PRE-BAR LECTURE NOTES

REMEDIAL LAW CIVIL PROCEDURE

ATTY. GEORGE S.D. AQUINO
2018

WHAT ARE THE ASPECTS OF JURISDICTION?

(1) Jurisdiction over the subject matter
(2) Jurisdiction over the parties;
(3) Jurisdiction over the issues of the case; and
(4) Jurisdiction over the res or the thing which is the subject of the
litigation.

(Boston Equity Resources, Inc., vs. Court of Appeals and Lolita G.

Toledo, G.R. No. 173946, 19 June 2013)

SUBJECT MATTER JURISDICTION

• Jurisdiction over the subject matter is "the power to hear and determine cases of
the general class to which the proceedings in question belong.
• It is conferred by law, which may either be the Constitution or a statute.
• Jurisdiction over the subject matter means "the nature of the cause of action and
the relief sought."
• Thus, the cause of action and character of the relief sought as alleged in the
complaint are examined to determine whether a court had jurisdiction over the subject
matter.
• Any decision rendered by a court without jurisdiction over the subject matter of the
action is void.
(Department of Finance v. Dela Cruz,G.R. No. 209331, 24 August 2015)

1. Jurisdiction over the subject matter is determined based on the law in effect as of
the filing of the complaint.
2. Jurisdiction depends on the allegations in the complaint, not on the eventual
decision, nor on the defenses raised by opposing party.
3. Doctrine of continuing jurisdiction – once jurisdiction has
been acquired, the court retains the same until it finally disposes of the case.

4. In Figueroa v. People, G.R. No. 147406, 14 July 2008: Supreme Court ruled that
jurisdiction over the subject matter is conferred by law (the sovereign authority) and cannot
be waived. Therefore, it cannot be conferred by consent of the parties nor lost by estoppel.

5. However, the case of Tijam v. Sibonghanoy, G.R. No. L-21450, 15 April 1968, gives an
exception to the aforementioned rule. In said case, the Supreme Court introduced the
doctrine of JURISDICTION by ESTOPPEL where the Supreme Court ruled that when a party
participated and sought affirmative relief, he cannot thereafter repudiate that jurisdiction
after an adverse judgment has been rendered.

6. Doctrine of Primary Jurisdiction- if an administrative agency has jurisdiction over a

dispute, regular courts ought to respect that jurisdiction.

Jurisdiction over the parties

HOW DO COURTS ACQUIRE JURISDICTION OVER THE PLAINTIFF?

• upon the filing of the complaint.

HOW DO COURTS ACQUIRE JURISDICTION OVER THE DEFENDANT?

• either through the service of summons upon them or through their voluntary
appearance in court and their submission to its authority (Chu v. Mach Asia Trading, G.R.
No. 184333, 1 April 2013).
• Voluntary appearance comes by way of the filing of a motion or pleading expressly
submitting to the court’s jurisdiction or seeking affirmative relief therefrom.
• In a case where the defendant filed an Urgent Motion to Set Aside Order of Default
and to Admit Attached Answer, she is deemed to have submitted to the court’s jurisdiction
even if there were defects in the service of summons. (Planters’ Development Bank
v. Chandumal, G.R. No. 195619, 5 September 2012).

Jurisdiction over the parties

• However, if the defendant filed an Answer by way of Special Appearance (without

prejudice to jurisdictional challenges), this is NOT to be considered a voluntary appearance.
(Prudential Bank v. Magdamit, Jr., G.R. No. 183795, 12 November 2014).

• Under Section 20, Rule 14 of the Rules of Court, when a party files a Motion to
Dismiss, even if he includes grounds other thank lack of jurisdiction over the person, this
shall NOT be considered a voluntary appearance.

Jurisdiction over the Issues

• determined and conferred by the pleadings filed in the case by the parties, or by
their agreement in a pre-trial order or stipulation, or, at times by their implied consent as
by the failure of a party to object to evidence on an issue not covered by the pleadings
(Regalado Law Compendium, cited in De Joya v. Marquez,
G.R. No. 162416, 31 January 2006)

Jurisdiction over the Res

• This is acquired either:

(a) by the seizure of the property under legal process, whereby it is brought into actual
custody of the law, or
(b) as a result of the institution of legal proceedings, in which the power of the court is
recognized and made effective.

RULE 1
GENERAL PROVISIONS

What are the rules on docket fees vis-à-vis its commencement?

• Specify the amount of damages being prayed for not only in the body
of the pleading but also in the prayer.
• Any pleading that fails to comply with this requirement shall not be accepted nor
admitted, or shall otherwise be expunged from the record.” (Manchester Development
Corp. v. Court of Appeals, No. L- 75919, 7 May 1987)

• If the judgment awards a claim not specified in the pleading, or

• if specified the same has been left for determination by the court,
 the additional filing fee therefor shall constitute a lien on the judgment.
(Sun Insurance Office, Ltd. v. Asuncion, G.R. Nos. 79937-38, 13
February 1989)

What are the actions governed by the Rules of Court?

• Civil Action - action that seeks to enforce or protecta
right or to prevent a wrong
• Special Civil Action - an independent action based on specific grounds
• Criminal Action - action that seeks to prosecute an act
or omission punishable by law
• Special Proceeding - a remedy by which a party seeks to establish a status, right or a
particular fact. To initiate a special proceeding, a petition and not a complaint should be
filed.

Rules of Court not applicable in certain cases

• Election case
• Land Registration
• Cadastral
• Naturalization
• Insolvency
• Rehabilitation
• Other cases

EXCEPTION is when the application of the provisions of the Rules of Court is only by analogy
or in a suppletory character and it is practicable and convenient.

When is an action deemed commenced?

• On the date of the filing of the original complaint

o EXCEPTION - when an additional defendant is impleaded, the action is commenced as to
him on the date of the filing of the amended pleading. BUT, with regard to the other
parties, the action is commenced still on the date of filing of the original complaint.

RULE 2
CAUSE OF ACTION

Elements:
1. A right in favor of the plaintiff by whatever means and under
whatever law it arises or is created;
2. An obligation on the part of the named defendant to respect or not
to violate such right; and
3. Act or omission on the part of such defendant in violation of the right of the plaintiff
or constituting a breach of the obligation of the defendant to the plaintiff for which the
latter may maintain an action for recovery of damages or other appropriate relief.
(Swagman v. Court of Appeals, G.R. No. 161135, 8 April 2005)

• The test of the sufficiency of the facts alleged in the complaint is whether or not,
admitting the facts alleged, the court can render a valid judgment upon the same in
accordance with the prayer of plaintiff.
• The focus is on the sufficiency, not the veracity, of
the material allegations.
• Failure to make a sufficient allegation of a cause of action in the complaint warrants
its dismissal.

(Anchor Savings Bank v. Furigay, G.R. No. 191178, 13 March 2013).

RULE 2
Failure to State a Cause of Action v. Lack of Cause of Action
Failure to State a Cause of Action is a ground to dismiss; lack of cause of action is NOT.

Examples:
• Plaintiff filed case against defendant to compel the latter to extend a contract of
lease. Even assuming the allegations of the complaint are true, this does not give rise to an
actionable right as the extension of a contract of lease must be mutually agreed upon and
not compelled by court action.

• In an action for injunction by a plaintiff against a defendant who is allegedly

encroaching on his property, defendant raised the defense of “lack of cause of action”
because he allegedly had title over the property. Defendant argued that in effect, plaintiff
was seeking to nullify his title. The Supreme Court ruled that plaintiff had stated a sufficient
cause of action because his allegations (as to ownership and alleged encroachment) are
hypothetically admitted as true. (Ceroferr v. CA, 5 February 2002)

HYPOTHETICAL ADMISSIONS DO NOT EXTEND TO CONCLUSIONS

(Westmont Bank v. Funai, 8 July 2015).

• Unless the plaintiff has a valid and subsisting cause of action at the time his action is
commenced, the defect cannot be cured or remedied by the acquisition or accrual of one
while the action is pending, and a supplemental complaint or an amendment setting up
such after-accrued cause of action is not permissible
(Swagman v. Court of Appeals, G.R. No. 161135, 8 April 2005)

WHAT IS ANTICIPATORY BREACH?

• “If the contract is divisible in its performance and the future periodic deliveries are
not yet due, and if the obligor has already manifested his refusal to comply with his future
periodic obligations, ‘the contract is entire and the breach total’, hence, there can only be
one action for damages.”
• (Danfoss, Inc. v. Continental Cement Corp., G.R. No. 143788, 9 September 2005,
citing Blossom & Company, Inc. v. Manila Gas Corporation, G.R. No. L-32958, 8 November
1930)

WHAT IS THE RULE ON CAUSES OF ACTION?

• A party cannot split a single cause of action but may

JOIN as many causes of action against an opposing party.

TEST AS TO WHETHER THE CASE INVOLVES THE SAME CAUSE OF ACTION:

(a)whether the same evidence would support and sustain both the first and second causes
of action (also known as the "same evidence" test),
(b) whether the defenses in one case may be used to substantiate the complaint in the
other.
(c) whether the cause of action in the second case existed at the time of the filing of the
first complaint.
(Umale v. Canoga, G.R. No. 167246, 20 July 2011)

Examples of splitting a cause of action:

• In Riviera v. CCA, 17 June 2015, the SC ruled that two cases which are based on (a)
failure to pay license fees and (b) damages due to unearned profits, respectively, SPLIT a
cause of action because they are “ultimately anchored” on the breach of one agreement.

• In Marilag v. Martinez, 22 July 2015, a petitioner instituted an action for JUDICIAL

foreclosure and later on filed a personal action for collection of the debt. This was
considered as SPLITTING a CAUSE OF ACTION. But note that this does not preclude a filing
for motion for the deficiency judgment after the foreclosure sale.

• When there are several installment payments due, each payment due constitutes
one cause of action. However, ALL due as of the time of filing must be brought in the same
action. (BPI v. Coscolluela, 27 June 2006)

Q: In one case, a lessee who violated the terms of its lease was subjected to an unlawful
detainer case. (Case 1) While Case 1 was pending appeal, the lease agreement expired and
the lessor filed another unlawful detainer case (Case 2). Is this considered as “splitting a
cause of action”?
A: No. In Umale v. Canoga, 20 July 2011, the Supreme Court ruled that the violations of
the terms of the lease and the eventual expiration of the lease constitute separate causes of
action, and they do not constitute a “SPLITTING”.

RULES ON JOINDER:
Sec. 5. Joinder of causes of action. – A party may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may have against an opposing party, subject to
the following conditions:
(a) The party joining the causes of action shall comply with the rules on joinder of
parties;
(b) The joinder shall not includespecial civil actons or actions
governed by special rules;
RULES ON JOINDER:

(c) Where the causes of action are between the same parties but pertain to different
venues or jurisdiction, the joinder may be allowed in the Regional Trial Court provided
one of the causes of action falls within the jurisdiction of said court and the venue lies
therein; and
(d) Where the claims in all the causes of action are principally for recovery of money,
the aggregate amount claimed shall be the test of jurisdiction. (5a)

EFFECT OF SPLITTING A CAUSE OF ACTION:

• If two or more suits are instituted on the basis of the same cause of action, the filing
of one or a judgment on the merits in any one is ground for the dismissal of the others.
(Umale v. Canoga, G.R. No. 167246, 20 July 2011).
• NOTE: It need not be the second action that is dismissed.

• Considerations to determine which action should prevail:

1. The date of the filing, with preference generally to the first action filed
to be retained;
2. Whether the action sought to be dismissed was filed merely to preempt the later
action or to anticipate its filing and lay the basis for is dismissal; and

3. Whether the action is the appropriate vehicle for litigating the issues between the
parties.”

• The dismissal may occur while the two actions are pending (based on litis pendentia)
or, after the first case is filed and terminated, a second case may be barred by res judicata.
(Benavidez v. Salvador, G.R. No. 173331, 11 December 2013)

Joinder of causes of action allowed in the RTC even if other causes of action pertain to the
MTC provided one of the causes of action falls within its jurisdiction

• As the RTC has jurisdiction over the action to declare the interest rates and
foreclosure void, the RTC is allowed to decide the action for violation of the Truth Lending
Act which was jointly instituted even if such cause of action falls within the jurisdiction of
the MTC (UCPB v. Spouses Beluso, GR No. 159912, August 17, 2007)

Where all the causes of action are principally for

recovery of money, what is the test of jurisdiction?

• The aggregate amount claimed.

o This embodies the "totality rule" as exemplified by Section 33 (1) of B.P. Blg. 129 which
states, among others, that "where there are several claims or causes of action between the
same or different parties, embodied in the same complaint, the amount of the demand
shall be the totality of the claims in all the causes of action, irrespective of whether the
causes of action arose out of the same or different transactions."

Misjoinder of causes of action NOT a ground for dismissal

• Misjoinder of the action for quieting of tile which is a special civil action under Rule
63 and an action for declaration of nullity in one suit is not a ground for the dismissal of the
case (Roman Catholic Archbishop of San Fernando v. Soriano, GR Nos. 153829 and 160909,
August 17, 2011)

What is the effect of a misjoinder of causes of action and parties?

• The Court can order:

1. The severance of the misjoined cause of action, to be proceeded with separately (in
case of misjoinder of causes of action); and/or
2. The dropping of a party and the severance of any claim against said misjoined party,
also to be proceeded with separately (in case of misjoinder of parties). (Republic v.
Herbieto)

RULE 3
PARTIES

Who are parties to a civil action?

• Plaintiff
• Defendant

Who may be plaintiffs/defendants?

• Natural or
• Juridical Persons or
• entities authorized by law (Section 1, Rule 3)

EXAMPLES:

• When a group of individuals claiming to represent an association filed a case and all
signed the verification, and the association was not duly registered or incorporated, the
Supreme Court held that the plaintiff had no personality to sue (Dueñas v. Santos
Subdivision Homeowners Association, G.R. No. 149417, 4 June 2004).

• When a dissolved corporation filed a case beyond the 3-year winding up period, it
was considered to be without personality to sue. The Supreme Court explained the rule that
if the corporation commenced the suit within the 3-year period, even if litigation ends after
the said period, the corporation is deemed to have personality. (Alabang Development
Corporation v. Alabang Hills, G.R. No. 187456, 2 June 2014).
• Note: under Section122 of the Corporation Code, the suit o
the dissolved corporation must be in connection with the closure and settlement of its
affairs.

NOTE: under Section 15 of Rule 3, as a party defendant, “two or more persons NOT
organized as an entity with juridical personality enter into a transaction, they may be sued
under the name by which they are generally or commonly known.”

Examples of entities authorized by law to be

parties:
1. Estate of a deceased person
2. Legitimate Labor organization
3. Corporation under dissolution under Section 122 of the Corporation Code.

REAL PARTY IN INTEREST

• Who is a real party in interest?
o One who has a material interest in the case and stands to be benefited or injured by the
judgment in the case. The rule is that every civil action must be prosecuted in the name of
the real party in interest.
• The rule is that every civil action must be prosecuted in the name of the real party in
interest.
o What is the ground for dismissal if it is not?
 Failure of the complaint to state a cause of action

EXAMPLE:
• A Petition for Declaration of Nullity of Marriage may only be brought by the husband
or wife. Hence, even if an heir of one of the spouses will benefit (by inheritance) if the
marriage is declared null, he/she cannot file the Petition himself/herself. (Carlos v.
Sandoval, G.R. No. 179922, 16 December 2008)

Who is the real party in interest in an action for recovery of possession or ownership?
• The rule is that any one of the co-owners may bring any kind of action for the
recovery of co-owned properties since the suit is presumed to have been filed for the
benefit of all co-owners. This clear under Article 487 of the Civil Code which covers all kinds
of action for the recovery of possession and ownership (Estreller v. Ysmael, GR No. 170264,
March 13, 2009).

Rule 3
INDISPENSABLE PARTIES:
Q: When can an agent sue in his own name?
A: When:
(1) the agent acted in his own name during the transaction;
(2) the agent acted for the benefit of an undisclosed principal; and
(3) the transaction did not involve the property of the principal.
(Section 3, Rule 3)

REAL PARTY IN INTEREST

In V-Gent v. Morning Star, 22 July 2015, the Supreme Court ruled that V-Gent, which
purchased various airline tickets for individual passengers, cannot sue the travel agency
without impleading the individual ticketholders.

The Supreme Court held:

“In the present case, only the first element is present; the purchase order and the receipt
were in the name of V-Gent. However, the remaining elements are absent because: (1)
V-Gent disclosed the names of the passengers to Morning Star — in fact the tickets were in
their names; and (2) the transaction was paid using the passengers' money. Therefore, Rule
3, Section 3 of the Rules of Court cannot apply.

INDISPENSABLE PARTIES (SECTION 7, RULE 3)

Who is an indispensable party?

An indispensable party is one whose interest in a case is such that a final judgment cannot
be rendered therein without affecting his interest. His interest is inextricably linked and not
separable from the interest of the other parties to the case.

