Civil Procedure Prelims Bar Questions

General Principles
Concept of remedial law

Q: What is the concept of remedial law? 2% (2006 Bar Question) The concept of
Remedial Law is that it is a branch of public law which prescribes the procedural rules
to be observed in litigations, whether civil, criminal, or administrative, and in special
proceedings, as well as the remedies or reliefs available in each case.
Q: How are remedial laws implemented in our system of government? 2% (2006

Bar Question) Remedial Laws are implemented in our system of government through
the judicial system, including the prosecutory service, our courts and quasi-judicial
agencies.
X’s action for sum of money against Y amounting to P80,000.00 accrued before the
effectivity of the rule providing for shortened procedure in adjudicating claims that do
not exceed P100,000.00. X filed his action after the rule took effect. Will the new rule
apply to his case? (2011 BAR) Yes, since procedural rules generally apply
prospectively to pending cases.
Substantive law vis-á-vis remedial law

Q: Distinguish between substantive law and remedial, law. 2% (2006 Bar Question)
Substantive law is that part of the law which creates, defines and regulates rights and
obligations, the violation of which gives rise to a cause of action. On the other hand,
remedial law prescribes the method of enforcing rights or obtaining redress for their
invasion
Nature of Philippine courts

Principle of judicial hierarchy. Which of the following NOT TRUE regarding the
doctrine of judicial hierarchy? (2011 BAR) It derives from a specific and mandatory
provision of substantive law.
Q: What is meant by “hierarchy of courts”? (1996 Bar Question)

By “hierarchy of-courts” is meant that while the Supreme Court, the Court of Appeals
and the Regional Trial Courts have concurrent original jurisdiction to issue writs of
certiorari, prohibition, mandamus, quo warranto and habeas corpus, such
concurrence does not accord litigants unrestrained freedom of choice of the court to
which application therefor may be directed. The application should be filed with the
court of lower level unless the importance of tHe issue involved deserves the action
of the court of higher level.
Doctrine of non-interference or doctrine of judicial stability

What is the doctrine of judicial stability or non interference? (2011 BAR) No court has
the authority to interfere by injunction with the judgment of another court of coordinate
jurisdiction.
Q: AB. as mother and in her capacity as legal guardian of her legitimate minor son,
CD, brought action for support against EF, as father of CD and AB's lawfully wedded
husband. EF filed his answer denying his paternity with counterclaim for damages.
Subsequently, AB filed a manifestation in court that in view of the denial made by EF,
would be futile to pursue the case against EF. AB agreed to move for the dismissal of
the complaint, subject to the condition that EF will withdraw his counterclaim for
damages. MB and EF filed a joint motion to dismiss. The court dismissed the case
with prejudice. Later on, minor son CD, represented by AB, filed another complaint
for support against EF. EF filed a motion to dismiss on the ground of res judicata.
Is res judicata a valid ground for dismissal of the second complaint? Explain your
answer. (3%)
- No, res Judicata is not a defense in an action for support even if the first case
was dismissed with prejudice on a Joint motion to dismiss. The plaintiff’s mother
agreed to the dismissal of the complaint for support in view of the defendants
answer denying his paternity with a counterclaim for damages. This was in the
nature of a compromise of the right of support which Is prohibited by law.
What are the essential requisites of res Judicata (2%) (2000 Bar Question)
1. the judgment or order rendered must be final;
2. the court rendering the same must have Jurisdiction of the subject matter and
of the parties;
3. it must be a judgment or order on the merits; and
4. there must be between the two cases identity of parties, identity of subject
matter, and identity of causes of action.
A judicial compromise has the effect of ________ and is immediately executory

and is not appealable. (2012 BAR) Res Judicata;
Q: Evelyn filed a complaint for a sum of money against Joan but the complaint was
later dismissed for failure to prosecute “within a reasonable length of time.” Thereafter,
Evelyn filed another case based on the same facts against Joan. Joan moved to
dismiss the same on the ground that the cause of action therein is barred by a prior
judgment (res judicata). Evelyn opposed the motion claiming that res judicata has not
set in since Joan was not served with summons and the complaint in the first case
was earlier dismissed, so that the trial court never acquired jurisdiction over her
person and, consequently, over the case. How would you decide the motion of Joan?
Explain. (1989 Bar Question)
- The motion to dismiss is denied. One of the essential requisites of res judicata
is jurisdiction over the parties. Inasmuch as Joan was not served with the
summons in the first case which was earlier dismissed, the court did not acquire
jurisdiction over her person and, hence, the dismissal was without prejudice to
the filing of another action against her.
Jurisdiction
Over the parties
How jurisdiction over the plaintiff is acquired

Q: Amorsolo, a Filipino citizen permanently residing in New York City, filed with the
RTC of Lipa City a Complaint for Rescission of Contract of Sale of Land against
Brigido, a resident of Barangay San Miguel, Sto. Tomas, Batangas. The subject
property, located in Barangay Talisay, Lipa City, has an assessed value of
P19,700.00. Appended to the complaint is Amorsolo’s verification and certification of
non-forum shopping executed in New York City, duly notarized by Mr. Joseph Brown,
Esq., a notary public in the State of New York. Brigido filed a motion to dismiss the
complaint on the following grounds:
[a] The court cannot acquire jurisdiction over the person of Amorsolo because he is
not a resident of the Philippines; (2%) (2009 Bar Question)
- The first ground raised lacks merit because jurisdiction over the person of a
plaintiff is acquired by the court upon the filing of plaintiffs complaint therewith.
Residency or citizenship is not a requirement for filing a complaint, because
plaintiff thereby submits to the jurisdiction of the court.
Q: How is jurisdiction acquired by a court over the person of: (1994 Bar Question)
1) the plaintiff in a special civil action for mandamus?
- Jurisdiction is acquired over the plaintiff in a special civil action for mandamus
by the commencement or filing of the action.
Q: Pernito, also known in the community as Peregrino filed a petition for change of
name to Pedro. The name Peregrino appeared in the body of the petition but not in
the caption. When the petition was published, the caption and the body of the petition
were merely lifted verbatim, so that as published, the petition’s caption still did not
contain Peregrino as the petitioner’s alias. The government lawyer filed a motion to
dismiss on the ground that, notwithstanding publication for the requisite number of
times, the court did not acquire Jurisdiction over the petition because petitioner’s alias
(Peregrino) did not appear in the published caption. The court denied the motion to
dismiss with the ruling that there was substantial compliance with the law and that the
omission of the alias in the caption may be deemed de minimis because the alias was
clearly set forth in the petition itself. Was the court correct in denying the motion to
dismiss? Explain. (1992 Bar Question)
- No, the failure of the petitioner to include his alias (Peregrino) in the caption is
a jurisdictional defect and the inclusion of the alias in the body of the petition
does not cure said defect. The reason for the rule is that the ordinary reader
only glances fleetingly at the caption in a special proceeding and only if the
caption strikes him does he proceed to read the body of the petition; hence, .he
will probably not notice the other names or aliases of the petitioner. (Gil Go vs.
Republic, 77 SCRA 65)
How jurisdiction over the defendant is acquired

Q: How is jurisdiction acquired by a court over the person of: (1994 Bar Question)
the defendant in an action for unlawful detainer?
a non-resident defendant who is not found in the Philippines, in an action for
compulsory acknowledgment of his natural child?
- Jurisdiction is acquired over the person of the defendant in an action for unlawful
detainer by the proper service of summons on him or by his voluntary
appearance.
- Jurisdiction cannot be acquired over the person of a non-resident defendant
who is not found in the Philippines in an action for compulsory acknowledgment
of his natural child because he is outside the jurisdiction of the court.
Lani filed an action for partition and accounting in the Regional Trial Court (RTC) of
Manila against her sister Mary Rose, who is a resident of Singapore and is not found
in the Philippines. Upon motion, the court ordered the publication of the summons for
three weeks in a local tabloid, Bulgar. Linda, an OFW vacationing in the Philippines,
saw the summons in Bulgar and brought a copy of the tabloid when she returned to
Singapore, Linda showed the tabloid and the page containing the summons to Mary
Rose, who said, “Yes I know, my kumare Anita scanned and e-mailed that page of
Bulgar to me!”
Did the court acquire jurisdiction over Mary Rose? (2008 Bar Question)
- No, the court did not acquire jurisdiction over Mary Rose, the defendant. While
serving summons by publication is allowed in this case under Section 15, Rule
14 of the Rules of Court, the required sending of the copy of the summons and
the order of the Court by registered mail to the last known address of the same
defendant has not been followed; service of summons by publication under said
Rule has not been complied with; thus, there is no valid service.
Over the subject matter

Error of jurisdiction as distinguished from error of judgment
Q: Distinguish between error of judgment and error of jurisdiction. (1989 Bar Question)
- An error of judgment is one which the court may commit in the exercise of its
jurisdiction. Such an error does not deprive the court of jurisdiction and is
correctible only by appeal; whereas an error of jurisdiction is one which the court
acts without or in excess of its jurisdiction. Such an error renders an order or
judgment void or voidable and is correctible by the special civil action of
certiorari.
How jurisdiction is conferred and determined

Q: A complaint filed for recovery of possession of real property also prayed for moral
and exemplary damages the amounts of which have been left to the court’s discretion,
and for actual damages the amount of which shall be proven at the trial. The docket
fees for the action involving the real property have been paid, but not those for the
related damages, the amounts of which have not been specified. (1991 Bar Question)
(a) Did the court acquire Jurisdiction over the action?
- Yes, because the docket fees for the action involving the real property have been
paid.
May the action be dismissed?
(b) No, because the court has acquired jurisdiction over the action. However, the claim
for damages, as to which no amounts were specified may be expunged, or the plaintiff
may be allowed to amend the complaint so as to specify the amount of damages and
to pay the requisite fees within the prescriptive period. (Tacay v. RTC, 180 SCRA 433)
Objections to jurisdiction over the subject matter
Q: In a suit to recover a sum of money, plaintiff filed his complaint with the Regional
Trial Court instead of with the Municipal Trial Court which has jurisdiction over the
case because of the amount involved. The defendant did not file a motion to dismiss.
Neither did the Regional Trial Court dismiss the case on its own initiative. At the pre-
trial hearing, defendant tried to have the case settled. With the effective help of the
presiding judge, he was able to forge with the plaintiff a compromise agreement which
stipulated that he would pay in twelve (12) equal monthly installments starting the first
day of the following month, each to become due without need of any demand. Failure
to pay any installment when due will render the entire amount enforceable by writ of
execution. Judgment was rendered on the basis of the compromise agreement and
was then served on the parties.
Defendant failed to pay the first installment as it fell due. Plaintiff thereupon
sought execution which was granted, and the corresponding writ of execution was
issued. Defendant filed in due form a motion to set aside the writ of execution upon
the contention that the court had no power to order the issuance of the writ of
execution because it has no jurisdiction over the nature of the action, an issue that
can be raised at any stage of the case.
The court granted the defendant’s motion and accordingly set aside the writ of
execution.
Did the court act correctly? Why? (1992 Bar Question) Suggested Answer:
- Yes, the court acted correctly, because jurisdiction over the subject matter or
nature of an action cannot be conferred by agreement of the parties. Whenever
it appears that the court has no jurisdiction over the subject matter, it shall
dismiss the action,
Effect of estoppel on objections to jurisdiction
Q: Angelina sued Armando before the Regional Trial Court (RTC) of Manila to recover
the ownership and possession of two parcels of land; one situated in Pampanga, and
the other in Bulacan.
May the action prosper? Explain. (2%) (2009 Bar Question)
- NO, the action may not prosper, because under Rep. Act No. 7691, exclusive
original jurisdiction in civil actions which involve title to, or possession of real
property or any interest therein is determined on the basis of the assessed value
of the land involved, whether it should be P20,OOO in the rest of the Philippines,
outside of the Manila with courts of the first level or with the-Regional Trial Court.
The assessed value of the parcel of land in Pampanga is different from the
assessed value of the land in Bulacan. What is involved is not merely a matter
of venue, which is waivable, but of a matter of jurisdiction.
However, the action may prosper if jurisdiction is not in issue, because venue can be
waived.
Will your answer be the same if the action was for foreclosure of the mortgage over
the two parcels of land? Why or why not? (2%)
- NO, the answer would not be the same. The foreclosure action should be
brought in the proper court of the province where the land or any part thereof is
situated, either in Pampanga or in Bulacan. Only one foreclosure action need
be filed unless each parcel of land is covered by distinct mortgage contract.
In foreclosure suit, the cause of action is for the violation of the terms and
conditions of the mortgage contract; hence, one foreclosure suit per mortgage
contract violated is necessary.
The RTC does not have jurisdiction over the subject matter of the action
involving real property with an assessed value of P19,700.00; exclusive and original
jurisdiction is with the Municipal Trial Court where the defendant resides; (3%) and
(2009 Bar Question)
- The second ground raised is also without merit because the subject of the
litigation, Rescission of Contract, is incapable of pecuniary estimation the
exclusive original jurisdiction to which is vested by law in the Regional Trial
Courts. The nature of the action renders the assessed value of the land involved
irrelevant.
Q: A filed a complaint against Y with the RTC of Argao, Cebu, for payment of a
promissory note in the- sum of P50.000.00, for liquidated damages of P5.000.00 and
attorney’s fees of P5.000.00. After he filed his answer, Y died, but his lawyer did not
file a motion to dismiss. In the meantime, Y*s widow filed with the above court a
special proceeding for the settlement of the intestate estate of Y. The widow, Z, was
appointed the administratrix of the estate. A filed in the civil case a motion to have Y
substituted by the administratrix; the latter did not object. The court granted the
motion. Trial on the merits was had. In due course, the court rendered a decision in
favor of A. At the time it was rendered, the period to file claims in the intestate estate
of Y had already lapsed. The administratrix, X, did not appeal from the decision; and
after it became final. A moved for the execution of judgment, Z opposed the motion
contending that the decision is void because the claim does not survive. The case
should have been dismissed upon the death of Y since upon his death, the court lost
jurisdiction over the case. (1991 Bar Question)
a) Rule on the issue.
- Since Y died before final Judgment in the RTC, the action for money should
have been dismissed and prosecuted as a money claim against his estate.
However, since the widow. Z, who was appointed administratrix of the estate,
did not object to the trial on the merits and did not appeal from the decision, she
is deemed to have waived the right to have the claim litigated in the estate
proceedings. Moreover, she is estopped from questioning the court's
jurisdiction. Hence, the decision is valid.
If the opposition is without merit, can the writ of execution be validly issued?
- No, because a Judgment for money cannot be enforced by a writ of execution
against the estate of the deceased which is in custodia legis.
If it cannot be issued, what is the remedy of A?

- His remedy is to file a money claim against the estate of Y based on the
judgment. Although the period for filing money claims has already lapsed, the
same may be allowed before an order of distribution is entered.
Over the issues

Q: In complex crimes, how is the jurisdiction of a court determined? (2003 Bar
Question)
- In a complex crime, jurisdiction over the whole complex crime must be lodged
with the trial court having jurisdiction to impose the maximum and most serious
penalty imposable on an offense forming part of the complex crime
Over the res or property in litigation

Q: Angelina sued Armando before the Regional Trial Court (RTC) of Manila to recover
the ownership and possession of two parcels of land; one situated in Pampanga, and
the other in Bulacan. May the action prosper? Explain. (2%) (2009 Bar Question)
- NO, the action may not prosper, because under Rep. Act No. 7691, exclusive
original jurisdiction in civil actions which involve title to, or possession of real
property or any interest therein is determined on the basis of the assessed value
of the land involved, whether it should be P20,OOO in the rest of the Philippines,
outside of the Manila with courts of the first level or with the-Regional Trial Court.
The assessed value of the parcel of land in Pampanga is different from the
assessed value of the land in Bulacan. What is involved is not merely a matter
of venue, which is waivable, but of a matter of jurisdiction.
However, the action may prosper if jurisdiction is not in issue, because
venue can be waived.
Will your answer be the same if the action was for foreclosure of the mortgage over
the two parcels of land? Why or why not? (2%)
- NO, the answer would not be the same. The foreclosure action should be
brought in the proper court of the province where the land or any part thereof is
situated, either in Pampanga or in Bulacan. Only one foreclosure action need
be filed unless each parcel of land is covered by distinct mortgage contract.
In foreclosure suit, the cause of action is for the violation of the terms and
conditions of the mortgage contract; hence, one foreclosure suit per mortgage
contract violated is necessary.
Jurisdiction of courts
Supreme Court
If the Supreme Court en banc is equally divided in opinion covering an original action,
the case shall be: (2012 BAR) original action shall be dismissed.
A decision or resolution of a division of the Supreme Court when concurred in by
members who actually took part in the deliberation on the issues in a case and voted
thereon, is a decision or resolution of the Supreme Court. (2012 BAR) three (3);
Q: Compare the certiorari jurisdiction of the Supreme Court under the Constitution
with that under Rule 65 of the Rules of Civil Procedure. (4%) (2008 Bar Question)
- Under the Constitution, the certiorari jurisdiction of the Supreme Court provides
for its expanded jurisdiction power of judicial power over [governs] all branches
or instrumentalities of the government where is a grave abuse of discretion
amounting to lack or excess of jurisdiction, as [agencies and instrumentalities]
provided in Section 1, second par., Art. VIII of the 1987 Constitution. The petition
is filed under Rule 45 of the Rules of Court, and [The writ is directed not only to
tribunal, board or officer exercising judicial or quasi-judicial functions. And] the
period fixed for availing of the remedy is within 30 days from receipt of the copy
of the decision, order or ruling in question
But under Rule 65 of the Rules of Court, the certiorari jurisdiction of the
Supreme Court is limited to acts done without or in excess of jurisdiction or
grave abuse of discretion amounting to lack or excess of jurisdiction, by a
tribunal, board or officer exercising judicial or quasi- judicial functions only. And
the period fixed for availing of the remedy is not later than 60 days from notice
of judgment; order or resolution in question
Q: Can a suit for injunction be aptly filed with the Supreme Court to stop the President
of the Philippines from entering into a peace agreement with the National Democratic
Front? (2003 Bar Question)
- No, a suit for injunction cannot aptly be filed with the Supreme Court to stop the
President of the Philippines from entering into a peace agreement with the
National Democratic Front, which is a purely political question. The President of
the Philippines is immune from suit.
Q: After the First Division of the Supreme Court decided a case, the losing party
sought a reconsideration from the Supreme Court en banc. Is the action taken by the
said losing party proper? Explain your answer. (1990 Bar Question)
- No, because the Supreme Court en banc is not an appellate court to which
decisions or resolutions of a Division may be appealed. However, a motion for
reconsideration may be considered by the Supreme Court en banc if three
members of the Division are of the opinion that the same merits the attention of
the Court en banc and a majority of the Court en banc decide to consider it.
(Circular No. 2.89, Feb. 7, 1989)
Court of Appeals
Q: Goodfeather Corporation, through its President, Al Pakino, filed with the Regional
Trial Court (RTC) a complaint for specific performance against Robert White. Instead
of filing an answer to the complaint, Robert White filed a motion to dismiss the
complaint on the ground of lack of the appropriate board resolution from the Board of
Directors of Good feather Corporation to show the authority of Al Pakino to represent
the corporation and file the complaint in its behalf. The RTC granted the motion to
dismiss and, accordingly it ordered the dismissal of the complaint. Al Pakino filed a
motion for reconsideration which the RTC denied. As nothing more could be done by
Al Pakino before the RTC, he file an appeal before the Court of Appeals (CA). Robert
White moved for dismissal of the appeal in the ground that the same involved purely
a question of law and should have been filed with the Supreme Court (SC). However,
Al Pakino claimed that the appeal involved mixed questions of fact and law because
there must be a factual determination if, indeed, Al Pakino was duly authorized by
Goodfeather Corporation to file the complaint. Whose position is correct? Explain.
(2014)
- Al Pakino is correct in claiming that the appeal involved mixed questions of fact
and law. There is a question of law when the doubt or difference arises as to
what the law is on a certain state of facts. On the other hand, there is a question
of fact, when the doubt or difference arises as to the truth or falsehood of alleged
facts. Since the complaint was dismissed due to the alleged lack of appropriate
board resolution from the Board of Directors of Goodfeather Corporation, the
appeal will necessarily involve a factual determination of the authority to file the
Complaint for the said Corporation. Hence, the appeal before the Court of
Appeals is correct.
Q: Give at least three instances where the Court of Appeals may act as a trial court.
(3%) (2008 Bar Question)
- Instances where the Court of Appeals may act as a trial court are:
1. In annulment of judgment under Secs. 5 and 6, Rule 47. Should the Court o£
Appeals find prima facie merit in the petition, the same shall be given due
course and summons shall be served on the respondent, after which trial will
follow, where the procedure in ordinary civil cases shall be observed.
2. When a motion for new trial is granted by the Court of Appeals, the procedure
in the new trial shall be the same as that granted by a Regional Trial Court
(Sec. 4, Rule 53).
3. A petition for habeas corpus shall be set for hearing (Sec. 12, Rule 102).
4. In a petition for the writs of amparo and habeas data, a hearing can be
conducted.
5. Under Section 12, Rule 124 of the Rules of Criminal Procedure, the Court of
Appeals has the power to try cases and conduct hearings, receive evidence
and perform any and all acts necessary to resolve factual issues cases which
fall within its original and appellate jurisdiction.
6. The Court of Appeals can grant a new trial based on the ground of newly
discovered evidence. (Sec. 14, Rule 124).
7. The Court of Appeals, under Section 6, Rule 46, whenever necessary to
resolve factual issues, may conduct hearing thereon or delegate the
reception of the evidence of such issues to any of its members or to an
appropriate agency or office.
Q: Does the Court of Appeals have jurisdiction to review the Decisions in criminal and
administrative cases of the Ombudsman? 2.5% (2006 bar Question)
- The Court of Appeals can only review the Decisions of the Ombudsman in
administrative cases in an appeal by petition for review under Rule 43 of the
1997 Revised Rules of Civil Procedure. It has no jurisdiction to review Decisions
of the Ombudsman in criminal cases, the proper remedy being to file with the
Supreme Court an original petition for certiorari under Rule 65
Q: Menez Duque filed an action against Fuji, Inc. before the Regional Trial Court for
recovery of actual, moral and exemplary damages resulting from his alleged
unfounded and unjust dismissal from his job. Fuji. Inc. filed an answer asserting that
Menez dismissal was for just and valid cause. After trial, the Regional Trial Court
rendered a decision sustaining Menez’ claim and ordering Fuji, Inc. to pay him actual,
moral and exemplary damages. Fuji, Inc. appealed to the Court of Appeals where it
insisted that Menez’ dismissal was for valid and just cause. Without resolving the
assigned error, the Court of Appeals set aside the appealed decision and dismissed
the case on the ground that it is the Labor Arbiter, not the ordinary courts, which has
jurisdiction to entertain the claim for damages. Pursuant to Rep. Act No. 6715, "claims
for actual, moral exemplary and other forms of damages arising from employer-
employee relations" fall within the “original and exclusive Jurisdiction of Labor
Arbiters. Considering, however, that the lack of jurisdiction of the trial court was not
assigned as error in the appellant’s brief, did the Court of Appeals act properly in its
decision? Why? (1993 Bar Question)
- Yes, because the fact that the lack of Jurisdiction of the trial court was not
assigned as error in the appellant’s brief should not prevent the Court of Appeals
from taking up that issue, as the lack of jurisdiction of the lower court is apparent
from the face of the record. It is fundamental that a court of justice could only
validly act upon a cause of action or subject matter of a case over which it has
jurisdiction. Said jurisdiction is one conferred by law and cannot be acquired
through, or waived by, any act or omission of the parties. (Calimlim vs. Ramirez,
118 SCRA 399; Dy vs. National Labor Relations Commission, 145 SCRA 211).
Q: Roxanne, a widow, filed a petition for habeas corpus with the Court of Appeals
against Major Amor who is allegedly detaining her 18-year-old son Bong without
authority of law. After Major Amor had filed a return alleging the cause of detention of
Bong, the Court of Appeals promulgated a resolution remanding the case to the
Regional Trial Court for a full-blown trial due to the conflicting facts presented by the
parties in their pleadings. In directing the remand, the Court of Appeals relied on Sec.
9(1), in relation to Sec. 21 of BP 129 conferring upon said Court the authority to try
and decide habeas corpus cases concurrently with the Regional Trial Courts. Did the
Court of Appeals act correctly in remanding the petition to the Regional Trial Court?
Why? (1993 Bar Question)
- No. because while the Court of Appeals has original jurisdiction over habeas
corpus concurrent with Regional Trial Courts, it has no authority for remanding
to the latter original actions filed with the former. On the contrary, the Court of
Appeals Is specifically given the power to receive evidence and perform any
and all acts necessary to resolve factual issues raised in cases falling within its
original jurisdiction. (Sec. 9. second paragraph of B.P. Big. 129, as amended by
E.O. No. 33 s. 1986; Orda vs. Court of Appeals. 192 SCRA 768).
Sandiganbayan
Sandiganbayan exercises concurrent jurisdiction with the Supreme Court and the
Court of Appeals over: (2012 BAR) Petitions for Writ of Amparo and Habeas Corpus.
The Sandiganbayan can entertain a quo warranto petition only in: (2012 BAR) only in
aid of its appellate jurisdiction.
The judgment in a criminal case may be promulgated by the following, except by:
(2012 BAR) Sandiganbayan justice in cases involving anti-graft laws.
Q: TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement
is false. Explain your answer in not more than two (2) sentences.
In the exercise of its original jurisdiction, the Sandiganbayan may grant petitions for
the issuance of a writ of habeas corpus. (2009 Bar Question)
- FALSE. The Sandiganbayan may grant petitions for Habeas corpus only in aid
of its appellate jurisdiction (RA 7975, as amended by RA 8249), not in the
exercise of “original” jurisdiction.
Q: The Ombudsman, after conducting the requisite preliminary investigation, found

