Obina, Cean Civil Procedure

Salazar, Justin Atty. Monica Yap

Saavedra, Lian

COVER MEMORANDUM

These are the rules applied in accordance with the Rules of court and the effect of failure to
comply with the specific provisions:

1. Rule 6, Section 1, Pleadings as defined are the written statements of the respective
claims and defenses of the parties submitted to the court for appropriate judgment. Section
3, as it defines a Complaint which is the pleading alleging the plaintiff’s or claiming party’s
cause or causes of action. The names and residence s of the plaintiff and defendant must be
stated in the complaint. Section 4, which defines an Answer which is a pleading in which a
defending party sets forth his or her defenses.

2. Rule 7, Section 1, The title of the action indicates the names of the parties. They shall all
be named in the original complaint or petition; but in subsequent pleading. 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.

3. Rule 7, Section 2, The Body sets forth its designation, the allegations of the party’s claim
or defenses, the relief prayed for and the date of the pleading.

4. Rule 7, Section 3, Every pleading and other written submissions to the court must be
signed by the party or counsel representing him or her.

The signature of the counsel constitutes a certificate that he or she has read the pleading
and document, that to the best of his or her knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances that It is not being presented for any
improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the
cost of litigation, The claims, defenses, and other legal contentions are warranted by
existing law or jurisprudence, or by a non-frivolous argument for extending, modifying, or
reversing existing jurisprudence, The factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after availment of the modes of
discovery under these rules and the denials of factual contentions are warranted on the
evidence or, if specifically, so identified, are reasonable based on belief or a lack of
information.

In Case the court finds the counsel in violation of Rule 7, Section 3, the court may impose an
appropriate sanction or refer such violation to the proper office for disciplinary action, on
any attorney, law firm, or party that violated the rule, or is responsible for the violation.

Sanctions include, but no limited to non-monetary directive or sanction, an order to pay a

penalty in court, if imposed on motion and warranted for effective deference, an order
directing payment to the movant of part or all the reasonable attorney’s fees and other
expenses directly resulting from the violation, including attorney’s fees for the filing of the
motion for sanction. (Rule 7, Section 3 RoC)

5. Rule 7, Section 4, A pleading is verified by an affidavit of an affiant duly authorized to sign

said verification which should be under oath the affiant may be the counsel or the party-
pleader. The significance of the signature of the affiant will serve as a certification of the
truthfulness of the allegations in the pleading.
In cases where the pleading is unsigned its effect is that the pleading produces no legal
effect. However, the court may, in its discretion, allow such deficiency to be remedied if it
shall appear that the same was due to mere inadvertence and not intended for delay.
(Sameer Overseas Placement Agency vs. Santos, G.R. No. 152579, August 4, 2009).

The remedy in case there is absence of verification in the pleading is to file a motion to have
such pleading verified by the pleader. (Quimpo vs. De la Victoria, G.R. No. L-31822, July 31.
1972).

6. Rule 7, Section 5, The plaintiff or principal party shall certify under oath in the complaint
or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed
thereto and simultaneously filed therewith the authorization of the affiant to act on behalf
of a party, whether in the form of a secretary's certificate or a special power of attorney,
should be attached to the pleading.

Forum Shopping is an act of a party in which he repeatedly avails himself of several judicial
remedies in different courts, simultaneously or successively, all substantially founded on
the same transaction and the same essential facts and circumstances, and all raising
substantially the same issues either pending in or already resolved adversely by some other
court (Chua vs. Metropolitan Bank & Trust Company, G.R. No. 182311, August 19, 2009).

In executing a certification against forum shopping as a general rule It must be the party-
pleader, not the counsel, who shall sign the certificate of non-forum shopping the exception
of this is if however, for reasonable or justifiable reasons, the party-pleader is unable to
sign, he must execute a Special Power of Attorney designating his counsel of record to sign
on his behalf.(Anderson vs. Ho, G.R. No. 172590, July 7,2013)

Noncompliance with Rule 7, Section 5, regarding the rules on forum shopping is not curable
by mere amendment of the complaint or other initiatory pleading but shall be cause for the
dismissal of the case without prejudice.