EXAMPLES:
• In a case for nullification of title, the registered owner of the property is an
indispensable party (Cagatao v. Almonte, G.R. No. 174004, 9 October 2013)
• All co-owners in a partition suit are indispensable parties. (Salvador v.
Court of Appeals, G.R. No. 109910, 5 April 1995)

• However, not ALL co-owners are indispensable parties to bring an action against a
third party who poses a challenge to their land (Article 487, Civil Code).
• In a Petition for Certiorari, the main respondent is the public respondent. Not all of
the private parties in the case a quo are indispensable parties. (Siok Ping Tang v. Subic Bay
Distribution, Inc.,
G.R. No. 162575, 15 December 2010)

What is the effect of the failure to implead an

indispensable party?

• Failure to implead an indispensable party is not a ground for dismissal of case.

Neither misjoinder nor non joinder of parties is a ground for dismissal of an action (Leonis
Navigation v. Catalina Villamater, GR No. 179169, March 3, 2010).

What is the proper remedy when an indispensable party

has not been impleaded as a party to the case?

• The proper remedy is to implead the indispensable party at any stage of the action
even after a judgment has been rendered. (Leonis Navigation v. Catalina Villamater, GR No.
179169, March 3, 2010).

Who is a necessary party?

• A necessary party is one who is not an indispensable party but one who should be
joined as a party in order to accord a complete relief to the original parties or to have a
complete determination of the claim subject of the case.

What is the test for determining if a party is a

necessary party?

• The test is by ascertaining the relief prayed for in the complaint. If a complete relief
cannot be afforded to the original parties or a complete determination of the claim subject
of the case cannot be made without impleading the party, then such party is a necessary
party.

NECESSARY PARTIES

• EXAMPLES:
• Joint Obligors
• Junior Mortgagees
• If one co-owner files a case, on behalf of property,
other co- owners are necessary parties

Q: A private law office was engaged by a GOCC. The payment of fees to the Law office
was disallowed by the COA. The private law office filed a Petition to the Supreme Court
challenging the disallowance. Is a private law office the real party in interest to challenge
the disallowance by the COA?

A: Yes. The law office does not have “a mere incidental interest and the interest is not
merely consequential. xxx The net effect of upholding or setting aside the assailed COA
rulings would be to either disallow or allow the payment of legal fees to (the law office).”
(Law Firm of Laguesma v. COA, 13 January 2015).

Q: Should the GOCC be a party to the case?

A: Yes, it is a necessary party as it will ultimately be ordered to pay. Its inclusion will
accord a complete relief to the original parties or to have complete determination of the
claim subject of the case.

Foreign corporations and their capacities to

sue
• An unlicensed foreigncorporation not doing business in the
Philippines has the capacity to sue
• An unlicensed foreign corporation doing business in the Philippines cannot sue
before Philippine courts but such corporation can sue if it is not doing business (Sec. 133,
Corporation Code).
• A private company owned by a foreigngovernment is not
immune
from suit

A misjoinder of party plaintiff is not a ground for dismissal of the complaint

What is the remedy in case of misjoinder of parties?

• The remedy is to move for the dropping of misjoined parties from the complaint.
This may be done through amendment of the complaint or through motu propio order of
the RTC.

Substitution in case of death of parties

• When a party dies in an action that survives, the deceased party shall be substituted
by his heirs, administrator or legal representative
• The rule does not apply to all kinds of actions. Substitution is required only in
actions that survive the death of the party
• Purpose of the rule: to protect the right to due process of parties who may be
affected by the death of a party. It is not a jurisdictional requirement but non compliance of
the rule results in violation of the right to due process of those affected by the judgment.

What is the test for determining whether an

action survives the death of the plaintiff?

• Ascertain the nature of the action and the damage sued for. If the complained acts
affect or relate to property and property rights, the action survives. If they affect or relate
to the person, the action does not survive.

What is the effect of the failure to effect substitution of parties on the proceedings or
judgment?

• If no valid substitution of parties is made, the proceedings and judgment are void
because the court acquired no jurisdiction over the person of the heirs upon whom the
judgment would be binding.
• Moreover, the attorneys for the offended party ceased to
be the
attorneys for the deceased upon the death of the latter, the principal.

The deceased cannot be substituted by a person who

is not an heir, legal representative, or administrator

• The reason for the rule is to protect all those who may be affected by the death. A
substitute should not have a claim against the interest of the deceased through the
transfer of the latter’s interest in the litigation to another party (Judge Sumaljag v. Literato).

What are the requirements for automatic

qualification as indigent parties?
1. The income requirement: the applicant’s gross income and that of his family must
not exceed an amount double the monthly minimum wage of an employee
2. The property requirement: the applicant must not own
real
property with a fair market value of more than P300,000.

• If these requirements are met, the motionshall be granted

automatically and as a matter of right (Spouses Algura v. LGU)

When is a hearing required to determine if a party

is entitled to litigate as a pauper litigant?

• If one or both of these requirements have not been met, the motion should not be
denied outright but the trial court shall set the case for hearing to enable the applicant to
prove that he has no money sufficient and available for food, shelter and basic necessities
for himself and his family in accordance with Section 21, Rule 3 and use its sound discretion
in determining the merits of the prayer for exemption (Id.)

CLASS SUIT:
• Requisites:
(1) that the subject matter of the controversy is one of common or general interest to
many persons; and
(2) that the parties are so numerous that it is
impracticable to
bring them all before the court
(Sulo ng Bayan v. Araneta, G.R. No. L-31061, 17 August 1976).

CLASS SUIT
• Action to dissolve a voluntary association, for accounting and liquidation was
considered a class suit. (Borlasa v. Polistico, G.R. No. L-22909, 28 January 1925).
• Families of airplane crash victims CANNOT bring a class suit because the basis for
their damages would be different (Bar 1991)
• An association of sugar planters cannot bring a class suit on behalf of individual
planters against a magazine for alleged libel because the circumstances of the planters are
all different. (Newsweek. V. IAC, G.R. No. L-63559, 30 May 1986).

RULE 4
VENUE

Venue

• Not jurisdictional – it is procedural

• Waivable - When improper venue is not objected to in a motion to
dismiss, it is deemed waived except in criminal cases.
o Improper venue should be raised seasonably, else it is deemed waived. It should be raised
either in a motion to dismiss or in the affirmative defense in the Answer.

What is the purpose of the rule on venue?

• To provide convenience to the parties, rather than restrict their access to the
courts.
• To make it more convenient for the parties to file actions pursuant to the policy that
everyone should be allowed free access to courts of justice.

Venue in personal actions

• Venue is in the court of the place where the plaintiff or the defendant resides at the
election of the plaintiff.

• EXCEPTION: The rule on venue does not apply when there is

an exclusive venue stipulation of the parties in a contract (Spouses Lantin
v. Jane Lantion). Here, the loan and mortgage documents – which plaintiffs seek to annul -
contain an exclusive venue stipulation restricting the venue of any suit in Metro Manila.
Thus, the action filed in Lipa Batangas was improperly laid.

EXCLUSIVE VENUE STIPULATIONS

• The mere stipulation on the venue of an action is not enough to preclude parties
from bringing a case in other venues. The parties must be able to show that such stipulation
is exclusive. In the absence of qualifying or restrictive words, the stipulation should be
deemed as merely an agreement on an additional forum, not as limiting venue to the
specified place. (Spouses Lantin v. Lantion, G.R. No. 160052, 28 August 2006.)

• WHAT IS THE EFFECTIF THE VENUE STIPULATION IS NOT

RESTRICITVE?
• The said stipulation merely provides for another permissible venue. But the venue
stipulation is NOT per se invalidated. (Philbanking Corporation v. Tensuan, G.R. No. 104649,
28 February 1994)
• Examples of “restrictive words”: "only," "solely," "exclusively in this court," "in no
other court save —," "particularly," "nowhere else but/except —," or words of equal
import. (Pacific Consultants v. Schonfeld, G.R. No. 166920, 19 February 2007).

EXCLUSIVE VENUE STIPULATIONS

• Can there be a valid venue stipulation for real actions?
• Yes. (See Briones v. Court of Appeals, G.R. No. 204444, 14 January 2015).
• If the case merely assails the provisions of the agreement, the venue stipulation
stated therein is valid and must be followed (Spouses Lantin v. Lantion, G.R. No. 160052, 28
August 2006.) But if what is assailed is the very validity of the agreement containing the
stipulation, the venue stipulation is no longer controlling (Briones v. Court of Appeals, G.R.
No. 204444, 14 January 2015).

Q: Will an exclusive venue stipulation in a Real Estate

Mortgage
apply to extrajudicial foreclosure proceedings?

A: No. In Ochoa v. Chinabank, 23 March 2011, the SC ruled that an exclusive venue
stipulation cannot apply to extrajudicial foreclosure. “(W)ith respect to the venue of
extrajudicial foreclosure sales, Act No. 3135, as amended, applies, it being a special law
dealing particularly with extrajudicial foreclosure sales of real estate mortgages, and not the
general provisions of the Rules of Court on Venue of Actions.

RULE 4
EXAMPLE OF COMPLEMENTARY-CONTRACTS-CONSTRUED
TOGETHER DOCTRINE:

Q: In a case, there was a Promissory Note with an exclusive venue stipulation and a Surety
Agreement which did not contain the venue stipulation. If a case is filed enforcing the
Surety Agreement, will the venue stipulation govern?

A: Yes. In PBCom V. Lim, 12 April 2005, the SC ruled that “(i)n enforcing a surety contract,
the complementary-contracts-construed-together doctrine finds application. According to
this principle, an accessory contract must be read in its entirety and together with the
principal agreement. This principle is used in construing contractual stipulations in order to
arrive at their true meaning; certain stipulations cannot be segregated and then made to
control.”

Where is the venue in derivative suits?

• The place of principal office of the corporation

o Venue is in the court of the place where the corporation holds its principal office (Hi-Yield
v. CA).

Illustrative Cases:

• A case which prays for the declaration of nullity of a loan agreement and its
accompanying surety agreement and real and chattel mortgage was deemed to be a
PERSONAL ACTION. The Supreme Court noted that because there was no transfer of the
real property yet, it could not be categorized as a real action (BPI v. Hontanosas, G.R. No.
157163, 25 June 2014)
• An action to recover the deficiency after extrajudicial foreclosure is a PERSONAL
ACTION. (BPI v. Yujuico, G.R. No. 175796, 22 July 2015)
• What is the venue for a revival of action? It depends on the nature of the prayer for
revival. In a case where the original action was for specific performance and damages, the
action to revive which now focused on the delivery of a certain real property arising from
the judgment – was considered a REAL ACTION. (Infante v. Aran Builders, G.R. No. 156596,
24 August 2007).
• The inclusion of a party plaintiff who was NOT the principal plaintiff in the action
cannot justify filing the case in said party’s place of residence. (Marcos-Araneta v. Court of
Appeals, G.R. No. 154096, 22 August 2008).

Where is the venue of the action if there is

more than one plaintiff?
• Residence of the principal party
o The residence of the principal parties is the basis for determining venue if there is more
than one plaintiff in a personal action. (Irene Marcos Araneta v. CA) Here, the complaint for
reconveyance of shares was dismissed for improper venue. While her MR was pending,
Irene filed an amended complaint in which 3 individuals appeared as additional plaintiffs –
all of whom are from Ilocos Norte and allegedly Irene’s new trustees

• Purpose of the rule: to prevent the plaintiff from choosing the residence of a minor
plaintiff or defendant as the venue which would thereby defeat the purpose of the rule as
the minor party would not have the degree of interest in the subject of the action.

Rule 5 – Uniform Procedure in Trial Courts

An appeal of a judgment for unlawful detainer before the RTC is not covered by Summary
Procedure

• Proceedings in the RTC are not covered by the Summary Rules even for appeal of
cases that are covered by the Summary Rules (Estate of Macadangdang v. Gaviola).

• The failure of a defendant to file an answer or to appear at a preliminary conference

shall entitle the plaintiff to a judgment on the basis of the facts alleged in the complaint
(Soriente v. Estate of Concepcion)
• A Motionfor Reconsideration is a prohibited pleading.
The filing
thereof will render the order of dismissal final and executory
o MR is prohibited under the summary rules. Sec 19 (c) considers a motion for
reconsideration of a judgment a prohibited pleading. The filing thereof did not interrupt or
stop the running of the period for appeal. Thus, the period for appeal had long lapsed when
Spouses filed their appeal. The lapse of the period for appeal rendered the RTC without any
jurisdiction to entertain much less grant the appeal from the final and immutable judgment
of the MTC. (Spouses Edillo v. Spouses Dulpina)

RULE 6 –KINDS OF PLEADINGS

WHAT IS A PLEADING?
• statement of a party’s claims or defenses in an
action that is submitted to the court for appropriate judgment

IS A MOTION A PLEADING?
• strictly speaking, NO.
• Sec 1, Rule 15: a motion is an application for relief other than by a
pleading

WHAT ARE THE PLEADINGS ALLOWED UNDER

THE ROC?
• complaint
• counterclaim
• crossclaim
• third party complaint
• complaint in intervention
• answer to a pleading asserting a claim
• reply to answer

WHAT ARE THE TWO KINDS OF DEFENSES?

• NEGATIVE DEFENSE
• AFFIRMATIVE DEFENSE

WHAT IS A NEGATIVE DEFENSE?

• a defense that specifically denies the material facts
allegedin the
complaint

WHAT IS AN AFFIRMATIVE DEFENSE?

• an allegation of a new matter which would bar recovery by plaintiffs

even if the allegations in the complaint are hypothetically admitted

• Fraud
• Prescription
• Payment
• Release

• Illegality
• Statute of Frauds
• Estoppel
• Discharge in bankruptcy

WHAT IS AN ANSWER EX ABUNDANTE AD CAUTELA?

• the answer is being filed “out of abundant caution”

WHAT IS THE EFFECT OF ITS FILING?

• same effect as filing of an answer as long as it sets forth the party’s defenses to the
claim asserted against it in the complaint.
• Its filing does not make it less of an answer

• The contention of defendants that plaintiff cannot take deposition on them as they
had not yet served their answers was incorrect since defendants had already filed an ex
abundanti ad cautela answer after their motion to dismiss on the ground of lack of subject
matter jurisdiction was denied (Rosete v. Lim, G.R. No. 136051, June 8, 2006).

WHAT IS A COUNTERCLAIM?
• a claim by a defending party against an opposing party.
• may either be a compulsory or permissive counterclaim.

WHEN IS IT COMPULSORY?
(Reillo v. San Jose, G.R. No. 166393, June 18, 2009)
(a) it arises out of or is necessarily connected with the
transaction or occurrence subject of the opposing party's claim;
(b) it is existing at the time of the filing of the answer; and
(c) it does not require for its adjudication the presence of third parties of whom the
court cannot acquire jurisdiction

WHEN IS IT PERMISSIVE?
• if it does not arise out of or is not necessarily
connected with the
subject matter of the opposing party's claim
• permissive counterclaim- essentially an independent claim that may be
filed separately in another case.

COMPULSORY COUNTERCLAIM

• FOR CASES FILED BEFORE THE MTC

• must be within its jurisdiction both as to the amount and nature of the case
• FOR CASES FILED BEFORE THE RTC
• counterclaim is compulsory even if the amount is
within the jurisdiction of the MTC

COMPULSORY v. PERMISSIVE

COMPULSORY PERMISSIVE
• necessarily connected with the claim asserted in the complaint, •
independent of the claim asserted in the complaint.
• should be set up in the answer in the same action; otherwise, they would be barred
forever• may be filed separately in another case.
• Payment of docket fee is not
required • payment of docket fees is necessary before the court could acquire
jurisdiction over the counterclaim.

TEST FOR DETERMINING WHETHER A COUNTERCLAIM IS COMPULSORY

(Financial Building Corp. v. Forbes Park Association, GR 133119, August 17, 2000)
• Are the same issues of fact or law raised by the
claim and
counterclaim?
• Would res judicata bar a subsequent suit on defendant’s claim absent
the compulsory counterclaim rule?
• Will substantially the same evidence support or refute plaintiff’s claim
as well as the defendant’s counterclaim?
• Is there any logical relation between the claim and the counterclaim?

COMPULSORY COUNTERCLAIM MUST BE RAISED IN THE

ANSWER. OTHERWISE, SUCH CLAIM WILL BE BARRED

• If a compulsory counterclaim is not raised in the answer, a party is barred

from interposing such claim in a future litigation.

EXCEPTION: The claim is not barred even if it was necessarily connected with the claim in
the complaint where the claim did not exist or mature at the time of the filing of the
answer. (BDO v. CA G.R. No. 160354, August 25, 2005)

The SC held that BDO’s claim for deficiency of debtor’s obligations after foreclosure of
debtor’s property could not have been raised when the bank filed its answer with
compulsory counterclaim to the debtor’s complaint. At that time, the cause of action for the
deficiency amount had not yet arisen. It only arose after the foreclosure of the properties
and after the debtor has refused and failed to settle the deficiency amount.

• DISMISSAL OF COMPLAINT RESULTS IN DISMISSAL OF

COMPULSORY COUNTERCLAIM
(Financial Building Corp. v. Forbes Park Association, GR 133119, August 17, 2000)

• FILING OF A MOTION TO DISMISS IS AN IMPLIED WAIVER OF COMPULSORY

COUNTERCLAIM
• the grant of the motionresults in the dismissal of the
counterclaim.

