Rule 9 : EFFECT OF FAILURE TO PLEAD – relate sec 1 rule to sec 6 rule and sec 1 rule 14-granting

authority to the court to dismiss motu propio if lack of urisdiction litis pendentia and res judicata

Section 1. Defenses and objections not pleaded. — (Memorize) Defenses and objections not pleaded
either in a motion to dismiss or in the answer are deemed waived.

Defenses or objections not pleaded either in a motion to dismiss or in the answer are deemed waived.
Except:

(a) When it appears from the pleading or the pieces of evidence on record that the court has no
jurisdiction over the subject matter; (b) That there is another action pending between the same parties
for the same cause; (c) That the action is barred by the statute of limitations (same as Sec. 8, Rule 117);
(d) Res judicata.

*See, Rule 6 Section 5

Section 5. Defenses. — Defenses may either be negative or affirmative.

(a) 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.

(b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the
material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him.
The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of
frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession
and avoidance. (5a)

--- plead all applicable defenses, if not, it will be waived.

Exceptions:

1. lack of jurisdiction over the subject matter. (See the jurisdiction of the different courts)

- can never be waived

2. failure to state a cause of action (See Arcilla v. CA, 215 SCRA 120; examine only the four
corners of the complaint or initiatory pleading and its allegations if all the elements of the
cause of action are alleged completely)

Section 2, Rule 9 of the Rules of Court expressly proved that defenses and objections, other
than the failure to state a cause of action and lack of jurisdiction, not pleaded either in a
motion to dismiss or in the answer are deemed waved. Petitioner, as a lawyer, knows or is
 supposed to know this rule. Since he prepared the Answer himself, We cannot think of any
possible reason why he failed to set up this defense other than his realization of its inherent
weakness or his outright inexcusable negligence of forgetfulness. And even if it were due to
inadvertence, he could still have subsequently availed of Section 2, Rule 10 of the Rules of
Court which allows a party to amend his answer as a matter of right within the period therein
stated. Failing that, he could have resorted to Section 3 thereof which allows the making of
amendments upon leave of court. On the other hand, if the lapse was due to forgetfulness, it
is just unfortunate that he did not exercise due diligence in the conduct of his won affairs. He
can expect no reward for it.

*elements of failure to state a cause of action

*differentiate failure to state a cause of actions from lack of cause of action

Failure to state a cause of action and lack of cause of action are really different from each other.
On the one hand, failure to state a cause of action refers to the insufficiency of the pleading, and is a
ground for dismissal under Rule 16 of the Rules of Court. On the other hand, lack of cause [of] action
refers to a situation where the evidence does not prove the cause of action alleged in the pleading.

Lack of cause of action refers to the insufficiency of the factual basis for the action.

3. litis pendentia - that there is another action pending between the same parties for the same
cause

*3 types

4. res judicata - The doctrine of res judicata provides that a final judgment on the merits
rendered by a court of competent jurisdiction, is conclusive as to the rights of the parties and
their privies and constitutes an absolute bar to subsequent actions involving the same claim,
demand, or cause of action.

*bar by prior judgment - Bar by prior judgment is the doctrine of res judicata which bars a second action
when there is identity of parties, subject matter and cause of action.

Rule 39, section 47(b) In other cases, the judgment or final order is, with respect to the matter directly
adjudged or as to any other matter that could have been missed in relation thereto, conclusive between
the parties and their successors in interest, by title subsequent to the commencement of the action or
special proceeding, litigating for the same thing and under the same title and in the same capacity

*conclusiveness of judgment - The doctrine of res judicata by conclusiveness of judgment postulates

that when a right or fact has been judicially tried and determined by a court of competent jurisdiction,
or when an opportunity for such trial has been given, the judgment of the court, as along as it remains
unreversed, should be conclusive upon the parties and those in privity with them

5. prescription of action or statute of limitations

Prescription must be expressly relied upon in the pleadings and cannot be availed of, unless pleaded
in the answer. (Navera v. CA, 184 SCRA 584)

