PRE-BAR LECTURE NOTES authority) and cannot be waived.
Therefore, it cannot be conferred by
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)
Jurisdiction over the subject matter is determined based on the law in effect as
of the filing of the complaint.
Jurisdiction depends on the allegations in the complaint, not on the eventual
decision, nor on the defenses raised by opposing party.
Doctrine of continuing jurisdiction – once jurisdiction has been acquired, the
court retains the same until it finally disposes of the case.
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
consent of the parties nor lost by estoppel.
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.
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).
 Election case EXCEPTION is w
Land Registration by analogy o
Under Section 20, Rule 14 of the Rules of Court, when a party files a Motion to Cadastral
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, Criminal Action - action that seeks to prosecute an act or omission punishable
31 January 2006) by law
Special Proceeding - a remedy by which a party seeks to establish a status, right
Jurisdiction over the Res or a particular fact. To initiate a special proceeding, a petition and not a
This is acquired either: by the seizure of the property under legal process, complaint should be filed.
whereby it is brought into actual custody of the law, or
as a result of the institution of legal proceedings, in which the power of the Rules of Court not applicable in certain cases
court is recognized and made effective. Naturalization
RULE 1 GENERAL PROVISIONS Insolvency
What are the rules on docket fees vis-à-vis its commencement? Rehabilitation
Specify the amount of damages being prayed for not only in the body of the Other cases
pleading but also in the prayer.
Any pleading that fails to comply with this requirement shall not be accepted When is an action deemed commenced?
nor admitted, or shall otherwise be expunged from the record.” On the date of the filing of the original complaint
(Manchester Development Corp. v. Court of Appeals, No. L-75919, 7 May EXCEPTION - when an additional defendant is impleaded, the action is
1987) commenced as to him on the date of the filing of the amended pleading.
If the judgment awards a claim not specified in the pleading, or if specified the BUT, with regard to the other parties, the action is commenced still on the
same has been left for determination by the court, the additional filing fee date of filing of the original complaint.
therefor shall constitute a lien on the judgment. (Sun Insurance Office, Ltd.
v. Asuncion, G.R. Nos. 79937-38, 13 February 1989) RULE 2 CAUSE OF ACTION
Elements:
What are the actions governed by the Rules of Court? A right in favor of the plaintiff by whatever means and under whatever law it
Civil Action - action that seeks to enforce or protect a right or to prevent a arises or is created;
wrong An obligation on the part of the named defendant to respect or not to violate
Special Civil Action - an independent action based on specific grounds such right; and
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), A: No. In Umale v. Canoga, 20 July 2011, the Supreme Court ruled that
whether the defenses in one case may be used to substantiate the complaint in the violations of the terms of the lease and the eventual expiration of
the other.
whether the cause of action in the second case existed at the time of the filing the lease constitute separate causes of action, and they do not
of the first complaint.
constitute a “SPLITTING”.
(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
RULES ON JOINDER:
(a) failure to pay license fees and (b) damages due to unearned profits,
Sec. 5. Joinder of causes of action. – A party may in one pleading assert, in the
respectively, SPLIT a cause of action because they are “ultimately anchored”
alternative or otherwise, as many causes of action as he may have against
on the breach of one agreement.
an opposing party, subject to the following conditions:
In Marilag v. Martinez, 22 July 2015, a petitioner instituted an action for
The party joining the causes of action shall comply with the rules on joinder of
JUDICIAL foreclosure and later on filed a personal action for collection of
parties;
the debt. This was considered as SPLITTING a CAUSE OF ACTION. But note
The joinder shall not include special civil actons or actions governed by special
that this does not preclude a filing for motion for the deficiency judgment
rules;
after the foreclosure sale.