(Financial Building Corp. v. Forbes Park Association, GR 133119, August 17, 2000).

Financial Building filed an injunction case after Forbes Park Association enjoined prevented
it from doing further construction work. The case was dismissed upon motion of Forbes
Park Association. Thereafter, Forbes Park filed a complaint for damages against Financial
Building. The SC held that Forbes Park’s claim is already barred due to its failure to set it up
as a compulsory counterclaim in the prior injunction suit.

WHAT IS A THIRD-PARTY COMPLAINT?

• a claim that a defending party may, with leave of court, file against a person not a
party to the action, for contribution, indemnity, subrogation or any other relief, in respect
of his opponent's claim.

THIRD PARTY COMPLAINT

• In a case where the plaintiff sued defendant for the payment and rentals for various
equipment, and the defendant sought to implead a third party in whose project the
equipment were allegedly used, the Supreme Court ruled that this is not a proper
third-party complaint on the ground that they were separate transactions. (Asian
Construction v. Court of Appeals, G.R. No. 160242, 17 May 2005).

TEST IN DETERMINING PROPRIETY OF A THIRD-

PARTY COMPLAINT
(Asian Construction v. CA, GR 160242, May 17, 2005)
(1) whether the 3rd party claim arises from the same transaction subject of the
complaint; or whether the 3rd party claim, although arising out of different transaction, is
connected with the plaintiff's claim;
(2) whether the third-party defendant would be liable to the plaintiff or to the
defendant for all or part of the plaintiff's claim against the original defendant, although the
third-party defendant's liability arises out of another transaction or to both the plaintiff and
the defendant; and
(3) whether the third-party defendant may assert any defenses which the
third-party plaintiff has or may have to the plaintiff's claim

THIRD PARTY COMPLAINT

It is settled that a defendant in a contract action may join as third- party defendants those
who may be liable to him in tort for the plaintiffs claim against him, or even DIRECTLY to the
plaintiff. (Philtranco Services v. Paras, 25 April 2012)

• THIRD PARTY DEFENDANT MAY RAISE DEFENSES WHICH THIRD PARTY PLAINTIFF
MAY HAVE AGAINST THE ORIGINAL PLAINTIFF

• Sec. 13, Rule 6: a third party defendant may allege in his answer his defenses,
counterclaims, cross-claims, including such defenses that the third party plaintiff may have
against the original plaintiff’s claim.

• THIRD PARTY DEFENDANT MAY ASSERT A COUNTERCLAIM AGAINST ORIGINAL

PLAINTIFF
• Sec. 13, Rule 6: in proper cases such as when the third party plaintiff imputes direct
liability to the third party defendant, the latter may assert a counterclaim against the
original plaintiff in respect of the latter’s claim against the third party plaintiff.

NOTE:
WHAT IS A CROSS-CLAIM?
• a claim by one party against a co-party.

WHAT ARE THE REQUISITES OF A CROSS-CLAIM?

• the claim must arise out of the transaction or occurrence subject of the complaint or
counterclaim. Otherwise, it is not proper to assert such claim in a cross-claim.
• There is no such thing as permissive cross-claim.
• The cross-claim must be existing as of the time of
the filing of the answer

• CROSS-CLAIM CANNOT HOLD CROSS-

DEFENDANT DIRECTLY LIABLE TO PLAINTIFF
• Unlike a third party complaint, a cross-claim cannot pray that cross-defendant be
held directly liable to the plaintiff.

WHAT IS THE FUNCTION OF A REPLY?

• to deny or address new matters alleged by way of defense in the

answer
• If no reply is filed, all new matters allegedin the
answerare deemed controverted

RULE 7
PARTS OF A PLEADING

When is a pleading sufficient in form?

• A pleading is sufficient in form when it contains the following:
• Caption, setting forth the name of the court, the title of the action indicating the
names of the parties, and the docket number
• Body, reflecting the designation, the allegations of the party's claims or defenses,
the relief prayed for, and the date of the pleading
• Signature and Address of the party or counsel

• Verification for some pleadings - designed to secure an assurance that the

allegations have been made in good faith, or are true and correct and not merely
speculative
• Certificate of Non-forum Shopping for initiatory pleadings,
which although not jurisdictional, the same is obligatory
• Explanation where the pleading is not filed personally to the Court and served
personally to the parties for pleadings subsequent to the complaint

• Additional requirements include:

• Proof of service
• Roll of attorney’s number
• Professional tax receipt number
• IBP Official Receipt number
• MCLE Compliance certificate number and date of issue

WHAT IS THE SIGNIFICANCE OF COUNSEL’S

SIGNATURE IN A PLEADING?

• signature of counsel constitutes an assurance by him:

• that he has read the pleading;
• that, to the best of his knowledge, information and belief, there is a good ground to
support it; and
• that it is not interposed for delay.
• PARTY CAN SIGN A PLEADING.
• COUNSEL CAN DELEGATE SIGNING TO ANOTHER LAWYER BUT
NOT TO A NON-LAWYER

WHAT IS THE EFFECT OF A PLEADING SIGNED

BY A NON-LAWYER?

• A pleading signed by a non-lawyer is an unsigned

pleading which
produces no legal effect. It is as if the pleading was not filed in court.
• Such pleading can be stricken out pursuant to Sec. 12, Rule 8.

PLEADINGS IN WHICH CERTIFICATION IS

REQUIRED

• It is required in a complaint or other initiatory pleading asserting

a claim for relief
• Certification not required in appeal.

FACTS REQUIRED TO BE STATED IN THE CERTIFICATION

AGAINST FORUM SHOPPING:
• Party has not commenced any action or filed any claim involving the same issues in
any court, tribunal or quasi-judicial agency and to the best of his knowledge, no such other
action or claim is pending therein
• If there is such other pending action or claim, a complete statement of the present
status thereof
• If should thereafter learn that the same or similar action has been filed or pending,
he shall report that fact within 5 days therefrom to the court.

PARTY WHO SHOULD SIGN THE CERTIFICATION AGAINST

FORUM SHOPPING

• Sec. 5, Rule 7: the plaintiff or principal party shall sign the certification. Thus, all
plaintiffs or principal parties must sign the certification; otherwise, those who did not sign
will be dropped as parties to the case.

• If the party is a corporation, the certification should be signed by its duly authorized
officer pursuant to Section 23, in relation to Sec. 25 of the Corporation Code.
• The certification should be accompanied be a Secretary’s Certificate or Board
Resolution showing the authority of the officer to sign the certification.
• Failure to attach the proof of authority shall merit the dismissal of the complaint or
petition.

• EXCEPTION:
• When the merits of the petition justify the relaxation of
the rule
(Kaunlaran Lending v. Uy, GR 154974, February 4, 2008).
• When it is signed by an officer who is in a position to verify the truthfulness and
correctness of the allegations in the petition such as the Chairman of the Board, President,
General Manager, Personnel Officer (Mid-Pasig Land v. Mario Tablante, GR No. 162924,
February 4, 2010).

EFFECT OF FAILURE TO COMPLY WITH THE

RULE ON CERTIFICATION

• If no certification is attached to an initiatory pleading, the case shall be dismissed

without prejudice unless otherwise provided upon motion and after hearing.
• Submission of a false certification and non-compliance
with the
undertakings therein shall constitute indirect contempt of court.
• This should be distinguished from the effect of a willful and deliberate forum
shopping which shall be a ground for dismissal with prejudice and shall constitute direct
contempt.

Distinction between violation of the rule on certification and willful

forum shopping is:
(Madara v. Hon. Perello , GR No. 172449, August 20, 2008)

Violation of the rule on certification Willful forum shopping

Both are grounds for dismissal
• Dismissal shall be upon motion
and only after hearing, • Dismissal can be done motu
proprio and summarily
• dismissal is without prejudice unless otherwise provided • dismissal is with
prejudice
• constitutes indirect contempt • constitutes direct contempt of
court

CERTIFICATION AGAINST FORUM-SHOPPING

The Supreme Court enumerated the ways by which forum shopping

may be
committed, thus:
(1) filing multiple cases based on the same cause of action and with the same prayer,
the previous case not having been resolved yet (where the ground for dismissal is litis
pendentia);
(2) filing multiple cases based on the same cause of action and the same prayer, the
previous case having been finally resolved (where the ground for dismissal is res judicata);
and
(3) filing multiple cases based on the same cause of action, but with different prayers
(splitting of causes of action, where the ground for dismissal is also either litis pendentia or
res judicata)
(Chua v. MetroBank, G.R. No. 182311, 19 August 2009, 596 SCRA 524, 535-536).

How is a pleading verified?

• A pleading is verified by an affidavit that the affiant has read the pleading and that
the allegations therein are true and correct of his personal knowledge or based on
authentic records.
• A pleading required to be verified which contains a verification based on
“information and belief” or upon “knowledge, information and belief,” or lacks a proper
verification, shall be treated as an unsigned pleading.

• If a corporate officer verifies, he must be clothed with authority from the

corporation.

• However, in Mid Pasig Land v. Tablante, G.R. No. 162924, 4 February 2010, the
Supreme Court explained that “the following officials or employees of the company can sign
the verification and certification without need of a board resolution:
(1) the Chairperson of the Board of Directors,
(2) the President of a corporation,
(3) the General Manager or Acting General Manager,
(4) Personnel Officer, and
(5) an Employment Specialist in a labor case.”

RULE 8
MANNER OF MAKING ALLEGATIONS

PLEADING REQUIREMENT UNDER THE RULES OF COURT

• ONLY ULTIMATE FACTS SHALL BE ALLEGED
• Section 1 of Rule 8 declares that every pleading, including, of course, a complaint,
"shall contain in a methodical and logical form, a plain, concise and direct statement of the
ultimate facts . . . omitting the statement of mere evidentiary facts."

WHAT ARE ULTIMATE FACTS?

• Ultimate facts are the essential and substantial facts which form the basis of the
primary right and duty or which directly make up the wrongful acts or omissions of the
defendant.
• Evidentiary facts are those which tend to prove or establish said ultimate facts.

What facts may be averred generally in a pleading?

(a) performance of conditions precedent (Sec. 3)

(b) Malice,Intent, Knowledge, or Other Condition of the Mind of
a Person (Sec. 5)

What must be averred with PARTICULARITY?

(a) Fraud, mistake, or circumstances surrounding fraud or mistake (Sec. 5)
(b) Facts showing the capacity of a party to sue or be sued; authority of a party to sue or
be sued in a representative capacity; legal existence of an organized association of persons
(Sec. 4)
• A party desiring to raise an issue as to the legal existence of any party or capacity to
sue or be sued in a representative capacity, shall do so by SPECIFIC DENIAL and SHALL
INCLUDE SUCH SUPPORTING PARTICULARS AS ARE PECULIARLY WITHIN THE PLEADER’S
KNOWLEDGE

WHAT IS AN ACTIONABLE DOCUMENT?

• A document that serves as basis of the plaintiff’s cause of action or defendant’s

defense must be attached to the complaint or answer, as the case may be.

Failure to attach the document to the complaint will be dismissed for failure to state a
cause of action or the answer will have no leg to stand on (Malayan Insurance v. Regis, GR
172156, November 23, 2007).

In that case, the plaintiff filed a complaint for collection in its capacity as subrogee but it
failed to attach to its complaint the document that serves as basis of its right to
subrogation, i.e., the marine insurance policy. The SC held that its failure to do so casts an
irremissible cloud on the substance of its very cause of action.

• An actionable document must be set forth in pleading

in two
ways:

1. ATTACHMENT: The substance of the actionable document shall be set forth in the
pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit
(Annex).

2. COPYING IN. A copy of the actionable document (in its entirety) is set forth in the
pleading.

What are considered admitted?

• By the admission of the genuineness and due execution of an instrument, as
provided in this section, is meant that the party whose signature it bears admits:

(a) that he signed it or that it was signed by another for him with his authority;
(b) that at the time it was signed it was in words and figures exactly as set out in the
pleading of the party relying upon it;
(c) that the document was delivered; and that any formal requisites required by law,
such as a seal, an acknowledgment, or revenue stamp, which it lacks, are waived by him.

(See Hibberd v. Rohde, G.R. No. 8418, 9 December 1915)

The following defenses are therefore barred:

(a) that the signature is a forgery (Puritan Mfg. Co. v. Toti & Gradi, 14 N. M., 425; Cox v.
Northwestern Stage Co., 1 Idaho, 376; Woollen v. Whitacre, 73 Ind., 198; Smith v. Ehnert,
47 Wis., 479; Faelnar v. Escaho, 11 Phil. Rep., 92);
(b) or that it was unauthorized, as in the case of an agent signing for his principal, or
one signing in behalf of a partnership (County Bank v. Greenberg, 127 Cal., 26; Henshaw v.
Root, 60 Ind., 220; Naftzker v. Lantz, 137 Mich., 441), or of a corporation (Merchant v.
International Banking Corporation, 6 Phil. Rep., 314; Wanita v. Rollins, 75 Miss., 253; Barnes
v. Spencer & Barnes Co., 162 Mich., 509);

(c) or that, in the case of the latter, that the corporation was not
authorized under its charter to sign the instrument
(d) or that the party charged signed the instrument in some other capacity
than that alleged in the pleading setting it out
(e)or that it was never delivered (Hunt v. Weir, 29 Ill., 83; Elbring v. Mullen 4 Idaho, 199;
Thorp v. Keokuk Co., 48 N. Y., 253; Fire Association of Philadelphia vs: Ruby, 60 Neb., 216)

The following defenses are NOT bared:

• Fraud
• mistake
• compromise
• payment
• prescription
• estoppel
• want of consideration.

When oath is NOT required:

• The requirement of a specific denial under oath will not apply in either of the
following cases:
(a) When the adverse party does not appear to be a
party to the
instrument, or
(b) When compliance with an order for an inspection of the original
instrument is refused (Sec. 8, Rule 8, Rules of Court).

An actionable document may be attached in an Answer. In such a case, the Plaintiff has to
file a Reply under oath, otherwise, the document will be deemed admitted (Casent Realty v.
Philbanking, G.R. No. 150731, 14 September 2007)

HOW TO DENY ALLEGATIONS IN THE

COMPLAINT?
• Each allegation of fact has to be denied specifically
• Modes of specific denial
• By specifying the allegation that is denied and whenever
practicable stating the allegations supporting the denial
• By specifying a part of the allegation that is true and denying the remainder thereof
• By stating that defendant is without knowledge or
information
sufficient to form a belief as to the truth of the allegation

HOW TO MAKE A SPECIFIC DENIAL?

• What is a “negative pregnant” denial? How do you avoid making a
negative pregnant denial?

Each allegation of fact must be specifically denied. Where the allegation of fact is qualified,
both the allegation and the qualification must be specifically denied. If an allegation
contains more than one thought or conveys more than one idea or fact, the allegation must
be dissected and divided into separate allegations of facts and each allegation of fact must
be specifically denied. Otherwise, the denial is a negative pregnant, i.e., a denial pregnant
with the admission of substantial facts (Republic v. SB, GR No. 152154, July 15, 2003).

Examples of Negative Pregnant:

“(a) The defense alleges: “I had never borrowed money from the plaintiff from 2011 to
2013,” may imply that the pleader had borrowed money at some other time and was only
denying that he did so during the years mentioned.

(b) A complaint alleges: “Plaintiff extended a loan to Defendant in the amount of

P500,000 on July 27, 2016 in Baguio City.” The defendant, In his answer, alleges:
“Defendant specifically denies that Plaintiff extended a loan to Defendant in
the amount of P500,000 in Baguio City.”

(c) The plaintiff alleged that the defendant evicted the lawful occupants of the
property by intimidating them with an assault rifle. The defendant alleged in his answer:
“Defendant denies vigorously that he used or brandished an assault rifle against the
plaintiffs.” The answer could be an admission of having intimidated the plaintiffs but not
through the use of an assault rifle.” (RIANO, Civil Procedure, Vol. 1, 2016 ed.)

WHEN IS “LACK OF KNOWLEDGE” FORM OF DENIAL

CONSIDERED AN EFFECTIVE DENIAL?

• When the facts to which defendant claims to have no knowledge are not within the
knowledge or control of the defendant nor are they readily accessible to him. (Republic v.
SB, GR No. 152154, July 15, 2003). (Warner Barnes v. Reyes, GR L-9531, May 14, 1958).

WHAT IS THE EFFECT OF FAILURE TO SPECIFICALLY

DENY UNDER OATH AN ACTIONABLE DOCUMENT?

• Genuineness and due execution of the document will be

deemed
admitted.
• Genuineness merely refers to the fact that the signatures were not falsified and/or
whether there was no substantial alteration to the document. While due execution refers to
whether the document was signed by one with authority.

But the defendant is not precluded from presenting evidence to refute the facts stated in
the documents. (Casent Realty v. Philbanking Corp, GR No. 150731, September 14, 2007).

RULE 9
EFFECT OF FAILURE TO PLEAD

WHAT IS THE EFFECT OF FAILURE TO RAISE DEFENSES AND

OBJECTIONS IN A MOTION TO DISMISS OR ANSWER?

