Judgment against a corporation
MODULE 4 A judgment rendered against a corporation, ordering it to pay
SUMMONS
Summons
Summons is the writ by which the defendant is notified of the
action brought against him or her. Service of summons is a vital
and indispensable ingredient of due process and compliance
with the rules regarding the service of summons is not only a
requirement of due process but also of jurisdiction.
An integral part of the summons is a direction that the defendant
should answer the complaint within the period fixed by the Rules
and that, unless he so answers, plaintiff will take judgment by
default and may be granted the relief prayed for.
Two-fold purpose of summons
1. To acquire jurisdiction over the person of the defendant
2. To notify the defendant that an action has been
commenced so that he may be given an opportunity to be
heard on the claim against him and the theory on which
such claim is premised.
Without or improper service of summons
General rule:
Without service of summons, or when summons are improperly
made, both the trial and the judgment, being in violation of due
process, are null and void.
Exception
Unless, the defendant waives the service of summons by
voluntarily appearing and answering the suit.
Service of summons applies to any action
Regardless of the type of action, proper service of summons is
imperative.
Summons in actions in personam
Purpose of summons in personam
The purpose is to comply with due process and to acquire
jurisdiction over the person of the defendant.
The mere filing of the complaint and payment of the lawful fees
does not enable the court to acquire the jurisdiction over the
person of the defendant. To have jurisdiction over the person of
the defendant, where he does not appear voluntarily in the
action, a valid service of summons upon him is required.
Reason
Where the action is in personam, that is, one brought against a
person on the basis of his or her personal liability, jurisdiction
over the person of the defendant is necessary for the court to
validly try and decide the case.
When the Court does not acquire jurisdiction
a. In an action for damages, the court would be without
authority to order the defendant to pay damages in favor
of the plaintiff.
b. In action for sum of money, any judgment against the
defendant would not be binding upon him.
the plaintiff, is not a valid judgment, where the corporation was
not summoned to the suit, even if its president knew of the
action in his capacity as counsel for the other defendant. This is
because the corporation has a personality separate and distinct
from the people who compose it.
Effect of knowledge of the filing of the action
Knowledge by the defendant of the action filed against him does
not dispense with the needs for summons. Summons must still
be issued and served.
Summons in actions in rem and quasi in rem
Purpose of summons in actions in rem and quasi in rem
In action in rem and quasi in rem, the court is not primarily
concerned with the jurisdiction over the person of the
defendant. But it is the acquisition by the court of jurisdiction
over the res which principally matters.
Jurisdiction over the res acquired
Jurisdiction over the res is acquired either by:
1. The seizure of the properly under legal process, whereby it
is brought into actual custody of the law; or
2. As a result of the institution of legal proceedings, in which
the power of the court is recognized and made effective.
Summons in quasi/in rem compliance with due process
But this does not mean that the service of summons may be
dispensed with. Summons must still be served upon the
defendant in order to satisfy the due process requirements.
a. While an attachment is a proceeding in rem or quasi in rem,
the classification becomes significant only when the
defendant does not appear in the action as when he is a
non-resident who is at the same time outside of the
Philippines.
b. Where the defendant does not voluntarily appear in the
action, the need for acquiring jurisdiction over the property
or res becomes imperative so the court may have the
authority to order that the property be made to answer or
the liability of the non-appearing defendant.
c. If there is no appearance of the defendant, and no service
of process on him, the case becomes a proceeding in rem,
the only effect of which is to subject the property attached
to the payment of the defendant which the court may find
to be due to the plaintiff.
Thus, when the defendant appears in the action, even an in rem
and a quasi in rem action are to be treated as actions in rem.
To ways to acquire jurisdiction over the person
Jurisdiction over the person of the defendant is acquired through
a coercive process, generally:
1. By summons
2. By voluntary appearance or submission to the court
Voluntary appearance
Sec. 23, Rule 14, Rules of Court
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 from lack of jurisdiction
over the person of the defendant shall be deemed a voluntary
appearance.
1