When there are several installment payments due, each payment due
RULES ON JOINDER:
constitutes one cause of action. However, ALL due as of the time of filing
Where the causes of action are between the same parties but pertain to
must be brought in the same action. (BPI v. Coscolluela, 27 June 2006)
different venues or jurisdiction, the joinder may be allowed in the Regional
Q: In one case, a lessee who violated the terms of its lease was subjected
Trial Court provided one of the causes of action falls within the
jurisdiction of said court and the venue lies therein; and
to an unlawful detainer case. (Case 1) While Case 1 was pending
Where the claims in all the causes of action are principally for recovery of
appeal, the lease agreement expired and the lessor filed another money, the aggregate amount claimed shall be the test of jurisdiction. (5a)

unlawful detainer case (Case 2). Is this considered as “splitting a
cause of action”?
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:
The date of the filing, with preference generally to the first action filed to be
retained;
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
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.
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:
The severance of the misjoined cause of action, to be proceeded with
separately (in case of misjoinder of causes of action); and/or
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 Section 122 of the Corporation Code, the suit of 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:
Estate of a deceased person
Legitimate Labor organization
Corporation under dissolution under Section 122 of the Corporation Code.
REAL PARTY IN INTEREST
Who is a real party in interest?
oOne 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. oWhat 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 coowners 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).
 non compliance of the rule results in violation of the right to due process of
Q: Should the GOCC be a party to the case? 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.
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
What is the effect of the failure to effect substitution of parties on the
proceedings or judgment?
to have complete determination of the claim subject of the case.
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
Foreign corporations and their capacities to sue
upon whom the judgment would be binding.
An unlicensed foreign corporation not doing business in the Philippines has the
Moreover, the attorneys for the offended party ceased to be the attorneys for
capacity to sue
the deceased upon the death of the latter, the principal.
An unlicensed foreign corporation doing business in the Philippines cannot sue
before Philippine courts but such corporation can sue if it is not doing
The deceased cannot be substituted by a person who is not an heir, legal
business (Sec. 133, Corporation Code).
representative, or administrator
A private company owned by a foreign government is not immune from suit
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
A misjoinder of party plaintiff is not a ground for dismissal of the complaint
through the transfer of the latter’s interest in the litigation to another party
(Judge Sumaljag v. Literato).
What is the remedy in case of misjoinder of parties?
The remedy is to move for the dropping of misjoined parties from the
What are the requirements for automatic qualification as indigent parties?
complaint. This may be done through amendment of the complaint or
The income requirement: the applicant’s gross income and that of his family
through motu propio order of the RTC.
must not exceed an amount double the monthly minimum wage of an
employee
Substitution in case of death of parties
The property requirement: the applicant must not own real property with a fair
When a party dies in an action that survives, the deceased party shall be
market value of more than P300,000.
substituted by his heirs, administrator or legal representative
The rule does not apply to all kinds of actions. Substitution is required only in
If these requirements are met, the motion shall be granted automatically and
actions that survive the death of the party
as a matter of right (Spouses Algura v. LGU)
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
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:
that the subject matter of the controversy is one of common or general interest
to many persons; and
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).
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.
oImproper 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 EFFECT IF 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).
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
oVenue 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 for appeal had long lapsed when Spouses filed their appeal. The lapse of
cannot justify filing the case in said party’s place of residence. (Marcos- the period for appeal rendered the RTC without any jurisdiction to entertain
Araneta v. Court of Appeals, G.R. No. 154096, 22 August 2008). much less grant the appeal from the final and immutable judgment of the
MTC. (Spouses Edillo v. Spouses Dulpina)
Where is the venue of the action if there is more than one plaintiff?
Residence of the principal party RULE 6 –KINDS OF PLEADINGS
oThe residence of the principal parties is the basis for determining venue if WHAT IS A PLEADING?
there is more than one plaintiff in a personal action. (Irene Marcos Araneta statement of a party’s claims or defenses in an action that is submitted to the
v. CA) Here, the complaint for reconveyance of shares was dismissed for court for appropriate judgment
improper venue. While her MR was pending, Irene filed an amended
complaint in which 3 individuals appeared as additional plaintiffs – all of IS A MOTION A PLEADING?
whom are from Ilocos Norte and allegedly Irene’s new trustees strictly speaking, NO.