• Under Section 1, Rule 9, defenses and objections that are not timely
raised in a motion to dismiss or answer are deemed waived.
EXCEPTIONS: The following defenses are not deemed waived even if they
are not raised in a motion to dismiss or answer:
• Lack of jurisdiction over the subject matter
• Litis pendencia – there is another action pending between the same parties for the
same cause
• Res Judicata – the action is barred by a prior judgment
• Prescription – the action is barred by statute of limitations

• Instances where the court can motu proprio dismiss an action:

• In addition to the four grounds above, the court can also dismiss motu proprio when
there is willful and deliberate violation of the rule on forum shopping

WHAT IS THE EFFECT OF FAILURE TO SET UP COMPULSORY COUNTERCLAIM OR

CROSS-CLAIM IN THE ANSWER?

• Section 2, Rule 9 states that they shall be barred if not set up in the
Answer.
• What are barred are claims existing at the time of the filing of Answer (BDO V. CA,
GR No. 160354, August 25, 2005).

When is a defendant declared in default?

1. Fails to file an answer within the time allowed

2. Failure to file pre-trial brief (defendant)
3. Failure to appear at pre-trial (defendant)
4. Failure to comply with discovery (Rule 29)

NOTE: Non-appearance of defendant and counsel at an ordinary hearing is NOT a ground

for default (Monzon v. Relova, G.R. No. 171827, 17 September 2008)

ORDER DECLARATION OF DEFAULT CAN BE MADE ONLY

UPON MOTION
• The court cannot motu proprio declare defendant in default. If no motion to declare
a defendant in default, no default order should be issued by the court. (Santos v. PNOC, GR
170943, September 23, 2008).

EFFECT OF ORDER OR DECLARATION OF DEFAULT

• The court may render judgment on the basis of the allegations and relief prayed for
in the complaint or it may require the plaintiff to present evidence.

• If the court requires plaintiff to submit evidence, the defaulting party

may not take part in the trial.
• The defaulting party is entitled to notice of subsequent proceedings.
(Santos v. PNOC, GR 170943, September 23, 2008).
• Being declared in default does not constitute a waiver of rights except
that of being heard and of presenting evidence in the trial court

REMEDIES AVAILABLE TO A PARTY DECLARED

IN DEFAULT:
• Before judgment, file a verified motion to set aside order of default on the ground
that the failure to file answer was due to fraud, accident, mistake or excusable negligence
and that he has a meritorious defense (Sec. 3 (b), Rule 9)
• After judgment but before finality, file a motion for new trial under Sec. 1 (a) of Rule
37 or appeal under Sec. 2 Rule 41 on the ground that the judgment is contrary to evidence
or the law
• After finality of judgment, file a petition for relief under Section of Rule 38

EXTENT OF RELIEF THAT CAN BE AWARDED IN A JUDGMENT BY DEFAULT

• It shall not exceed the amount prayed for

• It shall not be different in kind from that prayed for
• It shall not award unliquidated damages (Sec. 3, Rule 9)

WHEN IS THERE PARTIAL DEFAULT?

• Where there are several defendants, some of whom answer and the others fail to do
so, the court can proceed to render judgment against the defaulting parties.

• Example – A,B and C are joint debtors. Only A answers. B and C can be declared in
default.
• However, when the complaint asserts a common cause of action against all the
defendants, the court shall try the case against all upon the answers thus filed and render
judgment upon the evidence presented.
• Example: A,B and C are solidary debtors. Only A answers. Case will be
decided based on A’s answer and evidence.

NO DEFAULT IN CERTAIN CASES:

• Action for annulment or declaration of nullity of marriage

• Legal separation
• Summary Procedure

Rule 10 – Amended and Supplemental Pleadings

When are amendments a matter of right?

• Amendments are matter of right when they are filed before a responsive pleading is
served, or in the case of a Reply, within 10 days after it is served. What is material is date of
service of responsive pleading, not date of filing.
• Amendment as a matter of right can only be done ONCE. Subsequent amendments
even if filed before a responsive pleading is served require leave of court.

An amendment can introduce a new cause of

action or alter the theory of the case
• An amendment may change or alter a cause of action. (no prohibition against this
under the 1997 Rules of Court) Thus, when an original complaint simply prayed for
Injunction, and it was amended to include “Reformation of Instrument”, the amendment
was still allowed (PPA v. Go thong and Aboitiz, G.R. No. 158401, 28 January 2008)

Can an amendment be done to cure a

jurisdictional error?

• Yes, if it was done before responsive pleading because court has not exercised any
jurisdiction yet. However, if there has already been a responsive pleading filed, the court
cannot grant a substantial amendment which intends to grant jurisdiction (Rosario v.
Carandang, G.R. No. L-7076, 28 April 1955).

• If the original complaint stated a premature cause of action, the accrual of the cause
of action subsequently cannot be the basis for an amendment (Swagman v. Court of
Appeals, G.R. No. 161135, 8 April 2005).
• A motion to Dismiss is NOT a responsive pleading. Hence, if a Complaint was
amended after a Motion to Dismiss was filed, it can still be amended as a matter of right
(Bautista v. Mayamaya, G.R. No. 148361, 29 November 2005; Marcos-Araneta v. Court of
Appeals, G.R. No. 154096, 22 August 2008)

Amendment of pleading can be made after dismissal provided it is filed before the finality of
the dismissal

• Plaintiff may file an amended complaint even after the original complaint was
ordered dismissed provided that the order of dismissal is not yet final (Bautista v. Maya
Maya, GR No. 148361, November 29. 2005).

Effect of amended pleadings

• The amended pleading supersedes the original pleading.
• The settled rule is that the filing of an amended pleading does not retroact to the
date of the filing of the original; hence, the statute of limitation runs until the submission of
the amendment (Wallem Philippines v. SR Farms, G.R. No. 161849. July 7, 2010).
• Admission made in the original pleading may be received in evidence
against the pleader
• Claims and defenses alleged in the original pleading which are not incorporated in
the amended pleading are deemed waived.

Supplemental pleadings

• Should be filed with leave of court

• Must allege facts – transactions, occurrences, or events – which have
happened since the date of the filing of the original pleading.
• Filing fees on additional claims alleged in a Supplemental Complaint must be paid
(Do-All Metal v. Security Bank, G.R. No. 176339, January 10, 2011). In that case, the SC
deleted the award of actual damages as prayed for in the Supplemental Complaint for
failure of the plaintiffs to pay the required filing fees.

Rule 11 – When to File Responsive Pleadings

Period for filing answer

• 15 days unless a different period is fixed by the court.
• If a motion to dismiss is denied, period is the balance of the 15-day period which
shall not be less than 5 days from receipt of the denial (Sec. 4, Rule 16).
• Period to file answer under Summary Rules is 10 days
• If motion for bill of particulars is filed, period is the balance of the 15- day period
which shall not be less than 5 days from service of the bill of particulars or amended
complaint or notice of denial of motion.

• Where the defendant is a foreign corporation and summons was served on it

through a government official designated by law, period is 30 days after receipt of
summons by such entity (Sec. 2, Rule 11).
• Where the defendant is a foreign corporation and extra-territorial service of
summons is made, period is “reasonable time” as may be determined by the court which
shall not be less than 60 days from receipt of summons (Sec. 15, Rule 14).
• Answer to Amended Complaint/Counterclaim/Cross-claim/Third- party Complaint
o 15 days from service for amended pleading filed as a matter of right
o 10 days from receipt of order for amended pleading filed with leave of court

• Answer to Counterclaim/Cross-claim – 10 days from service

• Answer to Supplemental Complaint – 10 days from
notice of Order admitting the same, unless a different period is fixed by the court
• Answer to Complaint-in-Intervention – 15 days from
notice of the
order admitting the same.
• Period for compliance with order for bill of particulars – 10 days from
notice of Order

Answer to original complaint deemed answer to amended/supplemental complaint

• Where plaintiff filed an amended complaint or supplemental complaint and

defendant failed to file answer thereto, the defendant cannot be declared in default if it
filed an answer to the original complaint.
o The answershall serve as the answerto the amended/supplemental
complaint.

Counterclaim and cross-claim arising after filing of answer

• Before judgment, the counterclaim or cross-claim may be
presented by supplemental pleading.
• After judgment, it may be asserted in a separate action.

Omitted counterclaim/cross-claim

• Effect of failure to assert a compulsory counterclaim and cross-claim in Answer:

defendant shall be barred from asserting such claims.
• (Sec. 10, Rule 11)

Where deadline falls on a Saturday, Sunday, or legal holiday

• Sec. 1, Rule 22 provides that where the last day of the period for doing an act as
provided by law falls on a Saturday, a Sunday or a legal holiday in the place where the court
sits, the time should not run until the next working day. (Alarilla v. Ocampo, GR No. 144697,
December 10, 2003).
• When the deadline falls on a holiday or weekend, an extension can be filed the next
working day but should count the extended period from original deadline (Montajes v.
People, G.R. 183449, 12 March 2012)

Rule 12 – Bill of Particulars

• When the causes of action alleged in the complaint are vaguely or obscurely pleaded
such that there is a need to clarify the basis of the action so that defendant can intelligently
prepare a responsive pleading. (Bantillo v. IAC,
G.R. No. 75311 October 18, 1988).

• Plaintiff filed a complaint for reconveyance for herself as a surviving heir and in
representation of other heirs of the owner of the property in question.

• Defendant filed a motion for bill of particulars seeking the identity of the other heirs
which she seeks to represent and her authority for representing them.

• HELD: The filing of a motion for Bills of Particulars is proper as the complaint failed
to allege a factual matter which, under the Rules, must be alleged or pleaded, i.e., identity
of alleged co-heirs and co-plaintiffs is necessary for a proper defense.

When to file a motion for a bill of particulars?

• COMPLAINT alleged that defendants acted in “unlawful concert”.

• Defendant filed a motion for a bill of particulars, for clarification on the specific
nature, manner and extent of his participation in the acquisition of the assets cited.
(Republic v. SB, G.R. No. 148154, December 17, 2007).
• SC ruled that this is proper for Bill of Particulars.

Order for bill of particulars

• The order may direct the adverse party (a) to file a bill of particulars, or (b) to make
the pleading referred to in the motion more definite and certain, either by amending or
supplementing the same. (Bantillo v. IAC, G.R. No. 75311 October 18, 1988).

What is the effect of the failure to comply

with an order for bill of particulars?
• Sec. 4, Rule 12 provides that the court may:
1. Order the striking out of the pleading or the portions thereof or
2. Make such other order as it deems just.
Rule 13 – Filing and Service of Pleadings,
Judgments, and other papers

What are the modes of filing of pleadings, orders, or judgments?

1. Personal Filing – by presenting the originals personally to the clerk

of court
2. Registered Mail – date of mailing shall be considered as the date of their filing

What is the rule on filing of pleadings, orders,

or judgments?

• The rule is that filing of pleadings shall be done personally. If filing is done by
registered mail, a written explanation must be included in the pleading why filing was not
done personally (Sec. 11, Rule 13).

What are the modes of service of pleadings, orders, or judgments?

1. Personal Service - by delivering personally a copy to the party or counsel or by
leaving a copy at his office with a person having charge thereof or if not available, at his
residence with a person of sufficient age and discretion residing therein.
2. Registered Mail
3. Ordinary Mail - if no registry service is available in the locality of either the sender or
the addressee
4. Substituted Service - by delivering a copy to the clerk of court, with proof of failure
of both personal service and service by mail.

What is the rule on service of pleadings,

orders, or judgments?

• The rule is service shall be done personally. Service by mail must be accompanied by
a written explanation why service was not done personally.
• Sec. 11, Rule 13 provides that a violation of the
rule may cause to consider the paper as not filed.

Proof of filing
• Best evidence is the existence of a pleading in the record of the case.
• If a pleading is not in the record:
• Proof of personal filing
othe writtenor stamped acknowledgement of its filing by the
clerk of court.
• Proof of filing by registered mail –
othe registry receipt and the affidavit of the person who mailed.

Proof of service
• Proof of personal service – written acknowledgement of the party served or affidavit
of service of the person who served, or official return of the server
• Proof of service by ordinary mail – Affidavit of service of the person who mailed
• Proof of service by registered mail – Affidavit of service and registry receipt issued
by the Post Office. In one case, the SC held that "it is the registry receipt issued by the
mailing office and the affidavit of the person mailing, which proves service made through
registered mail." Absent one or the other, or worse both, there is no proof of service.
(Republic v. Resins, G.R. No. 175891, January 12, 2010).

• Filing or Service by Courier is NOT one of the accepted modes of filing service (Heirs
of Miranda v. Miranda, G.R. No. 179638, 8 July 2013; Palileo v. Planters Development Bank,
G.R. No. 193650, 8 October 2014)
• For Requests for Admission under Rule 26, service to PARTY and not just
to counsel, is required.
• When party is represented by counsel, it is service to counsel that is considered as
proper service. (Delos Santos v. Elizalde, G.R. No. 141810 and 141812, 2 February 2007)
• IMPORTANCE OF PROPER FILING AND SERVICE: This is considered as the
reckoning period for compliance with/counting of, reglementary periods
• A pleading not served is also deemed as not filed.

What is notice of lis pendens?

• A Notice of Lis Pendens is a notice of the pendency of an action affecting title to or

possession of property that is recorded by plaintiff in the Registry of Deeds. It serves as
constructive notice of the pendency of the action to purchasers of the property affected by
the notice.

Party affected by lis pendens

• A notice of lis pendens affects a purchaser or a transferee of the property while the
action is pending. He is bound by any judgment which may be rendered for or against the
transferor (defendant) and his title is subject to the results of the pending litigation.
• It does not affect the title of one who is not a party to the case. A notice of lis
pendens concerns litigation between a transferor (defendant) and a third party (plaintiff),
where the transferee who acquires property while the action is pending stands in the shoes
of the transferor and his title is subject to the results of the action. (Spouses Vicente v.
Avera, G.R. no. 169970, January 20, 2009)

Rule 14 - Summons

What are the modes of service of summons?

1. Personal Service - by handing a copy of summons to the defendant in person or by

tendering it to the defendant if he refuses to accept and sign for it.
2. Substituted Service - by leaving a copy at the defendant’s residence with a person of
suitable age and discretion residing therein or at the defendant’s office or place of business
with a person in charge thereof.
3. Constructive Service – e.g., by publication in a newspaper of general
circulation
4. Extra-territorial Service – service of summons abroad

What are the requirements of substituted service?

1. Impossibility of prompt personal service

o i.e., it must be shown that defendant cannot be served promptly or there is impossibility
of prompt service within a reasonable time, i.e., the sheriff must show several attempts for
personal service of at least three times on at least two different dates

2. Specific details in the return

oi.e., the sheriff must describe in the Return of Summons the facts and circumstances
surrounding the attempted personal service
3. Substituted service effected on a person of suitable age and discretion residing at
defendant's house or residence; or on a competent person in charge of defendant's office
or regular place of business (Garcia v. SB, GR 170122, October 12, 2009).

Substituted service

• In substituted service, it is not necessary that the person in charge of the

defendant's regular place of business be specifically authorized to receive the summons. It
is enough that he appears to be in charge. (Guanzon v. Arradaza, GR 155392, December 6,
2006).
• Substituted service to a representative of a law firm who claims to be the
defendant’s counsel is ineffective. (Potenciano v. Barnes, GR 159421, August 20, 2008).

What are the 2 modes for effecting

substituted service of summons?

1. By leaving copies of the summons at the defendant’s residence with some person of
suitable age and discretion then residing therein, or
2. by leaving the copies at defendant's office or regular place of
business with some competent person in charge thereof.

When does extraterritorial service apply?

• Extraterritorialservice of summons applies only where action is in
rem or quasi in rem, but not if an action is in personam (Perken Elmer
v. Dakila Trading, G.R. No. 172242. August 14, 2007).
o EXCEPTIONS:
1. Extraterritorial service applies even in action in personam in case of foreign
corporations under the amendment to Sec. 12, Rule 14.

2. It also applies even in actions in personam against residents who are temporarily out
of the Philippines.

When does extraterritorial service apply?

• In short, extraterritorial service applies in the following:

1. Actions in rem and quasi in rem against any defendant, whether
individuals, domestic juridical entity or foreign juridical entity;
2. In personam actions against foreign corporations;
3. In personam actions against residents who are temporarily out of the Philippines.

When can constructive notice by publication be resorted to?

1. Actions in rem and quasi in rem againstany defendant,
whether
individuals or foreign corporation;
2. In personam actions against foreign corporations;
3. In personam actionsagainstresidents who are temporarily out
of the Philippines; and
4. In personam actionsagainsta defendant whose identity or
whereabouts is unknown.