Judge Q: I want you to take note of this also. Section 23 now
says, there is now a shift of policy. Under the old rules, “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.” Even if the defendant thru
counsel files a pleading, particularly a motion to dismiss citing
several grounds including lack of jurisdiction over the person,
the same shall not be considered a voluntary appearance. BUT
under the new rules, it is very different, the exact opposite. “The
inclusion in a motion to dismiss of other grounds aside from lack
of jurisdiction over the person of the defendant shall be deemed
a voluntary appearance.” So one should be very careful. So what
does this imply? This is a departure from the ruling in La Naval
v CA. Now, if he files a motion to dismiss and includes therein
other grounds, then it is deemed a voluntary appearance so
when can we say that there is no voluntary appearance? Only
when he files a motion to dismiss based on lack of jurisdiction
over the person of the defendant as a sole ground so there is
now a shift of the policy. Because probably, to the mind of the
Committee, when you file a pleading and it includes other issues,
it clearly indicates that you want the court to address other
issues surrounding or related to the case. It would be a clear
indication that you want to submit yourself to the jurisdiction of
the court. You want to avail of the processes and perhaps that’s
the reason why there is a dramatic shift in the policy so forget
the rulings of the court with respect to the filing of a motion
because it will be considered a voluntary appearance.
Voluntary appearance
Voluntary appearance is any appearance of the defendant in
court, provided he does not raise the question of lack of
jurisdiction of the court.
An appearance is whatever form, without explicitly objecting to
the jurisdiction of the court over the person, is a submission to
the jurisdiction of the court over the person. It may be made by
simply filing a formal motion, or plea or answer. If his motion is
for any other purpose than to object to the jurisdiction of the
court over his person, he thereby submits himself to the
jurisdiction of the court.
Principle of voluntary appearance
An absence of service of summons or even an invalid service of
summons will not prevent the court from acquiring the
jurisdiction over the defendant as long as he performs acts that
could be construed as a voluntary appearance.
The lack or defect in the service of summons may be cured by
the defendant’s subsequent voluntary submission to the
jurisdiction of the court. Thus, an appearance is equivalent to
service of summons.
When is a defendant deemed to have made a voluntary
appearance?
1) When he filed an answer to the complaint
2) When he actively participated in the case
3) When he filed “the Omnibus Motion for Reconsideration And
to Admit attached Answer”
4) By seeking an affirmative relief
5) Filing of motions to admit an answer,
6) Motion for additional time to file an answer
7) Motion for reconsideration of a default of judgment
8) Motion to lift order for default with motion for
reconsideration.
9) Voluntary appearance of attorney
10) A motion, by answer or simple manifestation
11) A telegraphic motion for postponement
12) Filing a motion for dissolution of attachment
13) Failure to question the invalid service of summons
14) Filing a Motion to Dismiss on the ground of lack of
jurisdiction over its person and at the same time raising
affirmative defenses and praying for affirmative relief
However, the act of making a conditional or special appearance
in court to object to the jurisdiction of that court over his person,
is not to be deemed a voluntary appearance or a voluntary
submission to the jurisdiction of the court.
Special appearance
One made for the purpose of objecting to the court’s jurisdiction
over the person of the defendant. Thus, a defendant who files
a motion to dismiss the complaint for lack of jurisdiction over his
person, should not be construed as a voluntary appearance. The
defendant does not seek for an affirmative relief, but to seek
the dismissal of the complaint on the ground stated.
What if the motion to dismiss is coupled with other
defenses?
Under the amended rules, the inclusion in a motion to dismiss
of other grounds aside from lack of jurisdiction over the person
of the defendant shall be deemed a voluntary appearance.
Clerk to issue summons
Sec. 1, Rule 14, Rules of Court
Unless the complaint is on its face dismissible under Section
1, Rule 9, the court shall, within five (5) calendar days from
receipt of the initiatory pleading and proof of payment of the
requisite legal fees, direct the clerk of court to issue the
corresponding summons to the defendants.
Judge Q: Under the revised version, it is incumbent upon the
judge before he directs. The section gives the obligation to the
judge to direct the clerk of court. Why is this made an
obligation? That is because he is also under obligation to
examine the complaint because it says there unless the
complaint is on its face dismissible under Rule 9, Section 1. This
has been emphasized by the chairman of the revision
committee, Justice Quismundo, reminding judges to carefully
comply with this. And the grounds if you remember are lack of
jurisdiction over the subject matter, litis pendentia, res judicata
and the statute of limitations so it is incumbent over the court
to go over the complaint even before directing the clerk to issue
summons because if the court finds that there is no jurisdiction,
court is under obligation to dismiss the case motu proprio so no
need of issuance of summons so in that level alone, the case is
already dismissed so this is an innovation under the new rules.
So remember only those grounds and if there is no ground for
dismissal, the court should do it within 5 calendar days and
direct the clerk of court to issue the summons. In my court, I
issue an order directing the clerk of court so it should also be
part of the record. In theory, it says 5 calendar days but in
reality, it is not actually the filing of the case with the clerk of
court. In every station there is one clerk of court for all branches
and each branch has a branch clerk of court. So how should the
complaint be filed? With the office of the clerk of court for the
entire station so there is one clerk of court for all branches but
2
once the case is raffled, it will be transmitted to the branch
where it is raffled and the records will be transmitted from the
clerk of court to that branch. So how should we count the days?
So it is unfair to start counting even before the particular case
has been raffled to a particular branch. So, when the complaint
has been transmitted to the particular branch where the case is
raffled so if there is no ground for dismissal, then the clerk of
court will issue
Who issues the summons?
The clerk of court issues the summons and shall sign the same
under seal.
When summons is issued
Summons shall be issued within 5 days from the filing of the
complaint and the payment of docket and other lawful fees, the
judge will direct the clerk of court to issue the summons. And
the summons is issued in the name of the Republic of the
Philippines, contains the caption of the case; the court where it
is filed or the court which issued the summons.
Contents
Sec. 2, Rule 14, Rules of Court
The summons shall be directed to the defendant, signed by
the clerk of court under seal, and contain:
(a) The name of the court and the names of the parties to
the action;
(b) When authorized by the court upon ex parte motion, an
authorization for the plaintiff to serve summons to the
defendant;
(c) A direction that the defendant answer within the time
fixed by these Rules; and
(d) A notice that unless the defendant so answers, plaintiff
will take judgment by default and may be granted the
relief applied for.
A copy of the complaint and order for appointment of
guardian ad litem, if any, shall be attached to the original and
each copy of the summons.
Judge Q: For 2 (b), take note this is not applicable in all cases
since service of summons must be primarily served by the sheriff
but only where there is a failure to serve, the plaintiff is allowed
to serve. In cases where plaintiff will serve himself, plaintiff must
file ex parte motion. Another important document that must be
served is a copy of the complaint. That is quite logical. If you
are being directed to file an answer, there is a requirement that
the complaint must be attached and in cases where a defendant
is a minor or incompetent, there must also be an order of the
court appointing guardian ad litem. The rules does not provide
for the number of copies
Note: Ex parte motions are orders that can be granted without
waiting for a response from the other side.
Two whom summons is directed
The summons is a writ that is directed to the defendant, not the
plaintiff.
Questions:
1) Is the defendant bound to comply with the summons where
service was made without attaching a copy of the
complaint? In Pagalaran vs. Bal-latan 13 Phil. 135, the
defendant was served summons but without a copy of the
complaint. She did not appear and file her answer as
ordered. The trial court then issued an order declaring her
in default. A principal issue raised in the SC was whether or
not the proceedings in the trial court should be annulled on
the ground that the defendant had never been summoned
pursuant to the Rules because she was not served a copy
of the complaint.
The SC, while admitting that the service of summons was
defective, treated the defect as having been waived by the
defendant’s failure to seasonably challenge the trial court’s
jurisdiction over her person. She should have appeared to
challenge the jurisdiction of the court.
2) If a complaint is amended and an additional defendant is
included, is there a necessity of issuing new summons on
the additional defendant? Yes. When an additional
defendant is included in the action, summons must be
served upon him for the purpose of enabling the court to
acquire jurisdiction over his person. The case is commenced
against the additional defendant upon the amendment in
the complaint.
3) Suppose a defendant, who has already been summoned,
died, and there was substitution of party, his legal
representative was substituted in his place, is there a
necessity of issuing new summons on the substituted
defendant? No. The order of the court ordering him to be
substituted is already sufficient. Anyway, he is only a
continuation of the personality of the original defendant.
Just serve the copy of the order, where is ordered to be
substituted.
4) BAR Q: If a defendant is served with summons and later on
the complaint is amended by the plaintiff, is there a
necessity that another summons be issued and served
based on the amended complaint? Or is the summons of
the original complaint sufficient? It depends on whether the
amendment was made before or after defendant’s
appearance in the action.
If the defendant has not filed an answer to the original
complaint there must be another summons issued on the
amended complaint. A new summons must be served all
over again based on the amended complaint. If the
defendant has already filed an answer to the original
complaint or he has already appeared in the action, and
after that the complaint is amended, there is no need of
issuing new summons on the amended complaint.
5) Connecting the question with Rule 11, suppose the
defendant was served with summons on the original
complaint and before he could answer, there is now an
amended complaint, so there will be new summons on the
amended complaint, what is the period to file an answer?
There will be another period of 15 days to file an answer to
the amended complaint upon receipt of the amended
complaint and the summons.
6) Suppose the defendant has already filed an answer to the
original complaint and after that there is an amended
complaint, what must the plaintiff do? This time, there is no
3
 need of summons. All that the plaintiff has to do is furnish
the defendant a copy of the amended complaint together
with the motion to admit it. Just serve the defendant a copy
of the amended complaint with a copy of the order
admitting the filing of the amended complaint.
By whom served
Sec. 3, Rule 14, Rules of Court
The summons may be served by the sheriff, his or her
deputy, or other proper court officer, and in case of failure of
service of summons by them, the court may authorize the
plaintiff - to serve the summons - together with the sheriff.
In cases where summons is to be served outside the judicial
region of the court where the case is pending, the plaintiff
shall be authorized to cause the service of summons.
If the plaintiff is a juridical entity, it shall notify the court, in
writing, and name its authorized representative therein,
attaching a board resolution or secretary’s certificate thereto,
as the case may be, stating that such representative is duly
authorized to serve the summons on behalf of the plaintiff.
If the plaintiff misrepresents that the defendant was served
summons, and it is later proved that no summons was
served, the case shall be dismissed with prejudice, the
proceedings shall be nullified, and the plaintiff shall be meted
appropriate sanctions.
If summons is returned without being served on any or all
the defendants, the court shall order the plaintiff to cause the
service of summons by other means available under the
Rules.
Failure to comply with the order shall cause the dismissal of
the initiatory pleading without prejudice.
Who serves summons
1. Sheriff
2. Sheriff’s deputy,
3. Other proper court officer,
4. The plaintiff (with circumstances)
a. In case of failure of service of summons by them, the
court may authorize the plaintiff to serve the summons
together with the sheriff.
b. In case where summons is to be served outside the
judicial region of the court where the case is pending.
c. If plaintiff is a juridical entity, it shall notify the court in
writing and designate its authorized representative
therein, attaching the board resolution or secretary’s
certificate, stating that such representative is duly
authorized to serve the summons on behalf of the
plaintiff.
What will the plaintiff do if the summons is not yet
served? He will file a motion in court asking the court to
authorize him, together with the sheriff, to serve the summons
on the defendant. This will normally apply if the defendant
resides in a faraway province, and the plaintiff wants the
summons served immediately; he is willing to shoulder the
expenses together with the sheriff. That is allowed now, but with
prior approval of the court.
Judge Q: It should be the sheriff who should serve. In in his
sala, there is no permanent sheriff so how do they serve it? They
ask for the assistance of the sheriff at large, the sheriff assigned
to the clerk of court. He will serve as the ex-officio sheriff but
recently their sheriff resigned so there is no sheriff available so
next option is judge directed the court process server to serve
summons. Now there is an underscored portion and in case of
failure to serve summons, court may authorize plaintiff to serve
summons together with the sheriff. So it's a bit confusing. It
means that there is an existing officer but they failed to serve
summons through the allowed modes of service so last option
would be, perhaps reason is failure to find the specific
defendant, however, in the service of summons, he must be
accompanied by the sheriff. Take note that it is only the sheriff,
no other officer. In my case, then it would be difficult to comply
because the rules is explicit that it should be together with the
sheriff. If not accompanied by the sheriff, that is a ground for
invalidating the service of summons.
Second paragraph, take note that the area should be outside
the judicial region of the court so in my case, rtc mandaue and
the seventh judicial region and scope is province of cebu, bohol,
negros oriental so these are the areas. So if the address is within
that judicial region, very crucial to determine, if it is outside, for
instance in baguio or ilocos, the plaintiff shall be authorized to
cause the service of summons. This time there is no requirement
that he should be accompanied by the sheriff
Third paragraph, it is clear that he should be authorized. Now,
if the plaintiff misrepresents, the case shall be dismissed with
prejudice. This is a fatal consequence. Proceedings shall be
nullified and naay appropriate sanctions which can be classified
as contemptuous
Next paragraph, if summons is returned without being served,
what is the option? Court can cause issue service of summons
by other means available under the rules because the primary
mode of service is personal service and if it is being returned,
then you have to resort to other means. Failure to comply with
the order shall cause the dismissal of the initiatory pleading
without prejudice--with reference to the order of the court to
reference.
Plaintiff’s misrepresentation of summons
If the plaintiff misrepresents that the defendant was served
summons, and it is later proved that no summons was served,
the case shall be dismissed with prejudice, the proceedings shall
be nullified, and the plaintiff shall be meted appropriate
sanctions.
When summons is returned without being served
If summons is returned without being served on any or all the
defendants, the court may authorize the plaintiff to cause the
service of summons by other means available under the Rules.
Failure to comply with the order of serving the summons
Failure to comply with the order shall cause the dismissal of the
initiatory pleading without prejudice.
Uniformity of the rules of summons
General rule
The rules on summons apply with equal force in actions before
the RTC, MTC, MTCC, MCTC and MTTTC. This is because the
procedure in the MTCs shall be the same as in the RTC.
Except
4
(a) where a particular provision expressly or impliedly applies (b) Substituted service, if for justifiable causes the defendant
only to either of said courts, or cannot be served within a reasonable time
(b) in civil cases governed by the Rule on Summary Procedure. (c) Service by publication, whenever the defendant’s
whereabouts are unknown and cannot be ascertained by
Validity of summons and issuance of alias summons. diligent inquiry.
Sec. 4, Rule 14, Rules of Court
Service in person on defendant
Summons shall remain valid until duly served, unless it is
Sec. 5, Rule 14, Rules of Court
recalled by the court. In case of loss or destruction of
summons, the court may, upon motion, issue an alias Whenever practicable, the summons shall be served by
summons. handing a copy thereof to the defendant in person and
informing the defendant that he or she is being served, or, if
There is failure of service after unsuccessful attempts to
he or she refuses to receive and sign for it, by leaving the
personally serve the summons on the defendant in his or her
summons within the view and in the presence of the
address indicated in the complaint. Substituted service
defendant.
should be in the manner provided under Section 6 of this
Rule.
Service in person on defendant, not personal service
The mode of service here refers to “service in person on
Judge Q: Section 4 of the new rules is now quite different.
defendant” not “personal service.” Personal service is a mode by
Validity of summons and issuance of alias summons. So this is
which pleadings, motions, notices, orders, judgments and other
quite controversial with the introduction of the revised version.
papers are served. It is primarily a concept actually found in
Revision committee was quick to point out that there was no
Rule 13 and not in Rule 14. The plaintiff does not have a free
new meaning-no expiry-however, in case of loss, court may
choice on the mode of service of summon. Jurisprudence
upon issue, issue an alias summons. The common
considers service in person as the preferred mode.
understanding of practitioners and judges is when the summons
is not served and there is a return, that there is failure to serve
Service of summons, preferred
summons, that would be the basis to issue an alias summons
Service of summons in the person of the defendant is generally
when in truth, the summons is valid even if there is failure to
preferred over substituted service. It is only when summons
serve. It is only the fact of loss or disruption of summons, only
cannot be served personally within a reasonable period of time
time court will issue an alias summons. There is failure of
that substituted service may be resorted. The failure to comply
summons after unsuccessful attempt so substituted service
faithfully, strictly and fully with all the foregoing requirements of
should be provided in the manner provided for under Section 6
substituted service renders the service of summons ineffective.
of the rule. So a service of summons is unsuccessful if there is
no personal service however, the sheriff is under obligation to
When are summons served during the day?
resort to substituted service that is provided under sec 6 of this
Summons may be served at any time of the day.
rule.
Where can summons be served?
Rule in case of Failure of the Sheriff to Serve Summons
1. Serve it at the residence of the defendant.
The plaintiff may request the court that he will be allowed to
2. If not at residence, his or her place of office.
serve the summons.
3. Serve it any other place where the defendant can be found.
What is the lifespan of a summons?
When summons is refused
The validity of the summons is until it is served, unless recalled
If the defendant refuses to receive and sign for it, by leaving the
by the court.
summons within the view and in the presence of the defendant.
However, in the event that the summons is destroyed or lost in
Refusal to Receive Summons
the hands of the plaintiff or the sheriff, the court may issue an
What if the defendant refused to receive the summons? If the
alias summons
defendant refused to receive the summons, the sheriff can leave
the summons in front of the defendant and tell the defendant,
Lifespan of a summons
“Okay, if you will not receive this, I will leave it here, and I will
Summons shall remain valid until duly served, unless it is
report to the court that I already found you, I already handed
recalled by the court. In case of loss or destruction of summons,
the summons to you, but you refused to accept it.”
the court may, upon motion, issue an alias summons.
So maybe, to be safe, the sheriff will take a picture with his
Alias summons
cellphone, together with the defendant and then leave the
Alias summons is one issued when the original has not produced
summons there.
its effects because of a defect in form or in the manner of
service, and when issued supersedes the first writ. Simply, it is
The court cannot be held hostage by the defendant’s refusal to
the second summons issued after the plaintiff tried to serve the
receive the summons. So, if he refused to receive the summons,
first summons but failed to do so.
then leave the summons in front of him, and the sheriff can go
and report to the court. Because once the summons is served,
Hierarchy and rules in service of summons
it is the duty of the sheriff to immediately make a report. We
(a) Service in person on defendant
call that return of service of summons.