probable cause to charge Gov. Matigas in conspiracy with Carpinter, a private
individual, for violating Section 3(e) of Republic Act (RA) No. 3019 (Anti- Graft and
Corrupt Practices Act, as amended). Before the information could be filed with the
Sandiganbayan, Gov. Matigas was killed in an ambush. This, notwithstanding, an
information was filed against Gov. Matigas and Carpintero. At the Sandiganbayan,
Carpintero through counsel, filed a Motion to Quash the information, on the ground of
lack of jurisdiction of the Sandiganbayan, arguing that with the death of Gov. Matigas,
there is no public officer charged in the information. Is the Motion to Quash legally
tenable? (2014)
- NO. The Motion to quash is not legally tenable. While it is true that by reason of
the death of Gov. Matigas, there is no longer any public officer with whom he
can be charge for violation of R.A. 3019, it does not mean, however, that the
allegation of conspiracy between them can no longer be proved or that their
alleged conspiracy is already expunged. The only thing extinguished by the
death of Gov. Matigas is his criminal liability. His death did not extinguish the
crime nor did it remove the basis of the charge of conspiracy between him and
Carpintero. The requirement before a private person may be indicated for
violation of Section 3(g) of R.A. 3019, among others, is that such private person
must be alleged to have acted in conspiracy with a public officer. The law,
however, does not require that such person must, in all instances, be indicated
together with the public officer. Indeed, it is not necessary to join all alleged co-
conspirators in an indictment for conspiracy
Regional Trial Courts
is false. Explain your answer in not more than two (2) sentences. (5%)
The filing of a motion for the reconsideration of the trial court’s decision results in the
abandonment of a perfected appeal. (2009 Bar Question)
- FALSE. The trial court has lost jurisdiction after perfection of the appeal and so
it can no longer entertain a motion for reconsideration.
Q: On August 13, 2008, A, as shipper and consignee, loaded on the M/V Atlantis in
Legaspi City 100,000 pieces of Century eggs. The shipment arrived in Manila totally
damaged on August 14, 2008. A filed before the Metropolitan Trial Court (MeTC)of
Manila a complaint against B Super Lines, Inc. (B Lines), owner of the M/V Atlantis,
for recovery of damages amounting to P167,899. He attached to the complaint the
Bill of Lading. B Lines filed a Motion to Dismiss upon the ground that the Regional
Trial, Court has exclusive original jurisdiction over "all actions in admiralty and
maritime" claims. In his Reply, A contended that while the action is indeed "admiralty
and maritime" in nature, it is the amount of the claim, not the nature of the action, that
governs jurisdiction. Pass on the Motion to Dismiss. (3%) (2010 Bar Question)
- The Motion to Dismiss is without merit and therefore should be denied. Courts
of the first level have jurisdiction over civil actions where the demand is for sum
of money not exceeding P300, 000.00 or in Metro-Manila, P400, 000.00,
exclusive of Interest, damages, attorney's fees, litigation expenses and, costs:
this jurisdiction includes admiralty and marine cases. And where the main cause
of action is the claim for damages, the Amount thereof shall be considered in
determining the jurisdiction of the court (Adm. Circular No. 09-94, June 14,
1994).
Q: Anabel filed a complaint against B for unlawful detainer before the Municipal Trial
Court (MTC) of Candaba, Pampanga. After the issues had been joined, the MTC
dismissed the complaint for lack of jurisdiction after noting that the action was one for
accion publiciana. Anabel appealed the dismissal to the RTC which affirmed it and
accordingly dismissed her appeal. She elevates the case to the Court of Appeals,
which remands. The case to the RTC, Is the appellate court correct? Explain (3%).
(2010 Bar Question) SUGGESTED ANSWER:
- Yes, the Court of Appeals is correct in remanding the case to RTC for the latter
to try the same on the merits. The RTC, having jurisdiction over the subject
matter of the case appealed from MTC should try the case on the merits as if
the case was originally med with it, and not just to affirm the dismissal of the
case. Rep. Act No.7691, however, vested jurisdiction over specified accion
publiciana with courts of the first level (Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts) in cases where the assessed value
of the real property involved does not exceed P20, 000.00 outside Metro Manila,
or in Metro Manila, where such value does not exceed P50, 000.00.
What court has jurisdiction over an action for specific performance filed by a
subdivision homeowner against a subdivision developer? Choose the correct answer.
Explain. 2.5%
- The Housing and Land Use Regulatory Board (HLURB) that has jurisdiction
over an action for specific performance filed by a subdivision homeowner, who
is a lot-buyer or the latter’s successor-in-interest, against a subdivision
developer (Manila Bankers v. Ng Kok Wei, 418 SCRA 454 [2001]).
Q: A and B are brothers. Their late father, during his lifetime, donated his only real
estate property to B. Thereafter. B sold the property to C who had it titled. C died
intestate and was survived by his son. D. A. claiming that his legitime had been
impaired, filed a case for annulment of donation and sale, cancellation of title and
recovery of possession of the property before Branch 85 of the Regional Trial Court.
D filed a motion to dismiss the complaint on the ground that there is a pending
intestate estate proceeding before Branch 87 involving the estate of C. his father,
which included the subject real property. A opposed the motion arguing that Branch
85 has jurisdiction since ownership of the land is involved and the said branch has
jurisdiction to resolve the question of ownership.
As Judge of Branch 85 resolve the motion to dismiss. (1996 Bar Question) Answer:
I would deny the motion because it is Branch 85 of the Regional Trial Court that has
jurisdiction to decide the question of ownership of said property.
Q: Judge Villamor was the Presiding Judge of the Regional Trial Court of Quezon City
(Branch 50), in the criminal case for qualified theft against Ding. After trial. Judge
Villamor acquitted Ding of the charge. Subsequently, Paterno, the complaining
witness in the aforesaid criminal case, filed a civil action for damages against Judge
Villamor for knowingly rendering an unjust judgment when he acquitted Ding of the
qualified theft. The case was filed in the Regional Trial Court of Pasay City (Branch
100) presided over by Judge Villegas. Judge Villamor filed a motion to dismiss the
civil case for lack of authority on the part of Regional Trial Court of Pasay City (Branch
100) to review his (Judge Villamor) decision. How should the motion dismiss be
resolved? Why? (1993 Bar Question)
- The motion to dismiss should be granted. The Regional Trial Court of Pasay
City has no authority to review the decision of Judge Villamor acquitting Ding.
To allow Judge Villegas to proceed with the action for damages against Judge
Villamor, a co- equal judge of a co-equal court would in effect permit a court to
review and interfere with the Judgment of a co-equal court over which it has no
appellate Jurisdiction or power to review. [Villamor vs. Solas, 203 SCRA 540).
Q: While Alfredo was abroad, a parcel of land belonging to him was intruded into and
occupied by Rodrigo on January 1, 1991. When Alfredo returned on February 1, 1991,
he immediately demanded that Rodrigo vacate the property. When the demand went
unheeded. Alfredo prepared a complaint alleging: that he is the owner of the property
which Rodrigo has intruded into and is occupying; that the intrusion done with strategy
and stealth, has caused him actual damages of P30.000.00; and he, therefore, is
praying the court to restore him to the possession of the property, to award him
damages, and to further grant him such other reliefs as may be proper in the premises.
The complaint was filed on March
1. 1991 with the Regional Trial Court which eventually rendered a decision declaring
Alfredo to be the owner of the land, awarding him damages of P5.000.00, and ordering
that possession of the property be restored to him. Rodrigo appealed to the Court of
Appeals where he ques-tioned the jurisdiction of the Regional Trial Court, pertinently
contending that it was the Municipal Trial Court which had original and exclusive
jurisdiction over the case because (1) it was a forcible entry case, having been filed
within one year from the alleged intrusion; (2) the intrusion was allegedly done through
strategy and stealth which are hallmarks of a forcible entry case; and (3) the
declaration of ownership was uncalled for since Alfredo did not ask for it.
As counsel for Alfredo, what points will you raise and advance to rebut the arguments
of Rodrigo and to justify the jurisdiction, as well as the decision of the Regional Trial
Court?(1992 Bar Question)
- As counsel for Alfredo. I would raise the point that the action was not one of
forcible entry, but an accion publiciana or a plenary action for recovery of
possession de jure which is within the jurisdiction of the Regional Trial Court.
Moreover, the claim of actual damages in the amount of P30.000.00. is not
within the jurisdiction of the Municipal Trial Court If it were an action of forcible
entry, the damages that could be claimed would be the reasonable
compensation for the use and occupation of the land and the amount hereof
could exceed Twenty Thousand Pesos. But damages other than the reasonable
compensation for the use and occupation of the premises are not recoverable
in an action of forcible entry. With respect to the declaration of ownership, I
would argue that it was correct inasmuch as Rodrigo did not question the
ownership of Alfredo.
Q: (2002 Bar Question) P sued A in the RTC-Manila to recover the following sums:
(1) P200,000.00 on an overdue promissory note, (2) P80,000.00 on the purchase
price of a computer, (3) P150,000.00 for damages to his car and (4) P100,000.00 for
attorney’s fees and litigation expenses. Can A move to dismiss the case on the ground
that the court has no jurisdiction over the subject matter? Explain. (2%)
- B. No, because the RTC-Manila has jurisdiction over the subject matter. P may
sue A In one complaint asserting as many causes of action as he may have and
since all the claims are principally for recovery of money, the aggregate amount
claimed shall be the test of jurisdiction. [Rule 2, sec. 5(d)]. The aggregate
amount claimed is P430,000.00, exclusive of the amount of P100,000.00 for
attorney’s fees and expenses of litigation. Hence, the RTC-Manila has
jurisdiction.
Q: Estrella was the registered owner of a huge parcel of land located in a remote part
of their barrio in Benguet. However, when she visited the property after she took a
long vacation abroad, she was surprised to see that her childhood friend, John, had
established a vacation house on her property. Both Estrella and John were residents
of the same barangay. To recover possession, Estrella filed a complaint for ejectment
with the Municipal Trial Court (MTC), alleging that she is the true owner of the land as
evidenced by her certificate of title and tax declaration which showed the assessed
value of the property as P21,000.00. On the other hand, John refuted Estrella’s claim
of ownership and submitted in evidence a Deed of Absolute Sale between him and
Estrella. After the filing of John’s answer, the MTC observed that the real issue was
one of ownership and not of possession. Hence, the MTC dismissed the complaint for
lack of jurisdiction.
On appeal by Estrella to the Regional Trial Court (RTC), a full-blown trial was
conducted as if the case was originally filed with it. The RTC reasoned that based on
the assessed value of the property, it was the court of proper jurisdiction. Eventually,
the RTC rendered a judgment declaring John as the owner of the land and, hence,
entitled to the possession thereof. (2014)
Was the MTC correct in dismissing the complaint for lack of jurisdiction? Why or why
not?
- NO. The Metropolitan Trial Court was not correct in dismissing the Complaint
for lack of jurisdiction. It is well settled that jurisdiction is determined by the
allegations contained in the complaint. The contention of defendant in his
Motion to Dismiss has nothing to do in the determination of jurisdiction.
Otherwise, jurisdiction would become dependent almost entirely upon the
whims of the defendant (Medical Plaza Makati Condominium v. Cullen, G.R.
No. 181416, November 11, 2013). Relative thereto, the Municipal Trial Courts
have exclusive original jurisdiction over cases of forcible entry and unlawful
detainer (Section 33, B.P. 129). Hence, the Metropolitan Trial Court is not
correct in dismissing the complaint for lack of jurisdiction. Besides, the rules
allow provisional determination of ownership in ejectment cases when the
defendant raises the defense of ownership in his pleadings and the question of
possession cannot be resolved without deciding the issue of ownership (Sec.
16, Rule 70). Accordingly, the inferior courts have jurisdiction to resolve
questions of ownership whenever it is necessary to decide the question of
possession in an ejectment case.
Was the RTC correct in ruling that based on the assessed value of the property, the
case was within its original jurisdiction and, hence, it may conduct a full-blown trial of
the appealed case as if it was originally filed with it? Why or why not?
- NO. It is settled that forcible entry and unlawful detainer cases are within the
exclusive original jurisdiction of the MTC. Moreover, all cases decided by the
MTC are generally appealable to the RTC irrespective of the amounts involved
Family Courts
Cesar, age 16, a habitual offender, was caught in possession of .001 grams of
marijuana. He was charged for violation of Sec. 16 of R.A. 9165, The Comprehensive
Dangerous Drugs Law. The court which has jurisdiction is: (2012 BAR) Family Court.
Q: Juliet invoking the provisions of the Rule on Violence Against Women and their
Children filed with the RTC designated as a Family Court a petition for issuance of a
Temporary Protection Order (TPO) against her husband, Romeo. The Family Court
issued a 30-day TPO against Romeo. A day before the expiration of the TPO, Juliet
filed a motion for extension. Romeo in his opposition raised, among others, the
constitutionality of R.A. No. 9262 (The VAWC Law) arguing that the law authorizing
the issuance of a TPO violates the equal protection and due process clauses of the
1987 Constitution. The Family Court judge, in granting the motion for extension of the
TPO, declined to rule on the constitutionality of R.A. No. 9262. The Family Court judge
reasoned that Family Courts are without jurisdiction to pass upon constitutional
issues, being a special court of limited jurisdiction and R.A. No. 8369, the law creating
the Family Courts, does not provide for such jurisdiction. Is the Family Court judge
correct when he declined to resolve the constitutionality of R.A. No. 9262? (2015)
- NO, the Family Court Judge is not correct when it declined to resolve the
constitutionality of R.A. No. 9262. In Garcia v. Hon. Rey Allan Drilon, G.R. No.
179267, June 25, 2013, the Supreme Court held that the “Family Courts have
authority and jurisdiction to resolve the constitutionality of a statute. In spite of
its designation as a family court, the RTC remains to possess the authority as a
court of general original jurisdiction to pass upon all kinds of cases whether civil,
criminal, special proceedings, land registration, guardianship, naturalization,
admiralty or insolvency. This authority is embraced in the general definition of
judicial power to determine the valid and binding laws in conformity with the
fundamental law.”
Q: (2001 Bar Question) A. How should the records of child and family cases in the
Family Courts or Regional Trial Court designated by the Supreme Court to handle
Family Court cases be treated and dealt with? (3%)
- The records of child and family cases in the Family Courts or Regional Trial
Court designated by the Supreme Court to handle Family Court cases shall be
dealt with utmost confidentiality. (Sec. 12, Family Courts Act of 1997) shall not
be divulged unless necessary and with authority of the judge. (Id.)
Metropolitan Trial Courts/Municipal Trial Courts
The MTC, acting as an Environmental Court, has original and exclusive jurisdiction
over the following, except: (2012 BAR) criminal offenses punishable under the Chain
Saw Act (R.A. 9175)
Q: In an action for unlawful detainer in the Municipal Trial Court (MTC), defendant X
raised in his Answer the defense that plaintiff A is not the real owner of the house
subject of the suit. X filed a counterclaim against A for the collection of a debt of
P80.000 plus accrued interest of P15,000 and attorney’s fees of P20.000. Is X's
defense tenable? [3%] Does the MTC have jurisdiction over the counterclaim? [12%]
(1998 Bar Question)
- No. X's defense is not tenable if the action is filed by a lessor against a lessee.
However, if the right of possession of the plaintiff depends on his ownership
then the defense is tenable.
- The counterclaim is within the jurisdiction of the Municipal Trial Court which
does not exceed P100,000.00, because the principal demand is POO,000.00,
exclusive of interest and Attorney's fees. (Sec. 33, B.P. Big. 129, as amended.)'.
However, inasmuch as all actions of forcible entry and unlawful detainer are
subject to summary procedure and since the counterclaim is only permissive, it
cannot be entertained by the Municipal Court. (Secs. 1A(1) and 3(A) of Revised
Rule on Summary Procedure.)
Q: Filomeno brought an action in the Metropolitan Trial Court (MeTC) of Pasay City
against Marcelino pleading two causes of action. The first was a demand for the
recovery of physical possession of a parcel of land situated in Pasay City with an
assessed value of P40,000; the second was a claim for damages of P500,000 for
Marcelino’s unlawful retention of the property Marcelino filed a motion to dismiss on
the ground that the total amount involved, which is P540,000, is beyond the
jurisdiction of the MeTC. Is Marcelino correct? (4%)(2008 Bar Question)
- No, Marcelino is not correct. Under Rep. Act No. 7691, Metropolitan Trial Courts
and other courts of the first level have been vested with exclusive original
jurisdiction in all civil actions which involved title to, or possession of real
property or any interest therein where the assessed value of the property or
interest therein does not exceed P20,000.00, or in civil actions in Metro Manila,
where such assessed value does not exceed P50,000.00 exclusive of interest,
damages of whatever kind, attorney’s fees, litigation expenses and costs. Pasay
City where the action for recovery of physical possession was filed, is part of
Metro Manila and therefore has exclusive jurisdiction over the parcel of land
situated therein whose assessed value is P40,000.00. The claim for damages
of P500,000.00 for the unlawful retention of the land involved is not
determinative of the court’s jurisdiction which is based on the nature of the
action. The claim for damages of P500,000.00 is just a consequence of the
unlawful detention of the property subject of the action, which should not be
taken separately from the land. Filomeno has only one cause of action which is
the action for recovery of possession of the land against Marcelino, with
damages.
Q: Plaintiff filed a complaint for a sum of money against defendant with the MeTC-
Makati, the total amount of the demand, exclusive of interest, damages of whatever
kind, attorney’s fees, litigation expenses, and costs, being PI .000,000. In due time,
defendant filed a motion to dismiss the complaint on the ground of the MeTC’s lack of
jurisdiction over the subject matter. After due hearing, the MeTC 11) ruled that the
court indeed lacked jurisdiction over the subject matter of the complaint; and (2)
ordered that the case therefore should be forwarded to the proper Regional Trial Court
immediately.
Was the court's ruling concerning jurisdiction correct? Was the court’s order to forward
the case proper? Explain briefly. (5%)(2004 Bar Question)
- Yes. The MeTC did not have jurisdiction over the case because the total amount
of the demand exclusive of interest, damages of whatever kind, attorney's fees,
litigation expenses, and costs, was PI M. Its jurisdictional amount at this time
should not exceed P400,000.00
- The court's order to forward the case to the RTC is not proper. It should merely
dismiss the complaint. Under Sec. 3 of Rule 16, the court may dismiss the action
or claim, deny the motion or order the amendment of the pleading but not to
forward the case to another court.
Q: A filed with the Metropolitan Trial Court of Manila an action for specific performance
against B, a resident of Quezon City, to compel the latter to execute a deed of
conveyance covering a parcel of land situated in Quezon City having an assessed
value of P19,000.00. B received the summons and a copy of the Complaint on 02
January 2003. On 10 January 2003, B filed a Motion to Dismiss the Complaint on the
ground of lack of jurisdiction contending that the subject matter of the suit was
incapable of pecuniary estimation. The court denied the motion. In due time, B filed
with the Regional Trial Court a Petition for Certiorari praying that the said Order be
set aside because the Metropolitan Trial Court had no jurisdiction over the case.
On 13 February 2003, A filed with the Metropolitan Trial Court a motion to
declare B in default. The motion was opposed by B on the ground that his Petition for
Certiorari was still pending. Was the denial of the Motion to Dismiss the Complaint
correct? Resolve the Motion to Declare the Defendant in Default. (2003 Bar Question)
- The denial of the Motion to Dismiss the Complaint was not correct. Although the
assessed value of the parcel of land involved was P19,000.00, within the
jurisdiction of the Metropolitan Trial Court of Manila, the action filed by A for
Specific Performance against B to compel the latter to execute a Deed of
Conveyance of said parcel of land- was not capable of pecuniary estimation
and, therefore, the action was within the jurisdiction of Regional Trial Court.
Q: A, a resident of Malolos, Bulacan, died leaving an estate located in Manila, worth

P200,OOO.OO. In what court, taking into consideration the nature of jurisdiction and
of venue, should the probate proceeding on the estate of A be instituted? (2003 Bar
Question)
- The probate proceeding on the estate of A should be instituted in the Municipal
Trial Court of Malolos, Bulacan which has jurisdiction, because the estate is
valued at P200,000.00, and is the court of proper venue because A was a
resident of Malolos at the time of his death. (Sec. 33 of BP 129 as amended by
RA 7691; Sec. 1 of Rule 73).
Q: Josefa filed in the Municipal Circuit Trial Court of Alicia and Mabini, a petition for
the probate of the will of her husband, Martin, who died in the Municipality of Alicia,
the residence of the spouses. The probable value of the estate which consisted mainly
of a house and lot was placed at P95.000.00 and in the petition for the allowance of
the will, attorney's fees in the amount of P10,000.00, litigation expenses in the amount
of P5,000.00 and costs were included. Pedro; the next, of kin of Martin, filed an
opposition to the probate of the will on the ground that the total amount included in
the relief of the petition is more than P100,000.00, the maximum Jurisdictional amount
for municipal circuit trial court. The court overruled the opposition and proceeded to
hear the case. Was the municipal circuit trial court correct in its ruling? Why? (5%)
(2001 Bar Question)
- Yes, the Municipal Circuit Trial Court was correct in proceeding to hear the case.
It has exclusive jurisdiction in all matters of probate, both testate and intestate,
where the value of the estate does not exceed P100,000,00 (now
(P200.000.00). The value in this case of P95.000.00 is within its jurisdiction. In
determining the jurisdictional amount, excluded are attorney's fees, litigation
expenses and costs; these are considered only for determining the filing fees.
(B.P. Big. 129, sec. 33, as amended)
Q: (2000 Bar Question) A brings an action in the Metropolitan Trial Court of Manila
against B for the annulment of an extrajudicial foreclosure sale of real property with
an assessed value of P50.000.00 located in Laguna. The complaint alleged
prematurity of the sale for the reason that the mortgage was not yet due. B timely
moved to dismiss the case on the ground that the action should have been brought in
the Regional Trial Court of Laguna. Decide with reasons. (3%)
A files an action in the Municipal Trial Court against B, the natural son of A’s
father, for the partition of a parcel of land located in Taytay, Rizal with an assessed
value of P20.000.00. B moves to dismiss the action on the ground that the case should
have been brought in the Regional Trial Court because the action is one that is not
capable of pecuniary estimation as it involves primarily a determination of hereditary
rights and not merely the bare right to real property.
Resolve the motion. (2%)
- The motion should be granted. The Metropolitan Trial Court of Manila has no
jurisdiction because the action for the annulment of the extrajudicial foreclosure
is not capable of pecuniary estimation and is therefore under the jurisdiction of
the Regional Trial Courts. (Russell v. Vestil 304 SCRA 738, (1999)
- However, the action for annulment is a personal action and the venue depends
on the residence of either A or B. Hence, it should be brought in the Regional
Trial Court of the place where either of the parties resides.
- The motion should be granted. The action for partition depends on a
determination of the hereditary rights of A and B, which is not capable of
pecuniary estimation. Hence, even though the assessed value of the land is
P20,000.00, the Municipal Trial Court has no jurisdiction.
Q: Albert forcibly entered and occupied the house and lot in Quezon City owned by
his neighbor Carissa. Carissa immediately sued Albert for recovery of the property.
She also claimed damages amounting to P100,000.00, other undetermined losses as
a result of the forcible entry, and attorney’s fees of P25.000.00. Albert sets up
affirmative defenses in his answer without questioning Carissa's title over the
property. (1995 Bar Question)
Is the case triable under summary procedure by the Metropolitan Trial Court of
Quezon City? Explain.
May Carissa present evidence of title? Explain.
- Yes, because all actions for forcible entry and unlawful detainer are subject to
summary procedure irrespective of the amount of damages claimed, but the
attorney’s fees should not exceed P20,000.00.
- Yes, but only to determine the question of possession. (BP 129 as amended).
Albert may raise the issue of lack of barangay conciliation prior to the filing of
the complaint.
Q: For failure of the tenant, X, to pay rentals, A, the court-appointed administrator of

the estate of Henry Datu, decides to file an action against the former for the recovery
of possession of the leased premises located In Davao City and for the payment of
the accrued rentals In the total amount of P25,000.00. (1991 Bar Question)
Is prior referral to the Lupon under P.D. No. 1508 necessary?
- No, because the law applies only to disputes between natural person, and does
not apply to juridical person such as the estate of a deceased.
What is the court of proper jurisdiction and venue of the Intended action?
- The Court of proper jurisdiction and venue is the Municipal Trial Court of Davao
City, since this is an action of illegal detainer and the leased premises are
located in Dayao City.
Supposing that referral is necessary, but the complaint is filed without such referral,
may it be dismissed on the ground of lack of jurisdiction?
- No, because lack of referral would merely render the action premature for failure
to comply with a condition precedent.
If the case is filed with the Municipal Trial Court, in Cities (MTCC), is it covered by the
Rule on Summary Procedure?
- No, it is not covered by the Rule on Summary Procedure in any of the lower
courts, because the unpaid rentals exceed P20.000.00 (Sec. 1-A-l of Rule on
Summary Procedure)
Supposing that A filed the complaint in the MTCC, and X filed an Answer wherein he
interposed a counterclaim for moral damages in the amount of P50.000 alleging that
the complaint is unfounded and malicious, would the MTCC have jurisdiction over the
counterclaim? If X did not set up the counterclaim, can he file a separate action to
recover the damages? Can A file a counterclaim to the counterclaim?
- No, because the counterclaim exceeds the jurisdictional amount of P20.000.00.
Since the claim for damages is not within the jurisdiction of the MTCC, it is not
a compulsory counterclaim and X can file a separate action in the RTC to
recover the damages.
Q: In an ejectment suit filed with the Metropolitan Trial Court of Manila, the judge
rendered a decision ordering the defendant (a) to vacate the property of the plaintiff
and (b) to pay the plaintiff the amount of P300 a month as reasonable compensation
for the use of the land starting from the time she occupied the same and until it is
vacated by him; P10,000 as unrealized earnings; P7,000 as moral damages; P5,000
as exemplary damages; and P3,000 as attorney’s fees. The defendant contends that
the decision is improper. Decide. (1989 Bar Question)
- The Metropolitan Trial Court exceeded its jurisdiction in awarding damages,
other than the reasonable compensation for the use and occupation of the land,
totalling P25,000.00. Hence, the decision should be nullified as to the excess of
P5,000 over the jurisdictional amount of P20,000.00 (Augustin vs. Bocalan, 135
SCRA 340)
Q: Andres filed a case for unlawful detainer before the Metropolitan Court of Manila
against Lito for refusing to vacate the leased premises after the expiration of his Lease
Contract and for non-payment of rentals. As counterclaim, Lito claimed moral
damages in the amount of P15,000.00. May the Metropolitan Court proceed to try and
decide the case including the claim of P15,000.00? Explain.
In case Lito is adjudged to vacate the leased premises and to pay the accrued rentals
in arrears, how can he stay the execution of the judgment?
How does unlawful detainer differ from forcible entry? (1988 Bar Question) Answer:
- Yes, because the amount of the counterclaim, P15,000.00, is within the
jurisdiction of the Metropolitan Court which has also exclusive original
jurisdiction over the unlawful detainer case.
- Lito must appeal; file a supercede as bond in an amount equivalent to the rents,
damages and costs accruing down to the time of the judgment; and deposit with
the Regional Trial Court the amount of the reasonable value of the use and
occupation of the premises for the preceding month or period at the rate
determined by the judgment, on or before the tenth day of each succeeding
month or period. (Sec. 8 of Rule 70)
- In unlawful detainer, the possession is legal at the beginning but subsequently
becomes illegal after the expiration or termination of the right to hold
possession, whereas in forcible entry the possession is illegal from the
beginning because the entry was made by force, intimidation, threat, strategy
or stealth.
Q: “A” leased his commercial land and building in Malate, Manila, to “B”, a resident,
of Malolos, Bulacan. The Contract of Lease provided that in the event “A" violates the
Contract, “B” may file suit in Manila. “AY’ residence, and if “B” violates the Contract,
“A” may sue “B” in Malolos. “B” violated the Contract, entitling “A” to sue for ejectment.
If you were the lawyer of “A”, where and which court can you lawfully file the action
for ejectment? Explain. (1987 Bar Question)
- I can lawfully file the action for ejectment either in the Metropolitan Trial Court
of Manila or in the Municipal Trial Court of Malolos. Metropolitan and Municipal
Trial Courts have exclusive original jurisdiction over the cases of forcible entry
and unlawful detainer or ejectment cases. The stipulation in the contract of lease
that if “B” violates the contract “A” may sue “B” in Malolos is vvalid, because the
location of the real property in such cases determines the venue of the action
and not jurisdiction over the subject matter. However, since the agreement as
to venue is merely permissive, as shown by the use of the word “may”, the action
may also be filed in Manila where the real property is located. (Villanueva vs.
Masqueda, 155 SCRA 904).
Q: What courts have jurisdiction over the following cases filed in Metro Manila? (1997
Bar Question)
An action for specific performance or. In the alternative, for damages In the amount
of P180,000.00
- An action for specific performance or, in the alternative, for damages in the
amount of 180,000.00falls within the jurisdiction of Metropolitan Trial Courts in
Metro Manila. Although an action for specific performance is not capable of
pecuniary estimation, since the alternative demand for damages is capable of
pecuniary estimation, it is within the Jurisdiction of the Metropolitan Trial Courts
in Metro Manila.
An action for injunction is not capable of pecuniary estimation and hence falls within
the jurisdiction of the Regional Trial Courts.
An action for replevin of a motorcycle valued at 150,000.00 falls within the jurisdiction
of the Metropolitan Trial Courts in Metro Manila.
An action for interpleader to determine who between the defendants is entitled to
receive the amount of P190,000.00 falls within the jurisdiction of the Metropolitan Trial
Courts in Metro Manila. {Id.; Makati Dev. Corp. v. Tanjuatco, 27 SCRA 401)
A petition for the probate of a will involving an estate valued at 200,000.00 falls within
the jurisdiction of the Metropolitan Trial Courts in Metro Manila (Id; Sec. 19(41 of BP
129, as amended).
Over small claims; cases covered by the Rules on Summary Procedure and
Barangay conciliation
The Rule on Small Claims is applicable to: (2012 BAR)

action for damages arising from a quasi-delict amounting to P 100,000.
A Small Claims Court . (2013 BAR)