Rule on service of summons

• The rule on service of summons depends on the nature of the action and whether
the defendant is an individual, domestic juridical entity or foreign juridical entity.
• Where the defendant is an individual and the action is in personam, the general rule
is PERSONAL SERVICE or SUBSTITUTED SERVICE, when appropriate.

oExceptions are:
1. When defendant or his whereabouts is unknown (Sec. 14, Rule 14)
and
2. When defendant is a Philippine resident temporarily out of the Philippines (Sec. 16),
where CONSTRUCTIVE NOTICE and EXTRA- TERRITORIAL SERVICE may be resorted.
• Where the defendant is an individual and the action is in rem or quasi in rem,
PERSONAL SERVICE, SUBSTITUTED SERVICE, CONSTRUCTIVE NOTICE OR EXTRA-TERRITORIAL
SERVICE may be resorted to.

• Where the defendant is a domestic juridical entity, the rule is PERSONAL SERVICE OR
SUBSTITUTED SERVICE on the officers enumerated under Section 11, Rule 14. Exception is
where the identity of the defendant corporation is unknown such unknown owner of a
property that caused damage.
• Where the defendant is a foreign juridical entity that has transacted business in the
Philippines, EXTRATERRITORIAL SERVICE may be resorted to regardless of the nature of the
action. PERSONAL SERVICE can also be made.

Service on individuals as defendants

• When the action is in personam, service must be made on the individual within the
Philippines, either by personal service or substituted service, when appropriate. If the
defendant is a non- resident, summons cannot be served on him and the court cannot
acquire jurisdiction over him. (Gomez v. CA, GR 127692, March 10, 2004).
o Exception is where the defendant or his whereabouts is unknown or a resident who is
temporarily outside of the Philippines.

Service on individuals as defendants

• Where the action is in rem or quasi in rem, service of summons by publication or

personal service abroad may be availed of (Sec. 17, Rule 14)
• Defect in the service of summons on defendant individual will not invalidate the
proceedings and judgment. HOWEVER, the defect will preclude the court from rendering a
judgment on the personal liability of the defendants. (San Pedro v. Ong, GR 177598,
October 17, 2008).
• A defendant whose identity or whereabouts is unknown may be served by
publication regardless of the nature of the action. I submit that the law presumes that he is
a resident.

Service on individuals as defendants

• A resident temporarily out of the Philippines may be served by personal service

abroad or by publication (Sec. 19, Rule 14). But if the defendant is no longer residing and is
already abroad at the time of the service of summons even if he was still residing in the
Philippines 5 months before the date of service of summons, this rule will not apply
(Arcenas v. CA, GR No. 130401, 4 December 1998). The SC ruled in that case that
“residence” is determined at the time of service of summons.
• In addition to that provided under Sec. 19, substituted service may also be resorted
to (Montefalcon v. Vasquez, G.R. No. 165016. June 17, 2008; (PCIB v. Alejandro, G.R. No.
175587. September 21, 2007).

To whom should service on a domestic

juridical entity be made?
1. President
2. Managing Partner
3. General Manager
4. Corporate Secretary
5. Treasurer
6. In-house counsel

• Service of summons to someone other than the corporation's president, managing

partner, general manager, corporate secretary, treasurer, and in-house counsel, is not valid
(Paramount Insurance v. Ordonez, G.R. No. 175109, August 6, 2008).

• The enumeration under the new rule is restricted, limited and exclusive, following
the rule in statutory construction that expressio unios est exclusio alterius. The doctrine of
substantial compliance has already been overturned by Villarosa (Spouses Mason v. CA, G.R.
No. 144662, October 13, 2003).

What are the requisites for the application of the doctrine of substantial compliance?
1. There must be actual receipt of the summons by the person served, i.e., transferring
possession of the copy of the summons from the Sheriff to the person served;
2. The person served must sign a receipt or the sheriff's return; and
3. There must be actual receipt of the summons by the
corporation
through the person on whom the summons was actually served.
• The third requisite is the most important for it is through such receipt that the
purpose of the rule on service of summons is attained (Millennium v. Tan, G.R. No. 131724,
February 28, 2000).

Service on foreign corporation

• Personal service or extraterritorial service may be made on a foreign corporation

that has transacted business in the Philippines regardless of the nature of the action (Sec.
12, Rule 14, as amended).
• For registered foreign corporations, personal service or constructive service may be
resorted to. Personal service - for service on its resident agent or any of its officers or
agents in the Philippines. Constructive notice - for service on a government official
designated by law like the SEC.

Service on foreign corporation

• For unregistered foreign corporations or foreign corporations without resident

agents, extraterritorial service of summons may be made by:
(a) personal service abroad, which must be coursed through the appropriate court in the
foreign country; (b) publication abroad and registered mail at the last known address of
defendant; (c ) facsimile or other recognized electronic means that could generate proof of
service; (d) other means as the court may direct.
• Through AM 11-3-6-SC, the SC expanded the ways by which service of summons
may be done on a foreign corporation that has transacted business in the Philippines.

Voluntary appearance
• Voluntary appearance is equivalent to service of summons.
• In a motionto dismisschallenging the jurisdiction of the
court, the
inclusion of other grounds does not constitute voluntary appearance.
• The filing of a motion or pleading seeking an affirmative relief constitutes or is
tantamount to voluntary appearance. In a case wherein defendants filed a "Motion for
Inhibition without submitting themselves to the jurisdiction of this Honorable Court"
subsequent to their filing of a "Motion to Dismiss (for Lack of Jurisdiction), the SC held that
defendants sought affirmative relief other than the dismissal of the case and thus have
manifested their voluntary submission to the court's jurisdiction (Philippine Commercial
International Bank v. Dy Hong Pi, G.R. No. 171137, June 5, 2009).

What does NOT constitute voluntary

appearance?
• The filing of pleadings by defendant solely for special appearance with the purpose
of challenging the jurisdiction of the court over his cannot be deemed as voluntary
appearance and submission to the jurisdiction of the court (Garcia v. SB, GR 170122,
October 12, 2009).
• Filing of an Answer ad cautelam with compulsory counterclaim cannot be
considered as voluntary appearance of petitioner before the RTC. (Perken Elmer v. Dakila
Trading, G.R. No. 172242. August 14, 2007).

Rule 15 - Motions

Notice of hearing

• The requirement of a notice of hearing, which should indicate the date and time of
hearing and the 3-day notice rule, which requires the movant to ensure that the motion is
filed and served at least three (3) days before the hearing, is mandatory. Failure to strictly
comply with the requirements renders the motion fatally defective (KKK Foundation v.
Bargas, G.R. No. 163785. December 27, 2007).

Notice of hearing; defect substantially cured

• Where a motion contains a defective notice of hearing but the adverse party was
given the opportunity to file its comment thereon, the defect is substantially cured.

3-day notice rule

• Every written motion required to be heard and the notice of hearing thereof shall be
served in such a manner as to ensure its receipt by the other party at least three (3) days
before the date of hearing, unless the court for good cause sets the hearing on shorter
notice. (Camarines Sur v. Aquino G.R. No. 167691 September 23, 2008)

Notice/hearing of motion is for the benefit of

the opposing party
• The requirement of setting a motion for hearing is intended for the benefit of the
opposing party. The trial court can resolve the motion without waiting for the hearing date
provided it is not adverse to the opposing party (China Banking Corp v. Abel, G.R. No.
182547, January 10, 2011).

RULE 16
MOTION TO DISMISS

WHAT ARE THE GROUNDS FOR DISMISSAL ?

(Sec. 1, Rule 16)

• Lack of jurisdiction over the subject

matter
• Lack of jurisdiction over the person of
the defendant
• Improper venue
• Lack of legal capacity to sue
• Litis pendentia
• Res judicata
• Prescription
• Failure to state a cause of action
• Payment, waiver, abandonment,
extinguishment of claim
• Claim is unenforceable under the statute of frauds
• Failure to comply with a condition
precedent

WHAT ARE THE OTHER GROUNDS FOR

DISMISSAL ?
• Dismissal upon notice by plaintiff (Sec. 1, Rule 17)
• Dismissal upon motion by plaintiff (Sec. 2, Rule 17)
• Dismissal due to fault of plaintiff (Sec. 3, Rule 17)
• Failure of plaintiff to appear at pre-trial (Sec. 5, Rule 18)
• Failure of plaintiff to file a pre-trial brief (Sec. 6, Rule 18)
• Failure to complywith the rule on certification againstforum
shopping (Sec. 5, Rule 7)
• Commission of acts constituting willful and deliberate forum shopping
(Sec. 5, Rule 7)
• Failure to comply with an Order to implead an indispensable party (Sec. 11, Rule 3)
• Failure to comply with an Order for bill of particulars, in relation to failure of plaintiff
to comply with an order of the court (Sec. 4, Rule 12).

GROUNDS FOR DISMISSAL WHICH IF GRANTED

WOULD BAR THE REFILING OF THE SAME ACTION

• Res judicata (Sec. 5, Rule 16)

• Prescription (Id.)
• Payment, waiver, abandonment or extinguishment of claim (Id.)
• Claim is unenforceable under the Statute of Frauds (Id.)
• Dismissal upon notice by plaintiff which operates as an adjudication upon the merits
(Sec. 1, Rule 17)
• Dismissal upon motion by plaintiff when the order of dismissal states
that dismissal is with prejudice (Sec. 2, Rule 17)
• Dismissal due to fault of the plaintiff unless the
order states
otherwise (Sec. 3, Rule 17)
• Dismissal due to willful and deliberate forum shopping
• Dismissal due to failure of plaintiff to appear at pre-trial or file a pre- trial brief when
the order of dismissal states that dismissal is with prejudice.

GROUNDS FOR DISMISSAL WHICH IF

GRANTED DO NOT BAR REFILING
• Lack of jurisdiction over the subject matter
• Lack of jurisdiction over the person of the defendant
• Improper venue
• Lack of legal capacity to sue
• Litis pendencia
• Failure to state a cause of action
• Failure to comply with a condition precedent

EFFECT OF, AND REMEDY FROM, DENIAL OF

MOTION TO DISMISS
• Defendant shall file his Answer within the balance of the period for
filing the same but in no case less than 5 days.
• Remedy is to file answer and go to trial or file petition for certiorari under Rule 65 if
there is grave abuse of discretion. But as a general rule, the denial of a motion to dismiss
cannot be questioned in a certiorari proceeding under Rule 65 (Malicdem v. Flores, G.R. No.
151001, September 8, 2006).

EFFECT OF AND REMEDY FROM DISMISSAL

OR GRANT OF MOTION TO DISMISS

• Action may be re-filed except where dismissal is based on res judicata, prescription,
payment, waiver, abandonment or extinguishment of claim and claim is unenforceable
under Statute of Frauds (Sec. 5, Rule 16).
• Remedy is appeal under Rule 41 if the order of dismissal is with prejudice or petition
for certiorari under Rule 65 if the order of dismissal is without prejudice (Sec. 5, Rule 16 in
relation to Sec. 1, Rule 41).
GROUNDS FOR DISMISSAL AS AFFIRMATIVE
DEFENSES
• The grounds for dismissal under Rule 16 may be pleaded as affirmative defenses in
the Answer.
• Defendant is entitled to move for the hearing and resolution of its affirmative
defenses asserted in the Answer. The Rules provide a preliminary hearing may be held as if
a motion to dismiss had been filed in the discretion of the court. (PDI v. Hon. Alameda, G.R.
No. 160604, March 28, 2008).
• The grounds raised in a Motion to Dismiss can be repleaded in the Answer as
affirmative defenses but defendant can no longer demand for a preliminary hearing
thereon. (exception: Rasdas v. Estenor, 13 December 2005)

WHAT ARE THE REQUISITES OF RES JUDICATA

• The former judgment or order must be final

• It must be a judgment or order on the merits
• The court which rendered it had jurisdiction over the subject matter and the parties
• There must be between the first and second actions identity of parties, subject
matter and cause of action (Heirs of Abalos v. Bucal, GR No. 156224, February 19, 2008)

JUDICIAL COMPROMISE HAS THE EFFECT OF RES JUDICATA

• A judicial compromise has the effect of res judicata and is immediately executor and
not appealable (Republic v. CA, GR No. 110020, September 25, 1998).

ASPECTS OF RES JUDICATA

• ACTION COULD BE BARRED EITHER BY:
• PRIOR JUDGMENT OR
• CONCLUSIVENESS OF JUDGMENT
• "Bar by prior judgment," is the effect of a judgment as a bar to the prosecution of a
second action upon the same claim, demand or cause of action.
• "Conclusiveness of judgment," issues actually and directly resolved in a former suit
cannot again be raised in any future case between the same parties involving a different
cause of action (Francisco v. Co, G.R. No. 151339, January 31, 2006).

CONCLUSIVENESS OF JUDGMENT OPERATES AS A BAR EVEN IF THERE IS NO IDENTITY OF

CAUSE OF ACTION

ONLY SUBSTANTIAL IDENTITY OF PARTIES IS

REQUIRED
• Exact identity of parties is not necessary. Only substantial identity is necessary to
warrant the application of res judicata. The principle of res judicata may not be evaded by
the mere expedient of including an additional party to the first and second action. There is
substantial identity of parties when there is a community of interest between a party in the
first case and a party in the second case albeit the latter was not impleaded in the first case.
(Cruz v. CA, GR 164797, February 13, 2006)

PRESCRIPTION AS GROUND FOR DISMISSAL MUST BE APPARENT FROM THE ALLEGATIONS

OF THE COMPLAINT

• Prescription can effectively be used in a motion to dismiss only when the Complaint
on its face shows that indeed the action has already prescribed. If it involves evidentiary
matters requiring a full-blown trial on the merits, it cannot be determined in a motion to
dismiss. (Heirs of Dolleton v. Fil-Estate, G.R. No. 170750, April 7, 2009).

DEFENSE OF PAYMENT, WAIVER OR ABANDONMENT OF CLAIM HYPOTHETICALLY ADMITS

THE ALLEGATIONS IN THE COMPLAINT BUT THE COURT IS NOT CONFINED TO THE
ALLEGATIONS IN THE COMPLAINT

• This ground essentially admits the obligation set out in the complaint but points out
that such obligation has been extinguished, by payment, waiver or abandonment. (Dona
Rosana Realty v. Molave, GR 180523, March 26, 2010)

RULE 17 DISMISSAL OF ACTIONS

INSTANCES WHERE THE COMPLAINT MAY BE

DISMISSED DUE TO PLAINTIFF'S FAULT:

(1) if he fails to appear on the date for the presentation of his evidence
in chief;
(2) if he fails to prosecute his action for an unreasonable length of time; or
(3) if he fails to comply with the rules or any order of the court.

DISMISSAL FOR FAILURE TO PROSECUTE IS AN

ADJUDICATION ON THE MERITS

DISMISSAL UPON NOTICE BY PLAINTIFF IS

EFFECTIVE UPON ITS FILING IN COURT

• Dismissal is ipso facto upon notice. It is not filed through motion but through mere
notice. (Dael v. Spouses Benedicto, GR 156470, April 30, 2008).

DISMISSAL UPON NOTICE IS WITHOUT

PREJUDICE
• The rule is that dismissal upon notice by plaintiff is without prejudice.
• Dismissal upon notice of a case is without prejudice to the re-filing thereof.
Moreover, even if the same were tested under the rules on litis pendentia and res judicata,
the danger of conflicting decisions cannot be present, since the case was dismissed even
before a responsive pleading was filed. (Benedicto v. Lacson, GR 141508, May 5, 2010).

EXCEPTIONS:

(1) Where the notice of dismissal so provides

(2) Where the plaintiff has previously dismissed a similar case in a court
of competent jurisdiction
(3) Even where the notice of dismissal does not provide that it is with prejudice but it is
premised on the fact of payment by the defendant of the claims involved (Serrano v.
Cabrera, 93 Phil 774 1953).

2- DISMISSAL RULE

• Second Dismissal must be by Notice

• Both dismissals must be upon the instance of the plaintiff
(Ching v. Cheng, G.R. No. 175507, 8 October 2014)

EFFECT OF DISMISSAL OF COMPLAINT ON MOTION OR DUE TO FAULT OF PLAINTIFF ON

COUNTERCLAIM OR CROSS-CLAIM

• Counterclaim and crossclaim will survive the dismissal of the

complaint whether compulsory or permissive.

RULE 18
PRE-TRIAL
WHO HAS THE DUTY TO HAVE THE CASE SET
FOR PRE-TRIAL?

• Section 1 of Rule 18 of the Rules of Court imposes upon the plaintiff the duty to set
the case for pre-trial after the last pleading is served and filed.
• This duty of plaintiff is not affected by the fact that the Pre-trial Guidelines
mandates the Clerk of Court to promptly issue a notice of pre-trial.

SIGNIFICANCE OF DOCUMENTS PRESENTED AND MARKED DURING PRE-TRIAL: CAN BE

CONSIDERED AS EVIDENCE EVEN IF NOT FORMALLY OFFERED
• As a rule, documents which are not formally offered in evidence shall
not be considered.
EXCEPTION:
• When the following requisites are present:
(1) The same must have been duly identified by testimony duly
recorded and,
(2) The same must have been incorporated in the records of the
case. (Ramos v. Spouses Dizon, GR 137247, Aug 7, 2006).

WHO IS ENTITLED TO NOTICE OF PRE-TRIAL,

COUNSEL OR PARTY?