Sec 1, Rule 15: a motion is an application for relief other than by a pleading

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 WHAT ARE THE PLEADINGS ALLOWED UNDER THE ROC?
in the subject of the action. complaint
counterclaim
Rule 5 – Uniform Procedure in Trial Courts crossclaim
An appeal of a judgment for unlawful detainer before the RTC is not covered by third party complaint
Summary Procedure complaint in intervention
Proceedings in the RTC are not covered by the Summary Rules even for appeal answer to a pleading asserting a claim
of cases that are covered by the Summary Rules (Estate of Macadangdang reply to answer
v. Gaviola).
WHAT ARE THE TWO KINDS OF DEFENSES?
The failure of a defendant to file an answer or to appear at a preliminary NEGATIVE DEFENSE
conference shall entitle the plaintiff to a judgment on the basis of the facts AFFIRMATIVE DEFENSE
alleged in the complaint (Soriente v. Estate of Concepcion)
A Motion for Reconsideration is a prohibited pleading. The filing thereof will WHAT IS A NEGATIVE DEFENSE?
render the order of dismissal final and executory a defense that specifically denies the material facts alleged in the complaint
oMR is prohibited under the summary rules. Sec 19 (c) considers a motion for
reconsideration of a judgment a prohibited pleading. The filing thereof did WHAT IS AN AFFIRMATIVE DEFENSE?
not interrupt or stop the running of the period for appeal. Thus, the period
an allegation of a new matter which would bar recovery by plaintiffs even if the may either be a compulsory or permissive counterclaim.
allegations in the complaint are hypothetically admitted
WHEN IS IT COMPULSORY?
Fraud (Reillo v. San Jose, G.R. No. 166393, June 18, 2009)
Illegality
Prescription Statuteit of
arises out of or is necessarily connected with the transaction or occurrence
Frauds
Payment Estoppel subject of the opposing party's claim;
it is existing
Discharge at the time of the filing of the answer; and
in bankruptcy
Release 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
WHAT IS AN ANSWER EX ABUNDANTE AD CAUTELA? counterclaim is compulsory even if the amount is within the jurisdiction of the
the answer is being filed “out of abundant caution” MTC
COMPULSORY v. PERMISSIVE
WHAT IS THE EFFECT OF ITS FILING?
COMPULSORY
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.
• necessarily connected with the claim asserted in the complaint,
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.

• should be set up in the answer in the same action; otherwise,
they would be barred forever
• Payment of docket fee is not required
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
• may be filed
arisen. It separately
only arose in another
after case.
the foreclosure of the properties and after the
debtor has refused and failed to settle the deficiency amount.
• If a party files a motion to dismiss the complaint instead of setting up a compu
barred from prosecuting such claim (Financial Building Corp. v. Forbes Park As
• payment of docket fees is necessary before the court could
acquire jurisdiction over the counterclaim.
DISMISSAL OF COMPLAINT RESULTS IN DISMISSAL OF COMPULSORY
COUNTERCLAIM
(Financial Building Corp. v. Forbes Park Association, GR 133119, August 17,
2000)
EXCEPTIONcarry with it: theDismissal dismissal of ofthe the complaint counterclaim,
due to compulsory the fault or of otherwise the plaintiff. In does fact, notthe
dismissal of the complaint is without prejudice to the right of defendants to
prosecute the counterclaim. (Pinga v. Heirs of German Santiago, GR
170354, June
30, 2006). (Spouses Corpuz v. Citibank, GR 175677, July 31, 2009)
Sec 6 Rule 16 also provides that “the dismissal of the complaint shall be without
prejudice to the prosecution in the same action or separate action of a
counterclaim pleaded in the answer” – the provision does not distinguish
whether counterclaim is compulsory or permissive.