does not have any jurisdiction over ejectment actions
X and Y, both residents of Bgy. II, Sampaloc, Manila entered into a P 100,000 loan
agreement. Because Y defaulted, X sued Y for collection and the complainant prayed
for issuance of preliminary attachment. Y moved to dismiss the complaint because
there was no Barangay conciliation. The court should therefore: (2012 BAR)
deny Y's motion because it is exempt from Barangay conciliation.
Q: Mariano, through his attorney-in-fact, Marcos, filed with the RTC of Baguio City a
complaint for annulment of sale against Henry. Marcos and Henry both reside in Asin
Road, Baguio City, while Mariano resides in Davao City. Henry filed a motion to
dismiss the complaint on the ground of prematurity for failure to comply with the
mandatory barangay conciliation. Resolve the motion with reasons. (3%) (2009 Bar
Question)
- The motion to dismiss should be denied because the parties in interest, Mariano
and Henry, do not reside in the same city/municipality, or is the property subject
of the controversy situated therein. The required conciliation/mediation before
the proper Barangay as mandated by the Local Government Code governs only
when the parties to the dispute reside in the same city or municipality, and if
involving real property, as in this case, the property must be situated also in the
same city or municipality.
Q: Albert forcibly entered and occupied the house and lot in Quezon City owned by
his neighbor Carissa. Carissa immediately sued Albert for recovery of the property.
She also claimed damages amounting to P100,000.00, other undetermined losses as
a result of the forcible entry, and attorney’s fees of P25.000.00. Albert sets up
affirmative defenses in his answer without questioning Carissa's title over the
property. (1995 Bar Question)
Is the case triable under summary procedure by the Metropolitan Trial Court of
Quezon City? Explain.
May Carissa present evidence of title? Explain.
- Yes, because all actions for forcible entry and unlawful detainer are subject to
summary procedure irrespective of the amount of damages claimed, but the
attorney’s fees should not exceed P20,000.00.
- Yes, but only to determine the question of possession. (BP 129 as amended).
Albert may raise the issue of lack of barangay conciliation prior to the filing of
the complaint.
Q: Edison was charged with the crime of less serious physical injuries in the
Metropolitan Trial Court of Manila. Under the Revised Penal Code, the penalty
prescribed for this offense is arresto mayor, Aside from the recital of the facts
constituting the offense, the information alleged that the offended party suffered actual
damages in the amount of P25,000. Instead of submitting his counter- affidavits as
required by the court, Edison filed a “motion to quash” contending that the court had
no jurisdiction over the case since the amount claimed as damages exceeds the
jurisdic-tional limit of trial courts in civil cases. If you were the judge trying the case,
what would you do with the-motion filed? How would you dispose of the question of
jurisdiction raised in the said motion? Explain. (1989 Bar Question)
- I would deny the motion to quash inasmuch as such a motion is not allowed in
Summary Procedure. The criminal case where the penalty prescribed by law for
the offense charged does not exceed six months of imprisonment is governed
by Summary procedure.
On the question of jurisdiction, Summary Procedure applies irrespective of the civil

liability arising from the offense. Hence the fact that the civil liability exceeds P2Q,000
does not deprive the Metropolitan Trial Court of jurisdiction. (Sec. B-4)
Q: An information for slight physical injuries was filed against Diego in the Municipal
Trial Court of Cainta, after which the judge directed him to appear and submit counter-
affidavits and those of his witnesses on September 12, 1989. Diego failed to appear
on the said date. Thereafter, the judge rendered judgment convicting Diego of the
offense charged based on the affidavits submitted by the complainant. Diego
contends that this judgment is a nullity. Decide. (1989 Bar Question)
- Diego’s contention is correct. Under Summary Procedure rules, the failure of
Diego to appear and submit counter-affidavits on the date specified may be a
ground for the judge to issue a warrant for his arrest upon a finding of probable
cause. However, the judge may not render a judg-ment of conviction of the
offense charged based on the affidavits submitted by the complainant. He
should set the case for arraignment and trial if Diego pleads not guilty. Only after
trial may the judge render a judgment of conviction. (Secs. 10 and 11)
Q: (1988 Bar Question) In what civil cases is the Summary Procedure before
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts
applicable? In what criminal cases is the Summary Procedure before the Metropolitan
Courts, Municipal Courts, and Municipal Circuit Trial Courts applicable?
- Summary Procedure is applicable in the following civil cases:
1. Cases of forcible entry and unlawful detainer, accept where the question of
ownership is involved, or where the damages or unpaid rentals sought to be
recovered by the plaintiff exceed twenty thousand pesos (P20,000.00) at the
time of the filing of the complaint;
2. All other civil cases, except probate proceedings, falling within the jurisdiction of
the abovementioned courts, where the total amount of the plaintiff s claim does
not exceed ten thousand pesos (P10,000.00), exclusive if interest and costs.
(Sec. 1-A)
3. It is applicable in the following criminal cases:
4. Violations of traffic laws, rules and regulations;
5. Violations of the rental law;
6. Violations of municipal or city ordinances;
7. All other criminal cases where the penalty prescribed by law for the offense
charged does not exceed six months of imprisonment, or a fine of one thousand
pesos (PI,000.00), or both, irrespective of other imposable penalties, accessory
or otherwise, or of the civil liability arising therefrom: Provided, however, that in
offenses involving damage to property through criminal negligence, this Rule
shall govern where the imposable fine does not exceed ten thousand pesos
(P10,600 00). (Sec. 1-B)
8. Through criminal negligence, this Rule shall govern where the imposable fine
does not exceed ten thousand pesos (P10,600 00). (Sec. 1-B)
Totality Rule
Q: Lender extended to Borrower a Pl00,000.00 loan covered by a promissory note.

Later, Borrower obtained another Pl00,000.00 loan again covered by a promissory
note. Still later, Borrower obtained a P300,000.00 loan secured by a real estate
mortgage on his land valued at P500,000.00. Borrower defaulted on his payments
when the loans matured. Despite demand to pay the P500,000.00 loan, Borrower
refused to pay. Lender, applying the totality rule, filed against Borrower with the
Regional Trial Court (RTC) of Manila, a collection suit for P500,000.00. Did Lender
correctly apply the totality rule and the rule on joinder of causes of action? (2015)
- YES. The Lender correctly applied the totality rule and the rule on joinder of
causes of action because where the claims in all the causes of action are
principally for recovery of sum of money, the aggregate amount of the claim
shall be the test of jurisdiction (Section 5(d), Rule 2).
- Here, the total amount of the claim is P500,000.00. Hence, the Regional Trial
Court (RTC) of Manila has jurisdiction over the suit. At any rate, it is immaterial
that one of the loans is secured by a real estate mortgage because the Lender
opted to file a collection of sum of money instead of foreclosure of the said
mortgage.
Q: At the trial, Borrower's lawyer, while cross-examining Lender, successfully elicited

an admission from the latter that the two promissory notes have been paid. Thereafter,
Borrower's lawyer filed a motion to dismiss the case on the ground that as proven only
P300,000.00 was the amount due to Lender and which claim is within the exclusive
original jurisdiction of the Metropolitan Trial Court. He further argued that lack of
jurisdiction over the subject matter can be raised at any stage of the proceedings.
Should the court dismiss the case? (2015)
- NO. The court should not dismiss the case. What determines the jurisdiction of
the court is the nature of the action pleaded as appearing from the allegations
in the complaint. The averments therein and the character of the relief sought
are the ones to be consulted
- Accordingly, even if the defendant is able to prove in the course of the trial that
a lesser amount is due, the court does not lose jurisdiction and a dismissal of
the case is not in order
Q: Fe filed a suit for collection of P387,000 against Ramon in the RTC of Davao City.
Aside from alleging payment as a defense, Ramon in his answer set up counterclaims
for P100,000 as damages and P30,000 as attorney’s fees as a result of the baseless
filing of the complaint, as well as for P250,000 as the balance of the purchase price
of the 30 units of air conditioners he sold to Fe.
a) Does the RTC have jurisdiction over Ramon’s counterclaims, and if so, does he
have to pay docket fees therefor? (3%) (2008 Bar Question)
- Yes, the RTC has jurisdiction over Ramon’s counterclaims because they are all
money claims in which the totality rule applies in determining jurisdiction.
Ramon has to pay docket fees for his counterclaims whether the counterclaim
is compulsory or permissive in nature. Rule 141 of the Rules of Court has been
amended to require payment of docket fees for counterclaims and cross-claims
whether compulsory or permissive.
Q: What do you understand by the “totality rule” in determining the jurisdiction of

courts in civil cases? Explain. (1989 Bar Question)
- Under the “totality rule”, where there are several claims or causes of action
between the same or different parties embodied in the same complaint, the
amount of the demand shall be the totality of the claims in all the causes of
action, irrespective of whether the causes of action arose out of the same or
different transactions.
Q: Marissa brought an action against Dely and Inday in one complaint before the
Regional Trial Court of Manila. As her first cause of action, Marissa alleges that Dely
purchased from her on various occasions truck tires worth PI2,000 but refused to pay
the said amount despite several demands. As her second cause of action, Marissa
alleges that Inday likewise purchased from her on several occasions truck tires worth
P10,000 but refused to pay the said amount despite repeated demands. The total
amount o£ Marissa’s demands against the two is P22,000. Both Dely and Inday now
separately move to dismiss the complaint on the ground that the RTC has no
jurisdiction over the case. How would you resolve these motions? Explain. (1989 Bar
Question)
- I would grant said motions to dismiss, because the totality rule is subject to the
rule on permissive joinder, of parties. In this case, there is misjoinder of parties
defendant inasmuch as the claims against the two defendants are separate and
distinct from each other and cannot be joined in a single complaint. Neither claim
falls within the jurisdiction of the Regional Trial Court.
Civil Procedure
Actions
Meaning of ordinary civil actions
Q: Distinguish special proceeding from an ordinary action. (1996 Bar Question)

- A special proceeding is a remedy to establish the status or right of a party or a
particular fact, while an ordinary action is one by which one party prosecutes
another for the enforcement or protection of a right or the prevention or redress
of a wrong. (Secs. 1 and 2 of Rule 2)
Meaning of special civil actions

Q: (1999 Bar Question) Distinguish civil actions from special proceedings. [3%]
- 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. (Sec. 3[a], Rule 1.
1997 Rules of Civil Procedure), while a special proceeding is a remedy by which
a party seeks to establish a Status, a right or a particular fact.
Personal actions and real actions
In real actions, the docket and filing fees are based on: (2012 BAR) BIR zonal value
of the property.
Q: What do you mean by (a) real actions; and (b) personal actions? 2% (2006 Bar
Question)
- Real actions are actions affecting title to or possession of real property or an
interest therein. All other actions are personal actions
Local and transitory actions
Q: On January 2,1989, Ernani purchased construction materials for his new building
in Calamba, Laguna, from a hardware store located in Batangas City and owned by
Daniel. On the same date and in payment of the materials, Emani issued a Metrobank
check (Calamba branch) for P500,000 which was drawn and signed by him in
Calamba. Daniel deposited the check with the Metrobank, Batangas City branch, but
the same was dishonored for “insufficient funds.” Despite several demands, Ernani
failed to make good his check so that a case for violation of B.P. 22 (The Bouncing
Checks Law), after a preliminary investigation thereof was conducted, was filed with
the Regional Trial Court of Batangas City. Ernani moved to quash the case on the
ground of lack of jurisdiction, contending that the case should have been filed with the
Regional Trial Court of Calamba, Laguna, since the check was drawn and signed in
Calamba. How would you decide the motion? Explain. (1989 Bar Question)
- Motion to quash is denied. Violation of the Bouncing Checks Law is a transitory
or continuing offense which may be validly tried either in the place where the
check was issued or in the place where the check was dishonored. Since the
check in question was dishonored by the Metrobank in Batangas City, the
Regional Trial Court of Batangas City has jurisdiction over the case.
Actions in rem, in personam and quasi in rem
Q: Distinguish: (1004 Bar Question)

an action in rem from an action quasi in rem
an action quasi in rem from an action in personam.
an action in personam from a personal action.
an action in rem from a real action.
a personal action from a local action.
Answer:
An action in rem is an action against all who might be minded to make an objection of
any sort against the right sought to be established, while an action quasi in rem is an
action against an individual although the purpose of the suit is to subject his interest
in a particular property to the obligation or lien burdening the property. The judgment
rendered in actions in rem binds the whole world, while the Judgment rendered in
actions quasi in rem is conclusive only between the parties.
An action quasi in rem, as stated, is an action against a person over a particular

property or claims relating thereto, while an action in personam is an action to
establish a claim against a person with a judgment that binds him personally.
An action in personam, as stated, is an action against a person on the basis of his

personal liability while a personal action is an action where the plaintiff seeks the
recovery of personal property, the enforcement or resolution of a contract or the
recovery of damages.
An action in rem is as stated above, while a real action is an action affecting title to
real property or for the recovery of possession, or for partition or condemnation of, or
foreclosure of a mortgage on, real property.
A personal action is as stated above, while a local action is that which must be brought
in, a particular place.
Plaintiff in a personal action may file it in the place where he resides or where the
defendant resides, while in a local action, plaintiff has no choice except to file the
action in the place where the property is located.
A suit for injunction is an action in rem. (2009 Bar Question) FALSE .A suit for
injunction is an action in personam. A restraining order, like an injunction, operates
upon a person. It is granted in the exercise of equity jurisdiction and has no in rem
effect to invalidate an act done in contempt of an order of the court except where by
statutory authorization, the decree is so framed as to act in rem on property.
Cause of action
Meaning of cause of action Q: (1999 Bar Question) Distinguish action from cause of
action. (2%)
A sued B to recover P500, 000.00 based on a promissory note due and payable on
December 5,1998. The Complaint was filed on November 30, 1998, and summons
was served on B on December 7, 1998. B interposes a motion to dismiss on the
ground that the Complaint states no cause of action. If you were the judge, how would
you rule on the motion? (2%)
- An 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. A cause of action is the act
or omission by which a party violates a right of another. An action must be based
on a cause of action.
- If I were the judge, I would grant the motion on the ground that the complaint
states no cause of action. When the complaint was filed, the promissory note
was not yet due and payable and hence the complaint was filed prematurely.
This defect was not cured by the service of the summons on the defendant after
the date when the promissory note became due and payable.
Q: Distinguish: (1997 Bar Question) x x x

Cause of action from action
- A cause of action is an act or omission of one party in violation of the legal right
or rights of the other (Maao Sugar Central vs. Barrios. 79 Phil. 606; Sec. 2 of
new Rule 2), causing damage to another. An action is an ordinary suit in a court
of Justice by which one party prosecutes another for the enforcement or
protection of a right, or the prevention or redress of a wrong.
Q: (1996 Bar Question)

The complaint alleged that the defendant acted in bad faith, arbitrarily, illegally,
wrongfully, and in violation of law. However, it did not contain any averment of facts
showing that defendant's acts were done in the manner alleged.
Does the complaint state a cause of action? Explain.
X brought an action against Y for the annulment of the sale of certain shares of
stock. After the case was decided in favor of X, he filed another action for the recovery
of the dividends that had already accrued when the first action was filed. Is the second
action for the recovery of the dividends proper?
- No, because it does not state the ultimate facts constituting the plaintiffs cause
of action. The allegations that the defendant acted in bad faith, arbitrarily,
illegally, wrongfully and in violation of the law are mere conclusions of fact or
conclusions of law.
- Yes, if the complaint alleges ultimate facts and states that the acts were done
in bad faith, arbitrarily, illegally, wrongfully and in violation of the law. The rule
allows malice, intent, knowledge or other condition of the mind to be averred
generally. (Sec. 5 of Rule 8)
- No, because the recovery of the dividends is part of the cause of action for the
annulment of the sale of certain shares of stock and should have been claimed
in the first action. The second action constituted splitting a single cause of
action.
Q: A bought a Volvo Sedan from ABC Cars for P 5.0M. ABC Cars, before delivering
to A, had the car rust proofed and tinted by XYZ Detailing. When delivered to A, the
car's upholstery was found to be damaged. ABC Cars and XYZ Detailing both deny
any liability. Who can A sue and on what cause(s) of action? Explain. (2012 BAR)
- A can file an action for specific performance and damages against ABC Cars
since the damage to the Volvo sedan’s upholstery was caused before delivery
of the same to A, and therefore prior to the transfer of ownership to the latter
(Article 1477, NCC). Under Article 1170 of the Civil Code, those who contravene
the tenor of the obligation are liable for damages. Hence, an action for specific
performance against ABC Corporation to deliver the agreed Volvo Sedan in the
contract free form any damage or defects, with corresponding damages will lie
against ABC Cars.
Failure to state a cause of action
Q: Luis is the owner of a five-door apartment unit three doors of which he has leased
to Fe, Gary , and Marilou for a monthly rental of P250.00 per door. Fe, Gary, and
Marilou have been his tenants for close to thirty years at that rate. He occupies the
fourth door as his own residence. The fifth door is vacant. Alleging that he needs to
repossess all three doors for the use of his son, Fern, who had recently gotten
married, and who does not allegedly have a residence of his own, he sued, after the
requisite letters to vacate, Fe, Gary, and Marilou before the Metropolitan Trial Court
for unlawful detainer. Fe, Gary, and Marilou answered the complaint and set up the
defense that ejectment was not proper because the fifth door was available for Fern’s
residence. At the trial, they likewise endeavored to prove that Fern has in fact a
residence of his own and that the suit was Luis mere strategy to force them to agree
to a rental hike of P1,500.00 a door, in violation of the rental laws. The trial judge,
however, decreed ejectment. On appeal to the Regional Trial Court, Fe, Gary, and
Marilou alleged that the decision was null and void, for lack of jurisdiction, there having
been no prior confrontation among the parties before the lupong tagapayapa pursuant
to Presidential Decree No. 1508. Luis countered that the jurisdictional question not
having been raised below, it cannot be raised for the first time on appeal.
Can Fe, Gary, and Marilou validly challenge the 65 jurisdiction of the
Metropolitan Trial Court? Explain.
What is the effect of Luis failure to resort to the conciliation process before the
lupong togapayapa provided for in P.D. No. 1508? Explain. (1988 Bar Question)
Answer:
No, because lack of prior confrontation among the parties before the Lupong
Tagapayapa pursuant to Presidential Decree No. 1508 does not affect the jurisdiction
of the Metropolitan Trial Court over the action for unlawful detainer. (It is presumed
that the complaint was filed within one year from the demand to vacate.)
Moreover, by answering the complaint and setting up their defense without
objecting to the jurisdiction of the court, they are estopped from raising the question
of jurisdiction. Luis failure to resort to the conciliation process affects the sufficiency
of his cause of action and makes his complaint subject to dismissal on the ground of
lack of cause of action or prematurity.
Test of the sufficiency of a cause of action Q: (2002 Bar Question)

Rolando filed a petition for declaration of the nullity of his marriage to Carmela
because of the alleged psychological incapacity of the latter. After trial, the court
rendered judgment dismissing the petition on the ground that Rolando failed to prove
the psychological incapacity of his wife. The judgment having become final, Rolando
filed another petition, this time on the ground that his marriage to Carmela had been
celebrated without a license. Is the second action barred by the judgment in the first?
Why (2%)
- No, the second action is not barred by the judgment in the first because they
are different causes of action. The first is for annulment or marriage on the
ground of psychological incapacity under Article 36 of the Family Code, while
the second is for declaration of nullity of the marriage in view of the absence of
a basic requirement, which Is a marriage license. [Arts. 9 and 35(3), Family
Code]. They are different causes of action because the evidence required to
prove them are not the same. [Pagsisfhan v. Court of Appeals, 95 SCRA 540
(1980) and other cases].
Q: Agustin, a 21-year old son of the spouses Edgardo and Gloria, was a paying
passenger who suffered serious physical injuries when the bus he was riding fell off
a cliff due to the recklessness of its driver. The bus belonged to the Inter-City Transit.
The spouses, together with Agustin, sued for damages. After Inter- City Transit filed
its answer, Agustin, in consideration of P10,000, executed a “Release of Claim.” On
the basis thereof, Inter-City filed a motion to dismiss alleging that the claim had
already been paid and released. Plaintiff-spouses opposed the motion and asserted
that their son was totally dependent on them for support; that his hospitalization and
other medical expenses were shouldered by them; that they were not even consulted
on the “Release of Claim”; and, that the “Release of Claim” could not operate as a
valid ground for dismissal because it did not have the conformity of all the parties
since only their son, Agustin, signed it. Decide the motion to dismiss. (1989 Bar
Question)
- Motion to dismiss is granted. The contract of carriage was between Agustin,
who was of legal age, and Inter-City Transit. Hence, the “Release of Claim"
executed by him is valid.
- Motion to dismiss is granted only with respect to Agustin. The parents of Agustin
have a cause of action against Inter-City Transit to the extent of the expenses
incurred by them due to the recklessness of its driver.
Splitting a single cause of action and its effects Q: (1999 Bar Question)
What is the rule against splitting a cause of action and its-effect on the respective
rights of the parties for failure to comply with the same? (2%)
A purchased a lot from B for PI,500,000.00. He gave a down payment of P500,000.00,
signed a promissory note payable thirty days after date, and as a security for the
settlement of the obligation, mortgaged the same lot to B. When the note fell due and
A failed to pay, B commenced suit to recover from A the balance of P1,000,000.00.
After securing a favorable judgment on his claim, B brought another action against A
before the same court to foreclose the mortgage. A now files a motion to dismiss the
second action on the ground of bar by prior judgment. Rule on the motion. (2%)
- The rule against splitting a cause of action and its effect are that if two or more
suits are instituted on the basis of the same cause of action, the filing of one or
a judgment upon the merits in any one is available as a ground for the dismissal
of the others. The motion to dismiss should be granted. When B commenced
suit to collect on the promissory note, he waived his right to foreclose the
mortgage. B split his cause of action.
Q: Give the effects of the following:

Splitting a single cause of action; and [3%] (1998 Bar Question)
- The effect of splitting a single cause of action is found in the rule as follows: If
two or more suits are instituted on the basis of the same cause of action, the
filing of one or a judgment on the merits in any one is available as a ground for
the dismissal of the others.
Q: Raphael, a warehouseman, filed a complaint against V Corporation. X Corporation

and Y Corporation to compel them to interplead. He alleged therein that the three
corporations claimed title and right of possession over the goods deposited in his
warehouse and that he was uncertain which of them was entitled to the goods. After
due proceedings, judgment was rendered by the court declaring that X Corporation
was entitled to the goods. The decision became final and executory. Raphael filed a
complaint against X Corporation for the payment of PI00,000.00 for storage charges
and other advances for the goods. X Corporation filed a motion to dismiss the
complaint on the ground of res judicata. X Corporation alleged that Raphael should
have incorporated in his complaint for interpleader his claim for storage fees and
advances and that for his failure he was barred from interposing his claim. Raphael
replied that he could not have claimed storage fees and other advances in his
complaint for interpleader because he was not yet certain as to who was liable
therefore. Resolve the motion with reasons. (4%)
- The motion to dismiss should be granted. Raphael should have incorporated in
his complaint for interpleader his claim for storage fees and advances. They are
part of Raphael’s cause of action which he may not split. The filing of the
interpleader is available as a ground for the dismissal of the second case. It is
akin to a compulsory counterclaim which, if not set up, is barred. The law also
abhors the multiplicity of suits; hence, the claim for storage fees should have
been made part of his cause of action in the interest of complete adjudication of
the controversy and its incidents.
Joinder and mis-joinder of causes of action
The following are accurate statements on joinder of causes of action, except: (2012
BAR) joinder of actions may include special civil actions.
A sued B in the RTC of Quezon City, joining two causes of action: for partition of real
property and breach of contract with damages. Both parties reside in Quezon City but
the real property is in Manila. May the case be dismissed for improper venue? (2011
BAR) No, since causes of action pertaining to different venues may be joined in the
RTC if one of the causes of action falls within its jurisdiction.
Q: Distinguish joinder of causes of action from joinder of parties. (1996 Bar Question)
- Joinder of causes of action may be made in the same complaint by one party
against another; or by or against several parties. In cases of joinder of causes
of action by one party against another, the totality of the demand determines
the Jurisdiction of the court.
- But in cases of Joinder of causes of action by or against several parties, the
right to relief must arise out of the same transaction or series of transactions
and there must be a common question of fact or law. If these requisites are
present, the totality of the demand determines the jurisdiction of the court.
Q: The complaint filed before the Regional Trial Court of Manila states two (2) causes
of action, one for recission of contract and the other for the recovery of One Hundred
Thousand Pesos (PI00.000.00), both of which arose out of the same transaction.
Is the joinder of the two (2) causes of action proper? Explain. (1996 Bar Question)
- Yes, since the first cause of action for rescission of contract falls within the
jurisdiction of the Regional Trial Court of Manila, because the subject is not
capable of pecuniary estimation, and the second cause of action for recovery of
P100,000.00 is within the jurisdiction of a lower court and arose out of the same
transaction, both may be joined in the complaint filed with the Regional Trial
Court.

What is the rule on joinder of causes of action? (2%)
A secured two loans from B, one for P500.000.00 and the other for P1,000,000.00,
payable on different dates. Both have fallen due. Is B obliged to file only one complaint
against A for the recovery of both loans? Explain. (2%)
- The rule on joinder of causes of action is that a party may in one pleading assert,
in the alternative or otherwise, as many causes of action as he may have against
an opposing party, provided that the rule on joinder of parties is complied with;
the joinder shall not include special civil actions or actions governed by special
rules, but may include causes of action pertaining to dif-ferent venues Or
jurisdictions provided one cause of action falls within the jurisdiction of a
Regional Trial Court and venue lies therein; and the aggregate amount claimed
shall be the test of jurisdiction where the claims in all the causes of action are
principally for the recovery of money.
- No. Joinder is only permissive since the loans are separate loans which may be
governed by the different terms and conditions. The two loans give rise to two
separate causes of action and may be the basis of two separate complaints.
Q: Give the effects of the following: x x x

Non-joinder of a necessary party. [2%] (1998 Bar Question)
- The effect of the non-joinder of a necessary party may be stated as follows: The
court may order the inclusion of an omitted necessary party if jurisdiction over
his person may be obtained. The failure to comply with the order for his inclusion
without justifiable cause is a waiver of the claim against such party. The court
may proceed with the action but the judgment rendered shall be without
prejudice to the rights of such necessary party.
Q: Perry is a resident of Manila, while Ricky and Marvin are residents of Batangas
City. They are the co-owners of a parcel of residential land located in Pasay City with
an assessed value of P100,000.00. Peny borrowed PI00,000.00 from Ricky which he
promised to pay on or before December 1, 2004. However, Perry failed to pay his
loan. Perry also rejected Ricky and Marvin's proposal to partition the property. Ricky
filed a complaint against Perry and Marvin in the Regional Trial Court of Pasay City
for the partition of the property. He also incorporated in his complaint his action
against Perry for the collection of the latter's PI00,000.00 loan, plus interests and
attorney's fees. State with reasons whether it was proper for Ricky to join his causes
of action in his complaint for partition against Perry and Marvin in the Regional Trial
Court of Pasay City. (5%)(2005 Bar Question)
- It was not proper for Ricky to join his causes of action against Perry in his
complaint for partition against Perry and Marvin. The causes of action may be
between the same parties, Ricky and Perry, with respect to the loan but not with
respect to the partition which includes Marvin. The joinder is between a partition
and a sum of money, but the partition is a special civil action under Rule 69,
which cannot be joined. (Sec. 5, Rule 2, 1997 Rules of Civil Procedure.}. Also,
the causes of action pertain to different venues and jurisdictions. The case for
a sum of money pertains to the municipal court and cannot be filed in Pasay
City because the plaintiff is from Manila while Ricky and Marvin are from
Batangas City. (Sec. 5, Rule 2, 1997 Rules of Civil Procedure.)
Q: Raphael, a warehouseman, filed a complaint against V Corporation. X Corporation

and Y Corporation to compel them to interplead. He alleged therein that the three
corporations claimed title and right of possession over the goods deposited in his
warehouse and that he was uncertain which of them was entitled to the goods. After
due proceedings, judgment was rendered by the court declaring that X Corporation
was entitled to the goods. The decision became final and executory. Raphael filed a
complaint against X Corporation for the payment of PI00,000.00 for storage charges
and other advances for the goods. X Corporation filed a motion to dismiss the
complaint on the ground of res judicata. X Corporation alleged that Raphael should
have incorporated in his complaint for interpleader his claim for storage fees and
advances and that for his'failure he was barred from interposing his claim. Raphael
replied that he could not have claimed storage fees and other advances in his
complaint for interpleader because he was not yet certain as to who was liable
therefore. Resolve the motion with reasons. (4%)
- The motion to dismiss should be granted. Raphael should have incorporated in
his complaint for interpleader his claim for storage fees and advances. They are
part of Raphael’s cause of action which he may not split. The filing of the
interpleader is available as a ground for the dismissal of the second case. (Sec.
4, Rule 2, 1997 Rules of Civil Procedure.) It is akin to a compulsory counterclaim
which, if not set up, is barred. The law also abhors the multiplicity of suits;
hence, the claim for storage fees should have been made part of his cause of
action in the interest of complete adjudication of the controversy and its
incidents.
Q: “A”, the surviving husband of “B” executed in favor of “C” a deed entitled “Contract
of Sale a Retro” over a certain parcel of land registered under the Torrens System in
which the owner is described as “A, married to B.” Subsequently, “A” sued “C” for
reformation of the contract, alleging that what was agreed upon was really a mortgage
and not a sale a retro.
“AY” complaint was dismissed for failure to prosecute, however, and the dismissal
became final.
A year later, the children of “A” and “B” sued 4tC” for the annulment of the Contract of
sale a Retro, alleging that the subject piece of land was acquired by their parents
during their marriage, hence their father had no right to include in the sale the
children's interest in the property as heirs of their mother, such children not having
consented to the sale. “C" moved to dismiss the complaint on the ground of bar by
former judgment. Resolve the motion to dismiss. Explain. (1987 Bar Question)
- Motion to dismiss denied. There is no bar by former judgment because there is
no identity of causes of action. The cause of action of the children of “A” and “B”
is different from the cause of action of “A”. “A" had no right to sell the parcel of
land inasmuch as the same was the conjugal property of “A" and “B". “A” could
legally sell only his conjugal share of said property and could not legally sell the
conjugal share of his deceased wife which was inherited by * their children
without their consent.
Parties to civil actions