5
Return of Service of Summons
Within five days from the service of summons on the defendant,
the sheriff will have to make a report or a return of service of
summons to the court.
Copy-furnish the lawyer of plaintiff so that the plaintiff will know
when the defendant received the summons, so he can also start
counting the reglementary period for the defendant to file his
answer. So that if the defendant will not file his answer within
the reglementary period, the plaintiff can file a motion to declare
the defendant in default.
After summons is served, make a report
Once the summons is served, the Sheriff will make a detailed
report referred as return of service of summons. The report will
submitted to the Court, copy furnished to the plaintiff within 5
days from the service of summons.
Substituted service
Sec. 6, Rule 14, Rules of Court
If, for justifiable causes, the defendant cannot be served
personally after at least three (3) attempts on two (2)
different dates, service may be effected:
(a) By leaving copies of the summons at the defendant’s
residence to a person at least eighteen (18) years of age
and of sufficient discretion residing therein;
(b) By leaving copies of the summons at the defendant’s
office or regular place of business with some competent
person in charge thereof. A competent person includes,
but is not limited to, one who customarily receives
correspondences for the defendant;
(c) By leaving copies of the summons, if refused entry upon
making his or her authority and purpose known, with any
of the officers of the homeowners’ association or
condominium corporation, or its chief security officer in
charge of the community or the building where the
defendant may be found; and
(d) By sending an electronic mail to the defendant’s
electronic mail address, if allowed by the court.
Resort to substituted service is permitted only when the
summons cannot be promptly served on the defendant in
person and after stringent formal and substantive
requirements have been complied with.
Substituted service of summons
The sheriff can give the summons to another person for and in
behalf of the defendant.
How substituted service is made
1. Defendant’s residence:
By leaving copies of the summons at the defendant’s
residence to a person at least eighteen (18) years of age
and of sufficient discretion residing therein;
2. Office/regular place of business, competent person
By leaving copies of the summons at the defendant’s office
or regular place of business with some competent person
in charge thereof. A competent person includes, but is not
limited to, one who customarily receives correspondences
for the defendant;
Not necessary to be the regular place of business, but it is
enough that he appears to be in charge.
3. Others
By leaving copies of the summons, if refused entry upon
making his or her authority and purpose known, with any
of the officers of the homeowners’ association or
condominium corporation, or its chief security officer in
charge of the community or the building where the
defendant may be found; and
4. Electronic mail
By sending an electronic mail to the defendant’s electronic
mail address, if allowed by the court.
When served summons in substituted service
If it is substituted service, the summons shall be served,
between 8 am to 6 pm.
Note:
(a) The law does not allow leaving the summons with anyone
else other than those mentioned therein.
(b) Where the defendant neither resides nor holds office in the
address stated in the summons, substituted service cannot
be resorted to. The last known address cannot be the place
of service of summons because it is not the address of the
defendant.
Invalid substituted service
A mere general claim or statement in the plaintiff’s return that
the server had made “several attempts” to serve the summons,
without making reference to the details and circumstances
surrounding such attempts, does not comply with the rules on
substituted service.
Valid substituted service, several attempts by the sheriff
In order to avail substituted service, the impossibility of service
in person must be shown. There must be several attempts by
the sheriff to personally serve the summons within a reasonable
period of 1 month which eventually resulted in failure to prove
impossibility of prompt service.
Manotoc v. CA
The case provides an exhaustive discussion on what constitutes
valid resort to substituted service of summons:
1. Impossibility of prompt personal service
a. The party relying on substituted service or the sheriff
must show that defendant cannot be served promptly
or there is impossibility of prompt service.
2. Specific details in the return
The sheriff must describe in the Return of Summons:
a. The facts and circumstances surrounding the
attempted personal service.
b. The efforts made to find the defendant and the reasons
behind the failure must be clearly narrated in detail in
the Return.
c. The date and time of the attempts on personal service,
the inquiries made to locate the defendant, the name/s
of the occupants of the alleged residence or house of
defendant and all other acts done, though futile, to
serve the summons on defendant must be specified in
the Return to justify substituted service.
3. A person of suitable age and discretion
a. A person of suitable age and discretion is one who has
attained the age of full legal capacity and is considered
to have enough discernment to understand the
importance of a summons. “Discretion” is defined as
“the ability to make decisions which represent a
6
 responsible choice and for which an understanding of
what is lawful, right or wise may be presupposed.”
4. A competent person in charge
a. The person on whom the substituted service will be
made must be the one managing the office or business
of defendant, such as the president or manager; and
such individual must have sufficient knowledge to
understand the obligation of the defendant in the
summons, its importance, and the prejudicial effects
arising from inaction on the summons.
Substituted service of summons v. substituted service of
pleadings
Substituted Service of
Substituted Service of Summons
Pleadings
Refers to the delivery of the summons
Consists of the delivery of
and the complaint to another person
the pleadings to the clerk
who is residing at the place of the
of court because the
defendant, and the person is at least
other party and his
18 years of age, and is of suitable age
lawyer could no longer be
and discretion, OR, if not, in the place
found or served with a
of work, and it shall be given to the
person in charge thereof.
copy of the pleading.
Several attempts
It means at least 3 tries, preferably on at least 2 different dates.
In addition, the sheriff must cite why such efforts were
unsuccessful. It is only then that impossibility of service can be
confirmed or accepted.
Reasonable time
Reasonable time is defined as so much time as is necessary
under the circumstances for a reasonably prudent and diligent
man to do, conveniently, what the contract or duty requires that
should be done. Under the Rules, the service of summons has
no period.
(a) To the plaintiff, reasonable time means no more than 7
days since an expeditious processing of the complaint is
what the party wants.
(b) To the sheriff, reasonable time means 15-30 days because
at the end of the month, it is a practice for the branch clerk
to require the sheriff to submit a return of the summons
assigned to the sheriff for service.
The sheriff’s return provide data to the clerk of court, which the
clerk uses in the Monthly Report of Cases to be submitted to the
Office of the Court Administrator within the first 10 days of the
succeeding month. Thus, one month from the issuance of
summons can be considered “reasonable” with regard to
personal service on the defendant.
Return, show detailed narration of circumstances
a) The sheriff’s return must show the details of the efforts
exerted to personally serve summons upon the defendant
before substituted service is availed of.
b) The return must contain a narration of circumstances
showing efforts to personally serve summons to the
defendant and the impossibility of personal service of
summons.
c) A return which merely states the alleged whereabouts of
the defendant without indicating that such information was
verified and without specifying the efforts exerted to serve
the summons, is not enough compliance.
d) A mere general statement that such efforts were made is
not enough compliance.
Summary
The sheriff should perform the following acts before he can
effect a valid service of summons other than by service in person
on the defendant.
1. Establish the impossibility of service in person on the
defendant; and
2. Describe in the return of summons the facts and
circumstances surrounding his attempts to effect service in
person. A single attempt does not justify the availment of
another mode of service.
3. After the service, the sheriff must state that the summons
was served upon a person of sufficient age and discretion,
or who is in charge of the office or regular place of business
of the defendant.
Effect if the defendant does not receive the summons
Where the substituted service has been validly served, its
validity is not affected by the defendant’s failure to actually
receive the summons from the person with whom the summons
had been left. It is immaterial that the defendant does not in
fact receive actual notice. The rule does not require the server
to verify the summons was actually delivered to the defendant.
When the defendant prevents service of summons
The summons is properly served. The SC frown upon an overly
strict application of the Rules. It is the spirit, rather the letter of
the procedural rules that governs.
Summons by publication
General rule
Summons by publication is not available as a means of acquiring
jurisdiction over the person of the defendant in an action in
personam.
Exceptions
Publication in action in personam, resident
Summons by publication against a resident in an action in
personam is permissible under the conditions set forth in Rules:
a. Section 16, Rule 14 (where the identity or whereabouts
of the defendant are unknown);
b. Section 18, Rule 14 (when the defendant is a resident
temporarily out of the Philippines)
Publication in action in personam, non-resident
General rule
Summons by publication against a non-resident in an action in
personam is not a proper mode of service.
Exception
Section 14, Rule 14, when the defendant is a foreign private
juridical entity not registered or with no resident agent in the
Philippines.
Constructive Service (Summons by publication)
1. Service upon a defendant where his identity is unknown or
where his whereabouts are unknown
2. Service upon residents temporarily outside the Philippines
3. Extra-territorial service, when allowed
4. Service consistent with international conventions
5. Service upon prisoners and minors
6. Service upon spouses
7
7. Service upon domestic private juridical entity
8. Service upon foreign private juridical entities
9. Service upon public corporations
Service upon entity without juridical personality.
Sec. 7, Rule 14, Rules of Court
When persons associated in an entity without juridical
personality are sued under the name by which they are
generally or commonly known, service may be effected upon
all the defendants by serving upon any one of them, or upon
the person in charge of the office or place of business
maintained in such name. But such service shall not bind
individually any person whose connection with the entity has,
upon due notice, been severed before the action was filed.
Judge Q: There is no major change. If there has been
disassociation, then service will not bind that corporate entity.
Can an entity without juridical personality be sued?
Yes.
Example
If A, B, and C enter into a transaction under the name, ABC
Corporation, an entity which has actually no juridical personality,
A, B, and C may be sued under the name, ABC Corporation.
How may summons be served upon the non-existent
corporation or upon those who compose the
corporation?
Service may be effected upon all the defendants by serving
summons upon (a) any one of them, or (b) upon the person in
charge of the office or of the place of business maintained in
such name. This service shall not, however, bind individually any
person whose connection with the entity, upon due notice, had
been severed before the action was brought.
Service upon prisoners
Sec. 8, Rule 14, Rules of Court
When the defendant is a prisoner confined in a jail or institution,
service shall be effected upon him or her by the officer having
the management of such jail or institution who is deemed as a
special sheriff for said purpose. The jail warden shall file a return
within five (5) calendar days from service of summons to the
defendant.
Judge Q: The one who is actually making the personal service
is the jail warden designated as the special sheriff.
Service consistent with international conventions
Sec. 9, Rule 14, Rules of Court
Service may be made through methods which are consistent
with established international conventions to which the
Philippines is a party
Judge Q: That is why I’ve been reminding you about the Hague
conventions. This court (my court) has not yet have the occasion
to apply this particular type of service. We will take that up later
when we are done about the discussion for each section.
Service upon minors and incompetents.
Sec. 10, Rule 14, Rules of Court
When the defendant is a minor, insane or otherwise an
incompetent person, service of summons shall be made upon
him or her personally and on his or her legal guardian if he
or she has one, or if none, upon his or her guardian ad litem
whose appointment shall be applied for by the plaintiff. In
the case of a minor, service shall be made on his or her
parent or guardian.
Note: In case of an incompetent, summons shall be served upon
the incompetent person AND to this legal guardian, or in the
case of a minor, it shall be served to the parents, who are also
the legal guardians of the minors.
Judge Q: No major change except those gender equal terms.
Service upon spouses
Sec. 11, Rule 14, Rules of Court
When spouses are sued jointly, service of summons should
be made to each spouse individually.
Note
Each spouse should be given a copy of the summons.
Service upon domestic private juridical entity
Sec. 12, Rule 14, Rules of Court
When the defendant is a corporation, partnership or
association organized under the laws of the Philippines with
a juridical personality, service may be made on the president,
managing partner, general manager, corporate secretary,
treasurer, or inhouse counsel of the corporation wherever
they may be found, or in their absence or unavailability, on
their secretaries.
If such service cannot be made upon any of the foregoing
persons, it shall be made upon the person who customarily
receives the correspondence for the defendant at its principal
office.
In case the domestic juridical entity is under receivership or
liquidation, service of summons shall be made on the receiver
or liquidator, as the case may be.
Should there be a refusal on the part of the persons above-
mentioned to receive summons despite at least three (3)
attempts on two (2) different dates, service may be made
electronically, if allowed by the court, as provided under
Section 6 of this Rule
Judge Q: Take note personal service may be made on any of
these officers and the enumeration is exclusive. Branch manager
is not general manger so these persons are exclusive and
exhaustive. But in the last part, in their absence, it may be made
on their secretaries. If it cannot be served on that particular
officer, it may be served upon any person who customarily
receives the correspondence for the defendant at its principal
office.
If naa na syas receiver or liquidator. Take note, only those
juridical entity under receivership or liquidation, if there is a
sanction for receivership, it must be in accordance with the law.
Should there be refusal on the part of the persons, this is
personal service. Service may be made electronically if allowed
8
by the court so this is quite different with respect to --hang on
let me backtrack--ordinary service of summons---those who are
not juridical entities. If there is failure to effect personal service,
pwede substituted service, last one being electronic mail. Now
with regard to corporate entities, with failure to serve, the rules
provide that the substituted service may be made electronically
as provided under sec 6 of this rule. This is convenient on the
part of the court because there is no need to serve personally.
To whom served summons for private juridical entity
If the defendant is a private corporation, the summons must be
served to the following officials:
1. President
2. Managing Partner
3. General Manager
4. Corporate Secretary
5. Treasurer
6. In-house Counsel
7. Secretaries of [persons no. 1-6], if the officers are absent
8. In the absence of the first 7 enumerations, the person who
customarily receives the correspondence for the defendant
at its principal office.
9. Receiver or liquidator, if the corporation is a domestic
juridical entity under receivership or liquidation.
Duty of counsel of record
Sec. 13, Rule 14, Rules of Court
Where the summons is improperly served and a lawyer
makes a special appearance on behalf of the defendant to,
among others, question the validity of service of summons,
the counsel shall be deputized by the court to serve summons
on his or her client.
Note:
Where a lawyer appears in court to question the validity of the
service of summons on his client, the defendant, the court can
simply deputize his lawyer to serve the summons on the
defendant. Because remember, a lawyer is an office of the court.
So, if you tell the judge, “Your Honor, we cannot proceed with
this case because my client, the defendant, was not properly
served with summons.”- the judge can simply say, “Okay, you
who are a lawyer, are also an officer of the court. Will you please
serve this to your client, okay?”
And the judge will deliver the summons to the lawyer, and the
lawyer will be deputized to serve the summons. So, the problem
is solved.
Judge Q: Very interesting. If he questions/ makes an
appearance to the court because the basis is invalidity of the
service of summons, the counsel shall be deputized. Take note
of the word “shall”. Counsel shall be deputized to serve
summons on his client. This is convenient on the part of the
court rather than resorting or going back to square one because
the court might have overlooked the improper service. Why?
Because he is the best person to know the whereabouts of the
defendant. So what is the learning? Might as well not file any
pleading lest be deputized to serve summons. That would be
the best option anyway that is a new revision. Very interesting
coverage so I am anticipating these particular provisions so I am
anticipating this to be done in the bar exams.
Service upon foreign private juridical entities
Sec. 14, Rule 14, Rules of Court
When the defendant is a foreign private juridical entity which
has transacted or is doing business in the Philippines, as
defined by law, service may be made on its resident agent
designated in accordance with law for that purpose, or, if
there be no such agent, on the government official
designated by law to that effect, or on any of its officers,
agents, directors or trustees within the Philippines.
If the foreign private juridical entity is not registered in the
Philippines, or has no resident agent but has transacted or is
doing business in it, as defined by law, such service may,
with leave of court, be effected outside of the Philippines
through any of the following means:
(a) By personal service coursed through the appropriate
court in the foreign country with the assistance of the
Department of Foreign Affairs;
(b) By publication once in a newspaper of general circulation
in the country where the defendant may be found and
by serving a copy of the summons and the court order
by registered mail at the last known address of the
defendant;
(c) By facsimile;
(d) By electronic means with the prescribed proof of service;
or
(e) By such other means as the court, in its discretion, may
direct.
Foreign Corporation doing business in the Philippines
A foreign corporation not doing business here in the Philippines
cannot be sued here. If a foreign corporation is doing business
here, it can be sued through its agent or through a government
official designated by law to receive it
Agent
If a foreign corporation is doing business here in the Philippines,
then service of summons can be done through its agent. And if
the service is served on its agent, then the period to answer for
that corporation is the same as that of an ordinary defendant,
and that is 30 days.
No agent, government officials designated by law
If there be no such agent, summons can be served on the
government official designated by law to that effect, or on any
of its officers, agents, directors or trustees within the
Philippines. These officials are:
1. Insurance business - Insurance Commissioner
2. Banking - Central Bank Governor
3. In any other business - DTI Secretary
Service upon a foreign corporation not registered in the
Philippines but is doing business in the Philippines
Service may, with leave of court, be effected outside the
Philippines through:
1. Personal service coursed through the court in the foreign
country with the assistance of the DFA
2. Publication once in a newspaper in the country where the
defendant resides
3. By facsimile
4. Electronic means with proof of service
9
5. Other such means as the court may direct
Service upon public corporations
Sec. 15, Rule 14, Rules of Court
When the defendant is the Republic of the Philippines, service
may be effected on the Solicitor General; in case of a
province, city or municipality, or like public corporations,
service may be effected on its executive head, or on such
other officer or officers as the law or the court may direct.
Note:
a. If the defendant is the Republic, service may be effected to
the Solicitor General.
b. In case of a province, city or municipality, or like public
corporations, service may be effected on its executive head,
or on such other officer or officers as the law or the court
may direct
c. If the defendant is a public corporation, summons can be
served on the public official who is in-charge of the
corporation, like the President or the general manager.
Service upon an unincorporated government agency
Jurisprudence instructs that when a suit is directed against an
unincorporated government agency, which, because it is
unincorporated, possesses no juridical personality of its own, the
suit is against the agency’s principal, i.e., the State.
Service upon defendant whose identity or whereabouts
are unknown
Sec. 16, Rule 14, Rules of Court
In any action where the defendant is designated as an
unknown owner, or the like, or whenever his or her
whereabouts are unknown and cannot be ascertained by
diligent inquiry, within ninety (90) calendar days from the
commencement of the action, service may, by leave of court,
be effected upon him or her by publication in a newspaper of
general circulation and in such places and for such time as
the court may order.
Any order granting such leave shall specify a reasonable time,
which shall not be less than sixty (60) calendar days after
notice, within which the defendant must answer.
Unknown defendant
Within ninety (90) calendar days from the commencement of
the action, service may, by leave of court, be effected upon him
or her by publication in a newspaper of general circulation and
in such places and for such time as the court may order.
Extraterritorial service
Sec. 17, Rule 14, Rules of Court
When the defendant does not reside and is not found in the
Philippines, and the action affects the personal status of the
plaintiff or relates to, or the subject of which is, property
within the Philippines, in which the defendant has or claims
a lien or interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of the
defendant has been attached within the Philippines, service
may, by leave of court, be effected out of the Philippines by
personal service as under Section 5; or as provided for in
international conventions to which the Philippines is a party;
or by publication in a newspaper of general circulation in such
places and for such time as the court may order, 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, or in any other manner the court may deem
sufficient. Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty (60)
calendar days after notice, within which the defendant must
answer.
Requisites for extraterritorial service of summons
(1) The defendant is a nonresident
(2) He is not found in the Philippines
(3) The action against him or her is either in rem/quasi in rem.
Extraterritorial service of summons, not applicable
1. It does not apply to a defendant who is a resident in the
Philippines.
2. It does not apply to an action in personam.
Actions involved in extraterritorial service of summons
The specific actions, either in rem or quasi in rem are:
1) Actions that affect the personal status of the plaintiff
(a) This includes an annulment of marriage, which is an
action in res because it affect the personal status. But
a claim of damages is in personam, and cannot be
claimed by this service of summons.
2) Actions which relate to, or the subject of which is, property
within the Philippines, in which the defendant has or claims
a lien or interest, actual or contingent
3) Actions in which the relief demanded in such action
consists, wholly or in part, in excluding the defendant from
any interest therein
4) When the property of the defendant has been attached
within the Philippines
(a) A non-resident defendant has properties in the
Philippines probably because he used to be either a
citizen or a resident in the country. The remedy is to
file a suit and avail the provisional remedy of
attachment. One ground upon which the writ of
preliminary attachment may issue is an action against
a party who does not reside and is not found in the
Philippines. Section 1 (f) Rule, 57.
(b) When the court issues the writ of preliminary
attachment against the defendant’s properties and
such properties are actually attached pursuant to the
writ. The suit has assumed the character of an action
quasi in rem. Thus, jurisdiction over the res is required.
After availing the extraterritorial service of summons,
the suit will now proceed despite defendant’s absence.
Alternative modes of extraterritorial service
When the defendant cannot be found, or is outside the country,
summons may be served by.
1. By service in person on the defendant;
2. By publication in a newspaper of general circulation in such
places and for such time as the court may order, 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; or [ONLY IF]
a. The case affects the personal status of the plaintiff
b. It involves a property within the Philippines, in which
defendant has a claim, interest or lien
10
 The property of the defendant has been attached
3. In any manner the court may deem sufficient.
Purpose of all modes of extraterritorial service
In action in rem or quasi in rem, jurisdiction of the defendant
over his person is not a prerequisite for the court to acquire
jurisdiction. Nevertheless, summons must be served upon the
defendant, not for the purpose of vesting the court with
jurisdiction, but merely for satisfying the due process
requirement. Compliance with due process is actually the
underlying purpose of all modes of extraterritorial service.
Personal Service
If the plaintiff is very rich and he can afford to buy a ticket for
the sheriff to go to the United States and serve the summons
personally, well and good. That’s fine.
In Any Matter the Court may Deem Sufficient
Service of summons by personal service on a non-resident
defendant is not allowed. Service of summons by mail is not
allowed. However, if the summons was sent abroad, but was
actually received by the defendant, then the service will be
considered substantial compliance with the rules.
Residents temporarily out of the Philippines
Sec. 18, Rule 14, Rules of Court
When any action is commenced against a defendant who
ordinarily resides within the Philippines, but who is
temporarily out of it, service may, by leave of court, be also
effected out of the Philippines, as under the preceding
Section. [Extraterritorial Service].
Leave of court
Sec. 19, Rule 14, Rules of Court
Any application to the court under this Rule for leave to effect
service in any manner for which leave of court is necessary
shall be made by motion in writing, supported by affidavit of
the plaintiff or some person on his or her behalf, setting forth
the grounds for the application.
Return
Sec. 20, Rule 14, Rules of Court
Within thirty (30) calendar days from issuance of summons
by the clerk of court and receipt thereof, the sheriff or
process server, or person authorized by the court, shall
complete its service. Within five (5) calendar days from
service of summons, the server shall file with the court and
serve a copy of the return to the plaintiff’s counsel,
personally, by registered mail, or by electronic means
authorized by the Rules.
Should substituted service have been effected, the
return shall state the following:
(1) The impossibility of prompt personal service within a period
of thirty (30) calendar days from issue and receipt of
summons;
(2) The date and time of the three (3) attempts on at least two
(2) different dates to cause personal service and the details
of the inquiries made to locate the defendant residing
thereat; and
(3) The name of the person at least eighteen (18) years of age
and of sufficient discretion residing thereat, name of
competent person in charge of the defendant’s office or
regular place of business, or name of the officer of the
homeowners’ association or condominium corporation or its
chief security officer in charge of the community or building
where the defendant may be found.
Service is completed
When the service has been completed, the server shall, within
5 days therefrom, serve a copy of the return, personally or by
registered mail, to the plaintiff’s counsel, and shall return the
summons to the clerk who issued it, accompanied by proof of
service.
Return of Service of Summons
This refers to the report of the sheriff to the court that he has
already served the summons. The sheriff must describe how the
summons was served.
If it was personally served on the defendant
The return of service must specify: (1) when it was served to
the defendant, and (2) where.
If done via substituted service of summons:
1. The name of the person who received the summons at the
resident of the defendant
2. When the summons was served
3. That the substituted service of summons was resorted to
because he could not locate the defendant despite several
attempts
4. That he made at least three attempts on two separate dates
to serve the summons personally on the defendant, but
failed, so that’s why he resorted to substituted service.
After completion of service, proof of service
After the completion of the service, a proof of service is required
to be filed by the server of the summons.
Proof of service
Sec. 21, Rule 14, Rules of Court
The proof of service of a summons shall be made in writing
by the server and shall set forth the manner, place, and date
of service; shall specify any papers which have been served
with the process and the name of the person who received
the same; and shall be sworn to when made by a person
other than a sheriff or his or her deputy.
If summons was served by electronic mail, a printout of said
e-mail, with a copy of the summons as served, and the
affidavit of the person mailing, shall constitute as proof of
service
Proof of service by publication
Sec. 22, Rule 14, Rules of Court
If the service has been made by publication, service may be
proved by the affidavit of the publisher, editor, business or
advertising manager, to which affidavit a copy of the
publication shall be attached and by an affidavit showing the
deposit of a copy of the summons and order for publication
in the post office, postage prepaid, directed to the defendant
by registered mail to his or her last known address.
11
Proof of service
Generally: Proof of service of summons shall be made:
1. In writing by the server
2. Set forth the manner, place and date of service
3. Specify any papers which have been served with the
process
4. Name of the person who received the same
5. Shall be sworn when made by a person other than a sheriff
or the sheriff’s deputy

