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LECTURE NOTES ON CIVIL PROCEDURE

Revised October 2009

WHAT IS CIVIL PROCEDURE

1. It is the procedure governing the filing, processing and adjudication of civil

actions. It essentially is the lawyer’s law that defines the rules of the game that lawyers and judges play.

2. It is considered as procedural law as it prescribes the method of enforcing

rights and obtaining redress for their invasion, as opposed to substantive law which creates, defines, and regulates rights and duties that give rise to a cause of action.

2.1 The rules of procedure promulgated by authority of law bear the force and

effect of law. 1

3. It is embraced in Rules 1 to 71 of the Rules of Court and after its revision,

is now commonly known as the 1997 Rules of Civil Procedure. It is divided into the following topics: General Provisions (Rule 1), Ordinary Civil Actions (Rules 2-5), Procedure in Regional Trial Courts (Rules 6-39), Appeals (Rules 40-43), Procedure in the Court of Appeals and Supreme Court (Rule 44- 56), Provisional Remedies (Rules 57-61), and Special Civil Actions (Rules 62-71).

4. Included within its scope are the 1991 Rules on Summary Procedure,

Local Government Code provisions on the Katarungang Pambarangay and related issuances of the Supreme Court.

PRELIMINARIES

1. Any discussion of procedural rules should always be preceded by a

discussion of jurisdiction as its presence is what gives rise to the application of the rules for the purpose of resolving the action that is brought before a court. Simply defined it refers to the power and authority of a court or tribunal to hear, try and decide a case. It has also been defined as the authority by which courts and judicial officers take cognizance of and decide cases.

1.1 Absent jurisdiction, the only thing a court can do as provided by the rules

is to dismiss the action.

1 Conlu v. Court of Appeals, 106 Phil 940

1.2

If a court acts without jurisdiction, all its acts are null and void. Further, any

decision

it may render is not a decision in contemplation of law and cannot be

executory. 2

1.3 The validity of a judgment or order of a court or quasi-judicial tribunal

which has become final and executory may be attacked when the records show that it lacked jurisdiction to render the judgment-a void judgment may be assailed

or impugned at any time either directly or collaterally by means of a petition filed in the same or separate case, or by resisting such judgment in any action or proceeding wherein it is invoked. In fact, even the testimony in a case where the

proceedings

had

been

nullified

for

lack

of

jurisdiction

is

inadmissible

as

evidence. 3

2. The absence of jurisdiction as a general rule may be questioned at any

stage of the proceedings, even on appeal.

2.1 However, a party may be barred from raising it on the ground of laches or

estoppel

participating in the proceedings, then belatedly questions lack of jurisdiction after judgment has gone against him. Participation in all stages before the trial court which included invoking its authority in asking for affirmative relief, effectively bars the party by estoppel from challenging the court’s jurisdiction. 4

invoked

by

when

he

has

actually

the

jurisdiction

of

the

court

2.2 The court actually does not have jurisdiction, but the law for reasons of

equity, steps in to gag the negligent party and prevents him from raising its voice about lack of jurisdiction. It does so not because the Court has acquired jurisdiction but because of fault or negligence of a party now estops him from raising the question of lack of jurisdiction. 5

2.3 Note likewise the rules covering actions for annulment of judgment based

on extrinsic fraud or lack of jurisdiction. If based on the latter, it can only be initiated before it is barred by laches or estoppel. 6

2.4 It is incumbent upon the petitioner to file a motion to dismiss at the earliest

opportune time to raise the issue of the court’s lack of jurisdiction. Its failure to

2 Abbain vs. Chua, 22 SCRA 748, Estoesta vs. Court of Appeals, 179 SCRA 203, Dava vs. People, 202 SCRA 62

3 Dynamic Signmaker Outdoor Advertising Services, Inc. vs. Potongan, 461 SCRA 328

4 Heirs of the late Panfilo V. Pajarillo v. Court of Appeals, 537 SCRA 96

5 Tijam v. Sibonghanoy, 23 SCRA 29, Soliven v. FastForms, Phil. Inc., 440 SCRA 389

6 Sections, 2 and 3, Rule 49, 1997 Rules of Civil Procedure

seasonably raise the question of jurisdiction leads to the inevitable conclusion that it is now barred by laches. 7

REQUISITES FOR A VALID EXERCISE OF JURISDICTION

1. It must have jurisdiction over the persons of the parties. It is acquired over

the plaintiff upon his filing of a complaint.

1.1 On the other hand, it is acquired over the defendant by his voluntary

appearance before the court or the employment of the coercive power of legal process.

2. It must also have jurisdiction over the subject matter in controversy.

Jurisdiction over the subject matter of the complaint is to be determined by the allegations in the complaint and the law in force at the time of the commencement of the action. This is the power of a court to hear and determine cases of a general class to which the proceedings in question belong. 8

be

determined at the commencement of the action. Since an action is commenced by the filing of a complaint, it is also the means by which the plaintiff invokes the jurisdiction of the court. Hence, it is from it that a determination of the existence of jurisdiction is had.

2.1 Determined

by

allegations

in

the

complaint.

Jurisdiction

must

2.2 The determination is to be confined solely to the four corners of the

complaint. Specifically, what characterizes an action is not the caption of the pleading, which is just a legal conclusion on the part of the pleader, but the allegations in the body of the complaint. 9

2.3 In case of conflict between the allegations and the reliefs, the allegations

in the body shall prevail. The prayer is a conclusion of the pleader as to the proper reliefs that he would be entitled to on the basis of the pleaded cause of action. The Court is not bound as it may grant a relief, lesser or greater in amount, or totally different from that prayed for. 10

2.4 Even if the plaintiff alleges an amount that puts the case within the

jurisdiction of the RTC, the court’s jurisdiction is not affected if it later finds that

7 United Overseas Bank v. Ros, 529 SCRA 334

8 Heirs of Valeriano S. Concha, Sr. v. Lumocso, 540 SCRA 1

9 De Jesus v. Bristol Laboratories, 55 SCRA 349, Solid Homes v. Court of Appeals, 271 SCRA 157

10 Bulao v. Court of Appeals, 218 SCRA 321

the plaintiff is entitled to an amount within the jurisdiction of an MTC. 11 Conversely, if a court has no jurisdiction, the defect will not be cured by a finding during the trial that the amount actually due is within the jurisdiction of the court. 12

2.5 Neither can it be determined from the allegations in the answer of the

defendant. If the rule were otherwise, no action can prosper as all the defendant has to do is to allege that the jurisdiction is vested in another court.

2.6 The only recognized exception is the defense of agricultural tenancy. 13

The court in this case must conduct a preliminary hearing on the defense to determine if there is indeed a tenancy relationship, as its existence shall mean that the court has no jurisdiction as the same is vested exclusively with the DARAB. 14

2.7 Determined by the law in force at the time of the commencement of the

action. Jurisdiction as used in the Constitution and statutes means jurisdiction over the subject matter unless qualified to mean another kind of jurisdiction. This jurisdiction refers to the jurisdiction of a court over a general class of cases or the power to try and decide the class of litigation to which the particular case belongs. Jurisdiction is conferred by law, where there is none, no agreement of the parties can provide one. 17

15

16

2.8 Example: If an action for payment of a sum of money is filed after the

effectivity of RA 7961 on April 15, 1994, expanding the jurisdiction of the MTC and implemented by Adm. Circular 9-94 interest, damages of whatever kind- as long as incidental, attorney’s fees, litigation expenses and costs (DIAL-C) are not to be considered in fixing the jurisdictional amount, but must be specifically alleged and filing fees paid thereon. Hence, in an action for the payment of a sum of money previous to the said date, a determination of jurisdiction would have to include the amounts claimed by way of DIAL-C. Another is Section 5.2, RA

18

11

12

13

14

15

16

17

18

Ratilla v. Tapucar, 75 SCRA 64

Mercado v. Ubay, 187 SCRA 719

Section 3, Rule 70, 1997 Rules of Civil Procedure

Concepcion v. CFI of Bulacan, 119 SCRA 222

Reyes v. Diaz, 73 Phil 484

Caluag v. Pecson, 82 Phil 8

Department of Health v. NLRC, 251 SCRA 700

June 14, 1994

8799

a commercial court.

19 that vests jurisdiction over intra-corporate disputes in the RTC that sits as

2.9 When a court has already obtained and is exercising jurisdiction over a

controversy, its jurisdiction to proceed to the final determination of the cause is not affected by new legislation placing jurisdiction over such proceedings in another tribunal unless the statute expressly provides, or is construed to the effect that it is intended to operate on actions pending before its enactment. 20

3. Jurisdiction over the res assumes importance only in those actions where

the court cannot acquire jurisdiction over the person of the defendant because he is not a resident and cannot be found here or served with summons.

3.1

defendant personally, although its object is to subject his interest in the property to the obligation or the lien. 22

These are quasi in rem actions. The action is directed against a

21

PROBLEM AREAS AFFECTING JURISDICTION

1.

Actions which are incapable of pecuniary estimation

1.1

Generally, it is one where the basic issue is something other than the right

to recover money, where the money claim is incidental to or is a consequence of the principal relief being sought.

1.2 It is a claim, the subject of which cannot be estimated in terms of money.

1.3 Examples: Action for specific performance – although damages are being

sought but if damages are part of an alternative prayer, jurisdiction should be based on the amount. Other examples: Action for appointment of receivers, expropriation, interpleader, support, and rescission.

1.4 In determining which court has jurisdiction, the applicable test is the

Nature of the Action Test which involves a determination as to whether or not the action is capable of pecuniary estimation. If not capable, jurisdiction is with the RTC. If capable-jurisdiction is determined by the amount claimed/value of the real or personal property but this test must yield to the Primary or Ultimate Objective

19

20

21

22

Securities Regulation Code of 2000

Palana v. People, 534 SCRA 296

Perkins v. Dizon, 69 Phil 186

Biaco v. PCRB, 515 SCRA 106

Test where notwithstanding the fact that the action appears to be incapable of

pecuniary

jurisdiction will be determined by the assessed value of the real property.

estimation,

if

the

primary

objective

is

to

recover

real

property,

1.5 Examples: An action for specific performance with a prayer for the

issuance of a deed of sale over a parcel of land is a real action as the object is the recovery of the land itself or an action to quiet title in which both parties are claiming ownership of the subject parcels of land is also a real action. Hence, they cannot be considered as being incapable of pecuniary estimation.

23

24

2. DETERMINATION OF AMOUNTS OF THE CLAIM TO DETERMINE

JURISDICTION AND PAYMENT OF DOCKET FEES.

2.1 Filing and docketing of the complaint are not separate but are

complementary. It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the action. 25

2.2 The problem arises as filing is not synonymous with docketing as the

complaint may be filed but not necessarily docketed if the appropriate fees are not paid.

2.3 The purpose of docket fees is to take care of court expenses in the

handling of cases in terms of costs of supplies, use of equipment, salaries and benefits. 26

2.4 Examples in determining appropriate docket fees: (a) F o r e c l o s u r e o f

chattel to collect PHP 100,000.00 but actual value of chattel is PHP 500,000.00, the docket fee is based on what is sought to be collected and jurisdiction is determined by the amount claimed by the plaintiff (b) An action to collect a sum of money that is within jurisdiction of the MTC but with accessory prayer for damages beyond MTC jurisdiction, the damages, interest, attorneys’ fees, litigationg expenses are to be excluded in determining jurisdiction but docket

23 Gochan v. Gochan, 372 SCRA 256

24 Ferrer v. Lucas, CA G.R. No. SP 52294, July 9, 1999

25 Proton Pilipinas Corporation v. Banque Nationale de Paris, 460 SCRA 260.

26 Serrano v. Delica, 465 SCRA 82

27 but if action is for damages over 400K jurisdiction is

with the RTC because it is the main cause of action or one of the causes of action.

fees are still to be collected

the trial court should allow the plaintiff to

pay within a reasonable period of time before the expiration of the applicable prescriptive or reglamentary period otherwise the defendant must move to dismiss the complaint on the ground of lack of jurisdiction, if he does not, he may be considered to be in estoppel. 28

2.5 If the docket fees are incorrect-

2.6 The court had jurisdiction over the amended complaint as it had acquired

jurisdiction over the case when the original complaint was filed and the corresponding docket fee was paid thereon. While the payment of the prescribed docket fee is a jurisdictional requirement, even its nonpayment at the time of filing does not automatically cause the dismissal of the case, as long as the fee is paid within the applicable prescriptive or reglementary period. 29

2.7 When the docket fees for the main action are paid but those for related

damages alleged but not specified are not paid, the court is not prevented from proceeding with the complaint, the trial court may expunge the claims or allow on motion, a reasonable time for amendment of the complaint or accept payment of the requisite legal fees. 30

2.8 In a complaint for recovery of possession of real property which did not

allege the assessed value thereof, the trial court commits a serious error in denying a motion to dismiss on the ground of lack of jurisdiction. All proceedings in said court are null and void. 31

2.9 If the claims are not specified and subsequently arise

insufficiency in the payment of docket fees, the required additional fee shall constitute a lien on the judgment and the clerk of court must enforce and collect the difference in docket fees from the judgment that may be rendered by the court in the case, awarding a claim no specified in the pleading or if specified is left to its determination. 32

an

or there

is

27 A.M. 09-94, June 14, 1994

28 NSC v. Court of Appeals, G.R. 123215, February 2, 1999

29 Pagcor v. Lopez, 474 SCRA 76, Polido v. Court of Appeals, 527 SCRA 248

30 Tacay v RTC of Tagum, Davao del Sur, 180 SCRA 433

31 Quinagoran vs. CA, GR No. 155179, August 24, 2007

32 Pascual v. Court of Appeals, 300 SCRAPascual v. Court of Appeals, 300 SCRA 214

DISTINCTIONS BETWEEN THE NATURE OF JURISDICTION EXERCISED BY THE COURTS

1. AS TO THE NATURE OF THE EXERCISE OF JURISDICTION OR KIND

OF CASES THAT ARE TRIED – it is General, meaning it is exercised over all kinds of cases or Limited, meaning it exercised over and extends only to a particular or specified cases

2. AS TO THE NATURE OF THE CAUSE OR THE ACTION – it is Criminal

when the object of the action is to impose punishment for a crime or Civil, if otherwise.