Real parties-in-interest; indispensable parties; representatives as parties;
necessary parties; indigent parties; alternative defendants
Allan was riding a passenger jeepney driven by Ben that collided with a car driven by
Cesar, causing Allan injury. Not knowing who was at fault, what is the best that Allan
can do? (2011 BAR) Sue both Ben and Cesar as alternative defendants.
In which of the following cases is the plaintiff the real party in interest? (2011 BAR)
Assignee of the lessor in an action for unlawful detainer
Q: Strauss filed a complaint against Wagner for cancellation of title. Wagner moved
to dismiss the complaint because Grieg, to whom he mortgaged the property as duly
annotated in the TCT, was not impleaded as defendant. (2015)
Should the complaint be dismissed?
- NO. The complaint should not be dismissed because the mere non-joinder of
an indispensable party is not a ground for the dismissal of the action
If the case should proceed to trial without Grieg being impleaded as a party to the
case, what is his remedy to protect his interest?
- If the case should proceed to trial without Grieg being impleaded as a party, he
may intervene in the action (Sec. 1, Rule 19). He may also file a petition for
annulment of judgment under Rule 47 of the Rules of Court.
- In Metrobank v. Hon. Floro Alejo, G.R. No. 141970, September 10, 2001, the
Supreme Court held that it in a suit to nullify an existing Torrens Certificate of
Title (TCT) in which a real estate mortgage is annotated, the mortgagee is an
indispensable party. In such suit, a decision cancelling the TCT and the
mortgage annotation is subject to a petition for annulment of judgment, because
the non-joinder of a mortgagee deprived the court of jurisdiction to pass upon
the controversy.
Q: Isagani drove the car of his father, Pedro, and left it in the parking area of the
Fairview motel where he was a guest. Isagani entrusted the key of the car to a security
guard hired by the Prime Resort Company, the owner/operator of the motel. Emilio,
pretending to be the brother of Isagani, got the key from the security guard and drove
the car away. The car was never recovered. Later, Pedro sued Prime Re¬sort for the
value of the carnapped vehicle plus damages. Prime Resort sets up the defense that
Pedro has no interest in the case, hence, has no cause of action, as he was not the
guest of the motel but his son, Isagani. Is the defense tenable? Explain. (1989 Bar
Question)
- No, because Pedro is the owner of the car which was carnapped due to the fault
or negligence of the security guard of the owner/operator of the motel in which
his son Pedro was a guest. Hence, Pedro is a real party in interest.
Compulsory and Permissive Joinder of parties
Q: Distinguish joinder of causes of action from joinder of parties. (1996 Bar Question)
- Joinder of causes of action may be made in the same complaint by one party
against another; or by or against several parties. In cases of joinder of causes
of action by one party against another, the totality of the demand determines
the Jurisdiction of the court.
- But in cases of Joinder of causes of action by or against several parties, the
right to relief must arise out of the same transaction or series of transactions
and there must be a common question of fact or law. If these requisites are
present, the totality of the demand determines the jurisdiction of the court.
Q: A filed an action against B, driver of the truck. C. owner of said truck, and D, insurer
of the truck, for damages when the truck rammed his car. A and D entered into a
compromise agreement upon an amount lower than that sued upon by A against all
three defendants. Accordingly, the court dismissed the case against D. B and C
moved to dismiss the case against them on the ground that, being indispensable
parties under a common cause of action, non-inclusion of D would not make the case
prosper. Are the defendants indispensable parties? How would you resolve the
motion. (1996 Bar Question)
- I would deny the motion. D is not an indispensable party. The liability of the
insurer D is based on the contract of insurance whereas the liability of B and C
is based on quasi-delict. Hence, the plaintiff does not have a common cause of
action against all the defendants and the dismissal of the complaint against D
will not affect the complaint against B and C.
Q: (2002 Bar Question) P sued A and B in one complaint in the RTC- Manila, the
cause of action against A being on an overdue promissory note for P300,000.00 and
that against B being on an alleged balance of P300.000.00 on the purchase price of
goods sold on credit. Does the RTC-Manila have jurisdiction over the case? Explain.
- No, the RTC- Manila has no jurisdiction over the case. A and B could not be
joined as defendants in one complaint because the right to relief against both
defendants do not arise out of the same transaction or series of transactions
and there is no common question of law or fact common to both. (Rule 3, sec.
6). Hence, separate complaints will have to be filed and they would fall under
the jurisdiction of the Metropolitan Trial Courts.
Misjoinder and Non-joinder of parties
Unexplained or unjustified non-joinder in the Complaint of a necessary party despite

court order results in (2011 BAR) waiver of plaintiff’s right against the unpleaded
necessary party.
Q: X was driving the dump truck of Y along Cattleya Street in Sta. Maria, Bulacan.
Due to his negligence, X hit and injured V who was crossing the street: Lawyer L, who
witnessed the incident, offered his legal services to V.
V, who suffered physical injuries including a fractured wrist bone, underwent
surgery to screw a metal plate to his wrist bone. On complaint of V, a criminal case
for Reckless Imprudence Resulting in Serious Physical Injuries was filed against X
before the Municipal Trial Court (MTC) of Sta. Maria. Atty. L, the private prosecutor,
did not reserve the filing of a separate civil action.
V subsequently filed a complaint for Damages against X and Y before the
Regional Trial Court of Pangasinan in Urdaneta where he resides. In his "Certification
against Forum Shopping” V made no mention of the pendency of the, criminal case
in Sta. Maria. Suppose only X was named as defendant in the complaint for damages,
may he move for the dismissal of the complaint for failure of V to implead Y as an
indispensable party? (2%)
- No, X may not move for dismissal of the civil action for damages on the
contention that Y is an indispensable party who should be impleaded. Y is not
an indispensable party but only a necessary party. Besides, non-joinder and'
misjoinder of parties is not a ground for dismissal of actions
Q: Florencio sued Guillermo for partition of a property they owned in common.

Guillermo filed a motion to dismiss the complaint because Florencio failed to implead
Hernando and Inocencio, the other co-owners of the property. As judge, will you grant
the motion to dismiss? Explain. (3%) (2009 Bar Question)
- NO, because the non-joinder of parties is not a ground for dismissal of action
(Rule 3, Sec 11). The motion to dismiss should be denied.
Class suit
Q: Distinguish a derivative suit from a class suit. (2005 Bar Question) SUGGESTED
- A derivative suit is a suit in equity that is filed by a minority shareholder in behalf of
a corporation to redress wrongs committed against it, for which the directors refuse to
sue, the real party in interest being the corporation itself (Lim v. Lim-Yu, 352 SCRA
216 [2001]). A class suit is filed in behalf of many persons so numerous that it is
impracticable to join all as parties.
Q: Four hundred residents of Barrio Ramos Initiated a class action suit through Albert,
a former mayor of the town, to recover damages sustained due to their exposure to
toxic waste and fumes emitted by the cooking gas plant of Top Fuel Gas Corporation
located in the town. Is the class suit proper? (1994 Bar Question) Answer:
- No. The class suit is not proper. Each plaintiff suffered separate and distinct
damages from their exposure to the toxic waste and fumes emitted by the
cooking gas plant. Each of them has to prove his or her damages.
Q: An airplane carrying 200 passengers crashed somewhere in the jungles of Agusan.

All the passengers and crew perished. Twenty (20) relatives of the fatalities filed for
themselves and in behalf of the relatives of all those who perished in the mishap a
class suit for damages totaling P5 Million against the airline. The propriety of the class
suit is questioned by the defendant. Resolve the issue. (1991 Bar Question)
- A class suit is not proper in this case because there is no common or general
interest in the subject matter of the controversy. Each of the plaintiffs has a
separate claim for damages.
Effect of death of party-litigant
Q: Prince Chong entered into a lease contract with King Kong over a commercial
building where the former conducted his hardware business. The lease contract
stipulated, among others, a monthly rental of P50,000.00 for a four (4) – year period
commencing on January 1, 2010. On January 1, 2013, Prince Chong died. Kin II
Chong was appointed administrator of the estate of Prince Chong, but the former
failed to pay the rentals for the months of January to June 2013 despite King Kong’s
written demands. Thus, on July 1, 2013, King Kong filed with the Regional Trial Court
(RTC) an action for rescission of contract with damages and payment of accrued
rentals as of June 30, 2013. (2014) Can Kin II Chong move to dismiss the complaint
on the ground that the RTC is without jurisdiction since the amount claimed is only
P300,000.00?
- NO. Kin II Chong cannot move to dismiss the Complaint. An action for rescission
of contract with damages and payment of accrued rentals is considered
incapable of pecuniary estimation and therefore cognizable by the Regional
Trial Court.
If the rentals accrued during the lifetime of Prince Chong, and King Kong also filed
the complaint for sum of money during that time, will the action be dismissible upon
Prince Chong’s death during the pendency of the case?
- NO. The action will not be dismissible upon Prince Chong’s death during the
pendency of the case. When the action is for recovery of money arising from
contract, and defendant dies before entry of final judgment in the court in which
the action was pending at the time of such death, it shall not be dismissed but
shall instead be allowed to continue until entry of final judgment. A favorable
judgment obtained by the plaintiff shall be enforced under Rule 86 (Sec. 20,
Rule 3). Relative thereto, since the complaint for sum of money filed by King
Kong survives the death of Prince Chong, the case shall not be dismissed and
the Court shall merely order the substitution of the deceased defendant.
A sued B for ejectment. Pending trial, B died, survived by his son, C. No substitution
of party defendant was made. Upon finality of the judgment against B, may the same
be enforced against C? (2011 BAR) Yes, because the case survived B’s death and
the effect of final judgment in an ejectment case binds his successors in-interest.
Q: Cresencio sued Dioscoro for collection of a sum of money. During the trial, but
after the presentation of plaintiffs evidence,-Dioscoro died. Atty. Cruz, Dioscoro’s
counsel, then filed a motion to dismiss the action on the ground of his client’s death.
The court denied the motion to dismiss and. instead, directed counsel to furnish the
court with the names and addresses of Dioscoro’s heirs and ordered that the
designated administrator of Dioscoro’s estate be substituted as representative party.
After trial, the court rendered judgment in favor of Cresencio. When the decision had
become final and executory, Cresencio moved for the issuance of a writ of execution
against Dioscoro’s estate to enforce his judgment claim. The court issued the writ of
execution. Was the court’s issuance of the writ of execution proper? Explain. (2%)
- NO, the trial court's issuing the writ of execution is not proper and in excess of
jurisdiction, since the judgment obligor is already dead when the writ was
issued. The judgment for money may only be enforced against the estate of the
deceased defendant in the probate proceedings, by way of a claim filed with the
probate court in accordance with Rule 86 of the Rules of Court.
- Cresencio should enforce that judgment in his favor in the settlement
proceedings of the estate of Dioscoro as a money claim in accordance with Rule
86 or Rule 88 as the case may be.
Q: PJ engaged the services of Atty. ST to represent him in a civil case filed by OP

against him which was docketed as Civil Case No. 123. A retainership agreement was
executed between PJ and Atty. ST whereby PJ promised to pay Atty. ST a retainer
sum of P24,000.00 a year and to transfer the ownership of a parcel of land to Atty. ST
after presentation of PJ's evidence. PJ did not comply with his undertaking. Atty. ST
filed a case against PJ which was docketed as Civil Case No. 456. During the trial of
Civil Case No. 456, PJ died. Is the death of PJ a valid ground to dismiss the money
claim of Atty. ST in Civil Case No. 456? Explain. (2%)
Will your answer be the same with respect to the real property being claimed by Atty.
ST in Civil Case No. 456? Explain. (2%) (2000 Bar Question)
- No. Undo: Sec. 20. Rule 3, 1997 Rules of Civil Procedure, when the action is
for recovery of money arising from contract, express or Implied, and the
defendant dies before entry of final judgment in the court in which the action is
pending at the time of such death, it shall not be dismissed but shall instead be
allowed to continue until entry of final Judgment. A favorable judgment obtained
by the plaintiff shall be enforced in the manner especially provided in the Rules
for prosecuting claims against the estate of a deceased person.
- Yes, my answer is the same. An action to recover real property In any event
survives the death of the defendant (Sec. 1, Rule 87, Rules of Court). However,
a favorable Judgment may be enforced in accordance with Sec. 7(b) Rule 39
(1997 Rules of Civil Procedure) against the executor or administrator or
successor in interest of the deceased.
Q: (1999 Bar Question) What is the effect of the death of a party upon a pending
action? (2%)
When A (buyer) failed to pay the remaining balance of the contract price after it
became due and demand- able, B (seller) sued him for collection before the RTC.
After both parties submitted their respective evidence, A perished in a plane accident.
Consequently, his heirs brought an action for the settlement of his estate and moved
for the dismissal of the collection suit.
Will you grant the motion? Explain. (2%)
Will your answer be the same if A died while the case is already on appeal to the
Court of Appeals? Explain. (2%)
In the same case, what is the effect if B died before the RTC has rendered judgment?
(2%)
- When the claim in a pending action is purely personal, the death of either of the
parties extinguishes the claim and the action is dismissed. When the claim is
not purely personal and is not thereby extinguished, the party should be
substituted by his heirs or his executor or administrator. (Sec. 16, Rule 3, 1997
Rules) If the action is for recovery of money arising from contract, express or
implied, and the defendant dies before entry of final judgment in the court in
which the action was pending at the time of such death, it shall not be dismissed
but shall instead be allowed to continue until entry of final judgment. A favorable
judgment obtained by the plaintiff shall be enforced in the manner provided in
the rules for prosecuting claims against the estate of a deceased person. (Sec.
20, Rule 3, 1997 Rules)
- No, because the action will not be dismissed but shall instead be allowed to
continue until entry of final judgment. (Id.)
- No. If A died while the case was already on appeal in the Court of Appeals, the
case will continue because there is no entry yet of final judgment. (Id.)
- The effect is the same. The action will not be dismissed but will be allowed to
continue until entry of final judgment. (Id.)
Q: After termination of trial on the merits, and as the trial Judge was about to finish
his decision dismissing plaintiffs suit for payment of a purported P369.000.00 loan,
the defendant died. His counsel accordingly filed with the court a notice of defendant's
death. Simultaneously, he moved that plaintiff’s suit be dismissed, to be thereafter
pursued as a money claim in the proceeding for the settlement of defendant’s estate.
The Judge denied the motion to dismiss on the ground that there is no need for any
further proceeding since he is going to dismiss the case anyway in a forthcoming
decision. Three (3) days later, the decision dismissing the case was promulgated. Did
the judge act correctly? Explain your answer. (1992 Bar Question) Suggested Answer:
- No, because in an action for the recovery of money, if the defendant dies before
a final judgment is rendered by the Regional Trial Court, the action shall be
dismissed and prosecuted as a money claim. (Rule 3) The fact that the Judge
was ready to render a decision dismissing the case does not prevent the
application of the rule.
Q: (a) Plaintiff sued to recover an unpaid loan and was awarded P333,000.00 by the
Regional Trial Court of Manila. Defendant did not appeal within the period allowed by
law. He died six days after the lapse of the period to appeal. Forthwith, a petition for
the settlement of his estate was properly filed with the Regional Trial Court of
Pampanga where an inventory of all his assets was filed and correspondingly
approved. Thereafter, plaintiff filed a motion for execution with the Manila court,
contending therein that the motion was legally justified because the defendant died
after the judgment in the Manila court had become final. Resolve the motion and state
your reasons. (1992 Bar Question)
- Motion for execution denied. Although the defendant died after the judgment
had become final and executory, it cannot be enforced by a writ of execution
against the estate of the deceased which is in custodia legis. The judgment
should be filed as a proven money claim with the Regional Trial Court of
Pampanga.
(b) Under the same set of facts as (a), a writ of execution was issued by the Manila
court upon proper motion three days after the lapse of the period to appeal. The
corresponding levy on execution was duly effected on defendant’s parcel of land worth
P666.000.00 a day before the defendant died. Would it be proper, on motion, to lift
the levy on defendant’s property? State the reasons for your answer.
- No, since the levy on execution was duly effected on defendant’s parcel of land a
day before the defendant died, it was valid. The land may be sold for the satisfaction
of the judgment and the surplus shall be accounted for by the sheriff to the
corresponding executor or administrator. (Sec. 7-C of Rule 39)
Q: A filed a complaint against Y with the RTC of Argao, Cebu, for payment of a
promissory note in the- sum of P50.000.00, for liquidated damages of P5.000.00 and
attorney’s fees of P5.000.00. After he filed his answer, Y died, but his lawyer did not
file a motion to dismiss. In the meantime, Y*s widow filed with the above court a
special proceeding for the settlement of the intestate estate of Y. The widow, Z, was
appointed the administratrix of the estate. A filed in the civil case a motion to have Y
substituted by the administratrix; the latter did not object. The court granted the
motion. Trial on the merits was had. In due course, the court rendered a decision in
favor of A. At the time it was rendered, the period to file claims in the intestate estate
of Y had already lapsed. The administratrix, X, did not appeal from the decision; and
after it became final. A moved for the execution of judgment, Z opposed the motion
contending that the decision is void because the claim does not survive. The case
should have been dismissed upon the death of Y since upon his death, the court lost
jurisdiction over the case. (1991 Bar Question)
(a) Rule on the issue.
- Since Y died before final Judgment in the RTC, the action for money should have
been dismissed and prosecuted as a money claim against his estate. However, since
the widow. Z, who was appointed administratrix of the estate, did not object to the trial
on the merits and did not appeal from the decision, she is deemed to have waived the
right to have the claim litigated in the estate proceedings. Moreover, she is estopped
from questioning the court's jurisdiction. Hence, the decision is valid.
If the opposition is without merit, can the writ of execution be validly issued?
- No, because a Judgment for money cannot be enforced by a writ of execution
against the estate of the deceased which is in custodia legis.
If it cannot be issued, what is the remedy of A?

(c) His remedy is to file a money claim against the estate of Y based on the judgment.
Although the period for filing money claims has already lapsed, the same may be
allowed before an order of distribution is entered.
Venue
Q: A law was passed declaring Mt. Karbungko as a protected area since it was a
major watershed. The protected area covered a portion located in Municipality A of
the Province I and a portion located in the City of Z of Province II. Maingat is the leader
of Samahan ng Tagapag-ingat ng Karbungko (STK), a people's organization. He
learned that a portion of the mountain located in the City of Z of Province II was
extremely damaged when it was bulldozed and leveled to the ground, and several
trees and plants were cut down and burned by workers of World Pleasure Resorts,
Inc. (WPRI) for the construction of a hotel and golf course. Upon inquiry with the
project site engineer if they had a permit for the project, Maingat was shown a copy
of the Environmental Compliance Certificate (ECC) issued by the DENR-EMB,
Regional Director (RD-DENR-EMB). Immediately, Maingat and STK filed a petition
for the issuance of a writ of continuing mandamus against RD-DENR-EMB and WPRI
with the RTC of Province I, a designated environmental court, as the RD-DENR-EMB
negligently issued the ECC to WPRI. On scrutiny of the petition, the court determined
that the area where the alleged actionable neglect or omission subject of the petition
took place in the City of Z of Province II, and therefore cognizable by the RTC of
Province II. Thus, the court dismissed outright the petition for lack of jurisdiction.
(2015)
Was the court correct in motu proprio dismissing the petition?
- NO. The court was not correct in motu propio dismissing the petition. While it
appears that the alleged actionable neglect or omission took place in the City of
Z of Province II and, therefore cognizable by the RTC of Province II,
nonetheless, venue is not jurisdictional, and it can be waived in a special civil
action for continuing mandamus . Besides, under Section 1, Rule 9 of the Rules
of Court, defenses and objections not pleaded in the answer or in the motion to
dismiss are deemed waived. Hence, the court cannot motu propio dismiss the
case on the ground of improper venue.
Q: Assuming that the court did not dismiss the petition, the RD-DENR-EMB in his
Comment moved to dismiss the petition on the ground that petitioners failed to appeal
the issuance of the ECC and to exhaust administrative remedies provided in the
DENR Rules and Regulations. Should the court dismiss the petition?
- YES, the court should dismiss the petition because the proper procedure to
question defect in an ECC is to follow the DENR administrative appeal process
in accordance with the doctrine of exhaustion of administrative remedies
Venue versus jurisdiction
Q: Distinguish jurisdiction from venue? 2% (2006 Bar Question) SUGGESTED

- Jurisdiction is the power of the Court to decide a case on the merits, while venue
refers to the place where the suit may be filed. In criminal actions, however,
venue is jurisdictional. Jurisdiction may not be conferred upon a court by
consent through waiver, but venue may be waived except in criminal cases.
Venue of real actions
Q: Angela, a resident of Quezon City, sued Antonio, a resident of Makati City before
the RTC of Quezon City for the reconveyance of two parcels of land situated in Tarlac
and Nueva Ecija, respectively. May her action prosper? (3%)
- Yes, the action may prosper because improper venue can be waived; and there
appears to be no objection from the defendant. An action for reconveyance of
parcels of land partakes of an action to recover title to or possession of such
land; hence a real action which should be filed in the place where the parcels of
land are situated in Tarlac and Nueva Ecija.
Assuming that the action was for foreclosure on the mortgage of the same parcels of
land, what is the proper venue for the action? (3%)
- If the action was for foreclosure of mortgage, the action may be filed either in
Tarlac or Nueva Ecija where any of the parcels of land is situated. Only one
action for foreclosure need be filed as only one contract of mortgage had been
constituted.
Venue of personal actions
Gary who lived in Taguig borrowed P1 million from Rey who lived in Makati under a
contract of loan that fixed Makati as the venue of any action arising from the contract.
Gary had already paid the loan but Rey kept on sending him letters of demand for
some balance. Where is the venue of the action for harassment that Gary wants to
file against Rey? (2011 BAR) In Taguig or Makati at the option of Gary since it is a
personal injury action.
Q: A resident of Lingayen, Pangasinan sued X. a resident of San Fernando. La Union

in the Regional Trial Court (RTC) of Quezon City for the collection of a debt of PI
million. X did not file a motion to dismiss for improper venue but filed his answer raising
therein improper venue as an affirmative defense. He also filed a counterclaim for
P80.000 against A for attorney’s fees and expenses for litigation. X moved for a
preliminary hearing on said affirmative defense. For his part, A filed a motion to
dismiss the counterclaim for lack of jurisdiction.
Rule on the affirmative defense of improper venue. [3%] x x x
- There is improper venue. The case for a sum of money, which was filed in
Quezon City, is a personal action. It must be filed in the residence of either the
plaintiff, which is in Pangasinan, or of the defendant, which is in San Fernando,
La Union. (Sec. 2 of Rule 4, 1997 Rules of Civil Procedure.) The fact that it was
not raised in a motion to dismiss does not matter because the rule that If
improper venue is not raised in a motion to dismiss it is deemed waived was
removed from the 1997 Rules of Civil Procedure. The new Rules provide that if
no motion to dismiss has been filed, any of the grounds for dismissal may be
pleaded as an affirmative defense in the answer.
Q: X, a resident of Angeles City, borrowed P300.000.00 from A, a resident of Pasay

City. In the loan agreement, the parties stipulated that “the parties agree to sue and
be sued in the City of Manila.” In case of non-payment of the loan, can A file his
complaint to collect the loan from X in Angeles City?
Suppose the parties did not stipulate in the loan agreement as to the venue, where
can A file his complaint against X?
Suppose the parties stipulated in their loan agreement that Venue for all suits arising
from this contract shall be the courts in Quezon City," can A file his complaint against
X in Pasay City? (1997 Bar Question)
- Yes, because the stipulation in the loan agreement that “the parties agree to
sue and be sued in the City of Manila’ does not make Manila the “exclusive
venue thereof." (Sec. 4 of Rule 4, as amended by Circular No. 13-95: Sec. 4 of
new Rule 4) Hence, A can file his complaint in Angeles City where he resides.
- If the parties did not stipulate on the venue, A can file his complaint either in
Angeles City where he resides or in Pasay City where X resides. (Id).
- Yes, because the wording of the stipulation does not make Quezon City the
exclusive venue.
Venue of actions against non-residents

When the rules on venue do not apply
The mortgage contract between X, who resides in Manila, and Y, who resides in Naga,
covering land in Quezon provides that any suit arising from the agreement may be
filed "nowhere else but in a Makati court". Y must thus sue only in: (2012 BAR) Makati;
Which of the following stipulations in a contract will supersede the venue for actions
that the rules of civil procedure fix? (2011 BAR) Venue in case of dispute between the
parties to this contract shall solely be in the proper courts of Quezon City.
Q: (1988 Bar Question) A complaint entitled “A as Attorney -In- Fact for X, plaintiff,
versus B, Defendant” was filed to recover a car in the possession of B. A’s Power of
Attorney expressly authorized him (A) to sue for the recovery of the car. B files a
Motion to Dismiss the Complaint for lack of capacity to sue. Decide the Motion.
Explain.
A and B, both residents of Batangas, entered into a Contract of Lease over a parcel
of land belonging to B, located in Calapan, Mindoro. A filed a complaint before the
Regional Trial Court, sitting in Batangas City, for the rescission of the Lease Contract
of the land in Mindoro. B filed a Motion to Dismiss on the ground that the Batangas
Court did not have jurisdiction over the subject matter, the land being located in
Mindoro. B however did not alleged improper venue in his motion.
Decide with reasons.
- Motion to dismiss is denied. A has legal capacity to sue, but is not the real party
in interest. The ground of the motion to dismiss should have been that the
complaint states no cause of action because it was filed by “A as Attorney-in-
fact for X.” The complaint should have been filed in the name of X as plaintiff.
- Motion to dismiss is denied. The fact that the land is located in Mindoro does
not affect the jurisdiction of the Regional Trial Court sitting in Batangas City. The
proper venue of the action is the Regional Trial Court in Mindoro. However,
since B did not object to the improper venue in his motion, that ground is
deemed waived
Pleadings
Kinds of pleadings
What pleadings are allowed by the rules?
What pleadings must be verified?
- The pleadings allowed by the rules are the complaint, the answer, the
counterclaim, the crossclaim, the reply, the third-party (fourth-party etc.)
complaint.
- Those required by law to be verified, such as:
1. Forcible Entry and Unlawful Detainer. (Sec. 1 of Rule 70)
2. Denial of genuineness and due execution of a written instrument which is the
basis of an action or defense. (Sec. 8 of Rule 8)
3. Denial of allegations of usury. (Sec. 1 of Rule 9)
4. Petitions for certiorari, prohibition and mandamus. (Rule 65)
5. Pleadings in Summary Procedure.
Complaint
Answer (Negative defenses, Negative pregnant, Affirmative defenses)
Q: For failure of KJ to file an answer within the reglementary period, the Court, upon
motion of LM, declared KJ in default. In due time, KJ filed an unverified motion to lift
the order of default without an affidavit of merit attached to it. KJ however attached to
the motion his answer under oath, stating in said answer his reasons for his failure to
file an answer on time, as well as his defenses. Will the motion to lift the order of
default prosper? Explain. (3%)
- Yes, there is substantial compliance with the rule. Although the motion is
unverified, the answer attached to the motion is verified. The answer contains
what the motion to lift the order of default and the affidavit Of merit should
contain, which are the reasons for movant's failure to answer as well as his
defenses.
Counterclaims (Compulsory counterclaim, Permissive counterclaim, Effect on

the counterclaim when the complaint is dismissed)

What is a counterclaim? (2%)
- A counterclaim is any claim which a defending party, may have against an
opposing party.
Q: True or False. If the answer is false, explain your answer briefly.

