Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
February 3, 2020 - MARVIN DOODS DE CASTRO
that, RTC. We also have to remember the jurisdiction in Metro Manila.
So that's one.
RULE 4
VENUE OF ACTIONS
Two, we discussed before docket fees. So different ang docket fees pag
personal action and real action.
When you say "venue", what do you mean by venue? It is just the place
where the case is to be filed or heard. And when you say venue, it is
governed by the Rules of Court, so procedural.
Now why do we have the rules on venue? There are several reasons:
Three, for the purpose of determining venue. Because under Sec. 1, if it
is a real action, it will be filed with the proper court. When the rule says
"proper court", meaning it could be the MTC or the RTC, depending on
the assessed value. But it has to be filed for the purpose of venue in the
place having jurisdiction over the real property.
a) Because it would be difficult if the parties are left to determine on their
own, the venue. For example, you are a very rich person and you want
to sue X. X lives in Tagum. You also live in Davao. But you would like to
file a case in Manila, because you could very well afford the airfare to
Manila but X, your opponent, cannot afford. So you want to harass him.
It would be very easy, you can take advantage of your conditions, your
status. That's one of the reasons.
So if the real property is in Digos, it will be filed in a proper court in Digos.
For example, naa siya sa boundary, sa Sta. Cruz ug Davao. So part of
the land is in Sta. Cruz, part in Davao. So where do you file the case,
insofar as venue is concerned. So asa man, Davao del Sur, or Davao
City? It depends. It can be filed where the real property is situated, or a
portion thereof is situated. So if naa ang portion sa Davao or Sta. Cruz,
you can file in any of court those cases.
Rules of venue cannot be left to the litigants, venue cannot be left to be
determined by the litigants themselves, to seek procedural advantage.
To annoy, to harass, or to avoid overcrowded dockets. To select a more
friendly venue, so diri kay friends nimo tanan, friends nimo tanan judges
so diri nimo i-file, so here there has to be a rule for actions.
Forcible entry and detainer actions. You know what court has
jurisdiction. It is the MTC. But of the place where the property or a portion
thereof is situated. We also discuss before what do you mean by a nodal
action. It is equivalent to a real action. It's venue depends upon the
location of the property involved in the litigation. When you say
transitory, it is equivalent to a personal action. So it depends upon the
residence of the plaintiff or defendant, at the option of the plaintiff.
How do we distinguish venue from jurisdiction?
a.
Jurisdiction is the authority to hear and decide the case, venue
is just the place where the case is tried or heard.
b.
Jurisdiction is a matter of substantive law. We have BP 129
as amended. When you say venue it is a matter of procedural
law. It's just provided for under the Rules of Court.
c.
Jurisdiction establishes a relationship between the court and
the subject matter, venue it establishes a relation between the
plaintiff and the defendant.
We already discussed before what is a real action. If the suit does not
involve at all any real property, definitely it is not a real action. But it
doesn't mean if there is a real property involved, it is already a real
action. So we will start to think whether or not it is a real action if there
is a real property involved. If wala real property, sure na ta na di na siya
real action. So if the property of the subject a land, a building, the first
question is: if the ownership of the defendant is recognized by the
plaintiff, but the plaintiff would just want the defendant to deliver the
property to him, would that be a real action or a personal action?
February 3, 2020 PART 2- JOFIL JAMES ABRENILLO
Forcible entry and detainer actions shall be commenced and
tried in the municipal trial court of the municipality or city
wherein the real property involved, or a portion thereof, is
situated.
Is there a question as to title or possession? I recognized that you’re
the owner or you’re the possessor , but we have a contract to sell, so I
want you to deliver because I already paid the value of the property,
that’s an action for SPECIFIC PERFORMANCE.So even there is real
property involved, there is question as to title he just want the
debtor/seller to perform.
Second, if the plaintiff asserts prior ownership and wants to get the
property from the defendant, that is RECOVERY OF POSSESSION,
DECLARATION OF NULLITY OF CONTRACT but he only wants to get
the property from the defendant , there is now a question of title and
ownership. So that would be categorized as a real action AND THE
VENUE WILL DEPEND UPON THE LOCATION OF THE REAL
PROPERTY. BUT AS TO JURISDICTION IT WILL DEPEND UPON
THE ASSESSED VALUE OF THE PROPERTY.
We discussed before, the kinds of civil actions. Like, real actions,
personal actions. We have to know if this action is a real action or a
personal action. When we say personal, it does not involve title to or
possession of property or interest therein. But when we say real action,
that action involves title to or possession of real property.
Section 2. Venue of personal actions. — All other actions may
be commenced and tried where the plaintiff or any of the
principal plaintiffs resides, or where the defendant or any of the
principal defendants resides, or in the case of a non-resident
defendant where he may be found, at the election of the plaintiff.
When we discuss jurisdiction, we learn why we have to make the
distinction. We have to know whether this is a personal action, or a real
action for purpose of conferring jurisdiction. If it is a real action and the
assessed value of the real property does not exceed P20,000 outside
Metro Manila, it will be filed with the MTC. Exceeding that, it will be filed
with the RTC. But if it is not a real action, it is a personal action, although
there may be properties involved, but primarily it is a personal action,
jurisdiction could be determined based on the, depende if it is incapable
of pecuniary estimation, it will be in the RTC. But if it involves other
claims, it does not exceed P300,000 outside of Metro Manila, more than
Personal actions or transitory actions, what is the venue, so here the
rule says “may be commenced and tried where the plaintiff or any
of the principal plaintiffs resides, or where the defendant or any of
the principal defendants resides” so ko daghan ang plaintiffs or
daghan ug defendants possible na daghan kag choices as venue if they
are residence of different places.
d.
Jurisdiction is conferred by law and cannot be subject to the
agreement of the parties. Venue can be conferred by the
agreement of the parties.
SECTION 1. Venue of real actions. — Actions affecting title to or
possession of real property, or interest therein, shall be
commenced and tried in the proper court which has jurisdiction
over the area wherein the real property involved, or a portion
thereof, is situated.
NON-RESIDENT DEFENDANT
A non-resident defendant but he may be found in the Philippines , so
where he may be found, so again AT THE OPTION OF THE
PLAINTIFF.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
1
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
So what if in one case you are praying for damages but there is laso a
prayer for recovery of possession of real property. So where do you file
the case? Do we rely on Section 1 as real action or is it a personal action
under Section 2. Again it would depend upon the PRIMARY RELIEF OF
THE PLAINTIFF, THE PRIMARY OBJECT OF THE SUIT OR BY THE
NATURE OF THE PRINCIPAL CLAIM. If the main action is for recovery
of possession or involving title of a real property and the damages will
only be incidental to the main action, then it is a REAL ACTION, THE
VENUE IS PLACE WHERE THE PROPERTY IS LOCATED.
RESIDENCE
What do we mean by residence for the purpose of applying section 2,
you learn before the concept of residence in the election law , would the
meaning of residence in election law be the same with concept of
residence in the Rules of Court? There are several cases here, we have
the cases of Poe vs CA , ULEP vs CA, Fernandez vs Rural Bank of the
Philippines , Raymund vs CA, Esquerte vs CA.
As a GENERAL RULE, for the purpose of applying the Rules of Court,
when we say residence, we are referring to the ACTUAL AND
PHYSICAL RESIDENCE.
EXCEPTION:
CORRE v TAN-CORRE
100 Phil 1, 1914
FACTS : An American citizen who resides in Las Vegas, Nevada
came to the Philippines to file a case for legal separation against his
wife and to place their minor children under custody and care of a
reputable women's dormitory or institution, as the court may
determine. For the purpose of venue, in his complaint he alleged that
he temporarily resides at 576 Paltok, Sta. Mesa, Manila. Whereas
the wife is a resident of Catbalogan, Samar. The case was filed in
Manila.
On the other hand, when you say “residence” in civil action, it simply
requires bodily presence as an inhabitant in a given place. So when you
say “domicile” for the purpose of determining venue in civil actions,
“domicile” necessarily means residence when it comes to civil actions. If
you have been established to be domiciled in this place, then you can
institute a case in this place if you are a plaintiff or it’s the residence of
the defendant for the purpose of civil actions. But “residence” for the
purpose of election law is not necessarily domicile because it entails not
only physical presence in a place but intention to reside in that place
coupled with intention to remain in that place. So mas strict ang meaning
sa election law compared sa civil action.
So here again, the SC said Residence is not Domicile but Domicile is
residence coupled with the intention to remain for an unlimited time.
Now lets go to this case of Ang vs Ang. Ang here is a resident of LA,
US. She executed a SPA in favour of Atty Aceron. Atty Aceron here was
a resident of Quezon city. Ang purpose sa SPA was for the filing of a
case. Now this was a personal action. So here, the complaint was for
collection of sum of money filed with the RTC of Quezon City. The
defendants moved for the dismissal of the complaint, among others, the
ground was for improper venue. Why? According to them, venue was
improperly laid because it was filed in Quezon city, whereas according
to the spouses they were residents of Bacolod City. So here, according
to the plaintiff, the venue was proper because it was the residence of
her Atty-in-fact. Is that correct? NO. The court said that for purposes of
determining venue, if it is a personal action, the plaintiff can file in the
place where the plaintiff resides or the defendant resides at the option
of the plaintiff. But it must be the residence of the principal party, not the
residence of the representative. But here, since the principal party was
a resident of California, USA. There was no other option but to file in the
residence of the defendant which was in Bacolod City. So here, Venue
was improperly laid.
Issue: Was the case filed at the proper venue?
NO. Ruling: The plaintiff was not a resident of Manila, while the
defendant was a resident of Catbalogan, Samar. Such being the
case, the plaintiff has no other choice but to file the case in the
residence of the defendant, because in the Philippines he has no
residence to speak of. The allegation in the complaint for the purpose
of filing a suit that he temporarily resides at 576 Paltok, Sta. Mesa,
Manila, cannot serve as basis for the purpose of determining venue
for it is not the residence contemplated by the rule. If that were
allowed, it will create a situation where a person may have his
residence in one province and to suit his convenience, may bring the
action in a court of any other province.
February 5, 2020- ROJO, FERNANDEZ, APOSTOL
So last meeting we discussed the case of Corre vs Tan-Corre. So again,
as we have already discussed, when you say residence in relation to
venue, we are referring to the actual or physical residence, not domicile.
Except in the case of Corre vs Tan-Corre.
Residence in Election Law vs Residence in Civil Actions
Now let’s also distinguish the meaning of residence in election law, as
compared with the meaning of residence in civil actions for the purpose
of determining venue.
In this case of Saludo VS American Express International
Incorporated. Here, the SC said that when you say “residence” for the
purpose of election law, it is more stringent because it is equated with
the term “domicile”. In election law, for the purpose of residence, it
imports not only an intention to reside in a fixed place but also personal
presence in that place coupled with conduct indicative of such intention.
So when you say “residence”, there are 2 Elements required.
1. Intention to reside in that particular place
2. Personal or physical presence in that place coupled with
conduct indicative of such intention
So this is the meaning of residence for the purpose of election law.
Residence of Corporations
When it comes to Corporation. What is the residence of a corporation?
So for the purpose of filing a case, the corporation may be a plaintiff or
defendant. But as to the residence of the corporation, it is the principal
place of business of the corporation as indicated in the Articles of
Incorporation which is registered in the SEC.
In this case of Clavecilla Radio System VS Antillon. So here,
Clavecilla was sued in Cagayan de Oro City. Clavecilla here was a
corporation. It questioned the venue because its head office was in
Manila. Here the plaintiff was also not a resident of CDO. So ang
basehan sa plaintiff here was residence sa defendant, which was… it
had an office in CDO. According to the plaintiff you are a resident of
CDO because you have a branch in Cagayan, although the main office
may be in Manila. What is the Rule? We already mentioned. It is a
principle in Corporation law that the residence of a corporation is the
place where its principal office is established. So because it is not
disputed that the corporation here was, under the registration, in Manila.
So its residence is in Manila. Now according to the plaintiff, the filing of
the action in CDO was proper as to venue, on the principle that the
defendant may be served summons in the city where it maintains a
branch office. So meaning if the defendants may be served summons in
the branch office, it follows na its residence for the purpose of venue
could also be the place where it has a branch. The SC said, this does
not apply. When the defendant resides in the Philippines, he may be
sued only in the municipality of his residence regardless of the place
where he may be found and served with summons. The fact that the
corporation maintains branch offices in some parts of the country does
not mean that it can be sued in any of these places. To allow an action
to be instituted in any place where a corporate entity has its branch office
will create confusion and uncalled inconvenience to the corporation.
For the purpose of serving summons, we will discuss na it can be served
anywhere, even if it is not the residence of the defendant. When you say
venue, where will the case be filed. So if it is the corporation which is the
defendant, and you opt to file in the residence of the defendant, it has to
be the place where the corporation has its principal office, not the branch
office.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
2
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
General Rule: The corporation may sue or be sued only in the place
where its principal office is situated. The fact that it has branches is
not controlling.
Exceptions:
There are situations however where this rule will not be applicable:
1. Where the case is a real action – because it will have to be
filed where the real property is located
2. In a case where it is a personal action and the corporation
is the defendant but the plaintiff opted to sue in the place
of the plaintiff’s residence – so here you don’t have to
follow the principal office of the corporation as the venue
3.
If the case is a personal action and the corporation is a
co-plaintiff and they opted to file in the place where the
other co-plaintiff resides
4. Again, the same, when the plaintiff is a corporation but it is
a co-plaintiff and it decides to sue in the place of the
defendant
5.
When the case falls under SECTION 4 – there are
exceptions there that we will discuss
6.
When the address stated in the Articles of Incorporation
of the said corporation is no longer its actual physical
address and the opponent has knowledge of such fact –
this is based on jurisprudence, Golden Arches vs St.
Francis Square
Golden Arches VS St. Francis Square: So here, the case was for
breach of contract and damages. So this was a personal action. The
case was filed before the RTC of Mandaluyong. The defendant moved..
ang kaning RTC of Mandaluyong was the place where the corporation
said it was a resident of. Now according to the defendant, venue was
improperly laid because in the articles of incorporation of the
corporation, its principal office is in Makati, and the defendant was also
not a resident of Mandaluyong. Not being the residence of the plaintiff
nor the defendant, Venue was improperly laid and it was a personal
action. Is that correct? Well according to the SC it is true that when it
comes to corporations, its address is its principal place of business
indicated in the Articles of Incorporation. However in this case, prior to
the filing of the compliant, the corporation had already changed its
principal place of business, although it was not yet reflected in the
Articles of incorporation but it was known to the defendant. The actual
principal office was already in Mandaluyong City. In fact, prior to the filing
of this case, the defendant wrote a letter to the corporation, in that letter,
the address used by the defendant himself, was Mandaluyong. Also the
response of the corporation to the defendant it was already indicated
that Mandaluyong is its principal place of business. So here, the
defendant was thus put on notice that, at the time of the filing of the
complaint., the plaintiff’s business address was already Mandaluyong.
So this is one of the exceptions to the general rule.
Residence of Sole Proprietorship
Now what if the plaintiff is a sole proprietorship? That was in the case of
Mangila VS CA. So here Anita was a resident of San Fernando
Pampanga. She was the proprietor of a single proprietorship, exporting
seafoods and doing business under the name of .. Products. And then
Loreta here, a resident of Paranaque city, is a single proprietor providing
freight forwarding service doing business as Airswift international with
office address in Pasay. Now Anita filed before the RTC of Pasay City a
case for collection of sum of money. Now Loreta here filed a motion to
dismiss on the ground of improper venue, because in the invoice of
Loreta for the freight forwarding service it stipulates that "if court litigation
becomes necessary to enforce collection the agreed venue for such
action is Makati, Metro Manila. Now, where is the proper venue? Again
the case was filed in Pasay City on the premise that it was the address
of the defendants business. Would that be correct? Number 1, the SC
said, a sole proprietorship is different from a corporation. What is a
corporation? It has a personality separate and distinct from the
stockholders and board of directors. But when you say sole
proprietorship, it does not have a separate and distinct personality from
the owner. Now, for the purpose of a suit, it is the residence of the owner
not the business. Because the principal party here is not the business,
it is the person, the Proprietor. So here, the residence of the defendant,
the proprietor was not in Pasay city, although it was the place of
business of the sole proprietor. So it should be the residence of the
plaintiff or that of the defendant not the place of business. Pasay City
here was neither the residence of the plaintiff nor of the defendant so it
was improper.
How about in stipulation as to venue? Although we will discuss this in
Section 4, but it says here that based on the tenor of the stipulation,
Makati is not the exclusive venue. So its just an addition to the venue
mentioned in the Rules of Court which could be the residence of the
plaintiff or defendant at the option of the plaintiff, So they are not
precluded from filing a case from any of those appropriate venues. But
here it was not properly made.
NON-RESIDENTS
How about in case of non-residents? In section 2, it is mentioned here
na, or in the case of a non-resident defendant where he may be found,
at the election of the plaintiff. Again we already explained this, this is the
case where even if the defendant is not a resident but he is found in the
Philippines, where he may be found in the Philippines, at the election of
the plaintiff.
Non-resident not found in the Philippines
How about if it is a non-resident defendant and he is not found in the
Philippines? Because the last paragraph of Sec 2 is if he is found in the
Philippines, wherever he may be found in the Philippines. What if he is
not found in the Philippines? So lets go to Section 3.
Section 3. Venue of actions against non-residents. - If any of the
defendants does not reside and is not found in the Philippines,
and the action affects the personal status of the plaintiff, or any
property of said defendant located in the Philippines, the action
may be commenced and tried in the court of the place where the
plaintiff resides, or where the property or any portion thereof is
situated or found
In section 3, here is a case where the defendant is a non-resident and
he is not found in the Philippines. Can he be sued? Only in the cases
mentioned in Section 3. What actions are these?
1. The action affect the personal status of the plaintiff;
2. The action affects the property or any portion thereof, of the
said defendant (those properties must be located in the
Philippines
Action affecting the personal status of the plaintiff
So what are the examples of those actions that affect the personal status
of the plaintiff? For example the defendant is abroad, but he has an
illegitimate child here in the Philippines. He is not supporting that child.
So the child or parent would like to file an action for recognition and
support, so that is an action which affects the status of the plaintiff. That
can be filed even if the defendant is a non-resident even if he is not found
in the Philippines. The res here is the status of the plaintiff who is found
in the Philippines.
Action that affects the defendant’s property which is located in the
Philippines
An example, foreclosure of mortgage. So here even if the defendant is
not found in the Philippines and is not a resident, but the action affects
the property and located in the Philippines. We discussed that, that is
what we call Action Quasi in Rem.
So actions quasi in rem or actions in rem as long as the status or
property is located or found in the Philippines, even if the defendant is a
non-resident and not found in the Philippines, he can be sued. But again,
even so we have to comply with the rules on proper service of summons.
Although that is not to afford jurisdiction over the person, but for the
purpose of observing due process.
Non-resident with NO Properties in the Philippines
What if it is an action for collection against a non-resident defendant who
is not found in the Philippines and he has no properties in the Philippines
but several properties in the US. Can he be sued? NO. Because it does
not affect the status of the plaintiff or properties of the defendant located
in the Philippines.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
3
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
So lets go to Section 4.
Section 4. When Rule not applicable. - This Rule shall not apply.
(a) In those cases where a specific rule or law provides
otherwise; or
(b) Where the parties have validly agreed in writing before the
filing of the action on the exclusive venue thereof.
Okay so what are the exceptions to the rule on venue? We have section
4.
1. In those cases where a specific rule or law provides otherwise
Examples of those laws:
•
Libel – has an independent civil action, you can file damages.
What is the venue for that suit? Its actually found in Article 360
of the RPC, the criminal and civil action for damages in cases
of written defamations shall be filed simultaneously or
separately with the:
1. of the province or city where the libelous article is
printed and first published or
2. where any of the offended parties actually resides
at the time of the commission of the offense
3. where one of the offended parties is a public officer
whose office is in the City of Manila at the time of
the commission of the offense, the action shall be
filed in the RTC of Manila, or of the city or province
where the libelous article is printed and first
published and in case such public officer does not
hold office in the City of Manila, the action shall be
filed in the RTC of the province or city where he held
office at the time of the commission of the offense
or where the libelous article is printed and first
published
•
Under Article 8, Section 5(4) of the 1987 Constitution - The
SC may Order a change of venue or place of trial to avoid a
miscarriage of justice.
•
In Labor Cases – we’re not talking of the residence of the
parties involved, it should be in the place where the workplace
is situated. So that’s another law which says that the venue is
different other than what the Rules of Court says
2. Where the parties have validly agreed in writing before the filing of the
action on the exclusive venue thereof.
