the plaintiff – in this
instance, the defendant loses his right to present his evidence.