3. AS TO THE TIMING OF ITS EXERCISE- it is Original, meaning it is

exercised by courts in the first instance or Appellate, meaning it is exercised by a superior court to review and decide a cause or action previously decided by a lower court.

4. AS TO THE EXTENT OF THE EXERCISE OF JURISIDICTION – it is

Exclusive, meaning it is confined to a particular court or Concurrent, meaning two or more courts have jurisdiction at the same time and place.

4.1 In this instance, the court which has first validly acquired jurisdiction takes

it to the exclusion of the others. This is also known as the Exclusionary Principle. This is taken together with the Doctrine of Judicial Stability of Non-Interference which holds that court of co-equal or coordinate jurisdiction shall have no authority to pass upon or scrutinize the exercise by another court of its jurisdiction.

4.2 Note though the Doctrine of Hierarchy of Courts which requires litigants to

initially seek proper relief from the lower courts in those cases where the Supreme Court has concurrent jurisdiction with the Court of Appeals and the Regional Trial Court to issue the extraordinary writs of certiorari, prohibition or mandamus. The Supreme Court is a court of last resort and its jurisdiction to issue extra-ordinary writs should be exercised only when absolutely necessary, or where serious and important reasons therefor exist. Neither does concurrence of jurisdiction grant any party seeking any of the extra-ordinary writs the absolute freedom to file the petition with the court of his choice. 34

33

33 Pearson v. IAC, 295 SCRA 27

34 Ouano vs. PGTT International Investment Corporation, 384 SCRA 587

5.

AS TO SITUS – it is Territorial, meaning it is exercised within the limits of

the place where the court is located or Extra-Territorial meaning it is exercised beyond the confines of the territory where the court is located.

WHAT HAPPENS WHEN JURISDICTION IS ACQUIRED

Jurisdiction once acquired continues until the case is terminated. It is not affected by subsequent legislation placing jurisdiction in another tribunal. The exceptions are: when the law expressly provides for retroactivity, when the change in jurisdiction is curative in nature, or when there is a perfected appeal. This is also known as the Doctrine of Adherence to Jurisdiction.

36

35

DOCTRINE OF PRIMARY JURISDICTION

1. That which vests in an administrative tribunal the jurisdiction to determine

a controversy requiring the exercise of sound administrative discretion – stated

otherwise – if jurisdiction is vested upon an administrative body, no resort to courts can be made until the administrative body shall have acted on the matter.

2. In exercising its primary jurisdiction, a court has the inherent jurisdiction to

determine issues incidental to its exercise. This is known as the Doctrine of Ancillary Jurisdiction.

LEVELS OF SUBJECT MATTER JURISDICTION

1. JURISDICTION OF THE SUPREME COURT

The jurisdiction of the Supreme Court in civil cases of which it cannot be deprived and which cannot be diminished by Congress is to review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) all cases in which

the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation

is in question; (b) all cases involving the legality of any tax, impost, assessment,

or toll, or any penalty imposed in relation thereto; (c) all cases in which the jurisdiction of any lower court is in issue; and (d) all cases in which only an error or question of law is involved.

35 Mercado v. Ubay, 187 SCRA 719

36 Latchme Motoomull v. Dela Paz, 187 SCRA 743

The

foregoing

Constitutional

definition

is

of

appellate

jurisdiction.

Congress, however, is not prohibited from increasing or adding to this Constitutionally-defined jurisdiction. And so Congress has given the Supreme Court original jurisdiction over cases affecting ambassadors, other public ministers, and consuls and petitions for the issuance of writs of certiorari, prohibition and mandamus against the Court of Appeals. Congress has also vested the Supreme Court with jurisdiction, concurrent with the RTCs, over petitions for the issuance of the writs of certiorari, prohibition, habeas corpus, and in actions brought to prevent and restrain violations of law concerning monopolies and combinations in restraint of trade.

The appellate jurisdiction in civil cases of the Supreme Court as defined in the Constitution had been revised and expanded a little bit more by law to include all cases involving petitions for naturalization or denaturalization, all decisions of the Auditor General, if the appellant is a private person or entity, and final judgments or orders of the Commission on Elections.

2. JURISDICTION OF THE COURT OF APPEALS

The Court of Appeals has both original and appellate jurisdiction. Its original jurisdiction, which is exclusive, is over actions for annulment of RTC judgments. Its original jurisdiction, which is concurrent with the Supreme Court and the RTCs, is to issue writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction.

The appellate jurisdiction of the Court of Appeals, which is exclusive, is over final judgments or resolutions of RTCs and quasi-judicial agencies, such as the Securities and Exchange Commission, Sandiganbayan and the National Labor Relations Commission.

3. JURISDICTION OF REGIONAL TRIAL COURTS

The RTCs are our second-level trial courts. As the Supreme Court and the Court of Appeals, RTCs have both original and appellate jurisdiction in civil cases.

Their original jurisdiction is concurrent with the Supreme Court and the Court of Appeals in the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunctions but, as issued by RTCs, these writs may be enforced only within their respective regions, and over actions affecting ambassadors and other public ministers and consuls. The original jurisdiction of RTCs, which is exclusive, is broad and covers the following cases: (1) all civil actions in which the subject of the litigation is incapable of pecuniary estimation; (2) all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds Two

hundred thousand pesos (P200,000.00) or for civil actions in Metro Manila, where such value exceeds Four hundred thousand pesos (P400,000.00) except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts; (3) all actions in admiralty and maritime jurisdiction where the demand or claim exceeds Two hundred thousand pesos (P200,000.00) or in Metro Manila, where such demand or claim exceeds Four hundred thousand pesos (P400,000.00); (4) all matters of probate, both testate and intestate, where the gross value of the estate exceeds Two hundred thousand pesos (P200,000.00) or, in probate, both testate and intestate, where the gross value of the estate exceeds Two hundred thousand pesos (P200,000.00) or, in probate matters in Metro Manila, where such gross value exceeds Four hundred thousand pesos (P400,000.00); (5) all actions involving the contact of marriage and marital relations; (6) all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions; (7) all civil actions and special proceedings falling within the exclusive jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as then provided by law; and (8) all other cases in which the demand, exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs or the value of the property in controversy exceeds Two hundred thousand pesos (P200,000.00) or, in such other cases in Metro Manila, where the demand, exclusive of the above-mentioned items exceeds For hundred thousand pesos (P400,000.00).

The appellate jurisdiction of the RTCs is over all cases decided by Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in their respective territorial jurisdiction.

The term “damages of whatever kind” has been specially defined by the Supreme Court for purposes of determining the jurisdictional amount in respect to the jurisdiction of the RTC. This term is understood to apply only to cases when the damages are merely incidental to or a consequence of the main cause of action, and that therefore where the claim for damages is the main cause of action or one of the causes of action, the amount of the claim shall be considered in determining the jurisdiction of the court.

The Supreme Court has however designated certain branches of the RTCs to handle exclusively certain cases as corporate and intellectual property cases.

4.

JURISDICTION

OF

METROPOLITAN

TRIAL

COURTS,

MUNICIPAL

TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS

The MTCs are the first-level trial courts in this country. They have therefore no appellate jurisdiction and all their jurisdiction is exclusive and

encompasses the following cases: (1) all civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed two hundred thousand pesos (P200,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed Four hundred thousand pesos (P400,000.00), exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That where there are several claims or causes of actions 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; (2) cases of forcible entry and unlawful detainer: Provided, That when, in such cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession; and (3) all civil actions which involve title to, or possession of, real property or any interest therein where the assessed value of the property or interest therein does not exceed Two hundred thousand pesos (P200,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Four hundred thousand pesos (P400,000.00) exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses and costs.

The MTCs may however be assigned by the Supreme Court to hear and determine certain cadastral cases and petitions for habeas corpus.

RULE I

GENERAL PROVISIONS

1. The Rules shall be known and cited as the Rules of Court. 37

2.

Court

They

apply in

all courts, except as otherwise provided by the Supreme

38

in civil, criminal and special proceedings.

39

2.1 For purposes of the subject matter, only Rules 1 to 71 or the 1997 Rules

of Civil Procedure shall be discussed herein.

37 Section 1, Rule 1, 1997 Rules of Civil Procedure

38 Supra, Section 2, Rule 1

39 Supra, Section 3, Rule 1

2.2

A Civil Action is one by which a party sues another for the enforcement or

protection of a right or the prevention or redress of a wrong. Examples: To enforce payment of a loan or to eject an intruder on one’s property.

2.3 Civil Actions may be considered as:

(a) Ordinary or Special, while both are governed by the rules for ordinary civil

actions, there are specific rules prescribed for a special civil action.

(b) In Personam, which is an action brought against a person based on

personal liability to the person bringing the action. The purpose of the action is to impose through the judgment of a court, some responsibility or liability directly upon the person of the defendant. In this kind of action, no one other than the defendant is held liable, not the whole world.

40

(c) In Rem, is an action that is directed against the thing itself rather than the

person, It is directed against the thing, property or status of a person and seeks judgments with respect thereto against the whole world. An example would be an action for registration of land as the judgment thereon is binding upon the whole world.

41

(d) Quasi in Rem, is an action that names a person as a defendant but its

object is to subject the person’s interest in property to a corresponding lien or obligation. It deals with the status, ownership or liability of a particular property but which are intended to operate on these questions only as between the particular parties to the proceedings and do not cut off the rights and interests of all possible claimants. Examples are actions for partition, attachment or foreclosure of mortgages.

42

2.4 Note the distinctions between actions in personam, on one hand, and

actions in rem or quasi in rem on the other, is essential as far as jurisdiction. In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. Jurisdiction over the res is acquired either (1) by the seizure of the property under legal process, whereby it is brought into actual custody of the law; or (2) as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective. 43

40 Domagas v. Jensen, 448 SCRA 663

41 Ching v Court of Appeals, 181 SCRA 9

42 Ramos v. Ramos, 399 SCRA 43

43 Biaco v. Philippine Countryside Rural Bank, GR No. 161417, February 8, 2007

3.

Civil Actions can also be distinguished as:

3.1 Real Actions are those which affect title to, or possession of real property

or any interest therein.

44

All others are personal actions.

45

3.2 In a real action, it is founded upon the privity of real estate. That means

that realty or any interest therein is the subject matter of the action. What is essential is that as far as the real property is concerned, the issues are title to, ownership, possession, partition, foreclosure of mortgage or condemnation. Hence, an action for damages suffered by real property is a personal action as it does not involve any of the listed issues.

3.3 An action to annul a contract of loan and its accessory real estate

mortgage is a personal action. In a personal action, the plaintiff seeks recovery of personal property, the enforcement of a contract or recovery of damages. A real action is an action affecting title to real property or for recovery of possession, or for partition or condemnation of, or foreclosure of mortgage on real property. The rule on real actions only mentions an action for foreclosure of real estate mortgage; it does not include an action for cancellation or annulment of a real estate mortgage. 46

3.4 The distinction between a real action and a personal action is important for

the purpose of determining the venue of the action.

3.5 An action in personam is not necessarily a personal action. Nor is a real

action necessarily an action in rem. An in personam or an in rem action is a classification of actions according to the object of the action. A personal and real action is a classification according to foundation. It is in rem when directed against the whole world. For instance, an action to recover, title or possession of real property is a real action, but it is an action in personam. It is not brought against the whole world but against the person upon whom the claim is made. 47

4.

Distinguishing civil actions from other kinds of actions:

4.1

Criminal Action is one by which the state prosecutes a person for an act or

omission punishable by law.

4.2 A Special Proceeding is a remedy by which a party seeks to establish a

status, right or a particular fact.

In addition, a civil action is adversarial, while a

special proceeding may not be so as it may involve only 1 party. The object of a

44 Supra, Section 1, Rule 4

45 Supra, Section 2, Rule 4

46 Chua vs. Total Office Products and Services, Inc., 471 SCRA 500

47 Republic v Court of Appeals, 315 SCRA 600

civil action is the formal demand of a right by one against the other, while in a special proceeding, it is the declaration of a status, right or a particular fact.

5. They do not apply to election cases, land registration, cadastral,

naturalization and insolvency, and other cases not herein provided, except by analogy or in suppletory character and whenever practicable and convenient. 48

6. The rules have retroactive application in the sense that they shall be held

to apply to actions pending or undetermined at the time of their effectuality. 49

6.1 The exceptions to retroactive application are: (a) the statute itself or by

implication provides that pending actions are excepted (b) it will impair vested rights (c) to the mind of the court, it will work injustice (d) it would involve intricate problems of due process or impair the court’s independence

WHEN AN ACTION IS COMMENCED

1. An action is commenced upon the filing of the original complaint in court.

Filing refers to the act of presenting the complaint to the clerk of court and the payment of the requisite docket and filing fees. Filing is deemed done only upon payment regardless of the actual date of the filing. 50

1.1 An exception is when the plaintiff is authorized to litigate as a pauper

litigant as he is exempt from the payment of filing fees.

2. If an additional defendant is impleaded in a later pleading, it is

commenced as far as the additional defendant on the date of the filing of the later pleading, irrespective of whether the motion for its admission, if necessary is denied by the court. 51

3. Note that the commencement of the action interrupts the period of

prescription as to the parties to the action. 52

HOW SHOULD THE RULES BE CONSTRUED

48 Supra,,Section 4, Rule 1

49 Nypes v. Court of Appeals, 478 SCRA 115

50 Magaspi v. Ramolete, 115 SCRA 193

51 Supra, Section 5, Rule 1

52 Cabrera v Tiano,8 SCRA 542

1.