•
Polytrade Corporation vs Blanco – in this particular case
there was a stipulation, it says that the party agree to sue and
be sued in the Courts of Manila. Now the case here was
recovery of the purchase price of goods delivered by the
plaintiff to the defendant. It was filed before the Court of First
Instance of Bulacan. And the plaintiff corporation, its principal
office was in Makati. Defendant in Bulacan. If we follow the
rule under section 2, pwede siya sa Bulacan, because
residence of the plaintiff or the defendant at the option of the
plaintiff, so it was filed in Bulacan. However according to the
defendant that is wrong because there is a stipulation which
provides that the case should be filed in Manila. Is that
Correct? The SC said based on the stipulation, there is
nothing here which precludes the filing of suits in the
residence of the plaintiff or the defendant. The plain meaning
of this stipulation is that the parties merely consented to be
sued in Manila. There should be qualifying or restrictive
words, which would indicate that Manila and Manila alone is
the Venue. But those words are totally absent from the
stipulation. So the SC said that we cannot read into that
clause, the plaintiff and defendant bound themselves to file
suits only and exclusively in Manila. So what is now the
significance of this stipulation if it is not the exclusive venue?
The SC said it is just permissive. Meaning, they can also file
in Manila aside from their residences. So in addition. So its
also an exception, because diba in section 2 the residence of
the plaintiff or defendant at the option of plaintiff. But even if it
is not the residence but they agreed to file in Manila, that’s
also additional venue, but again in the absence of restrictrive
words, it cannot be construed as the exclusive venue. Its just
in addition to the venue stipulated in the Rules of Court.
So again, stipulations as to venue are either Mandatory or Permissive.
In interpreting stipulations, inquiry must be made as to whether or not
the agreement is restrictive in the sense that the suit may be filed only
in the place agreed upon or merely permissive in that the parties may
file not only in the place agreed upon but also in the places fixed by the
rules.
VIRGILIO B. GESMUNDO and EDNA C. GESMUNDO vs. JRB
REALTY CORPORATION
G.R. No. 111077 July 14, 1994
FACTS: A lease contract was involved. In this contract of lease it
was stipulated the venue for all suits whether for breach thereof and
damages or any cause between the lessor and the lessee and
persons claiming under each be the courts of appropriate jurisdiction
in Pasay City.
ISSUE: Is there an intention on the part of the parties to constitute
Pasay City as the exclusive venue?
HELD: Yes, the Supreme Court said Pasay is the exclusive venue.
Here the Supreme Court mentioned the previous case Polytrade v.
Blanco where the Supreme Court said the venue there is permissive
or additional. But here in laying Pasay City as venue for all suits, the
parties may claim that in no other place may they bring suit against
each other for breach of contract or damages or any cause.
SWEET LINES, INC., vs.HON. BERNARDO TEVES
G.R. No. L-37750 May 19, 1978
FACTS: This case involves a transportation contract. Here, Atty.
Tandog and Tiro bought tickets at the branch office of Sweet Lines.
They were bound for Tagbilaran City via the port of Cebu. Their
vessel was M/S "Sweet Hope". They learned said vessel was not
proceeding to Bohol because there were many passengers bound
for Surigao. Per advised, they went to the branch office for proper
relocation to another vessel M/S "Sweet Town". However, the said
vessel was already filled to capacity.
So according to them, they were forced to hide in the cargo section
to avoid inspection of the officers of the coastguard. They alleged
that during the trip they were exposed to the scorching heat of the
sun. dust coming from the cargoes. And the tickets they bought from
Cagayan De Oro City to Tagbilaran were not honored that is why
they were constrained to buy this other ticket. They filed a case for
breach of contract of carriage and damages against Sweet Lines in
Misamis Oriental.
According to Sweet Lines, Misamis Oriental was the improper venue
because Condition No.14 of the ticket which is the contract says:
14. It is hereby agreed and understood that any and all actions arising
out of the conditions and provisions of this ticket, irrespective of
where it is issued, shall be filed in the competent courts in the City of
Cebu.
ISSUE: Was venue improperly laid?
HELD: Based on the tenor, it is supposed to constitute as the
exclusive venue which is in Cebu.
However, the Supreme Court said this is a Contract of Adhesion.
Specially under the circumstances, it is hardly just and proper to
expect the passengers to examine their tickets received from
crowded/congested counters, more often than not during rush hours,
for conditions that may be printed much charge them with having
consented to the conditions, so printed, especially if there are a
number of such conditions in fine print, as in this case.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
4
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
Condition No. 14 is subversive of public policy on transfers of venue
of actions. For, although venue may be changed or transferred from
one province to another by agreement of the parties in writing t to
Rule 4, Section 3, of the Rules of Court, such an agreement will not
be held valid where it practically negates the action of the claimants,
such as the private respondents herein.
The philosophy underlying the provisions on transfer of venue of
actions is the convenience of the plaintiffs as well as his witnesses
and to promote the ends of justice. Considering the expense and
trouble a passenger residing outside of Cebu City would incur to
prosecute a claim in the City of Cebu, he would most probably decide
not to file the action at all. The condition will thus defeat, instead of
enhance, the ends of justice. Upon the other hand, petitioner has
branches or offices in the respective ports of call of its vessels and
can afford to litigate in any of these places. Hence, the filing of the
suit in the CFI of Misamis Oriental, as was done in the instant case,
will not cause inconvenience to, much less prejudice, petitioner.
General Rule: Contracts of Adhesion are valid.
Exception: In case of doubt, construe it strictly against the party who
prepared the contract and in favor of the party who had no choice but to
accept the contract.
BERNOLI P. ARQUERO vs. HONORABLE NAPOLEON J.
FLOJO,
G.R. No. L-68111 December 20, 1988
FACTS: RCPI entered into a contract for services for the
transmission of a telegraphic message thru RCPI's branch office in
Aparri, Cagayan to Atty. Eleazar S. Calasan at his office address in
Quiapo, Manila. The telegram states: venue thereof shall be in the
courts of Quezon City alone and in no other courts.
ATTY. CALASAN
ROOM 401 PAYAWAL BLDG.
709 PATERNO, QUIAPO, MANILA
CONGRATULATIONS PREPARE ONE XEROX COPY DECISION
SEE YOU BONI'S BIRTHDAY.
assent thereto. Thus, the ruling in Sweet Lines, Inc. vs. Teves is not
applicable in this case.
PILIPINO TELEPHONE CORPORATION vs. DELFINO TECSON
G. R. No. 156966
May 7, 2004
FACTS: This is a suit arising out of a Mobile Service Agreement. It
stated there that "Venue of all suits arising from this Agreement
or any other suits directly or indirectly Arising from the relationship
between PILTEL and subscriber shall be in the proper courts of
Makati, Metro Manila. Subscriber hereby expressly waives any other
venues.” Plaintiff alleges it is a Contract of Adhesion.
ISSUE: Is this a stipulation as to the exclusive venue?
HELD: Supreme Court said Yes. It is clear, “expressly waives any
other venues.”.
As to the issue the Contract being one of adhesion, the Supreme
Court said Indeed, the contract herein involved is a contract of
adhesion. But such an agreement is not per se inefficacious. The rule
instead is that, should there be ambiguities in a contract of adhesion,
such ambiguities are to be construed against the party that prepared
it. If, however, the stipulations are not obscure, but are clear and
leave no doubt on the intention of the parties, the literal meaning of
its stipulations must be held controlling.
In the case at bar, respondent secured (6) subscription contracts for
cellular phones on various dates. It would be difficult to assume that,
during each of those times, respondent had no sufficient opportunity
to read and go over the terms and conditions embodied in the
agreements. Respondent continued, in fact, to acquire in the pursuit
of his business subsequent subscriptions and remained a subscriber
of petitioner for quite sometime.
Since the contract has already expired, and pursuant to the said
stipulation, Union Bank filed a case for unlawful detainer in Makati
City. Now under Section 3 if it is a real action the venue shall be in
the place where the real property or the portion thereof is situated.
According to the defendant, venue is improperly laid.
BERNOLI
Issue: Was venue improperly laid?
Atty. Calasan received a copy of the telegram the next day but he
was made to pay the sum of P 7.30 for delivery charges.
Thereafter, at the birthday party Atty. Calasan confronted and
censured the petitioner anent the said telegram. Despite the
petitioner's explanation that the telegram had been duly paid for he
was branded as a "stingy mayor who cannot even afford to pay the
measely sum of P 7.30 for the telegram," in the presence of many
persons. Atty. Calasan filed an action for damages against RCPI
before the Regional Trial Court of Aparri, Cagayan. RCPI filed a
motion to dismiss on the ground of improper venue.
Citing the case of Sweet Lines, Inc. v. Bernardo Teves, the petitioner
claims that the condition with respect to venue appearing on the
ready printed form of RCPI's telegram for transmission is void and
unenforceable because the petitioner had no hand in its preparation.
The Court there held that contracts of adhesion, where the provisions
have been drafted only by one party and the only participation of the
other party is the signing of his signature or his adhesion thereto, are
contrary to public policy as they are injurious to the public or public
good.
ISSUE: Was venue improperly laid?
HELD: The condition with respect to venue in the telegram form for
transmission was printed clearly in the upper front portion of the form.
Considering the petitioner's educational attainment (being a lawyer
by profession and the Municipal Mayor of Sta. Teresita, Cagayan),
he must be charged with notice of the condition limiting the venue to
Quezon City, and by affixing his signature thereon, he signified his
HELD: The Supreme Court said this is an exception to the rule on
venue. Under Section 4 the parties can still stipulate as to venue even
if it is a real action. In this case, the court upheld the validity of the
stipulation in a contract providing for the venue for ejectment other
than the cases provided under the rules of court. Since the unlawful
detainer action is connected with the contract, Union Bank correctly
filed the case in the Metropolitan Trial Court of Makati City.
Comment: A contract duly executed is the law between the parties.
They are obliged to comply completely not selectively with its terms. A
contract of adhesion is no exception.
VIRGILIO C. BRIONES v. COURT OF APPEALS AND CASH
ASIA CREDIT CORPORATION
G.R. No. 204444, January 14, 2015
FACTS: Briones filed a case for Nullity of Mortgage Contract,
Promissory Note, Loan Agreement, Foreclosure of Mortgage,
Cancellation of Transfer Certificate of Title and Damages against
Cash Asia before the RTC of Manila, the place where the property is
located. According to Briones, he never signed a mortgage contract
and a contract of loan. He said these contracts are null and void.
Cash Asia filed a Motion to Dismiss on the ground of improper venue
alleging that it is stated in the Mortgage contract which is subject of
the case that “all legal actions arising out of this notice in connection
with the Real Estate Mortgage subject hereof shall only be brought
in or submitted to the jurisdiction of the proper court of Makati City.”
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
5
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
ISSUE: Is this a stipulation as to the exclusive venue?
HELD: Yes, it is a stipulation as to the venue. However, he is not
bound to said stipulation.
it must be emphasized that Briones’s complaint directly assails the
validity of the subject contracts, claiming forgery in their execution.
Given this circumstance, Briones cannot be expected to comply with
the aforesaid venue stipulation, as his compliance therewith would
mean an implicit recognition of their validity. Hence, pursuant to the
general rules on venue, Briones properly filed his complaint before a
court in the City of Manila where the subject property is located.
Q: What is the effect if case is filed in the wrong venue (although filed in
the proper court e.g RTC) ?
A: Case of Gumabon et al. v. Larin.
Comment: Under the new rules, there is no Rule 16 anymore. Improper
venue cannot be a ground for a Motion to Dismiss, but it remains to be
an affirmative defense. In your answer, you have to raise that as a
defense- still asking for the dismissal of the case because venue was
improperly laid.
Before amendment although still the same with new rules: The
Court on its own, cannot dismiss the case simply because venue is
improperly laid. The court cannot take judicial notice of that. Because
that defect can be waived if the defendant does not choose to dismiss
by way of affirmative defense he is deemed to have waived that defense.
This affirmative defense, lack of proper of (52:40) is now in Section 12
of amended rules.
claim, you cannot also file it with RTC just because of this stipulation,
because, again as what we have discussed the jurisdiction of courts
cannot be subjected to a stipulation.
It does not mean that this agreement is a stipulation which attempts to
curtail the jurisdiction of the courts, it is merely a stipulation which limits
the venue.
RULE 5
Uniform Procedure In Trial Courts
Section 1. Uniform procedure. — The procedure in the Municipal
Trial Courts shall be the same as in the Regional Trial Courts, except
(a) where a particular provision expressly or impliedly applies only
to either of said courts, or (b) in civil cases governed by the Rule on
Summary Procedure. (n)
In general, the rules that we are discussing will be uniform in all courts,
in MTC and RTC, except:
a) where a particular provision expressly or impliedly applies
only to either of said courts; or
(b) in civil cases governed by the Rule on Summary
Procedure.
Because, the Rule on Summary Procedure as well as the Small Claims
is with the MTC.
Section 2. Meaning of terms. — The term "Municipal Trial Courts" as
used in these Rules shall include Metropolitan Trial Courts,
Municipal Trial Courts in Cities, Municipal Trial Courts, and
Municipal Circuit Trial Courts. (1a)
Ley Construction Development Corporation vs. Sedano
It just says na the term mentioned above is a generic term. That would
refer to Metropolitan Trial Courts, Municipal Trial Courts in Cities,
Municipal Trial Courts, and Municipal Circuit Trial Courts.
The case here is for collection of sum of money and damages, a personal
action. It is against Marvin Sedano, doing business under the name and
style "Lola Taba Lolo Pato Palengke At Paluto Sa Seaside."
RULE 6
KINDS OF PLEADINGS
Here, the case was filed with the RTC of Valenzuela. The allegation here
was that there was a miscontract and the lessee failed to pay the rentals
despite demands.
The reason on that is stated, “All actions or cases filed in connection with
this lease shall be filed with the Regional Trial Court of Pasay City,
exclusive of all others.”
Mao na ang stipulation, remember asa na file ang case? Sa RTC of
Valenzuela.
The defendant filed a motion to dismiss the case on the ground of
improper venue, because he said that the stipulation stated that the case
shall be filed with the RTC of Pasay City.
But according to the plaintiff, he says that this stipulation, “should be filed
with the RTC of Pasay City exclusive of all other courts,” is void because
you cannot subject the jurisdiction of the court in any agreement or
stipulation. If sa RTC what if gamay lang d ay imohang demand? You
cannot file with RTC, so that stipulation is null and void?
Is that correct?
The Court said that, yes it is correct that you cannot subject the jurisdiction
of the courts to any stipulation or agreement. But as to the venue, you can
actually subject that to an agreement specifically under Section 4 of Rule
4. Here, it is not only a agreement as to jurisdiction, but as to venue. So
it says, therefore, Pasay City should be the venue of the action, it is
exclusive of all courts.
Here, the case was filed with the RTC of Valenzuela. Although it is
correct, within RTC, but the venue here was different.
Halimbawa, sa Pasay ka nag file ug case, okay lng kay it is the proper
venue and if you filed it with RTC, you filed it because it is the court
which has proper jurisdiction, not only because it was in your stipulation.
Although, it so happened na tam apud na RTC. Pero if gamay lng imong
Section 1. Pleadings defined. - Pleadings are the written statements
of the respective claims and defenses of the parties submitted to the
court for appropriate judgment. (1)
The definition of the term “pleading,” is still the same.
What you will submit to the courts are formal pleadings, although not
everything you submit to the court is a pleading. Under Rules of Court,
there are 7 pleadings, all others, they are not considered as pleadings.
Q: Why are pleadings important?
A: Because, it is in your pleading where you allege your cause of action
or your defense. It sets the judicial machinery into motion, because the
court on its own, it would not act., the court will not initiate the filing of
pleadings. Without filing any pleading, the court cannot act.
Also, the pleadings determine the jurisdiction of the court. How do we
know if the court has jurisdiction over the case?
We only look at the allegations of the complaint. As a general rule,
jurisdiction is determined in the allegations of the complaint, regardless
of any other allegation that may be contained in the answer of the
defendant.
If the plaintiff says you owe me 500,000 then the jurisdiction will be with
the RTC. Even if the defendant will say, it is only 100,000 because I
already paid the 400,000. The jurisdiction is still with the RTC.
The pleadings also limit the issues being tried. As a general rule, the
court cannot take cognizance and rule on issues which are not raised
on pleadings of the parties. The pleadings, the complaint and the
answer, and after that the issues are already joined.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
6
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
So, the issues are determined based on the allegations in the complaint,
and the answers of the defendant. Although in some cases, if some
issues though not embodied in the pleading but discussed in pre-trial or
the parties were able to present evidence on these issues and no
objection -- the court can take cognizance of those issues and even
order an amendment of the pleading to include those issues.
When you file a case, it is important on how to write your pleadings
because even if you argue very well but it will not be put into record
everything that you have argued. Then, mag base ang court didto sa
written pleadings. For example, the judge died and napulihan siya ug
lain, didto langna siya mag base unsa ang naa sa pleadings. Although
naay oral argument, but it is very difficult to include all your allegations,
arguments in oral arguments in court kay limited lang ang time na gna
hatag for that.
De Ysasi Vs Arceo
Here the trial court (TC) was admonished by the Supreme Court because
the TC rendered judgment based on issues not raised in the pleadings of
the parties. They were not touched upon the pleadings normally the
subject of evidence at the trial. So, the SC said that judgment going
outside the issues and purporting to adjudicate something upon which the
parties were not heard is not mere irregular, but extrajudicial and invalid.
Based on Section 1, pleadings are in writing, so they are written
statements of respective claims and defenses. There is no such thing as
an oral complaint.
How do you distinguish a pleading from a motion?
A motion is an application for relief other than by a pleading (Rule 15
Sec. 1). It is not a pleading because, pleadings are enumerated in
Section 2.
While Pleading are written statements of the respective claims and
defenses of the parties.
*From 2018-2019 class TSN
PLEADINGS
Pleadings are the written
statements of the respective
claims and defenses of the
parties.
Should always state a claim or
defense.
MOTIONS
A motion is an application for relief
other than by a pleading. (Rule 15
Sec. 1)
It is not a pleading because,
pleadings are enumerated in Section
2.
Not necessarily refers to a claim or
defense.
Ex:
•
• Related to the
claim/defense.
•
- Motion for summary
judgment, motion to dismiss, motion
for demurrer.
•
• Not related to
claim/defense.
•
- Motion for extension,
motion for postponement.
Prays for judgment on the merits.
May or may not pray for judgment on
the merits.
Ex:
•
• For judgment – motion to
declare defendant in default.
•
• Not for judgment –
motion for bill of particulars.
The relief sought ion the pleading
is the one which is threshed out
after the trial.
The relief sought by a motion is
more immediate.
As a general rule, pleadings
would always require a hearing,
Must always be in the written
form.
Limited in number of pleadings, 7
kinds. (Sec. 2, Rule 6)
Motions also require hearings but
there are certain types of motions
that are called non-contentious
which no longer require hearings.
Ex: Motion for postponement.
May be oral or written.
Motions are virtually unlimited,
subject only to the limitation of
propriety and judicial efficiency.
Section 2. Pleadings allowed. - The claims of a party are asserted in
a complaint, counterclaim, cross-claim, third (fourth, etc.)-party
complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to the pleading
asserting a claim against him or her.
An answer may be responded to by a reply only if the defending
party attaches an actionable document to the answer. (2a)
Walay nagbago, still there are 7 pleadings:
1. Complaint;
2. Counterclaim;
3. Cross-claim;
4. Third (fourth, etc.)-party complaint;
5. Complaint-in-intervention;
6. Answer; and
7. Reply
Before, in a reply, there is no condition wherein you can file a reply. But
the filing of a reply is optional under the previous rules, it says, “an
answer may be responded to by a reply…”
By reason of the word “may,” it means it is optional on the part of the
plaintiff. Although there are some exceptions as to that, but the
exceptions is now written in the rule. Pero, nahimo na siyang, pwede ka
mag file ug reply if the defending party attaches an actionable document
to the answer.
Actually “may” lng ghapon ang g’gamit sa new rule, meaning it is
optional. Pwede ghapon ang reply kung naay actionable document sa
answer.
Q: What if wala ka nag file ug reply?
A: It is your call as a plaintiff. Because you might have it construed that
you have deemed admitted the genuineness of the execution of the
actionable document mentioned in the answer.
Section 3. Complaint. - The complaint is the pleading alleging the
plaintiff’s or claiming party’s cause or causes of action. The names
and residences of the plaintiff and defendant must be stated in the
complaint. (3a)
We discussed in Section 2 what are the pleadings. In general, there are
2 kinds of pleadings:
1. Initiatory Pleadings; and
2. Responsive Pleadings.
3.
Q: What is a complaint?
A: A complaint is an initiatory pleading. It sets forth a party’s causes of
action against the defendant.
Q: Why do we have to know whether a pleading is an initiatory or a
responsive pleading?
A: If it is an initiatory pleading, there are additional requirements under
the Rules of Court. One important requirement is that your initiatory
pleading must be accompanied with a certification of a forum shopping
(Rule 7 Section 5).
Q: Based on section 2, what are the initiatory pleadings? What are the
responsive pleadings?
A: Initiatory pleadings:
1. Complaint;
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
7
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
2.
3.
4.
5.
Counterclaim;
Cross-Claim;
Third (fourth, etc.)-party complaint; and
Complaint-in-intervention.
Responsive Pleadings:
1. Answer; and
2. Reply.
3.
It is also mentioned in,
Administrative Circular No. 04-94
XXX
XXX
The complaint and the initiatory pleadings referred to and the subject of
this Circular are the original civil complaint, counterclaim, cross-claim,
third (fourth, etc.) party complaint, or complaint-in-intervention, petition, or
application wherein a party asserts his claim for relief.