FILING OF A MOTION TO DISMISS IS AN IMPLIED WAIVER OF
COMPULSORY COUNTERCLAIM
the grant of the motion results 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 THIRDPARTY COMPLAINT
(Asian Construction v. CA, GR 160242, May 17, 2005)
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;
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
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 thirdparty
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:
Where the complaint was dismissed not because of lack of cause of action but
because of a compromise agreement between the plaintiff and the
defendant (third party plaintiff), the third party complaint shall survive the
termination of the main action as it involved a finding of liability on the part
of the defendant. (Banez v. CA, GR No. 119321, March 18, 1997)
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 alleged in the answer are 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
Under Section 3, Rule 7, a party may sign a pleading. Counsel's authority and
duty to sign a pleading are personal to him. He may not delegate it to just
any person. He may delegate it to another lawyer but cannot do so in favor
of one who is not. (Republic v. Kenrick Development Corp, GR 149576,
August 8, 2006)
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 EXCEPTION:
Sec. 5, Rule 7: the plaintiff or principal party shall sign the certification. Thus, When the merits of the petition justify the relaxation of the rule (Kaunlaran Lendin
all plaintiffs or principal parties must sign the certification; otherwise, those When it is signed by an officer who is in a position to verify the truthfulness and co
who did not sign will be dropped as parties to the case. President, General Manager, Personnel Officer (Mid-Pasig Land v. Mario Tabla
EXCEPTION: When all the plaintiffs or petitioners share a common interest and 162924, February 4, 2010).
invoke a common cause of action or defense, the signature of only one of
them substantially complies with the Rule (Mactan-Cebu International
Airport Authority v. Heirs of Minoza, GR 186045, Feb. 2, 2011).
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. EFFECT OF FAILURE TO COMPLY WITH THE RULE ON CERTIFICATION
Failure to attach the proof of authority shall merit the dismissal of the complaint If no certification is attached to an initiatory pleading, the case shall be
or petition. 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

 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
Both are grounds for dismissal
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.
• Dismissal shall be upon motion and only after hearing, •IfDismissal can be
a corporate doneverifies,
officer motu proprio and be
he must summarily
clothed with authority from the
corporation.
However, in Mid Pasig Land v. Tablante, G.R. No. 162924, 4 February 2010, the
• dismissal
Supreme is with
Courtprejudice
explained that “the following officials or employees of the
company can sign the verification and certification without need of a board
• dismissal is without prejudice unless otherwise provided resolution:
the Chairperson of the Board of Directors,
the President of a corporation,
• constitutes indirect contempt •the General Manager
constitutes or Acting
direct contempt of General
court Manager,
Personnel Officer, and
an Employment Specialist in a labor case.”

CERTIFICATION AGAINST FORUM-SHOPPING RULE 8

The Supreme Court enumerated the ways by which forum shopping may be
committed, thus:
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);
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
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?
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?
performance of conditions precedent (Sec. 3)
Malice, Intent, Knowledge, or Other Condition of the Mind of a Person (Sec. 5)
What must be averred with PARTICULARITY?
Fraud, mistake, or circumstances surrounding fraud or mistake (Sec. 5)
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:
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).
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:
that he signed it or that it was signed by another for him with his authority;
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;
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:
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);
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);
or that, in the case of the latter, that the corporation was not authorized under
its charter to sign the instrument
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.
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.”
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?
Fails to file an answer within the time allowed
Failure to file pre-trial brief (defendant)
Failure to appear at pre-trial (defendant)
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 15day 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/Thirdparty
Complaint
o15 days from service for amended pleading filed as a matter of right
o10 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.
oThe answer shall serve as the answer to 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:
Order the striking out of the pleading or the portions thereof or
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?
Personal Filing – by presenting the originals personally to the clerk of court
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?
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.
Registered Mail
Ordinary Mail - if no registry service is available in the locality of either the
sender or the addressee
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 written or 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?
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.
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.
Constructive Service – e.g., by publication in a newspaper of general circulation
Extra-territorial Service – service of summons abroad
What are the requirements of substituted service?
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
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
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?
By leaving copies of the summons at the defendant’s residence with some
person of suitable age and discretion then residing therein, or
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?
Extraterritorial service 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).
oEXCEPTIONS:
Extraterritorial service applies even in action in personam in case of foreign
corporations under the amendment to Sec. 12, Rule 14.