• As a rule, notice of pre-trial shall be served on counsel. A separate notice is not

required to be sent to a party as the counsel is charged with the duty of notifying his client.
• EXCEPTION: A party who has no counsel is entitled to receive a notice of pre-trial.

WHO ARE REQUIRED TO APPEAR AT PRE- TRIAL

• The parties and their counsel shall appear at the pre-trial.

• A representative may appear in behalf of a party provided that he is fully authorized
in writing to enter into an amicable settlement, submit to alternative modes of dispute
resolution, and to enter into stipulations or admission of facts and documents.

EFFECT OF FAILURE TO APPEAR AT PRE-TRIAL

• Failure of plaintiff to appear at pre-trial shall be a cause for dismissal

with prejudice unless otherwise ordered by the court.
• Failure of defendant to appear is not a ground for default but the effects of a default
are applied, i.e., the court may allow the plaintiff to present his evidence ex parte and
render judgment on the basis thereof.

EFFECT OF FAILURE TO FILE PRE-TRIAL BRIEF

• Failure of the defendant to file a pre-trial brief shall have the same effect as failure
to appear at the pre-trial, i.e., the plaintiff may present his evidence ex parte and the court
shall render judgment on the basis thereof. (Saguid v. CA, GR 150611, June 10, 2003).

RULE 19
INTERVENTION

REQUIREMENTS FOR INTERVENTION

(1) Legal interest (a) in the matter in controversy; or (b) in the success of either of the
parties; or (c) against both parties; or (d) person is so situated as to be adversely affected by
a distribution or other disposition of property in the custody of the court or of an officer
thereof;
(2) Intervention will not unduly delay or prejudice the adjudication of
rights of original parties;
(3) Intervenor's rights may not be fully protected in a separate
proceeding.

WHEN INTERVENTION SHOULD BE MADE

• As a rule, intervention is allowed at any time before rendition of judgment by the
trial court. After the lapse of this period, it will not be warranted anymore because
intervention is not an independent action but is ancillary and supplemental to an existing
litigation. (Salandanan v. Spouses Mendez, G.R. No. 160280, March 13, 2009)

EXCEPTION:
• Where intervenor was not impleaded despite being an indispensable party, and had
not known of the existence of the case before the trial court and the effect of the final
order is to deprive intervenor of his property. (Asia’s Emerging Dragon v. DOTC, G.R. No.
169914, April 18, 2008).

Rule 19:

Q: In a case where the litigant terminated the services of her counsel, and eventually
settled the case amicably on her own, can the previous counsel intervene in the pending
case to protect his contingency fee?

A: Yes. This is considered as a legal interest in the matter in litigation. (Malvar v. Kraft
Foods, Inc., 9 September 2013)

Rule 21 - Subpoena

What are the modes of service of a

subpoena?

• Service of a subpoena shall be made in the same manner as personal or substituted

service of summons (Macaspac v. Flores, A.M. No. P- 05-2072, August 13, 2008)

What are the grounds for the quashal of a

subpoena duces tecum?
1. Subpoena is unreasonable and oppressive - has a tendency to infringe on the right
against invasion of privacy. (In re: Petition for cancellation and correction of entries in the
record of birth, Lee v. CA G.R. No. 177861, July 13, 2010)
o In that case, the SC held that the grounds of
unreasonableness and oppresiveness are proper for subpoena duces tecum.
2. Relevancy of books, documents or things does not appear
3. Movant fails to advance reasonable cost of the production thereof.
(Sec. 4, Rule 21)

What are the grounds for the quashal of a subpoena duces tecum?

4. Documents not specifically described or designated

5. Documents covered by privilege like attorney-client privilige
6. Documents covered by RA 1405 or the Banks Secrecy Law, but note the exceptions
7. Documents covered by Foreign Currency Law
8. Executive Privilege

What are the grounds for the quashal of a

subpoena ad testificandum?
1. Where witness is being called to testify against his parents, other direct ascendants,
children or other direct descendants. (Sec. 25, Rule 130 on parental and filial privilege)
2. Where the witness is disqualified by reason of privileged communication – husband
and wife as to communication received in confidence during their marriage, attorney or his
secretary as to legal advice given to a client, a doctor in a civil case as to the advice or
treatment given to his patient, a priest regarding a confession made to him or a public
officer as to communication made to him in confidence (Sec. 22 – 24, Rule 130)
3. Executive privilege

What are the grounds for the quashal of a subpoena ad testificandum?

• Section 4, Rule 21 of the Rules of Civil Procedure, thus provides: The

court may quash a subpoena ad testificandum on the ground that
1. The witness is not bound thereby.

2. In either case, the subpoena may be quashed on the ground that the witness fees
and kilometrage allowed by these Rules were not tendered when the subpoena was served.

Rule 23 – Depositions Pending Action

What is a deposition?
• To depose means to get the testimony of a person.
• Depositions serve as a device for ascertaining the facts relative to the issues of the
case. The evident purpose is to enable the parties, consistent with recognized privileges, to
obtain the fullest possible knowledge of the issues and facts before civil trials and thus
prevent the said trials from being carried out in the dark. (San Luis v. Roxas, G.R. No.
159127. March 3, 2008)
• Deposition serves the double function of a method of discovery — with use on trial
not necessarily contemplated — and a method of presenting testimony (Hyatt Industrial v.
Ley Construction, G.R. No. 147143. March 10, 2006).

What is the purpose of depositions/modes of

discovery?
1. To enable the parties to a case to learn all the material and relevant
facts
2. To uncover evidence (absence of evidence)
3. To preserve evidence
4. Emphasize issues
5. Prepare our evidence (preparing opponents)
6. Pin and size up the witness and counsel (harassment value)
7. Encourage settlement(dragging case)

Depositions may be taken at any time after

the filing of the complaint

• It may be done before and after trial, before and after

appeal,and
even during execution of the judgment.
• Depositions may be taken at any time after the institution of any action, whenever
necessary or convenient provided jurisdiction has been obtained over the defendant or
property subject of the action.

A deposition cannot be refused on the ground that it would violate the right against
self-incrimination of the deponent

• Thus, for a party in a civil case to possess the right to refuse to take the witness
stand, the civil case must also partake of the nature of a criminal proceeding. ( Rosete v.
Lim, G.R. No. 136051. June 8, 2006)
Delay is not a valid ground to refuse deposition

• While speedy disposition of cases is important, such consideration however should

not outweigh a thorough and comprehensive evaluation of cases, for the ends of justice are
reached not only through the speedy disposal of cases but more importantly, through a
meticulous and comprehensive evaluation of the merits of the case. (Hyatt Industrial v. Ley
Construction, G.R. No. 147143. March 10, 2006)

Availability of deponent to testify is not a ground to refuse deposition. Taking of deposition

is different from the use of deposition on trial

• The availability of the proposed deponent to testify in court does not constitute
"good cause" to justify the court's order that his deposition shall not be taken. That the
witness is unable to attend or testify is one of the grounds when the deposition of a witness
may be used in court during the trial. But the same reason cannot be successfully invoked to
prohibit the taking of his deposition.

Taking of deposition is different from the use

of deposition on trial

• The right to take statements and the right to use them in court have been kept
entirely distinct. The utmost freedom is allowed in taking depositions; restrictions are
imposed upon their use.

Taking of deposition is different from the use

of deposition on trial
• . . . [U]nder the concept adopted by the new Rules, the deposition serves the double
function of a method of discovery — with use on trial not necessarily contemplated — and a
method of presenting testimony. Accordingly, no limitations other than relevancy and
privilege have been placed on the taking of depositions, while the use at the trial is subject
to circumscriptions looking toward the use of oral testimony wherever practicable. (Hyatt
Industrial v. Ley Construction, G.R. No. 147143. March 10, 2006)

What are the forms of depositions?

1. Oral Examination
2. Written Interrogatories

When is leave of court necessary?

• As a rule, leave of court is not necessary before deposition may be

taken in pending actions.
o EXCEPTIONS:
1. Before service of answer: Leave of court is necessary because issues are not yet
joined and the disputed facts are not clear.
2. Deposition before action as when a person desires to perpetuate his own or that of
another person (Sec. 1, Rule 24)
3. Deposition pending appeal or before taking of appeal as when a party desires to
perpetuate testimonies of witnesses for use in the event of further proceedings (Sec. 7, Rule
24)

Scope of examination in deposition: Any

relevant matter, not privileged
• What is chiefly contemplated is the discovery of every bit
of
information which may be useful in the preparation for trial, such as
1. Relevant facts that are not privileged
2. Identity and location of persons having knowledge of relevant facts
3. Existence, description, nature,custody, condition, and location
of any
books, documents, or other tangible things.
• Evidentiary matters may be inquired into and learned by the parties before trial. It is
the policy of the law that parties before trial should discover all the facts relevant to the
action, not only those known to them individually, but also those known to their
adversaries. (Republic v. SB, G.R. No. 90478, November 21, 1991)

Requirements for oral examination and

written interrogatories on a witness
1. Oral Examination - A notice of deposition upon oral examination shall be served
upon the adverse party stating (1) the time and place for the taking of deposition and (2)
the name and address of the person to be examined and the deposing officer
2. Written Interrogatories - A notice of deposition and written interrogatories shall be
served upon the adverse party stating the name and address of the deponent and the
name, address and descriptive title of the deposing officer.

Period for serving cross, re-direct, and recross interrogatories

1. Cross Interrogatories – 10 days

2. Re-direct Interrogatories – 5 days
3. Re-cross Interrogatories – 3 days

Who shall answer written interrogatories

served on juridical entities?
• Interrogatories served on a juridical entity shall be answered by
any officer competent to testify in its behalf.

What is the remedy from a notice of or order

for deposition?

• Party or deponent may move for a protection order, i.e., that it may be taken only
on written interrogatories or oral interrogatories, that certain matters shall not be inquired
into, that secret processes, developments or research need not be disclosed, to protect the
deponent from annoyance, embarrassment or oppression (Secs. 16 for oral examination
and 28 for written interrogatories).

Manner of taking depositions in the Philippines

• Deposition within the Philippines may be taken before any judge, notary public or
any person authorized to administer oaths when parties so stipulate in writing (Secs. 10 and
14, Rule 23)
• Deposing officer shall put deponent on oath and shall personally or by someone
acting under his direction and in his presence record the testimony of the witness.(Sec. 17)

Manner of taking depositions in the Philippines

• All objections made at the time of the examination to the qualifications of deposing
officer, manner of taking it, evidence presented, conduct of any party and any other
objection to the proceedings shall be noted by the deposing officer.(Sec. 17) Evidence
objected to shall be taken subject to the objections.
• In lieu of oral examination, a party may opt to submit written interrogatories to the
deposing officer who shall propound them to the witness and record the answers verbatim.
(Sec. 17)
• Certification and filing by deposing officer of deposition (Sec. 20) and notice of filing
to parties (Sec. 27)

Manner of taking depositions abroad

• Depositions in foreign countries may be taken before:

1. Secretary of embassy or legation, consul general, consul, vice consul, or consular
agent of the Republic of the Philippines;(Sec. 11)
2. Person or officer as may be appointed by commission or foreign court or tribunal
under letters rogatory; or (Sec. 11)

3. Any person authorized to administer oaths as stipulated in writing by the

parties.(Sec. 14)

What is a commission?

• Commissions are directives to officials of the issuing jurisdiction. Commissions are

taken in accordance with the rules laid down by the court issuing the commission

What is a letter rogatory?

• A letter rogatory is a request to a foreign court to give its aid, backed by its power,
to secure desired information. The methods of procedure are under the control of the
foreign tribunal. (Dulay v. Dulay, G.R. No. 158857, November 11, 2005)

What is the remedy from an unreasonable

conduct of deposition?

• At any time during the taking of deposition, a party or deponent may move for a
protective order or termination of the taking of deposition or limitation of the scope and
manner of the taking of deposition (Sec. 18)

When can a protective order be issued?

1. Examination is being conducted in bad faith

2. Examination is being conducted in such a manner as
to annoy, embarrass, or oppress the person subject to the inquiry.
3. When the inquiry touches upon the irrelevant facts
4. When the inquiry encroaches upon the recognized domains of
privilege. (Republic v. SB, G.R. No. 90478, November 21, 1991)

What is the effect of taking a deposition?

• A party taking the deposition is not bound to make the deponent his own witness.
He shall not be deemed to make the deponent his own witness for any purpose by taking
his deposition. He may opt not to use at all the deposition as evidence (Sec. 7)

Use of deposition of a party and a witness

• Deposition of a party – Adverse party may use deposition:

1. To contradict or impeach the testimony of the party;
2. For any purpose, i.e., offer it in evidence in support of its claim.

• N.B. Deposition of officer, director or managing agent of a juridical entity which is a

party to an action is considered as DEPOSITION OF A PARTY. Thus, it may be used for any
purpose.

Use of deposition of a party and a witness

• Deposition of a witness - : Any party may use deposition:
1. To contradict or impeach the testimony of the party;
2. For any purpose if the court finds:
a. That the witness is dead; or
b. That the witness is out of the province and at a greater distance than 100 kilometers
from the place of trial or hearing, or is out of the Philippines, unless it appears that his
absence was procured by the party offering the deposition; or
c. That the witness is unable to attend to testify because of age, sickness, infirmity, or
imprisonment; or
d. That the party offering the deposition has been unable to procure the attendance of
the witness by subpoena; or
e. Upon application and notice, that such exceptional circumstances exist as to make it
desirable, in the interest of justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the deposition to be used

Entire deposition may be required to be introduced

• If only part of a deposition is offered in evidence by a party, the adverse party may
require him to introduce all of it which is relevant to the party introduced, and any party
may introduce any other parts.

What is the effect of participation in deposition?

• No waiver of the right to object to its admissibility
o The act of cross-examining the deponent during the taking of the deposition cannot,
without more, be considered a waiver of the right to object to its admissibility as evidence
in the trial proper. A party is not estopped from challenging the admissibility of the
deposition just because he participated in the taking thereof. (Sales v. Sabino, G.R. No.
133154. December 9, 2005)

What is the effect of using deposition?

• The rule is the introduction in evidence of the deposition or any part thereof for any
purpose makes the deponent the witness of the party introducing the deposition (Sec. 8).

o EXCEPTIONS:
1. Where the party used the deposition to contradict or impeach the testimony of the
deponent in court;

2. When the deponent is an officer, director or managing agent of the adverse party.

What is the effect of substitution of parties and dismissal of action on the right to use
deposition?

• The rule is the right of a party to use deposition

previously taken before the substitution is binding on the substituted parties (Sec. 5)
• When an action has been dismissed and another action involving the same subject is
filed between the same parties, depositions taken in the former action may be used in the
latter as if originally taken therefor (Sec. 5)

When to raise objections to errors or irregularities in depositions?

• As to Notice of deposition – writtenobjection should be
promptly served upon the party who gave the notice.
• As to Disqualification of officer – objection should be raised before the taking of the
deposition begins or as soon thereafter as the disqualification becomes knows or could be
discovered.
• As to competency or relevance of evidence –objection may be raised when the
deposition is introduced in evidence in court unless the ground of objection might have
been obviated or removed if presented at that time

When to raise objections to errors or irregularities in depositions?

• As to manner of taking deposition, form of questions or answers, oath or

affirmation, or conduct of parties in the deposition – objection must be raised at the taking
of deposition.
• As to the form of written interrogatories – objection must be raised within the time
for filing answer to interrogatories to parties or cross- interrogatories.
• As to manner in which testimony is transcribed or deposition is prepared, signed,
certified, sealed, transmitted or filed – objections must be raised within reasonable time
from notice of such defect.

What is the effect of the failure to raise timely objections to errors or irregularities in
deposition?
• The rule is the objections are deemed waived.

oEXCEPTION: Objections to competency, relevancy or materiality of testimony are not

waived even if they are not raised before or during the taking of deposition.

Disqualifications of deposing officers

• The following are grounds for disqualification of the

person before whom deposition is to be taken:
1. Officer is a relative within the 6th degree of consanguinity or affinity of any of the
parties;
2. Officer is counsel or employee of any of the parties
3. Officer is a relative within the same degree or employee
of such counsel
4. Officer is financially interested in the action. (Sec. 13)

Rule 24 – Depositions before Action or Pending Appeal

Deposition before action

• Any person may file a petition for deposition in order to perpetuate his own
testimony or that of another person regarding any matter that is within the jurisdiction of
Philippine courts.
• The petition shall be filed before the RTC of the place of residence of any expected
adverse party to take deposition.

Grounds for allowance of deposition before action

• Where the perpetuation of the testimony may prevent a failure or delay of justice.

Deposition before and after appeal

• A party may file a motion before the court in which the judgment was rendered to
take the deposition of witnesses to perpetuate their testimony for use in the event of
further proceedings in said court.
• Ground for allowance of motion for deposition is to prevent a failure or delay of
justice.

Rule 25 – Interrogatories to Parties

Leave of court not necessary after answer is filed

• The rule is leave of court is not necessary when a party serves written
interrogatories to the adverse party AFTER an answer has been served.

o EXCEPTIONS (which means leave of court is necessary):

1. Before service of an answer to the complaint;
2. More than one set of interrogatories would be served on the same party.