XXX
XXX
Q: What are the contents of a complaint?
A: The rule says, allegation constituting plaintiff’s cause of action, the
name of the plaintiff and defendant and their residences.
Complaint sample as discussed (Hi! I am not sure as to the layout of
the sample pleading, wala pa kasing nag take ng pic at this time).
It is now required under the new rules to attach it.
In the first paragraph, you have to allege the legal capacity of the plaintiff
to institute the suit and the address of the plaintiff to which the notices
and other processes of the court will be sent.
Defendant
Same thing,
Defendant Evanne Maliones is of legal age, Filipino citizen,
Single and a resident of … Davao City, where he may be
served summons and processes of this honorable court.
You have to assert that to show na naay legal capacity to be sued si
defendant. If married, you have to include the spouse unless naay
exception. Then, you indicate the correct address for the purpose of the
summons.
Cause of Action
After that you recite your cause of action.
On January 1, 2000…
You recite the following:
Your right as the plaintiff;
What right does the plaintiff have;
What is the obligation of the defendant to the said right;
o
You have to be specific as to the facts, how the
defendant violated the rights of the plaintiff, and as
a consequence the damages
What are the damages and other injuries suffered by the
Plaintiff suffered by the act of the defendant; and
Other causes of actions.
“The plaintiff was not able to sleep for a month, she
was hospitalized, she not able to eat, she lost
weight.”
“That because of the act of the defendant she
suffered moral damages for which the plaintiff must
be indemnified to for the amount of 1 Million pesos.”
“In order that the act of the defendant will not be
repeated, and to serve as an example, exemplary
damages.”
“Attorney’s fees, because the act of the defendant
the plaintiff was restrained to institute this action,
therefore the defendant should be assessed of
attorney’s fees in the amount of 10 Million pesos.”
That is basically the content or form of a complaint.
February 7, 2020- REYES DM, REYES RA, SAMBRANO
Last meeting we discussed Section 3 of Rule 6. Let us now proceed to
Section 4:
Section 4. Answer. — An answer is a pleading in which a
defending party sets forth his defenses. (4a)
Plaintiff
Comes now plaintiff, Pauline Rojo thru the undersigned counsel and to
this honorable court most respectfully avers that:
1. Plaintiff is of legal age, Filipino Citizen, single and a resident
of Jacinto Street Davao City for the purpose of this instant suit,
plaintiff is to be served with pleadings and other processes of
the honorable court in the office of Atty. Jurilex Maglinte.
Kung halimbawa, representative lang then,
“Pauline Rojo, represented by Herz Apostol, attorney-in-fact.”
Then sa first paragraph,
“Plaintiff is to be represented by her attorney-in-fact, Herz
Apostol, by virtue of Special Power of Attorney attached
hereto as Annex A.”
When a complaint is filed, the court may issue summons to the
defendant. In the summons, the defendant will be given a period of time
within which to file his answer. That is now the pleading to be filed by
the defendant. In the answer, the defending party sets forth his or her
defenses. As to what are these defenses, let us go to Section 5:
Section 5. Defenses. — Defenses may either be negative or
affirmative.
(a) A negative defense is the specific denial of the material fact
or facts alleged in the pleading of the claimant essential to his
or her cause or causes of action.
(b) An affirmative defense is an allegation of a new matter
which, while hypothetically admitting the material allegations in
the pleading of the claimant, would nevertheless prevent or bar
recovery by him or her. The affirmative defenses include fraud,
statute of limitations, release, payment, illegality, statute of
frauds, estoppel, former recovery, discharge in bankruptcy, and
any other matter by way of confession and avoidance.
Affirmative defenses may also include grounds for the
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
8
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
dismissal of a complaint, specifically, that the court has no
jurisdiction over the subject matter, that there is another action
pending between the same parties for the same cause, or that
the action is barred by a prior judgment. (5a)
So based on Section 5, there are two kinds of defenses. We have the
negative and affirmative defenses. What are negative defenses again?
The rule says it is a defense of specific denial. It denies the material
facts averring the complaint essential to establish the cause of action.
Example:
So for example, it is a case for collection of a sum of money. So in
the complaint, the plaintiff alleges that the defendant borrowed 1M
from the plaintiff. So in his answer, the defendant would like to
interpose a negative defense.
In the answer, you have to deny everything and address all the
allegations in the complaint because the complaint would have, in
the first paragraph, the personal circumstances of the plaintiff,
second, the personal circumstances of the defendant and then
maybe he would start stating his allegations, his cause of action.
So, defendant denies the allegations in paragraph A of the complaint.
The truth of the matter is that defendant did not borrow any money
from the plaintiff. The defendant did not sign any promissory note.
The signature in the promissory note attached by the plaintiff in the
complaint is a forgery because it was not participate by my
defendant. So that is a negative defense. But it is not enough that
one merely denies the allegations – if you deny, then what is the
truth? If you just deny without explaining the truth, then that would be
what we call a general denial which equivalent to admission. So you
have to superficially deny the material facts alleged in the pleading.
Affirmative defense
It is a defense of confession and avoidance. The rule says although the
defendant admits the material allegations of the complaint, still, the
complainant or plaintiff is barred from recovering because of the
affirmative defense, such as:
•
Fraud – I admit that I signed the promissory note, but I was
tricked by the plaintiff because he told me it was a love letter.
So you did not know it was a promissory note because it was
dark and his vision was blurred.
•
Statute of Limitations – I admit I signed the promissory note
but the right of action of the plaintiff has already prescribed.
So even if that is correct, recovery is still barred.
subject matter. Or litis pendentia, there is another
action pending between the parties of the same
case. So even if your allegations are true, the
complaint will have to be dismissed because of litis
pendentia, or by res judicata. Even if your
allegations are true, the action should be dismissed
because there was a prior judgement involving the
same subject matter, same parties, the same
causes of action.
How do you interposed the affirmative defense?
Like the payment? Defendant admits the allegations in paragraph 3 of
the complaint that he signed the promissory note undertaking to pay 1M.
However, the defendant has already paid the same amount. So that is
an example of an affirmative defense. Let’s go to Section 6:
Section 6. Counterclaim. — A counterclaim is any claim which a
defending party may have against an opposing party. (6)
Here, the law says it is any claim, so any claim which a defending party
may have against an opposing party. So when you say any claim, it
could be a claim for money or any other relief that the defending party
has against the opposing party. So as discussed in the case of
Bungcayao v Fort Ilocandia.
What are the kinds of counterclaims that we have? We have what
we call a compulsory counterclaim and a permissive
counterclaim.
Bungcayao vs Fort Ilocandia Property Holdings and
Development Corporation
A compulsory counterclaim is any claim for money or any relief which
the defending party may have against the opposing party, which at
the time of the suit, arises out of or is necessarily connected with the
same transaction or occurrence that is the subject matter of the
plaintiff’s complaint. It is compulsory in the sense that it is within the
jurisdiction of the court, does not require for its adjudication the
presence of third parties over whom the court cannot acquire
jurisdiction, and will be barred in the future if not set up in the answer
to the complaint in the same case. Any other counterclaim is
permissive.
Why do we allow counterclaims?
•
Estoppel– barred by laches.
•
For former recovery, I admit I borrowed 1M but I have already
paid the full amount as evidenced by the acknowledgement
receipt signed by the plaintiff attach hereto as Annex.
•
For discharge in bankruptcy, and any other matter by way of
confession and avoidance – Here we have the additional rules
in the last paragraph including affirmative defenses, which
may include no jurisdiction.
For example, A filed a case against B for recovery of possession of
property. So B filed his answer. He denied his allegations in the
complaint and then he set up a counterclaim that he also would like to
deny the alleges regardless of the result of the case, B the defendant
would like to claim for damages and indemnification against the plaintiff
for the value of the construction which the defendant made on the
property. So he has a claim against the plaintiff.
It could be a compulsory or permissive counterclaim.
When you allege this, you are
hypothetically admitting that the admission the
admissions in the complaint. Assuming for the sake
of argument: Someone you owe 1M filed a case,
but there was no jurisdiction because the case was
filed in the MTC. The case may be dismissed in the
MTC, but when the case reaches the RTC, you are
bound by your admission. So you will not say
anything about it, but you will say that the court has
no jurisdiction over the subject matter because the
amount is beyond jurisdiction of the MTC. So here,
the allegations are just deemed being
hypothetically admitted. That is the consequence if
you include the defense of no jurisdiction over the
Now why do we allow counterclaims?
The usual reason is in the case of:
Raymundo vs. Felipe
To prevent the multiplicity of suits by allowing the determination in
one action of the entire controversy between the parties, thus
avoiding inconvenience, expense, waste of the court’s time, and
injustice. A counterclaim also enables a defendant to make his
defense more complete and effectual than it would be in one answer
alone.
So when there is a counterclaim interposed by the defendant in his
answer, actually, there are two complaints now. We have the complaint
of A against B for recovery of possession, and then the counterclaim of
B against A which is also a complaint for indemnification of damages.
So there are basically two complaints.
How to set up a counterclaim?
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
9
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
It depends.
If it is a compulsory counterclaim, then you have no other choice but
to set it up in your answer, otherwise, if you fail, the compulsory
counterclaim is already deemed barred.
So what does an answer look like?
The same as what we discussed before. You have the caption: the title
of the court, regional trial court, the Republic of the Philippines, you
should not lie in court, 11th judicial region, Branch 16, Davao City, then
title so, you have A vs B and then Civil Case No. – which is already
there. This is because when you receive the summons, there is already
a case number in place, unlike a complaint, that when you file it, the
case number is blank. And then fourth – this would be the title of the
case, which is for recovery of possession. Then there would be Answer
With Counterclaim, or just Answer.
So here comes defendant through the undersigned counsel, to the
honorable court, most respectfully filed, the instant answer. So you have
to address everything in the complaint. It depends.
parties of whom the court cannot acquire jurisdiction. Such a
counterclaim must be within the jurisdiction of the court both as to the
amount and the nature thereof, except that in an original action before
the Regional Trial Court, the counter-claim may be considered
compulsory regardless of the amount.
So this is the definition of a compulsory counterclaim.
What are the REQUISITES?
Based on the Rules and what we have discussed:
1.
Meaning it should be related or arise out
of the transaction which is the subject matter of the
complaint filed.
For example, A filed a case against B for
collection of 1M. In this counterclaim, B alleged that
he already paid the 1M, so the suit of A is
unfounded, because he has merely intended to
harass him and for that reason, he suffered moral
damages. He could not sleep for one month, he
suffers anxiety, moral shock and for that, he is
claiming 1M by way of damages. Is that a
permissive or compulsory counterclaim? It is
compulsory, because it is related to the complaint.
Without the complaint, he would not even suffer
those moral damages and so, it arises out of the
occurrence of the subject matter of the plaintiff
First, do you deny the circumstances of the plaintiff? The defendant
denies the allegations in paragraph 1 of the complaint because
defendant does not know at all the person of the plaintiff, so he cannot
admit the personal circumstances, whether he is of legal age, married,
President of the Philippines, etc.
Second, defendant admits allegations in paragraph two of the complaint.
So all the allegations in the complaint, you either have to admit or
deny.
If you deny, it could be a negative defense or an affirmative defense.
And then when you’re done with your defenses, you go to your counter
claim.
Counterclaim
Now, if it is a compulsory counterclaim, again, it has to be included or
interposed in the Answer – defendant repleads all the allegations in the
foregoing paragraphs and by way of counterclaim, alleges that on
January 1, 2005 – it is just like the complaint, you have to recite the facts
of the cause of action of your counterclaim. That is how you interpose a
compulsory counterclaim.
2.
It does not require, for its adjudication, the presence of
third parties of whom the court cannot acquire
jurisdiction.
If your counterclaim would include
indispensable parties, persons who are not in the
Philippines for example, like recovery of possession
and you file a counterclaim for partition, but in
partition, you have to include all the co-owners, but
two of the co-owners are abroad, so the court
cannot acquire jurisdiction. Can you file that
partition case? Actually you can file it separately.
How about the fact that the co-owners are not here?
You can still include them as defendants, although
the service of summons is different. Actually, it
involves property, so even if their non-residents, it
is still allowable, but not as to compulsory
counterclaims. In fact, the court will order you to file
a separate case for that.
How about permissive? If you choose to also include that in your
answer, the format is that same. But, you are not compelled to include
the counterclaim in your answer. Why? Because you can make it a
subject of a separate case against the plaintiff. Again, even if you don’t
set it up in your Answer, you are not barred. But if it is a compulsory
counterclaim, you have to set it up in your answer. You cannot make it
a subject of a separate complaint. Failure to set it up in the Answer will
bar you from later on asking for recovery.
Let’s go to Section 7:
Section 7.Compulsory counterclaim. — A compulsory
counterclaim is one which, being cognizable by the regular
courts of justice, 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. Such a counterclaim must be within the
jurisdiction of the court both as to the amount and the nature
thereof, except that in an original action before the Regional
Trial Court, the counterclaim may be considered compulsory
regardless of the amount. A compulsory counterclaim not
raised in the same action is barred, unless otherwise allowed by
these Rules. (7a)
It arises out of or is connected with a transaction or
occurrence constituting the subject matter of the
opposing party’s claim –
Assuming for the sake of argument that
the partition arises out of the same subject matter
of the complaint, but there are indispensable parties
there over whom the court cannot acquire
jurisdiction, it will not be allowed as a compulsory
counterclaim. You will have to try a separate case
for that.
3.
It must be within the jurisdiction of the court, both as to
the amount and the nature of the claim.
There are several cases here.
In the case of Bongcayao vs. Fort Ilocandia.
Compulsory counterclaim.
A compulsory counterclaim is one which, being cognizable by the
regular courts of justice, 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
Bungcayao vs Fort Ilocandia Property Holdings and
Development Corporation
The Court has ruled that the compelling test of compulsoriness
characterizes a counterclaim as compulsory if there should exist a
logical relationship between the main claim and the counterclaim.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
10
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
The Court further ruled that there exists such a relationship when
conducting separate trials of the respective claims of the parties
would entail substantial duplication of time and effort by the parties
and the court; when the multiple claims involve the same factual and
legal issues; or when the claims are offshoots of the same basic
controversy between the parties.
The criteria to determine whether the counterclaim is compulsory or
permissive are as follows:
(a) Are issues of fact and law raised by the claim and by the
counterclaim largely the same?
(b) Would res judicata bar a subsequent suit on defendant's claim,
absent the compulsory rule?
(c) Will substantially the same evidence support or refute plaintiff's
claim as well as defendant's counterclaim?
(d) Is there any logical relations between the claim and the
counterclaim?
A positive answer to all four questions would indicate that the
counterclaim is compulsory.
How do you know that there is this logical relationship between the
main claim and counterclaim?
There exists such a relationship when conducting separate trials of the
respective claims of the parties would entail substantial duplication of
time and effort by the parties and the court.
So when this claims involve the same factual and legal issues or when
the claims are offshoots of the same basic controversies between the
parties. So in that case we can say that there is a logical relationship
between the main case and the counterclaim. In that case it is a
compulsory counterclaim.
Example:
A filed a case for recovery of possession against B. Bi in his
counterclaim asked for damages and indemnities on the value of the
improvements constructed because according to B he is a builder in
good faith even if assuming that A is entitled to recover the property, he
has to be indemnified on the value of the improvements or instructions.
What’s the nature of that counterclaim? Compulsory Counterclaim. It is
an offshoot of the main case. If he is allowed to recover, B will gave to
be paid the value of damages. So they are related.
In this case of Bungcayao which we already mentioned, there are 4 test
mentioned whether the counter claim is compulsory or permissive.
The criteria to determine whether the counterclaim is compulsory
or permissive are as follows:
(a)
Are issues of fact and law raised by the claim and by the
counterclaim largely the same?
(b) Would res judicata bar a subsequent suit on defendant's
claim, absent the compulsory rule?
(c)
Will substantially the same evidence support or refute
plaintiff's claim as well as defendant's counterclaim?
(d) Is there any logical relations between the claim and the
counterclaim?
If the answer to all these questions would be YES, then what you have
is a compulsory counterclaim.
As we have already discussed, one requisite of a compulsory
counterclaim is that there must be a logical connection between the
counterclaim and the subject matter of the case. However there are
instances that even if there is a logical connection, it cannot be
considered a compulsory counterclaim if the amount exceeds the
jurisdiction of the court.
So for example the recovery of possession is filed before the MTC, it
can be filed depending on the assessed value of the property and then
in the answer with counterclaim the defendant interposed claim for
damages and would like to be indemnified for the value of the
improvements and constructions made as a builder in good faith
amounting to Php 5,000,000. The MTC has no jurisdiction over the
amount of Php 5,000,000.00 even if there is a logical connection
between the subject matter of the complaint and counterclaim. However,
the MTC cannot grant such amount of damages. It is beyond the
jurisdiction of the MTC. Although the defendant has an option, he could
waive the balance so that his counterclaim will be limited to the amount
within the jurisdiction of the MTC.
There are also instances where the defendant already knows that his
counterclaim is beyond the jurisdiction of the MTC and he knows it will
not be granted nonetheless naapil gihapon just to weaken the claim of
the plaintiff. Para mahuraw si plaintiff na dili na lang magpadayon sa
kaso kay mas dako pa man diay ang iyang bayaran kesa sa defendant
as discussed in the case of Maceda vs CA and Agustin vs Bacalan.
As to that waiver that was discussed in the case of Reyes vs CA, there
is *inaudible*.
Now even if it is said that the Court cannot consider it as a compulsory
counter claim if the claim is not within the jurisdiction of the court but in
the RTC if the counterclaim is necessarily connected or related to the
complain regardless of the amount of the counterclaim it can still be
considered compulsory counterclaim in the RTC.
So again recovery of possession in the answer with counterclaim,
defendant said he wants to be indemnified for the improvement and the
constructions he made on the land amounting to Php 200,000. The Php
200,000 claim for damages is what jurisdiction? With the MTC. Still if the
case is filed with the RTC, it will be considered as a counterclaim as long
as the subject matter of the counterclaim has a logical connection to the
subject matter of the complaint. Again sa MTC dili pwede pero pwede iwaive ni defendant ang balance para didto lang siya kutob sa jurisdiction
of the MTC.
There are also cases na dili siya pwede like because it is not within the
jurisdiction of the RTC.
Example: Plaintiff filed an action for damages against the defendant for
Php 500,000. That is within the jurisdiction of the RTC. Now the
defendant filed an answer with counterclaim and alleges facts which
would constitute unlawful detainer. Pwede ban a siya ma-consider as a
counterclaim in the RTC? NO because an unlawful detainer case is
within the jurisdiction of the MTC.
Employer filed a case for collection against the employee in the RTC
because the amount is Php 1,000,000. In the counterclaim, the
employee interposed the defense assuming for the sake of argument na
the employee is liable for the amount but the employer is also liable
because the employee was illegally dismissed from employment. So
ang iyahang counterclaim is for illegal dismissal. Can that be considered
as a counterclaim in the RTC? NO because illegal dismissal cases is
within the jurisdiction of the Labor Arbiter under the NLRC.
So that would be the nature of a compulsory counterclaim.
Permissive Counterclaim
It is permissive when any of the requisites of a compulsory counterclaim
is not present. So that is a permissive counterclaim.
The usual test is the absence of a logical connection between the claim
of the plaintiff and the counterclaim of the defendant. They arise out of
different occurrences so they are separate but still that can be allowed
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
11
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
as a counterclaim. As long as the permissive counterclaim is within the
jurisdiction of the court where that counterclaim is made.
Example: Plaintiff filed a case for damages based on quasi-delict and
then the defendant files a counterclaim for collection of sum of money.
Walay relation ilahang claims but that may be allowed as a permissive
counterclaims.
Why do we have to bother whether a counterclaim is compulsory
or permissive?
Because there are certain rules which may apply only to compulsory
counterclaims which are not applicable to permissive counterclaims.
1.
Answer: Is there a need to answer the counterclaim?
DISCUSSION: For example plaintiff filed a complaint against
the defendant. Then defendant files an answer with
counterclaim, so when we say counterclaim it is also a
complaint by the defendant against the plaintiff. When a
defendant fails to file an answer, he can be declared in default
that’s why he has to file an answer. Now the defendant is filing
a counterclaim against the plaintiff, does the plaintiff have to
answer the counterclaim? Can the plaintiff be declared in
default if he refuses or fails to file an answer to the
counterclaim? It would matter if the counterclaim is
compulsory or permissive. If it is a compulsory counterclaim,
you don’t have to file an answer. All the matters interposed in
the compulsory counterclaim are deemed controverted
because there is a logical relation between the complaint and
the counterclaim. So necessarily kung mutubag man si
complainant sa counterclaim, ang iyahang tubag pareha ra
gihapon sa gibutang niya sa iyang complaint because naa
may connection. Ang defense ni plaintiff sa counterclaim ni
defendant didto sa compulsory counterclaim would be the
same allegations mentioned in his complaint. But if it is a
permissive counterclaim it is entirely a different claim. It has
no relation to the facts or occurrences alleged in the
complaint. That is why if the plaintiff fails to answer the
permissive counterclaim, he can be declared in default in the
permissive counterclaim.