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:
Actions in rem and quasi in rem against any defendant, whether individuals,
domestic juridical entity or foreign juridical entity;
In personam actions against foreign corporations;
In personam actions against residents who are temporarily out of the
Philippines.
When can constructive notice by publication be resorted to?
Actions in rem and quasi in rem against any defendant, whether individuals or
foreign corporation;
In personam actions against foreign corporations;
In personam actions against residents who are temporarily out of the
Philippines; and
In personam actions against a 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.
Exceptions are:
When defendant or his whereabouts is unknown (Sec. 14, Rule 14) and
When defendant is a Philippine resident temporarily out of the Philippines (Sec.
16), where CONSTRUCTIVE NOTICE and EXTRATERRITORIAL 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 nonresident, summons cannot be served
on him and the court cannot acquire jurisdiction over him. (Gomez v. CA,
GR 127692, March 10, 2004).
oException 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?
President
Managing Partner
General Manager
Corporate Secretary
Treasurer
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?
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;
The person served must sign a receipt or the sheriff's return; and
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 motion to dismiss challenging 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
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 comply with the rule on certification against forum 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 pretrial 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 DISMISSAL FOR FAILURE TO PROSECUTE IS AN ADJUDICATION ON THE MERITS
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:
if he fails to appear on the date for the presentation of his evidence in chief;
if he fails to prosecute his action for an unreasonable length of time; or
if he fails to comply with the rules or any order of the court.
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:
Where the notice of dismissal so provides
Where the plaintiff has previously dismissed a similar case in a court of
competent jurisdiction
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:
The same must have been duly identified by testimony duly recorded and,
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 PRETRIAL
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
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;
Intervention will not unduly delay or prejudice the adjudication of rights of
original parties;
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. P05-2072,
August 13, 2008)
What are the grounds for the quashal of a subpoena duces tecum?
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)
oIn that case, the SC held that the grounds of unreasonableness and
oppresiveness are proper for subpoena duces tecum.
Relevancy of books, documents or things does not appear
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?
Documents not specifically described or designated
Documents covered by privilege like attorney-client privilige
Documents covered by RA 1405 or the Banks Secrecy Law, but note the
exceptions
Documents covered by Foreign Currency Law
Executive Privilege
What are the grounds for the quashal of a subpoena ad testificandum?
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)
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)
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
The witness is not bound thereby.
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?
To enable the parties to a case to learn all the material and relevant facts
To uncover evidence (absence of evidence)
To preserve evidence
Emphasize issues
Prepare our evidence (preparing opponents)
Pin and size up the witness and counsel (harassment value)
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?

Oral Examination
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.
EXCEPTIONS:
Before service of answer: Leave of court is necessary because issues are not
yet joined and the disputed facts are not clear.
Deposition before action as when a person desires to perpetuate his own or
that of another person (Sec. 1, Rule 24)
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
Relevant facts that are not privileged
Identity and location of persons having knowledge of relevant facts
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
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
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
Cross Interrogatories – 10 days
Re-direct Interrogatories – 5 days
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:
Secretary of embassy or legation, consul general, consul, vice consul, or
consular agent of the Republic of the Philippines;(Sec. 11)
Person or officer as may be appointed by commission or foreign court or
tribunal under letters rogatory; or (Sec. 11)
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?
Examination is being conducted in bad faith
Examination is being conducted in such a manner as to annoy, embarrass, or
oppress the person subject to the inquiry.
When the inquiry touches upon the irrelevant facts
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:
To contradict or impeach the testimony of the party;
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:
To contradict or impeach the testimony of the party; 2. For any purpose if
the court finds:
That the witness is dead; or
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
That the witness is unable to attend to testify because of age, sickness,
infirmity, or imprisonment; or
That the party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or
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
oThe 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 therof for
any purpose makes the deponent the witness of the party introducing the
deposition (Sec. 8).
EXCEPTIONS:
Where the party used the deposition to contradict or impeach the testimony of
the deponent in court;
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 – written objection 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 crossinterrogatories.