The rules shall be construed liberally in order to promote their objective of

securing a just speedy and inexpensive disposition of every action or proceeding. 53

1.1 Liberal construction is the controlling principle to effect substantial justice.

Litigation should as much as possible, be decided on their merits, and not on technicalities.

1.2 Rules must not be applied to rigidly so as not to override substantial

54

justice. Rules of procedure must be used to facilitate not to frustrate the ends of justice. 55

1.3 It does not mean, however, that procedural rules are to be ignored or

disdained at will to suit the convenience of a party. 56

2. Liberal construction of the rules should be made by the courts in cases:

(a) a rigid application will result in manifest failure or miscarriage of justice, especially if a party successfully shows that the alleged defect in the questioned final and executory judgment is not apparent on its face or from the recitals contained therein (b) where the interest of substantial justice will be served (c) where the resolution of the motion is addressed solely to the sound and judicious discretion of the court (d) where justice to the adverse party is not commensurate with the degree of this thoughtlessness in not complying with the procedure

prescribed. 57

3. A party litigant should be given the fullest opportunity to establish the

merits of his complaint or his defense. He ought not to lose life, liberty or honor or property on technicalities.

3.1 Rules of procedure should be viewed as mere tools designed to facilitate

the attainment of justice. An example is the matter of the attachment of copies to

petitions

58

or failure to indicate material dates in the petition.

59

53 Supra,Section 6, Rule 1

54 De La Cruz v. Court of Appeals, GR No. 139442, December 6, 2006

55 Canton v City of Cebu, GR No. 152898, February 12, 2007

56 Vda De Toledo v Toleda, 417 SCRA 260

57 Seapower Shipping Enterprises, Inc. v CA, 360 SCRA 173, Tan v CA, 295 SCRA 755

58 Alberto v Court of Appeals, 334 SCRA 756

59 Fulgencio v NLRC, 411 SCRA 69

4.

Note that in doing so, substantial justice and equity considerations must

not be sacrificed.

4.1 Periods for filing are as a matter of practice, strictly construed.

4.2 Neither can liberality of the rules be invoked if it will result in the wanton

disregard of the rules or cause needless delay in the administration of justice. 60

5. Concommitant to a liberal application of the rules of procedure should be

an effort on the part of the party invoking liberality to adequately explain his failure to abide by the rules. 61

6. The rules and procedure laid down for the trial court and the adjudication

of cases are matters of public policy.

6.1 They are matters of public order or interest which can in no wise be

changed or regulated by agreements between or stipulations by parties to an action for their singular convenience. 62

6.2 They are required to be followed except only for the most persuasive of

reasons as when transcendental matters of life, liberty or state security is involved. Litigation is not a game of technicalities. It is equally true, however, that every case must be presented in accordance with the prescribed procedure to ensure an orderly and speedy administration of justice. 63

7. The Supreme Court has the power to suspend or set aside its rules in the

64

higher interest of justice. Specifically, the reasons that will warrant the suspension are: (a) the existence of special or compelling reasons (b) the merits of the case (c) a cause not entirely attributable to the fault or negligence of the party favored by the suspension (d) a lack of showing that the review is frivolous or dilatory, and (e) the other party will not be prejudiced thereby. 65

RULE 2

CAUSE OF ACTION

CAUSE OF ACTION DEFINED

60 El Reyno Homes v Ong, 397 SCRA 563

61 Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v Duremdes, 415 SCRA 684

62 Republic v Hernandez, 253 SCRA 509

63 Mindanao Savings Loan Association v. De Flores, 469 SCRA 416

64 Fortica v Corona, GR No. 131457, April 24, 1998

65 Sarmiento v. Zaratan, GR No. 167471, February 5, 2007

1.

The basis of an ordinary civil action is a cause of action. 66

2. A cause of action is the act or omission by which a party violates a right of

another. 67

THE REQUISITES OF A CAUSE OF ACTION

1. The requisites for a cause of action are: (a) a right in favor of the plaintiff

by whatever means and under whatever law it arises or is created (b) an obligation on the part of the defendant to respect and not to violate such right (c) an act or omission on the part of the defendant constituting a violation of the plaintiff’s right. 68

DISTINGUISHING IT FROM AN ACTION AND A RIGHT OF ACTION

1. An action is the suit filed in court for the enforcement or protection of a

right, or the prevention or redress of a wrong, while a cause of action is the basis for the filing of the action.

2. The right of action is the right to commence and maintain an action, it is a

remedial right that depends on substantive law, while a cause of action is a formal statement of the operative facts that give rise to such remedial right which is a matter of statement and is governed by procedural law. The right of action which is procedural in character is the consequence of the violation of the right of the plaintiff. Hence, there is no right of action where there is no cause of action.

2.1 The distinction is best used to explain the principle that the existence of a

cause of action may only be ascertained from the allegations of the complaint. 69

HOW MANY SUITS CAN BE FILED FOR A CAUSE OF ACTION

Same Objective Test – if a party has only one objective in filing two cases, there exists identity of causes of action and reliefs based on the same objective standard. 70

66

Supra, Section 1, Rule 2

67

68

69

Supra, Section 2, Rule 2, PNOC v. Court of Appeals, GR No. 165433, February 6, 2007

Navao v CA, 251 SCRA 545

Equitable Bank v CA, 425 SCRA 544

70

Clark Development Corporation v Mondragon Leisure Resorts, 517 SCRA 203

1. A party may not institute more than one suit for a single cause of action. 71

2. The practice of splitting a cause of action is discouraged because it breeds

multiplicity of actions, clogs the dockets of the courts and operates to cause unnecessary expense to the parties.

3. If a party institutes more than one suit, the filing of one or a judgment upon

the merits in anyone is available as a ground for the dismissal of the others. 72 This is also known as Splitting a Cause of Action.

3.1 The remedy of the defendant is to file a motion to dismiss. If the action is

pending when the second action is filed, the dismissal is based on litis pendentia or if a final judgment has been rendered in the first action when the second is filed, the dismissal is based on res judicata.

3.2 Note though that the rule does not confine itself to a dismissal of the

second action. As to which action is to be dismissed would depend on judicial discretion and attendant circumstances.

4. The rule on splitting a cause of action applies not only to complaints but

also to counter-claims and cross-claims. 73

5.

The singleness of a cause of action is determined as follows:

5.1

In an action Ex Delicto or one arising from the fault or negligence of a

defendant, the singleness of a cause of action lies in the singleness of the delict or wrong violating the right of a person. If however, one injury results from several wrongful acts, only one cause of action arises. Example: A party who is injured could not maintain an action for damages based on a breach of the contract of carriage against the owner of the vehicle in which he was riding and another action for quasi-delict against the driver/owner of the offending vehicle. The recovery under one remedy necessarily should bar recovery under another. This, in essence, is the rationale for the proscription in our law againt double recovery for the same act or omission which, obviously stems from the fundamental rule against unjust enrichment. 74

71 Supra, Section 3, Rule 2

72 Supra, Section 4, Rule 2

73 Mariscal v. Court of Appeals, 311 SCRA 51

74 Joseph v Bautista, 170 SCRA 540

5.2

In an action Ex Contractu or one arising out of or is founded on a contract,

the rules are as follows:

(a) In a single or indivisible contract, only one cause of action arises from a

single or several breaches. Example: In a contract of sale of personal property by installments, the remedies of the unpaid seller is alternative, they are: (1) elect fulfillment (2) cancel the sale, should the vendee’s failure to pay cover two or more installments, and (3) foreclose the mortgage on the thing sold if one has been constituted should the vendee fail to pay two or more installments. 75

(b) If the contract provides for several obligations, each obligation not

performed gives rise to a single cause of action. But if upon filing of the complaint several obligations have already matured, all of them shall be integrated into a single cause of action. Example: Contract for delivery of goods in part or over a period.

(c) If the contract is divisible in its performance, and the future performance is

not yet due, but the obligor has already manifested his refusal to comply, the contract is entire and the breach is total. Thus, there can only be one action. 76 This is known as the Doctrine of Anticipatory Breach.

IF A PARTY HAS SEVERAL CAUSES OF ACTION

1.

alternative or otherwise, as many causes of action as he may have against the opposing party. It is the assertion of as many causes of action as a party may have against another in one pleading alone.

He can join his causes of action as he may in one pleading assert, in the

77

2. It has also been defined as the process of uniting two or more demands or

rights of action in one action. 78

3.

Joinder is subject to the following conditions:

3.1

Party joining the causes of action shall comply with the rule on joinder of

parties, which provides that : All persons in whom or against whom any right to relief is respect to or arising out of the same transaction is alleged to exist, whether jointly, severally or in the alternative, may except as otherwise provided in these rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such

75

Articles 1484,1486, NCC

76

Blossom & Co v Manila Gas Corporation, 55 Phil 226

77

78

Supra, Section 5, Rule 2

1 C.J.S., Actions 61

79

defendants may arise in the action. Note that the common question of law or fact is relevant only when there are multiple plaintiffs or defendants.

3.2 Joinder does not allow the inclusion of special civil actions or actions

governed by special rules . Example: An action for a sum of money cannot be joined with an action for iIlegal detainer

3.3 Where causes of action are between same parties but pertain to different

venues or jurisdictions, joinder may be allowed in the RTC provided one of the causes of action falls within its jurisdiction and venue lies therein.

3.4 When the claims in all causes of action are principally for recovery of

money, the aggregate amount shall be the test of jurisdiction.

EFFECT OF MISJOINDER

1. Upon motion of a party or on the initiative of the court, a misjoined cause

of action may be severed and proceeded with separately. 80

2. Misjoinder is not ground for a motion to dismiss.

RULE 3

PARTIES TO CIVIL ACTIONS

WHO MAY BE PARTIES TO A CIVIL ACTION

1. Only natural or juridical persons or entitles authorized by law may be

81

parties in a civil action. They are called: Plaintiff – he is one who has interest in the subject of the action and obtaining the relied demanded. He may be the claimant in the original complaint, the counter-claimant in the counter claim, or cross-claimant in a cross-claim or the third party plaintiff and the Defendant – he is one who has an interest in the controversy adverse to the plaintiff. He may be the original defending party, the defendant in a counter-claim, or cross-defendant in a cross-claim.

1.1 For ready reference, a counter-claim is any claim which a defending

82

party may have against an opposing party. A cross-claim is a claim by one party against a co-party arising out of the transaction or occurrence that is the subject

79 Supra, Section 6, Rule 3

80 Supra, Section 6, Rule 2

81 Supra,,Section 1, Rule 3

82 Supra, Section 6, Rule 6

83

matter either of the original action or of a counter-claim therein. A third party claim is a claim that a defending party may, with leave of court, file against a person not party to an action for contribution, indemnity, subrogation or any other relief, in respect to his opponent’s claim. 84

2.

Juridical persons include:

2.1

The state or any of its political subdivisions, while considered as juridical

entities, they can sue but as a general rule, they cannot be sued without its consent. It is deemed to have given consent when: (a) it enters into a private contract (b) it enters into a business operation unless it is an incident of its

primary government function (c) it sues a private party, unless the suit is to resist

a claim (d) when there is a failure to abide with what the law or contract provides.

A suit is considered as against the state when: (a) it is against the Republic of the

Philippines (b) it is against a government agency or office without juridical

personality (c) it is against the officers or agents of the government and involves

a financial liability.

2.2 Corporations, institutions and entities for public interest or purpose,

created by law, like government agencies and water districts.

2.3 Corporations, partnerships, and associations for private interest or

purpose to which the law grants juridical personality, separate and distinct from that of a shareholder, partner or member.

2.4 A partnership having capital of P 3,000.00 that fails to comply with

registration requirements. 85

2.5 A dissolved corporation within a 3 year period after dissolution to settle its

affairs. 86

2.6 A foreign corporation cannot be a plaintiff in suit when it is transacting

business in the Philippines without a license.

3. Entities authorized by law are (a) recognized labor organizations (b)

estate of a deceased person

87

(c) Roman Catholic Church

88

83 Supra, Section 8, Rule 6

84 Supra, Section 11, Rule 6

85 Article 1772 in relation to Article 1768, NCC

86 Section 122, BP 68

87 Nazareno v. Court of Appeals, 343 SCRA 637

88 Versoza v. Fernandez, 49 Phil 627

4.

Entities without legal personality referring to 2 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 but in their answer to the complaint, their names and addresses must be revealed. 89

4.1

It can also cover a corporation by estoppel

90

or partnership by estoppel

91

5.

or entity allowed or authorized by law. If one sues as such, the action may be dismissed on the ground of lack of capacity to sue. It does not possess a juridical personality separate and distinct from the personality of the owner of the enterprise. It cannot sue or file or defend an action in court.

A sole proprietorship may not be a party as it is neither a natural, juridical

92

93

WHEN PARTIES IMPLEADED ARE NOT AUTHORIZED TO BE PARTIES

1. Where the plaintiff is not a natural or juridical person, or an entity

authorized by law, a motion to dismiss may be filed on the ground that the plaintiff has no legal capacity to sue. Do not confuse it with one who has capacity to sue but he is not the real party in interest as the ground for dismissal then is failure to state a cause of action. 94

2. Where it is the defendant who is not any of the above, the complaint may

be dismissed on the ground that the “pleading asserting the claim states no cause of action” or ‘failure to state a cause of action’ , because there cannot be a cause of action against one who cannot be a party to a civil action.