- Prescription as a defense, must be expressly relied upon in the pleadings. It cannot be availed
of, unless it is specially pleaded in the answer; and it must be proved or established with the
same degree of certainty as any essential allegation in the civil action (Hodges vs. Salas, 63 Phil.
567; Corporacion de PP. Autinus Recolectos vs. Crisostomo, 32 Phil. 427). In the instant case,
petitioners, who were the defendants in the lower court, did not claim acquisitive prescription in
their answer, and even if they did, it cannot be given judicial sanction on mere allegations. The
law requires one who asserts ownership by adverse possession to prove the presence of the
essential elements of acquisitive prescription (Morales vs. CFI, et al., No. L- 52278, May 29,
1980, 97 SCRA 872).
- After a careful examination of the records, We are of the opinion that there is lack of sufficient
proof to establish clearly and positively petitioner's claim of acquisitive prescription. In fact, We
are more inclined to believe respondents' version that respondent Arsenio Nares was evicted
from the property by petitioner sometime in 1957, thereby showing the latter's bad faith in
acquiring the possession of the property until 1971 when the action against petitioner was filed.
Thus, the ordinary acquisitive prescription of ten years cannot be considered in favor of
petitioner in the absence of good faith. Neither is the petitioner entitled to extraordinary
acquisitive prescription, in the absence of sufficient proof of compliance with the thirty-year
requirement of possession in case of bad faith.

The presence of any of the four grounds and apparent from the allegations in the complaint or
evidence authorizes the court to motu proprio dismiss the claim.

Section 2. Compulsory counterclaim, or cross-claim, not set up barred. — (Read)

- Effect if a compulsory counterclaim is not pleaded or raised in the same action is

BARRED unless otherwise allowed by the Rules

*exceptions

- after acquired counter-claim or cross claim is not barred if not set up in the case
(Section 9, Rule 11, 2019 Rules of Civil Procedure)
 - omitted through oversight, etc. (Section 10, Rule 11, 2019 Rules of Civil Procedure;
See, Tiu Po v. Bautista, G.R. No. 55514, March 17, 1981)

- Under Section 4, Rule 9, counterclaim is compulsory in nature 1) if it arises out of, or is necessarily
connected with the transaction or occurrence that is the subject matter of the opposing party’s claim; 2)
if it does not require for its adjudication the presence of third parties over whom the Court cannot
acquire jurisdiction; and 3) if the Court has jurisdiction to entertain the claim. A compulsory
counterclaim is barred if not set up. Conversely, a counterclaim is permissive where it has no necessary
connection with the transaction or occurrence that is the subject matter of the opposing PHILIPPINE
REPORTS Tiu Po, et al v. Hon. Bautista, Et. Al. party’s claim or even where there is such connection, the
Court has no jurisdiction to entertain the claim, or if it requires for its adjudication the presence of third
persons over whom the Court cannot acquire jurisdiction.

2. ID.; ID.; ID.; ID.; COMPULSORY IN THE CASE AT BAR. — Petitioners’ counterclaim for damages fulfills
the necessary requisites of a compulsory counterclaim. They are damages claimed to have been suffered
by petitioners as a consequence of the action filed against them. They have to be pleaded in the same
action, otherwise, petitioners would be precluded by the judgment from invoking the same in an
independent action. Aside from the fact that petitioners’ counterclaim for damages cannot be the
subject of an independent action, it is the same evidence that sustains petitioners’ counterclaim that will
refute private respondent’s own claim for damages. This is an additional factor that characterizes
petitioners’ counterclaim as compulsory.

3. ID.; ID.; ID.; ID.; CLAIM FOR ATTORNEY’S FEES ARISING OUT OF FILING OF COMPLAINT IS
COMPULSORY IN NATURE. — Where a claim for attorney’s fees arises out of the filing of the complaint
they, too, should be considered as in the nature of a compulsory counterclaim. They should be pleaded
or prayed for in the answer to the complaint in order to be recoverable, otherwise, they would be
barred.