What is the effect of the failure to serve written

interrogatories on the adverse party?
• The adverse party may not be compelled to give
testimony in open court or to give a deposition pending appeal.

Answer to written interrogatories

• Answer shall be signed and sworn to by the person making them. If the party served
is a juridical entity, answer shall be made by any officer thereof competent to testify in its
behalf.
• Answer shall be filed within 15 days after service thereof or within such time as
the court may allow.

Objections to interrogatories

• Objections shall be filed within 10 days from service of the interrogatories.

• Filing of objections shall defer the service and filing of answer
to interrogatories.

Rule 26 – Admission by Adverse Party

When request for admission can be filed

• After the defendant has filed his answer as the Rules provide that a request for
admission may be filed at any time after issues have been joined.

Important requisite for request for admission

• Do not simply reproduce allegations in previous pleading

o A request for admission is not intended to merely reproduce or reiterate the allegations
of the requesting party's pleading but should set forth relevant evidentiary matters of fact,
or documents described in and exhibited with the request, whose purpose is to establish
said party's cause of action or defense.(Po v. CA, G.R. No. L-34341, August 22, 1988)

What is the scope of the request for admission?

• Under Section 1 of Rule 26 of the Rules of Court, the scope of matters that a party
may request the adversary to admit are:
1. The genuineness of any material and relevant document described in and exhibited
in the request; and
2. The truth of any material and relevant matter of fact set
forth in the request.
• The demand for admission relate to relevant and material matters of facts— and not
for admission of matters of law, conclusions, or opinions. (DBP v. CA, G.R. No. 153034,
September 20, 2005)

What is the period to file an answer to a request for admission?

• 15 days from service of request for admission

• Such further time as the court may allow on motion and notice.

Form of answer to request for admission

• The Answer shall either deny specifically the matters of which an admission is
requested or set forth in detail the reasons why he cannot truthfully either admit or deny
those matters.
• Answer must be under oath

Request must be served directly upon the party

• The request for admission must be served directly upon the party (Briboneria v. CA,
G.R. No. 101682, December 14, 1992). Otherwise, the party to whom the request is directed
cannot be deemed to have admitted the genuineness of any relevant document described
in and exhibited with the request or relevant matters of fact set forth therein, on account of
failure to answer the request for admission.

What is the effect of the failure to file an answer to a request for admission?
• The matters set forth in the request for admission are deemed admitted by the
requested party(Sec. 2, Rule 26). In short, the truth of the matters upon which admissions
were requested are deemed admitted.
o EXCEPTION: If the factual allegations in the complaint or answer are the very same
allegations set forth in the request for admission and have already been specifically denied
or otherwise dealt with in the answer or reply, a response to the request is no longer
required.

Effect of failure to file an answer to request

for admission; Exception
• If the matters in a Request for Admission were already admitted or denied in
previous pleadings by the requested party, the latter cannot be compelled to admit or deny
them anew (Spouses Limos v. Spouses Odones, G.R. No. 186979, August 11, 2010)

What is the effect where the answer to a request for admissions is not under oath?

• That the Answer to Request for Admission was not under oath is not a substantive,
but merely a formal, defect which can be excused in the interest of justice conformably to
the well-entrenched doctrine that all pleadings should be liberally construed as to do
substantial justice. (DBP v. CA, G.R. No. 153034, September 20, 2005)

What is the effect of an admission in a request for admission?

• Admission is for the purpose of the pending action only. It shall not constitute as
an admission for any other purpose.
• Admission made in an action cannot be used against him in
any other proceeding.

Withdrawal of admission
• The court may allow a party to withdraw or amend an admission upon such terms
are may be just (Sec. 4, Rule 26).

What is the effect of the failure to file and serve a request for admission?

• A party shall not be permitted to present evidence on relevant facts

which are within the personal knowledge of the adverse party
• The rule is the failure to file and serve request for admission on the adverse party of
material fact at issue which are or ought to be within the personal knowledge of the
adverse party – shall not be permitted to present evidence on such facts.
o EXCEPTION: Good cause and to prevent a failure of justice

Rule 27 – Production or Inspection of Documents or Things

Matters subject of motion for production or inspection

• Documents, papers, books, accounts, letters, photographs, objects, or tangible

things
• Land or other property in possession or control of a party

What is the relief prayed for in a motion for production or inspection?

• For documents, relief is to produce and permit inspection

and copying or photographing
• For land or other property, relief is to permit entry for the purpose of inspecting,
measuring, surveying or photographing

The rule on production of documents permits fishing for evidence; Requirements

• Rule 27 of the Revised Rules of Court permits "fishing" for evidence, the only
limitation being that the documents, papers, etc., sought to be produced are not privileged,
they are in the possession of the party ordered to produce them; and they are material to
any matter involved in the action. (Solidbank v. Gateway Electronics, G.R. No. 164805, April
30, 2008).

What are the requisites in order that a party may compel the other party to produce or
allow the inspection of documents or things?

1. The party must file a motionfor the production or

inspection of documents or things, showing good cause therefor;
2. Notice of the motion must be served to all other parties of the case;
3. The motion must designate the documents, papers, books, accounts, letters,
photographs, objects or tangible things which the party wishes to be produced and
inspected;
4. Such documents, etc., are not privileged;
5. Such documents, etc., constitute or contain evidence material to any matter
involved in the action, and
6. Such documents, etc., are in the possession, custody or control of the other party.
(Solidbank v. Gateway Electronics, G.R. No. 164805, April 30, 2008).

Rule 28 – Physical and Mental Examination of

Persons

When a motion for physical or mental examination may be filed

• When the mental or physical condition of a party is in controversy, he may be
required to submit to physical or mental examination.

Party examined entitled to a copy of written report of findings

• The party examined may secure a copy of a detailed written report of the examining
physician setting out his findings and conclusions.

Effect of securing copy of written report of findings

• The party causing the examination shall be entitled to receive report
of previous examination of the same physical or mental condition.
• The party examined waives any privilege he may have in that action or other action
involving the same controversy regarding the testimony of the examining physician in
respect of the same mental or physical examination.

Rule 29 – Refusal to Comply with Modes of Discovery

What is the effect of the failure to comply with the modes of discovery?

• The law imposes serious sanctions on the party who refuses to make discovery
(Republic v. SB, G.R. No. 90478, November 21, 1991), such as:
1. Dismissing the action or proceeding or part thereof, rendering judgment by default
against disobedient party, striking out all or any any part of the pleading of the party –
Failure of a party to:
o Serve answers to written interrogatories under Rule 25
o Appear before the deposing officer for oral examination
o Comply with an order under Rule 27 to produce any document for inspection,
photocopying or photographing
o Comply with an order under Rule 28 requiring him to submit to physical or
mental examination
o Comply with an order to answer designated questions upon oral examination or
written interrogatory
2. Contempt of court –
o Refusal of a witness to be sworn
o Refusal of a witness to answer any question after being directed to do so by the
court
3. Arrest of the party or agent of the party –
o In lieu of other consequences under Sec. 3 when a party fails or refuses to comply
with an order under Rule 27 on production of document, Rule 28 on physical or mental
examination or with an order to answer designated questions.

4. Payment of the amount of reasonable expenses incurred in obtaining a court order

to compel discovery, including attorney’s fees – Failure of a party to:
o Serve answers to written interrogatories under Rule 25
o Appear before the deposing officer for oral examination
5. Taking the matters inquired into as established in accordance with
the claim of the party seeking discovery – Failure of a party to:
o File a sworn answer to a Request for Admission
o Comply with an order under Rule 27 to produce any document for inspection,
photocopying or photographing
o Comply with an order under Rule 28 requiring him to submit to physical or mental
examination
o Comply with an order to answer designated questions upon oral examination
or written interrogatory

6. Refusal to allow the disobedient party support or oppose designated claims or

defenses or staying further proceedings – Failure of a party to:
o Comply with an order under Rule 27 to produce any document for inspection,
photocopying or photographing
o Comply with an order under Rule 28 requiring him to submit to physical or mental
examination
o Comply with an order to answer designated questions upon oral examination
or written interrogatory

Rule 30 - Trial

Trial can be dispensed with by agreement of the parties

• The trial court can render a decision without a full-blown trial, based solely on the
pleadings of the parties and the documents appended to their memorandum where the
parties themselves agreed to forego a full-blown trial and to instead file their respective
"Memorandum of Authority" and to submit evidence in support of their respective
contentions. (Republic v. Vda De Neri, G.R. No. 139588, March 4, 2004).

Absence of a party during trial constitutes a waiver of his right to present evidence or
cross-examine the opposing party’s witnesses

• The absence of a party during trial constitutes waiver of his right to

present evidence and cross-examine the opponent's witnesses.
• Although a defendant who answered the complaint but fails to appear at the
scheduled trial cannot be declared in default, the trial, however, may proceed without his
presence. And if the absence of a party during the hearing was due to his own fault, he
cannot later on complain that he was deprived of his day in court. (Spouses Calo v. Spouses
Tan, G.R. No. 151266, November 29, 2005).

Rule 31 - Consolidation

What are the requisites of consolidation?

1. Two or more actions are pending before the court involving the same parties;
2. Both or all actions arise from the same act, event transaction, involve the same or
like issues, and depend largely or substantially on the same evidence
3. The court has jurisdiction over the cases to be consolidated (Republic v. CA, G.R. No.
116463, June 10, 2003).
4. Consolidation would not result in prejudice to any of the parties or would not cause
complications, delay, or restrict the rights of a party. (Teston v. DBP, G.R. No. 144374,
November 11, 2005).
5. The nature of both actions is the same (Espinoza v. UOB, G.R. No. 175380, March 22,
2010)

What is the purpose of consolidation?

• The obvious purpose of the rule allowing consolidation is to avoid multiplicity of

suits to guard against oppression or abuse, to prevent delays, to clear congested dockets, to
simplify the work of the trial court; in short the attainment of justice with the least expense
and vexation to the parties litigants.

Consolidation addressed to the sound discretion of the court

• Consolidation of actions is addressed to the sound discretion of the court and its
action in consolidating will not be disturbed in the absence of manifest abuse of discretion.

Court must have jurisdiction over the cases sought to be consolidated

• In Republic v. CA, the SC held that an essential requisite of consolidation is that the
court must have jurisdiction over all the cases consolidated before it. Since the
Sandiganbayan does not have jurisdiction over the collection case, the same cannot be
consolidated with the criminal cases even if these cases involve similar questions of fact and
law.

A civil case can be consolidated with a criminal case

• As a rule, consolidation of civil and criminal cases is allowed when all the requisites
of consolidation are present. In one case, the SC allowed a civil action not arising from the
offense charged (arising ex contractu) to be consolidated with the criminal action (Naguiat
v. Intermediate Appellate Court)
• In another case, the Court consolidated a civil action for the recovery of wage
differential with a criminal action for violation of the Minimum Wage Law (Canos v. Peralta)

A civil case can be consolidated with a criminal case; Exception

• EXCEPTION (which means that a civil case cannnot be consolidated with the criminal
case) -- If the civil case amounts to a counterclaim or a third party complaint in a criminal
case. In one case, the SC held that a consolidation of the collection case with the criminal
cases will have the same effect of a counterclaim or a third-party complaint against the
complainant. In such case, the rule against counterclaims and third-party complaints in
criminal cases may be applied by analogy. (Republic v. CA, G.R. No. 116463, June 10, 2003).

Rule 32 – Trial by Commissioner

Court can decide a case on the basis of a commissioner’s report and adopt in whole the
findings of commissioners

• In one case, the trial court acted properly when it adopted the Majority Report of
the commissioners as part and parcel of its Decision. That is allowed in Section 11, Rule 32
which provides that the court may adopt, modify, or reject the report in whole or in part or
it may receive further evidence or may recommit it with instructions. (Manotok Realty v.
CLT Realty, G.R. No. 123346, November 29, 2005)
• In this case, the overlapping of titles necessitates the assistance of experts in the
field of geodetic engineering. The very reason why commissioners were appointed by the
trial court, upon agreement of the parties, was precisely to make an evaluation and analysis
of the titles in conflict with each other. Given their background, expertise and experience,
these commissioners are in a better position to determine which of the titles is valid. Thus,
the trial court may rely on their findings and conclusions. It bears stressing that the parties
opted to submit the case for decision on the bases, among others, of their respective
objections/comments on the commissioners' reports.

Rule 33 – Demurrer to Evidence

What is a demurrer to evidence?

• Demurrer to evidence as "an objection by one of the parties in an action, to the

effect that the evidence which his adversary produced is insufficient in point of law,
whether true or not, to make out a case or sustain the issue." (Casent Realty v. Philbanking,
G.R. No. 150731, September 14, 2007).

What is the purpose of a demurrer to evidence?

• To discourage prolonged litigations.
o The demurrer, therefore, is an aid or instrument for the expeditious termination of an
action, similar to a motion to dismiss, which a court or tribunal may either grant or deny.
Heirs of Santioque v. Heirs of Calma, G.R. No. 160832, October 27, 2006

Evidence to be considered in demurrer to evidence

• What should be resolved in a motion to dismiss based on a demurrer to evidence is

whether the plaintiff is entitled to the relief based on the facts and the law. The evidence
contemplated by the rule on demurrer is that which pertains to the merits of the case,
excluding technical aspects such as capacity to sue.

• However, the plaintiff's evidence should not be the only basis in resolving a
demurrer to evidence. The "facts" referred to in Section 8 should include all the means
sanctioned by the Rules of Court in ascertaining matters in judicial proceedings. These
include judicial admissions, matters of judicial notice, stipulations made during the pre-trial
and trial, admissions, and presumptions, the only exclusion being the defendant's evidence.
(Casent Realty v. Philbanking, G.R. No. 150731, September 14, 2007).

What is the effect of the filing of a demurrer to evidence?

• If demurrer is denied, defendant’s right to offer

evidence is not waived as the case still remains before the trial court.
• If the demurrer is granted but on appeal, the dismissal is reversed, defendant lose
the right to present evidence. (Radiowealth v. Spouses Del Rosario, G.R. No. 138739, July 6,
2000).

The appellate court should not remand the case to the trial court

• CA should not remand case to trial court. It shall proceed to render decision on the
merits based on the evidence on record. (Radiowealth v. Spouses Del Rosario, G.R. No.
138739, July 6, 2000).

RULE 34 AND 35

JUDGMENT ON THE PLEADINGS/SUMMARY JUDGMENT

• The existence or appearance of ostensible issues in the pleadings, on the one hand,
and their sham or fictitious character, on the other, are what distinguish a proper case for
summary judgment from one for a judgment on the pleadings.
• In a proper case for judgment on the pleadings, there is no ostensible issue at all
because of the failure of the defending party’s answer to raise an issue.

• On the other hand, in the case of a summary judgment, issues apparently exist i.e.
facts are asserted in the complaint regarding which there is as yet no admission, disavowal
or qualification; or specific denials or affirmative defenses are in truth set out in the answer
but the issues thus arising from the pleadings are sham, fictitious or not genuine, as shown
by affidavits, depositions, or admissions.
• In other words, a judgment on the pleadings is a judgment on the facts as pleaded,
while a summary judgment is a judgment on the facts as summarily proven by affidavits,
depositions, or admissions (Narra Integrated Company v. Court of Appeals, G.R. No. 137915,
15 November 2000)

Illustrative examples:

1. A was the lessor of B. B subleased the premises without permission from A. A

padlocked the premises to prevent B and sublessees from entering. B filed a case for
damages. A filed an Answer alleging that the proper interpretation of the contract disallows
a sublease. Is this proper for Judgment on the Pleadings?

A: Yes. The only issue was as to the interpretation of contract

(Sunbanun v. Go, 2 February 2010)

2. A was the lessor of B. During the term of the lease, B pre- terminated the contract
and vacated the premises. A claimed that the lease agreement does not provide for
pre-termination and filed a case for damages. B filed an Answer admitting that he had
vacated and argued that based on the Civil Code, he could pre- terminate the lease because
of a change in the circumstances. Is JUDGMENT on the PLEADINGS still proper?

A: YES. A judgment can be based exclusively upon the allegations appearing in the pleadings
of the parties and the accompanying annexes. The defense which is based on an
interpretation of law can be resolved through a review of the pleadings. (Comglasco v.
Santos Car Check, 25 March 2015).

3. A failed to pay B insurance premium for one quarter. B sued A for collection of
unpaid premiums. A raised in its Answer the defense that collection is not proper because
legally, the effect of non- payment is that the insurance/reinsurance contracts becomes
ineffective. Hence, there is no cause of action for collection. A claimed asked for Judgment
on the Pleadings. Proper?

A: Yes. The answer depended solely on the legal interpretation of the effect of
non-payment of an insurance premium. This can be resolved based on the pleadings and an
interpretation of the applicable law. (GSIS v. Prudential, 20 November 2013)

4. A executed a Real Estate Mortgage in favor of B, in connection with a loan it

incurred. After B foreclosed on the REM, A filed a case to annul the foreclosure sale claiming
that he merely took on the loan for his company, and proceeds did not go to him. B filed an
Answer admitting the material allegations, but countered that the evidence shows that A
incurred the obligation solidarily with his company. B then moved for Summary Judgment.
Proper?