2.
Docket Fees: Do we need to pay docket fees for the
counterclaim?
DISCUSSION: It would matter if it is a permissive
counterclaim or a compulsory counterclaim. There are
jurisprudence but the latest says when it comes to compulsory
counterclaims there are no docket fees. Although in the case
of Korea Technologies Limited vs Lerma citing A.M. No. 04-204-SC that docket fees are not only for permissive
counterclaims but are now required to be paid in compulsory
counterclaim, cross-claims, third-party complaints, etc., and
complaints in intervention.
But in the case of Villanueva-Ong vs Enrile, the Supreme
Court clarified that the ruling in Korea Technologies Limited
vs Lerma is suspended.
Villanueva-Ong vs Enrile
Neither should her counterclaims be dismissed pursuant to
this Court's ruling in Korea Technologies Co. Ltd. v. Hon.
Lerma, et al., which held that "effective August 16, 2004
under Section 7, Rule 141, as amended by A.M. No. 04-204-SC, docket fees are now required to be paid in
compulsory counterclaim or cross-claims." Note must be
taken of OCA Circular No. 96-2009 entitled "Docket Fees
For Compulsory Counterclaims," dated August 13, 2009,
where it was clarified that the rule on imposition of filing
fees on compulsory counterclaims has been suspended.
Such suspension remains in force up to this day.
So if it is permissive counterclaim, clearly kung wala kay
docket fees paid, it can be dismissed because docket fees are
necessary for the court to acquire jurisdiction over your
permissive counterclaim. If it is compulsory, it is not required.
In this case Villanueva-Ong vs Enrile, what happened here?
Villanueva-Ong vs Enrile
FACTS: On December 4, 2012, Juan Ponce Enrile
(respondent) filed a civil Complaint for damages against
Yolanda Villanueva-Ong (petitioner) for libel before the
Regional Trial Court (RTC) of Pasay City.
The respondent filed a Motion to Dismiss (Re: Defendant's
permissive counterclaims) which argued that petitioner's
counterclaims are actually permissive, and hence should
have complied with the requirements of an initiatory
pleading, specifically the payment of docket fees and
certification against forum shopping. Respondent prayed
for dismissal of petitioner's counterclaims for her failure to
comply with such requirements.
Meanwhile, petitioner opposed respondent's motion
arguing that her counterclaims are both compulsory in
nature, since both counterclaims arose from the filing of
respondent's complaint.
The RTC, in its Order dated April 26, 2013, gave petitioner
15 days from receipt of the said order, to pay the
appropriate docket fees, otherwise, such counterclaims
shall be dismissed. Despite petitioner's motion for
reconsideration, the RTC stood its ground, and affirmed its
ruling in the Order12 dated July 22, 2013.
Dissatisfied, petitioner filed a petition for certiorari with the
CA.
On March 4, 2014, the CA denied the petition.
Hence this petition where petitioner argues that the CA
erred in ruling that her counterclaims are permissive in
nature. She contends that the same are compulsory,
having arisen from respondent's filing of complaint in the
court a quo.
In his Comment, respondent maintains that petitioner's
counterclaims are permissive in nature since they are
based on different sources of obligations: petitioner's
counterclaims are based on quasi-delict, while
respondent's claim is based on delict.
ISSUE: Are petitioner's counterclaims compulsory or
permissive in nature?
HELD: COMPULSORY COUNTERCLAIM
The nature and kinds of counterclaims are well-explained
m jurisprudence. In Alba, Jr. v. Malapajo, the Court
explained:
[C]ounterclaim is any claim which a defending party may
have against an opposing party. A compulsory
counterclaim is one which, being cognizable by the regular
courts of justice, 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. Such a counterclaim must be
within the jurisdiction of the court both as to the amount
and the nature thereof, except that in an original action
before the Regional Trial Court, necessarily connected
with the subject matter of the opposing party's claim or
even where there is such a connection, the Court has no
jurisdiction to entertain the claim or it requires for
adjudication the presence of third persons over whom the
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
12
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
court acquire jurisdiction. A compulsory counterclaim is
barred if not set up in the same action.
"A counterclaim is permissive if it does not arise out of or
is not necessarily connected with the subject matter of the
opposing party's claim. It is essentially an independent
claim that may be filed separately in another case."
Determination of the nature of counterclaim is relevant for
purposes of compliance to the requirements of initiatory
pleadings. In order for the court to acquire jurisdiction,
permissive counterclaims require payment of docket fees,
while compulsory counterclaims do not.
Jurisprudence has laid down tests in order to determine the
nature of a counterclaim, to wit:
(a) Are the issues of fact and law raised by the claim and
the counterclaim largely the same?
(b) Would res judicata bar a subsequent suit on
defendants' claims, absent the compulsory counterclaim
rule?
(c) Will substantially the same evidence support or refute
plaintiffs' claim as well as the defendants' counterclaim?
and
(d) Is there any logical relation between the claim and the
counterclaim[?] x x x
[A positive answer to all four questions would indicate that
the counterclaim is compulsory].
In this case, the complaint filed by respondent for damages
arose from the alleged malicious publication written by
petitioner, hence central to the resolution of the case is
petitioner's malice, or specifically that the libelous
statement must be shown to have been written or
published with the knowledge that they are false or in
reckless disregard of whether they are false or not.
Meanwhile, petitioner's counterclaim presupposes bad
faith or malice on the part of respondent in instituting the
complaint for damages. In the allegations supporting her
counterclaims, it was alleged that respondent's complaint
was filed merely to harass or humiliate her.
Such allegations are founded on the theory of malicious
prosecution. Traditionally, the term malicious prosecution
has been associated with unfounded criminal actions,
jurisprudence has also recognized malicious prosecution
to include baseless civil suits intended to vex and humiliate
the defendant despite the absence of a cause of action or
probable cause.
In this case, while it can be conceded that petitioner can
validly interpose a claim based on malicious prosecution,
the question still remains as to the nature of her
counterclaim, and the consequent obligation to comply
with the requirements of initiatory pleadings.
We find that petitioners claims are compulsory, and hence
should be resolved along with the civil complaint filed by
respondent, without the necessity of complying with the
requirements for initiatory pleadings.
Indeed, a perfunctory reading of respondent's allegations
in support of her counterclaims refers to incidental facts or
issues related to her counterclaim against petitioner. She
alleges that respondent unduly singled her out, and is
actually violating her legal and constitutional rights.
However, stripped of the aforesaid niceties, it is at once
apparent that petitioner essentially argues that
respondent's suit is unfounded and is merely instituted to
harass and vex her.
A counterclaim purely for damages and attorneys fees by
reason of the unfounded suit filed by the respondent, has
long been settled as falling under the classification of
compulsory counterclaim and it must be pleaded in the
same action, otherwise, it is barred. In Lafarge Cement
Phil. Inc. v. Continental Cement Corp. citing Tiu Po, et al.
v. Hon. Bautista, et al., this Court ruled that counterclaims
seeking moral, actual and exemplary damages and
attorneys fees against the respondent on account of their
malicious and unfounded complaint was compulsory.
In this case, the counterclaims, set up by petitioner arises
from the filing of respondent's complaint. "The
counterclaim is so intertwined with the main case that it is
incapable of proceeding independently." We find that the
evidence supporting respondent's cause that malice
attended in the publication of the article would necessarily
negate petitioner's counterclaim for damages premised on
the malicious and baseless suit filed by respondent.
Bungcayao, Sr. v. Fort Ilocandia Property Holdings and
Development Corp. cited by respondent, is starkly different
from the factual circumstances obtaining at the case at bar.
In that case, petitioner Manuel C. Bungcayao, Sr. sought
the annulment of a Deed of Assignment, Release, Waiver
and Quitclaim, on the ground of the lack of authority of
petitioner's son to represent him thereon. For their part,
respondent prayed, as counterclaims to the complaint, that
petitioner be required to:
1) return the amount of P400,000 from respondent,
2) to vacate the portion of the respondent's property he
(petitioner) was occupying, and 3) to pay damages
because his (petitioner) continued refusal to vacate the
property caused tremendous delay in the planned
implementation of Fort Ilocandias expansion projects.
In that case, We ruled that the recovery of possession of
the property is a permissive counterclaim, while being an
offshoot of the basic transaction between the parties, will
not be barred if not set up in the answer to the complaint in
the same case. This is because the title of respondent to
the disputed property therein was actually recognized by
the administrative authorities. Necessarily, respondent will
not be precluded from asserting its right of ownership over
the land occupied by petitioner in a separate proceeding.
In other words, respondent's right therein can be enforced
separately and is distinct from the legal consequences of
the Deed of Assignment, Release, Waiver and Quitclaim
executed between the parties therein.
The same, however, does not obtain in the instant case.
Petitioner's counterclaims refer to the consequences
brought about by respondent's act of filing the complaint for
damages.
Petitioner's allegation citing Article 32 of the Civil Code do
not dilute the compulsory nature of her counterclaims. In
Alday v. FGU Insurance Corporation,29 this Court found
the following allegation in therein defendant's counterclaim
to be permissive, despite mention of the civil code
provision on abuse of rights, to wit:
(b) the minimum amount of P500,000.00 plus the
maximum allowable interest representing defendant's
accumulated premium reserve for 1985 and previous
years, which FGU has unjustifiably failed to remit to
defendant despite repeated demands in gross violation of
their Special Agent's Contract and in contravention of the
principle of law that "every person must, in the exercise of
his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and
good faith."30 (Emphasis ours)
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
13
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
Considering the foregoing, petitioner's counterclaims
should not be prejudiced for non-compliance with the
procedural requirements governing initiatory pleadings.
Neither should her counterclaims be dismissed pursuant to
this Court's ruling in Korea Technologies Co. Ltd. v. Hon.
Lerma, et al.,31 which held that "effective August 16, 2004
under Section 7, Rule 141, as amended by A.M. No. 04-204-SC, docket fees are now required to be paid in
compulsory counterclaim or cross-claims."32 Note must be
taken of OCA Circular No. 96-2009 entitled "Docket Fees
For Compulsory Counterclaims," dated August 13, 2009,
where it was clarified that the rule on imposition of filing
fees on compulsory counterclaims has been suspended.
Such suspension remains in force up to this day.
DISCUSSION: Enrile filed a civil case for damages against
Yolanda Villanueva-Ong. Ngano man? The dmaages
because of the libelous article. So defamation. The alleged
libelous article entitled "Like father like Son?" was published
in page, Opinion Section of the Philippine Star. The article was
authored by petitioner. Basta mao na siya ang subject sa
complaint ni Enrile against Ong.
Now in the answer with counterclaim, Ong said that bad faith
or malice on the part of respondent in instituting the complaint
for damages. That the complaint was filed merely to harass or
humiliate her and that Enrile singled her out and is actually
violating her legal and constitutional rights. So these
allegations are founded on malicious prosecution.
Enrile moved to dismiss the counterclaim on the ground that
Ong failed to pay docket fees for the counterclaim and Enrile
cited whether it is permissive or compulsory, you have to pay
the docket fees based on the case of Korean Technologies.
The Supreme Court said the Korean Technologies ruling is
suspended. Now there is a need to determine whether it is
permissive or compulsory counterclaim because if this is
compulsory, there is no need to pay docket fees. Is Ong’s
counterclaim permissive or compulsory? Based on the criteria
which we discussed, the subject matter of the counterclaim is
actually related to the complaint. Actually it arises out of the
complaint because according the Ong the complaint filed
against her was meant to humiliate or harass her because she
was singled out that’s why she filed a counterclaim for
damages. So there’s a logical relation between the complaint
and the counterclaim. The counterclaim necessarily arises out
of the facts contained in the complaint. So that is a compulsory
counterclaim. Therefore there’s no need to pay the docket
fees.
Now let us summarize the distinction between compulsory counterclaim
and permissive counterclaim.
COMPULSORY
Counterclaim
PERMISSIVE
Counterclaim
A compulsory counterclaim
which the party has at the time
the answer is filed shall be
contained in the answer.
A permissive counterclaim
may be set up or interposed
as part of the answer or as
an independent civil action.
So
all
compulsory
counterclaims which already
matured at the time when the
defendant filed his answer
must already be included in
that compulsory counterclaim
alleged
in
the
answer
otherwise the compulsory
counterclaim
is
deemed
barred.
If failed to be set up in the
answer even if it has
already matured at the time
the defendant filed his
answer, it would not be
deemed barred.
A compulsory counterclaim is
not an initiatory pleading
A compulsory counterclaim,
does not require the 2
certificates in a permissive
counterclaim because it is not
initiatory in character
Cannot be defaulted - Failure
to answer a compulsory
counterclaim is no a cause for
a default declaration. A
compulsory counterclaim that
merely reiterates special
defenses
are
deemed
controverted even without a
reply, or raises issues which
are deemed automatically
joined by the allegation of the
complaint, need not be
answered. With Automatic
controversion.
No need to pay docket fees.
A permissive counterclaim
is written as an initiatory
pleading
A permissive counterclaim
because
should
be
accompanied by a:
(1) Certification
against
forum
shopping
and
whenever required by the
law, also a
(2) Certificate to file action
issued by the Lupong
Tagapamayapa because it
is an initiatory pleading.
May be defaulted - A
permissive
counterclaim
must be answered by the
party against whom it is
interposed otherwise, he
may be declared in default
as to the counterclaim.
Without
automatic
controversion.
The docket and other lawful
fees should be paid for a
permissive counterclaim
Section 8. Cross-claim. – 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. Such cross-claim may cover all or part of
the original claim. (8a)
Example 1: “subject matter of the original action”
A filed a case against B and C for collection of sum of money.
B can file a cross-claim against C. (because according to B it was C who
owes the debt.)
Example 2: “subject matter of a counterclaim therein”
A filed a case against B.
B files a counterclaim against A. A here argues that it should not be him,
rather X. so A here files a cross claim against X.
Cross-bill
Cross-claim originated from the concept of a Cross-Bill. It is defined as
one brought by a defendant in an equity suit against the other
defendants in the same suit touching matters in question in the original
bill. It is also considered as an auxiliary suit dependent on the original
bill and can be sustained only on matters growing out of the original bill.
In other words, it has the same concept as that of a cross-claim.
Example: (continuation of Example 1)
B filed a cross claim against C arising out of the complaint filed by A
against B and C.
In a cross-claim, the cross-claim must necessarily be related to the
subject matter of the original complaint.
RUIZ, JR. VS CA
G.R. No. 101566, August 17, 1992
Because the cross-claim arises out of the very same subject matter
of the complaint, the cross-claimants cannot claim more rights than
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
14
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
the plaintiffs themselves, on whose cause of action the cross-claim
depended.
The SC said, you cannot be declared in default for failing to answer
a cross-claim if you already answered the original complaint.
What happens if the original complaint is dismissed?
The dismissal of the complaint divested the cross-claimants of
whatever appealable interest they might have had before and also
made the cross-claim itself no longer viable
Here, IDP answered to the original complaint filed by INC.
Necessarily, the allegations and the defenses of IDP in its answer to
the cross-claim of Ligon is the same as those defenses it stated in its
answer to the original complaint filed by INC. In other words, as long
as IDP answered to the original complaint, the allegations in the
cross-claim of Ligon are deemed controverted.
Example: (continuation of Example 1)
What if the original complaint of A against B and C was dismissed?
Would the cross-claim of B against C continue? NO, because the crossclaim is dependent upon the existence of the main case.
Therefore, it would not be possible that the cross-claim will be
decided ahead of the original complaint because again, the crossclaim is dependent upon the existence of the original complaint.
LIGON VS CA
G.R. No. 127683, August 7, 1998
Hence, it was irregular for the court here to declare IDP in default and
to foreclose the mortgage.
FACTS:
Islamic Director of the Philippines (IDP) mortgaged a property in
favor of Ligon. Subsequently, IDP sold the mortgaged property to
Iglesia ni Cristo (INC).
B & I REALTY CO., INC. VS CASPE
G.R. No. 146972, January 29, 2008
There were conditions in the contract of sale of IDP and INC. INC
alleged that IDP failed to comply with the said conditions, prompting
INC to file an action for specific performance against IDP.
RTC ruled in favor of INC.
INC filed a complaint for annulment of mortgage against Ligon, IDP
and two other persons.
Ligon then filed the following:
1. a counterclaim against INC;
2. a cross-claim for foreclosure of mortgage against IDP; and
3. a third-party complaint against the parties who signed the
loan and mortgage agreement, who alleged themselves to
be the representatives of IDP.
IDP filed a cross-claim against Ligon alleging that Ligon knew that
the parties who signed the contracts of loan and mortgage are not
authorized by the company or IDP. Moreover, that IDP did not benefit
from the loan.
In the cross-claim for foreclosure of mortgage filed by Ligon against
IDP, the latter did not answer. Hence, IDP was declared in default
and the mortgage was foreclosed.
ISSUE:
Was it proper for the court to declare IDP in default and authorize the
foreclosure of the mortgage? NO
RULING:
A cross-claim it arises out of the same subject matter of the
complaint, hence, it should be necessarily related to the object or
subject matter of the complaint. That is why the existence of the
cross-claim is dependent upon the existence of the complaint.
Would it be possible that the case in the cross-claim is decided ahead
of the original complaint as what happened in this particular case?
Wherein the court decided the cross-claim of Ligon for foreclosure of
mortgage against IDP ahead of the case of INC against IDP which is
annulment of mortgage? What happens now to the annulment case
of INC?
The SC said that it is improper. The partial decision resolved this
issue against INC through the backdoor and without INC having
presented its evidence. In short, the trial court disregarded the fact
that Ligon's cross-claim was connected with, or dependent on, the
subject of INC's original complaint.
FACTS:
D, debtor, mortgaged a property to C, creditor. O, the person alleging
to be the owner of the mortgaged property filed an action for the
declaration of nullity of mortgage against both C and D. O filed his
case on the ground that D cannot mortgage the property because in
a contract of mortgage, it is essential that the mortgagor is the owner
of the property mortgaged but here, D is not the owner.
Now, C, during the pendency of the case for annulment, threatened
to foreclose the property. But later, it was contended here that the
action for foreclosure has already prescribed.
ISSUES:
1. Can the creditor wait until the nullity case was decided
before he can foreclose the mortgage? NO
2. Does the filing of the nullity case interrupt the prescriptive
period for foreclosure of mortgage? NO
3. If the creditor files an action for foreclosure of mortgage
while the case for declaration of nullity of mortgage is
pending, is it tantamount to forum shopping? NO
RULING:
1. Actually, there is no need for him to wait because he has a remedy.
Such remedy is to file a cross-claim for foreclosure of mortgage
against D, the debtor.
So, when O filed a case for declaration of nullity of mortgage against
C and D, in that same case, C can file a cross-claim against D for
foreclosure of mortgage.
Therefore, C cannot use an excuse that there was still a case for
declaration of nullity of mortgage before he can institute an action for
foreclosure of mortgage. The SC said, in that particular situation, it
would even mean to the best interest of the creditor to interpose a
cross-claim in that case so that the court will have a wider perspective
of the case. The Court will be able to see all the issues of the parties
involved in the case
2. The SC said that what would interrupt is the filing itself of the action
for foreclosure. Article 1142 of the NCC provides that the prescriptive
period institute an action for foreclosure of mortgage is 10 years.
Hence, when O filed a complaint for declaration of nullity, the same
had no effect to the foreclosure as it was an entirely different case.
3. Their causes of action although related is not the same for they
are holders of different rights. O’s cause of action is that being the
owner of the property, there was unauthorized use of the property
and such is based on law while as to A that he can foreclose the
mortgage based on contract.
How about the fact that in the cross-claim of Ligon against IDP, IDP
failed to answer and as such IDP should be declared in default?
His proper remedy is to file a cross-claim for foreclosure. The SC
said, C cannot now claim that it had to wait for the decision of the
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
15
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
court in the nullity case before it could institute the foreclosure. Its
actuations clearly manifested that it knew its rights under the law but
chose to sleep on the same.
The filing of a cross-claim would have been proper there. All the
issues pertaining to the mortgage - validity of the mortgage and the
propriety of foreclosure - would have been passed upon concurrently
and not on a piecemeal basis. This should be the case as the issue
of foreclosure of the subject mortgage was connected with, or
dependent on, the subject of annulment of mortgage.
Section 9. Counter-counterclaims and counter-cross claims. -A
counterclaim may be asserted against an original counterclaimant.
A cross-claim may also be filed against an original crossclaimant. (9)
Example 1: Counter-counterclaims
A files a case against B.
B files a counterclaim against A.
A now files a counterclaim on the counterclaim against B.
Example 2: Counter-cross claims
A files a case against B and C.
B files a cross-claim against C.
C now files a counterclaim on the cross-claim against B.
COUNTERCLAIM
Filed against opposing party.
It is when defendant files a case
against the plaintiff.
Considered a distinct suit that is
independent to main action. The
dismissal of original claim on the
merits (and not through MTD
under Rule 16) does not affect
the
dismissal
of
the
counterclaim. The dismissal
must be on the merits and not a
MTD.
It may be permissive or
compulsory.