PARTIES IN INTEREST

1. A real party in interest is the party who stands to be benefited or injured by

the judgment or party entitled to the avails of the suit. Unless otherwise authorized by law of the rules, like in a class suit, all actions must be prosecuted or defended in the name of the real party in interest. 95

89 Supra, Section 15, Rule 3

90 Section 21, BP 68

91 Article 1825, NCC

92 Mangila v Court of Appeals, 387 SCRA 162, Yao Ka Sin Trading v Court of Appeals, 209 SCRA 763

93 Juasing Hardware v Mendoza, 115 SCRA 783

94 Balagtas v. Court of Appeals, 317 SCRA 69

95 Supra, Section 2, Rule 3

1.1

A real party in interest-plaintiff is one who has a legal right, while a real

party in interest-defendant is one who has a correlative obligation, whose act or omission violates the legal rights of the former. Hence, the determination of who is a real party in interest goes back to the elements of a cause of action. Evidently, the owner of the right violated stands to be the real party in interest as plaintiff and the person responsible for the violation is the real party in interest defendant. 97

96

1.2 To be a real party in interest, the interest must be real, which is a present

substantial interest as distinguished from a mere expectancy or a future, contingent, subordinate or consequential interest. It is an interest that is material and direct, as distinguished from a mere incidental interest in the question. 98

1.3 Illustrations: (a) In a case where a lawful possessor is disturbed in his

possession, it is the possessor, not necessarily the owner, who can bring an action to recover the possession. (b) The parties to a contract are the real parties in interest in an action upon it based on the doctrine of relativity of contracts under Article 1311, NCC, unless it conveys a benefit to a person not a party thereto (c) Actions under Articles 1313 and 1381, NCC when the contracts are entered into in fraud of creditors. (d) Suits by corporations must be in its name, not that of the stockholders or members.

99

2. When a suit is not brought in the name of the real party in interest, it may

be dismissed on the ground that the complaint states no cause of action.

that the dismissal is not due to lack of or no legal capacity to sue nor lack of legal personality, as the latter is not ground for dismissal for under the 1997 Rules of Civil Procedure.

100 Note

2.1 It states no cause of action because it is not being prosecuted in the name

of the real party in interest.

2.2 Lack of Legal Capacity to Sue means that the plaintiff is not in exercise of

his civil rights, does not have the necessary qualification to appear or does not have the character or representation he claims. Example: Trustee or Minor, as distinguished from Lack of Legal Personality means that the plaintiff is not the real party in interest. Dismissal is based on the fact that the complaint states no cause of action

96 Gan Hock v. Court of Appeals, 197 SCRA 223

97 Lee v. Romillo, 161 SCRA 589

98 Samaniego v. Aguila, 334 SCRA 438

99 Philippine Trust Company v. Court of Appeals, 320 SCRA 719

100 Tankiko v Cesar, 302 SCRA 559

3.

Legal standing means a personal and substantial interest in the case such

that the party has sustained or will sustain direct injury as a result of the act being challenged. The term interest is material interest, an interest in issue, and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. Moreover, the interest must be personal and not one based on a desire to vindicate the constitutional right of some third or unrelated party.

3.1 However, the concept of ‘standing’ because of its constitutional

underpinnings is very different from questions relating to whether or not a particular party is a real party-in-interest. Although both are directed towards ensuring that only certain parties can maintain an action, the concept of standing requires an analysis of broader policy concerns. The question as to who the real party-in-interest is involves only a question on whether a person would be benefited or injured by the judgment or whether or not he is entitled to the avails of the suit. 101

3.2 Locus standi is defined as a right of appearance in a court of justice on a

given question. In private suits, standing is governed by the “real-parties-in interest” rule found in Section 2, Rule 3 of the Rules of Court which provides that every action must be prosecuted or defended in the name of the real party-in- interest. In other cases, locus standi is a party’s personal and substantial interest in a case such that he has sustained or will sustain a direct injury as a result of the governmental act being challenged. It calls for more than generalized grievance. The term “interest” means a material interest, an interest in issue affected by the decree, as distinguished from a mere interest in the question involved or a mere incidental interest. Unless a person’s constitutional rights are adversely affected by the statute or ordinance, he has no legal standing.

102

103

4. Be that as it may, we have on several occasions relaxed the application of

these rules on legal standing:

“In not a few cases, the Court has liberalized the locus standi requirement when a petition raises an issue of transcendental significance or paramount importance to the people. Recently, after holding that the IBP had no locus standi to bring the suit, the Court in IBP v. Zamora nevertheless entertained the Petition therein. It noted that “the IBP has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents.” 104

101 Kilosbayan, Inc. vs. Morato, 246 SCRA 540

102 Baltazar vs. Ombudsman, G.R. No. 136433, December 6, 2006

103 Velarde v Social Justice Society, 392 Phil 618, IBP v Zamora, 338 SCRA 81

104 Velarde v. Social Justice Society, supra at note 22, citations omitted.

4.1

Objections to a taxpayer’s suit for lack of sufficient personality, standing or

interest are procedural matters. Considering the importance to the public of a suit assailing the constitutionality of a tax law, and in keeping with the Court’s duty, specially explicated in the 1987 Constitution, to determine whether or not the other branches of the Government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Supreme Court may brush aside technicalities of procedure and take cognizance of the suit. 105

4.2 There being no doctrinal definition of transcendental importance, the

following determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised. 106

CLASSIFICATION OF REAL PARTIES IN INTEREST

1. Indispensable Party is a party without whom no final determination can be

107

had of an action. They are those with such an interest in the controversy that a final decree would necessarily affect their rights, so that the courts cannot proceed without their presence. Example: owners of property over which reconveyance is asserted are indispensable parties without whom no relief is available and without whom the court can render no valid judgment. 108

1.1 Without the presence of indispensable parties to the suit, the judgment of

109

the court cannot attain real finality. Strangers to a case are not bound by the judgment rendered by the court. 110

105 Bugnay Construction and Development Corporation v. Hon. Laron, G.R. No. 79983, 10 August 1989, 176 SCRA 240, 251, citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, G.R. No. 81311, 30 June 1988, 163 SCRA 371, 378.

106 Francisco v. Nagmamalasakit na mga Manggagawang Pilipino, Inc., supra at note 30, citing Kilosbayan, Incorporated v. Guingona, Jr., 232 SCRA 110 (1994)

107 Supra, Section 7, Rule 3

108 Valenzuela v Court of Appeals, 363 SCRA 779

109 Domingo v Scheer, 421 SCRA 468

110 Lucman v Malawi, GR No. 159794, December 19, 2006

1.2

The essential tests of an indispensable party: (a) May relief be afforded

the plaintiff without the presence of the other party? (b) May the case be decided on the merits without impairing the substantial rights of the other party? 111

2. Necessary Party is a party who is not indispensable but who ought to be

joined as a party if complete relief is to be accorded as to those already parties or for a complete determination or settlement of the claim subject of the action. A necessary party’s presence is necessary to adjudicate the whole controversy but whose interests are so far separable that a final decree can be made in their absence without affecting them.

112

2.1 Example: If the plaintiff only sues a one of his joint debtors, the joint debtor

who is not sued is merely a necessary party. As a consequence, the plaintiff only recovers the share of the debt due from the joint debtor defendant.

2.2 A necessary party is to be impleaded as a party for complete

determination of an action, while an indispensable party is impleaded for a final determination of an action.

3. Pro-Forma Party or nominal party is one who is joined as a plaintiff or

defendant not because such party has any real interest in the subject matter or because relief is demanded, but merely because the technical rules of pleadings require the presence of such party on the record. 113

PERSONS WHO CAN SUE IN BEHALF OF A REAL PARTY IN INTEREST

The following may sue in behalf of a real party in interest

1. Representatives- actions are allowed to be prosecuted / defended by a

representative or by one acting in a fiduciary capacity but the beneficiary shall be

deemed to be the real party in interest. 114

Examples of representatives are: (a) trustee of an express trust (b) a guardian, executor or administrator, or (c) a party authorized by law or the Rules.

included in the title and shall be

1.2 An agent acting in his own name and for the benefit of an unknown

principal may sue or be sued without joining the principal except when the

111 PNB v. Militar, 467 SCRA 377

112 Supra, Section 8, Rule 3

113 Samaniego v. Aguila, 334 SCRA 438

114 Supra, Section 3, Rule 3

contract involves things belonging to the principal. This refers to an agency with an undisclosed principal. 115

2. Husband and Wife- as a general rule shall sue or be sued jointly, except

116

as provided by law. Non joinder of party’s husband is not fatal. It is a mere formal defect. 117

2.1

administrators of the Absolute Community or the Conjugal Partnership. 118

They

are

required

to

sue

and

be

sued

jointly

as

they

are

joint

2.2 The exceptions provided by law are when the property relations of

119

husband and wife are governed by the rules on separation of property or one is disposing of exclusive property. 120

2.3 Note that the legal provision against the disposition of conjugal property by

one spouse without the consent of the other has been established for the benefit, not of third persons, but only for the spouse for whom the law desires to save the conjugal partnership from damages that might be caused. No other party can avail of the remedy other than the aggrieved spouse. 121

3. Minors or Incompetents may sue or be sued with the assistance of father,

mother, guardian or, if he has none, a guardian ad litem. 122

3.1 A guardian ad litem is a special guardian appointed by the court in which a

particular litigation is pending to represent or assist a minor or an incompetent person involved in or has interest in the property subject of litigation. His status as such exists only in that particular litigation in which the appointment occurs.

3.2 Note that the appointment of a guardian ad litem may occur in the

following:

,

for

minor

heirs

when

substituting

for

a

deceased

party

123

115 Article 1883, NCC

116 Supra, Section 4, Rule 3

117 Miranda v Besa, 435 SCRA 532

118 Articles 96 and 124, Family Code

119 Article 145, Family Code

120 Article 111, Family Code

121 Villaranda v Villaranda, 423 SCRA 571

122 Supra, Section 5, Rule 3

123 Supra, Section 16, Rule 3

124

incompetency or incapacity of a party , service of summons on a minor or incompetent , and when the best interest of the child require it.

125

126

JOINDER OF PARTIES

Joinder of Parties refers to the act of uniting several parties in a single suit either as plaintiffs or defendants.

1. The rule on joinder of parties states that: All persons in whom or against

whom any right to relief in respect to or arising out of the same transaction is alleged to exist, whether jointly, severally or in the alternative, may except as otherwise provided in these rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action. 127

2. Joinder of Parties, as a rule, is permissive when there is a question of law

or fact common to all the plaintiffs or defendants. This means that the right to relief or to resist the action arises out of the same transaction or event or series of transactions or events. Example: action by passengers of a common carrier for injuries sustained in an accident, there is no community of interest, the extent of the interest is limited to the extent of damages being claimed by each.

3. It becomes compulsory when the parties to be joined are indispensable

parties. 128

4. The exception to compulsory joinder of parties is when the subject of the

action is proper for a class suit. The subject matter of the controversy is proper for a class suit when it is one of common or general interest to many persons so numerous that it is impractical to join all as parties. All the parties who are interested in the action as plaintiffs or defendants are all indispensable parties but not all need to be joined.

129

5.

The three requisites of a class suit are:

5.1

The subject matter of the controversy is one of common or general

interest to many persons. There must be an indivisible right affecting many

124 Supra, Section 18, Rule 3

125 Supra, Section 10, Rule 14

126 Article 222, Family Code

127 Supra, Section 6, Rule 3

128 Supra, Section 7, Rule 3

129 Supra, Section 12, Rule 3

individuals whose particular interest is of indeterminable extent and is incapable of separation. This requires that the benefit to one is a benefit to all. Example: A suit filed by minors represented by their parents, in behalf of themselves and others equally concerned with the preservation of the country’s resources, their generation as well as generations yet unborn to compel the DENR Secretary to cancel all timber license agreements and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements . The interest must be common and not independent of each member of the class and should not conflict with each other. For this reason, owners of subdivision lots in a subdivision cannot sue as a class because their interest is only in their respective lots. 131

130

5.2 The parties affected are so numerous that it is impracticable to join all as

parties

5.3 The parties bringing or defending the class suit are found by the court to

be sufficiently numerous and representative as to fully protect the interest of all.

5.4 To comply with the 2 nd and 3 rd requisite, the Complaint most allege: (1)

existence of a subject matter which is of common or general interest to many persons, and (2) existence of a class and the number of persons belonging to that class

6. Improper for a class suit is when a claimant is interested only in collecting

132

his claims and has no concern in protecting the interests of the others or each of the plaintiffs has a separate claim or injuries not shared in common by the others. Hence, each must prove his own damages. 133

7. It can be brought by the plaintiffs as a class or may be filed against the

defendants as a class

7.1 Any party in interest shall

individual interest.

have the right to intervene to protect his

7.2 The general rule, is that the party bringing the suit in his own name and

that of others similarly situated has the right to control the suit, but, it shall not be dismissed or compromised without the approval of the court. 134

130 Oposa v Factoran, 224 SCRA 792

131 Tuason v. Register of Deeds, 157 SCRA 613

132 Cadalin v POEA Administrator, 238 SCRA 721

133 Newsweek Inc. v. IAC, 142 SCRA 171

134 Supra, Section 2, Rule 17

EFFECTS

NECESSARY PARTY

OF

FAILURE

TO

JOIN

AN

INDISPENSABLE

PARTY

OR

A

1. If there is a failure to join an indispensable party, the court must order the

plaintiff to amend his complaint for the purpose of impleading the indispensable party.

1.1 If the plaintiff fails, refuses or the party cannot be sued because he is a

non-resident defendant in a personal action, the complaint must be dismissed. 135

2. If there is a failure to join a necessary party, the pleader in the pleading in

which a claim is asserted without joining a necessary party shall (a) set forth the name of the necessary party, if known and (b) state the reason for omission.

2.1 If the court finds the reason for the omission is not meritorious, it may

order the inclusion of the omitted necessary party if jurisdiction over his person is obtained.

2.2 If pleader fails to comply with order for inclusion without justifiable cause, it

shall be deemed a waiver of the claim against the party,but the non-inclusion does not prevent the court from proceeding with the action, and the judgment therein shall be without prejudice to rights of such necessary party. 136

3. Misjoinder of parties is not a ground for dismissal. Parties may be dropped

or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms that are just. Any claim against a misjoined party may be severed and proceeded against separately. 137

3.1 A party is misjoined when he is made a party to the action although he

should not be impleaded. A party is not joined when he is supposed to be joined but is not impleaded.