A: Yes, proper, because there was no genuine issue raised by A. A does not deny the loan
nor that his property was mortgaged. Even assuming A just lent his name as guarantor for
the loan, B can still claim from A and his property. (Evangelista v. Mercator Finance, 21
August 2003)
Q: Why is this not proper for Judgment of the Pleadings instead?

A: Because there appears to be a defense, but it is “sham” as a perusal of the evidence will
clearly belie the claim.

5. Napocor and a private individual, A, entered into an agreement in connection with

Napocor’s use of a portion of the property for transmission lines and towers. After Napocor
had entered into the property, A discovered that Napocor paid his neighbors a higher
amount per square meter. Thus, A filed a case for rescission of contract and damages. B
filed an Answer claiming that the proper amount had already been paid. Proper for
Summary Judgment?

A: Yes. “What remained for the determination of the RTC was the proper amount of
damages due the respondents for the portions of their lots taken by the petitioner.”
(NAPOCOR v. Vda. De Capin, 17 October 2008)

RULE 36
JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF

REQUISITES OF A VALID JUDGMENT

• Even a dismissal of a case for failure to prosecute must comply with the
requirements that the same clearly state the facts and law upon which it is based. (Shimizu
Philippines Contractors v. Magsalin, G.R. No. 170026, 20 June 2012)

Nunc pro tunc judgments have been defined and characterized by

this Court in the following manner:

• The office of a judgment nunc pro tunc is to record some act of the court done at a
former time which was not then carried into the record, and the power of a court to make
such entries is restricted to placing upon the record evidence of judicial action which has
been actually taken.
• It may be used to make the record speak the truth, but not to make it
speak what it did not speak but ought to have spoken.
• If the court has not rendered a judgment that it might or should have rendered, or if
it has rendered an imperfect or improper judgment, it has no power to remedy these errors
or omissions by ordering the entry nunc pro tunc of a proper judgment.

• Hence a court in entering a judgment nunc pro tunc has no power to construe what
the judgment means, but only to enter of record such judgment as had been formerly
rendered, but which had not been entered of record as rendered.
• In all cases the exercise of the power to enter judgments nunc pro tunc presupposes
the actual rendition of a judgment, and a mere right to a judgment will not furnish the basis
for such an entry
(Briones-Vasquez v. Court of Appeals, G.R. No. 144882, 4 February
2005)

Q: A filed a case against B for easement of right of way. A claimed that it is through B’s
property that A has best access to a highway. Since B closed the said pathway, A sought
court relief to declare the same a legal easement. The Court ruled that there was another
pathway through the southern portion of B’s property, and DISMISSED the case. When A
sought to use the southern pathway, B again closed it. Can A move to open the southern
portion based on the court’s previous decision?

A: NO. The dispositive portion of the decision merely denied the complaint. Though the
Court stated, as its reason, the existence of the southern pathway, that was an issue in the
case and hence not part of the dispositive portion. (Obra v. Badua, 9 August 2007)

Q: What is a several judgment?

A: “A several judgment is proper only when the liability of each party is clearly separable
and distinct from that of his co-parties, such that the claims against each of them could
have been the subject of separate suits, and judgment for or against one of them will not
necessarily affect the other. Where a common cause of action exists against the
defendants, as in actions against solidary debtors, a several judgment is not proper.” (De
Leon v. Court of Appeals, 6 June 2002)

RULE 39

Rule on Execution - only final and

executory judgments may be executed
Exceptions:

1. Judgments pending appeal

2. Immediately executory judgments (N.B. Both judgments are not final but may
already be executed)

3. Supervening event which renders execution unjust or impossible such as where the
decision of the CA was superceded by Compromise Agreement (Republic v. Antonio)

Rule on Execution - only final and executory judgments may be executed

4. Equitable grounds such as where there is a change in the situation of

the parties
5. Judgment has been novated by parties
6. Judgment has become dormant
7. Judgment turns out to be incomplete.
(Items 3 to 7 can be used as grounds for quashal of writ of execution)

Execution of final and executory judgment - matter of right

REQUISITES – The requisites for the grant of an execution of a final and

executory judgment are:
(a) Motion by judgment obligee;
(b) Notice to adverse party ;
(c) Before court of origin;
(d) Submit certified copy of judgment and entry of judgment.
• Only trial court may issue the writ but appellate court may direct trial court to issue
in the interest of justice

Execution pending appeal – discretionary

REQUISITES - The requisites for the grant of an execution of a judgment
pending appeal are the following:
(a) there must be a motionby the prevailing party with
notice to the adverse party;
(b) there must be good reasons for execution pending appeal;
(c) the good reasons must be stated in the special order; and
(d) trial court while it has jurisdiction and is in possession of the original
record/appellate court after the trial court has lost jurisdiction.

EXAMPLES:
a. Appeal is unmeritorious
• The well-established rule is that it is not for the trial court to determine the merits of
the decision it rendered and use the same as basis for its order allowing execution pending
appeal. The authority to determine the merits of the appeal and the correctness of the
findings and conclusions of the trial court is lodged in the appellate court. (Heirs of Sangkay
v. Napocor, G.R. No. 141447. May 4, 2006)
b. Appeal is dilatory
• That the appeal is merely dilatory is not a good reason for granting execution
pending appeal. Only an appellate court can appreciate the dilatory intent of an appeal as
an additional good reason in upholding an order for execution pending appeal. (Heirs of
Sangkay v. Napocor, G.R. No. 141447. May 4, 2006)

EXAMPLES:
c. Financial distress of prevailing company
• The Court held that even the financial distress of the prevailing company
is not sufficient reason to call for execution pending appeal.
• The financial distress of a juridical entity is not comparable to a case involving a
natural person — such as a very old and sickly one without any means of livelihood, an heir
seeking an order for support and monthly allowance for subsistence, or one who dies or
who is ill, of advanced age or dying as to justify execution pending appeal.
• Financial distress arising from a lone collection suit and not due to the advanced age
of the party is not an urgent or compelling reason that would justify the immediate levy on
the properties of Urban Bank pending appeal.
(Urban Bank v. Pena, G.R. No. 145817, October 19, 2011)

EXAMPLES:
d. If only one of the defendants held solidarily liable is insolvent
• In cases where the two or more defendants are made subsidiarily or solidarily liable
by the final judgment of the trial court, discretionary execution can be allowed if all the
defendants have been found to be insolvent. (Urban Bank v. Pena, G.R. No. 145817,
October 19, 2011)
e. The prevailing party’s husband was ill and said party was willing to
post a bond.
• (Stronghold Insurance v. Felix)

EXAMPLES:
(f) Advanced age and illness of one of the prevailing parties, losing party’s dilatory and
frivolous appeal and strong likelihood of becoming insolvent during the pendency of the
appeal.
• SC ruling – Only Rosario is in her old age and suffers from life threatening ailments.
But the trial court has allowed execution pending appeal for all of the Florendos, not just for
Rosario whose share in the subject lands had not been established. Paramount’s delaying
tactics and the possibility that it could become insolvent during the appeal are purely
speculative. As for the Florendos’ fear of Paramount’s insolvency, such is wholly irrelevant
since the judgment did not require it to pay them any form of damages. Indeed, the
Florendos are the ones required by the RTC to reimburse Paramount the value of its bid and
the amounts of real estate taxes that it had paid on the properties. Lastly, the Florendos’
posting of a P4 million bond to answer for the damages that respondent Paramount might
suffer in case the RTC decision is reversed on appeal is quite insufficient. The lands had a
market value of P42 million in 2001. (Florendo v. Paramount,
G.R. No. 167976 January 20, 2010)

• If an execution pending appeal is issued, what is the remedy of the

defeated party to stay the execution pending appeal?
• Filing of supersedeas bond
• Immediately executory judgments - executable upon rendition
but may be stayed by trial court or on appeal.
• Injunction, receivership, accounting, support, support pendente lite
• Effect of reversal of executed judgment
• orders of restitution or reparation of damages

Mode of obtaining a writ of execution

a. By Motion - within 5 years from date of entry of judgment; period is tolled when
delay is caused by judgment obligor (Yao v. Silverio)
• Writ issued and levy within 5 years, execution sale after 5 years
• still okay provided sale is made within 10 years.

b. By action - after 5 years from date of entry of judgment but before it is barred by
prescription; in such case, judgment becomes a mere right of action

Execution in case of death of obligor (obligor

dies before actual levy of his property)
• If judgment is for recovery of property, execution
shall be against
executor or administrator.
• What about if judgment is for payment of money?
• If obligor dies after actual levy of property, the property
in the name of
deceased obligor may be sold.

Writ of execution is directed to the Sheriff

• Contents: must state amount of interest as of the date of issuance of the writ
• Where decision does not include payment of interest, writ shall not include legal
interest but may include 12% legal interest from the time the judgment became final and
executory
• Where decision includes interest, writ shall include 6 % legal interest from date of
filing of complaint or demand and may include 12% legal interest from the date the
judgment became final and executory

Execution of Money Judgment – Manner of enforcement

A. Demand for Immediate Payment – cash, MC or other acceptable form of payment,

payment shall be made directly to obligee or in his absence to executing Sheriff.
B. Levy upon properties of obligor - obligor has option to choose property to be levied
on. If option not exercised, Sheriff shall levy on personal properties first and then real
properties.
• Judgment for sum of money cannot be executed by issuing a writ of possession over
a real property (Cardinal v. Asset). There is nothing in the rules that authorize the issuance
of a writ of possession over a property of the judgment obligor in the execution of a money
judgment.

Execution of Money Judgment – Manner of enforcement

C. Garnishment - made by service of notice upon third persons. Garnishee to make a

report whether obligor has sufficient funds to satisfy judgment or if not sufficient state the
amount of funds in its possession.
• Garnished amount shall be paid in the name of obligee, not Sheriff. Payment shall be
delivered within 10 working days from notice of delivery by Sheriff.

• Instead of levy upon property and sale on execution, Court may order any property
or money of Judgment Obligor in his possession or of another person to be applied to the
satisfaction of the judgment (Sec 40)

Execution of Specific Act Judgment

A. Judgments directing the (a) execution of Deeds of
Conveyance of land or personal property or (b) delivery of documents
• Should a party fail to comply within the time specified - court may direct the act to
be done by another person. But if land or personal property is in the Phil, court in lieu of
directing a conveyance thereof, may issue an order divesting title of obligor and vesting it in
the obligee. This shall have the effect of a conveyance executed in due form of the law.
B. Delivery of Real Property
• Sheriff to serve a Notice to Vacate within 3 working days. If obligor fails to vacate,
Sheriff shall oust obligor and ALL PERSONS claiming rights under him.
• Improvements introduced by obligor on real property shall not be destroyed or
removed without a special order of demolition by the court. Demolition order shall be
issued after hearing and after obligor fails to remove the same within a reasonable time.
Removal of improvements is relevant only if obligor is a builder in good faith.

Execution of Special Judgment

• Judgment declaring stockholders’ meeting and election of board of directors void,

permanent injunction, validity and legality of certain acts or things – examples of a special
judgment

• How enforced? - Sheriff to serve the writ and certified

copy of judgment upon the party against whom judgment is rendered.

Remedy of a third person whose property is levied on execution

• Serve Affidavit of 3rd Party Claim stating his right to possession or title
on Sheriff and obligee.
• Effect of serving such Affidavit - it won't stop delivery or sale of property but Sheriff
for his protection may require obligee to post bond. Sheriff may or may not require obligee
to post bond.

• Claim for damages against the bond - action shall be made within 120 days from
filing of bond; otherwise it is barred. BUT 3rd party may still file a separate action for
damages or action for recovery of property. Obligee may claim damages in the same or
separate action against 3rd party for filing a frivolous or spurious claim.
• Fermin v. Estevez – The claim of terceria is available to a third person other than the
judgment obligor who claims a property levied on and put on auction by Sheriff. This is not
the appropriate remedy where the third person’s property is subject of a writ of execution
or writ of demolition arising from a civil case to which said third person was not a party and
whose rights do not arise from the defendant in the said case.

Property Exempt From Execution

• Claim for exemption of family home from execution must be set up and proved
before the sale of the property at public auction (Honrado v. CA)
• Exemption shall not apply to judgments for foreclosure of mortgage thereon or
recovery for its price.

Validity of Writ of Execution

• valid and effective during the period within which the judgment may be enforced,
i.e. 5 years from date of entry of judgment.
• Shall be returned when judgment has been satisfied in full or part or
30 days from receipt of Writ and every 30 days thereafter
until judgment is satisfied in full.

Judgment obligee who purchases the property need not pay the amount of the bid.

Conveyance of Real Property

• Sheriff shall execute a Certificate of Sale in favor of
the purchaser
which shall be registered in the RD.

Redemption of real property sold (only real property may be

redeemed)

a. Who may redeem: judgment obligor or his successor in interest and redeeming
creditor or redemptioner

b. Period of redemption: 1 year from date of registration of certificate of sale

WITHIN THE 1-YEAR PERIOD OF REDEMPTION
a. Rents, earnings and income of property during
redemption
belong to Judgment Obligor
b. Possession remains with Judgment Obligor
c. No limit as to the number of times a property may be redeemed
d. Notice requirement for redemption – must be given to Sheriff, RD; notice must
indicate payment of taxes and liens; otherwise, these wont be paid by subsequent
redemptioner
e. Effect of redemption by judgment obligor – no further redemption shall be allowed
and he is restored to his estate.

Effect of No Redemption

a. Upon expiration of redemption period, judgment obligor shall be divested of all his
rights, title, interest and claim to the property and the same shall be vested in the
purchaser (Sec 33)
b. Purchaser entitled to Deed of Final Conveyance and
delivery of
possession of the property.

Sheriff to execute the Final Deed of Conveyance, but there is a need to file a Petition for
Issuance of a New Title and with respect to possesion to file an ex parte Motion for Writ of
Possession

Remedy when judgment is unsatisfied

A. Motion to require judgment obligor or debtor of judgment obligor to appear and be
examined concerning his property and income
• Provided the court or commissioner is within the city where
such obligor resides.
• Any other person may also be compelled to attend and testify
on such matters

B. Motion to require Judgment Obligor to pay in fixed monthly installments where his
salary or earnings are more than necessary for the support of his family.

Remedy where debtor of Judgment Obligor denies

the debt or another person claims the property:

• File an action, with leave of the executing court, for the recovery of debt or interest
and forbid a transfer or disposition of such debt or interest within 120 days from notice of
order.

Entry of Satisfaction of Judgment

• Clerk of Court shall enter satisfaction of a judgment in the court docket and in the
execution book upon the filing of the Sheriff's Return or admission to the satisfaction of
judgment by Judgment Obligee.
• If judgment is satisfied other than by execution, Judgment Obligor may demand of
the Judgment Obligee to execute an admission to the satisfaction of judgment or file a
Motion for an Order to enter satisfaction of judgment.

RECOGNITION OF FOREIGN JUDGMENT

EFFECT OF IN REM FOREIGN JUDGMENT AND IN PERSONAM FOREIGN JUDGMENT

• For an action in rem, the foreign judgment is deemed conclusive upon the
title to the thing.
• In an action in personam, the foreign judgment is presumptive, and not conclusive,
of a right as between the parties and their successors in interest by a subsequent title.
• In both cases, the foreign judgment is susceptible to impeachment in our local
courts on the grounds of want of jurisdiction or notice to the party, collusion, fraud, or clear
mistake of law or fact. (Mijares v. Ranada, G.R. No. 139325, April 12, 2005)

FILING FEE OF ENFORCEMENT OF FOREIGN MONEY JUDGMENT

• Foreign judgment may be deemed as subsumed under Section 7(b)(3) of Rule 141,
i.e., within the class of "all other actions not involving property." Thus, only the blanket
filing fee of minimal amount is required. (Mijares v. Ranada, G.R. No. 139325, April 12,
2005)

HOW TO ENFORCE IN REM FOREIGN

JUDGMENT
• It is clear then that it is usually necessary for an action to be filed in order to enforce
a foreign judgment, even if such judgment has conclusive effect as in the case of in rem
actions, if only for the purpose of allowing the losing party an opportunity to challenge the
foreign judgment, and in order for the court to properly determine its efficacy.
Consequently, the party attacking a foreign judgment has the burden of overcoming the
presumption of its validity. (Mijares v. Ranada, G.R. No. 139325, April 12, 2005)

FRAUD AS GROUND TO SET ASIDE FOREIGN

JUDGMENT IS EXTRINSIC FRAUD

• Fraud to hinder the enforcement within the jurisdiction of a foreign judgment must
be extrinsic, i.e., fraud based on facts not controverted or resolved in the case where
judgment is rendered or that which would go to the jurisdiction of the court or would
deprive the party against whom judgment is rendered a chance to defend the action to
which he has a meritorious defense. Intrinsic fraud is one which goes to the very existence
of the cause of action is deemed already adjudged, and it, therefore, cannot militate against
the recognition or enforcement of the foreign judgment. (Asiavest v. CA G.R. No. 110263,
July 20, 2001)