Section 3. Default; Declaration of. — (Important) If the defending party fails to answer within the time
allowed therefor, the court shall, upon motion of the claiming party with notice to the defending
party, and proof of such failure, declare the defending party in default. Thereupon, the court shall
proceed to render judgment granting the claimant such relief as his or her pleading may warrant,
unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence
may be delegated to the clerk of court.

(a) Effect of order of default. — A party in default shall be entitled to notices of subsequent
proceedings but shall not take part in the trial.

(b) Relief from order of default. —(Read – important)

- Relief from an order of default (1) Remedy after notice of order and before judgment:

(a) Motion to set aside order of default, showing that (a) the failure to answer was due to fraud,
accident, mistake, or excusable negligence, and (b) the defendant has a meritorious defense—there
must be an affidavit of merit
(2) Remedy after judgment but before finality: (b) Motion for new trial under Rule 37; or (c) Appeal from
the judgment as being contrary to the evidence or the law;

(3) Remedy after judgment becomes final and executor: (d) Petition for relief from judgment under Rule
38; (e) Action for nullity of judgment under Rule 47

(4) If the order of default is valid, Certiorari is not available. If the default order was improvidently
issued, that is, the defendant was declared in default, without a motion, or without having served with
summons before the expiration of the reglementary period to answer, Certiorari is available as a remedy

(5) The petitioner's logical remedy was to have moved for the lifting of the declaration of its default but
despite notice it did not do the same before the RTC rendered the default judgment on August 23, 1999.
Its motion for that purpose should have been under the oath of one who had knowledge of the facts,
and should show that it had a meritorious defense, and that its failure to file the answer had been due
to fraud, accident, mistake or excusable negligence. Its urgent purpose to move in the RTC is to avert the
rendition of the default judgment. Instead, it was content to insist in its comment/opposition vis-a-vis
the motion to declare it in default that: (1) it had already filed its answer; (2) the order of default was
generally frowned upon by the courts; (3) technicalities should not be resorted to; and (4) it had a
meritorious defense. It is notable that it tendered no substantiation of what was its meritorious defense,
and did not specify the circumstances of fraud, accident, mistake, or excusable negligence that
prevented the filing of the answer before the order of default issued - the crucial elements in asking the
court to consider vacating its own order.

The sincerity of the petitioner's actions cannot be presumed. Hence, it behooves it to allege the suitable
explanation for the failure or the delay to file the answer through a motion to lift the order of default
before the default judgment is rendered. This duty to explain is called for by the philosophy underlying
the doctrine of default in civil procedure, which Justice Narvasa eruditely discoursed on in Gochangco v.
CFI Negros Occidental, (157 SCRA 40, 01/15/1988) to wit: Xxx On the other hand, if he did have good
defenses, it would be unnatural for him not to set them up properly and timely, and if he did not in fact
set them up, it must be presumed that some insuperable cause prevented him from doing so: fraud,
accident, mistake, excusable negligence. In this event, the law will grant him relief; and the law is in
truth quite liberal in the reliefs made available to him: a motion to set aside the order of default prior to
judgment, a motion for new trial to set aside the default judgment; an appeal from the judgment, by
default even if no motion to set aside the order of default or motion for new trial had been previously
presented; a special civil action for certiorari impugning the court's jurisdiction

- Requisites to lift order of default

The defendant’s motion to set aside order of default must satisfy three conditions. First is the time
element. The defendant must challenge the default order before judgment. Second, the defendant must
have been prevented from filing his answer due to fraud, accident, mistake or excusable negligence.
Third, he must have a meritorious defense.

File a verified motion to set aside order of default showing:

 1. grounds are FAME

2. meritorious defense

(c) Effect of partial default. — rule 29 section 3

Effect of a partial default :

(1) When a pleading asserting a claim states a common cause of action against several defending parties,
some of whom answer and the others fail to do so, the court shall try the case against all upon the
answers thus filed and render judgment upon the evidence presented

(d) Extent of relief to be awarded. — (Read) Limited to what has been prayed for which shall neither
exceed the amount or be different from that prayed for nor award damages

- (1) A judgment rendered against a party in default may not exceed the amount or be different from
that prayed for nor include unliquidated damages which are not awarded (Sec. 3[c], Rule 9). In fact,
there can be no automatic grant of relief as the court has to weigh the evidence. Furthermore, there can
be no award of unliquidated damages

(e) Where no defaults allowed. — (Read)

Requisites for declaration of defendant in default

a) Defendant fails to file answer within the time allowed therefor;

b) Motion to declare defendant in default filed by the plaintiff; and

c) Proof of failure by the defendant to file his answer despite due notice.