If through publication:
The editor-in-chief will execute an (1) affidavit of publication and
then (2) you attach a newspaper copy where the publication of
the summons appeared.

If through electronic mail:

1. A print out of the email
2. Copy of the summons as served
3. Affidavit of the person mailing

12
 The opposite of a motion of course, here the discretion of
MODULE 4 the court is involved; moreover, usually an investigation of
the facts alleged is required.
5. Omnibus motion
MOTIONS A motion which in broad sense combines different motions
all filed at the same time either to save time or for
convenience. In a strict sense, it is a motion attacking a
GENERAL PRINCIPLES proceeding, and containing all the objections available at
Motion defined said time because all objections not so included shall be
Sec. 1, Rule 15, Rules of Court deemed waived.
A motion is an application for relief other than by a pleading. 6. Motion to dismiss (Rule 16, deleted)

Pleading v. Motion
Judge Q: Technically, a motion can also be classified as a
Pleading Motion
pleading but if the purpose of a pleading is other than an
application for relief, then it is considered as a regular pleading Purpose is to submit a
(?) so a motion is a special pleading wherein a party is asking Purpose is to apply for an order not
claim or defense for
for relief from the court. It is important to know the included in the judgment.
appropriate judgment.
fundamentals or rudiments of assigning or denominating your
pleading as a motion. You must remember that you must see to Can never be initiatory as it is filed in
it that there is a prayer. That is the primary rule you must May be initiatory. a case that is already pending in
observe. It is quite astonishing to see other lawyers that is, court.
going to file a pleading with a name other than a motion, for
instance, manifestation, so when we designate a pleading as Always filed before
May be filed after judgment.
judgment.
something other than a motion, then one would not expect to
apply for relief. But more often than that if he designates it as Only 9 kinds of pleadings
such other than a motion, and yet includes a prayer, then while any application for a Only 3 motions which actually seek
technically, what he his filing is a motion so it’s quite important relief other a judgment can judgment.
that you should be forthright in filing a pleading. If you’re filing be made in a motion.
a pleading with a relief, then it is a motion so it is crucial for you
to designate the pleading as a motion. May be oral when made in open
Must be written. court or in the course of a hearing or
Motions in general trial.
1. Motion ex parte
Not a pleading, even when reduced
One which does not require that the parties be heard and Generally states substantial
to writing. It generally relates to
which the court may act upon without prejudicing the rights questions.
procedural matters.
of the other party. It is a motion made without the presence
of a notification to the other party because the question Not an independent remedy and thus
generally presented is not debatable. Sometime this kind of x cannot replace an action to enforce a
motion may be granted as when the motion asks for the legal right.
correction of an evidently misspelled word, or obvious error
in addition, or subtraction of an amount, or when a
Motions must be in writing
clarification is sought, or when the motion is one for
Sec. 2, Rule 15, Rules of Court
extension of one or two days within which to file a pleading.
2. Litigated motion All motions shall be in writing except those made in open
One where notice to the adverse party is necessary to court or in the course of a hearing or trial.
afford the latter an opportunity to resist the application. It
A motion made in open court or in the course of a hearing or
is one which is the opposite of a motion ex parte, hence,
trial should immediately be resolved in open court, after the
one made with notice to the adverse party so that an
adverse party is given the opportunity to argue his or her
opposition thereto may be made, such as one where the
opposition thereto.
court is requested by an administrator of an estate to allow
sale of certain properties at certain prices. When a motion is based on facts not appearing on record,
3. Motion of course the court may hear the matter on affidavits or depositions
A motion for a certain kind of relief or remedy to which the presented by the respective parties, but the court may direct
movant is entitled as a matter of right, and not as a matter that the matter be heard wholly or partly on oral testimony
of discretion on the part of the court. Moreover, the or depositions.
allegations contained in such a motion do not have to be
investigated or verified. An example would be a motion filed General rule:
out of time, because this motion may be disposed of the All motions shall be in writing.
court on its initiative. Another example would be a motion
to sell certain property after the period given by the court Exceptions
to the debtor to pay has elapsed, and such previous order a) Motions made in open court, or
had specified that the property be sold in case of default. b) Motion made in the course of a hearing or trial
4. Special motion