When there are several petitioners, it is insufficient that only one of them executes the
certification, absent a showing that he was authorized by the others. The certification
requires personal knowledge and cannot be presumed that the signatory knew that his co-
petitioners had the same actions filed or pending. Hence, a certification that was signed
without proper authorization is defective and is a valid cause for dismissal (Fuentabella vs.
Castro, G.R. No. 150865, June 30, 2006).

Without the presence of the notary upon the signing of the Verification and Certification
against Forum Shopping, there is no assurance that the petitioner swore under oath that
the allegations in the petition have been made in good faith or are true and correct and not
merely speculative. Thus, the absence of the notary when petitioner allegedly affixed her
signature also negates a proper attestation that forum shopping has been committed by the
filing of the petition. Thus, the petition is, for all intents and purposes, an unsigned pleading
that does not deserve the cognizance of the Court (De Lima vs. Hon. Guerrero, G.R. No.
229781, October 10, 2017).

As to consequences of forum shopping if the acts of the party or his or her counsel
constitutes willful and deliberate forum shopping. The same shall be ground for summary
dismissal with prejudice and shall constitute direct contempt, as well as a cause for
administrative sanctions. If the forum shopping is not considered as willful and deliberate,
the subsequent case shall be dismissed without prejudice, on the ground of either litis
pendentia or res judicata. (Chua vs. Metropolitan bank and trust company, G.R. No. 157867)
7. Rule 7, Section 6, Every pleading stating a party's claims or defenses shall, in addition to
those mandated by Section 2, Rule 7, state the following, Names of witnesses who will be

presented to prove a party's claim or defense, Summary of the witnesses' intended

testimonies, provided that the judicial affidavits of said witnesses shall be attached to the
pleading and form an integral part thereof. Only witnesses whose judicial affidavits are
attached to the pleading shall be presented by the parties during trial except if a party
presents meritorious reasons as basis for the admission of additional witnesses, no other
witness or affidavit shall be heard or admitted by the court and lastly documentary and
object evidence in support of the allegations contained in the pleading.

The pleading that asserts a claim or defense. When you say a pleading that asserts a claim
or defense it is not limited to the complaint or answer. Because a counter-claim, cross-
claim, third-party complaint asserts a claim and an answer to a counter claim asserts a
defense. Without prejudice to those others mentioned earlier like cause of action etc. It
should be the name of the witnesses, and if it asserts a claim or defense, you already need
to allege the name of your witnesses, the summary of their testimony then you need to
attach their judicial affidavits and then you have to also attached already all your
documentary and object evidence in support of the pleading you have to allege it already
then you also included it. (Rule 7, Section 6 RoC)

The effect if there is a violation or if you failed to allege it is that it will not be any more
admitted. However, this rule is not absolute when you have meritorious reasons.

8. Rule 8, Section 1, Every pleading shall contain in a methodical and logical form, a plain,
concise and direct statement of the ultimate facts, including the evidence on which the
party pleading relies for his or her claim or defense, as the case may be. If a cause of action
or defense relied on is based on law, the pertinent provisions thereof and their applicability
to him or her shall be clearly and concisely stated.

There are two kinds of facts ultimate facts and evidentiary facts, the ultimate facts are the
essential facts constituting the plaintiff’s cause of action, or such facts as are so essential
that they cannot be stricken out without leaving the statement of the cause of action
inadequate (Ceroferr Realty Corporation vs. Court of Appeals, 376 SCRA 144), while the
evidentiary facts are those which are necessary to prove the ultimate fact or which furnish
the evidence of existence of some other facts. (Womack v. Industrial Comm., 168 Colo.
364).

9. Rule 8, Section 7, A written document used as basis for the cause of action or for the
defense, A party can only file a reply when the answer is based on an actionable document.

10. Rule 8, Section 12, A defendant shall raise his or her affirmative defenses in his or her
answer, which shall be limited to the reasons set forth under Section 5 (b), Rule 6.

Failure to raise the affirmative defenses at the earliest opportunity shall constitute a waiver
thereof.

Denial of affirmative defenses shall not be the subject of Motion for reconsideration;
Petition for certiorari; Prohibition; and Mandamus. These prohibitions stem from the fact
that the order of denial is an interlocutory order. Such denial of affirmative defenses will
not hinder the court from continuing with the trial.

Remedy on such denial is to assign the order of denial as among the matters to be raised on
appeal after a judgment on the merits.