A counterclaim is a pleading. (2%) (2007 Bar Question) True. A counterclaim is a
pleading by which a defending party makes a claim against an opposing party
Q: Is a “motion to dismiss with counterclaim" sanctioned by the Rules of Court?

If your answer is YES, state your reasons. If your answer is NO, give your reasons
and state what the defendant should instead file in court to preserve his counterclaim
while maintaining the ground asserted in his motion to dismiss as an issue that should
be the subject of a preliminary hearing. (1992 Bar Question)
- No, because a counterclaim is contained in an answer and not in a motion to
dismiss. What the defendant should do is to plead the ground of his motion to
dismiss (except improper venue) as an affirmative defense in his answer,
together with his counterclaim, and ask for a preliminary hearing on his
affirmative defense as if a motion to dismiss had been filed.
Compulsory counterclaim
Q: PX filed a suit for damages against DY. In his answer, DY incorporated a
counterclaim for damages against PX and AC, counsel for plaintiff in said suit, alleging
in said counterclaim, inter alia, that AC, as such counsel, maliciously induced PX to
bring the suit against DY despite AC’s knowledge of its utter lack of factual and legal
basis. In due time, AC filed a motion to dismiss the counterclaim as against him on
the ground that he is not a proper party to the case, he being merely plaintiff’s counsel.
Is the counterclaim of DY compulsory or not? Should AC’s motion to dismiss the
counterclaim be granted or not? Reason. (5%) (2004 Bar Question)
- Yes. The counterclaim of DY is compulsory because it is one which arises out
of or is connected with the transaction or occurrence constituting the subject
matter of the opposing party 's claim and does not require for its adjudication
the presence of third parties of whom the court cannot acquire jurisdiction
- The motion to dismiss of plaintiff’s counsel should not be granted because
bringing in plaintiff’s counsel as a defendant in the counterclaim is authorized
by the Rules. Where it is required for the grant of complete relief in the
determination of the counterclaim, the court shall order the defendant's counsel
to be brought in since jurisdiction over him can be obtained. (Sec. 12 of Rule 6;
Aurelio v. Court of Appeals 196 SCRA 674 [1994]); and other cases). Here, the
counterclaim was against both the plaintiff and his lawyer who allegedly
maliciously induced the plaintiff to file the suit.
Q: A resident of Lingayen, Pangasinan sued X. a resident of San Fernando. La Union
in the Regional Trial Court (RTC) of Quezon City for the collection of a debt of PI
million. X did not file a motion to dismiss for improper venue but filed his answer raising
therein improper venue as an affirmative defense. He also filed a counterclaim for
P80.000 against A for attorney’s fees and expenses for litigation. X moved for a
preliminary hearing on said affirmative defense. For his part, A filed a motion to
dismiss the counterclaim for lack of jurisdiction. Rule on the motion to dismiss the
counterclaim on the ground of lack of jurisdiction over the subject matter. (12%)
- The motion to dismiss on the ground of lack of jurisdiction over the subject
matter should be denied. The counterclaim for attorney's fees and expenses of
litigation is a compulsory counterclaim because it necessarily arose out of and
is connected with the complaint. In an original action before the Regional Trial
Court, the counterclaim may be considered compulsory regardless of the
amount.
Permissive counterclaim
Defendant Dante said in his answer: "1. Plaintiff Perla claims that defendant Dante
owes her P4,000 on the mobile phone that she sold him; 2. But Perla owes Dante
P6,000 for the dent on his car that she borrowed." How should the court treat the
second statement? (2011 BAR) A permissive counterclaim
Q: (1996 Bar Question) A filed an action against B for recovery of possession of a

piece of land. B in his answer specifically denied A’s claim and interposed as
counterclaim the amount of P150,000.00, arising from another transaction, consisting
of the price of the car he sold and delivered to A and which the latter failed to pay. Is
B’s counterclaim allowed under the rules? Explain.
A sued B for damages. B in his answer alleged as new matter the issue of prescription.
No reply thereto was filed by A.
Can the action be dismissed for failure of A to controvert the new matter set up by B?
Explain.
X filed an action for damages against Y arising from the latter’s tortious act. Y filed his
answer with a counterclaim for damages suffered and expenses incurred on account
of X’s suit. Thereafter, X moved to dismiss the case since he lost interest in the case.
Y did not object. The court dismissed the action without prejudice. Y moved the court
to set the reception of his evidence to prove his counterclaim.
If you were the judge, how would you resolve the motion? Explain Answer:
1) B’s counterclaim is a permissive counterclaim inasmuch as it arises out of another
transaction that is the subject-matter of A’s complaint. It is allowed if it is within the
jurisdiction of the court. (Sec. 8 of Rule 6)
Alternative Answer:
The question does not state to what court A filed the action. If the assessed value of
the property does not exceed P20.000.00, the action may be filed In a Municipal Trial
Court, in which case the counterclaim of P150,000.00 may not be allowed inasmuch
as it is not within its jurisdiction.
If the assessed value does not exceed P50.000.00, the action may be filed in a
Metropolitan Trial Court, in which case the counterclaim of P150,000.00 may be
allowed inasmuch as it is within its jurisdiction. (Sec. 33 of BP 129 as amended by RA
No. 7691)
If the assessed value exceeds P50.000.00, the action may be filed in a Regional Trial
Court. If filed in Metro Manila, the counterclaim of P150.000.00 may not be allowed,
but if filed outside Metro Manila, it may be allowed. (Sec. 19 of BP 129 as amended
by RA 7691)
No, because if no reply is filed, all the new matters alleged in the answer are deemed
controverted. (Sec. 11 of Rule 6)
I would deny the motion. Inasmuch as Y's counterclaim for damages incurred on
account of X’s suit cannot remain pending for independent adjudication. Y should
have objected to the dismissal of the complaint. His failure to object deprived him of
the right to present evidence to prove his counterclaim. (Sec. 2 of Rule 17; Ynotorio
vs. Lira, 12 SCRA 369)
Q: Aya sues Lea for recovery of a tract of land. Lea seeks in turn to be reimbursed of
the value of improvements she had introduced on the same land and the payment of
damages she had sustained. Should Lea file a separate action against Aya for that
purpose? (1994 Bar Question)
- No. Lea’s claim cannot be made in a separate action. It is a compulsory
counterclaim in the suit filed by Aya against Lea for the recovery of the land. A
compulsory counterclaim is one which arises out of or is necessarily connected
with the transaction or occurrence that is the subject-matter of the opposing
party’s claim and does not require the presence of third parties of whom the
court cannot acquire jurisdiction. If Lea’s claim is not set up in the suit filed by
Aya, the claim is barred.
Cross-claims

Distinguish a counterclaim from a crossclaim. (2%)
- A counterclaim is distinguished from a crossclaim in that a cross-claim is any
claim by one party against a co-party arising out of the transaction or occurrence
that is the subject matter either of the original action or of a counterclaim therein.
A counterclaim is against an opposing party while a cross-claim is against a co-
party.
Q: B and C borrowed P400.000.00 from A. The promissory note was executed by B

and C in a joint and several capacity. B, who received the money from A. gave C
P200.000.00. C, in turn, loaned P 100,000.00 out of the P200.000.00 he received to
D. In an action filed by A against B and C with the Regional Trial Court of Quezon
City, can B file a cross-claim against C for the amount of P200.000.00? Can C file a
third party complaint against D for the amount of P100.000.00? (1997 Bar Question)
- Yes. B can file a cross-claim against C for the amount of 200,000.00 given to C.
A cross-claim is a claim filed by one party against a co-party arising out of the
transaction or occurrence that is the subject matter of the original action or a
counterclaim therein and may include a claim that the party against whom it is
asserted is or may be liable to the cross-claimant for all or part of a claim
asserted against the cross-claimant. (Sec. 7 of former Rule 6; Sec. 8 of new
Rule 6. Rules of Court).
- No, C cannot file a third-party complaint against D because the loan of
100,000.00 has no connection with his opponent’s claim. C could have loaned
the money out of other funds in his possession.
Q: (1996 Bar Question) A assembles an owner-type jeep for B who in turn rents it to
X. Due to faulty brakes, X figures in a vehicular accident causing him severe injuries.
X files an action for damages against A and B. May B file a third-party complaint
against A for indemnity? Explain. X sued Y for breach of contract with damages. After
Y filed his answer, the parties amicably settled. The court rendered Judgment based
on said compromise. Within the period to perfect the appeal, Y filed a motion for new
trial under Rule 37 alleging vitiation of his consent due to mistake and prayed that the
agreement be set aside. Resolve the motion. Plaintiff filed a complaint against
defendant for recovery of possession of real property with the Regional Trial Court of
Manila. Defendant filed an answer with affirmative defenses and interposed a
counterclaim for damages and attorney’s fees arising from the filing of the complaint.
When plaintiff failed to file an answer on the counterclaim, defendant moved to declare
him in default. Notwithstanding notice of the motion, plaintiff did not file an opposition.
As judge, how would you resolve the motion to declare plaintiff in default? Explain.
- No, because what B should file is a crossclaim against his co-defendant A.
- A judgment by compromise is not appealable. Hence a motion for new trial is
not proper. Y should file a motion to set aside the agreement on the ground of
mistake. or he could file a petition for relief under Rule 38 of the Rules of Court
or file a new action to annul the agreement within the prescriptive period
- I would deny the motion. A compulsory counterclaim for damages and attorney’s
fees arising from the filing of the complaint raises issues which are inseparable
from those of the complaint and does not require an answer. (Navarro vs. Bello.
102 Phil. 1019)
Third (fourth, etc.) party complaints
Leave of court is always necessary in: (2012 BAR) third party complaint.
Q: (1996 Bar Question) A filed an action against B for recovery of possession of a

piece of land. B in his answer specifically denied A’s claim and interposed as
counterclaim the amount of P150,000.00, arising from another transaction, consisting
of the price of the car he sold and delivered to A and which the latter failed to pay. Is
B’s counterclaim allowed under the rules? Explain.
A sued B for damages. B in his answer alleged as new matter the issue of prescription.
No reply thereto was filed by A.
Can the action be dismissed for failure of A to controvert the new matter set up by B?
Explain.
X filed an action for damages against Y arising from the latter’s tortious act. Y filed his
answer with a counterclaim for damages suffered and expenses incurred on account
of X’s suit. Thereafter, X moved to dismiss the case since he lost interest in the case.
Y did not object. The court dismissed the action without prejudice. Y moved the court
to set the reception of his evidence to prove his counterclaim.
If you were the judge, how would you resolve the motion? Explain. Answer:
B’s counterclaim is a permissive counterclaim inasmuch as it arises out of another
transaction that is the subject-matter of A’s complaint. It is allowed if it is within the
jurisdiction of the court. (Sec. 8 of Rule 6)
Alternative Answer:
The question does not state to what court A filed the action. If the assessed value of
the property does not exceed P20.000.00, the action may be filed In a Municipal Trial
Court, in which case the counterclaim of P150,000.00 may not be allowed inasmuch
as it is not within its jurisdiction.
If the assessed value does not exceed P50.000.00, the action may be filed in a
Metropolitan Trial Court, in which case the counterclaim of P150,000.00 may be
allowed inasmuch as it is within its jurisdiction. (Sec. 33 of BP 129 as amended by RA
No. 7691)
If the assessed value exceeds P50.000.00, the action may be filed in a Regional Trial
Court. If filed in Metro Manila, the counterclaim of P150.000.00 may not be allowed,
but if filed outside Metro Manila, it may be allowed. (Sec. 19 of BP 129 as amended
by RA 7691)
No, because if no reply is filed, all the new matters alleged in the answer are deemed
controverted. (Sec. 11 of Rule 6)
I would deny the motion. Inasmuch as Y's counterclaim for damages incurred on
account of X’s suit cannot remain pending for independent adjudication. Y should
have objected to the dismissal of the complaint. His failure to object deprived him of
the right to present evidence to prove his counterclaim. (Sec. 2 of Rule 17; Ynotorio
vs. Lira, 12 SCRA 369)
Complaint-in-intervention
Reply
Q: X files a complaint in the Regional Trial Court for the recovery of a sum of money
with damages against Y.Y files his answer denying liability under the contract of sale
and praying for the dismissal of the complaint on the ground of lack of cause of action
because the contract of sale was superseded by a contract of lease, executed and
signed by X and Y two weeks after the contract of sale was executed. The contract of
lease was attached to the answer. X does not file a reply. What is the effect of the
non-filing of a reply? Explain. (3%) (2000 Bar Question)
- A reply is generally optional. If it is not filed, the new matters alleged in the
answer are deemed controverted. However, since the contract of lease attached
to the answer is the basis of the defense, by not filing a reply denying under
oath the genuineness and due execution of said contract, the plaintiff is deemed
to have admitted the genuineness and due execution thereof. (Secs. 7 and 8,
Rule 8,1997 Rules of Civil Procedure; Toribio u. Bidin, 134 SCRA 162 (1985]).
Pleadings allowed in small claim cases and cases covered by the Rules on
Summary Procedure
Which of the following precepts forms part of the rules governing small claims? (2011
BAR) Permissive counterclaim is not allowed.
Q: As a new lawyer, Attorney Novato limited his practice to small claims cases, legal
counseling and the notarization of documents. He put up a solo practice law office
and was assisted by his wife who served as his secretary/helper. He used a makeshift
hut in a vacant lot near the local courts and a local transport regulatory agency. With
this practice and location, he did not have big-time clients but enjoyed heavy
patronage assisting walk-in clients. What role can Attorney Novato play in small
claims cases when lawyers are not allowed to appear as counsel in these cases?
(2013 BAR)
- Atty. Novato may only give counseling and assist claimants in accomplishing
the Statement of Claims and the Affidavits necessary to initiate a small claims
action. He can also notarize the aforementioned documents since the statement
of Claims and Response are required to be verified
What legal remedy, if any, may Attorney Novato pursue for a client who loses in a
small claims case and before which tribunal or court may this be pursued? (2013 BAR)
- Atty. Novato may file a Petition for Certiorari before the RTC since a decision in
small claims cases is final and unappealable (Sec. 23, A.M. No. 8-8-7 SC). The
petition for certiorari should be filed before the RTC conformably to the Principle
of Judicial Hierarchy.
Q: SPO1 CNC filed with the Metropolitan Trial Court in Quezon City (MeTC-QC) a
sworn written statement duly subscribed by him, charging RGR (an actual resident of
Cebu City') with the offense of slight physical injuries allegedly inflicted on SPS (an
actual resident of Quezon City). The Judge of the branch to which the case was raffled
thereupon issued an order declaring that the case shall be governed by the Rule on
Summary Procedure in criminal cases. Soon thereafter, the Judge ordered the
dismissal of the case for the reason that it was not commenced by information, as
required by said Rule. Sometime later, based on the same facts giving rise to the
slight physical injuries case, the City Prosecutor filed with the same MeTC-QC an
information for attempted homicide against the same RGR. In due time, before
arraignment, RGR moved to quash the information on the ground of double jeopardy
and after due hearing, the Judge granted his motion.
Was the dismissal of the complaint for slight physical injuries proper? Was the
grant of the motion to quash the attempted homicide information correct? Reason
- Yes, the dismissal of the complaint for slight physical injuries is proper because
in Metropolitan Manila and in chartered cities, the case has to be commenced
only by information. (Sec. 11, Revised Rule on Summary Procedure).
- No, the grant of the motion to quash the attempted homicide information on the
ground of double jeopardy was not correct, because there was no valid
prosecution for slight physical injuries.
Q: Juan Santos appeals the decision against him to the Regional Trial Court (RTC)
which affirmed in toto the lower court’s decision. Juan Santos then filed a motion for
reconsideration. Maria Cruz moves to strike out the motion for reconsideration as it is
a prohibited pleading under the Rules on Summary Procedure.
Is this tenable? Decide with reasons. (1990 Bar Question) - No, because the rule on
prohibited pleadings in summary procedure is applicable only to the Metropolitan and
Municipal Trial Courts (Glakihaca v. Aquino. Jan. 12.1990)
Q: Dalmacio filed a civil case against Cadio for the collection of P5,000 in the
Municipal Trial Court of Bacoor, After an examination of the complaint, the judge
dismissed the case outright due to improper venue. Dalmacio filed a “motion for
reconsideration” of the order of dismissal, contending that a provision in the
promissory note attached to the complain and made as the basis thereof clearly
shows that the case must be filed with the Bacoor court. Although realizing and
admitting that he committed an error in dismissing the case, the judge said that he
could not revoke his previous order because no action can be taken on the motion for
reconsideration, which is a prohibited pleading under the Summary Rules. Is the judge
correct? Explain. (1989 Bar Question)
- No, because while a motion for reconsideration is not allowed under summary
procedure rules in order to avoid undue delay, a revocation of the erroneous
order would avoid the delay occasioned by an appeal by Dalmacio from the
order of dismissal and a reversal of the said order by the Regional Trial Court.
Verification and certification against forum shopping
A certificate against Forum-Shopping is not required in: (2012 BAR) application for
search warrant.
When a party or counsel willfully or deliberately commits forum shopping, the initiatory
pleading may: (2012 BAR) be summarily dismissed with prejudice as it may constitute
direct contempt.
Q: What is forum shopping? 2.5% (2007 Bar Question)

- Forum -shopping is the act of filing multiple suits involving the same parties for
the same cause of action, either simultaneously or successively, for the purpose
of obtaining a favorable judgment
Q: Mr. Humpty file with the Regional Trial Court (RTC) a complaint against Ms.
Dumpty for damages. The RTC, after due proceedings, rendered a decision granting
the complaint and ordering Ms. Dumpty to pay damages to Mr. Humpty. Ms. Dumpty
timely filed an appeal before the Court of Appeals (CA), questioning the RTC decision.
Meanwhile, the RTC granted Mr. Humpty’s motion for execution pending appeal.
Upon receipt of the RTC’s order granting execution pending appeal, Ms. Dumpty filed
with the CA another case, this time a special civil action for certiorari assailing said
RTC order. Is there a violation of the rule against forum shopping considering that two
(2) actions emanating from the same case with the RTC were filed by Ms. Dumpty
with the CA? Explain. (2014)
- NO. There is no violation of the rule against forum shopping. The essence of
forum shopping is the filing by a party against whom an adverse judgment has
been rendered in one forum, seeking another and possibly favorable opinion in
another suit other than by appeal or special civil action for certiorari; the act of
filing of multiple suits involving the same parties for the same cause of action,
either simultaneously or successively for the purpose of obtaining a favorable
judgment. Forum shopping exists where the elements of litis pendentia are
present or where a final judgment in one case will amount to res judicata in the
action under consideration. One party may validly question a decision in a
regular appeal and at the same time assail the execution pending appeal via
certiorari without violating the rule against forum shopping. This is because the
merits of the case will not be addressed in the Petition dealing with the execution
and vice versa. Since Ms. Dumpty merely filed a special civil action for certiorari,
the same will not constitute a violation of the rules on forum shopping because
the resolution or a favorable judgment thereon will not amount to res judicata in
the subsequent proceedings between the same parties
A complaint without the required "verification" (2011 BAR) shall be treated as

unsigned.
The verification and certification of non-forum shopping are fatally defective because
there is no accompanying certification issued by the Philippine Consulate in New
York, authenticating that^Mr. Brown is duly authorized to notarize the document. (3%)
Rule on the foregoing grounds with reasons.(2009 Bar Question)
- The third ground raised questioning the validity of the verification and
certification of non-forum shopping for lack of certification from the Philippine
Consulate in New York, authenticating that Mr. Brown is duly authorized to
notarize the document, is likewise without merit. The required certification
alluded to, pertains to official acts, or records of official bodies, tribunals, and
public officers, whether of the Philippines or of a foreign country: the
requirement in Sec. 24, Rule 132 of the 1997 Rules refers only to paragraph (a)
of Sec. 29 which does not cover notarial documents. It is enough that the notary
public who notarized the verification and certification of non-forum shopping is
clothed with authority to administer oath in that State or foreign country.
Q: What is forum-shopping? What are the sanctions imposed for its violation? (1996
Bar Question)
- Forum-shopping is the filing of multiple petitions, complaints or other initiatory
pleadings involving the same issues in the Supreme Court, the Court of Appeals
or other tribunals or agencies, with the result that said courts, tribunals or
agencies have to resolve the same issues.
- Any violation thereof shall be a cause for the dismissal of the complaint, petition,
application or other initiatory pleading, upon motion and after hearing. However,
any clearly, wilful and deliberate forum shopping by any party and his counsel
through the filing of multiple complaints or other initiatory pleadings to obtain
favorable action shall be a ground for summary dismissal thereof and shall
constitute direct contempt of court. Furthermore, the submission of false
certification or non-compliance with the undertakings therein shall constitute
indirect contempt of court, without prejudice to disciplinary proceedings against
the counsel and the filing of a criminal action against the guilty party.
Q: RC filed a complaint for annulment of the foreclosure sale against Bank V. In its
answer, Bank V set up a counterclaim for actual damages and litigation expenses.
RC filed a motion to dismiss the counterclaim on the ground that Bank V’s Answer
with Counterclaim was not accompanied by a certification against forum shopping.
Rule. (5%) (2007 Bar Question)
- A certification against forum shopping is required only in initiatory pleadings. In
this case, the counterclaim pleaded in the defendant’s Answer appears to have
arisen from the plaintiff's complaint or compulsory in nature and thus, may not
be regarded as an initiatory pleading. The absence thereof in the Bank’s Answer
is not a fatal defect. Therefore, the motion to dismiss on the ground raised, lacks
merit and should be denied (UST v. Surla, 294 SCRA 382 [1998]).
- On the other hand, if the counterclaim raised by the defendant Bank’s Answer
was not predicated on the plaintiffs claim or cause of action, it is considered a
permissive counterclaim. In which case, it would partake of an initiatory pleading
which requires a certification against forum shopping. Correspondingly, the
motion to dismiss based on lack of the required certificate against forum
shopping should be granted.
Q: Honey filed with the Regional Trial Court, Taal, Batangas a complaint for specific
performance against Bemie. Forlack of a certification against forum shopping, the
judge dismissed the complaint. Honey's lawyer filed a motion for reconsideration,
attaching thereto an amended complaint with the certification against forum shopping.
If you were the judge, how will you resolve the motion? 5%
- If I were the judge, I will deny the Motion for Reconsideration. The requirement
of filing a certificate of non-forum shopping is mandatory; it is not curable by
mere amendment of the complaint but the dismissal of the case shall be without
prejudice. [Sec. 5, Rule 7 of the 1997 Revised Rules of Civil Procedure].
However, The rule may be liberally construed when there are compelling
reasons and a strict and literal application of the rules on non-forum shopping
and verification will result in a patent denial of substantial justice
Q: As counsel for A, B, C and D. Atty. XY prepared a complaint for recovery of
possession of a parcel of land against Z. Before filing the complaint, XY discovered
that his clients were not available to sign the certification of non- forum shopping. To
avoid further delays in the filing of the complaint, XY signed the certification and
immediately filed the complaint in court. Is XY Justified in signing the certification?
Why? (5%) (2000 Bar Question)
- No. counsel cannot sign the anti-forum shopping certification because it must
be executed by the “plaintiff or principal party" himself (Sec. 5. Rule 7, 1997
Rules of Civil Procedure; Escorpizo v. University of Baguio, 306 SCRA 497.
(1999]). since the rule requires personal knowledge by the party executing the
certification, unless counsel gives a good reason why he is not able to secure
his clients’ signatures and shows that his clients will be deprived of substantial
Justice {Ortiz v. Court of Appeals, 299 SCRA 708,11998]) or unless he is
authorized to sign It by his clients through a special power of attorney.
d. Effect of the signature of counsel in a pleading Q: (1996 Bar Question)

What is the significance of a lawyer’s signature in the pleadings?
- The signature of a lawyer constitutes a certification by him that he has read the
pleading; that to the best of his knowledge, information and belief there is good
ground to support it; and that it is not interposed for delay. (Sec. 5 of Rule 7)
Manner of making allegations

Condition precedent
Fraud, mistake, malice, intent, knowledge and other condition of the mind,
judgments, official documents or acts
Q: (1996 Bar Question) The complaint alleged that the defendant acted in bad faith,
arbitrarily, illegally, wrongfully, and in violation of law. However, it did not contain any
averment of facts showing that defendant's acts were done in the manner alleged.
Does the complaint state a cause of action? Explain. X brought an action against Y
for the annulment of the sale of certain shares of stock. After the case was decided in
favor of X, he filed another action for the recovery of the dividends that had already
accrued when the first action was filed. Is the second action for the recovery of the
dividends proper?
- No, because it does not state the ultimate facts constituting the plaintiffs cause
of action. The allegations that the defendant acted in bad faith, arbitrarily,
illegally, wrongfully and in violation of the law are mere conclusions of fact or
conclusions of law.
Alternative Answer:
Yes, if the complaint alleges ultimate facts and states that the acts were done in bad
faith, arbitrarily, illegally, wrongfully and in violation of the law. The rule allows malice,
intent, knowledge or other condition of the mind to be averred generally. (Sec. 5 of
Rule 8)
No, because the recovery of the dividends is part of the cause of action for the
annulment of the sale of certain shares of stock and should have been claimed in the
first action. The second action constituted splitting a single cause of action.
Pleading an actionable document
Q: On August 13, 2008, A, as shipper and consignee, loaded on the M/V Atlantis in
Legaspi City 100,000 pieces of Century eggs. The shipment arrived in Manila totally
damaged on August 14, 2008. A filed before the Metropolitan Trial Court (MeTC)of
Manila a complaint against B Super Lines, Inc. (B Lines), owner of the M/V Atlantis,
for recovery of damages amounting to P167,899. He attached to the complaint the
Bill of Lading. The MeTC denied the Motion in question A. B Lines thus filed an Answer
raising the defense that under the Bill of Lading it issued to A, its liability was limited
to Pl0, 000. At the pre-trial conference, B Lines defined as one of the issues whether
the stipulation limiting its liability to Pl0, 000 binds A. A countered that this was no
longer in issue 1l.S B Lines had jailed to deny under oath the Bill of Lading. Which of
the parties is correct? Explain. (3%) (2010 Bar Question)
- The Contention of B is correct: A’s contention is wrong. It was A who pleaded
the Bill of Lading as an actionable document where the stipulation limits B's
liability to A to P10, 000.00 only. The issue raised by B does not go against or
impugn the genuineness and due execution of the Bill of Lading as an actionable
document pleaded by A, but invokes the binding effect of said stipulation. The
oath is not required of B, because the issue raised by the latter does not impugn
the genuineness and due execution of the Bill of Lading.
Q: Modesto sued Ernesto for a sum of money, claiming that the latter owed him PI-
million, evidenced by a promissory note, quoted and attached to the complaint. In his
answer with counterclaim, Ernesto alleged that Modesto coerced him into signing the
promissory note, but that it is Modesto who really owes him PI.5-million. Modesto filed
an answer to Ernesto’s counterclaim admitting that he owed Ernesto, but only in the
amount of PO.5-million. At the pretrial, Modesto marked and identified Ernesto’s
promissory note. He also marked and identified receipts covering payments he made
to Ernesto, to the extent of PO.5-million, which Ernesto did not dispute. After pre-trial,
Modesto filed a motion for judgment on the pleadings, while Ernesto filed a motion
for summary judgment on his counterclaim. Resolve the two motions with reasons.
- Modesto’s motion for judgment on the pleadings should be denied. While it is
true that under the actionable document rule, Ernesto’s failure to deny under
oath the promissory note in his answer amounted to an implied admission of its
genuineness and due execution, his allegation in his answer that he was
coerced into signing the promissory note tendered an issue which should be
tried. The issue of coercion is not inconsistent with the due execution and
genuineness of the instrument. Thus, Ernesto’s failure to deny the genuineness
of the promissory note cannot be considered a waiver to raise the issue that he
was coerced in signing the same. Said claim of coercion may also be proved as
an exception to the Parol Evidence Rule.
- On the other hand, Ernesto’s motion for summary judgment may be granted.
Modesto’s answer to Ernesto’s counterclaim — that he owed the latter a sum
less than what was claimed — amounted to an admission of a material fact and
if the amount thereof could summarily be proved by affidavits, deposition, etc.,
without the need of going to trial, then no genuine issue of fact exists.
Q: In his answer to the complaint, Mario Reyes alleged that he does not owe Norma
Alajar any sum of money, and that he executed the promissory note only to enable
Alajar to show the same to her husband to explain the disappearance of the amount
from the conjugal funds as Norma Alajar lost the same in the casino. The answer is
not verified. At the trial, the lawyer of Norma Alajar objected to the testimony of Mario
Reyes, as to his accommodation story because, as the answer is not verified, he is
deemed to have admitted the genuineness and due execution of the promissory note.
Decide on the objection with reasons. (1990 Bar Question
- Objection overruled. A verified answer is necessary in denying the genuineness
and due execution of the promissory note on which the action is based.
However, the defense of Mario Reyes does not dispute the genuineness or due
execution of the promissory note. His defense of want of consideration, that he
executed the promissory note only to enable Alajar to explain the loss of
conjugal funds does not require a verified answer. (Sec. 8 of Rule 8)
Specific denials (Effect of failure to make specific denials, When a specific