If permissive, it need not arise
out of the same occurrence
which is the subject matter of the
original or main action.
It may be asserted against an
original counterclaimant.
There is no counterclaim against
a cross-claim. This is technically
a cross-claim.
CROSS-CLAIM
Filed against a co-party.
Defendant
against
a
defendant.
claims arising out of the new matters so alleged, such claims
shall be set forth in an amended or supplemental complaint.
However, the plaintiff may file a reply only if the defending party
attaches an actionable document to his or her answer.
A reply is a pleading, the office or function of which is to deny,
or allege facts in denial or avoidance of new matters alleged in,
or relating to, said actionable document.
In the event of an actionable document attached to the reply, the
defendant may file a rejoinder if the same is based solely on an
actionable document. (10a)
There is an amendment here. Before, the rule is: the plaintiff files a
complaint and the defendant files his answer, it could be an answer
purely or an answer with counterclaim. The plaintiff has the option as to
whether or not he will file a reply to the answer. Now, there are instances
when the filing of a reply before the amended rules, it became
mandatory when:
1. There is an allegation of usury in the Answer. Because, the
plaintiff has to deny that under oath or;
2. if the answer alleges a defense based on an actionable document.
Here, the plaintiff has to file a Reply otherwise he will be deemed to have
admitted the genuineness and due execution of the document attached
in the Answer and make it as the basis of the defense.
Under the amended rules:
General Rule: Dili pwede mag-file ug Reply si plaintiff.
co-
It is considered as an auxiliary
suit dependent on the action,
thus dismissal of the original
action affects the cross-claim.
The claim must arise from the
same transaction or occurrence
of the subject matter of the
original action.
A cross-claim is necessarily
compulsory.
It may be asserted against
original cross claimant.
A files a case against B and C. B
files a cross-claim against C. C
on the other hand files a
counterclaim on the cross-claim
against B. (cross-claim against
an original cross-claimant)
There can be a cross-claim
against a counterclaim.
A and B, plaintiffs file a case
against C, defendant. Defendant
C files a counterclaim against
one of the plaintiffs. Based on
C’s counterclaim, A files a crossclaim against B.
February 12, 2020- ESCOBIDO
Section 10. Reply. — All new matters alleged in the answer are
deemed controverted. If the plaintiff wishes to interpose any
So, if defendant answered dili na pwede mag file ug Reply si plaintiff.
What if there are new matters alleged in the answer na gusto tubagon
ni plaintiff?
1.
Even if there are new matters alleged in the answer, even if
the plaintiff will not file a reply, those new matters including
everything in the answer are deemed controverted meaning denied
to sya. There will be no admission on the part of the plaintiff. Mao
na sya iyahang first option, just ignore, deadma; or
2.
Kung dili jud sya mahimutang, he still cannot file a Reply. He
has to file an amended or supplemental pleading. Maybe an
amended complaint na sa iyahang complaint balikon niya tung
iyang gipang allege before dugangan niya daan so kadtong mga
new matters nga naa sa Answer ni defendant na wala niya na
mention sa complaint, ibutang niya daan didto.
But, if the Answer aside from alleging new matters, the answer is also
based on an actionable document which is properly alleged and
attached to the Answer. Here, it now becomes mandatory for the plaintiff
to Reply.
Why? Because it will be deemed admitted. The genuineness and due
execution of the actionable document which is the basis of the defense
of the defendant will be deemed admitted if not refuted by the plaintiff in
the Reply.
How about the usury?
Wala nana sya kay under the new rules wala nan aka mention didto ang
usury. In the first place, the Usury Law has been suspended a long time
ago. If there is an interest imposed in a promissory note or a contract of
loan even if it is so high, still, it is no longer considered usurious because
the law no longer imposes a ceiling in the interest rates. But it doesn’t
mean na ang creditors, sige patuyangan nalang nato pila ang interest -- 100% per day interest--- it can still be declared iniquitous and
unconscionable.
The law says, however, a plaintiff may file a Reply only if a defending
party attaches an actionable document to his/her Answer. It says “MAY,”
so you may or may not file a Reply. But again, ang effect if you will not
file a Reply you’re deemed to have admitted the genuineness and due
execution of the actionable document attached in the Answer of the
defendant.’
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
16
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
Unsa man ng Actionable Document?
That is the document which is the basis or the foundation. If you’re the
plaintiff the basis or foundation of your cause of action . Example is a
contract of loan. Unsa man ang actionable document diha? Ang contract
itself. If you’re the defendant it is the basis or foundation of your defense.
Like bayad na ang utang or there was condonation. So, your obligation
has already been extinguished. It could be the document evidencing the
condonation or the document of the acknowledgment receipt evidencing
the payment.
What if in the Answer, there is a counterclaim?
Di ba kung naay counterclaim, ang atuang gi-mention is: if it is a
compulsory counterclaim and wala pa nag-answer, so deemed
controverted sya. Because pag imung i-answer sa compulsory
counterclaim, the same lang gihapon na sya ug unsay gibutang nimu sa
imuhang complaint.
answers the defense but does
not defend.
Filing of a Reply is not allowed
as a general rule based on the
amended rules.
Without the Reply, all the
matters – the old and the new—
alleged in the Answer are
deemed
automatically
controverted.
Counterclaim answers a claim in
defense.
If it is a permissive counterclaim
it must be answered by the party
against whom it is interposed.
Otherwise he may be declared in
default as to the counterclaim.
If it is a compulsory counterclaim,
there is no need to file an
Answer, all the allegations in the
compulsory counterclaim are
deemed controverted.
Insofar as the Answer to a
permissive
counterclaim
is
concerned, there is no automatic
controversion.
But if it is permissive, you have to file an Answer to the counterclaim.
Can you incorporate your answer to the counterclaim in your
reply?
General Rule: You do not have the right to file a Reply in the first place.
So, kung naa syay counterclaim and it is a permissive counterclaim you
have to file an Answer to the counterclaim (title of the pleading).
If it is an Answer with Counterclaim and then he attaches an actionable
document and then there are new matters alleged then you can file a
Reply to the Answer. Pwede ra sa isa ka document: Reply to the Answer
and Answer to the Permissive Counterclaim.
How about in your Reply you have a counterclaim to the
counterclaim? Pwede bana sya?
Diba Complaint; Answer with Counterclaim. Ang iyang counterclaim, if
permissive, you have to answer that. How about sa iyang counterclaim?
Di ba ang counterclaim is also a complaint. On the basis of this
counterclaim naa pud kay counterclaim sa iyang counterclaim. Can you
incorporate that in your Reply? Reply with Counterclaim. The law says,
“if the plaintiff wishes to interpose any claims arising out of the new
matters so alleged, such claims shall be set forth in an amended or
supplemental complaint.” So that is the rule, you have to amend your
pleading or complaint or supplement.
We will discuss in the later articles as to what is the distinction between
amended and supplemental. But, basically, when you say amended you
are correcting, amending, or modifying your complaint based on facts
which already existed at the time you filed your original complaint, wala
lang nimu sya nabutang. Supplemental naman, you change or modify
your complaint based on facts which arose after you filed your original
complaint.
In the case of Veluz vs CA where the Supreme Court mentioned na,
again, the filing of a Reply is optional except when there is an allegation
of Usury in the Answer or when the Answer is based on the actionable
document --- this has already been modified, wala na tong usury. And
the filing of a Reply as a general rule is no longer allowed unless there
is an actionable document which is admitted(?) in the Answer.
In the last paragraph it says, “in the event of an actionable document
attached to the Reply, the defendant may file a rejoinder if the same is
based on solely on an actionable document.”
Meaning:( 1)Complaint --- (2) Answer attaches an actionable document
that’s why a plaintiff files a Reply --- (3) Now, if the Reply also attaches
an actionable document, here, the defendant may file a rejoinder, only if
the rejoinder is also based on an actionable document.
Reply
Filed after the defendant files
his/her pleading
Response to the new matters
with an actionable document
interposed by the defendant in
his/her answer. In short, a Reply
Answer to the Counterclaim
Filed after the defendant files
his/her pleading
Response to the cause of action
claimed by the defendant against
the plaintiff. So, an Answer to the
Section 11. Third, (fourth, etc.)-party complaint. — A third
(fourth, etc.)-party complaint is a claim that a defending party
may, with leave of court, file against a person not a party to the
action, called the third (fourth, etc.)-party defendant for
contribution, indemnity, subrogation or any other relief, in
respect of his or her opponent's claim.
The third (fourth, etc.)-party complaint shall be denied
admission, and the court shall require the defendant to institute
a separate action, where: (a) the third (fourth, etc.)- party
defendant cannot be located within thirty (30) calendar days
from the grant of such leave; (b) matters extraneous to the issue
in the principal case are raised; or (c) the effect would be to
introduce a new and separate controversy into the action. (11a)
You know the concept of a third, fourth, etc. party complaint:
It has to be with leave of court.
A files a case against B for collection because B is a solidary debtor.
The debt is 1 Million. Actually B and C borrowed the amount from A.
Assuming that their obligation is solidary; A can collect the entire 1
million from any one of them, B or C. Now, A files a case against B only
for the collection of the 1 million, so, between B and C there is an
obligation for reimbursement. C will have to reimburse B for 500k. What
if B for 1 million and nisibat na si C? So mangita napud ko sa iyaha?
Maayo pa apilon nako sya sa kaso. So he files a third party complaint
against C.
Now, he cannot just file immediately, he has to seek leave of court. Unsa
man ng leave of court?
You ask for permission from the court to file a third party complaint.
How? Motion for Leave to file a third party complaint (mao na imuhang
title). Under the rules, dapat pag mangayo ka ug motion for leave to file
anything attached na nimu daan diha ang imuhang pleading. So, i-attach
na nimu daan didto imuhang third party complaint. You will have to wait
for the court to allow you. But anyway naka-attach na daan diha imuhang
complaint itself.
What is the purpose of a third, fourth, etc. party complaint?
The law says it could be for contribution, for indemnity, for subrogation
or any other pleading. In my example it is for contribution because if you
will be made to pay the entire 1M, in reality, you can demand
reimbursement from C of the 500k.
In respect of his/her opponent’s claim meaning the third or fourth etc.
party complaint should be related to the claim of the complainant
because you are asking for the contribution indemnity. Meaning you will
be adjudged to pay the 1 M you will be allowed to demand contribution
from your solidary debtor—co-solidary debtor. It should always be in
relation to the original complaint. Di ka pwede mag file ug third, fourth,
etc. party complaint na walay labot sa original complaint, it has to be in
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
17
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
relation to the complaint. It must be related to or arise out of the subject
matter in the main action.
2.
For example: You’re involved in a hit and run accident. So, gi-filan ka ug
kaso sa imung naligsan—quasi-delict for example. And then naa kay
insurance, dapat sa insurance diba? Unya kay ikaw man gi-filan ug kaso
alangan ingnon nimu sya nag,”ayaw lang ko fili, kadto rang insurance
company.” In your case you can also file a third party complaint for
indemnity. Once i-adjudge ka to pay him (imung naligsan) you have also
a collectible from the insurance company. That is also related to the
claim embodied in the complaint.
3.
What are the instances where the third, fourth, etc. party complaint
will not be allowed by the court? (New Provision)
1. If the third party defendant cannot be located within 30
calendar days from the grant of such leave. Why?
That third, fourth, etc. party complaint should not be allowed
to delay the proceedings. Anyway, you can file a separate
case in relation to that.
2. Matters strenuous to the issue of the principal case are raised.
Way labot, way connection sa principal case. If it’s not related,
file a separate case.
3. The effect would be to introduce a new and separate
controversy into the action. It would just complicate and delay
the proceedings. So just file a separate case to exclusively to
discuss that issue between you and the third-party defendant.
February 12, 2020- Part 2- VILLAVICENCIO, L.
Section 12. Bringing new parties. — When the presence of
parties other than those to the original action is required for
the granting of complete relief in the determination of a
counterclaim or cross-claim, the court shall order them to be
brought in as defendants, if jurisdiction over them can be
obtained. (12)
If there are parties who have to be impleaded, the rule says “the court
shall order them to be brought in as defendants if jurisdiction over them
can be obtained.”
Who are these parties?
As we have discussed before:
1. necessary parties
2. indispensable parties
Ang sa indispensable parties as long as the court has not yet acquired
jurisdiction they can be brought in. pero kung naka render na si judge
ug decision then wala na bring into the picture ang indispensable party,
What is the consequence?
The proceedings are actually NULL and VOID not only as to the persons
present but also as to the parties who were not brought into the picture.
“the court shall order them be brought in as defendants if jurisdiction
over them can be obtained” this should refer more to necessary parties.
Kay ang sa indispensable parties you have to bring them as parties,
otherwise the court has no jurisdiction over the proceedings.
Kay diri murag optional “if jurisdiction over them can be obtained”. Kung
dili then let us proceed even without these parties.
Section 13. Answer to third (fourth, etc.)-party complaint. — A
third (fourth, etc.)-party defendant may allege in his or her
answer his or her defenses, counterclaims or cross-claims,
including such defenses that the third (fourth, etc.)-party
plaintiff may have against the original plaintiff's claim. In proper
cases, he or she may also assert a counterclaim against the
original plaintiff in respect of the latter's claim against the thirdparty plaintiff. (13a)
This refers to third, fourth, etc party complaint. Just take note, what can
he allege as his defenses:
1. He can just simply answer; or
He just file a counter-claim against sa katong nag file sa iyaha
ug third party complaint. Even against the original
complainant;
He can also file cross-claim.
Example: si Defendant duha iyang gi-filan uf third, fourth, etc.
party complaint. Si third, fourth, fifth, etc. may file a crossclaim against each other.
RULE 7
PARTS AND CONTENTS OF A PLEADING
Section 1. Caption. — The caption sets forth the name of the
court, the title of the action, and the docket number if assigned.
The title of the action indicates the names of the parties. They
shall all be named in the original complaint or petition; but in
subsequent pleadings, it shall be sufficient if the name of the
first party on each side be stated with an appropriate indication
when there are other parties. Their respective participation in
the case shall be indicated. (1)
Pag original complaint na sya, blanko pa nang docket number. So, the
name of the parties. Indicate who is the plaintiff and who are the
defendants.
Kung original complaint na sya or petition you have to include the names
of all the parties. Pero kung subsequent pleadings na sya (answer or
reply.. motions tanan) filed after the complaint, halimbawa 5 imong
defendants or 5 imong plaintiffs you do not have to write down all of their
names, although naa man tay computer, sa una type writer ra kapoy
gyud na itrype tanan nimo. Pero again, for example, 5 sila kabook you
can just place ‘LINO BARTOLOME, ET AL”
The name of the court, why is it important to write the name of the court?
Alangan, asa man diay ifile ang case? Dili mag ingon si court sa imuha
asa ifile. Diba mag matter ma sya depending on the assessed value of
the subject matter involved or the type of action filed. You really have
to indicate kung asa na court. Kay kung mali ka, the other party may file
a motion to dismiss because of lack of jurisdiction, that is why it is really
important to indicate the court.
What are the instances where the law does not require the name of
the parties to be stated in the pleading?
We discussed before that in the original complaint the name of the
parties must be completely indicated. There are cases when you do not
have to indicate all:
1. subsequent pleadings
2. in a class suit (only sufficient number)
3. when there is an unknown defendant under Rule 3, Section
14 (though you have to have a description)
4. entity without juridical personality under Rule 3 Section 15
5. party sued in his official capacity (as Municipal Mayor of
Matanao Davao del Sur)
Docket Number:
When you file the original pleading, it is blank. But in all subsequent
pleadings dapat naan a gyud na syay number, otherwise how will
the court know kung iyaha ba gyud to na case? It will be easier for
the court to identify.
The allegations are CONTROLLING Not the Caption
Genato vs Viola (GR 169706, February 5, 2010)
Wala gibutang sa caption ang tanang pangalan sa parties. But in
the body of the complaint it was written. Would be defective kay
wala sa caption?
Ruling:
It is not the caption of the pleading but the allegations therein that
are controlling. The inclusion of the names of all the parties in
the title of a complaint is a formal requirement. However, the
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
18
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
rules of pleadings require courts to pierce the form and go into the
substance. The non-inclusion of one or some of the names of all
the complainants in the title of a complaint, is not fatal to the case,
provided there is a statement in the body of the complaint indicating
that such complainant/s was/were made party to such action.
(b) Headings. — When two or more causes of action are
joined the statement of the first shall be prefaced by
the words "first cause of action,'' of the second by
"second cause of action", and so on for the others.
Respondent Viola, although her name did not appear in the title as
a party, was one of the persons who caused the preparation of the
complaint and who verified the same. The allegations in the body
of the complaint indicate that she is one of the complainants. She
categorically considered, and held out, herself as one of the
complainants from the time of the filing of the complaint and up to
the time the decision in the HLURB case became final and
executory. To repeat, the averments in the body of the complaint,
not the title, are controlling.
When one or more paragraphs in the answer are
addressed to one of several causes of action in the
complaint, they shall be prefaced by the words
"answer to the first cause of action" or "answer to the
second cause of action" and so on; and when one or
more paragraphs of the answer are addressed to
several causes of action, they shall be prefaced by
words to that effect.
Although in some cases like in special proceedings, for example,
Petition to Change of Name, kay daghan kag ginagamit na names, you
have to allege all of those names na imuhang ginagamit. So, it will affect
the jurisdiction of the court.
(Lifted from last year’s tsn 2019) Illustration:
In a Legal size bond paper (8.5 in. x. 13 in). The caption is like this:
[Based on the sample given].
Republic of the Philippines
11th Judicial Region
REGIONAL TRIAL COURT
BRANCH 20
DIGOS CITY
Province of Davao del Sur
THE HEIRS OF
GERRY S.
MAGWAYER AS
REPRESENTED
HEREIN BY: THEIR
CO-HEIR AND
ATTORNEY-IN-FACT
LIRIO C. MAGWAYER,
Plaintiffs.
(d) Date. — Every pleading shall be dated. (4)
Contents of the Body
1. Its designation (e.g. Complaint, Answer, Reply)
2. The allegation of the party’s claims and defense;
3. The relief prayed for; and
4. Date of the Pleading
General Rule: We are referring here to the pleading. It could be the
complaint, answer, counter-claim. So, we discussed before the
caption, title.
CIVIL CASE NO. 14344
So, the body of the pleading. We have here the paragraphs. Dapat
divided sya into paragraphs. Dili murag love letter na diretso lang sya
(lifted from last year’s tsn)
FOR: CANCELLATION OF A
DOCUMENT OF TRANSFER OF
RIGHTS, RECOVERY OF
POSSESSION/OWNERSHIP,
DAMAGES AND ATTORNEY’S
FEES
A. Paragraphs
Suppose the scenario is that Mario Reyes borrowed from Juan de la
Cruz, evidenced by a Promissory Note and the note became due and
demandable January 1, 2000, Juan de la Cruz demanded from Mario
Reyes the amount but did not pay, thus constraining him to file a case
for a sum of money for P1,000,000.
-versusABC ALPHABET
CORPORATION,
Defendant
ANSWER
WITH
AFFIRMATIVE DEFENSES AND COUTERCLAIM
NOW COME, Defendants, ABC CORPORATION (“ABC” for
brevity), BEN P. BARRETO, RAMON RIVERA…
Section 2. The body. — The body of the pleading sets forth its
designation, the allegations of the party's claims or defenses,
the relief prayed for, and the date of the pleading.
(a)
(c) Relief. — The pleading shall specify the relief
sought, but it may add a general prayer for such
further or other relief as may be deemed just or
equitable.
Paragraphs. — The allegations in the body of a
pleading shall be divided into paragraphs so
numbered to be readily identified, each of which shall
contain a statement of a single set of circumstances
so far as that can be done with convenience. A
paragraph may be referred to by its number in all
succeeding pleadings.
COMPLAINT
COMES NOW, Plaintiff, JUAN DELA CRUZ, through the undersigned
counsel and unto the Honorable Court, most respectfully file the
Complaint, and aver that:
1. Plaintiff JUAN DELA CRUZ, Filipino Citizen, of legal age, married and
a resident of Davao City, Philippines, served with the orders, decisions,
papers and other processes of the Honorable Court in the address of
the undersigned counsel.
[This is for the court to note the propriety of the venue and to note that
plaintiff is represented by a lawyer so that orders and processes shall
be sent to his counsel’s address.]
2. Defendant MARIO REYES, Filipino Citizen, of legal age, married and
resident of Davao City, Philippines.
[Note also note the address of the defendant so where he may be served
with the orders and processes of the court.]
[In the third paragraph, here you start narrating the cause of action and
establish the elements of the cause of action. Juan de la Cruz has a
right; that Mario Reyes has an obligation and he breached that obligation
and by reason of that the plaintiff suffered damages.]