13
Judge Q: The most common motion orally made is a motion to
exclude or strike out a particular testimony. There are certain
motions that can be made right then and there while the hearing
is ongoing so as a rule, all motions shall be in writing except
those made in open court. Now, if you compare it to the old
provision, Sec. 2 has additional paragraphs.
Second paragraph is in keeping with the reasons for practicality
so when a motion is orally made, judge is expected to render a
resolution right there and then. Of course, after giving the other
party an opportunity to argue particularly to make known his
position.
Third paragraph: take note that the subject matter of the motion
is based on facts not appearing on record so probably the issue
being raised is not one of those factual allegations raised in the
pleading so it is something new being brought to the attention
of the court. So in order for the court to take cognizance of said
motion, he may direct the parties to hear the matter based on
the affidavits or depositions presented by the respective parties
and in addition, he may direct the matter to be heard wholly or
partly on a hearing or oral deposition. As a rule, if the court will
call for a hearing, he may consider the affidavits or depositions
but he may also require to present oral testimonies in order for
the court to fully appreciate the issues fully presented to aid the
court so there is now a requirement for the parties to conduct a
hearing on affidavits or depositions.
Contents
Sec. 3, Rule 15, Rules of Court
A motion shall state the relief sought to be obtained and the
grounds upon which it is based, and if required by these
Rules or necessary to prove facts alleged therein, shall be
accompanied by supporting affidavits and other papers.
Contents of motion
Motions are to contain the following:
a) A statement of relief sought to be obtained;
b) The grounds upon which the motion is based; and
c) The supporting affidavits and other papers. [This last
requirement is applied only if mandated by the Rules or
when necessary to prove facts stated in the motion]
Requisites for a valid motion
1. It must be in writing (Sec. 2) except in open court.
a. Innovation in the 2019 amendment. When a motion is
made in open court, it must be resolved immediately
by the court, right then and there. This will prevent
unnecessary delay because some judges will just say
“just put that in writing” so dugay pa ma resolve. Now,
the amendment requires that the judge should be firm
and knowledgeable of the rules so he can immediately
resolve an oral motion in open court
2. Contents (Sec. 3)
a. Must contain the relief sought for, the grounds upon
which it is based and the laws that back it up.
b. If required by the Rules or necessary to prove facts
alleged therein, shall be accompanied by supporting
affidavit and other papers.
3. Hearing a litigious motion is discretionary on the court.
Is it necessary that a motion be accompanied by
supporting affidavits and other papers? No, unless
required by the Rules or necessary to prove facts alleged
therein.
[Section 4. Hearing of motion. – Deleted]
Judge Q: If you notice, Section 4 is different. It is quite
necessary to point this out since this is already deleted because
as a rule, a motion may not be heard in open court but there
are instances where a hearing may be conducted. That is the
old rule. Section 4 of the New Rules gives us the first
classification of motions known as non-litigious motions.
Non-litigious motions
Sec. 4, Rule 15, Rules of Court
Motions which the court may act upon without prejudicing the
rights of adverse parties are non-litigious motions. These
motions include:
a) Motion for the issuance of an alias summons;
b) Motion for extension to file answer;
c) Motion for postponement;
d) Motion for the issuance of a writ of execution;
e) Motion for the issuance of an alias writ of execution;
f) Motion for the issuance of a writ of possession;
g) Motion for the issuance of an order directing the sheriff to
execute the final certificate of sale; and
h) Other similar motions.
These motions shall not be set for hearing and shall be resolved
by the court within five (5) calendar days from receipt thereof.
Judge Q: There is a reason why there is this classification. These
are not material issues or will not prejudice the right of the
opposing party. Most of these remedies call for the exercise of
the residual power of the court. Meaning residual, there are
certain actions need to be done by the court post-judgment
when everything has been solved post-finality. The purpose of
classifying it as non-litigious is because there is no more hearing
to be conducted. The issues involved are not quite complicated
so there is no need for a longer period to weigh on the issues
involved.
Litigious motions
Sec. 5, Rule 15, Rules of Court
(a) Litigious motions include:
1) Motion for bill of particulars;
2) Motion to dismiss;
3) Motion for new trial;
4) Motion for reconsideration;
5) Motion for execution pending appeal;
6) Motion to amend after a responsive pleading has
been filed;
7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of
demolition;
9) Motion for intervention;
10) Motion for judgment on the pleadings;
11) Motion for summary judgment;
12) Demurrer to evidence;
14
 13) Motion to declare defendant in default; and
14) Other similar motions.
(b) All motions shall be served by personal service,
accredited private courier or registered mail, or
electronic means so as to ensure their receipt by the
other party.
(c) The opposing party shall file his or her opposition to a
litigious motion within five (5) calendar days from receipt
thereof. No other submissions shall be considered by the
court in the resolution of the motion.
The motion shall be resolved by the court within fifteen (15)
calendar days from its receipt of the opposition thereto, or
upon expiration of the period to file such opposition.
Note: If the other party wants to answer a motion, he must
answer it within 5 days and the court will resolve that within 15
days from the receipt of the opposition/comment.
Judge Q: There’s a need for the other party to protect his
pending rights. What’s the significance of classifying them? All
motions requires for the court to properly evaluate and allow the
other party to file his opposition or present his arguments
against the relief being prayed for in said motion.
Letter B is very important for these type of motions. This
particular type of motions is considered litigious so the other
party will be given the opportunity to present his side so it is a
requirement that he must be served properly with a copy of his
motion.
Now, the next one is quite innovative on the part of the
amendments. The judges have noticed that once there is a
motion filed, that would be the beginning of a series of
pleadings. Once the movant (the one who will file a motion), the
action of the other party is to file a claim. Since he is going to
present his arguments, the movant also wants to refute the
arguments of the opposition. And after giving a reply, the
attitude of a party is, he must have the last say, that is why he
will file another pleading in answer to the reply, i.e. rejoinder.
That is an endless exchange of pleadings and will somehow add
to the burden of the court in reading those pleadings. It is quite
burdensome on the part of the court. So in order to correct this
practice, to spare the court, the new rules is quite strict on this
matter that once a motion is filed, the only pleading to be
allowed after the filing of the motion is the opposition of the
opposing party and he should file his opposition within 5
calendar days from receipt thereof. The rule seems to be
stringent even if it involves voluminous documents, perhaps a
motion will attach documents irregardless of the voluminous
nature of said motion, the rule only requires the opposing party
to file his opposition to said motion within 5 calendar days from
receipt thereof. After the filing, no other submission shall be
considered by the court. No other pleading is allowed so only
until the opposition.
Now, when do we start counting? From receipt thereof. The old
practice is to wait for the order of the court to take note of the
filing and directing the party to file his opposition. Now, the rule
is strict that once a motion is filed and there is proof of service,
then the 5 day period should start from the day the copy was
served to him so there is no longer any need for the court to
direct to the opposing party to make his comment.
The only thing the court will wait is the filing of the opposition
or the expiration of the period. This is the solution of the old
habit of lawyers. They have become very crafty in even
designating their pleadings because of the different exchange of
documents, one after the other.
Notice of hearing on litigious motions; discretionary
Sec. 6, Rule 15, Rules of Court
The court may, in the exercise of its discretion, and if deemed
necessary for its resolution, call a hearing on the motion. The
notice of hearing shall be addressed to all parties concerned,
and shall specify the time and date of the hearing.
Judge Q: Is there a notice of hearing that must be observed?
That is no longer required. So take note, with respect to litigious
motions, notice of hearing is not a requirement. It is not
mandatory but only discretionary. The court may call a hearing
if he finds it necessary.
Notice of hearing
The written motion and the notice of hearing thereof shall be
served in such a manner as to ensure its receipt by the other
party at least 3 days before the date of hearing, unless the court
for good cause sets the hearing on shorter notice.
The notice for hearing shall be addressed to all the parties
concerned. It shall also specify the time and date of the hearing.
Proof of service necessary
Sec. 7, Rule 15, Rules of Court
No written motion shall be acted upon by the court without
proof of service thereof, pursuant to Section 5(b) hereof.
Proof of service is required
Proof of service of the motion is required.
Judge Q: The movant is also required to present proof of
service. That is why no written motion shall be acted upon by
the court without proof of service.
Motion day
Sec. 8, Rule 15, Rules of Court
Except for motions requiring immediate action, where the
court decides to conduct hearing on a litigious motion, the
same shall be set on a Friday.
Motion day; Friday
All litigated motions shall be scheduled for hearing on Friday
afternoons, or if Friday is a non-working day, in the afternoon
of the next working day. This rule does not apply to motions
requiring immediate action.
Judge Q: The rule sets that it should always be on a Friday, does
not specify when as long as it is a Friday.
Omnibus motion
Sec. 9, Rule 15, Rules of Court
15