denial requires an oath)
Plaintiff Manny said in his complaint: "3. On March 1, 2001 defendant Letty borrowed
P1 million from plaintiff Manny and made a promise to pay the loan within six months."
In her answer, Letty alleged: "Defendant Letty specifically denies the allegations in
paragraph 3 of the complaint that she borrowed P1 million from plaintiff Manny on
March 1, 2001 and made a promise to pay the loan within six months." Is Letty’s denial
sufficient? (2011 BAR) No, since it fails to set forth the matters defendant relied upon
in support of her denial.
Q: In a complaint for recovery of real property, the plaintiff averred, among others,
that he is the owner of the said property by virtue of a deed of sale executed by the
defendant in his favor. Copy of the deed of sale was appended to the complaint as
Annex “A" thereof.
In his unverified answer, the defendant denied the ^legation concerning the sale
of the property In question, as Well as the appended deed of sale, for lack of
knowledge or information sufficient to form a belief as to the truth thereof. Is it proper
for the court to render judgment without trial? Explain. (4%)(2005 Bar Question)
- Defendant cannot deny the sale of the property for lack of knowledge or
information sufficient to form a belief as to the truth thereof. The answer, being
defective, amounts to an admission. (Phil. Advertising Counselors, Inc. v.
Revilla, 52 SCRA 246 [19731; Sec. 10, Rule 8,1997 Rules of Civil Procedure).
Moreover, the genuineness and due execution of the deed of sale can only be
denied by the defendant under oath and failure to do so is also an admission of
the deed. (Sec. 8, 1997 Rules of Civil Procedure). Hence, a judgment on the
pleadings can be rendered by the court without need of a trial.
Q: In his complaint for foreclosure of mortgage to which was duly attached a copy of
the mortgage deed,, plain tiff PP alleged inter alia as follows: (1) that defendant DD
duly executed the mortgage deed, copy of which is Annex “A" of the complaint and
made an integral part thereof; and (2) that to prosecute his complaint, plaintiff
contracted a lawyer, CC, for a fee of P50.000. In his answer, defendant alleged, inter
alia, that he had no knowledge of the mortgage deed, and he also denied any liability
for plaintiffs contracting with a lawyer for a fee. Does defendant’s answer as to
plaintiff’s allegation no. 1 as well as no. 2 sufficiently raise an issue of fact? Reason
briefly. (5%) (2004 Bar Question)
- As to plaintiffs allegation no. 1. defendant does not sufficiently raise an issue of
fact, because he cannot allege lack of knowledge of the mortgage deed since
he should have personal knowledge as to whether he signed it or not and
because he did not deny under oath the genuineness and due execution of the
mortgage deed, which is an actionable document. As to plaintiff’s allegation no.
2, defendant did not properly deny liability as to plaintiffs contracting with a
lawyer for a fee. He did not even deny for lack of knowledge.
Q: X sued Y, a shipping co., based on a contract of carriage contained in a bill of

lading. The bill of lading, an actionable document, was pleaded and attached to the
complaint. Y, without alleging anything else, merely assailed the validity of the
agreement in the bill of lading for being contrary to public policy. After presenting
evidence, X did not formally offer for admission the bill of lading. The court ruled for
X. On motion for reconsideration. Y alleged that X failed to prove his action as the bill
of lading was not formally offered. Decide. (1996 Bar Question)
- Motion for reconsideration is denied. There was no need to formally offer for
admission the bill of lading, because the failure of Y to deny under oath the
genuineness and due execution of the bill of lading which was an actionable
document constituted an admission thereof. (Sec. 8 of Rule 8)
Q: In an action for recovery of a sum of money, the plaintiff averred in the complaint
that “on January 15, 1990, the defendant obtained a loan from the plaintiff in the sum
of P100,000.00 which he promised to pay to the latter on or before July 15,1990 plus
interest thereon at the rate of 18% per annum from January 15,1990 until fully paid"
and that “the aforesaid loan has long been overdue but despite repeated demands,
the defendant failed and refused, and still fails and refuses to pay to the plaintiff the
aforesaid sum of P100,000.00 and the accrued interest." Answering the complaint,
the defendant denied the aforequoted averments and gave the reason for the denial
his lack of knowledge or information sufficient to form a belief as to the truth of said
averments. What is the effect of such denial? With such form of denial, what course
of action may be availed of by the plaintiff? Explain. (1993 Bar Question)
- The denial of the averments of the complaint claiming lack of knowledge or
information sufficient to form a belief as to the truth of said averments is not a
sufficient specific denial. The allegation in the complaint, that the defendant
obtained a loan from the plaintiff and failed and refused to pay the same, is so
plainly and necessarily within the defendant’s knowledge that his claim of
ignorance must be palpably not true.
- Since the answer tenders no issue or otherwise admits the material allegations
of the complaint, the plaintiff may properly file a motion for Judgment on the
pleadings.
Effect of failure to plead
Failure to plead defenses and objections Q: (2000 Bar Question)
a) X files a complaint in the Regional Trial Court for the recovery of a sum of money
with damages against Y.Y files his answer denying liability under the contract of sale
and praying for the dismissal of the complaint on the ground of lack of cause of action
because the contract of sale was superseded by a contract of lease, executed and
signed by X and Y two weeks after the contract of sale was executed. The contract of
lease was attached to the answer. X does not file a reply. What is the effect of the
non-filing of a reply? Explain. (3%)
a) A reply is generally optional. If it is not filed, the new matters alleged in the answer
are deemed controverted. (Sec. 10 of Rule 6. 1997 Rules of Civil Procedure).
However, since the contract of lease attached to the answer is the basis of the
defense, by not filing a reply denying under oath the genuineness and due execution
of said contract, the plaintiff is deemed to have admitted the genuineness and due
execution thereof.
Failure to plead a compulsory counterclaim and cross-claim

Q: (2000 Bar Question) For failure of KJ to file an answer within the reglementary
period, the Court, upon motion of LM, declared KJ in default. In due time, KJ filed an
unverified motion to lift the order of default without an affidavit of merit attached to it.
KJ however attached to the motion his answer under oath, stating in said answer his
reasons for his failure to file an answer on time, as well as his defenses. Will the
motion to lift the order of default prosper? Explain. (3%)
- Yes, there is substantial compliance with the rule. Although the motion is
unverified, the answer attached to the motion is verified. The answer contains
what the motion to lift the order of default and the affidavit Of merit should
contain, which are the reasons for movant's failure to answer as well as his
defenses.
Default
When a declaration of default is proper
A judgment by default can be issued despite an Answer being filed in: (2012 BAR)
cases where a party willfully fails to appear before the officer who is to take his
deposition.
Q: Circe filed with the RTC a complaint for the foreclosure of real estate mortgage
against siblings Scylla and Charybdis, co-owners of the property and co- signatories
to the mortgage deed. The siblings permanently reside in Athens, Greece. Circe
tipped off Sheriff Pluto that Scylla is on a balikbayan trip and is billeted at the Century
Plaza Hotel in Pasay City. Sheriff Pluto went to the hotel and personally served Scylla
the summons, but the latter refused to receive summons for Charybdis as she was
not authorized to do so. Sheriff Pluto requested Scylla for the email address and fax
number of Charybdis which the latter readily gave. Sheriff Pluto, in his return of the
summons, stated that "Summons for Scylla was served personally as shown by her
signature on the receiving copy of the summons. Summons on Charybdis was served
pursuant to the amendment of Rule 14 by facsimile transmittal of the summons and
complaint on defendant's fax number as evidenced by transmission verification report
automatically generated by the fax machine indicating that it was received by the fax
number to which it was sent on the date and time indicated therein." Circe, sixty (60)
days after her receipt of Sheriff Pluto's return, filed a Motion to Declare Charybdis in
default as Charybdis did not file any responsive pleading. (2015)
Should the court declare Charybdis in default?
- NO, the court should not declare Charybdis in default because there was no
proper service of summons. Section 12, Rule 14 of the Rules of Court applies
only to a foreign private juridical entity that is not registered in the Philippines
and has no resident agent in the country, and not to individuals (A.M. No. 11-3-
6-SC, March 15, 2011). The service of summons by facsimile under said rule is,
therefore, defective.
- A foreclosure of real estate mortgage is a quasi in rem action, thus, the court
can render judgments as long as it has jurisdiction over the res and any of the
modes of extraterritorial service of summons under Section 15 of Rule 14 is
complied with prior leave of court. There is, unfortunately, no showing in the
problem that a prior leave of court was obtained before resorting to extra-
territorial service of summons; hence, the service of summons is defective.
Q: Scylla seasonably filed her answer setting forth therein as a defense that Charybdis
had paid the mortgage debt. On the premise that Charybdis was properly declared in
default, what is the effect of Scylla's answer to the complaint?
- Assuming that Charybdis was properly declared in default, the court shall try the
case against all the defendants upon the answer filed by Scylla, and render
judgment upon the evidence presented (Sec. 3[c], Rule 9).
In a complaint filed by the plaintiff, what is the effect of the defendant’s failure to file
an answer within the reglementary period? (2013 BAR) The court may declare the
defendant in default but only upon motion of the plaintiff, with notice to the defendant,
and upon presentation of proof of the defendant’s failure to answer.
Gerry sued XYZ Bus Co. and Rico, its bus driver, for injuries Gerry suffered when
their bus ran off the road and hit him. Of the two defendants, only XYZ Bus Co. filed
an answer, alleging that its bus ran off the road because one of its wheels got caught
in an open manhole, causing the bus to swerve without the driver’s fault. Someone
had stolen the manhole cover and the road gave no warning of the danger it posed.
On Gerry’s motion and over the objection of XYZ Bus Co., the court declared Rico,
the bus driver, in default and rendered judgment ordering him to pay P50,000 in
damages to Gerry. Did the court act correctly? (2011 BAR) No, since the court should
have tried the case against both defendants upon the bus company’s answer.
Q: (1999 Bar Question) When may a party be declared in default? (2%)

- A party may be declared in default when he fails to answer within the time
allowed therefor, and upon motion of the claiming party with notice to the
defending party, and proof of such failure. (Sec. 3, Rule 9 of the 1997 Rules)
Q: May a party who is present at the pre-trial of a civil case and assisted by counsel
still be declared non-suited or as in default? Explain. (1989 Bar Question)
- No, because the only ground to declare a party non-suited or considered as in
default at the pre-trial is failure to appear thereat.
Tina Guerrero filed with the Regional Trial Court of Biñan, Laguna, a complaint for
sum of money amounting to PI Million against Carlos Corro. The complaint alleges,
among others, t1 at Carlos borrowed from Tina the said amount evidenced by a
promissory note signed by Carlos and his wife, jointly and severally. Carlos was
served with summons which was received by Linda, his secretary. However, Carlos
failed to file an answer to the complaint within the 15- day reglamentary period. Hence,
Tina filed with the court a motion to declare Carlos in default and to allow her to
present evidence ex parte. Five days thereafter, Carlos filed his verified answer to the
complaint, denying under oath the genuineness and due execution of the promissory
note; and contending that he has fully paid his loan with interest at 12% per annum.
(2006 Bar Question) If you were the judge, will you grant Tina’s motion to declare
Carlos in default? 2.5%
- No, I will not grant Tina’s motion to declare Carlos in default. Considering that
there was no proper service of summons, the reglementary period to file a
responsive pleading was not tolled. Carlos was not duty bound to submit an
Answer. Moreover, Carlos submitted a verified answer. It is better to decide a
case on the merits than on sheer technicality.
Q: (2002 Bar Question) The plaintiff sued the defendant in the RTC for damages
allegedly caused by the latter’s encroachment on the plaintiff's lot. In his answer, the
defendant denied the plaintiff’s claim and alleged that it was the plaintiff who in fact
had encroached on his (defendant’s) land. Accordingly, the defendant counterclaimed
against the plaintiff for damages resulting from the alleged encroachment on his lot.
The plaintiff filed an ex parte motion for extension of time to answer the defendant's
counterclaim, but the court denied the motion on the ground that it should have been
set for hearing. On the defendant’s motion, therefore, the court declared the plaintiff
in default on the counterclaim. Was the plaintiff validly declared in default? Why? (5%)
- No, the plaintiff was not validly declared in default. A motion for extension of
time to file an answer may be filed ex parte and need not be set for hearing.
ALTERNATIVE ANSWER:
The general rule is that a counterclaim must be answered within ten (10) days
from service. (Rule 11, sec. 4). However, a counterclaim that raises issues which are
deemed automatically joined by the allegations of the Complaint need not be
answered [Gojo v. Goyaia, 35 SCRA 557 (1970)].
In this case, the defendant’s counterclaim is a compulsory counterclaim which
arises out or is connected with the transaction and occurrence constituting the subject
matter of the plaintiff’s claim. It raises the same issue of who encroached on whose
land. Hence, there was no need to answer the counterclaim.
Q: Tina Guerrero filed with the Regional Trial Court of Biñan, Laguna, a complaint for
(2006 Bar Question)
If you were the judge, will you grant Tina’s motion to declare Carlos in default? 2.5%
- No, I will not grant Tina’s motion to declare Carlos in default. Considering that
there was no proper service of summons, the reglementary period to file a
responsive pleading was not tolled. Carlos was not duty bound to submit an
Answer. Moreover, Carlos submitted a verified answer. It is better to decide a
case on the merits than on sheer technicality.
Effect of an order of default, Effect of a partial default
Being declared in default does not constitute a waiver of all rights. However, the
following right is considered waived: (2012 BAR) file a motion for new trial
Q: (1999 Bar Question) What is the effect of an Order of Default? (2%) x x x

- The effect of an Order of Default is that the court may proceed to render
judgment granting the claimant such relief as his pleading may warrant unless
the court in its discretion requires the claimant to submit evidence (Id.) The party
in default cannot take part in the trial but shall be entitled to notice of subsequent
proceedings.
Relief from an order of default, Extent of relief
A defendant declared in default may, after judgment but before finality, file a: (2012
BAR) Motion for Reconsideration;
Q: (1999 Bar Question) For failure to seasonably file his Answer despite due notice,
A was declared in default in a case instituted against him by B. The following day, A’s
mistress who is working as a clerk in the sala of the Judge before whom his case is
pending, informed him of the declaration of default. On the same day, A presented a
motion under oath to set aside the order of default on the ground that his failure to
answer was due to fraud and he has a meritorious defense. Thereafter, he went
abroad. After his return a week later, with the case still undecided, he received the
order declaring him in default. The motion to set aside default was opposed by B on
the ground that it was filed before A received notice of his having been declared in
default, citing the rule that the motion to set aside may be made at anytime after notice
but before judgment. Resolve the Motion. (2%)
- Assuming that the motion to set aside complies with the other requirements of
the rule, it should be granted although such a motion may be made after notice
but before judgment (Sec. 3[B] of Rule 9), with more reason may it be filed after
discovery even before receipt of the order of default.
Q: What are the available remedies of a party declared in default:

Before the rendition of Judgment; (1%]
After judgment but before its finality; and |2%)
After finality of judgment? [2%] (1998 Bar Question)
- The available remedies of a party declared in default are as follows: Before the
rendition of judgment (a) he may file a motion under oath to set aside the order
of default on the grounds of fraud, accident, mistake or excusable negligence
and that he has a meritorious defense (Sec. 3[b), Rule 9, 1997 Rules of Civil
Procedure); and if it is denied, he may move to reconsider, and if
reconsideration is denied, he may file the special civil action of certiorari for
grave abuse of discretion tantamount to lack or excess of the lower court's
jurisdiction. (Sec. 1, Rule 65, Rules of Court) or (b) he may file a petition for
certiorari If he has been illegally declared in default, e.g. during the pendency of
his motion to dismiss or before the expiration of the time to answer. (Matute us.
Court of Appeals, 26 SCRA768; Acosta-Ofalia vs. Sundiam, 85 SCRA 412.)
- After judgment but before its finality, he may file a motion for new trial on the
grounds of fraud, accident, mistake, excusable negligence, or a motion for
reconsideration on the ground of excessive damages, insufficient evidence or
the decision or final order being contrary to law (See. 2, Rule 37, 1997 Rules of
Civil Procedure); and thereafter. If the motion is denied, appeal la available
under Rules 40 or 41, whichever is applicable.
- After finality of the Judgment, there are three ways to assail the Judgment,
which are: (a) a petition for relief under Rule 38 on the grounds of fraud,
accident, mistake or excusable negligence; (b) annulment of Judgment under
Rule 47 for extrinsic fraud or lack of Jurisdiction; or (c) certiorari if the Judgment
Is void on Its face or by the judicial record. (Balangcad us. Justices qf the Court
of Appeals, G.R. No. 83888, February 12, 1992, 206 SCRA 171 and other
cases).
Q: Jojie filed with the Regional Trial Court of Laguna a complaint for damages against
Joe. During the pre-trial, Jojie and her counsel (sic) failed to appear despite notice to
both of them. Upon oral motion of Jojie, Joe was declared as in default and Jojie was
allowed to present her evidence ex parte. Thereafter, the court rendered its Decision
in favor of Jojie. Joe hired Jose as his counsel. What are the remedies available to
him? Explain. 5% (2006 Bar Question)
- Under the present rule, there can be no judgment by default by mere failure of
the defendant to appear in the pre-trial. The only consequence of such failure
to appear is that the plaintiff can present his evidence ex parte and the court
may render judgment on the basis thereof (Sec. 5, Rule 18 of the 1997 Revised
Rules of Civil Procedure). The following are the remedies available to Joe:
motion for reconsideration; motion for new trial; appeal; petition for relief from a
judgment of default; annulment of judgment under Rule 47; and certiorari under
Rule. 65.
Q: Mario was declared in default but before judgment was rendered, he decided to
file a motion to set aside the order of default. What should Mario state in his motion in
order to Justify the setting aside of the order of default? (3%)
In what form should such motion be? (2%) (2001 Bar Question)
- In order to justify the setting aside of the order of default, Mario should state in
his motion that his failure to answer was due to fraud, accident, mistake or
excusable negligence and that he has a meritorious defense. [Sec. 3(b) of
Rule9,1997 Rules of Civil Procedure).
- The motion should be under oath. (Id.)
Actions where default is not allowed
Q: Defendant was declared in default by the Regional Trial Court (KTC). Plaintiff was
allowed to present evidence in support of his complaint. Photocopies of official
receipts and original copies of affidavits were presented in court, identified by plain tiff
on the witness stand and marked as exhibits. Said documents were offered by plaintiff
and admitted in evidence by the court on the basis of which the RTC rendered
judgment in favor of the plaintiff, pursuant to the relief prayed for. Upon receipt of the
judgment, defendant appeals to the Court of Appeals claiming that the judgment is
not valid because the RTC based its judgment on mere photocopies and affidavits of
persons not presented in court. Is the claim of defendant valid? Explain. (3%)
Will your answer be the same if the photocopies of official receipts and photocopies
of affidavits were attached to the position paper submitted by plaintiff in an action for
unlawful detainer filed with the Municipal Trial Court on which basis the court rendered
Judgment in favor of plaintiff? Explain. (2%) (2000 Bar Question)
- The claim of defendant is not valid because under the 1997 Rules, reception of
evidence is not required. After a defendant is declared in default, the court shall
proceed to render Judgment granting the claimant such relief as his pleading
may warrant, unless the court in its discretion requires the claimant to submit
evidence, which may be delegated to the clerk of court. (Sec. 3, Rule 9, 1997
Rules of Civil Procedure)
- The claim of defendant is valid, because although summary procedure requires
merely the submission of position papers, the evidence submitted with the
position paper must be admissible in evidence. (Sec. 9 of the Revised Rule on
Summary Procedure). Photocopies of official receipts and affidavits are not
admissible without proof of loss of the originals. (Sec. 3 of Rule 130)
Q: At a pre-trial hearing in the Regional Trial Court of which the plaintiff and the
defendant, as well as their respective attorneys of record were duly notified, only
plaintiff’s attorney appeared but without the requisite power of attorney authorizing
him to fully and effectively represent plaintiff at the pre-trial hearing. Because of the
absence of the defendant and his counsel, plaintiff’s attorney moved in open court to
have the defendant declared as in default. Under the circumstances, what should the
court do? Discuss fully. (1992 Bar Question)
- The court should deny the motion to have the defendant declared as in default
and dismiss the action on the ground that only the plaintiff’s attorney appeared
but without the requisite power of attorney to fully and effectively represent
plaintiff at the pre-trial hearing. [Home Insurance Company vs. U.S. Lines Co.,
21 SCRA 865)
Filing and service of pleadings
X filed a complaint with the RTC through ABC, a private letter forwarding agency. The
date of filing of the complaint shall be: (2012 BAR) the date of receipt by the Clerk of
Court.
Modes of service (Personal service, Service by mail, Substituted service)
Atty. X fails to serve personally a copy of his motion to Atty. Y because the office and
residence of Atty. Y and the latter's client changed and no forwarding addresses were
given. Atty. X's remedy is to: (2012 BAR) Deliver copy of the motion to the clerk of
court with proof of failure to serve;
Q: “A” filed before the Regional Trial Court in Makati, Metro Manila, an action for
damages against “B” for a tort alledgedly committed by “B” while “B” was on a vacation
in the Philippines when he temporarily lived at the residence of his brother in Makati.
The summons was served on “BY brother. “B’s” lawyer filed a motion to dismiss on
behalf of “B” and asserted that “B” was not a resident of and could not be found in 'the
Philippines so that the court cannot acquire jurisdiction over his person. The motion
also alleged that anyway the action has prescribed the further asserted a claim for
litigation expenses. Assume that “B’s" lawyer had been authorized by “B” to represent
him. If you were the judge, will you dismiss the case on the ground of the court’s lack
of jurisdiction over the person of “B”? Explain. (1987 Bar Question)
- No. Although substituted service of summons on “B’s” brother was not valid
inasmuch as “B” was not a resident of the Philippines, the motion to dismiss
filed by “B’s” lawyer , constituted a voluntary appearance, inasmuch as it not
only questioned the jurisdiction of the court over his person, but also alleged
prescription and a claim for litigation expenses. (Note: The claim for litigation
expenses may properly be made In a counterclaim.)
Which of the following is NOT REGARDED as a sufficient proof of personal service

of pleadings? (2011 BAR) Registered mail receipt.
Amendment as a matter of right
Q: Arturo lent PI Million to this friend Robert on the condition that Robert execute a
promissory note for the loan and a real estate mortgage over his property located in
Tagaytay City. Robert complied. In his promissory note dated September 20, 2006,
Robert undertook to pay the loan within a year from its date at 12% per annum
interest. In June 2007, Arturo requested Robert to pay ahead of time but the latter
refused and insisted on the agreement. Arturo issued a demand letter and when
Robert did not comply, Arturo filed an action to foreclose the mortgage. Robert moved
to dismiss the complaint for lack of cause of action as the debt was not yet due. The
resolution of the motion to dismiss was delayed because of,the retirement of the
judge.
a) On October 1, 2007, pending resolution of the motion to dismiss, Arturo filed an

amended complaint alleging that Robert’s debt had in the meantime become due but
that Robert still refused to pay. Should the amended complaint be allowed considering
that no answer has been filed? (3%) (2008 Bar Question)
- a) No. Even though an amendment of the complaint before answer is a matter of
right, lack of a cause of action at the commencement of a suit is not cured by the
accrual of a cause of action subsequent thereto, such that an amendment setting up
the after- accrued cause of action is not allowed
Amendments by leave of court
Q: After an answer has been filed, can the plaintiff amend his complaint, with leave of
court, by changing entirely the nature of the action? (2003 Bar Question)
- Yes. the present rules allow amendments substantially altering the nature of the
cause of action. This should only be true, however, when the substantial change
or alteration in the cause of action or defense shall serve the higher interests of
substantial justice and prevent delay and equally promote the laudable objective
of the rules which is to secure a just, speedy and inexpensive disposition of
every action and proceeding.
Amendments to conform to or authorize presentation of evidence
With leave of court, a party may amend his pleading if: (2012 BAR) the amendment
is to conform to the evidence.
Q: In a complaint for a sum of money filed before the MM Regional Trial Court, plaintiff
did not mention or even just hint at any demand for payment made on defendant
before commencing suit. During the trial, plaintiff duly offered Exh. “A" in evidence for
the stated purpose of proving the making of extrajudicial demand on defendant to pay
P500.000, the subject of the suit. Exh. “A" was a letter of demand for defendant to
pay said sum of money within 10 days from receipt, addressed to and served on
defendant some two months before suit was begun. Without objection from defendant,
the court admitted Exh. “A" in evidence. Was the court’s admission of Exh. “A” in
evidence erroneous or not? Reason. (5%) (2004 Bar Question)
- The court’s admission of Exh. ‘‘A’’ in evidence is not erroneous. It was admitted
in evidence without objection on the part of the defendant. It should be treated
as if it had been raised in the pleadings. The complaint may be amended to
conform to the evidence, but if it is not so amended, it does not affect the result
of the trial on this issue. (Sec. 5 of Rule 10).
Q: During trial, plaintiff was able to present, without objection on the part of defendant
in an ejectment case, evidence showing that plaintiff served on defendant a written
demand to vacate the 'subject property before the commencement of the suit, a matter
not alleged or otherwise set forth in the pleadings on file. May the corresponding
pleading still be amended to conform to the evidence? Explain. (5%) (2004 Bar
Question)
- Yes. The corresponding pleading may still be amended to conform to the
evidence, because the written demand to vacate, made prior to the
commencement of the ejectment suit, was presented by the plaintiff in evidence
without objection on the part of the defendant. Even if the demand to vacate
was jurisdictional, still, the amendment proposed was to conform to the
evidence that was already in the record and not to confer jurisdiction on the
court, which is not allowed. Failure to amend, however, does not affect the result
of the trial on these issues. (Sec. 5 of Rule 10).
Q: An information was filed, in the proper court against Arturo charging him with theft
of 300 blocks of industrial aluminum worth P999.000.00 allegedly committed “on or
about the period from January 1986 to December 23,1991. Arturo filed a motion to
quash the information on the ground that it was grossly insufficient and fatally
defective since there is such a great gap in the inclusive period of the alleged
commission of the offense. He is, in effect, being deprived of a reasonable opportunity
to defend himself. In resolving the motion to quash, what basic and ancillary rulings
should the court make so that it can extend to the accused optimum and adequate
relief. Discuss fully. (1992 Bar Question)
- The court may grant the motion to quash on the ground that the allegation of
the time of commission of the offense is defective because the period from
January 1986 to December 23. 1991, or almost six years, is too indefinite to
give the accused an opportunity to prepare-his defense; or the court may order
the amendment of the information or the submission of a bill of particulars so as
to allege the actual date or at least as near to it as possible in order not to
surprise and substantially prejudice the accused.
Q: A complaint was filed by the counsel for Superior Sales (an entity without a distinct
juridical personality) against Mr. Garcia on a money claim for goods delivered. Mr.
Garcia did not file a motion to dismiss. Eventually, trial was held and his liability was
established through several invoices, each of which uniformly- showed on its face that
Mr. Tan is the proprietor of Superior Sales. After Superior Sales had rested its case.
Mr. Garcia filed a motion to dismiss on the ground that, since there is actually no
person properly suing as plaintiff, no relief can be granted by the court. On the other
hand, the counsel for Superior Sales filed a motion to amend the complaint to make
it conform to the evidence, that the real party plaintiff is Mr. Tan. The court denied
said motion on the ground that it was filed too late and instead, dismissed the case.
Did the court act correctly? Explain. (1992 Bar Question) \
- No, the court erred in denying the motion to amend the complaint and dismissing
the case. The mistake in the name of the plaintiff (which should have been Mr.
Tan instead of Superior Sales which had no juridical personality) was cured by
the presentation of evidence (without objection) that Mr. Tan is the proprietor of
Superior Sales. Hence the amendment of the complaint to conform to the
evidence was proper, and even if no amendment was made, it would not affect
the result of the trial on the issue of the real party in interest. (Sec. 5 of Rule 10)
Effect of amended pleading
Q: Upon termination of the pre-trial, the judge dictated the pretrial order in the
presence of the parties and their counsel, reciting what had transpired and defining
three (3) issues to be tried. If, immediately upon receipt of his copy of the pretrial
order, plaintiffs counsel should move for its amendment to include a fourth (4th) triable
issue which he allegedly inadvertently failed to mention when the judge dictated the
order. Should the motion to amend be granted? Reasons. (2%) (2009 Bar Question)
- Depending on the merit of the issue sought to be brought in by the amendment,
the motion to amend may be granted upon due hearing. It is a policy of the
Rules that parties should be afforded reasonable opportunity to bring about a
complete determination of the controversy between them, consistent with
substantial justice. With this end in view, the amendment before trial may be
granted to prevent manifest injustice. The matter is addressed to the sound and
judicious discretion of the trial court.
Suppose trial had already commenced and after the plaintiffs second witness had
testified, the defendant’s counsel moves for the amendment of the pre-trial order to
include a fifth (5th) triable issue vital to his client’s defense. Should the motion be
granted over the objection of plaintiffs counsel? Reasons. (3%) (2009 Bar Question)
- The motion may be denied since trial had already commenced and two
witnesses for the plaintiff had already testified. Courts are required to issue pre-
trial Order after the pre-trial conference has been terminated and before trial
begins, precisely because the reason for such Order is to define the course of
the action during the trial. Where trial had already commenced, more so the
adverse party had already presented witnesses
Q: Arturo lent PI Million to this friend Robert on the condition that Robert execute a
promissory note for the loan and a real estate mortgage over his property located in
Tagaytay City. Robert complied. In his promissory note dated September 20, 2006,
Robert undertook to pay the loan within a year from its date at 12% per annum
interest. In June 2007, Arturo requested Robert to pay ahead of time but the latter
refused and insisted on the agreement. Arturo issued a demand letter and when
Robert did not comply, Arturo filed an action to foreclose the mortgage. Robert moved
to dismiss the complaint for lack of cause of action as the debt was not yet due. The
resolution of the motion to dismiss was delayed because of,the retirement of the
judge. On October 1, 2007, pending resolution of the motion to dismiss, Arturo filed
an amended complaint alleging that Robert’s debt had in the meantime become due
but that Robert still refused to pay. Should the amended complaint be allowed
considering that no answer has been filed? (3%) (2008 Bar Question)
- No. Even though an amendment of the complaint before answer is a matter of
right, lack of a cause of action at the commencement of a suit is not cured by
the accrual of a cause of action subsequent thereto, such that an amendment
setting up the after-accrued cause of action is not allowed (Swagman Hotels
And Travel, Inc. v. Court of Appeals, 455 SCRA 175 [2005]).
Would your answer be different had Arturo filed instead a supplemental complaint
stating that the debt became due after the filing of the original complaint (2%) (2008
Bar Question)
- No, because a complaint whose cause of action has not accrued yet when filed,
does not gain any standing in court such that no amendment, whether by
amended or supplemental pleading, can cure the deficiency. The subsequent
cause of action that arose may only be subject of a different suit but cannot be
pleaded as a supplement to the complaint where no cause of action exists.
Simply put, no amended or supplemental complaint is allowed
Q: On May 12. 2005, the plaintiff filed a complaint in the Regional Triad Court of
Quezon City for the collection of P250,000.00. The defendant filed a motion to dismiss
the complaint on the ground that the court had no jurisdiction over the action since
the claimed amount of P250.000.00 is within the exclusive jurisdiction of the
Metropolitan Trial Court of Quezon City. Before the court could resolve the motion,
the plaintiff, without leave of court, amended his complaint to allege a new cause of
action consisting in the inclusion of an additional amount of P200,000.00, thereby
increasing his total claim to P450,000.00. The plaintiff thereafter filed his opposition
to the motion to dismiss, claiming that the Regional Trial Court had jurisdiction over
his action. Rule on the motion of the defendant with reasons. (4%) (2005 Bar
Question)
- The motion to dismiss should be denied. A plaintiff is entitled as a matter of right
to amend the complaint before a responsive pleading is served, without leave
of court, even if there is a pending motion to dismiss. While a complaint cannot
be amended to confer jurisdiction on a court where there was none the rule
applies where a responsive pleading has already been filed because in such a
case, amendment should be by leave of court under Section 3 Rule 10. If the
court is without jurisdiction, it has no jurisdiction to grant leave of court. A motion
to dismiss is not a responsive pleading, therefore, amendment is a matter of
right
Q: X, an illegitimate child of Y, celebrated her 18th birthday on May 2, 1996. A month