3. On [certain date] JUAN DELA CRUZ lent P1,000,000 to MARIO
REYES and MARIO REYES accepted the amount as evidenced by the
Acknowledgement Receipt attached hereto as ANNEX “A”, he also
executed a Promissory Note attached hereto as ANNEX “B”.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
19
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
[Each paragraph should state different circumstances; this is so the
judge would not be confused. It must be short and concise, like how one
answers questions. Thus, if you already have alleged in the paragraph
about the circumstances surrounding the presence of the debt. Do not
include the part for the demand letters, that Juan de la Cruz suffered
sleepless nights, separate that in paragraphs. Aside from the failure to
pay upon demand, you must also specify the circumstances if you want
to claim for damages]
4. Because of act of defendant MARIO REYES. Plaintiff JUAN DELA
CRUZ was unable to sleep; he could not go out of his house because of
his eye bags; he suffered besmirched reputation because he has no
money to settle own his debts;
[Thus, you must allege also entitlement to attorney’s fees]
5. Because of the unjustified refusal of the defendant to pay his debt,
despite demand, plaintiff JUAN DELA CRUZ was constrained to hire the
services of counsel to which he paid attorney’s fees in the amount of
P100,000.00, plus appearance fees of [amount] per hearing, and costs
of litigation amounting to [amount].
[This would end you statement of your case of auction].
First paragraph you have to indicate the personal circumstances of the
plaintiff. Under the new rules, is the plaintiff, for example, is represented
by another person, you have to indicate the special power of attorney of
that person. Or if the plaintiff is a corporation it could be a board
resolution.
You also have to attached as annex the document showing the authority
of the representative to file.
And then, the personal circumstances of the defendant, that they can
sue and be sued.
Nganung need na butangan ug paragraph? Naa syay paragraph pero
wala syay number? Lisod sya to identify kay “the Defendant denies the
allegations in paragraph 6.” So ang court “asa man ang paragraph 6?”
mag ihap pa sya! Dapat nakabutang na imong complaint daan. So that
is why naka paragraph and number.
Pwede second cause of action: Plaintiff repleads all the allegations in
the preceding paragraphs and further allege that defendants acted…
para ni sya sa damages (moral damages, exemplary…)
B. Headings
This is not mandatory, more so a matter of style. This is no longer
required if you only have one cause of action thus no need to put a
header for “first cause of action” you can go directly to allege the cause
of action if you only have one.
C. Relief
The pleading shall specify the relief sought, but it may add a general
prayer for such further or other relief as may be deemed just or
equitable. After your allegation, you have another portion:
PRAYER
WHEREFORE, premises considered, after due notice and hearing, it is
most respectfully prayed of the Honorable Court to grant to the plaintiff
the following reliefs:
1. DIRECT the defendant to pay P1,000,000.000 plus legal interest
starting from the date of demand;
2. DIRECT the defendant to pay:
a. MORAL DAMAGES in the amount of ONE HUNDRED THOUSAND
PESOS (P100,000.00);
b. EXEMPLARY DAMAGES in the amount of ONE HUNDRED
THOUSAND PESOS (P100,000.00);
c. ATTORNEY’S FEES AND LITIGATION EXPENSES in in the
aggregate amount of ONE HUNDRED THOUSAND PESOS
(P100,000.00); and Appearance Fees of THREE THOUSAND
(P3,000.00) per hearing; and
d. THE COSTS OF THE SUIT
Other just and equitable reliefs also prayed for.
[This last statement is the general prayer].
Necessity of the General Prayer
The part “other just and equitable reliefs also prayed for” is to able to
get some relief which you did not specify. So you will be entitled such
relief even if you did not specify such relief.
Date
Every pleading must be dated:
Respectfully submitted this 10th day of January 2019, in the City of
Davao (for Cagayan de Oro City, Philippines).
You just have to add (for Cagayan de Oro City, Philippines) if you are
going to file the case in the Court of Appeal in CDO City.
Kaning “other just and equitable reliefs” usually generic na sya
ginabutang kay basin nay reliefs na wala nimo nabutang at least naa
pa kay catch-all provision.
And then the Name of the counsel. Write your:
1. Roll Number
2. IBP Official Receipt Number, Date and Place of Issuance
3. Professional Tax Receipt, Date and Place of Issuance
4. MCLE Compliance Nuber or MCLE Exemption Certificate
Number
5. Telephone Number
[Signature here]
ATTY. LIELANIE C. YANGYANG-ESPEJO, CPA
Roll No. 70112
IBP OR No. XXXX/12-28-2016/Davao City
PTR No. XXXX/12-28-2016/Davao City
MCLE Exemption No. XXXX
Valid from February 22, 2016 until April 14, 2019
Telephone No. 089-1234
Section 3. Signature and address. — (a) Every pleading and
other written submissions to the court must be signed by the
party or counsel representing him or her.
(b) The signature of counsel constitutes a certificate by him or
her that he or she has read the pleading and document; that to
the best of his or her knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances:
(1) It is not being presented for any improper purpose, such
as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation;
(2) The claims, defenses, and other legal contentions are
warranted by existing law or jurisprudence, or by a nonfrivolous argument for extending, modifying, or
reversing existing jurisprudence;
(3) The factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary
support after availment of the modes of discovery under
these rules; and
(4) The denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably
based on belief or a lack of information.
(c) If the court determines, on motion or motu proprio and after
notice and hearing, that this rule has been violated, it may
impose an appropriate sanction or refer such violation to the
proper office for disciplinary action, on any attorney, law firm,
or party that violated the rule, or is responsible for the violation.
Absent exceptional circumstances, a law firm shall be held
jointly and severally liable for a violation committed by its
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
20
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
partner, associate, or employee. The sanction may include, but
shall not be limited to, non-monetary directive or sanction; an
order to pay a penalty in court; or, if imposed on motion and
warranted for effective deterrence, an order directing payment
to the movant of part or all of the reasonable attorney’s fees and
other expenses directly resulting from the violation, including
attorney’s fees for the filing of the motion for sanction. The
lawyer or law firm cannot pass on the monetary penalty to the
client. (3a)
What are the significances?
At the end of the pleading, you have to write the name of the lawyer.
Diha pod niya ibutang iyang signature and the address.
Delikado na ta ron kay daghan na syag significance:
1) You have read the pleading and the documents attached that to
the best of his or her knowledge the information, and belief, formed
after an inquiry reasonable under the circumstances
Meaning wala ka nagpataka. Gikan gyud na sya sa imong study,
interview sa imong client.
2) It is not presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation
Nag file lang kag kay case kay gusto lang ka mang-harass, knowing
that your client really has no cause of action. pero kay dako man ang
attorney’s fee sige nalang. Your signature is a certification na this
complaint is not for the intention of harassing the defendant or to cause
unnecessary delay.
3) The claims, defenses, and other legal contentions are warranted
by existing law or warranted existing law or jurisprudence, or by a
non-frivolous argument for extending, modifying, or reversing
existing jurisprudence
Meaning naa jud syay basis, wala lang sya nagpataka. You will not be
penalized if you have a wrong interpretation of the law. Naa man gyuy
mapildi sa kaso. Kung mag file ka ug kaso, of course, dapat naa man
gyuy kay basis. The court will resolve the case based on the
contentions… kung asa ang tama
February 12, 2020- MADUM
“The factual contentions have evidentiary support”,
So naa jud kay support sa imong factual contentions. So unsa mana na
evidentiary support? It could be documents, it could be testimonial,
so depende. Kay di man pud tanan na documents.
“Or will likely to have evidentiary support, after the availment of the
modes of discovery.” Meaning as of now wala pa kay evidence, but
you have a strong belief naa gyud ni sya, tinuod jud ni sya pero ang
document or evidence wala sa imong possession, nasa possession sa
defendant or sa 3rd party na dili mo pwede makuha kung wala ka nag
avail of modes of discovery.
imohang answer, you deny. Kay ngano, nagtapad diay ta every night,
para makabalo ko na you suffer sleepless nights.
So in that case your denial will be. “Defendant has no knowledge or
information sufficient to form a belief as to the truth in the allegation set
forth” kay wala man syay personal knowledge about his damages. So
part na sya sa, mao na sya imong i-certify, if you are the lawyer you
signed in to that pleading. That is the significant of your signature.
If the court determines, on motion or motu proprio and after notice
and hearing, that this rule has been violated, it may impose an
appropriate sanction or refer such violation to the proper office for
disciplinary action, on any attorney, law firm, or party that violated the
rule, or is responsible for the violation. Absent exceptional
circumstances, a law firm shall be held jointly and severally liable
for a violation committed by its partner, associate, or employee. The
sanction may include, but shall not be limited to, non-monetary
directive or sanction; an order to pay a penalty in court; or, if imposed
on motion and warranted for effective deterrence, an order directing
payment to the movant of part or all of the reasonable attorney’s fees
and other expenses directly resulting from the violation, including
attorney’s fees for the filing of the motion for sanction. The lawyer or
law firm cannot pass on the monetary penalty to the client.
Q: Unsa man ang consequence if you violated, these items
mentioned?
A: So the court, upon motion (by the party) or moto proprio (belief on its
own) after notice and hearing and found to have committed a violation
in any of these items or matters, they could be imposed an appropriate
sanctions. Or the court may refer the violation to the proper office,
like IBP for disciplinary action or the Supreme Court against any of
the lawyer, the law firm, or the party.
LIABILITY OF THE LAW FIRM:
So this rule is also new, on the liability of the law firm. Its says. “a law
firm shall be held jointly and severally liable for a violation
committed by its partner, associate, or employee” so kung law firm
mo, you know what is “jointly and severally” meaning solidarily liable.
So if you are a partner, because of this rule even if it is only your
associate who signed the pleading pero “for the law firm of __” then kung
naa to sya’s violation. All of you, the law firm will be jointly and severally
liable.
Q: So what are the possible sanctions?
A: The sanction may include, but shall not be limited to:
•
Non-monetary directive or sanction – suspension,
disbarment
•
Pay a penalty in court; or,
•
Impose a motion and warranted for effective deterrence, an
order directing payment to the movant of part or all of the
reasonable attorney’s fees and other expenses directly
resulting from the violation, including attorney’s fees for the
filing of the motion for sanction.
Like for example, bank deposit. Di man ka pwede na wala kay kaso or
anything, mutan-aw ka didto sa bank deposit. Diba naa may Secrecy of
Bank Deposit? So kabalo ka naa kay cause of action based on those
bank deposits pero as of now, wala pa. So you have to asked order from
the court to allow you to examine the bank deposit. Here at least at
present, bisag wala sa imong possession ang document but you have a
strong belief that you still have evidentiary support after you avail of the
modes of discovery.
Take note ha, under the old rule, wala ni siya. So for example: mag
counter-claim si defendant,
4) The denials of factual contentions are warranted on the evidence
or, if specifically so identified, are reasonably based on a lack of
information or belief.
*Again this is a claim against the party himself filing the case, pero
because of this rule if the lawyer knowingly instituted, or drafted the
complaint and filed it in representation of the client knowing that it is
frivolous, or it was intended to harass. Pwede maapil ang lawyer or the
law firm. Tanan sila are jointly and severally liable.
So for example, ang basis sa imong defense, naa gyud reason, naay
legal basis or factual basis, or In Damages, ang plaintiff nagclaim ng
moral damages, sleepless nights, mental anguish, serious anxiety. Sa
“…because of the filing of the instance suit
defendant was constraint to engage the
services of counsel for which the plaintiff
should be made to pay attorney fees and
litigation in the amount of 1 million pesos.”
The lawyer or law firm cannot pass on the monetary penalty to the
client.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
21
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
So dili nimo mo pwede ipasa sa imong client, na you will say “na ikaw
man ang nagsugo sa akoha na mo-file ing ani na kaso, so ikaw dapat
ang mubayad aning tanan”. But in the first place you knew na walay
basis ang iyang complaint. So look out for this, na as a lawyer, not only
to agree whatever case na your client would like you to file but ensure
na it really has a factual and legal basis. Otherwise you’ll be penalized
for signing your name on the pleading.
Actually naa na syay jurisprudence before na the lawyer was made to
pay damages because of the frivolous claim which was filed in the
representation of the client.
Section 4. Verification. — Except when otherwise specifically
required by law or rule, pleadings need not be under oath or
verified.
A pleading is verified by an affidavit of an affiant duly authorized
to sign said verification. The authorization of the affiant to act
on behalf of a party, whether in the form of a secretary’s
certificate or a special power of attorney, should be attached to
the pleading, and shall allege the following attestations:
(a)
The allegations in the pleading are true and correct
based on his or her personal knowledge, or based on
authentic documents;
(b) The pleading is not filed to harass, cause unnecessary
delay, or needlessly increase the cost of litigation; and
(c)
The factual allegations therein have evidentiary
support or, if specifically so identified, will likewise
have evidentiary support after a reasonable
opportunity for discovery.
The signature of the affiant shall further serve as a certification
of the truthfulness of the allegations in the pleading.
A pleading required to be verified that contains a verification
based on “information and belief,” or upon “knowledge,
information and belief,” or lacks a proper verification, shall be
treated as an unsigned pleading. (4a)
You have a pleading which is verified. As a general rule pleading need
not to be verified. But there are certain pleadings under the Rules of
Court which must be verified.
Q: What is a verification?
A: It is a statement under oath.
Q: How is a pleading verified?
A: It is verified by an affidavit of an affiant duly authorized to sign the
verification.
Usually kung kina hanglan ug verification ang pleading. It is the party
himself who will sign it. If it is a petition, the petitioner himself must sign
the verification. If it is an Answer, the defendant must sign the
verification.
Q: What if the case is instituted by a representative or what if the
defendant is abroad?
A: the rule says that there has to be an authorization to sign the
verification. It is not enough that you allege that you are the
representative of the plaintiff Juan dela Cruz. The rule says that you
have to attach the authorization to the pleading.
if it is a natural person: Piolo Pascual authorizing Juan dela Cruz, you
must attach to the pleading the Special Power of Attorney from Piolo
Pascual authorizing Juan dela Cruz to sign the verification.
If it is a juridical entity: XYZ Corporation authorizing its President
perhaps to sign the verification, there has to be a board resolution or
secretary certificate which must be attached to the pleading.
Another important amendment sa SPA. Example:
I, Piolo Pascua.… I hereby constitute and
appoint Juan dela Cruz as my attorney-infact to do and perform the following acts:
1.To file a case against Cardo
Dalisay for collection of sum of money,
2. to sign the verification and other
pleading;
3. to file the appeal etc..
Dati it is required na didto sa verification na gipirmahan ni Juan dela
Cruz, didto na naka enumerate tong mga statements which under the
rule must be mentioned in the verification. Diba wala didto sa SPA na
gikan kay Piolo Pascual padulong kay Juan dela Cruz katong mga
statements. Didto na sya sa verification.
But now, the rule says ”The authorization of the affiant to act on
behalf of a party, whether in the form of a secretary’s certificate or
a special power of attorney, should be attached to the pleading,
and shall allege the following attestations.” Mismo ang SPA or
secretary certificate dapat imention nya ning mga statements.
Why? Kay kung ma perjury, pwede raman mag ingon si principal na
“ako ba diay nagpirma sa verification, ang SPA nako is to file, wala man
ko niingon na ang pleading is true and correct and based on his personal
knowledge , that the pleading is not filed to harass. Wala koy giingon
ana sa akong SPA. Nag ingon ana is katong akong representative in his
verification”.
So he can easily, or the corporation if it is a juridical person can easily
avoid the consequence of the verification. Walay problema kung ikaw
mismo si plaintiff or defendant kay sa imong verification ikaw man gyud
ang nagstorya. So here, again pati ang authorization required ibutang
tong mga statements.
So bantayan na ninyo if naa moy case whether for plaintiff ka or kay
defendant, ang imong kalaban kay required sya ana. Ikaw si defendant,
naa kay actionable document sa imong Answer so dapat ideny sya,
magfile ng reply si plaintiff. That reply must be verified. For example ang
representative lang niya nag nagpirma sa verification, and naay SPA.
Tan-awon ninyo iyang SPA na nakaattached if nakamention maning
mga allegations. Because again even in the authorization, it shall allege
these attestations.
So now we are referring to the party himself kay katong signature sa
ibabaw, we are referring to the lawyer kaning verification, it refers to the
party himself.
Q: So what are these attestations?
a)
b)
c)
The allegations in the pleading are true and correct
based on his or her personal knowledge, or based
on authentic documents;
The pleading is not filed to harass, cause
unnecessary delay, or needlessly increase the cost
of litigation; and
The factual allegations therein have evidentiary
support or, if specifically so identified, will likewise
have evidentiary support after a reasonable
opportunity for discovery.
So, the same man gihapon sya sa old rule, which says that a pleading
is required to be verified, that contains a verification based on
information and belief or upon knowledge, information and belief
or lacks a proper verification, meaning you did allege any of those
item mentioned, shall be treated as an unsigned pleading.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
22
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
The same pud tong sa signature sa lawyer, kay kung wala syang
signature sa complaint, answer, etc, It is considered as unsigned
pleading.
IN WITNESS WHEREOF: we hereunto affixed our signatures
this______________________.
Q: What is a consequence if it is an unsigned pleading?
A: It is considered a mere scrap of paper. It does not have any value.
So if you filed and answer and your lawyer did not signed, you can be
declared in default because it is a mere scrap of paper.
Q: What if your pleading has a verification but it is defective?
A: GR: when we strictly apply the rule, it says, it is treated also as
unsigned pleading.
*Even if nipirma si lawyer sa imong Answer but in your verification, or
even if nipirma pud ka, pero defective imohang verification. Or you
mentioned na based on information and belief. It is still considered an
unsigned pleading, thus it is a mere scrap of paper.
PURPOSE OF VERIFICATION:
RIRICARDO DALISAY
Affiant
SUBSCRIBED AND SWORN to before me in the City of Davao this
___________ day of _________________, 20___________ by
___________________
with
Residence
Certificate
No.
________________ issued at ___________________ on
______________, 20_____.
Doc No.:_________
Page No.:_________
Book No.:_________
Series of 2020
Q: What is the purpose of verification?
A: There are three reasons given:
It seeks forestall perjury by requiring party concerned from making
false allegations.
Because when you made representation or untruthful statements in a
material matter in a sworn statement. That is perjury and that is criminal
case.
Because of the danger of being liable for perjury, the requirement
seeks to avoid filing of baseless and groundless suits.
You would not take the risk that you would file a baseless and
groundless suit because you know that you could be held liable for
perjury if your allegations turn out to be not within your personal
knowledge (2019 TSN).
Seeks to ensure that whatever will be brought to the consideration
of the court will only be matters susceptible to proof.
As much as possible if you file a case, you can really prove it. You will
not file a case recklessly because anyway, there is no consequence if it
turns na mali diay ko. It doesn’t follow also na kung mapildi ka sa kaso,
ma perjury napud ka diritso because there might be instances na the
facts are within your personal knowledge but for some reason naa pud
proper defense ang pikas. Besides, as a general rule, a complaint is not
verified. (2019 TSN)
FORMS OF VERIFICATION:
Republic of the Philippines
City of Davao
x---------------------------------------------x
)
)S.S
VERIFICATION
I, RIRICARDO DALISAY, of legal age, Filipino citizen, married and a
resident of Davao City, after having been duly sworn to in accordance
with the law, hereby depose and say that: (STATEMENT)
1.
2.
3.
4.
5.
I am the authorized representative of Complainant Golden
Food Corporation in the instant case;
I have caused the preparation of the foregoing Complaint;
I have read and understand all the contents thereof and
the factual allegations contained therein are true and
correct based on my personal knowledge and on authentic
documents;
The Complaint is not filed to harass, cause unnecessary
delay or needlessly increase the cost of litigation and;
The factual allegations therein have evidentiary support.
(or of specifically so identified will likewise have evidentiary
support after a reasonable opportunity for discovery.)
Actually the same nman gihapon basically ang old rule and new rule.
Nadungag lang tong ubang statements. Unless the Supreme court will
make a new pronouncement.
But when you say lack of verification, it is not a jurisdictional defect.
Actually in the case decided by the Supreme court before, mas lenient
sya in so far as verification is concerned.
The Court has consistently held that the requirement regarding
verification of a pleading is formal, not jurisdictional.
Such requirement is simply a condition affecting the form of
the pleading, non-compliance with which does not necessarily
render the pleading fatally defective. The court can just order the
correction of the pleading.
Pwede idismiss sa court but upon motion for reconsideration, as long
as you comply with the proper verification, the court will usually grant
that.
Now, same lang gihapon sa old rule, diba there is a provision na when
the provision is based on the knowledge, information or belief it is
considered as an unsigned pleading. WHY? Because again when you
file a complaint or when you file your answer. All the allegations must be
true and you must have personal knowledge of those allegations.
Meaning you cannot allege matters which are not within your personal
knowledge or which are just hearsay. You cannot say na “according to
X, he saw B”, dapat ikaw mismo ang nakakita. That is the meaning of
personal knowledge.
Although in your complaints, naa man jud instances na wala jud kay
personal knowledge. Like for example: Nag allege ka didto na naay
contract of loan, you are the creditor, so B is the debtor. He borrowed 1
million, and then despite the lapse of due date and despite of the
demand, he did not pay. So you allege in your complaint na gi sugo nimo
imo hang staff to go to the house of B to collect. Pag abot nya didto sa
balay ni B, and pagka dawat ni B sa demand letter. Iyang gi kuha iyang
armalite and gi ratrat nya imong demand letter. So kakita ba ka, kakita
ba imong client. Wala ang staff man ang nakakita.