Subject to the provisions of Section 1 of Rule 9, a motion
attacking a pleading, order, judgment, or proceeding shall
include all objections then available, and all objections not so
included shall be deemed waived.
Note: It is a motion that contains several grounds as basis. The
rule is that if you file a motion in court such as a motion to
dismiss, you have to state all the ground available to you. You
must not present a piece-meal. Otherwise, those grounds that
were not included in your motion will no longer be entertained
by the court.
The word “omnibus” means “all embracing or all encompassing.”
An omnibus motion is one attacking a pleading, order, judgment
or a proceeding which shall include all objections then available
and objections not so included shall not be deemed waived.
The Omnibus Motion Rule [Bar 2010; 2011]
1. The omnibus motion rule requires that a motion attacking
a pleading, order, judgment, or proceeding shall include all
objections then available, and all objections not so included
shall be deemed waived. Since the rule is subject to the
provisions of Sec. 1 , Rule 9, the objections mentioned
therein are not deemed waived even if not included in the
motion. These objections are:
(1) that the court has no jurisdiction over the subject
matter,
(2) that there is another action pending between the same
parties for the same cause,
(3) that the action is barred by a prior judgment and
(4) that the action is barred by the statute of limitations.
2. A motion to dismiss is a typical example of a motion subject
to omnibus motion rule, since a motion to dismiss attacks a
complaint which is a pleading (note: no more motion to
dismiss)
Judge Q: Those that are matters that are considered as grounds
for dismissal, grounds, objections or attacking a pleading shall
be set forth in a motion and those not so included shall be
deemed waived. A motion shall include all objections then
available.
Exceptions to this, under Sec. 1, Rule 9, lack of jurisdiction over
the subject matter, litis pendentia, res judicata and prescription.
Pro-forma motions
A pro forma motion is one which does not satisfy the
requirements of the rules and one which will be treated as a
motion intended to delay the proceedings.
Judge Q: Pro-forma motions
• A pro forma motion is one which does not satisfy the
requirements of the rules and one which will be treated as
a motion intended to delay the proceedings.
• It is a motion which does not comply with the Rules and is
considered as one filed merely to delay the proceedings. It
is not entitled to judicial cognizance and does not stop the
running of the period for filing the requisite pleading so if it
is a pro-forma motion, then it has no legal effect. That is
very crucial for instance for purposes of filing a timely
appeal. If one files a motion for reconsideration, it will stop
the reglementary period so for instance in a regular appeal,
the losing party can file an appeal within 15 days but if he
files a motion for reconsideration, it will stop the running of
the reglementary period. But if it turns out that the MR is
classified as a pro-forma motion, then the filing of the
motion will not stop the running of the period. That’s why
it’s important to know whether a pleading is pro-forma. One
that does not comply with the rules on motions. Otherwise,
it has no legal effect.
Motion for leave
Sec. 10, Rule 15, Rules of Court
A motion for leave to file a pleading or motion shall be
accompanied by the pleading or motion sought to be
admitted.
Note: If not accompanied by the pleading, the court will not act
on the motion. If the motion is a motion for leave of court to file
an amended complaint or a motion for leave of court to file a
supplemental pleading, the rules now provide that such motion
shall be accompanied by the pleading so to be admitted. If not
accompanied by the pleading, the court will not act on the
motion.
Judge Q: For instance, motion for leave to file a complaint in
intervention so when you file a motion for leave, you must also
attach a copy of your complaint in intervention. Another
common example is demurrer to evidence. When you file a
motion for leave to submit demurrer to evidence, you must also
attach a copy of your demurrer. That is a requirement because
you are asking the court to suspend proceedings. And then in
order for the court to properly evaluate to grant the leave, you
must also indicate why it is important, because you have an
important prayer either to amend, or file a complaint in
intervention or demurrer to evidence. I hope you take note of
this because this one is often disregarded or overlooked by
practitioners.
Form.
Sec. 11, Rule 15, Rules of Court
The Rules applicable to pleadings shall apply to written
motions so far as concerns caption, designation, signature,
and other matters of form.
Judge Q: There must also be a format to be followed but most
of the courts will not be too strict about this as long as the
substance is expressed in an explicit manner.
Prohibited motions.
Sec. 12, Rule 15, Rules of Court
The following motions shall not be allowed:
(a) Motion to dismiss except on the following grounds:
1) That the court has no jurisdiction over the subject
matter of the claim;
2) That there is another action pending between the
same parties for the same cause; and
3) That the cause of action is barred by a prior
judgment or by the statute of limitations;
(b) Motion to hear affirmative defenses;
16
 (c) Motion for reconsideration of the court’s action on the higher court. That is one way of removing dilatory
affirmative defenses; tactics.
5. Motion for extension of time to file pleadings, affidavits or
(d) Motion to suspend proceedings without a temporary
any other papers, except a motion for extension to file an
restraining order or injunction issued by a higher court;
answer.
(e) Motion for extension of time to file pleadings, affidavits a. The only pleading that you can ask for an extension
or any other papers, except a motion for extension to of time to file is the Answer.
file an answer as provided by Section 11, Rule 11; and 6. Motion for postponement intended for delay, except if it is
based on acts of God, force majeure or physical inability of
(f) Motion for postponement intended for delay, except if it
the witness to appear and testify. If the motion is granted
is based on acts of God, force majeure or physical
based on such exceptions, the moving party shall be
inability of the witness to appear and testify. If the
warned that the presentation of its evidence must still be
motion is granted based on such exceptions, the moving
terminated on the dates previously agreed upon.
party shall be warned that the presentation of its
a. Motion for postponement is allowed only on two
evidence must still be terminated on the dates previously
grounds:
agreed upon.
i. Force majeure
A motion for postponement, whether written or oral, shall, at ii. Physical inability of the witness to appear- it should
all times, be accompanied by the original official receipt from be supported with a medical certificate which is
the office of the clerk of court evidencing payment of the subscribed and sworn to before a notary public.
postponement fee under Section 21(b), Rule 141, to be b. Payment of motion for postponement fee- When you
submitted either at the time of the filing of said motion or not ask for postponement, you have to pay a fee (P100
later than the next hearing date. The clerk of court shall not with the clerk of court). Attach the receipt to the
accept the motion unless accompanied by the original motion for postponement.
receipt.
Prohibited motions under the Summary Procedure and
Small Claims
Judge Q: Next classification is prohibited motions. Those which
The following motions shall not be allowed:
are not to be filed. If filed, these will be a mere scrap of paper.
1. Motion to dismiss
They will not be entertained.
2. Motion for a bill of particulars
3. Motion for new trial
No need to move for hearing on affirmative defenses since the
4. Motion for reconsideration of a judgment
court must resolve it without a need for prayer or motion by the
5. Motion for reopening of trial
parties. Motion for reconsideration per se is not a prohibited
6. Motion for extension of time to file pleadings, affidavits or
pleading. But if the court action is adverse specifically to the
any other paper
affirmative defenses, no motion for reconsideration is allowed.
7. Motion to declare the defendant in default
8. Dilatory motions for postponement
Prohibited Motions
1. Motion to Dismiss, except:
Prohibited motions under Writs of Amparo and Habeas
a. Lack of jurisdiction over the subject matter
Data
b. Litis pendentia
The following motions are prohibited:
c. Res judicata
1. Motion to dismiss
d. Prescription
2. Motion for extension of time to file pleadings, affidavits or
2. Motion to hear affirmative defense
any other paper
a. In the former rules, you may ask the court to hear first
3. Dilatory motions for postponement
the affirmative defenses. If the court is convinced on
4. Motion for a bill of particulars
the validity of your affirmative defense, the court can
5. Motion to declare the defendant in default
dismiss the case. But now, if your affirmative defenses
6. Motion for reconsideration of interlocutory orders or interim
incorporated in your answer is not based on any of the
relief orders
four grounds mentioned here, the court can right
away resolve the affirmative defenses without you
Prohibited motions under Environmental cases
asking for a hearing. There will no longer be a trial on
1. Motion to dismiss the complaint
the merits of the case.
2. Motion for a bill of particulars
3. Motion for reconsideration of the court’s action on the
3. Motion for extension of time to file pleadings, except to file
affirmative defense
answer, the extension not to exceed 15 days
a. If the court dismissed the complaint for the reason
4. Motion to declare the defendant in default
that it is clear from the allegations of the complaint
that it does not state a cause of action, can the
Judge Q: All types of motion for postponement is prohibited
plaintiff file a motion for reconsideration? NO. What if
except if they are based on the grounds of force majeure, acts
the court dismissed it based on improper venue, can
of God or physical inability. If there are five trial dates for the
you file a motion for reconsideration? NO
plaintiff, can he ask to present for five trial dates still? No more.
4. Motion to suspend proceedings without TRO or Injunction
He only has 4 trial dates left.
issued by the higher court
a. You cannot anymore ask the court to suspend the
Dismissal with prejudice.
proceeding if there is no TRO or PI issued by the
Sec. 13, Rule 15, Rules of Court

17
 Subject to the right of appeal, an order granting a motion to
dismiss or an affirmative defense that the cause of action is
barred by a prior judgment or by the statute of limitations;
that the claim or demand set forth in the plaintiff’s pleading
has been paid, waived, abandoned or otherwise
extinguished; or that the claim on which the action is founded
is unenforceable under the provisions of the statute of frauds,
shall bar the refiling of the same action or claim.

Ground for Dismissal with prejudice

1. Res judicata
2. The claim has already been paid, waived, or abandoned or
extinguished
3. Claim is unenforceable under the statute of frauds.

Effect
Cannot be re-filed but it is subject to appeal. This means that if
the ground for dismissal is other than these three, then the
dismissal is without prejudice to the refiling.

Other grounds for dismissal without prejudice?

a. Lack of jurisdiction over the subject matter
b. Improper venue
c. Lack of legal capacity to sue
d. Failure to state cause of action
e. Failure to comply with a condition precedent

Judge Q: When there is dismissal with prejudice, a party will no

longer be allowed or given the right to file the same type of case
based on said grounds as mentioned under this Section.

18

MODULE 4
MOTIONS FOR BILL OF PARTICULARS
Three options of defendant upon receipt of complaint
Proceedings after service of summons and dismissal of actions.
There are three options available to the defendant upon receipt
of the complaint:
1. Filing a motion for bill of particulars
2. Filing a motion to dismiss [deleted]
3. Filing of an answer to the complaint
Judge Q: We have already discussed the manner of making
allegations and in making those, you must state it with
definiteness or particularity. Now, if a pleading fails to satisfy
the requirement of particularity, the remedy is a motion for bill
of particulars. But, one must also take note that when the
pleading does not sufficiently state a cause of action, the
remedy is a motion to dismiss for failure of cause of action so
you have to discern whether the proper remedy is a motion to
dismiss or motion for bill of particulars. Even if the allegations
are vague but nevertheless, able to make out specific grounds,
then the remedy of the motion to dismiss will turn out to be
unavailing so the remedy in case of vague statements is through
a motion for bill of particulars.
In order to understand, I have assigned you cases particularly
in the case of Virata v Sandiganbayan. The court said that it is
the office or function as well as the object or purpose of a bill of
particulars to amplify or limit a pleading. So the purpose is really
to make a detailed account or to limit the scope of the subject
of the pleading, specify more minutely or particularly a claim or
defense which is placed in general terms so that the opposing
party and the court will know as to the precise nature, character,
scope, and extent of the cause of action or defense relied on by
the pleader, and apprise the opposite party of the case which
he has to meet. It has also been stated that it is the function or
purpose of a bill of particulars to define, clarify, particularize,
and limit or circumscribe the issues in the case, to expedite the
trial, and assist the court. The purpose is to make a refined
version.
For instance, in a complaint for damages on the ground of
breach of contract and it is said that defendant must be made
liable for breach so there is no particular statement especially
when the contract contains numerous provisions. So which
particular term is he talking about? That is a very basic example.
Another example would be a collection case and the complaint
states that defendant has failed to honor his monetary
obligations. And it so happens, there are a lot of monetary
obligations so which one is he talking about?
And another purpose is in order for surprise to be avoided and
to help the opposing party in framing his answer so that he could
make an intelligent answer. What happened in this case?
*discusses case of Virata*
What is a bill of particulars?
a. A bill of particulars is a more definite statement of any
manner which is not averred with sufficient definiteness or
particularity in a pleading so as to enable the opposing party
to prepare his responsive pleading.
b. It is the remedy of answering party in case the pleading of
the other party is vague or not clearly worded. Vague or
ambiguous means susceptible to two or more
interpretations.
c. If you are the defendant and you found out that some
paragraphs in the complaint are very vague, do you have
to answer right away? No. You are not compelled to answer
a complaint that contains ambiguous statements or
allegations.
d. In other words, the function of a bill of particulars is to
clarify the allegations in the pleading so an adverse party
may be informed with certainty of the exact character of a
cause of action or a defense. Without the clarifications
sought by the motion, the movant may be deprived of the
opportunity to submit an intelligent responsive pleading.
What is your remedy?
Your remedy is to file a Motion for Bill of Particulars. It is a form
of request by the defendant but addressed to the court asking
the court to order the plaintiff to particularize or clarify some of
the ambiguous statements in his complaint. The purpose is to
allow the defendant to prepare intelligently his answer to the
complaint.
Judge Q: What are the known instances where a bill of
particulars is allowed?
1. When the allegations are indefinite and uncertain that the
nature cannot be understood therefrom
2. When the allegations are so vague that they do not appear
therefrom in what capacity a party sues or is issued
3. When the allegations are uncertain as to time, place,
quantity, title, person or any other matter required to be
pleaded with certainty
4. When the allegations are faulty in the application setting
out two grounds for a single claim
5. When denials are so indefinite and uncertain that it cannot
be understood what is being denied and what is being
admitted.
6. Particulars of details of computation of bank accounts are
allowed
7. Technicalities are frowned upon so technical terms must be
clearly explained and described
8. Conclusions of law such as defeat, machination, false
pretenses, misrepresentation and threats are conclusions of
law and mere allegations thereof without a statement of
facts is not sufficient
a. If you remember in the midterm exam, the remedy was
not a motion for bill of particulars but motion to dismiss
since it invoked the special jurisdiction of the court, i.e.
commercial court, but other than that, the remedy is a
bill of particulars.
Requirements for the motion
The motion shall point out the defects complained of, the
paragraphs wherein they are contained, and the details desired.
When applied for; purpose
Section 1. Rule 12
Before responding to a pleading, a party may move for a
definite statement or for a bill of particulars of any matter,
which is not averred with sufficient definiteness or
19
 particularity, to enable him or her properly to prepare his or proper. A general averment of the performance or
her responsive pleading. If the pleading is a reply, the motion occurrence of all conditions precedent shall be sufficient.
must be filed within ten (10) calendar days from service 6. To require the pleader to clarify the specific nature, manner
thereof. Such motion shall point out the defects complained and extent of the allegations.
of, the paragraphs wherein they are contained, and the
details desired. Purpose of motion for bill of particulars in criminal cases
1. Properly plead
2. Prepare for trial
Note: As long as the allegations of the complaint or the failure
to allege facts with sufficient particularity does not justify the Requirements for the motion
filing of a [motion to dismiss/affirmative answer], instead he The motion shall point out or specify the:
may file a motion for bill of particulars. a. Defects complained of,
b. Paragraphs wherein they are contained, and
Motion for bill of particulars, apply to any pleading c. Details desired
The motion for bill of particulars is not directed only to a
complaint. It is a motion that may be addressed to any pleading, Action by the Court
which in the perception of the movant, contains matters which Section 2, Rule 12
are not alleged with sufficient definiteness or particularity.
Upon the filing of the motion, the clerk of court must
When to file immediately bring it to the attention of the court, which may
A motion for bill of particulars is to be filed before responding to either deny or grant it outright, or allow the parties the
a pleading. opportunity to be heard.