before her birthday. Y died. The legitimate family of Y refused to recognize X as an
illegitimate child of Y. After countless efforts to convince them, X filed on April 25,
2000 an action for recognition against Z, wife, of Y. After Z filed her answer on August
14, 2000, X filed a motion for leave to file an amended complaint and a motion to
admit the said amended complaint impleading the three (3) legitimate children of Y.
The trial court admitted the amended complaint on August 22, 2000. What is the effect
of the admission of the amended complaint? Has the action of X prescribed? Explain.
- No. The action filed on April 25, 2000 is still within the four-year prescriptive
period which started to run on May 2, 1996. The amended complaint impleading
the three legitimate children, though admitted on August 22, 2000 beyond the
four-year prescriptive period, retroacts to the date of filing of the original
complaint. Amendments impleading new defendants retroact to the date of the
filing of the complaint because they do not constitute a new cause of action.
(Verzosa u. Court of Appeals, 299 SCRA 100 (1938]).
Q: Michelle sued Juliet for reinvindication for the recovery of land. After the hearing
but previous to the rendition-of judgment, Michelle amended her complaint making
the prin-cipal action one for rescission of contract. Juliet objected. If you were the
judge, would you allow the amendment? (1994 Bar Question) Answer:
- No. I would not allow the amendment because the amendment of the complaint
from recovery of land to one for rescission of contract is a substantial change in
the cause of action which may not be done alter the trial and previous to the
rendition of judgment.
Summons
Nature and purpose of summons in relation to actions in personam, in rem
and quasi in rem
Summons was served on "MCM Theater," a business entity with no juridical

personality, through its office manager at its place of business. Did the court acquire
jurisdiction over MCM Theater’s owners? (2011 BAR) Yes, an unregistered entity like
MCM Theater may be served with summons through its office manager.
Q: Summons was issued by the MM Regional Trial Court and actually received on
time by defendant from his wife at their residence. The sheriff earlier that day had
delivered the summons to her at said residence because defendant was not home at
the time. The sheriff’s return or proof of service filed with the court in sum states that
the summons, with attached copy of the complaint, was served on defendant at his
residence thru his wife, a person of suitable age and discretion then residing therein.
Defendant moved to dismiss on the ground that the court had no jurisdiction over his
person as there was no valid service of summons on him because the sheriffs return
or proof of service does not show that the sheriff first made a genuine attempt to serve
the summons on defendant personally before serving it thru his wife. Is the motion to
dismiss meritorious? What is the purpose of summons and by whom may it be
served? Explain. (5%) (2004 Bar Question)
- The motion to dismiss is not meritorious because the defendant actually
received the summons on time from his wife. Service on the wife was sufficient
It is the duty of the court to look into the sufficiency of the service. The sheriffs
negligence in not stating in his return that he first made a genuine effort to serve
the summons on the defendant, should not prejudice the plaintiff.
- The purpose of the summons is to inform the defendant of the complaint filed
against him and to enable the court to acquire jurisdiction over his person. It
may served by the sheriff or his deputy or any person authorized by the court.
Proof of service of summons shall be through the following, except : (2012 BAR)
written admission of the party served.
Voluntary appearance
Q: While the trial was ongoing, the lawyer of Mario Reyes discovered that there was
improper service of summons, the summons having been sent by registered mail. He
filed a motion to dismiss on the ground that the court had not acquired jurisdiction
over the person of Mario Reyes. Should the said motion be granted? Explain your
answer. (1990 Bar Question) Answer:
- No, because by filing his answer and going to trial without previous objection to
the lack of jurisdiction over his person, Mario Reyes is deemed to have waived
the defect of improper service of summons. (Rule 14)
Q: (1999 Bar Question) What is the effect of absence of summons on the judgment
rendered in the case? (2%)
When additional defendant is impleaded in the action, is it necessary that summons
be served upon him? Explain; (2%)
Is summons required to be served upon a defendant who was substituted for the
deceased? Explain. (2%)
A sued XX Corporation (XXC), a corporation organized under Philippine laws, for
specific performance when the latter failed to deliver T-shirts to the former as
stipulated in their contract of sale. Summons was served on the corporation’s cashier
and director. Would you consider service of summons on either officer sufficient?
Explain. (2%)
SUGGESTED ANSWER:
The effect of the absence of summons on a judgment would make the judgment null
and void because the court would not have jurisdiction over the person of the
defendant, but if the defendant voluntarily appeared before the court, his appearance
is equivalent to the service of summons. (Sec. 20, Rule 14, 1997 Rules)
Yes. Summons must be served on an additional defendant impleaded in the action

so that the court can acquire jurisdiction over him, unless he makes a voluntary
appearance.
No. A defendant who was substituted for the deceased need not be served with
summons because it is the court which orders him as the legal representative of the
deceased to appear and substitute the deceased. (Sec. 16 of Rule 3.)
Summons on a domestic corporation through its cashier and director are not valid
under the present rules. (Sec. 11, Rule 14, Rules of Court.) They have been removed
from those who can be served with summons for a domestic corporation. Cashier was
substituted by treasurer. (Id.)
Personal service
Q: Tina Guerrero filed with the Regional Trial Court of Biñan, Laguna, a complaint for
(2006 Bar Question)
Was the summons validly served on Carlos? 2.5%
- No, the summons was not validly served on Carlos. As a general rule, summons
must be served on the defendant in person. Substituted service may be resorted
to only when the defendant cannot be served personally within a reasonable
time and for a justifiable reason. The return must show impossibility of service
and efforts of the Sheriff to effect personal service.
Substituted service
Q: Alfie Bravo filed with the Regional Trial Court of Caloocan, a complaint for a sum
of money against Charlie Delta. The claim is for Php1.5Million. The complaint alleges
that Charlie borrowed the amount from Alfie and duly executed a promissory note as
evidence of the loan. Charlie’s office secretary, Esther, received the summons at
Charlie’s office. Charlie failed to file an answer within the required period, and Alfie
moved to declare Charlie in default and to be allowed to present evidence ex parte.
Ten days later, Charlie filed his verified answer, raising the defense of full payment
with interest. Was there proper and valid service of summons on Charlie? (2013 BAR)
- NO. There is no showing that earnest efforts were exerted to personally serve
the summons on the defendant before substituted service was resoted to; the
service of sumoons was improper.
- In an action strictly in personam like a complaint for sum of money, personal
service on the defendant is the preferred mode of service, that is, by handing a
copy of the summons to the defendant in person. If defendant, for excusable
reasons, cannot be served with summons within a reasonable period, then
substituted service can be resorted to (Manotoc v. Court of Appeals, G.R. No.
130974, August 16, 2006). Otherwise stated, it is only when the defendant
cannot be served personally within a reasonable time that a substituted service
may be made. Impossibility of prompt service should be shown by stating the
efforts made to find the defendant personally and the fact that such efforts failed.
This statement should be made in the proof of service (Galura v. Math-Agro
Corporation, G.R. No. 167230, August 14, 2009).
- Since there was no prior attempt to serve the summons in person, the
substituted service to Charlie’s secretary is invalid.
If declared in default, what can Charlie do to obtain relief? (2013 BAR)

- If Charlie is declared in default, he has the following remedies to wit:
he may, at any time after discovery of the default but before judgment, file a motion,
under oath, to set aside the order of default on the ground that his failure to answer
was due to fraud, accident, mistake or excusable neglect, and that he has a
meritorious defense; if judgment has already been rendered when he discovered the
default, but before the same has become final and executory, he may file a motion for
new trial under Section 1(a) of Rule 37; if he discovered the default after the judgment
has become final and executory, he may file a petition for relief under Section 2 of
Rule 38; and he may also appeal from the judgment rendered against him as contrary
to the evidence or to the law, even if no petition to set aside the order of default has
been presented by him.
Q: Summons was issued by the MM Regional Trial Court and actually received on
time by defendant from his wife at their residence. The sheriff earlier that day had
delivered the summons to her at said residence because defendant was not home at
the time. The sheriff’s return or proof of service filed with the court in sum states that
the summons, with attached copy of the complaint, was served on defendant at his
residence thru his wife, a person of suitable age and discretion then residing therein.
Defendant moved to dismiss on the ground that the court had no jurisdiction over his
person as there was no valid service of summons on him because the sheriffs return
or proof of service does not show that the sheriff first made a genuine attempt to serve
the summons on defendant personally before serving it thru his wife. Is the motion to
dismiss meritorious? What is the purpose of summons and by whom may it be
served? Explain. (5%) (2004 Bar Question)
- The motion to dismiss is not meritorious because the defendant actually received
the summons on time from his wife. Service on the wife was sufficient. (Boticano v.
Chu, 148 SCRA 541 [1987D. It is the duty of the court to look into the sufficiency of
the service. The sheriffs negligence in not stating in his return that he first made a
genuine effort to serve the summons on the defendant, should not prejudice the
plaintiff. The purpose of the summons is to inform the defendant of the complaint filed
against him and to enable the court to acquire jurisdiction over his person. It may
served by the sheriff or his deputy or any person authorized by the court.
Extra-territorial service, when allowed
Q: In Its complaint before the RTC, Singer (Phil.). Inc., alleged that it is a corporation
organized and existing under Philippine laws: that another corporation, with the
corporate name Singer, Inc. and organized under the law of the United States, had
incurred obligations to several foreign creditors whom it refuses to pay; that although
Singer (Phil.) Me. is a corporation separate and distinct from Singer, Inc. and that
Singer (Phil,). Inc. had no participation or liability whatsoever regarding the
transactions between Singer, Inc. and the creditors, said creditors, have been
demanding from Singer (Phil.). Inc. the payment of the obligations to them (creditors
of Singer, Inc.). Singer (Phil.). Inc. therefore, prayed for Injunctive relief against the
creditors (whom it impleaded as the defendants in the action) by way of enjoining the
latter from making further demands on it for payment of the obligations of Singer. Inc.
to them (creditors.) The defendants are non-residents and without business
addresses in the Philippines but in the U.S. Consequently, Singer (Phil.), Inc. asked
for leave of court to effect extraterritorial service of summons pursuant to Sec. 17.
Rule 14 of the Rules of Court. The trial court granted the motion. The defendants filed
special appearances and questioned the jurisdiction of the court over their persons.
They contended that the court cannot acquire jurisdiction over their persons because
the action does not fall under any oi the situations authorizing extraterritorial service
or summons. Is extraterritorial service of summons proper? Why? (1993 Bar
Question) Answer:
- No because it is only when the action affects the personal status of the plaintiff, or
any property in the Philippines in which defendants have or claim an interest, or which
the plaintiff has attached, that extraterritorial service of summons is proper. (Sec. 17
of Rule 14) In this case, the action is purely an action for injunction, which is a personal
action as well as an action in personam and not an action in rem or quasi in rem.
Hence, personal or substituted service of summons is necessary in order to confer
jurisdiction on the court Extraterritorial service of summons on defendants will not
confer on the court jurisdiction or power to compel them to obey its orders. [Kawasaki
Port Services Corporation vs. Amores, 199 SCRA 230)
Q: (1989 Bar Question) Are the rules on summons under Rule 14 of the Rules of Court
applicable equally in actions before the Regional Trial Courts as well as in the
Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts?
- Yes, because the procedure to be observed in the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Court is the same as that
observed in the Regional Trial Courts, and Rule 5 which conveyed procedure in
inferior courts including summons, was repealed. (Sec. 8 of Interim Rules).
When is extra-territorial service of summons proper?

- Extraterritorial service of summons, is proper when the defendant does not
reside and is not found in the Philippines and the action affects the personal
status of the plaintiff or relates to, or the subject of which is, property within the
Philippines, in which the defendant has or claims a lien or interest, actual or
contingent, or in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the property of the
defendant has been attached within the Philippines. (Sec. 17 of Rule 14). It is
also proper when the defendant ordinarily resides within the Philippines, but is
temporarily out of it. (Sec. 18 of Rule 14)
Summons may be served by mail, (2009 Bar Question) FALSE. Rule 14 of the Rules
of Court, on Summons, provide only for serving Summons (a) to the defendant in
person; or (b) if this is not possible within a reasonable time, then by substituted
service in accordance with Sec. 7 thereof; or (c) any of the foregoing two ways is not
possible, then with leave of court, by publication in accordance with same Rule.
Motions
Motions versus pleadings
Q: True or False. If the answer is false, explain your answer briefly.

A motion is a pleading. (2%) (2007 Bar Question) FALSE. A motion is not a pleading
but a mere application for relief other than by a pleading
Notice of hearing and hearing of motions

The following motions require a notice of hearing served on the opposite party, except:
(2012 BAR) Motion to Set Case for Pre-trial;
Q: The Regional Trial Court rendered judgment against ST, copy of which was
received by his counsel on February 28, 2000. On March 10, 2000, ST, through
counsel, filed a motion for reconsideration of the decision with notice to the Clerk of
Court submitting the motion for the consideration of the court. On March 15, 2000,
realizing that the Motion lacked a notice of hearing, ST*s counsel filed a supplemental
pleading. Was the Motion for Reconsideration filed within the reglementary period?
Explain. (5%) (2000 Bar Question)
- Yes, because the last day for filing a motion for reconsideration was March 15
if February had 28 days or March 16 if February had 29 days. Although the
original motion for reconsideration was defective because it lacked a notice of
hearing, the defect was cured on time by its filing on March 15 of a supplemental
pleading, provided the motion was set for hearing and served on the adverse
party at least three (3) days before the date of hearing. (Sec. 4, Rule 15. 199.7
Rules of Civil Procedure).
d. Omnibus Motion Rule

The defendant in an action for sum of money filed a motion to dismiss the complaint
on the ground of improper venue. After hearing, the court denied the motion. In his
answer, the defendant claimed prescription of action as affirmative defense, citing the
date alleged in the complaint when the cause of action accrued. May the court, after
hearing, dismiss the action on ground of prescription? (2011 BAR) Yes, because
prescription is an exception to the rule on Omnibus Motion.
Q: Charisse, alleging that she was a resident of Lapu-Lapu City, filed a complaint for
damages against Atlanta Bank before RTC of Lapu-Lapu City, following the dishonor
of a check she drew in favor of Shirley against her current account which she
maintained in the bank’s local branch. The bank filed a Motion to Dismiss the
complaint on the ground that it failed to state a cause of action, but it was denied. It
thus filed an Answer. (2010 Bar Question)
In the course of the trial, Charisse admitted that she was a US citizen residing in Los
Angeles, California and that she was temporarily billeted at the Pescado Hotel in
Lapu-Lapu City, drawing the bank to file another motion to dismiss, this time on the
ground of improper venue, since Charisse is not a resident of Lapu- Lapu City.
Charisse opposed the motion citing the omnibus motion rule.” Rule on the motion.
(3%)
- The bank’s second motion to dismiss which is grounded on improper venue of
an action is deemed waived by the bank’s filing an earlier motion to dismiss
without raising improper venue as an issue, and more so when the bank filed
an Answer without raising improper venue as an issue after its first motion to
dismiss was denied.
- Under the “omnibus motion rule” (Rule 15, Sec. 8, Rules of Court) which
governs the bank’s motion to dismiss, such motion should include all objections
then available; otherwise, all objections not so included shall be deemed
waived.
- Although the improper venue became known only in the course of the trial, the
same should not be allowed to obstruct or disturb the proceedings since venue
of civil actions is defined for the convenience of the parties, may jurisdictional.
Suppose Charisse did not raise the "omnibus motion rule, can the judge proceed to
resolve the motion to dismiss? Explain. (3%)
- Yes, the judge can proceed to resolve the motion to dismiss, because the
ground raised therefor became known to the movant only during the trial, such
that it was only. Then that the objection became available to him.
Suppose the judge correctly denied the second motion to dismiss and rendered
judgment in favor of Charisse, ordering the bank to pay her Pl00, 000 in damages
plus legal interest. The judgment became final and executory in 2008. To date,
Charisse has not moved to execute the judgment. The bank is concerned that its
liability will increase with the delay because of the interest on the judgment award. As
counsel of the bank, what move should you take? (3%)
- As counsel of the bank, I shall recommend to the bark as judgment obligor, to
make a tender of payment to the judgment oblige and thereafter make a
consignation of the amount due by filing an application therefor placing the same
at the disposal of the court which rendered the judgment (Arts. 1256 and 1258,
Civil Code).
Motions for Bill of Particulars

Purpose and when applied for
(a) When can a bill of particulars be availed of?
- (a) Before responding to a pleading, a party may move for a bill of particulars of any
matter which is not averred with sufficient definiteness or particularity to enable him
properly to prepare his responsive pleading. If the pleading is a reply, the motion must
be filed within ten (10) days from service thereof. (Sec. 1 of Rule 12)
Actions of the court

X filed a motion for Bill of Particulars, after being served with summons and a copy of
the complaint However, X's motion did not contain a notice of hearing. The court may
therefore: (2012 BAR) motu proprio dismiss the motion for not complying with Rule
15.
Q; Within the period for filing a responsive pleading, the defendant filed a motion for
bill of particulars that he set for hearing on a certain date. However, the defendant
was surprised to find on the date set for hearing that the trial court had already denied
the motion on the day of its filing, stating that the allegations of the complaint were
sufficiently made. Did the judge gravely abuse his discretion in acting on the motion
without waiting for the hearing set for the motion? (2008 Bar Question)
- No, the judge did not gravely abuse his discretion when he denied the motion
for bill of particulars without waiting for the hearing set in the motion. Section 2,
Rule 12 of the Rules of Court authorizes the court to either deny or grant said
motion outright upon the clerk of court bringing such motion to the attention of
the court. The motion may lack merit.
c. Compliance with the order and effect of noncompliance Q: (2003 Bar Question)
What is the effect of non-compliance with the order of a bill of particulars?
- If the order is not complied with, the court may order the striking out of the
pleading or the portions thereof to which the order was directed or make such
other order as it deems just. (Sec. 4 of Rule 12)
Q: If the judge grants the motion and orders the plaintiff to file and serve the bill of
particulars, can the trial judge dismiss the case if the plaintiff does not comply with the
order? (3%) (2008 Bar Question)
- Yes, the trial judge can dismiss the case if the plaintiff failed to comply with the
court’s order to file and serve the needed bill of particulars. Section 4, Rule 12
of the Rules of Court authorizes the court to order the striking out of the pleading
affected, hence the dismissal of the complaint. To the same end is the provision
of Section 3, Rule 17 of the Rules when plaintiff fails to comply for no justifiable
cause with any order of the court or with the Rules.
Motion to dismiss
Grounds
A court can motu proprio dismiss a case on the following grounds, except : (2012
BAR) lack of jurisdiction over the parties;
Q: Co Batong, a Taipan, filed a civil action for damages with the Regional trial Court
(RTC) of Parañaque City against Jose Penduko, a news reporter of the Philippines
Times, a newspaper of general circulation printed and published in Parañaque City.
The complaint alleged, among others, that Jose Penduko wrote malicious and
defamatory imputations against Co Batong; that Co Batong’s business address is in
Makati City; and that the libelous article was first printed and published in Parañaque
City. The complaint prayed that Jose Penduko be held liable to pay P200,000.00 as
moral damages; P150,000.00, as exemplary damages; and P50,000.00, as attorney’s
fees. Jose Penduko filed a Motion to Dismiss on the following grounds:
The RTC is without jurisdiction because under the Totality Rule, the claim for
damages in the amount of P350,000.00 fall within the exclusive original jurisdiction of
the Metropolitan Trial Court (MeTC) of Parañaque City.
The venue is improperly laid because what the complaint alleged is Co Batong’s
business address and not his residence address.
Are the grounds invoked in the Motion to Dismiss proper? (2014)
The RTC is without jurisdiction because under the Totality Rule, the claim for
damages in the amount of P350,000.00 fall within the exclusive original jurisdiction of
the Metropolitan Trial Court (MeTC) of Parañaque City.
Answer:
NO. The gorund invoked in the Motion to Dismiss is not proper. Under Article 360 of
the RPC, the civil action for damages in cases of written defamation may be filed
separately in the Regional Trial Court where the libelous article was printed and first
published, regardless of the amount of damages being claimed.
The venue is improperly laid because what the complaint alleged is Co Batong’s
business address and not his residence address.
A: The venue is properly laid. Under the law, the venue for the civil action involving
written defamation shall be the place where the defamatory article was printed and
first published. (Art. 360, RPC). Since the defamatory article was printed and first
published in Parañaque City, the venue of the action is properly laid. Hence, the
dismissal of the Complaint will only be proper if the Complaint failed to allege the
residence of the complainant or the place where the libelous article was printed and
first published (Nocum v. Tan, G.R. No. 145022, September 23, 2005).
Which of the following grounds for dismissal invoked by the court will NOT
PRECLUDE the plaintiff from refiling his action? (2011 BAR) Lack of jurisdiction over
the subject matter.
A complaint may be refiled if dismissed on which of the following grounds? (2012