You can still allege that, but you have to attach the Affidavit of the
person who has personal knowledge of the circumstance. Dili nimo
angkonon na ikaw gyud ang nakakita. So that is still allowed.
Basta all of those factual allegations based on information lang nimo you
have to allege and attach the testimony or statements of those persons
who have personal knowledge.
February 19, 2020- PART 1- NONO
We are still in Rule 7.
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Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
23
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
So, let's review, under Section 4: 'except when otherwise required by
law or law, pleadings need not be under oath or verified'
So, in general, pleadings need not be verified or, when you say verified
- under oath, but when required to be verified, these should be the
content of the verification. So, it is a statement under oath by the
complainant or by the defendant, depende kung it is an answer or it's a
complaint. And then it states under oath:
Example: A Special Power of Attorney, actually, who signs the SPA? It
is the principal. Pwede na na-dili magpirma didto si agent. So, si agent,
he did not actually see when the principal signed the SPA. Gipadala lang
sa iyaha and then 'o, gi-authorized daw ka, nga ikaw ang magcollect,
ikaw ang magprocess, etc.'. So, here, he does not have personal
knowledge that the principal signed the SPA, but based on document
there is here a signature in the SPA which appears to be the signature
of the principal. So, that is based on authentic record.
Now, in this case of:
1.
the allegations in the pleading ate true and correct based
on his or jer personal knowledge, or based on authentic
documents;
So, under the rule before the amendment, dire lang kutob ang
statement.
2.
the pleading is not filed to harass, cause unnecessary
delay, or needlessly increase the cost of litigation; and
Now, there are additional statements that must be included in
the verification. If you noticed, these statements are
mentioned in Section 3, meaning: when the lawyer signs the
pleading there is an undertaking na, again, the pleading is not
filed to harass but the lawyer does not mentioned that in the
pleading, implied na siya - implied certification na when he
signs the pleading he undertakes these things, the matters
mentioned in Section 3.
Pero pag ikaw si complainant or defendant, you have to state.
Dili na siya implied, not just because you signed it, it is implied
na, na mao ni imung mga undertakings.
So, it is in a form of an affidavit and it is subscribed and sworn
before the Notary Public.
So, that’s why, kung kulangan ang imuhang verification sa
mga statements which the law or the rule requires it written that is a defective verification. So, you should copy that.
3.
the factual allegations therein have evidentiary support
or, if specifically so identified, will likewise have
evidentiary support after a reasonable opportunity for
discovery.
Because, there are several instances na, mag-file ka ug kaso,
daghan kaayo siya ug gi-allege didto and then it turns out later
on na wala diay evidentiary support. So, the case will be
dismissed, and you will just be wasting the time of the court,
of the parties.
So, to prevent that it should be stated. Why? Because when
you sign a statement under oath you are doing it under the
claim of perjury. So, aside for your civil liability, when you are
found to have committed perjury, you can be imprisoned or
fined, there is a criminal liability.
Now, a pleading required to be verified, na ang i-ingun lang nimu is
based on information and belief, or knowledge, information, belief. If not,
that is considered as an unsigned pleading because it is a mere hearsay.
I explained to you before na, there are cases when you don't really know
kung unsa dyud ang nahitabo. Like katong demand letter na gi-gisi sa
defendant, wala man ka didto at the time when he was served, it was
served by your staff. So, here you must attach the statement of your
staff. The staff has to testify that - when he went to the defendant to
collect and send a demand letter it was torn in his presence. So, still it
is not hearsay, it is based on his personal knowledge.
The rule also says, it could either be: based on a personal knowledge of
the pleader or based on authentic records. Because there are cases na,
even if you have no knowledge but there is an authentic record.
Marohomsalic vs. Cole
547 SCRA 98, G.R. No. 169918 February 27, 2008
Ang question lang dire is, what if ang naka butang sa verification,
'based on the personal knowledge of the pleader', or wala ang word
na 'based on personal knowledge', it says 'based on authentic
records'. It was questioned here, the rule says, personal knowledge
and it also mentions authentic records.
Issue: Would be the verification be defective? If it mentions only
'personal knowledge' or 'authentic records.
Held: The Supreme Courts said, No. Because the rule uses the word
"or".
The use of the preposition “or” connotes that either source qualifies
as a sufficient basis for verification and, needless to state, the
concurrence of both sources is more than sufficient, but either it
could be based on personal knowledge "OR" based of authentic
record, or it could be both. So, could not be defective.
So, the range of permutation is not left to the pleader’s liking, but is
dependent on the surrounding nature of the allegations which may
warrant that a verification be based either purely on personal
knowledge, or entirely on authentic records, or on both sources. The
same with the present rules.
Now, there is an example which I illustrated:
A Deed of Sale executed between A and B, under the present rule,
actually, documents (as we will discuss in Rule 8), even evidentiary
matters are required already to be mentioned in the pleading. So, for
example, under the Rule on Verification, the pleader avers na; the
allegations in the, for example: complaint, are based on personal
knowledge or based on authentic records. So, what if the complainant,
for example, he has no original copy of the Deed of Sale, but he was
one of the signatories. He entered into a Deed of sale with B. So, A
entered into a Deed of Sale with B, and then he only has a photocopy,
he does not have the original and he can longer find the original copy;
he is one of the signatories.
Question: Would it be a defective verification, if he alleges na - the
allegations in the complaint is based on his personal knowledge. There
is nothing there which says based on authentic records but the
foundation of his cause of action is the Deed of Sale. But he cannot say
authentic because what he has is merely a photocopy could he still
properly verify the allegations in the complaint?
Answer: Yes, because again as we have already discussed it could be
based on personal knowledge or based on authentic records. So, still it
is based on his personal knowledge.
Well anyway, when you go to Rule on Evidence, wala na diay ang 'best
evidence rule'. Lahi na ang pangalan niya 'Original Document Rule'. So,
na-usab na pud ang Rule on Evidence, like Civil Procedure. Pero parepareho lang sa Civ Pro na, ang mga jurisprudence kay gi-incorporate
lang nila sa Rules.
So, again, you can still prove that man gihapon even if you don't have
the original copy, as long as you can prove na there was really an
original which existed and you have the prof of the loss and destruction
of the original, that it cannot be found without the fault of the offerors.
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24
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
separation fails to answer, the court shall order
the Solicitor General or his or her deputized
public prosecutor, to investigate whether or not
a collusion between the parties exists, and if
there is no collusion, to intervene for the State in
order to see to it that the evidence submitted is
not fabricated. (3a)
Now, as we have already discussed, the Rule says 'except when
otherwise provided' because the general rule is you don't have to verify
a pleading, but there are certain pleadings or documents mentioned
under the Rules of Court which require to be verified. Dapat naa'y
verification. So, what are these pleadings?
1.
RULE 8 SECTION 8, on actionable documents.
Comment: When you declared in default, that pertains to the
defendant or may be the plaintiff when there is a counterclaim,
a permissive counterclaim. So, you are the defending party,
and you failed to file your answer. So, you can be declared in
default. What is the consequence if you are declared in
default, meaning wala naka'y right to present your defense in
the case. So, most likely the plaintiff will win, kay murag sa
boxing pa siya sige'g sumbag-sumbag ikaw wala lang, tindog
lang ka didto. So, here that's the consequence of default.
Section 8. How to contest such documents. - When an
action or defense is founded upon a written instrument, or
attached to the corresponding pleading as provided in the
preceding section, the genuineness and due execution of
the instrument shall be deemed admitted unless the
adverse party, under oath specifically denies them, and
sets forth what he or she claims to be the facts; but the
requirement of an oath does not apply when the adverse
party does not appear to be a party to the instrument or
when compliance with an order for an inspection of the
original instrument is refused. (8a)
Comment: For example you had a complaint, the foundation
of which is an actionable document, like: a contract of loan,
and if you are the defendant (so, this is a case for collection)
you will file your answer. Your answer has to be verified,
because you will be denying the existence of that contract of
loan. Otherwise, even if in your answer you denied na 'I did
not sign any contract of loan' so you deny. So, pero dili siya
verified, dili siya under oath imung answer. Under the Rules,
you're deemed to have impliedly admitted the genuineness
and due execution of that document. That's why you have to
verify.
Now, there's what we call lifting an order of default. So,
meaning if you are already declared in default, naa paka'y
remedy. Pwede pa ka magpa-lift sa order of default. So, the
motion which you will file to set aside the order of default
should also be under oath or verified.
3.
4.
5.
6.
7.
8.
9.
2.
RULE 9 SECTION 3. Default
Section 3. Default; Declaration of. — If the defending
party fails to answer within the time allowed therefor, the
court shall, upon motion of the claiming party with notice to
the defending party, and proof of such failure, declare the
defending party in default. Thereupon, the court shall
proceed to render judgment granting the claimant such
relief as his or her pleading may warrant, unless the court
in its discretion requires the claimant to submit evidence.
Such reception of evidence may be delegated to the clerk
of court.
(a) Effect of order of default. — A party in default
shall be entitled to notices of subsequent
proceedings but shall not take part in the trial.
(b) Relief from order of default. — A party
declared in default may at any time after notice
thereof and before judgment, file a motion under
oath to set aside the order of default upon proper
showing that his or her failure to answer was due
to fraud, accident, mistake or excusable
negligence and that he or she has a meritorious
defense. In such case, the order of default may
be set aside on such terms and conditions as the
judge may impose in the interest of justice.
(c) Effect of partial default. — When a pleading
asserting a claim states a common cause of
action against several defending parties, some
of whom answer and the others fail to do so, the
court shall try the case against all upon the
answers thus filed and render judgment upon
the evidence presented.
(d) Extent of relief to be awarded. — A judgment
rendered against a party in default shall neither
exceed the amount or be different in kind from
that prayed for nor award unliquidated
damages.
(e) Where no defaults allowed. — If the
defending party in an action for annulment or
declaration of nullity of marriage or for legal
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
RULE 24 Depositions Before Action or Pending Appeal
RULE 38 Petition for Relief from Judgments
RULE 42 Petition for Review from the RTC to the CA
RULE 43 Appeals from the Court of Tax Appeals and QuasiJudicial Agencies to the Court of Appeals
RULE 45 Appeal by Certiorari to the Supreme Court
RULE 47 Annulment of Judgment of Final Orders and
Resolutions (Petition for Annulment should be verified)
RULE 58 SECTION 4. When you apply for a Writ of
Preliminary Injunction or a Temporary Restraining Order your
application must also be verified
RULE 57 Application for an Appointment of a Receiver
RULE 61 Application for Support Pendente Lite (as well as
comment to the application)
RULE 64 Review of Judgment, Resolutions, or Final Orders
of the COMELEC and the COA
RULE 65 Petition for Certiorari, Prohibition and Mandamus
RULE 66 Quo Warranto
RULE 67 Petition for Expropriation
All pleadings under RULE 70: Forcible Entry, and Unlawful
Detainer
RULE 71 Contempt
RULE 93 Appointment of Guardian
RULE 95 Selling or Incumbering the Property of a Ward
RULE 97 Termination of Guardianship
RULE 102 Habeas Corpus
RULE 103 Petition for a Change of Name
RULE 104 Voluntary Dissolution of Corporations
RULE 108 Cancellation or Correction of Entry with the Civil
Registry
RULE 138 Application to Take the Bar Exams (The use of
type writers)
All pleadings under Summary Rules
Petition for Declaration of Absolute Nullity of Marriage and
Annulment of Marriage
AM no. 07-11-08- SC Special Rules of Court in Alternative
Dispute Resolutions
Petitions for Writ of Habeas Data and Writ of Amparo
Small Claims and others
In case, it is enough to memorize 10.
Under on Rules on Electronic Evidence
A.M. NO. 01-7-01-SC
RULES ON ELECTRONIC EVIDENCE
RULE 9 METHOD OF PROOF
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25
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
Section 1. Affidavit evidence. – All matters relating to the
admissibility and evidentiary weight of an electronic document may
be established by an affidavit stating facts of direct personal
knowledge of the affiant or based on authentic records. The affidavit
must affirmatively show the competence of the affiant to testify on the
matters contained therein.
So, meaning verified gihapon.
Example: The evidence is based on screenshot, sa Facebook or
Instagram or cellphone. So, dili man tanan techy gyud diba? Even if you
have a Facebook screenshot, well, first how would you know na tinuod
dyud to siya na dili lang siya naka photoshop and even if there is a
screenshot of that Facebook post na bisag tinuod dyud, how do you
know na ang nagbuhat ani na account kay siya dyud? Kato gyud nakaname? Basig nagbuhat-buhat lang ug account under his name?
So, basically, when you introduced such kind of evidence it should be
authenticated by the one having personal knowledge. Like, ako ang
nagtake sa screenshot sa kani na post, so I should authenticate that by
an affidavit. It must be verified. That is how you authenticate an
electronic evidence. Otherwise, dili siya admissible. That's the first step.
Although, if you are the opposing counsel, of course, you have other
means to destroy the testimony of that person who testified but,
basically, how do you make that admissible - it has to be authenticated
by an affidavit.
How about verification by a lawyer, are lawyers allowed to verify? Well,
under the Rules it should be the parties. But let's go to some of the cases
decided by the Supreme Court.
In this case of:
Uy vs. Workmen’s Compensation Commission
97 SCRA 255, No. L-43389 April 28, 1980
Torres vs Specialized packing Dev't Corporation
G. R. no 149634 | July 6, 2004
25 petitioners but the verification was signed only by 2 of them,
Question: is that a fatal defect?
Answer: The Supreme Court held, In the present case, the problem is
not the lack of a verification, but the adequacy of one executed by only
two of the 25 petitioners. These two signatories are unquestionably real
parties in interest, who undoubtedly have sufficient knowledge and belief
to swear to the truth of the allegations in the Petition. This verification is
enough assurance that the matters alleged therein have been made in
good faith or are true and correct, not merely speculative. The
requirement of verification has thus been substantially complied with.`
So the Supreme Court considered the substantial compliance.
Tanjuatco vs Gako
Am RTJ-06-2016| March 23, 2009
Again, it should liberal when it comes to verification even if the
verification is flawed or defective, the court may still give due course to
the pleading if the circumstances warrant the relaxation of the rules in
the interest of justice.
Certification Against Forum Shopping
Section 5. Certification against forum shopping. — The
plaintiff or principal party shall certify under oath in the
complaint or other initiatory pleading asserting a claim for
relief, or in a sworn certification annexed thereto and
simultaneously filed therewith:
(a) that he has not theretofore commenced any action or filed
any claim involving the same issues in any court, tribunal or
quasi-judicial agency and, to the best of his knowledge, no
such other action or claim is pending therein;
Held: The Supreme Court said: “A verification by the attorney is
adequate compliance with Rule 7, Sec. 6, it being presumed that
facts by him alleged are true to his knowledge in view of the sanctions
provided in Sec. 5 of the Rules of Court (Guerra Enterprises
Company, Inc. vs. Court of First Instance of Lanao del Sur, L-28310,
April 17, 1970, 32 SCRA 314—citing Arambulo vs. Perez, 78 Phil.
387; Cajefe vs. Fernandez, L-15409, Oct. 19, 1960).”
(b) if there is such other pending action or claim, a complete
statement of the present status thereof; and
Actually, the same sanctions man gihapon, the lawyer when he signs
his name in the pleading, he certifies na, again, it was not intended to
harass, that there is evidentiary support for the allegation.
The authorization of the affiant to act on behalf of a party,
whether in the form of a secretary's certificate or a special
power of attorney, should be attached to the pleading.
Now, under the new Rules, naa na gyud naka dugang, if it is the lawyer
- you just be authorized to sign the verification. So, meaning naa'y
authorization, how is he authorized? Well, if the plaintiff or the defendant
is a:
•
natural person: SPA in favor of that lawyer, authorizing him
to sign the verification
•
juridical person: Board Resolution or Secretary's Certificate
Failure to comply with the foregoing requirements shall not be
curable by mere amendment of the complaint or other
initiatory pleading but shall be cause for the dismissal of the
case without prejudice, unless otherwise provided, upon
motion and after hearing. The submission of a false
certification or non-compliance with any of the undertakings
therein shall constitute indirect contempt of court, without
prejudice to the corresponding administrative and criminal
actions. If the acts of the party or his counsel clearly constitute
willful and deliberate forum shopping, the same shall be
ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause for
administrative sanctions. (n)
However, as we had already discussed, verification is not jurisdictional.
So, even if there might be a defect - it is not a jurisdictional defect.
What if, di man ta sure kay dili man tanan pleadings needs to be verified,
every time you file a pleading i-verify na lang dyud nato? Para sure.
Diba? Para, well what happens if you attach a verification to a pleading
which the law or the rule does not require to be verified, would it make it
defective? No, it will not. It will just be considered as surplusages.
February 19, 2020- PART 2- FURIA
No it will not, it will just serve as a surplusage, because this is not
supposed to be verified but you verified it but anyway so far as the case
is concerned it will not take anything from your case. Another, which is
a graver consequence, you open yourself to a charge of perjury
unnecessarily because under oath man siya. Kung dili diay to tinoud
imung gi ingun didto then you are opening yourself to perjury.
(c) if he should thereafter learn that the same or similar action
or claim has been filed or is pending, he shall report that fact
within five (5) calendar days therefrom to the court wherein his
aforesaid complaint or initiatory pleading has been filed.
What is forum shopping?
Basically you have one cause of action and then you file several cases
before several courts or tribunals hoping to increase your chances of
getting a favorable decision in any of those cases. In short, Siguresta.
Question: Would that be allowed?
Answer: That is not allowed. That would be splitting your cause of action
because if you have one cause of action, you only have one case.
So its not just a ground for the dismissal of the case, it is also a ground
for the disciplinary action of the lawyer who follows several cases,
involving the same cause of action.
Polanco vs Cruz
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26
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
Gr. No. 182426 | February 13, 2009
There is Forum-Shopping when as a result of an adverse decision in
one forum, or in anticipation thereof, a party seeks a favorable opinion
in another forum through means other than appeal or certiorari.
Pwede ranang you file a case before the Regional trial Court and there's
an adverse decision and then you appeal to the higher court. That is
NOT forum shopping because your case is already terminated in the
Regional Trial Court.
So Forum-Shopping exists when two or more actions involve the same
transactions, essential facts, and circumstances and raise identical
causes of action, subject matter, and issues.
Another tests of Forum-Shopping is when the elements of litis
pendencia are present or where a final judgment in one case will amount
to res judicata in another whether in the two or more pending cases,
there is an identity of:
a) Parties (or at atleast such parties as represent the same interests in
both actions),
b) Rights or causes of action, and
c) Reliefs sought
For example: Kung sa first case kay ang papa tapos kay sa 2nd case
kay namatay naman ang papa, anak napod pero the same issue, the
same cause of action.
Chavez vs Court of Appeals
G.R. No. 174356 | January 20, 2010
So here, was the owner of the 5 hectare coconut plant on the other hand,
Chavez have been staying on the portion of the land, thus she planted
coconut seedlings and supervised the harvest. There was an agreement
between the two of them to divide the harvest of the coconut and the
products of the land. Since Fidela was busy with her law practice,
Evelina undertook to hold in trust for Fidela her half of the profits.
Now, according to Fidela (lawyer), Evelina failed to remit her share in
the profits, she made several demands but still Evelina failed to turnover the proceeds as well as the administration of the property.
So Fidela here, filed cases against Evelina:
Action to recover possession of the property, rent and damages
with prayer for the appointment of a receiver. ( Filed in the Regional
Trial Court)
In the answer of Evelina, She interposed the defense na, the court has
no jurisdiction because I am a tenant thus it is a agrarian dispute
therefore it should be referred to the DARAB.
RTC- Case was dismissed for lack of jurisdiction, then it was appealed
to the Court of apeals.
CA- Continued here prayer for the appointment of a receiver and it was
granted by the Court of Appeals
Here, aside from the case of recovery of possession, Fidela Filed
another case which is
1. Estafa before the Regional Trial Court, and another case for
2.
2. Dispossession under Republic at 8048.
So in all these cases, Fidela asked for appointment of a receiver.
Question: Is there Forum Shopping? Remember that In all those cases,
there is a common relief sought which is appointment of a receiver
Answer: That Supreme Court Held that NO. The elements of forum
shopping are the same as in litis pendentia where the final judgment in
one case will amount to res judicata in the other. The elements of forum
shopping are:
(1) identity of parties, or at least such parties as would represent the
same interest in both actions;
Question: Is there identity of parties?
Answer: Yes there is.
(2) identity of rights asserted and relief prayed for, the relief being
founded on the same facts; and
Question: Are there the same reliefs in this case?
Answer: In the first case, recovery of possession of the property filed
with the RTC. The Second Case is Estafa and the third is dispossession
which was filed in the DARAB. Similar and reliefs? NO! They are not
similar although it does involved the same land.
(3) identity of the two preceding particulars such that any judgment
rendered in the other action will, regardless of which party is successful,
amount to res judicata in the action under consideration.5
Question: in the recovery of possession of cases is decided with finality
does it affect the case in estafa? or if the estafa case is dismissed or
maybe the accused is convicted, will it affect the cases for recovery of
possession in the RTC and the ejectment case before the DARAB?