The court cannot motu proprio declare a defendant in default. (See, Trajano, et al. v. Cruz, Dec.
29, 1977)

Effects of order in default – the court shall proceed to render judgment granting the plaintiff such
relief as his pleading may warrant, unless the court in its discretion requires the plaintiff to submit
evidence. A party declared in default shall be entitled to notice of subsequent proceedings but cannot
take part in the trial. (Santos v. PNOC, 566 SCRA 272, 2008)

The effects of default are followed only in three instances:

1. when there is an actual default for failure to file responsive pleading;

 2. failure to appear in the pre-trial conference; and

3. refusal to comply with the modes of discovery under the circumstance in Rule 29, Section
3(c) (Monzon v. Sps. Relova, 565 SCRA 514, 2006)

Remedies from order in default.

1. Before judgment

a. File a motion under oath to set aside the order of default at anytime after notice thereof
and before judgment;

b. Proper showing that his failure to answer was due to FAME.

1. Fraud – extrinsic or collateral, that is, the kind which prevented the aggrieved party from having a
trial or presenting his case to the court, or was used to procure the judgment without fair
submission of the controversy.

2. Excusable negligence (not inexcusable) one which ordinary diligence and prudence could not have
guarded against. The negligence must be generally imputable to the party and not to his counsel
because if it is, it is binding on the party. otherwise it is binding on the former. (Gomex v.
MOtalban, 548 SCRA 693, 2008)

3. Mistake – refers to mistake of fact and not of law which relates to the case. It does not apply to
judicial error which the trial court might have committed in the trial because it is correctible by
appeal.

c. Affidavit of merit, that is, he has a meritorious defense except if the motion is grounded on
the very root of the proceedings, i. e., invalid service of summons.

2. Default discovered after judgment but before it has become final and executory

- motion for new trial under Rule 37, Section 1 (a)

 3. Default discovered after the judgment has become final and executory

- petition for relief from judgment under Rule 38, Section 1

4. Appeal from the judgment rendered against him as contrary to the evidence or to the law,
even if no petition to set aside the order of default has been presented by him. (Cerezo v.
Tuazon, 426 SCRA 167)

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, and not certiorari. (Republic v. Sandiganbayan,
239 SCRA 529)

An order of default is an interlocutory order (remedy is a motion to set aside the order, or
certiorari if committed with grave abuse of discretion) while judgment by default is a final disposition
of the case (appeal is the remedy).

If the court sets aside the order of default, the defendant is restored to his standing and rights in
the action. However, proceedings already taken are not to be disturbed although court has the
discretion to re-open the evidence and allow the defendant to challenge the same.

No default is allowed in action for annulment or declaration of nullity of marriage, or for legal
separation. The prosecuting attorney shall conduct an investigation if there is collusion.

Important - Defendant can be validly declared in default even if he filed his answer in court but
failed to furnish a copy thereof upon the other party. (Banares v. Flordeliza, et al., 51 Phil. 786)

Defendant’s answer should be admitted where it was filed before he had been declared in
default and no prejudice could have been caused to plaintiff (Trajano v. Cruz)

Defendant defaulted is entitled to notice of execution pending appeal. (Garcia v. CA, 209
SCRA 732)
Order of default and judgment by default –

Extent of relief that may be awarded – only so much as has been alleged and proved. No unliquidated
damages shall be awarded and the judgment shall not exceed or be different in kind from that prayed
for. If the claim is not proved, the case should be dismissed. (Pascua, et al., v. Florendo, et al., April
30, 1985.)