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:
Officer is a relative within the 6th degree of consanguinity or affinity of any of
the parties;
Officer is counsel or employee of any of the parties
Officer is a relative within the same degree or employee of such counsel
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.
oEXCEPTIONS (which means leave of court is necessary):
Before service of an answer to the complaint;
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
oA 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:
The genuineness of any material and relevant document described in and
exhibited in the request; and
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.
oEXCEPTION: 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.
oEXCEPTION: 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?
The party must file a motion for the production or inspection of documents or
things, showing good cause therefor;
Notice of the motion must be served to all other parties of the case;
The motion must designate the documents, papers, books, accounts, letters,
photographs, objects or tangible things which the party wishes to be
produced and inspected;
Such documents, etc., are not privileged;
Such documents, etc., constitute or contain evidence material to any matter
involved in the action, and
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 phsical 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:
Serve answers to written interrogatories under Rule 25 o Appear before the
deposing officer for oral examination
Comply with an order under Rule 27 to produce any document for inspection,
photocopying or photographing
Comply with an order under Rule 28 requiring him to submit to physical or
mental examination
Comply with an order to answer designated questions upon oral examination
or written interrogatory
Contempt of court –
oRefusal of a witness to be sworn
oRefusal of a witness to answer any question after being directed to do so by
the court
Arrest of the party or agent of the party –
oIn 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.
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:
oServe answers to written interrogatories under Rule 25 oAppear before the
deposing officer for oral examination
Taking the matters inquired into as established in accordance with the claim of
the party seeking discovery – Failure of a party to:
oFile a sworn answer to a Request for Admission
oComply with an order under Rule 27 to produce any document for inspection,
photocopying or photographing
oComply with an order under Rule 28 requiring him to submit to physical or
mental examination
oComply with an order to answer designated questions upon oral examination
or written interrogatory
Refusal to allow the disobedient party support or oppose designated claims or
defenses or staying further proceedings – Failure of a party to:
oComply with an order under Rule 27 to produce any document for inspection,
photocopying or photographing
oComply with an order under Rule 28 requiring him to submit to physical or
mental examination
oComply 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?
Two or more actions are pending before the court involving the same parties;
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
The court has jurisdiction over the cases to be consolidated (Republic v. CA,
G.R. No. 116463, June 10, 2003).
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).
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.
oThe 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:
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)
A was the lessor of B. During the term of the lease, B preterminated 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 preterminate 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).
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 nonpayment 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)
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.
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 Q: What is a several judgment?
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
A: 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 several judgment is proper only when the liability of each party

against each of them could have been the subject of separate
other. Where a common cause of action exists against the defen
(De
Leon v. Court of Appeals, 6 June 2002)

RULE 39
A: NO. The dispositive portion of the decision merely denied the complaint.
Rule Though the Court
on Execution - onlystated, as executory
final and its reason,judgments
the existence
mayofbethe southern
executed
pathway, that was an issue in the case and hence not part of the dispositive portion. (Obra v. Badua, 9 August
Exceptions:
2007) Judgments pending appeal
Immediately executory judgments (N.B. Both judgments are not final but may
already be executed)
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
Equitable grounds such as where there is a change in the situation of the parties
Judgment has been novated by parties
Judgment has become dormant
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:
Motion by judgment obligee;
Notice to adverse party ;
Before court of origin;
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:
there must be a motion by the prevailing party with notice to the adverse party;
there must be good reasons for execution pending appeal;
the good reasons must be stated in the special order; and
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
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.
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
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.
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)
Who may redeem: judgment obligor or his successor in interest and redeeming
creditor or redemptioner
Period of redemption: 1 year from date of registration of certificate of sale
WITHIN THE 1-YEAR PERIOD OF REDEMPTION
Rents, earnings and income of property during redemption belong to Judgment
Obligor
Possession remains with Judgment Obligor
No limit as to the number of times a property may be redeemed
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
Effect of redemption by judgment obligor – no further redemption shall be
allowed and he is restored to his estate.
Effect of No Redemption
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)
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
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
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)