The period to file a motion refers to the period for filing the
Action of the court
responsive pleading in Rule 11.
Upon receipt of the motion:
1. Thus, where the motion for bill of particulars is directed to
1. The clerk of court must immediately bring the same to the
a complaint, the motion should be filed within 15 days after
attention of the court.
service of summons.
2. When the motion is brought to the court; there are three
2. If the motion is directed to a counterclaim or crossclaim,
possible options:
then the same must be filed within 10 days from service of
a. Deny the motion outright;
the counterclaim/cross-claim which is the period provided
b. Grant the motion outright;
for by Sec. 4, Rule 11 to answer a counterclaim.
c. Hold a hearing on the motion or allow the parties the
3. In case of a reply, the motion for bill of particulars must be
opportunity to be heard.
filed within 10 days from the service of said reply.
Judge Q: As a rule, there is no requirement that said motion
Purpose of the motion for bill of particulars
should be heard by the court. And any action of the court should
1. To seek an order from the court directing the pleader to
not be grave abuse of discretion because it is sanctioned by the
submit a bill of particulars which avers matters with
court.
“sufficient definiteness or particularity” to enable the
movant to properly prepare his responsive pleading.
Compliance with order
a. The motion is not availed of to enable the movant to
Section 3, Rule 12
prepare for trial or to discover the evidence of the adverse
party. For such purpose, the appropriate tools are the If the motion is granted, either in whole or in part, the
discovery procedures and the mandatory pre-trial under compliance therewith must be effected within ten (10)
Rule. 18. calendar days from notice of the order, unless a different
2. The function of the motion is to clarify the allegations in the period is fixed by the court. The bill of particulars or a more
pleading so an adverse party may be informed with definite statement ordered by the court may be filed either
certainty of the exact character of the cause of action or in a separate or in an amended pleading, serving a copy
defense. thereof on the adverse party.
a. Without the clarifications, the movant may be deprived of
the opportunity to submit an intelligent responsive
Note:
pleading.
If the judge feels that the filing of the bill of particulars is a
3. Not proper for a motion to call for the production of the
dilatory tactic, the judge has the discretion to outrightly deny if
particulars constituting malice, intent, knowledge or
the court finds that there is no ambiguity. If the court agrees
condition of the mind. The matters may averred generally.
with the defendant that there is ambiguity, it may allow the
But if it involves fraud or mistake, then must aver the
parties to be heard and grant the motion for bill of particular.
particular circumstances.
The compliance must be effected within 10 days from notice of
4. To require a pleader to set forth matters showing the
the order unless a different period is fixed.
jurisdiction of a court to render judgment is not proper. It
is sufficient to aver the same without setting forth matters
Two ways of filing bill of particulars
showing jurisdiction to render it this applies to domestic and
In complying with the order, the pleader may file the bill of
foreign court, and quasi-judicial tribunals.
particulars or a more definite statement either in a:
5. To require the pleader to specify the details leading to the
1. Separate pleading
performance or occurrence of all conditions precedent is not
2. Amended pleading

20

Judge Q: The minimum period is 10 calendar days unless the
court will give a longer period. The party may amend his
complaint to give a more detailed account or file a bill of
particulars as a separate pleading.
Effect of Non-Compliance
Section 4. Rule 12
If the order is not obeyed, or in case of insufficient
compliance therewith, the court may order the striking out of
the pleading or the portions thereof to which the order was
directed, or make such other order as it deems just.
Options of the court for non-compliance
If the order is not obeyed or if there is an insufficient compliance
of the order the court has the following options:
a. To order the striking out of the pleading,
b. To order the striking out of the portions of the pleading to
which the order was directed, or
c. To make such other order it may deem just.
Judge Q: The court has the authority to strike out the pleading
as a whole or only the portions to which the order was directed.
In the case of a plaintiff, the court may strike out his complaint
and would result in the dismissal of the case. In the case of the
defendant, his answer may be striked out and would have the
effect of making him in default because of his failure to file
within the time allowed so non-compliance could be fatal. Also,
the court has the authority to dismiss the case for failure of the
party or plaintiff to comply with his order which is found in
Section 3, Rule 17.
Effect of Filing of a Bill of Particulars
Section 5. Rule 12
After service of the bill of particulars or of a more definite
pleading, or after notice of denial of his or her motion, the
moving party may file his or her responsive pleading within
the period to which he or she was entitled at the time of filing
his or her motion, which shall not be less than five (5)
calendar days in any event.
Stay of period to file responsive pleading
a) The filing of a bill of particulars stops or interrupts the
running of the period to file an answer. But, at least 5 days
to answer.
b) A motion for bill of particulars is a mere option and not a
pleading. Whether or not the motion of the movant is
granted, he may still file his responsive pleading. When he
files a motion for bill of particulars, the period to file the
responsive pleading is stayed or interrupted.
c) After service of the bill of particulars or after notice of the
denial of his motion, the movant may file his responsive
pleading within the period to which he was entitled at the
time the motion for bill of particulars was filed.
of his motion, the period to file his pleading shall,
nevertheless, be not less than 5 days in any event.
(c) At least 5 days to answer: if you filed a Motion for Bill of
Particulars on the 28th day, which means you have 2 days
left), the rules say you should have at least 5 days to
answer.
Judge Q: As what we have said, the defendant is given 30 days
to file an answer but once a motion for bill of particulars, it will
stay the period for him to file a responsive pleading. In the event
his motion is denied, the period will continue to run after the
denial but nevertheless, it should not be less than 5 calendar
days so that’s the basis of the continuation of the period in filing
a responsive pleading.
Effect on the period to file a responsive pleading
A motion for bill of particulars is not a pleading; hence, not a
responsive pleading. Whether or not his motion is granted, the
movant may file his responsive pleading. When he files a motion
for BOP, the period to file the responsive pleading is stayed or
interrupted. After service of the bill of particulars upon him or
after notice of the denial of his motion, he may file his
responsive pleading within the period to which he is entitled to
at the time the motion for bill of particulars is filed. If he has still
eleven (11) days to file his pleading at the time the motion for
BOP is filed, then he has the same number of days to file his
responsive pleading from the service upon him of the BOP. If
the motion is denied, then he has the same number of days
within which to file his pleading counted from his receipt of the
notice of the order denying his motion. If the movant has less
than five (5) days to file his responsive pleading after service of
the bill of particulars or after notice of the denial of his motion,
he nevertheless has five (5) days within which to file his
responsive pleading
Bill of Particulars Becomes Part of the Pleading
Section 6. Rule 12
A bill of particulars becomes part of the pleading for which it
is intended.
Bill of particulars part of the pleading
The bill of particulars submitted becomes part of the pleading
for which it is intended.

Illustration
(a) If he has still 11 days to file his responsive pleading at the
time the motion for bill of particulars was filed, then he has
the same number of days to file his responsive pleading
from the notice of the denial of his motion.
(b) If the movant has less than 5 days to file his pleading after
service of the bill of particulars or after notice of the denial

21

MODULE 4
MOTION TO DISMISS
RULE 16. MOTION TO DISMISS
Provisions either deleted or transposed
Judge Q: The entire Rule 16 no longer exists but it didn’t mean
that motion to dismiss is no longer allowed. As what we’ve
learned, motion to dismiss can still be filed although it is a
prohibited pleading. As a review, Section 12 states that a motion
to dismiss is a prohibited except on the following grounds: (1)
no jurisdiction over the subject matter, (2) res judicata, (3) litis
pendentia and (4) statute of limitations/prescription. Are these
the only grounds that can be used for the dismissal of the
action? That is not exclusive because if you may recall in Rule
8, Section 12, you can raise affirmative defenses. This section
talks about grounds that can be cited in an affirmative defense
which has the effect of dismissing the action.
It’s better to first discuss Rule 6, 5 (b). What are the affirmative
defenses available? *reads the provision* these are affirmative
defenses that can be taken up in the course of hearing but
another set is those already enumerated under the exceptions
of using a motion to dismiss as a ground.
Now, let’s go back to Section 12, Rule 8. There are more
grounds. *reads provision* Failure to raise the affirmative
defenses at the earliest opportunity shall constitute a waiver
thereof. *proceeds to discuss Section 12, Rule 8.*
What is now the remedy if there is a denial of the affirmative
defense? If there is a denial based on the 5 affirmative grounds,
what is the remedy? Apparently, under the new rules, under
Rule 15, it is a prohibited pleading for a motion for
reconsideration of the court’s action of the affirmative defense.
So what is the downside of citing a ground for dismissal as one
of the affirmative defenses? Let me be clear about this. The
defendant or the answering party has the option, for instance:
lack of jurisdiction over the subject matter; he has two courses
of action- he may include it in his affirmative defense. However,
he is not also prohibited to file a motion to dismiss because it is
not a prohibited motion. If he files a motion to dismiss based on
this ground, and it is denied, he still has the remedy of filing a
motion for reconsideration. The rule apparently states that if he
cites lack of jurisdiction over the subject matter as one of his
affirmative defense and it is denied, can he still file a motion for
reconsideration? The new rules apparently prohibit him to do so
because of paragraph (c) Motion for reconsideration of the
court’s action on the affirmative defense is a prohibited
pleading. So what is the better strategy? If you have a ground
(kato 4), then it’s better for you to file a motion to dismiss rather
than incorporate it as one of the affirmative defenses. Why?
Because a motion for reconsideration is not considered a
prohibited pleading.
As you can see, in litigious motions, motion for reconsideration
is allowed. Now, question is, there is a rule for raising that the
issue on lack of jurisdiction can be raised anytime even pending
appeal so later on if your affirmative defense is denied based on
this, then you are not allowed to file a motion for
reconsideration. Is there still an option? It is my humble opinion
that it cannot bar you from filing a motion to dismiss since a
motion to dismiss is not a prohibited pleading based on this
ground (lack of jurisdiction over the subject matter). I want you
to take note of this very interesting action based on the dismissal
for this ground.
It’s also important to have a brief discussion on this particular
ground (litis pendentia). It’s worthwhile to discuss the requisites
of litis pendentia. In the case of Lim v Vianzon, states that the
following are the requisites of litis pendentia: (1) identity of the
parties or at least such parties representing the same interest in
both actions; (2) identity of rights asserted and reliefs prayed
for with respect to the facts; (3) identity with respect to the two
proceeding particulars such that any judgment rendered in a
pending case will amount to res judicata in another case; which
brings us to the second type of ground which is res judicata.
What are the requisites? (1) the former judgment must be final;
(2) the court which rendered it has jurisdiction over the subject
matter and the parties; (3) judgment must be decided on the
merits; and (4) there must be identity of parties, subject matter
and causes of action. The important element in many cases is
when there is judgment on the merits. It’s very pivotal in
determining whether res judicata exists meaning there is
adjudication on the reliefs prayed for by the parties. Res
judicata, as a ground for dismissal is based on two grounds:
public policy and necessity. This makes it the interest of the
State to put an end to the litigation and the hardship of the
individual of being vexed twice for the same cause. So that’s the
basis for these grounds.
So what is now the effect if the court denies the motion to
dismiss? We discussed the options available. So what happens
if the court grants the affirmative defense or motion to dismiss?
What is the remedy of the aggrieved party? Can he still re-file
the case? Or is he already barred? It all depends. If it can still
be rectified, if there is any infirmity that can be rectified, then it
can still be re-filed. For instance, if there is lack of jurisdiction
over the person, the remedy is to re-file and properly serve the
summons. Another, when the court has jurisdiction over the
subject matter of the claim, then you file it in the proper court.
Now, venue is improperly laid, if dismissed, plaintiff can file in
proper venue. If no legal capacity to sue, then he can have the
option of asking for another person to properly represent him.
When there is an action pending between the same parties for
the same case, he can have the option of fling the same case
where the action is pending. Where the pleading states no cause
of action, then you amend the pleading so as to include
allegations that would state a cause of action. If the condition
precedent has not been complied with, there is an opportunity
to avail of the condition. These are instances where action can
still be re-filed.
However, there are instances where re-filing is barred:
1. If cause of action is barred by prior judgment
2. Barred by the statute of limitations/prescription
3. Demand has been paid, waived or extinguished
4. Claim is unenforceable under the Statute of Frauds
What is now the remedy of the party whose case was dismissed
and can no longer be re-filed? To appeal the dismissal. Now, as
what I’ve said, when we say what is the mode of appeal
22
available. He cannot file an ordinary appeal. What is the
remedy? Special civil action for certiorari for grave abuse of
discretion amounting to lack or excess of jurisdiction but the
problem is one of the requisites for filing of a special civil action
for certiorari is that there must be a motion for reconsideration.
These are important requisites. In fact, it is jurisdictional in the
CA that there has been an MR which was first considered. Now,
if the ground for your dismissal is based on for instance, venue
is improperly laid, you cannot file a motion to dismiss because
that is a prohibited pleading. If your case will be dismissed based
on your affirmative defense, the plaintiff cannot file a motion for
reconsideration so since you cannot file, you cannot appeal the
action of the court granting the ground of dismissal based on
improper venue. So what is the option for you? You can only
wait after the case has been tried then cite that ground as the
basis for your appeal. Meanwhile, if your ground is any of these
(kato 4) and it is incorporated as an affirmative defense, same
result. Why? Because if it is dismissed based on an affirmative
defense, the plaintiff still cannot file because there is a
prohibition. So, in both cases, whether motion to dismiss or
affirmative defense, if the court grants or dismisses the action,
then, I stand corrected. If it is cited in a motion to dismiss and
the court issues a ruling dismissing the case, then you can file a
motion for reconsideration and elevate it to the CA. I hope that
is very clear.