3.2 While misjoinder or non-joinder is not a ground for dismissal, the failure to

obey the order of the court to drop or add a party is a ground for dismissal. 138

IF A PARTY TO BE JOINED AS A PLAINTIFF DOES NOT CONSENT OR CANNOT BE OBTAINED

135 NDC v Court of Appeals, 211 SCRA 422

136 Supra, Section 9, Rule 3

137 Supra, Section 11, Rule 3

138 Supra, Section 3, Rule 17

1.

The non-consenting party may be made a defendant and the reason

139

therefor shall be stated in the complaint. He will be known as the unwilling co- plaintiff.

WHO WILL PLAINTIFF SUE IF HE IS UNCERTAIN

1. If the plaintiff is uncertain against who of several persons he is entitled to

relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other. 140

2. An example is in an action where the owner of goods is not sure whether

they were lost in transit or while it was on deposit in the warehouse of the arrastre operator. He may sue the shipper or the operator of the warehouse in the alternative although the right against the shipper is based on admiralty while that against the operator is based on contract. Another is an action for damages arising from loss of goods due to a collision.

IF THE IDENTITY/NAME OF THE DEFENDANT IS UNKNOWN

1. He may be sued as the unknown owner, heir, devisee or by such other

designation as the case may require, when the identity or name is discovered,

141 An example is an action to recover

the pleading must be amended accordingly.

real property from several unknown heirs of a common ancestor.

EFFECT OF DEATH OF A PARTY

1. When a party dies and his claim is not extinguished, it shall be the duty of

counsel of the deceased party

death of the : (a) fact of death (b) name and address of the legal representative

of the deceased party.

disciplinary action.

subject to

to inform the court within 30 days after such

fails to

comply, he may be

142 If counsel

.

1.1 Once notice is given, the court shall order the legal representative to

appear and be substituted within 30 days from notice.

139 Supra, Section 10, Rule 3

140 Supra, Section 13, Rule 3

141 Supra, Section 14, Rule 3

142 Supra, Section 16, Rule 3

1.2

143

Examples of actions that survive are those arising from delict, tortuous

conduct, recovery of real or personal property recovery of money arising from a contract, express or implied

144

145

1.3 Examples of actions that do not survive are personal actions of support,

annulment and legal separation. The court in this instance will just dismiss. No substitution is required. The remedy is to file a claim before the probate court under Rule 86.

2. The purpose of substitution is the protection of the right of every party to

due process.

the court acquires no jurisdiction over the person of the legal representative of the deceased. 147

146 The non compliance renders the proceedings infirmed because

2.1 If no substitution occurs despite knowledge or notice of the death of a

party the proceedings undertaken shall be considered null and void as it amounts to a lack of jurisdiction as the need for substitution is based on the right of a party to due process.

2.2 Note though that in an ejectment case, the non substitution of the

deceased by his legal representatives because of the failure of counsel to inform the court does not deprive it of jurisdiction. The judgment may be enforced not only against the defendants but also against the members of their family, their relatives, or privies who derived their right of possession from the deceased defendant. 148

3. Note that heirs may be allowed to be substituted for the deceased without

requiring the appointment of an executor or administrator and the court can appoint a guardian ad litem for minor heirs. When the defendant does not have any heirs, the court shall require the opposing party to procure the appointment of an executor or administrator. This can also occur when no legal representative is named or if one is named, he fails to appear within the specified period. The expenses if any, can be recovered as costs.

3.1 Heirs may designate one or some of them as their representative before

the trial court. 149

143 Aguas v Llamas, 5 SCRA 959

144 Melgar v. Buenviaje, 179 SCRA 196

145 Board of Liquidators v Kalaw, 20 SCRA 987

146 Torres v Court of Appeals, 278 SCRA 79

147 Brioso v Mariano, 396 SCRA 549

148 Florendo v. Coloma, 129 SCRA 304

149 San Juan v. Cruz, G.R. No. 167321, July 31, 2006

4.

There is no requirement for summons as it is the order of substitution and

its service that effects the substitution of the deceased by his representative.

5. The effect of death is to terminate the attorney-client relationship. A

deceased client has no personality and cannot be represented by an attorney. Neither does he become counsel for the heirs of the deceased unless his services are engaged by the heirs. 151

150

DEATH/SEPARATION OF A PUBLIC OFFICER

1. If sued in his public capacity and he dies, resigns or otherwise ceases to

hold office. The action may be maintained and continued by or against his successor, if within 30 days after successor assumes the office or such time as granted by the court – it is satisfactorily shown by a party that there is a substantial need for continuing and maintaining it and that the successor adopts or continues or threatens to continue the action of his predecessor. 152

2. Before substitution and there is no express assent, the public officer shall

be given reasonable notice of the application and be accorded an opportunity to be heard.

3. The requisites for a valid substitution of a public officer who has sued or

been sued in his official capacity are: (a) satisfactory proof by any party that there is a substantial need for continuing or maintaining the action (b) the successor adopts or continues or threatens to adopt or continue the acts of his predecessor (c) the substitution is effected within 30 days after the successor assumes office or within the time granted by the court, and (d) notice of the application to the other party. 153

4.

The failure to make the substitution is ground for the dismissal of the

action.

EFFECT OF DEATH OF THE DEFENDANT ON A CONTRACTUAL MONEY CLAIM

1. If the action is for the recovery of money that arises from a contract,

express or implied, and the defendant dies before entry of a final judgment the rule is – it will not be dismissed but shall be allowed to continue until entry of judgment, a favorable judgment obtained shall be enforced in the manner

150 Lavina v. Court of Appeals, 171 SCRA 691

151 Lawas v Court of Appeals, 146 SCRA 173

152 Supra, Section 17, Rule 3

153 Rodriguez vs. Jardin, G.R. No. 141834, July 30, 2007

provided by the rules for prosecuting claims against the estate of a deceased person. 154

2. Hence, in case of the death of the obligor the rules are: (a) If he dies

before the action is filed, a money claim must be filed in the testate or intestate proceedings (b) if he dies during the pendency of an action, the action continues until entry of judgment, and the judgment claim is then filed with the testate or intestate proceedings. It must be noted that a money claim judgment need not be proven because it is conclusive. Note further, that if property has been levied upon before death, it can disposed of in the manner provided by the rules on execution of judgments because it has already been segregated from the estate. If there is a deficiency, a money claim can be filed subsequently.

2. If the claim does not arise from a contract, like claims for recovery,

enforcement of a lien or torts, the rules are: (a) if he dies before the action is

filed, it may be filed against the executor or administrator (b) if already filed , it

continues to final judgment and may be administrator. 155

executed on as against the executor or

3. In a case for ejectment where the defendant died before the case could be

decided and without being able to testify on his counterclaim for damages. The trial court dismissed the ejectment suit and ordered the plaintiff to pay the wife of the defendant moral damages and attorney’s fees. The plaintiff contends on appeal that the counterclaim should have been dismissed pursuant to Rule 3, Section 21 (old rule). Held: The argument is misplaced, defendant was the plaintiff in his counterclaim, the rule is not applicable as it pertains to a defendant who dies before final judgment. In this case, it is the plaintiff who died and all that is required is a timely motion for substitution. No recovery though can be allowed as no evidence was adduced. 156

4. If a claim involves a conjugal debt that was not brought and one of the

spouses die before filing, the claim must be brought in the testate or intestate proceedings of the deceased spouse. 157

5. If it is the plaintiff who dies, the rules are: (a) if action is purely personal to

him, the action is abated (b) if action is not purely personal, it continues but counsel must give notice of death.

EFFECT ON INCOMPETENCY/INCAPACITY ON AN ACTION

154 Supra, Section 20, Rule 3

155 Supra, Section 7, Rule 39

156 UST v Court of Appeals, GR No. 124250, October 18, 2004

157 Alipio v Court of Appeals, GR No. 134100, September 29, 2000

1.

The court, upon motion with notice, may allow the action to be continued

by or against the incompetent or incapacitated person assisted by his guardian or guardian ad litem. 158

EFFECT OF A TRANSFER OF INTEREST PENDING LITIGATION

1. The action may be continued by or against the original party, unless the

court upon motion directs the person to whom interest is transferred to be substituted in the action or joined with the original party. 159

2. The rule refers to a transfer pendente lite. The transferee pendente lite

shall stand exactly in the shoes of the transferor. Consequently, any judgment will be binding upon him.

3. A transferee pendent elite does not have to be included or impleaded by

name in order to be bound by the judgment because the action or suit may be continued for or against the original party or the transferor and still binding on the transferee. 160

4. In a case on appeal where the transferee pendente lite did not appeal, he

nevertheless was benefited by the appeal of the transferor pendent lite. 161

INDIGENT/PAUPER LITIGANT

1. An indigent or pauper litigant is one who litigates on a claim that he has no

money, or property sufficient and available for food, shelter and basic necessities for himself and his family. 162

2. An indigent or pauper litigant must file an ex-parte application for authority

to litigate as an indigent that is too be resolved by the court after hearing.

2.1 Attached to the motion is an affidavit attesting to the fact that he does not

earn a gross income of PHP 4,000.00 in Metro-Manila, or PHP 3,000.00 elsewhere and has no real property with a fair market value of PHP 50,000.00.

2.2 Said affidavit must be supported by another affidavit of a disinterested

person. Note that recently, an indigent litigant has been defined as one (a) whose

158 Supra, Section 3 and 18, Rule 3

159 Supra, Section 19, Rule 3

160 State Invetsment House, Inc. v Court of Appeals, 318 SCRA 47

161 Jocson v Court of Appeals, GR 88297, March 22, 1990

162 Supra, Section 21

gross income and that of their immediate family does not exceed an amount double the monthly minimum wage of an employee and (b) who does not own real property with a fair market value as stated in the current tax declaration of more than PHP 300,000.00.

2.3 If there is any falsity

shall constitute sufficient ground to dismiss the action or strike out the pleading, without prejudice to whatever criminal liability is incurred. 163

in the affidavit or that of the disinterested person, it

3. The effect of being allowed to litigate as an indigent or pauper litigant are:

(a) exemption from the payment of docket fees and other lawful fees (b) exemption from TSN fees which the Court may order to be furnished but, the amounts due shall be a lien on a favorable judgment unless the Court orders otherwise.

4. The allowance to litigate as an indigent or pauper litigant can be contested

at any time before judgment is rendered by any adverse party. If found to be meritorious, the proper fees are assessed and are to be collected. If it is not paid, execution shall issue on the payment thereof without prejudice to other sanctions.

5. On appeal, a motion to litigate as an indigent or pauper litigant is allowed.

WHEN SOLICITOR GENERAL IS REQUIRED TO APPEAR

1. In any action involving the validity of any treaty, law, ordinance, executive

order, presidential decree, rule or regulation, the court, in its discretion, may require the appearance of the Solicitor General, who may be heard in person or through a representative duly designated by him. 164

RULE 4 – VENUE OF ACTIONS

VENUE DEFINED AND DISTINGUISHED

1. Venue is the place where the action is to be commenced and tried. It has

also been defined as the proper location for the trial of a case.

2. Distinguishing it from jurisdiction: (a) venue is the place where action is

commenced and tried, jurisdiction is the authority of a court to hear and decide the action (b) venue may be waived, jurisdiction over the subject matter cannot be waived, but that over the person can be waived (c) venue may be the subject

163 Section 19, Rule 141, Rules of Court

164 Supra, Section 22, Rule 3

of a written agreement, jurisdiction cannot be subject of a written agreement 165

(d) a court cannot

motu-propio

dismiss on improper venue, while if it has no

jurisdiction, a court can motu-propio dismiss the action.

3. Venue establishes a relation between the plaintiff and defendant, while

jurisdiction establishes a relation between the court and subject matter.

4. Improper venue is not jurisdictional. To illustrate: If a case for illegal

detainer is filed in the MTC-Manila but should have been filed in the MTC-Baguio as the property is located in Baguio, the dismissal is due to improper venue as every MTC has jurisdiction over illegal detainer cases. Territorial jurisdiction applies only in criminal cases where venue is also jurisdictional.

RULES ON VENUE

1.

property, or an interest therein, it shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved or a portion thereof is situated. Forcible Entry and Detainer actions are to be commenced and tried in the Municipal Trial Court which has jurisdiction over the area wherein the real property involved, or any portion thereof, is situated. 166

If

it

is

a

Real Action or one that

affects title to or possession of real

1.1 Is the complaint for cancellation of a real estate mortgage with damages, a

real or personal action? It is a real action, the controlling factor in determining venue of such a case is the primary objective for which it is filed. An action for cancellation of a real estate mortgage is necessarily an action affecting title to real properties since the primary objective is to recover the properties that the bank had foreclosed on. 167

2. If it is a Personal Action or one that is brought for the recovery of personal

property, for the enforcement of a contract or recovery of damages for its breach of for the recovery of damages due to injury to person or property or such all other actions shall be commenced or tried where the plaintiff or any of the principal plaintiffs reside or any of the defendants reside, or if a non-resident defendant, where he may be found at the election of the plaintiff 168

2.1 Reside means the place of abode, whether permanent or temporary, as

distinguished from domicile or the fixed permanent residence, where if one is absent he intends to return.