BAR) Lack of jurisdiction.
Resolution of motion
After a hearing on a Motion to Dismiss, the court may either dismiss the case or deny
the same or: (2012 BAR) order amendment of the pleading
Q: Plaintiff filed a complaint for a sum of money against defendant with the MeTC-
Makati, the total amount of the demand, exclusive of interest, damages of whatever
kind, attorney’s fees, litigation expenses, and costs, being PI .000,000. In due time,
defendant filed a motion to dismiss the complaint on the ground of the MeTC’s lack of
jurisdiction over the subject matter. After due hearing, the MeTC 11) ruled that the
court indeed lacked jurisdiction over the subject matter of the complaint; and (2)
ordered that the case therefore should be forwarded to the proper Regional Trial Court
immediately.
Was the court's ruling concerning jurisdiction correct? Was the court’s order to
forward the case proper? Explain briefly. (5%)(2004 Bar Question)
- Yes. The MeTC did not have jurisdiction over the case because the total amount
of the demand exclusive of interest, damages of whatever kind, attorney's fees,
litigation expenses, and costs, was PI M. Its jurisdictional amount at this time
should not exceed P400,000.00
- The court's order to forward the case to the RTC is not proper. It should merely
dismiss the complaint. Under Sec. 3 of Rule 16, the court may dismiss the action
or claim, deny the motion or order the amendment of the pleading but not to
forward the case to another court.
Q: (1999 Bar Question) Is summons required to be served upon a defendant who
was substituted for the deceased? Explain. (2%)
- No. A defendant who was substituted for the deceased need not be served with
summons because it is the court which orders him as the legal representative
of the deceased to appear and substitute the deceased. (Sec. 16 of Rule 3.)
Q: Plaintiff filed a complaint for damages against defendant with the court. Defendant
moved to dismiss the complaint on the ground that it states no cause of action. The
court, after hearing, issued an order deferring the resolution of the motion to dismiss
until the trial since the ground therefore does not appear to be indubitable. Do you
agree with the ruling of the court? Explain. (1996 Bar Question)
- No. because whether or not the complaint states a cause of action is clear from
the allegations of the complaint and deferring the resolution of the motion to
dismiss because the ground therefore is not indubitable is not proper.
Q: Mr. Avenger filed with Regional Trial Court (RTC) a complaint against Ms. Bright
for annulment of deed of sale and other documents. Ms. Bright filed a motion to
dismiss the complaint on the ground of lack of cause of action. Mr. Avenger filed an
opposition to the motion to dismiss. State and discuss the appropriate remedy/
remedies under each of the following situations: (2014) If the RTC grants Ms. Bright’s
motion to dismiss and dismisses the complaint on the ground of lack of cause of
action, what will be the remedy/ remedies of Mr. Avenger?
- Mr. Avenger can choose any of the following remedies:
Mr. Avenger may file a Motion for Reconsideration. If denied, he could file an appeal
to the Court of Appeals under Rule 41 since a dismissal based on lack of cause of
action (under Rule 33) is appealable.
Mr. Avenger may file a Motion for reconsideration. If the same is denied, he could file
a Petition for Certiorari under Rule 65 because a dismissal based on failure to state a
cause of action is considered without prejudice and therefore an interlocutory order
which cannot be a subject of an appeal under Rule 41.
Mr. Avenger may file a Motion for Reconsideration if the same is denied, he can simply
re-file the complaint because an Order granting a Motion to Dismiss based on failure
to state a cause of action is without prejudice to the filing of another Complaint
(Section 5, Rule 16).
Mr. Avenger may amend his Complaint, as a matter of right, since a Motion to Dismiss
is not a responsive pleading. (Irene R. Marcos-Araneta v. Court of Appeals, G.R. No.
154096, August 22, 2008).
If the RTC denies Ms. Bright’s motion to dismiss, what will be her remedy/ remedies?
- Ms. Bright may file a Motion for Reconsideration. If the same is denied, she
could file a special civil action for certiorari under Rule 65. An Order denying a
Motion to Dismiss is interlocutory because it does not finally dispose of the case,
and, in effect, directs the case to proceed until final adjudication by the court.
Hence, a special civil action on certiorari is the appropriate remedy.
Ms. Bright may file an Answer within the balance of the period from the filing of his
Motion to Dismiss but not less than five (5) days, and raise affirmative defenses
therein. (Section 4 and 6, Rule 16)
If the RTC denies Ms. Bright’s motion to dismiss and, further proceedings, including
trial on the merits, are conducted until the RTC renders a decision in favor of Mr.
Avenger, what will be the remedy/ remedies of Ms. Bright?
- Ms. Bright may avail of the following remedies before the finality of the decision:
A motion for reconsideration
A motion for new trial
After the finality of the Decision, Ms. Bright can avail of the following:
Petition for relief (Rule 38);
Annulment of Judgment (Rule 47); and
Petition for Certiorari (Rule 65).
Remedies of plaintiff when the complaint is dismissed
Q: Defendant Xanthe filed a Motion to Dismiss Yogi’s complaint before the Regional
Trial Court The court grants the Motion to Dismiss. Explain the remedies or procedure
to be resorted to or to be pursued by plaintiff to have the order of dismissal reversed
and corrected finally.
- The remedy is to appeal to the court of Appeals from the order of dismissal
within fifteen days from notice thereof by filing a notice of appeal with the
Regional Trial Court and serving a copy thereof on the adverse party. However,
if only a question of law is involved, the remedy is to file a petition for review on
certiorari with the Supreme Court within fifteen days from notice of the order or
the denial of his motion for reconsideration and serving a copy thereof on the
Regional Trial Court and on the adverse party.
Remedies of the defendant when the motion is denied
Q: Defendant Xanthe filed a Motion to Dismiss Yogi’s complaint before the Regional
Trial Court. The court denies the Motion to Dismiss. May Xanthe appeal the denial?
Reasons. How and on what ground or grounds may defendant Xanthe bring the denial
of his Motion to Dismiss to the appellate courts? Explain.
1) No because the order of denial is merely interlocutory, and only final judgments or
orders are subject to appeal.
2) Defendant X may bring the denial of his Motion to Dismiss to the appellate
(superior) courts by filing a petition for certiorari on the ground of lack or excess of
jurisdiction or grave abuse of discretion. (Newsweek vs. IAC, 142 SCRA 171)
When grounds pleaded as affirmative defenses Q: (1999 Bar Question) A, who is

engaged in tile installation business, was sued by EE Industries for breach of contract
for installing different marble tiles iri its offices as provided in their contract. Without
filing any motion to dismiss, A filed its Answer with Counterclaim theorizing that EE
Industries has no legal capacity to sue because it is not a duly registered corporation.
By way of counterclaim, A asked for moral and actual damages as her business
depleted as a result of the withdrawal and cancellation by her clients of their contracts
due to the filing of the case. The case was dismissed after the trial court found that
EE Industries is not a registered corporation and therefore has no legal capacity to
sue. However, it set a date for the reception of evidence on A’s counterclaim. EE
Industries opposed on the ground .that the counterclaim could no longer be
prosecuted, in view bf the dismissal of the main case. Is the stand of EE Industries
sustainable? Explain. (2%)
- No, because if no motion to dismiss has been filed, any of the grounds for
dismissal provided in the Rules may be pleaded as an affirmative defense in the
answer which may include a counterclaim. This is what A did by filing an Answer
alleging the lack of legal capacity of EE Industries to sue because it is not a duly
registered corporation with a counterclaim for damages. The dismissal of the
complaint on this ground is without prejudice to the prosecution of the
counterclaim in the same action because it is a compulsory counterclaim. (Sec.
6 of Rule 16.)
Q: Fe filed a suit for collection of P387,000 against Ramon in the RTC of Davao City.
Aside from alleging payment as a defense, Ramon in his answer set up counterclaims
for P100,000 as damages and P30,000 as attorney’s fees as a result of the baseless
filing of the complaint, as well as for P250,000 as the balance of the purchase price
of the 30 units of air conditioners he sold to Fe. Suppose Ramon’s counterclaim for
the unpaid balance is P310,000, what will happen to his counterclaims if the court,
dismisses the complaint after holding a preliminary hearing on Ramon’s affirmative
defenses? (3%) (2008 Bar Question)
- The dismissal of the complaint is without prejudice to the right of the defendant
(Ramon) to prosecute his counterclaim in the same or in a separate action [Sec.
6, Rule 16, last par.; Pingav. Heirs of Santiago, 494 SCRA 393 [2006]).
Under the same premise as paragraph (b) above, suppose that instead of alleging
payment as a defense in his answer, Ramon filed a motion to dismiss on that ground,
at the same time setting up his counterclaims, and the court grants his motion. What
will happen to his counterclaims? (3%)(2008 Bar Question)
- Since Ramon filed only a motion to dismiss, not an answer, the dismissal of the
complaint would also bring about the dismissal of his counterclaims but he can
file a separate action for his permissive counterclaims. The compulsory
counterclaims are deemed waived when he filed a motion to dismiss the
complaint instead of answering the same. (Financial Building Corporation v.
Forbes Park Association, Inc., 338 SCRA 346 2000]).
Dismissal of actions
X, the designated executor of a will, files a petition for probate of the same. X and his
counsel failed to appear without justifiable cause at the hearing on the presentation
of evidence and the court therefore dismissed, motu proprio, his petition for failure to
prosecute. The effect of the dismissal is: (2012 BAR) it is a dismissal with prejudice.
Dismissal upon notice by plaintiff; two-dismissal rule
A complaint may be dismissed by the plaintiff by filing a notice of dismissal: At anytime

before a motion of summary judgment is filed.
Q: Before any answer on motion for summary judgment could be filed by the
defendant, the plaintiff filed notice of dismissal of his complaint. The trial court simply
noted the dismissal. Is the case considered dismissed. (1989 Bar Question)
- Yes, because the rule merely requires the filing of a notice of dismissal and does
not require an order of the court dismissing the case. (Sec. 1 of Rule 17)
Q: X filed an action for reconveyance against Y. Y forthwith filed his answer and
served it on X. A week later, X filed a motion to withdraw the action since he could
not avail the services of counsel. The court dismissed the complaint based on failure
to prosecute. A month after, X instituted the very same action against
Y. Y moved to dismiss the case invoking res judicata. He alleged that dismissal of the
first case had the effect of an adjudication upon the merits since the court’s Order had
no condition that it was without prejudice. The court dismissed the subsequent case
on the ground of res judicata. Was the trial court correct? Explain. (1996 Bar Question
- No, because the dismissal of the complaint on motion of X is without prejudice
under Sec. 2 of Rule 17. The Court erred in dismissing the complaint for failure
to prosecute for an unreasonable length of time under Sec. 3 of Rule 17.
Q: Lawrence filed a complaint against Grace to collect a loan of P50,000. Later,

because of their intimate relationship in the past, Lawrence filed a notice of dismissal
of his complaint. Subsequently, the two had a serious misunderstanding so that
Lawrence again filed a complaint against Grace to collect another loan of P100,000.
Lawrence and Grace reconciled after which, the former withdraw his complaint before
the latter could file her answer or a motion for summary judgment. Was the dismissal
of the second complaint with or without prejudice? Explain. (1989 Bar Question)
- The dismissal of the second complaint is without prejudice because it is based
on another claim of P100,000.00. If the dismissal were based on the same claim
of P50,000.00 it would be with prejudice. (Id.)
Q: Lawrence filed a complaint against Grace to collect a loan of P50,000. Later,

because of their intimate relationship in the past, Lawrence filed a notice of dismissal
of his complaint. Subsequently, the two had a serious misunderstanding so that
Lawrence again filed a complaint against Grace to collect another loan of P100,000.
Lawrence and Grace reconciled after which, the former withdraw his complaint before
the latter could file her answer or a motion for summary judgment. Was the dismissal
of the second complaint with or without prejudice? Explain. (1989 Bar Question)
- The dismissal of the second complaint is without prejudice because it is based
on another claim of P100,000.00. If the dismissal were based on the same claim
of P50,000.00 it would be with prejudice. (Id.)
Dismissal upon motion by plaintiff; effect on existing counterclaim
Q: Antique dealer Mercedes borrowed P1, 000,000 from antique collector Benjamin.
Mercedes issued a postdated check in the same amount to Benjamin to cover the
debt. On the due date of the check, Benjamin deposited it but it was dishonored. As
despite demands, Mercedes failed to make good the check, Benjamin filed in January
2009 a complaint for collection of sum of money before the RTC of Davao. Mercedes
filed in February 2009 her Answer with Counterclaim, alleging that before the filing of
the case, she and Benjamin had entered into a dacion enpago agreement in which
her vintage P1, 000,000 Rolex watch which was taken by Benjamin for sale on
commission was applied to settle her indebtedness; and that she incurred expenses
in defending what she termed a "frivolous lawsuit.. She accordingly prayed for P50,
000 damages.
- Benjamin soon after moved for the dismissal of the case. The trial court
accordingly dismissed the complaint. And it also dismissed the Counterclaim.
Mercedes moved for a reconsideration of the dismissal of the Counterclaim. Pass

upon Mercedes' motion. (3%) (2010 Bar Question)
- Mercedes' Motion for Reconsideration is impressed with merit: the trial court
should not have dismissed her counter-claim despite the dismissal of the
Complaint.
- Since it was the plaintiff (Benjamin) who moved for the dismissal of his
Complaint, and at a time when the defendant (Mercedes) had already filed her
Answer thereto and with counterclaim, the .dismissal of the Complaint should
not carry with it the dismissal of the counterclaim without the conformity of the
defendant- counterclaimant. The Revised Rules of Court now provides in Rule
17, Sec. 2 there or that "[1]a counterclaim has been pleaded by a defendant
prior to the service upon him of the plaintiff's motion for dismlasa1, the dismissal
shall be limited to the complaint. The dismissal shall be without prejudice to the
right of the defendant to prosecute his counterclaim x x x.”
Pre-trial
Concept of pre-trial, Nature and purpose
Q: Is pre-trial mandatory in all trial courts? Explain. (1989 Bar Question)

- Pre-trial is mandatory in all trial courts in civil cases. (Sec. 1 of Rule 30).
However, in criminal cases, pre-trial may be held only when the accused and
his counsel agree. (Sec. 1 of Rule 118).
- In summary procedure, a preliminary conference is held in both civil and criminal
cases. (Sec. 6 and 13)
Notice of pre-trial
Q: Ulio filed a complaint in the Municipal Trial Court of Lanuza for the recovery of a
sum of money against Juan. The latter filed his answer to the complaint serving a
copy thereof on Ulio.
After the filing of the answer of Juan, whose duty is it to have the case set for pre-
trial? Why? (5%) (2001 Bar Question)
- After the filing of the answer of Juan, the plaintiff has the duty to promptly move
ex parte that the case be set for pre-trial. (Sec. 1, Rule 18, 1997 Rules of Civil
Procedure). The reason is that it is the plaintiff who knows when the last
pleading has been filed and it is the plaintiff who has the duty to prosecute.
Appearance of parties; effect of failure to appear
What is the consequence of the unjustified absence of the defendant at the pre- trial?
(2011 BAR) The trial court shall allow the plaintiff to present evidence ex-parte.
Q: Jose, Lito and Luis executed a promissory note in favor of Teresita Comparza
which reads: “For value received we promise jointly and severally to pay Teresita
Comparza the sum of P300.000.00 on or before 31 December 1994." All three signed
the note. Despite demands after due date no payment was made on the note
prompting Teresita to sue the three promissors. Summonses together with copies of
the complaint were served on all of them but only Lito answered. Upon Teresita’s
motion, Jose and Luis were declared in default. Against whom and upon what basis
should the court try the case considering that only Lito of the three defendants filed
an answer and a default order was issued against Jose and Luis? Discuss fully.
Considering that a defaulted defendant cannot participate in the trial, can Lito
present Luis on the witness stand to testify after the latter was defaulted? Discuss
fully. Suppose Lito dies and the case is dismissed as against him, what is the effect
of his answer as far as his solidary co-debtors Jose and Luis are concerned? Discuss
fully. (1995 Bar Question)
- Since the complaint states a common cause of action against the three
defendants, the court shall try the case against all upon the answer filed by Lito
and render judgment upon the evidence presented. (Sec. 4, Rule 18) In this
case, the answer of Lito inures to the benefit of Jose and Luis, unless the
defense of Lito is personal to him alone.
- There is no provision in the Rules disqualifying parties declared in default from
taking the witness stand for non-disqualified parties. A party declared in default
loses his standing in court, but this must be understood to mean only the
forfeiture of one’s rights as a party litigant. He is not disqualified to be a witness
or a deponent in a case. (Cavili vs. Florendo, 154 SCRA 610)
- If Lito dies after he has presented evidence, the same inures to the benefit of
Jose and Luis. But if Lito dies before he has presented evidence, Jose and Luis
cannot present such evidence.
Distinction between pre-trial in civil case and pre-trial in criminal case
Q: Give three distinctions between a pre-trial in a criminal case and a pre-trial in a civil
case. (1997 Bar Question)
- Three distinctions between a pre-trial in a criminal case and a pre-trial in a civil
case are as follows: The pre-trial in a criminal case is conducted only “where
the accused and counsel agree" (Rule 118, Sec. 1): while the pre-trial in a civil
case is mandatory. (Sec. 1 of former Rule 20; Sec. 1 of new Rule 18). The pre-
trial in a criminal case does not consider the possibility of a compromise, which
is one important aspect of the pre-trial in a civil case. (Sec. 1 of former Rule 20;
Sec. 2 of new Rule 18). In a criminal case, a pre-trial agreement is required to
be reduced to writing and signed by the accused and his counsel (See: Rule
118, Sec. 4); while in a civil case, the agreement may be contained in the pre-
trial order. (Sec. 4 of former Rule 20; See 7 of new Rule 78).
Alternative Dispute Resolution (ADR) (Special Rules of Court on ADR (A.M.

No. 07-11-08-SC))
Q: Water Builders, a construction company based in Makati City, entered into a

construction agreement with Super Powers, Inc., an energy company based in Manila,
for the construction of a mini hydroelectric plant. Water Builders failed to complete the
project within the stipulated duration. Super Powers cancelled the contract. Water
Builders filed a request for arbitration with the Construction Industry Arbitration
Commission (CIAC). After due proceedings, CIAC rendered judgment in favor of
Super Powers, Inc. ordering Water Builders to pay the former P 10 million, the full
amount of the down payment paid, and P2 million by way of liquidated damages.
Dissatisfied with the CIAC's judgment, Water Builders, pursuant to the Special Rules
of Court on Alternative Dispute Resolution (ADR Rules) filed with the RTC of Pasay
City a petition to vacate the arbitral award. Super Powers, Inc., in its opposition,
moved to dismiss the petition, invoking the ADR Rules, on the ground of improper
venue as neither of the parties were doing business in Pasay City. Should Water
Builders' petition be dismissed? (2015)
- YES, the petition should be dismissed on the ground of improper venue. Under
the Special Rules of Court on Alternative Dispute Resolution (ADR), the petition
shall be filed with the Regional Trial Court having jurisdiction over the place
where one of the parties is doing business, where any of the parties reside or
where the arbitration proceedings were conducted (Rule 11.3, Special Rules of
Court on Alternative Dispute Resolution, A.M. No. 07-11-08-SC); hence, the
venue of the petition to vacate the arbitral award of Water Builders is improperly
laid.
Which among the following is not subject to mediation for judicial dispute resolution?
(2013 BAR) The civil aspect of robbery.
Q: Discuss the three (3) Stages of Court Diversion in connection with Alternative
Dispute Resolution. (2012 BAR)
- The three stages of diversion are Court-Annexed Mediation (CAM), Judicial
Dispute Resolution (JDR), and Appeals Court Mediation (ACM). During CAM,
the judge refers the parties to the Philippine Mediation Center (PMC) for the
mediation of their dispute by trained and accredited mediators. If CAM fails, the
JDR is undertaken by the JDR judge, acting as a mediator-conciliator-early
neutral evaluator. The third case is during appeal, where covered cases are
referred to ACM.
Q: Upon termination of the pre-trial, the judge dictated the pretrial order in the
presence of the parties and their counsel, reciting what had transpired and defining
three (3) issues to be tried. Suppose trial had already commenced and after the
plaintiffs second witness had testified, the defendant’s counsel moves for the
amendment of the pre-trial order to include a fifth (5th) triable issue vital to his client’s
defense. Should the motion be granted over the objection of plaintiffs counsel?
Reasons. (3%) (2009 Bar Question)
- The motion may be denied since trial had already commenced and two
witnesses for the plaintiff had already testified. Courts are required to issue pre-
trial Order after the pre-trial conference has been terminated and before trial
begins, precisely because the reason for such Order is to define the course of
the action during the trial. Where trial had already commenced, more so the
adverse party had already presented witnesses, to allow an amendment would
be unfair to the party who had already presented his witnesses. The amendment
would simply render nugatory the reason for or purpose of the pre-trial Order.
Sec.7 of Rule 18 on pre-trial in civil actions is explicit in allowing a modification
of the pre-trial Order “before” trial begins to prevent manifest injustice.
Q: Mayor TM was charged of malversation through falsification of official documents.

Assisted by Atty. OP as counsel de parte during pre-trial, he signed together with
Ombudsman Prosecutor TG a “Joint Stipulation of Facts and Documents." which was
presented to the Sandiganbayan. Before the court could issue a pre-trial order but
after some delay caused by Atty. OP, he was substituted by Atty. QR as defense
counsel. Atty. QR forthwith filed a motion to withdraw the “Joint Stipulation," alleging
that it is prejudicial to the accused because it contains, inter alia, the statement that
the “Defense admitted all the documentary evidence of the Prosecution," thus leaving
the accused little or no room to defend himself, and violating his right against self-
incrimination. Should the court grant or deny QR’s motion? Reason. (5%) (2004 Bar
Question)
- The court should deny QR’s motion. If in the pre-trial agreement signed by the
accused and his counsel, the accused admits the documentary evidence of the
prosecution, it does not violate his right against self-incrimination. His lawyer
cannot file a motion to withdraw. A pre-trial order is not needed.
Intervention
Requisites for intervention
Q: What are the requisites for an intervention by a non- party in an action pending in
court? (5%) (2000 Bar Question)
- The requisites for Intervention are:
1. Legal interest in the matter in controversy; or
2. Legal interest In the success of either of the parties; or
3. Legal interest against both; or
4. So situated as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof.
5. Intervention will not unduly delay or prejudice the adjudication of the rights of
original parties;
6. Intervenor’s rights may not be fully protected In a separate proceeding.
The right to intervene is not absolute. In general, it CANNOT be allowed where (2011
BAR) it would enlarge the issues and expand the scope of the remedies.
Ranger Motors filed a replevin suit against Bart to recover possession of a car that he
mortgaged to it. Bart disputed the claim. Meantime, the court allowed, with no
opposition from the parties, Midway Repair Shop to intervene with its claim against
Bart for unpaid repair bills. On subsequent motion of Ranger Motors and Bart, the
court dismissed the complaint as well as Midway Repair Shop’s intervention. Did the
court act correctly? (2011 BAR) No, since having been allowed to intervene, the
intervenor became a party to the action, entitled to have the issue it raised tried and
decided.
Remedy for the denial of motion to intervene
Q: Half-brothers Roscoe and Salvio inherited from their father a vast tract of
unregistered land. Roscoe succeeded in gaining possession of the parcel of land in
its entirety and transferring the tax declaration thereon in his name. Roscoe sold the
northern half to Bono, Salvio’s cousin. Upon learning of the sale, Salvio asked Roscoe
to convey the southern half to him. Roscoe refused as he even sold one- third of the
southern half along the West to Carlo. Thereupon, Salvio filed an action for the
reconveyance of the southern half against Roscoe only. Carlo was not impleaded.
After filing his answer, Roscoe sold the middle third of the southern half to Nina. Salvio
did not amend the complaint to implead Nina.
After trial, the court rendered judgment ordering Roscoe to reconvey the entire
southern half to Salvio. The judgment became final and executory. A writ of execution
having been issued, the Sheriff required Roscoe, Carlo and Nina to vacate the
southern half and yield possession thereof to Salvio as the prevailing party. Carlo and
Nina refused, contending that they are not bound by the judgment as they are not
parties to the case. Is the contention tenable? Explain fully. (4%)(2008 Bar Question)
- Yes, in case of Transfer of interest pending litigation, the action may be
continued by or against the original party unless the court, upon motion, directs
a person to be substituted in the action or joined with the original party (Sec. 19,
Rule 3, Rules of Court). The owners of property over which reconveyance is
asserted are indispensable parties and must be joined in the action.
Accordingly, the contention of Carlo who is such party to the action filed by
Salvio, is tenable. He is not bound by the judgment because he became a co-
owner of the land before the case was filed and yet he has not been included
as a party thereto
- Nina, however is a successor-in-interest of Roscoe and privy to the case.
Hence, she is bound by the judgment as against Roscoe although she is not
party to the case (Sec. 19, Rule 3; Cabresos v. Tero, 166 SCRA 400 [1988]). A
judgment is conclusive between the parties and their successors-in-interest by
title subsequent to the case (Sec. 47, Rule 39, Rules of Court).
- [Parenthetically, it is worth mentioning that the sale of the northern one-half of
the vast tract of land owned in common by Roscoe and Salvio, is void as to the
northern half but valid as to the presumed one-half undivided interest of Roscoe.
The existence of the co- ownership must first be determined to exist before the
right of reconveyance on the basis of a constructive trust may prosper. However,
in the problem the judgment has become final and executory, so the problem is
centered on the remedial law aspect].
Subpoena
Subpoena duces tecum
Q: In an admiralty case filed by A against Y Shipping Lines (whose principal offices
are in Manila) in the Regional Trial Court, Davao City, the court issued a subpoena
duces tecum directing Y, the president of the shipping company, to appear and testify
at the trial and to bring with him several documents.
On what valid ground can Y refuse to comply with the subpoena duces tecum?
How can A take the testimony of Y and present the documents as exhibits other than
through the subpoena from the Regional Trial Court? (1997 Bar Question)
- Y can refuse to comply with the subpoena duces tecum on the ground that he
resides more than 50 (now 100) kilometers from the place where he is to testify.
(Sec. 9 of former Rule 23; Sec. 10 of new Rule 21).
- A can take the testimony of Y and present the documents as exhibits by taking
his deposition through oral examination or written interrogatories. (Rule 24; new
Rule 23) He may also file a motion for the production or inspection of
documents. (Rule 27).
Subpoena ad testificandum
The viatory right of a witness served with a subpoena ad testificandum refers to his
right not to comply with the subpoena. (2009 Bar Question) FALSE. The viatory right
of a witness, embodied in Sec. 10, Rule 21 of the Rules of Civil Procedure, refers to
his right not to be compelled to attend upon a subpoena, by reason of the distance
from the residence of the witness to the place where he is to testify. It is available only
in civil cases
Quashing of subpoena
Q: On August 15,2008, Edgardo committed estafa against Petronilo in the amount of

P3 Million. Petronilo brought his complaint to the National Bureau of Investigation,
which found that Edgardo had visited his lawyer twice, the first time on August 14,
2008 and the second on August 16, 2008; and that both visits concerned the swindling
of Petronilo. During the trial of Edgardo, the RTC issued a subpoena ad testificandum
to Edgardo’s lawyer for him to testify on the conversations during their first and second
meetings. May the subpoena be quashed on the ground of privileged communication?
Explain fully. (4%)
- No, The subpoena may not be simply quashed on the allegation that the
testimony to be elicited constitutes privileged communication. It may be noted
that the accused committed the crime of swindling on August 15, 2008, whereas
he first visited his lawyer on August 14, 2008 or before he committed the
swindling. Clearly the conversations the accused had with his lawyer during
such first visit, before he committed the swindling cannot be protected by the
privilege between attorney and client because the crime had not been
committed yet and it is no part of a lawyer’s professional duty to assist or aid in
the commission of a crime; hence not in the course of professional employment.
- The second visit by accused Edgardo to his lawyer on the next day (August 16,
2008) after the swindling was committed may also suffer from the same infirmity
as the conversations had during their first meeting inasmuch as there could not
be a complaint made immediately after the estafa was committed. The privilege
covering a lawyer- client relation under Sec. 24, (par(b), Rule 130, may not be
invoked, as it is not a ground for quashal of a subpoena ad testificandum under
Section 4, Rule 21 of the Rules of Court.
- Although the subpoena ad testificandum may not be quashed the privilege
covers conversations “with a view to professional employment." It can be
invoked at the trial but not to quash the subpoena.

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General Principles

Concept of remedial law

Q: How are remedial laws implemented in our system of government? 2% (2006

Substantive law vis-á-vis remedial law

Nature of Philippine courts

Q: What is meant by “hierarchy of courts”? (1996 Bar Question)

Doctrine of non-interference or doctrine of judicial stability

A judicial compromise has the effect of ________ and is immediately executory

How jurisdiction over the plaintiff is acquired

How jurisdiction over the defendant is acquired

Over the subject matter

How jurisdiction is conferred and determined

Effect of estoppel on objections to jurisdiction

If it cannot be issued, what is the remedy of A?

Over the issues

Over the res or property in litigation

Q: The Ombudsman, after conducting the requisite preliminary investigation, found

Regional Trial Courts

Metropolitan Trial Courts/Municipal Trial Courts

Q: A, a resident of Malolos, Bulacan, died leaving an estate located in Manila, worth

Q: For failure of the tenant, X, to pay rentals, A, the court-appointed administrator of

The Rule on Small Claims is applicable to: (2012 BAR)

A Small Claims Court . (2013 BAR)

On the question of jurisdiction, Summary Procedure applies irrespective of the civil

Q: Lender extended to Borrower a Pl00,000.00 loan covered by a promissory note.

Q: At the trial, Borrower's lawyer, while cross-examining Lender, successfully elicited

Q: What do you understand by the “totality rule” in determining the jurisdiction of

Q: Distinguish special proceeding from an ordinary action. (1996 Bar Question)

Meaning of special civil actions

Personal actions and real actions

Local and transitory actions

Q: Distinguish: (1004 Bar Question)

An action quasi in rem, as stated, is an action against a person over a particular

An action in personam, as stated, is an action against a person on the basis of his

Q: Distinguish: (1997 Bar Question) x x x

Q: (1996 Bar Question)

Failure to state a cause of action

Test of the sufficiency of a cause of action Q: (2002 Bar Question)

Q: Give the effects of the following:

Q: Raphael, a warehouseman, filed a complaint against V Corporation. X Corporation

Joinder and mis-joinder of causes of action

Q: (1999 Bar Question)

Q: Give the effects of the following: x x x

Q: Raphael, a warehouseman, filed a complaint against V Corporation. X Corporation

Parties to civil actions

Compulsory and Permissive Joinder of parties

Misjoinder and Non-joinder of parties

Unexplained or unjustified non-joinder in the Complaint of a necessary party despite

Q: Florencio sued Guillermo for partition of a property they owned in common.

Q: An airplane carrying 200 passengers crashed somewhere in the jungles of Agusan.

Effect of death of party-litigant

Q: PJ engaged the services of Atty. ST to represent him in a civil case filed by OP

If it cannot be issued, what is the remedy of A?

Venue versus jurisdiction

Q: Distinguish jurisdiction from venue? 2% (2006 Bar Question) SUGGESTED

Venue of real actions

Venue of personal actions

Q: A resident of Lingayen, Pangasinan sued X. a resident of San Fernando. La Union

Q: X, a resident of Angeles City, borrowed P300.000.00 from A, a resident of Pasay

Venue of actions against non-residents

Counterclaims (Compulsory counterclaim, Permissive counterclaim, Effect on

Q: (1999 Bar Question)

Q: True or False. If the answer is false, explain your answer briefly.