23

MODULE 4
DISMISSAL OF ACTIONS
DISMISSAL OF ACTIONS
Dismissal may be:
1. At the instance of the defendant, normally
2. At the instance of the plaintiff
The dismissal of a case is normally at the instance of the
defendant. This is done by way of a motion to dismiss if the
ground is lack of jurisdiction over the subject matter, litis
pendentia, res judicata or prescription. The defendant can also
ask for the dismissal of the case through his answer which
contains the affirmative defenses.
There are times where the case will be dismissed at the instance
of the plaintiff. Is it possible? Yes. This could be done as a matter
of right or as a matter of judicial discretion. Sec. 1 refers to the
dismissal of the complaint as a matter of right.
Judge Q: We are talking about the dismissal of the action on the
part of the plaintiff.
Dismissal upon notice by plaintiff
Section 1, Rule 17
A complaint may be dismissed by the plaintiff by filing a
notice of dismissal at any time before service of the answer
or of a motion for summary judgment. Upon such notice
being filed, the court shall issue an order confirming the
dismissal. Unless otherwise stated in the notice, the dismissal
is without prejudice, 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
Judge Q: Section 1 is not a motion but a notice. What is the
difference? In a motion, you are asking from the court of the
relief, asking for the court to exercise his judicial discretion. A
notice merely notifies so there is no need for the court to
exercise its judicial discretion. A notice by the plaintiff that he is
dismissing the case. Section 1 talks about dismissal as a matter
of right, hence no need for approval from the court. So, the
judge can dismiss it upon a notice of dismissal. Upon notice, the
court shall issue an order confirming the dismissal. Take note
that it does not approve but just confirms it.
However, the dismissal without prejudice rule is only applicable
if the plaintiff has not exhausted the two-dismissal rule. So the
last portion talks about the two-dismissal rule. He can only
exercise this right twice so if he files a notice of dismissal earlier,
he can still file for the second time around because once there
is a dismissal for the second time around, then it is already with
prejudice. If there is a second dismissal, then the notice of
dismissal constitutes dismissal with prejudice.
When a matter of right
Notice of dismissal is a matter of right, if the defendant has not
yet filed an Answer or a Motion for Summary Judgment. If there
is yet no answer, the plaintiff can always dismiss the case that
he filed and all he has to do is send a notice of dismissal to the
defendant and copy furnish the court. This is not a Motion
because you are not asking a favor from the court. It is your
right to withdraw. The appropriate term here is “Notice of
Withdrawal of the Complaint” or “Notice of Dismissal.”
When dismissal as a matter of right ceases
Under the clear terms of Section 1, the dismissal as a matter of
right ceases when an answer or a motion for summary judgment
is served on the plaintiff and not when the answer or the motion
is filed with the court. Thus, if a notice of dismissal is filed by
the plaintiff even after an answer has been filed in court but
before the responsive has been served on the plaintiff, the
notice of dismissal is still a matter of right.
Notice of dismissal
1. Before the service of an answer or a motion for summary
judgment, a complaint may be dismissed by the plaintiff by
filing a notice of dismissal.
2. Upon filing the notice of dismissal, the court shall issue an
order confirming the dismissal. It is not the order confirming
the dismissal which dismisses the complaint. Said order
merely confirms a dismissal already effected by the filing of
the notice of dismissal.
3. The dismissal should occur as of the date the notice is filed
by the plaintiff and, not as of the date the court issues the
order confirming the dismissal.
If action is class suit
If the action is a class suit, the dismissal must be with the
approval of the court even if the defendant has not yet served
a responsive pleading or a motion for summary judgment.
Dismissal without prejudice; exceptions
General Rule
A dismissal made by the filing of a notice of dismissal is a
dismissal without prejudice, i.e., the complaint can be refiled.
Exceptions
The dismissal will, however, be one with prejudice in any of the
following situations:
a. The notice of dismissal by the plaintiff provides that the
dismissal is with prejudice
b. The plaintiff has previously dismissed the same case in a
court of competent jurisdiction based on or including the
same claim.
If the plaintiff files a notice of dismissal providing therein a
reason that prevents the refiling of the complaint, the dismissal
must be deemed one with prejudice even if the notice does not
state that the dismissal is with prejudice.
By Notice of Dismissal
Dismissal is without prejudice except when the order of
dismissal provides otherwise or under the Two Dismissal Rule.
Two-Dismissal Rule
The notice of dismissal operates as an adjudication upon the
merits.
The two-dismissal rule applies when the plaintiff has:
1. Twice dismissed actions
2. Based on or including the same claim
3. In a court of competent jurisdiction
24

The second notice of dismissal will bar the refiling of the action
because it will operate as an adjudication of the claim upon the
merits. In other words, the claim may only be filed twice, the
first being claimed embodied in the original complaint. Since, as
a rule, the dismissal is without prejudice, the same claim may
be refiled. However, if the refiled claim or complaint is dismissed
again through a second notice of dismissal, that second notice
triggers the application of the two-dismissal rule and the
dismissal is to be deemed one with prejudice because it is
considered an adjudication upon the merits.
For the above rule to apply, the complaints must have been
dismissed in a court of competent jurisdiction.
Illustrate:
PP files in the RTC an action to collect P300k from DD. The
complaint was dismissed when PP immediately filed a notice of
dismissal. The claim was again filed in the MTC. Before DD
served either an answer or a motion for summary judgment, PP
filed a notice of dismissal. Does the two-dismissal rule apply?
• No, it does not. The first court, the RTC was not a court of
competent jurisdiction because the claim was below the
jurisdictional amount.
• Also, the two-dismissal rule will not apply if the prior
dismissal was done at the instance of the defendant.
Dismissed by mere notice of amendment
1. Before the service of an answer or motion for summary
judgment.
2. Upon the filing of the notice of dismissal, the court shall
issue an order confirming the dismissal.
It is not the order confirming the dismissal which operates
to dismiss the complaint. As the name of the order implies,
said order merely confirms a dismissal already effected by
the filing of the notice of dismissal.
Dismissal upon motion of plaintiff
Section 2, Rule 17
Except as provided in the preceding Section, 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. If a counterclaim has been pleaded
by a defendant prior to the service upon him or her of the
plaintiff’s motion for dismissal, the dismissal shall be limited
to the complaint. The dismissal shall be without prejudice to
the right of the defendant to prosecute his or her
counterclaim in a separate action unless within fifteen (15)
calendar days from notice of the motion he or she manifests
his or her preference to have his or her counterclaim resolved
in the same action. Unless otherwise specified in the order, a
dismissal under this paragraph shall be without prejudice. A
class suit shall not be dismissed or compromised without the
approval of the court.
Dismissal by plaintiff, matter of discretion
When the defendant has already filed an answer, the plaintiff
can still ask for the dismissal of the complaint but this time, there
must be leave of court. The dismissal is no longer a matter of
right on the part of the plaintiff but a matter of judicial
discretion.
Effect of dismissal upon existing counterclaim
1. The dismissal does not include the counterclaim that has
already been incorporated in the answer of the defendant
unless the defendant manifested her intention to have her
counterclaim be tried in the same action.
2. The withdrawal of the case does not include the
counterclaim, meaning the counterclaim can stand if the
defendant, within 15 days from receipt of order of the court
allowing the dismissal of the complaint, manifests that she
wants her counterclaim to be tried in the same court. Or
she may manifest that the counterclaim be tried in a
separate action.
3. If a counterclaim has already been pleaded by the
defendant prior to the service upon him of the plaintiff’s
motion to dismiss, and the court grants said motion to
dismiss, the dismissal “shall be limited to the complaint”
(Sec. 2, Rule 17). The phraseology of the provision is clear:
the counterclaim is not dismissed, whether it is a
compulsory or a permissive counterclaim because the rule
makes no distinction.
4. The defendant if he so desires may prosecute his
counterclaim either in a separate action or in the same
action.
a. Should he choose to have his counterclaim resolved in
the same action, he must notify the court of his
preference within fifteen (15) days from the notice of
the plaintiff’s motion to dismiss.
b. Should he opt to prosecute his counterclaim in a
separate action, the court should render the
corresponding order granting and reserving his right to
prosecute his claim in a separate complaint.
Judge Q: This time, not upon notice but upon a motion. It is
now through a motion and not mere notice because it is no
longer a matter of right on the part of the plaintiff but a matter
of judicial discretion. *Reads Section 2* The court will now
assess whether the ground for dismissal still upon the plaintiff’s
instance. What happens to the counterclaim? *Reads Section 2*
The counterclaim can still be heard on by court by trial. The rule
applies to compulsory or permissive counterclaim since the law
does not distinguish provided that within 15 calendar days from
the notice of motion, he manifests his or her preference to have
his counterclaim resolved in the same action.
Now, what is the effect if he fails to file a manifestation that he
intends to prosecute his counterclaim in the same action? Once
the court issues a dismissal, the defendant loses his right to
prosecute his counterclaim in the same action but it will not bar
his right to prosecute the counterclaim in another action. Now,
unless otherwise provided, the dismissal under this paragraph
shall be without prejudice. The last part talks about a class suit.
Dismissal due to fault of plaintiff
Section 3, Rule 17
If, for no justifiable cause, the plaintiff fails to appear on the
date of the presentation of his or her evidence in chief on the
complaint, or to prosecute his or her action for an
unreasonable length of time, or to comply with these Rules
or any order of the court, the complaint may be dismissed
upon motion of the defendant or upon the court’s own
motion, without prejudice to the right of the defendant to
prosecute his or her counterclaim in the same or in a separate
25
 action. This dismissal shall have the effect of an adjudication Judge Q: It is not based on the action of the plaintiff. The first
upon the merits, unless otherwise declared by the court. two actions are based on the action of the plaintiff. Section 3
talks about dismissal due to the fault of the plaintiff for failure
on his part. *Reads Section 3* This time, without prejudice to
4 Grounds for Dismissal due to the Fault of Plaintiff the right of the defendant to prosecute his or her counterclaim
1. When the plaintiff fails to appear on the date of the in the same or in a separate action so this may be with or
presentation of his evidence in chief without justifiable without prejudice on the re-filing. I want you to take note of this
cause. also.
a. When it is the turn of the plaintiff after the pretrial, the
initial trial will be for the presentation of evidence of Dismissal of counterclaim, cross-claim, or third-party
the plaintiff. When the plaintiff and the counsel fail to complaint
appear without any justifiable reason, the court may Section 4, Rule 17
dismiss the case for failure of the plaintiff to present
evidence. The provisions of this Rule shall apply to the dismissal of any
b. When there are no justifiable reasons that explain the counterclaim, cross-claim, or third-party complaint. A
plaintiff’s absence during the presentation of his voluntary dismissal by the claimant by notice as in Section 1
evidence in chief, the court may dismiss the complaint. of this Rule, shall be made before a responsive pleading or a
The use of “may” denotes its directory nature and motion for summary judgment is served or, if there is none,
operates to confer upon the court the discretion to before the introduction of evidence at the trial or hearing.
decide between the dismissal of the case on this
technicality.
Note: Rule 17 shall apply also to the dismissal of any
2. When the plaintiff fails to prosecute his case for
counterclaim, cross-claim, or third party-complaint.
unreasonable length of time.
a. The failure to prosecute is called non prosequitur.
Voluntary dismissal by the claimant by notice as in Sec.
b. Test for non-prosequitur.
1, Rule 17 shall be made:
Whether, under the circumstances, the plaintiff is
a. Before a responsive pleading or a motion for summary
chargeable with want of due diligence in failing to
judgment is served
proceed with reasonable promptness or willingness on
b. If there is none in letter (a), before the introduction of
the part of the plaintiff to prosecute. There must be
evidence at trial or hearing.
unwillingness on the part of the plaintiff to prosecute.
c. If the delay is not for unreasonable length of time, a
Judge Q: Discusses counterclaim, cross-claim and third-party
dismissal on the basis of non-prosequitur is not proper.
complaint. The rules above, provisions of this Rule shall apply
3. When plaintiff fails to comply with the Rules of Court for no
likewise. *reads section 4* same effect, responsive pleading, as
justifiable reason or cause.
long as made before. If no responsive pleading filed, then it can
4. When plaintiff fails to comply with any order of the court
be made before the introduction of evidence at the trial or
for no justifiable reason or cause
hearing.
a. When you are required by the court to comply with
certain rules or any order of the court and you did not
comply, that will be a ground to dismiss your case.

Note: Judge Q subdivided number 3 into two parts

➢ The dismissal due to the fault of the plaintiff may be done
by the court on its own motion or upon a motion filed by
the defendant.
➢ When there are no justifiable reasons that explain the
plaintiff’s absence during the presentation of his evidence
in chief, the court may dismiss the complaint. The use of
the word, “may” denotes its directory nature and operates
to confer upon the court the discretion to decide between
the dismissals of the case on this technicality.

How the dismissal is done

The dismissal due to the fault of the plaintiff may be done:
a) by the court on its own motion or
b) upon a motion filed by the defendant.

When can a court dismiss an action motu proprio

1. Failure to prosecute for an unreasonable length of time
2. Failure to appear at the trial
3. Failure to comply with the rules
4. Failure to comply with the order of the court
5. Lack of jurisdiction

26