165

NOcum v Tan, 470 SCRA 639

166

167

Supra, Section 1, Rule 4

Go v UCPB, GR No. 156187, November 11, 2004

168

Supra, Section 2, Rule 4

2.2

In personal actions, it is the residence of the proprietor, not the business

address of the sole proprietorship that is considered to determine venue as a sole proprietorship has no legal personality. 169

2.3 R engaged the services of L as geodetic surveyor to subdivide two parcels

of land located in Batangas. As payment for L’s services, R agreed to given him one lot. After the survey, R delivered to L possession of one lot as payment for his services. However, R failed to deliver to L the tile of the lot. L, who resides in Quezon City, filed with the RTC of Quezon City an action against R for specific performance to compel R to deliver to him the title to the lot. R moved to dismiss on the ground of improper venue, contending that since his is a real action, the complaint must be filed in the RTC of Batangas where the lot is situated. Is R correct? No, R is not correct. This action for specific performance is a personal action. The venue therefore, was properly laid in Quezon City where the plaintiff resides. It is not a real action because plaintiff L is not seeking the recovery of the lot as he is already in possession thereof. He is merely asking the delivery of the title to him, which is a personal action. 170

3. If the defendant is a non-resident or one who does not reside and is not

found in the Philippines and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found. 171

3.1 Actions affecting the personal status of the plaintiff refers to personal

actions of annulment of marriage, nullity of marriage, legal separation, declaration of presumptive death

3.2 The provision refers to a Quasi in Rem action in which an individual is

named as a defendant, and the purpose of the action is to subject his interest therein to an obligation or lien burdening the property.

3.3 A non-resident alien who cannot be found can sue and be sued as by filing

his complaint, he submits to the jurisdiction of the Court, even if he has never been able to enter the Philippines. 172

169 Mangila v Court of Appeals, 387 SCRA 162

170 Dimo Realty & Development, Inc. et al. v. Dimaculangan, G.R. NO. 130991, March 11, 2004

171 Supra, Section 3, Rule 4

172 Dilweg v Philipps, 12 SCRA 243

THE RULES ON VENUE ARE NOT APPLICABLE

1. In cases where a specific rule or law provides otherwise as below

illustrated:

1.1 Quo Warranto proceedings may be instituted in the Supreme Court, Court

of Appeals or the Regional Trial Court exercising territorial jurisdiction over the area where the respondent/s reside. If the Solicitor General commences the action, he may do so in the Supreme Court, Court of Appeals or the Regional Trial Court of Manila. 173

1.2 The criminal or civil action for damages due to libel can only be instituted

either in Regional Trial Court of the place where he holds office or in the place where the alleged libelous article was printed and first published; and if the offended parties are private individuals, the venue shall be in the Regional Trial Court of the place where the libelous article was printed and first published or where any of the offended parties actually resides at the time of the commission of the offense. 174

1.3 Intracorporate Controversies are to be filed in the Regional Trial Court

where the principal office of the corporation is located. 175

2. Where the parties have validly agreed in writing before the filing of the

action as to exclusive venue. 176

2.1 Any agreement as to venue must be in writing and for exclusivity, the

intent must be clear, otherwise, it will be interpreted to allow for an additional venue.

2.2 The freedom of the parties to stipulate on the venue is however subject to

the usual rules on contract interpretation. Where the provision appears to be one- sided as to amount to a contract of adhesion, the consent of the parties thereto may well be vitiated and the venue stipulation will not be given effect. 177

2.3 The rule on venue is party oriented. It looks to the convenience of the

parties. Thus the rule on venue as to real actions presumes that the place where

173 Supra, Section 7, Rule 66

174 Article 360, Revised Penal Code

175 RA 8799, and A.M. 01-02-04-CS, March 13, 2001

176 Supra, Section 4, Rule 4

177 Sweet Lines v Teves, 83 SCRA 361

the subject real property is located is convenient to the parties. Hence, the rule as to venue can yield to an agreement as to exclusive venue. Section 4, Rule 4 applies to both real and personal actions as long as the requisites are met.

2.4 Venue as stipulated in the promissory note shall govern notwithstanding

the absence of a stipulation as to venue in an accompanying surety agreement as the latter can only be enforced in conjunction with the former. 178

HOW VENUE IS QUESTIONED

179 , or (b) in an

answer by way of an affirmative defense . If it is not questioned, it is deemed waived.

1. Venue may be questioned in (a) in a motion to dismiss

180

RULE 5-UNIFORM PROCEDURE IN TRIAL COURTS

Municipal Trial Court shall be the same as in the

Regional Trial Court, except when (a) a provision applies only, expressly or impliedly, to a particular court, or (b) In civil cases covered by the Rules on Summary Procedure

1. The procedure in

2. An example of a provision that applies only to a Municipal Trial Court is

that which refers to an appeal taken from an order of the lower court dismissing the case without trial on the merits. 181

PROCEDURE IN REGIONAL TRIAL COURTS

RULE 6- KINDS OF PLEADINGS

PLEADING DEFINED

1. It is a written statement of the respective claims and defenses of the

parties submitted to the court for appropriate judgment. 182

178 Philippine Bank of Communications v Lim, 455 SCRA 714

179 Supra, Section 1 (c) ,Rule 16

180 Supra, Section 6, Rule 16

181 Supra, Section 8, Rule 40

182 Supra, Section 1, Rule 6

1.1

Pleadings are necessary to secure the jurisdiction of the court so that the

subject matter can be presented for its consideration in the manner sanctioned by the rules of procedure.

1.2 They are intended to secure a method by which the issues may be

properly laid before the court. 183

1.3 They are designed to present, define and narrow the issues, to limit proof

to be submitted in the trial, to advise the court and the adverse property of the issues and what are relied upon as causes of action or defenses.

2. The pleadings that are allowed are: (a) Claims of a party are asserted in

or

complaint in intervention (b) Defenses of a party are alleged in the answer to the pleading asserting a claim against him (c) Reply to the answer 184

the complaint, counterclaim, cross-claim, 3 rd party complaint (4 th

),

2.1 Under the Rules on Summary Procedure, the only pleadings allowed are

the complaint, compulsory counterclaim, cross claim pleaded in the answer, and the answers thereto.

CONSTRUCTION OF PLEADINGS

1. All pleadings are to be liberally construed so as to do substantial justice. 185

2. While such is the rule, a party is strictly bound by the allegations,

statements or admissions made in his pleadings and cannot be permitted to take a contradictory position. 186

2.1 In case there are ambiguities in pleadings, the same must be construed

most strongly against the pleader and that no presumptions in his favor are to be indulged in. This rule proceeds from the theory that it is the pleader who selects the language used and if his pleading is open to different constructions, such ambiguities are at his peril.

SPECIFIC KINDS OF PLEADINGS

1. Complaint- which is the pleading alleging the plaintiff’s cause of action or

causes of action.

183 Santiago v. De Los Santos, 61 SCRA 146

184 Supra, Section 2, Rule 6

185 Concrete Aggregates Corporation v. Court of Appeals, 266 SCRA 88

186 Santiago v. De Los Santos, 61 SCRA 146

1.1

The names/residences of the plaintiffs and defendants must be stated in

the complaint 187

2. Answer- which is a pleading in which a defending party sets forth his

defenses

188

.

2.1 Its essential purpose is to secure joinder of the issues and not to lay down

evidentiary matter. 189

2.2 The following are the kinds of defenses

answer are:

190 that may be interposed in an

(a) Negative Defense which is a specific denial of a material fact or facts

alleged in the pleading of a claimant essential to his cause/s of action. A specific denial is made by : (1) Specifically denying the material averment in the pleading of the adverse party and setting forth the substance of the matter upon which he relies for such denial (2) Deny only a part of the averment by specifying

lack of

that so much of it is true and deny the remainder (3) Allegation of

knowledge or information sufficient to form a belief as to the truth of the material averment in the pleading of the adverse party.

191

(b) Affirmative Defense which is an allegation of new matter, which although

hypothetically admitting the material allegations in the pleading would nevertheless bar or prevent recovery. They include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, or any other matter by way of confession and avoidance.

2.3 The purpose of requiring the defendant to make a specific denial is to

make him disclose the matters alleged in the complaint which he succinctly intends to disprove at the trial, together with the matter which he relied upon to support the denial. 192

2.4 Note that the rule that a defending party who sets up an affirmative

defense hypothetically admits the allegations does not apply if the defense set up

187 Supra, Section 3, Rule 6

188 Supra, Section 4, Rule 6

189 Naga Development Corporation v Court of Appeals, 41 SCRA 105

190 Supra, Section 5, Rule 6

191 Supra, Section 10, Rule 8

192 Aquintey v. Tibong, GR No. 166704, December 20, 2006

is any of the grounds for extinguishment of the obligation. The effect is that the defending party is deemed to have admitted the validity of the obligation, and if the motion to dismiss is denied, what is left to be proven is the fact of payment or non-payment.

2.5 Any of the grounds for a motion to dismiss may be pleaded as an

affirmative defense. He may then move for a preliminary hearing as if a timely motion to dismiss has been filed. 193

3. Counterclaim- which is any claim which a defending party may have

against an opposing party. 194

3.1 Counterclaims may be compulsory or permissive. They are distinguished

as follows: (a) In a compulsory counterclaim, it arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim, while in a permissive counterclaim, it does not arise out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim (b) a compulsory counterclaim is barred if not set up in the answer, while a permissive counterclaim is not barred even if not set up (c) the plaintiff is not required to answer a compulsory counterclaim and he cannot be in default, while a permissive counterclaim must be answered after payment of docket fees, otherwise a party may be held in default (d) a compulsory counterclaim is not an initiatory pleading so as to required a certification as to non-forum shopping, while a permissive counterclaim is an initiatory pleading.

3.2 The requisites of a compulsory counterclaim are:(a) It arises out of or is

necessarily connected w/the transaction or occurrence that in the subject matter of the party’s claim (b)It does not require for adjudication the presence of 3 rd parties over whom the court cannot acquire transaction (c) It must be cognizable by the regular courts of justice (d) It must be within the jurisdiction of the court both as to amount and the nature thereof, except that in an original action before the RTC, counterclaim is considered compulsory regardless of amount (e) I t must already be existing at the time defending party files his answer 195

3.3 The requisites of a permissive counterclaim are: (a) It does not require for

adjudication the presence of 3 rd parties over whom the court cannot acquire jurisdiction (b) It must be cognizable by the regular courts of justice (c) It must be within the jurisdiction of the court both as to amount and the nature thereof,

193 Supra, Section 6, Rule 16

194 Supra, Section 6, Rule 6

195 Supra, Section 7, Rule 6, Section 8, Rule 11

except that in an original action before the RTC, counterclaim is considered compulsory regardless of amount

3.4 To determine whether a counterclaim is compulsory or not, the Court has

devised the following tests: (a) are the issues of fact or law raised by the claim and counterclaim largely the same? (b) would res judicata bar a subsequent suit on defendant’s claim absent a compulsory counterclaim? (c) will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s counterclaim? and (d) is there any logical relation between the claim and counterclaim. If the answers are all in the alternative, it is a compulsory counterclaim. Item (d) is also known as the “compelling test of compulsoriness” as conducting separate trials of the respective claims of the parties would entail a substantial duplication of effort and time by the parties and the court. 197

196

3.5 Illustrations of compulsoriness are: (a) expenses for cultivation even if

inconsistent with the defense of ownership in an action to recover real estate 198 (b) expenses for the preservation of property in action for annulment of title on the ground of fraud (c) damages for usurpation of the produce in action to quiet title (d) cost of improvements in an action for recovery of ownership or possession 201

199

200

3.6 A compulsory counterclaim that is not yet in existence at the time of the

filing of an answer may be presented or set-up by a supplemental pleading before judgment. 202

3.7 A compulsory counterclaim may implead persons not parties to the original

complaint as their presence is required for granting complete relief in the determination of a counter-claim or cross claim, the court shall order them brought in as defendants, if jurisdiction over them can be obtained. Summons must thus be served upon them as they must answer the counterclaim as they

203

196 Reyes De Leon v. Del Rosario, 435 SCRA 232

197 Quintanilla v. Court of Appeals, 279 SCRA 397

198 Camara v. Aguilar, 94 Phil 527

199 Maclan v. Garcia, 97 Phil 119

200 Doliente v. Blanco, 87 Phil 67

201 Baclayan v. Court of Appeals, 182 SCRA 761

202 Supra, Section 9, Rule 11, Intramuros Administration v Contacto, 402 SCRA 581

203 Supra, Section 12, Rule 6

cannot rely on the rule that the defendant in the counterclaim is deemed to have adopted the allegations of the complaint in his answer. 204

4. A cross claim is a claim by one party against a co-party arising out of a

transaction/occurrence that is the subject matter either of the original action or the counter-claim. It may include a claim that a party against whom it is asserted is or may be liable to the cross claimant for all or part of a claim asserted in the action against the cross-claimant. 205

4.1 Note that counterclaims may be asserted against an original counter-

claimant and that cross-claims may also be filed against an original cross- claimant. 206

5. A reply is a pleading, the office or function of which is to deny or allege

facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make an issue as to such matters.

5.1 If a reply is not filed, all new matters are deemed controverted. If plaintiff

wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended/supplemental complaint.

5.2 If the defense is based on an actionable document, it must be replied to,

otherwise it is admitted.

6. A 3 rd Party Complaint is a claim that a defending party may, with leave of

court, file against a person, not a party, called 3 rd party defendant for contribution, indemnity, subrogation or any other relief in respect of his opponent’s claim. 207

6.1 Examples: (a) Contribution- A sues X for collection of money based on a

promissory note signed jointly and severally with Y. X may file a complaint against Y for contribution (b)Indemnity- S, as surety, is sued for recovery of the obligation of M. S may file a complaint against M for whatever amount he may be adjudged to pay as surety (c) Subrogation- X, as lessor, sues Y, as lessee for repairs. Y may file a complaint against his sub-lessee who filed to comply with the obligation to repair (d) Other Relief- X bought land from Y. Later X is sued by A for recovery of the land. X may file a complaint against Y for his warranty against eviction.

6.2

counterclaims or cross-claims, including such defenses that the 3 rd Party Plaintiff

An

answer

to

a

3 rd

party

complaint

may

include

(a)

defenses,

204 Lafarge Cement Philippines, Inc. v Luzon Continental Land Corporation, 443 SCRA 522

205 Supra, Section 8, Rule 6

206 Supra, Section 9, Rule 6

207 Supra, Section 11, Rule 6

may have against the original plaintiff’s claim, and (b) In proper cases, he may assert a counter-claim against the original plaintiff in respect to his claim against the 3 rd party plaintiff. An example is: a reinsurer (3 rd party defendant) may set up in his answer the defense alleged by defendant insurer that loss is caused by plaintiff insured. However the 3 rd party defendant cannot file a counterclaim against the original plaintiff as there is no privity of contract between them.

208

WHEN NEW PARTIES CAN BE BROUGHT

1. If the presence of others besides the parties is required for the granting of

full relief in the determination of a counter-claim or cross- claim the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained .

209

RULE 7 – PARTS OF A PLEADING

PARTS OF A PLEADING

1. The parts of a pleading are Caption, Body, Signature, Address, Verification

and Certification against Forum Shopping.

SPECIFICS OF THE PARTS OF A PLEADING

1. The Caption sets forth the (a) Name of the court (b) Title of the action, this

includes an indication of the name of the parties, who are required to be named in the original complaint/petition. In subsequent pleadings, the name of the first party on each side is sufficient with an appropriate indication when there are other parties. (c) Docket Number , if one has already been assigned. 210

1.1 In an appeal, the rules

of Appeal and Record on Appeal

211 requires all names to be indicated in the Notice

208 Supra, Section 13, Rule 6

209 Supra, Section 12, Rule 6

210 Supra, Section 1, Rule 7

211 Supra, Sections 5 and 6, Rule 41

1.2

In case of a variance between the caption and allegations, the latter will

prevail. The court may grant a relief warranted by the allegations and proof even

if

no such relief is prayed for. 212

2.

The Body sets forth its designation, the allegations or a party’s claims /

defenses, the relief prayed for, and the date of the pleading.

2.1

The allegations in the body shall be divided unto paragraphs so numbered

to

be

readily

identified.

Each

shall

contain

Statement

of

a

single

set

of

circumstances so far as it can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings.

2.2 Headings must be used when 2 or more causes of action are joined, the

statement of the first shall be prefaced by : First Cause of Action etc. When: 2 or more paragraphs are addressed to one or several causes of action in the complaint, they shall be prefaced by: Answer to the First Cause of Action and so on. If it addresses several causes of action, the paragraphs shall be prefaced accordingly.

2.3 Relief should be specified but it may add a general prayer for such further

or other relief as may be deemed just and equitable. The relief does not constitute a part of the statement of the cause of action. It does not serve to limit or narrow the issues presented. It is the material allegations, not the legal conclusions that determines the relief that a party is entitled to. A court may grant a relief not prayed for as long as warranted by the allegations and the presented proof.

213

214

2.4

Every pleading is required to be dated.

3.

Signature and Address- every pleading must be signed by the party or

counsel representing him, stating in either case his address which should not be

a post office box.

3.1 Note the word “or” because a party may litigate / defend Pro Se or for

himself without aid or counsel. This applies even if a party is already represented by counsel.

3.2 Only the signature of either party operates to validly convert a pleading

from one that is unsigned to one that is signed. 215

212 Lorbes v. Court of Appeals, 351 SCRA 716

213 UBS v. Court of Appeals, 332 SCRA 534

214 Banco Filipino Savings and Mortgage Bank v. Court of Appeals, 332 SCRA 241

215 Republic v. Kenrick Development Corporation, 351 SCRA 716

3.3

Significance of Counsel’s Signature – it is a Certificate by him that: (a) He

has read the pleading (b)To the best of his information, knowledge and belief there is good ground to support it (c) It is not interposed for delay

3.4 If the pleading is unsigned it produces no legal effect. However, the court

in its discretion can allow the deficiency to be remedied if it shall appear that it was due to inadvertence and not intended for delay. 216

3.5 An address is required for service of pleadings or judgments

3.6 Disciplinary action may be imposed on counsel in relation to the rule when

(a) He deliberately files an unsigned pleading (b) S i g n s a p l e a d i n g i n violation of the Rule (c) Alleges scandalous or indecent matter (d) Fails to promptly report to the court a change in his address

4. A Verification is an affidavit that the affiant has read the pleading and that

the allegations therein are true and correct of his personal knowledge and/or is based on authentic records

4.1 The verification requirement is intended to secure an assurance that the

allegations in the pleading are true and correct and not the product of the imagination or a matter of speculation and that it is being filed in good faith. 217

4.2 If a pleading that is required to be verified is not verified or contains a

verification that does not comply with what is required by the rules, it shall be treated as an unsigned pleading.

4.3 The court may order the correction of the pleading or act on an unverified

pleading if the attending circumstances are such that strict compliance would not fully serve substantial justice, which after all, is the basic aim of the rules of procedure. 218

4.4 A pleading need not be verified, except when otherwise specifically

required by law or the rules

219

.

216 Supra, Section 3, Rule 7

217 Sarmiento v. Zaratan, GR No. 167471, February 5, 2007

218 Robert Development Corporation v. Quitain, 315 SCRA 150

219 Supra, Section 4, Rule 7

4.5

A Verification is required under rules governing (a) cases covered by the

220

Rules on Summary Procedure (b) Petition for relief from judgment / order (c) Petition for review (d) Appeal by certiorari (e)Petition for annulment of judgment (f) Injunction (g) Receivership (h) Support (i) 69) Certiorari, Prohibition or Mandamus (j) Quo Warranto (k) Expropriation (l) Forcible Entry / Detainer (m) Indirect Contempt (n) Petition for a writ of habeas corpus, writ of amparo, writ of habeas data (o) Petition for cancellation or correction of entries in the Civil Registry (p) Petition for the constitution of a family home (q) Petition for Declaration of Absolute Nullity of Marriage, Annulment of a Voidable Marriage, Legal Separation (r) Petition for Guardianship (s) Applications for TRO or Injunction.

223

230

221

224

227

222

225

228

231

226

229

5. Certification against Forum Shopping is executed by the plaintiff or

principal party who shall certify under oath in the Complaint or Initiatory Pleading asserting a claim or relief or in sworn certification annexed thereto and simultaneously filed therewith : (a) That he has not therefore 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 claim or action is pending therein (b) If there is such other pending action or claim, a complete statement of the present status thereof (c) That if he should thereafter learn that the same or similar action has been filed or is pending, he shall report that fact within 5 days therefrom to the court wherein his complaint / initiatory pleading has been filed. 232

220 Supra, Section 3, Rule 38

221 Supra, Section 1, Rule 42

222 Supra, Section 1, Rule 45

223 Supra, Section 4, Rule 47

224 Supra, Section 1, Rule 58

225 Supra, Section 1, Rule 59

226 Supra, Section 1, Rule 61

227 Supra, Sections 1,2,3, Rule 65

228 Supra, Section 1, Rule 66

229 Supra, Section 1, Rule 67

230 Supra, Section 3, Rule 70

231 Supra, Section 3, Rule 71

232 Supra, Section 5, Rule 7

5.1

The lack of a certification is not curable by amendment, but such shall be

cause for dismissal of the complaint. The dismissal shall be without prejudice unless otherwise provided, upon motion and after hearing. 233

5.2

The non-complaince with any of the undertakings or

the submission of a

false

certificate

shall

constitute

indirect

contempt

without

prejudice

to

corresponding administrative and criminal actions. Provided, that if the acts of the party or counsel clearly constitute will and deliberate forum shopping, it shall then be ground for summary dismissal with prejudice, and shall constitute direct contempt as well as cause for administrative sanctions.

5.3 Forum Shopping exists when as a result of an adverse opinion in one

forum, a party seeks a favorable opinion, other than by appeal or certiorari, in another, or when he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other court would make a favorable disposition. The most important factor in determining the existence of forum shopping is the vexation caused the courts and parties-litigants by a party who asks different courts to rule on the same or substantially the same reliefs. 234

5.4 It also occurs when a party attempts to have his action tried in a particular

court or jurisdiction where he feels he will receive the most favorable judgment.

5.5 It has been said to exist also where the elements of litis pendentia are

present or where a final judgment in one case will amount to res judicata in another. Hence, the following requisites concur: (a) identity of parties, or at least such parties represent the same interests in both actions (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts, and (c) identity of the two preceding particulars is such that any judgment rendered in the other action will, regardless, of which party is successful, amount to res judicata in the action under consideration. 235

5.6 The purpose of the certification against forum shopping is to prohibit and

236

penalize the evils of forum shopping. Forum Shopping is a deplorable practice because it results in unnecessarily clogging of the already heavily burdened docket of the courts. 237

5.7 The execution of the certification is required to be accomplished by the

petitioner himself as it is the petitioner himself who has actual knowledge of

233 Castillo v Court of Appeals, 426 SCRA 369

234 Benguet Electric Cooperative, Inc. v Flores, 287 SCRA 449

235 TADI v Solilapsi, 394 SCRA 269

236 BA Savings Bank v Sia, 336 SCRA 484

237 Ruiz v Drilon, 209 SCRA 695

whether or not he has initiated similar actions or proceedings in different courts or agencies.

5.8 If there are several plaintiffs, the general rule is that all of them must sign

but it must be noted that there is jurisprudence to the effect that: (a) the execution by one of the petitioners or plaintiffs in a case constitutes substantial compliance where all the petitioners, being relatives and co-owners of the properties in dispute, share a common interest in the subject matter of the case. (b) the case is filed as a collective raising only one cause of action or defense (c) the signing by 1 spouse substantially complies as they have a common interest in the property or is signed by husband alone is substantial compliance as subject of case is recovery of conjugal property (d) 2 of the parties did not sign as they were abroad. It was considered reasonable cause to exempt them from compliance with the requirement that they personally execute the certificate 242

238

239

240

241

5.9 If the plaintiff or petitioner is a juridical person, it can only execute the

243

certification through properly delegated individuals. Note though that there are corporate officers who may sign the certification without need of a board resolution, namely: (a) Chairperson of the Board (b) President (c) General Manager or Acting General Manager (d) Personnel Officer, and (e) Employment Specialist in a labor case. The submission in the motion for reconsideration of the authority to sign the verification and certification constitutes substantial compliance with procedural requirements. 245

244

5.10 Counsel has been allowed to sign the certification in the following

instances: (a) Where the counsel is the Solicitor General has been deemed to be

substantial compliance

accepted because it was his basic function to prepare pleadings and to represent NPC – Mindanao – as such he was in the best position to know and certify if a

246 (b) Certification by acting regional counsel of NPC was

238 Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy v Guadalquiver, 429 SCRA 722

239 HCC Construction and Development Corporation v Emily Homes Subdivision Homeowners Association, 411 SCRA 504

240 Dar v Alonso Legasto, 339 SCRA 306

241 Docena v Lapesura, 355 SCRA 658

242 Hamilton v Levy, 344 SCRA 821

243 National Steel Corporation v. Court of Appeals, 388 SCRA 85

244 Cagayan Valley Drug Corporation vs. Commissioner of Internal Revenue, 545 SCRA 10

245 Asean Pacific Planners vs. City of Urdaneta, 566 SCRA 219

246 Commissioner of Internal Revenue v SC Johnson, 309 SCRA 87

similar action was pleading or had been filed

counsel. The procedural lapse may be overlooked in the interest of substantial

247 (c) Certification was signed by

justice.

compliance with the Rules

forum shopping may be signed for and its behalf by a specifically authorized lawyer who has personal knowledge of the facts required to be disclosed in such document. 250

248 (d) Certification was executed by an in house counsel is sufficient

249 (e) With respect to a corporation, the certification against

5.11 The Supreme Court has gone to the extent of invoking the power to

suspend the rules by disregarding the absence of the certification in the interest of substantial justice. 251

5.12 As a general rule, the certification cannot be filed at a later date. However,

in some instances the Supreme Court has allowed the late filing when special or compelling reasons justify the same, such a the substantive merit of the case. 252

5.13 Problem: The rule in Section 1, Rule 17 is that the plaintiff may dismiss his

complaint by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. As a general rule, such dismissal is without prejudice. Suppose P filed a complaint against D, and before service of the answer or of motion for summary judgment, P caused the dismissal of his complaint by filing a notice of dismissal. Months later, P filed the same complaint against D. In the certification on non-forum shopping appended to the second complaint, P failed to mention about the prior filing and dismissal of the first case. Is P’s failure to mention about the prior filing and dismissal of the first case fatal?

No. An omission in the certification on non-forum shopping about any event or case which would not constitute res judicata or litis pendentia is not fatal. In the problem presented, the dismissal of the first case would not constitute res judicat a precisely because such dismissal is without prejudice to the refilling of the case. 254

253

247

Robern Development Corporation v Quitain, 315 SCRA 150

248

249

Sy Chin v Court of Appeals, 345 SCRA 673

Mercury Drug Corporation v Libunao, 434 SCRA 404

250

251

Athena Computers, Inc. v Reyes, 532 SCRA 343 (September 5, 2007)

De Guia v. De Guia, 356 SCRA 287

252 Loyola v. Court of Appeals, 245 SCRA 477, Roadway Express v. Court of Appeals, 264 SCRA 696, Sy v. Landbank, 336 SCRA 419, Shipside Incorporated v. Court of Appeals,352 SCRA 334, Ateneo De Naga v. Manalo, 458 SCRA 325

253

254

Sevilleja v. Laggui, 362 SCRA 715

Roxas v. Court of Appeals,363 SCRA 207

5.14

Also, a case pending before the Ombudsman cannot be considered for

purposes of determining forum shopping as the power of the Ombudsman is only investigative in character and its resolution cannot constitute a valid and final judgment because its duty is to file the appropriate case before the Sandiganbayan.

DISTINGUISH BETWEEN VERIFICATION / CERTIFICATION

1. The distinctions are: (a) A verification is a sworn statement that the

allegations are true and correct based on personal knowledge and/or authentic records, while a certification states that no action or claim involving the same issues have been filed or is pending (b) A verification is required in complaints, initiatory pleadings and some responsive pleadings, while a certification is required only in complaints and initiatory pleadings (c) A defect in a verification is curable by amendment or an order to verify, while that in a certification cannot be cured by amendment (d) A defect in the verification does not immediately give rise to a ground for dismissal, while a defect in a certification gives rise to a ground for dismissal (e) a verification may be signed by counsel, while a certification must be signed by a party.

RULE 8 – MANNER OF MAKING ALLEGATIONS IN PLEADINGS

HOW ALLEGATIONS ARE MADE IN A PLEADING

1. In general, a pleading must contain in a methodical and logical form a

plain concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense 255

1.1 Ultimate facts are the essential facts constituting the plaintiff’s cause of

action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient.

1.2 Examples of ultimate facts: (a) That an obligation has been constituted,

that party must comply, that there is no compliance (b) That party is the owner of property, that he has a right to its use/possession, that he has been dispossessed

1.3 A pleading must only aver ultimate facts as no conclusions are supposed

to be averred. Conclusions are for the court to make.

255 Supra, Section 1, Rule 8

2.

Mere evidentiary facts or those that are necessary for the determination of

the ultimate facts are to be omitted. Evidentiary facts are the premises upon which conclusions of ultimate facts are based.

2.1 Examples of evidentiary facts are: (a) That the obligation as covered by a

promissory note was executed before specified persons or that defendant has several letters indicating intention to/or not to pay (b) How property was acquired

2.2 They are not supposed to be averred as evidentiary matters must be

presented to the court during the trial of the case, not in the pleadings.

3. Laws may be pleaded only if the pleading is an Answer.

PLEADING ALTERNATIVE CAUSES OF ACTION OR DEFENSES

1. A party may set forth two or more statements of a claim or a defense

alternatively or hypothetically, either in one cause of action or defense or in separate causes of actions or defenses. If two or more statements are made in the alternative and if one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.

2. The provision recognizes the possibility that the liability of the defendant

may possibly be based on two causes of action or that the defendant may possibly have alternative defenses, even if they may conflict with each other.

2.1 Examples of alternative causes of actions: (a) allegations for breach of

contract of carriage and tort, or (b) allegations for breach of contract and fraud, while examples of alternative defenses are: (a) defense of failure to repurchase by plaintiff and that property was inherited, or (b) debt has been paid or that it has prescribed, or (c) fraud attended the execution of the contract, but even assuming that the contract is valid, the action has prescribed.

3. The object of the provision is to relieve a party from making a definite

election in cases where his claim or defense might fall within two different substantive classes. Hence, a party may state as many claims/defenses as he has regardless of inconsistency.

3.1 It does not require that all the alternative causes of action/defenses be

sufficient for the plaintiff/defendant to be entitled to relief. It is enough that one of them if made independently would be sufficient to support a cause of action or defend against it. Hence, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.

3.2

Overruling of one does not bar other defenses. However, if not set up,

determination of one shall bar the determination of the other.

HOW TO PLEAD CONDITIONS PRECEDENT

1. A condition precedent as determined by common usage are matters which

must be complied with before a cause of action of action arises.

2. Hence, a general averment of the performance or occurrence

conditions precedent is required. 256

of all

3. Examples of conditions precedent are: (a) tender of payment is required

257

before consignation (b) exhaustion of administrative remedies before resort to judicial action (c) that earnest efforts at a compromise have been exerted, the suit being one between members of the same family (d) that prior resort to conciliation has been undertaken to no avail

4. The failure to comply is an independent ground for a motion to dismiss. 258

PLEADING CAPACITY TO SUE AND TO BE SUED

1. The following must be averred: (1) capacity to sue or be sued (2) authority

of a party to sue or be sued in a representative capacity (3) legal existence of an organized association of persons that is made a party. 259

1.1 Note the cross reference to Sections 1 and 3, Rule 3 referring to who may

be parties and representative parties, and to Section 1(d), Rule 16 referring to a motion to dismiss on the ground of lack of legal capacity to sue, meaning that a party is not in possession of his civil rights, does not have the qualification to appear, or does not have the character or representation claimed.

2. A party desiring to raise the issue of lack of legal capacity shall do so by

specific denial, which shall include such supporting particulars as peculiarly within the pleader’s knowledge.

HOW TO AVER FRAUD, MISTAKE, CONDITION OF MIND

256 Supra, Section 3, Rule 8

257 Article 1256, NCC

258 Supra, Section 1(j), Rule 16

259 Supra, Section 4, Rule 8

1.

Fraud and mistake must be stated with particularity. It is not enough for the

pleading to just allege fraud.

1.1 It must state the time, place and specific acts constituting the fraud.

2. Condition of mind, such as malice, intent, knowledge may be averred

generally. 260

2.1 Based on human experience, it is difficult to state the particulars of a

condition of the mind.

HOW TO AVER/ PLEAD A JUDGMENT/DECISION OF A DOMESTIC/FOREIGN COURT, JUDICIAL/QUASI-JUDICIAL OFFICER TRIBUNAL BOARD

1. It is sufficient that a general allegation of the existence of the judgment is

made, without setting forth matter showing jurisdiction to render it. 261

1.1 Jurisdiction in this case is presumed.

IF ACTION/DEFENSE IS BASED ON AN ACTIONABLE DOCUMENT

1. Where the action or defense is based on an actionable document or the

written document upon which the plaintiff or defendant relies for his claim or defense, it is pleaded by (a) setting forth the substance of such document in the pleading and attaching the original/copy as an annex or (b) setting it forth verbatim in the pleading. 262

2. It is contested by specifically denying it under oath and setting forth what

he claims to be the fact.

2.1

A mere denial is insufficient as the same must be under oath or verified.

2.1

The requirement does not apply if: (a) adverse party is not/does not

appear to be a party to the actionable document. Example: Heirs are sued on a document executed by a person they will inherit from (b) when compliance with an order for an inspection of the original document is refused. (c) when the document is not an actionable document but is merely evidence of the claim or existence of the actionable document . Example: demand letters (d) when the party who has the benefit of an implied admission waives the benefit. Example:

he presents evidence as to genuineness and due execution

263

260 Supra, Section 5, Rule 8

261 Supra, Section 6, Rule 8

262 Supra, Section 7, Rule 8

263 Supra, Section 8, Rule 8

3.

The effect of not specifically denying an actionable document under oath

lead to the admission of its genuineness and due execution. It thus means that the party executed the document or was executed by someone authorized by him, it was in the words/figures set forth in the pleading, and that the formal requirements of law have been observed. Thus, there is no need to present it formally in evidence because it is an admitted fact.

3.1 A party though is not barred from interposing other defenses as long as it

is not inconsistent with the implied admission. Examples of inconsistent defenses are: forgery, lack of authority to execute the document, that it was signed in another capacity, it was not delivered or the words/figures as pleaded are not the same as when the document was signed . On the other hand, consistent defenses are: fraud, payment, want or illegality of consideration, usury, prescription, release or waiver or estoppel.

HOW ARE OFFICIAL ACT/DOCUMENTS AVERRED

1. It is sufficient to aver that document was issued or the act is done in

264

compliance with law. Example: Issuance of Certification to file action by Lupon Tagapayapa chair.

HOW ARE SPECIFIC DENIALS MADE

1.

265

A specific denial is made by: (a) Specifically denying the material

averment in the pleading of the adverse party and setting forth the substance of the matter upon which he relies for such denial, this is known as an absolute

denial (b)Deny only a part of the averment by specifying that so much of it is true

Allegation of lack of

knowledge or information sufficient to form a belief as to the truth of the material averment in the pleading of the adverse party, this is known as denial by disavowal of knowledge.

and deny the remainder, this is known as partial denial (c)

A negative pregnant denial is a denial pregnant with an admission of the substantial facts alleged in the pleading. 266

264

265

Supra, Section 9, Rule 8

Supra, Section 10, Rule 8

266

Caneland Sugar Corporation v. Alon, 533 SCRA 28, (September 12, 2007)

1.1

If the denial is a mere repetition of the allegations in the complaint it is

considered a negative pregnant denial which is conceded to actually be an admission. Example: A complaint alleges: “Plaintiff extended a loan to Defendant in the amount of P500,000.00 on July 27, 2006 in Baguio City.” The defendant in his answer alleges: “Defendant specifically denies that Plaintiff extended a loan to Defendant in the amount of P500,000.00 on July 27, 2006.” The answer is a mere repetition of the allegations made in the complaint. The answer is vague as to what it really denies. Is it the existence of a loan that is denied? Is it the amount? The date? The place?

1.2 When the complaint alleges that: “ the sum of PHP 10,000.00 is a

reasonable sum to be allowed plaintiff as and for attorney’s fees. If the defendant’s denial is a mere repetition, then it is an admission that any sum less than PHP 10,000.00 is reasonable.

1.3 If allegations are not denied in the prescribed manner, a party is deemed

to have made a general denial which is tantamount to an admission. 267

1.4 A denial by disavowal of knowledge will amount to an admission, if to the

knowledge of the court, it is so plainly and necessarily within the defendant’s knowledge that the averment of ignorance must be untrue.

1.5 Exceptions to the rule that matters are admitted by the failure to make a

268

specific denial are: (a) the amount of unliquidated damages (b) conclusions which are not required to be denied as only ultimate facts must be alleged, and (c) non-material allegations as only those that are material have to be denied.

1.6 Note that when the allegations pertain to (a) allegations of usury in a

complaint to recover usurious interest, or (b) genuineness and due execution of an actionable document, the specific denial is required to be made under oath otherwise they are admitted.

STRIKING OUT OF A PLEADING OR MATTER CONTAINED THEREIN

1. If the pleading or any matter therein is sham, false, redundant, immaterial,

impetinent or scandalous, the court can order the pleading or matter contained therein to be stricken therefrom (a) upon motion made by a party before responding to a pleading (b) if no responsive pleading is allowed / permitted by

267 Supra, Section 11, Rule 8

268 Supra, Section 11, Rule 8

the Rules, upon motion by a party within 20 days after service of the pleading, or (c) upon the Court’s own initiative 269

RULE 9 – EFFECTS OF FAILURE TO PLEAD

1. The general effect of the failure to plead is that the defenses / objections

not so pleaded in an Answer or a Motion to Dismiss are deemed waived.

1.1 However, if it appears from the pleadings or evidence on record that (a)

the Court has no jurisdiction over the subject matter (b) there is another action pending between the same parties for the same cause, or (c) the action is barred by prior judgment or statute of limitations, the court shall dismiss the claim. 270 These defenses are not barred if not set up

2. A compulsory counterclaim or a cross-claim not set up shall also be

271

barred. Note that this is in consonance with the requirement of the Rules that a compulsory counterclaim or cross claim existing at the time of the filing of the

answer must be contained therein but if it arises after the filing of an answer, it

may be set up in a supplemental pleading before judgment

to oversight, inadvertence, excusable neglect or when justice requires, it may be set up by amendment with leave of court before judgment. 274

273 or if failure is due

272

WHAT RESULTS IF DEFENDANT / DEFENDING PARTY FAILS TO ANSWER WITHIN THE TIME ALLOWED

1. If there is failure to plead within the time allowed, the defendant may be

declared in default upon compliance with the following: (a) the plaintiff must file a motion to declare the defendant in default (b) serve notice of his motion to defendant, which must include a notice of hearing (c) at the hearing, show proof of failure on the part of the defendant to file his answer within the reglementary period. 275

1.1 A court cannot motu propio declare a defendant in default.

269 Supra, Section 12, Rule 8

270 Supra, Section 1, Rule 9

271 Supra, Section 2, Rule 9

272 Supra, Section 8, Rule 11

273 Supra, Section 9, Rule 11

274 Supra, Section 10, Rule 11

275 Supra, Section 3, Rule 9

2.

Default is a procedural concept that occurs when the defending party fails

to file his answer within the reglementary period.

2.1 It does not occur from the failure of the defendant to attend the pre-trial,

where absence is a cause for the court to order presentation of evidence ex- parte or at the trial, where absence will be construed as a waiver to assail the evidence against him or is a waiver of the right to adduce evidence.

2.2 Note the exceptions to the concept that default is triggered by the failure of

the defending party to file the required answer, as a default judgment has been held to lie if (a) a party refuses to obey an order requiring him to comply with the various modes of discovery , or (b) if a party or managing agent of a party willfully fails to appear before the officer who is to take his deposition. 277

276

3. It is an error to declare a defendant in default where an answer has

already been filed. 278

4. Note that the

Procedure, where a motion to declare defendant in default is prohibited. 279

rule

is different if covered by the

Rules on Summary

4.1 Instead, the court can motu proprio or upon a motion render judgment as

may be warranted by the facts alleged in the complaint and limited to what is prayed for. 280

5. A declaration in default is not an admission of the truth or the validity of the

plaintiff’s claims. 281

ONCE DECLARED IN DEFAULT

1. The court has two options,it: (a) can proceed to render judgment granting

the claimant such relief as his pleading may warrant, unless, (b) the Court in its discretion requires the claimant to submit the evidence. Such reception may be delegated to the Clerk of Court, who must be a member of the Bar.

276 Supra, Section 3 (c), Rule 29

277 Supra, Section 5, Rule 29

278 Cathay Pacific Airways v. Romillo, Jr., 141 SCRA 451

279 Section 19 (h), 1991 Rules of Summary Procedure

280 Section 6, II, 1991 Rules of Summary Procedure

281 Monarch Insurance v. Court of Appeals, 333 SCRA 7

2.

The extent of the relief that may be awarded shall not exceed the amount

or be different in kind from that prayed for nor award unliquidated damages. 282

2.1 Hence, even if there is proof to indicate a greater relief, the court will

refrain from awarding it.

3. The defaulted defendant is nevertheless entitled to