Answer: No. They will not affect each other.
So here, why only be considered as a case of forum shopping, again
please remember what we have discussed before, there are 5 sources
of obligation. It would only considered as Forum Shopping if you file
these cases with the same cause of action or only 1 cause of action.
Like breach of contract you filed these cases with the same contract
and the same parties that would be generally considered as forum
shopping the same factual circumstances.
Even if the same parties or factual circumstances but
1. You file a case for breach of contract of carriage.
2. You filed a case for Quasi-Delict
3. You filed a criminal case for Reckless imprudence resulting to
damage
Even if the same parties, facts but you have different causes of actions.
So that would not be considered as forum shopping.
In the case at bar, the cases are based on different causes of action.
The case for recovery of possession, it could be based on contract
because according to Fidela, there was an implied agreement between
them that Fidel would take care of the land and she would remit the
proceeds so therefore there is a contractual agreement. And estafa,
based on Delict and then the Dispossession is based on law, because
under the law if there are certain violations, it could actually ask for the
dispossession of the tenant so there are different sources of obligations.
The above cases are similar only in that they involved the same parties
and Fidela sought the placing of the properties under receivership in all
of them. But receivership is not an action. It is but an auxiliary remedy,
a mere incident of the suit to help achieve its purpose. Consequently, it
cannot be said that the grant of receivership in one case will amount to
res judicata on the merits of the other cases. The grant or denial of this
provisional remedy will still depend on the need for it in the particular
action.
Certification of Non-Forum Shopping
Question; What pleadings required a certification against forum
shopping?
Answer:Initiatory pleadings
Question: What are initiatory pleadings?
Answer: They are 7 pleadings dba, only 2 of them are responsive
(answer and reply) all others are initiatory pleadings.
When it comes to permissive counter-claim as initiatory pleading, the
compulsory counter-claim is not considered as initiatory pleading.
So what is the consequence of that? Kung compulsory siya it does not
require as certification against a forum shopping because in the first
place you have no choice, you cannot opt to just file your counter-claim
in another proceeding, you have to interpose that when you file your
answer otherwise the compulsory counterclaim is deemed barred from
permissive because you have the option to attach a certification against
forum shopping in your counter-claim. permissive ha. We already
discussed this.
So Initiatory pleadings, if it is not a initiatory pleading, it does not need a
certification against forum shopping. Hows does it look? Usually in
practice, we lumped them. For example it is a initiatory pleading, we
requires a verification, and certification, again it is similar to an affidavit
to these are the allegations ****shows initiatory pleading in the
powerpoint****
"I hereby certify that we have not commenced or caused to commenced
any other action or proceeding involving the same issue of the subject
matter with the Supreme Court, The Court of Appeals or any other
tribunal or agency and to the best of my knowledge there is no such
action or proceeding pending therein.
I undertake that should I learn that there is a similar action pending any
such courts, tribunal or agencies"
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27
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
Signature dayun and then subscribed and sworn to, this is the Jurat
Kung halimbawa because you already mentioned and you filed a
complaint and it does not have to be verified, you can just omit the word
verification so ang title kay Certification against Forum-Shopping.
Magsugod dayun ka didto sa "I am bla bla bla" If it is just a certification
against forum shopping lang ni ha. Kung gusto ka magkapoy2 pwede
pod magbuhat kag verifaction separately and then mag buhat sad kag
lain certification against forum shopping na separate, but usually, e lump
lang na siya by affidavit.
Lynman Bacolor vs VL Makabili Memorial Hospital
790 SCRA 20 | G.R. No. 204325 | April 18, 2016
Facts: This is a petition for Certiorari filed with the Court of appeals.
Naay tulo ka separate verification kadtong pareha sa ako gbuhat bitaw
na gi lump na nia which is signed by Doctor Tidula, the other one by
Bacolor, and the other one by Helen. Mga petitioner ni silang tulo, and
then there is another one executed and signed by Atty. Francisco for in
behalf of Doctor Villegas and Canlas and Zeila; kani sila mga Petitioner
pod. The 3 signed on their owned behalf and then the other 3 kay nag
sign si Francisco in behald of the other 3 doctors.
The Court of Appeals: Dismissed the petitioner for certiorari.
Reasons of Court of Appeal : The Verification Certification of Non Forum
Shopping was signed by Atty. Francisco was not authorized although he
was the counsel of record but there was no authorization signed by the
three (3) petitioners authorizing Atty. Francisco to signed the verification.
So, of course the petitioners argued na we should relax the rules
because the 3 petitioners who made the verification are the real party in
interest and the counsel who also verified the petition had been in
possession of the pending documents and relevant records of the case.
As compare to a verification, mas relax and rule sa verification, mas
strict ang rule sa certification against non-forum shopping.
Here the Supreme Court summarized the distinctions between
certification and verification.
Verification
Noncompliance therewith or
a defect therein does not
necessarily
render
the
pleading fatally defective.
Verification
is
deemed
substantially complied with
when one who has ample
knowledge to swear to the
truth of the allegations in the
complaint or petition signs
the verification, and when
matters alleged in the petition
have been made in good faith
or are true and correct.
Executed by counsel.
Certification of NONFORUM SHOPPING
Noncompliance therewith or
a defect therein, is generally
not curable by its subsequent
submission or correction
thereof, unless there is a
need to relax the Rule on the
ground
of
“substantial
compliance” or presence of
“special circumstances or
compelling reasons.”
The certification against
forum shopping must be
signed by all the plaintiffs or
petitioners in a case;
otherwise, those who did not
sign will be dropped as
parties to the case. Under
reasonable or justifiable
circumstances, however, as
when all the plaintiffs or
petitioners share a common
interest and invoke a
common cause of action or
defense, the signature of only
one of them in the
certification against forum
shopping
substantially
complies with the Rule.
The certification against
forum shopping must be
executed by the partypleader, not by his counsel.
February 19, 2020- PART 3- VERANA
circumstances- what would these circumstances be?
Example: When all the plaintiffs or petitioners share a common interest
and invoke a common action or defense, the signature of only one of
them under the certification against Forum Shopping substantially
complies with the rule. So, dili gihapon siya i-drop because they all share
the same cause of action or defense. Kay parehan naman kung bisan
pag siya ang signors, pareha lang gihapon ang ilahang gistorya.
Finally, the certification against forum shopping must be executed by the
party-pleader, not by his counsel. If however, for reasonable or justifiable
reasons, the party-pleader is unable to sign, he must execute a SPA
(designating?) his counsel of record to sign on his behalf. Which is,
included now in the rules. In fact, the rules say that the authorization
must be attached in the pleading.
Consequence if lawyer signs without authorization
But for example, if it was just a lawyer who signed, and he has no
authorization? What will be the consequence? Like in this case, it was
the lawyer who signed on behalf of the other parties. He had no
authorization.
Question: Should we consider the parties represented by these lawyers
as dropped from the case?
Answer: The SC said, that there was substantial compliance. Why?
Because in this particular case, 3 out of 6 petitioners signed 3 separate
verifications. Their signatures are significant assurance to the
allegations in the petition. They were in good faith. We're talking here of
the verification requirement.
ABERILLA vs. NLRC
How about the certification requirement? The SC cited cases here.
In this case, 47 out of 88 petitioners signed the certification against
forum shopping. But the SC considered it as substantial compliance
because they all shared a common cause of action- illegal
dismissal, against the same employer. So when petitioners also
appealed, they pursued the case as a collective body, invoking one
argument in support of their cause of action (illegal dismissal).
Torres vs. Packing Dev. Corporation
G.R. No. 149634
July 6, 2004
2 out of 25- again, there are compelling grounds.
There was apparent merit in the substantive aspect of the case. Here,
the LA and the NLRC had different rulings. So the SC said there is a
leave to really identify which is the proper cause of action or defense
in this particular case. Kay for example, parehang ruling si LA ug si
NLRC. Chances are, mao na gyud na siya. There's no need to further
take a look into the case. Kay chances are, tama na to siya. Pero in
this case, lahi man sila ug ruling. So there's a need to look deeperThere's a compelling ground to examine the allegations in the
petition. There is a need for a leave on the merits. And an outright
dismissal of the petition would be prejudicial to the substantive rights
of the parties. So in this particular case, the same cause of action.
They were all resident physicians who were purportedly re-employed
by the hospital even after the expiration of the 1 year contract. They
were all demoted, they were accused of violations of the hospital
rules and regulations and they were dismissed. So here, the SC said
that the mandatory requirements supposedly of the certification
against forum shopping allow substantial compliance. Because there
is a justifiable circumstance. And then there is a common cause of
action.
Digital Employees Union vs. Digital Telecomms
G.R. Nos. 184903
October 10, 2012
However, under reasonable or justifiable
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28
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
In this case, the petition here was a petition for certiorari. And then
the verification and certification was signed by the President of DEU,
Mr. Ricardo. Now take note that the petition was filed at October 20,
2014. Dapat ang petition naka-attach na diha ang verification and
certification. At that time, wala pa naka-attatch. And it was only on
December 15, 2014 that it was compliance that the petitioners
submitted the Board Resolution authorizing Ricardo to represent
DEU. So ofcourse ang kalaban, it was cited as a defect. Because at
the time that he filed the petition, wala pay verification and
certification. So at the time when the petition was filed, he had no
authority to sign the same on behalf of DEU. So it should be
dismissed because it was effective pursuant to Rule 45, Secs. 1 and
4.
Again here, the SC reiterated the same distinctions between
verification and certification. So ang question here is: There was a
defective verification and certification. But would that be a ground to
dismiss the petition? Actually the SC said, in past cases also, that
the authority of the President of a juridical entity whether a
corporation or a union, to sign verifications and certifications without
prior board approval is based on the role and function of a president
within the juridical entity. That president is in a position to verify the
truthfulness and correctness of the allegations in the petition. So
even without a board reso, that president- due to his position, he can
actually sign the verification and certification. Even without a board
resolution, or secretary certificate.
And in this case, there was subsequent compliance also because his
authorization in the form of a Board Resolution was also submitted.
So there was substantial compliance. And the substantive issues
raised in this case, and the indications they have for the likelihood of
Digital's workers compel this court in the name of justice to relax the
rules and allow the litigation to be tried on the merits. So if justice is
to be done to the workers of Digitel, we must be afforded the utmost
opportunity for the proper and just determination of their cause
without regard to technicalities.
Banco Filipino Savings vs. Bangko Sentral ng Pilipinas
G.R. No. 200678
June 04, 2018
This is a bank that was already placed under receivership. Now
although we know before na ang receiver, actually is not a real party
in interest, it is just the representative. It's not even a co-party.
However, because the bank is already placed under receivership, the
powers of the Board of Directors and Officers are already suspended.
So the BOD could not have validly authorized its executive VP to file
the suit on its behalf. So, the president also- even if naay Board Reso
ha, he cannot sign the verification and certification against forum
shopping because the bank is already under receivership. The
closed bank may sue and be sued only through its receiver. Any
action filed by the closed bank without its receiver may be dismissed.
So that is the consequence of a receivership.
So the signatories were not validly authorized by the receiver. So the
petition does not produce any legal effect. The court did not acquire
jurisdiction over the petition.
Victoriano vs. Dominguez
G.R. No. 214794
July 23, 2018
In this case, the petition for review with the CA. The CA dismissed
the petition because wala na gibasa sa CA kung unsa imong
gipangyawyaw didto sa imong petition. Unahon gyud nimo nang
tanaw kanang formal requirements:
1.
Statement of material things. Because in your petition for
review dapat isulat nimo kung kanus-a nimo na receive
ang order or resolution dismissing your case of motion for
reconsideration. Kay diha mustart ang reglementary
period.
2.
3.
4.
5.
6.
There is no explanation why the preferred mode of
personal service was not resorted to. There has to be an
explanation ngano wala ka naka personal service.
Now in relation to verification and certification, mao ni siya
ang defect. The verification does not state that the
allegations in the petition are true and correct, of the
affiant's personal knowledge and based on affecting
records.
And then, the certification against forum shopping does
not state that to the best knowledge of the affiant no such
other action is pending therein.
Notarization on the verification certification. It violated the
Rules on Notarial Practice. There is no properly
accomplished jurat subscribed and sworn to showing the
competent evidence of identity. Under the Notarial Rules,
government ID ang ipakita.
And the IBP number of the counsel, walay date of
issuance. It does not appear to be updated.
So those are the defects. So, di man mutuo si CA, saka sa SC. The
SC reversed the CA. As to this allegation- as we have already
discussed, dili kinahanglan na "and". "The allegations are true and
correct of the affiant's personal knowledge and based on..." it could
be kana lang, or both. So it could be na the allegations are true and
correct of the affiant's personal knowledge- wala na siya nag sabi na
based on authentic records. The SC said it constitutes sufficient
compliance with the rules. So we already discussed, it is "or". It's not
"and." It could either be "or" or "both". Bearing both a disjunctive and
conjunctive sense, This parallel-legal certification avoids a
construction that would exclude the combination of the alternatives
or bar the efficacy of anyone of the alternatives standing alone.
Katung iyahang certification which failed to state that there is no other
similar action pending, wala niya na mention. The SC said its really
not a fatal defect. Citing the case of Santos vs. Litot Mills Inc. Here
the petitioners Mills attested that they have not commenced any
other action or proceeding involving the same issues with the SC, or
any tribunal or agency. Wala siya nag ingon na walay pending case.
Ang iyahang gi-ingon is wala siya nag file ug any other case before
the SC, the CA involving the same cause of action. So the SC said,
applying this to the case at bar the assurance in the certification that
he had not filed any other case in court shall likewise constitute
substantial compliance.
As to the requirement of Cedula
Well actually its not allowed as a competent evidence of identity, but
under the Notarial Rules, if the affiant is personally known to you- it
is not required na mangayo pa ka ug ID. Although ha, dili ko pwede
man notaryo ug relatives of affinity or consanguinity within the 4th
civil degree. So up to sa first cousins. Bawal na siya.
Lack of IBP Number
How about the fact na wala na identify ni Atty. and iyahang IBP
number? The SC said that it was an inadvertent mistake, and it was
rectified. In the motion for reconsideration, the lawyer subsequently
indicated the date and place of the issuance of his IBP number. So
there was substantial compliance.
De Lima vs. Guerrero
G.R. No. 229781
October 10, 2017
Certification against forum shopping. According to the lawyer who
notarized the Certification against Forum Shopping, she prepared the
document- the pleading. And then she forwarded the pleading to
Senator De Lima, who was in prison, in Muntinlupa. And then gihatag
niya didto ang pleading, gibasa, gi-review ni De Lima, and then
gipirmahan niya ang verification and certification. And then niadto si
lawyer hoping to have an audience with De Lima. But the lawyer was
not allowed entry in the detention facility where De Lima was actually
staying. So she just got the signed pleading, and said (because De
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29
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
Lima was her client and she's familiar with the signature), so she
notarized the certification-verification. And in fact, the next day, she
again attempted to go and verify with De Lima if it was really signed
by her, but wala gihapon siya kasulod. Ang question here: Was there
proper verification and certification?
The SC said No. Strict sila. Why? Because it violated the rules on
Notarial Practice. The rules say that you do not notarize it not in the
presence of the affiant. Dapat in his or her's presence. So the
admission of the lawyer herself shows na it was signed not in the
presence of the notary public. So the SC said it was a defective
verification. While there is jurisprudence to the effect that an irregular
notarization merely reduced the evidentiary value of the document to
that of a private document, which requires proof of his due execution
and authenticity to be admissible as evidence, the same cannot be
considered as controlling. For example, naay mga cases. Deed of
Sale. And then muana ang pikas, "Atty. Mag file-kug kaso." "Unsa
man?" "Ipa-annul nako ang Deed of Sale. Why? Because its
defective, its not notarized. Or maybe it was notarized pero wala gyud
ko niadto ana sa lawyer. Would that render the Deed of Sale
defective? No. Because in general, contracts are valid in whatever
form they are entered into, unless the law requires a certain form for
its validity or enforceability. So ang Deed of Sale, does it require ba
a proper form? No because it is a consensual contract. Although
under the Statute of Frauds, it must be in writing for it to be
enforceable. But if there is already compliance, even if it is not in
writing, it can be enforced already.
So here, it does not reduce the validity of the sale just because the
notarization was defective. But because the law does not require a deed
of sale to be notarized in the first placed for its validity. But here the rule
says that the verification and certification must be under oath. So its part
of the formality of a verification and certification. That is why, because it
was defective in the sense that it was notarized without the presence of
the affiant, it is defective.
Summary of the Distinctions between Verification and Certification
against Forum Shopping
So lets just discuss again the distinctions in general. So these are the
distinctions between verification and certification:
VERIFICATION
APPLICATION
The verification requirement
This requirement applies to
applies only when the law or rule
complaints and other initiatory
state that the pleading must be
pleadings which include the
verified. As a general rule,
original civil complaint, counterpleadings need not be verified.
claim, cross-claim, third party
complaint, fourth, etc. or
complaint
in
intervention,
petition, or application wherein a
party asserts his claim for relief.
EFFECT OF NON-COMPLIANCE
Non-compliance
of
the It is generally not curable by the
verification requirement does not subsequent submission
or
necessarily render the pleading correction, unless there is a
fatally defective. The court may ground to relax the rule on the
order
its
submission
or ground
of
substantial
correction, or act on the pleading, compliance, or presence of
if the attending circumstances special
circumstances
or
are such that strict compliance of compelling reasons.
the rule may be dispensed with in
order to serve the ends of justice.
EXECUTED BY WHOM
A verification may be executed by Certification
against forum
a party or counsel.
shopping must be executed by
the party-pleader, not his
counsel.
If
however
for
reasonable
or
justifiable
reasons, the party-pleader is
unable to sign, he must execute
a SPA designating his counsel
of record to sign on his behalf.
CERTIFICATION
PURPOSE
The purpose is to secure the
assurance that the allegations of
the petitioner have been made in
good faith, are true and correct,
and not merely speculative.
It is rooted in the principle that
the party litigant shall not be
allowed to pursue simultaneous
remedies in different fora as this
practice is detrimental to orderly
judicial procedure.
CONTENT
The party verifies that he has The plaintiff or principal party
read the pleading, and that the certifies under oath that he has
allegations therein are true and not commenced any action, or
correct of his personal knowledge filed any claim involving the
or based on authentic records same issues in any court, or
and the
other allegations quasi-judicial agency and to the
mentioned in the amended rules. best of his knowledge, no such
action or claim is pending
therein.
AS TO SUBSTANTIAL COMPLIANCE
Verification
is
deemed GEN RULE: All the parties must
substantially complied with when sign
in
the
certification.
one who has ample knowledge to Otherwise, those who did not
swear to the truth of the sign will be deemed as dropped
allegations in the complaint or as parties to the case.
petition signs the verification. So
even if you say that the lawyer EXE: Under reasonable or
can sign, not just any lawyer- it justifiable circumstances, when
must be the lawyer who has all the plaintiffs or petitioners
ample knowledge to swear on the share a common interest or
facts alleging the complaint or invoke a common cause of
petition. And when matters action, or defense, any one of
alleged in the petition have been their
signatures
in
the
made in good faith, or are true certification will be considered
and correct, the verification may as substantial compliance with
not be signed by all the parties.
the rules.
February 21, 2020- PART 1- BALLOS
We now proceed to Rule 7, Section 6:
Section 6. Contents. – Every pleading stating a party’s claims or
defenses shall, in addition to those mandated by Section 2,
Rule, 7, state the following:
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Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
(a)
Names of witnesses who will be presented to prove a
party’s claim or defense;
(b) Summary of the witnesses’ intended testimonies, provided
that the judicial affidavits of said witnesses shall be
attached to the pleading and form an integral part thereof.
Only witnesses whose judicial affidavits are attached to the
pleading shall be presented by the parties during trial.
Except if a party presents meritorious reasons as basis for
the admission of additional witnesses, no other witness or
affidavit shall be heard or admitted by the court; and
(c)
Documentary and object evidence in support of the
allegations contained in the pleading. (n)
So, only witnesses whose judicial affidavits are attached to the
pleading shall be presented by the parties during trial. Kung wala
siya’y judicial affidavit sa imohang compliant, you cannot present him
during the trial.
You cannot later on, as a general rule, submit his judicial affidavit. The
same thing for the defendant. Except when there is a meritorious reason
as basis for the admission of additional witnesses.
Maybe, the presence or testimony of this witness was discovered only
after the complaint was filed. Because at the time you filed the complaint,
wala ka kabalo na naa diay ani na person who can testify to this matter.
That would be an example of a meritorious reason.
(c)
This is a new provision under the amended rules. Take note of the
changes. So, other than those mandated by Section 2, Rule 7 – we
discussed already the matters that must be included in the pleadings.
Section 6 now says, we have to include:
(a) Names of witnesses who will be presented to prove a party’s
claim or defense;
Documentary and object evidence in support of the allegations
contained in the pleading.
So, mura siya’g complaint na nasagol na didto ang imohang pre-trial
brief. Although, in addition to that, sa pre-trial brief, there’s still the
proposed stipulation of facts, the admitted facts or issues. Pero katong
names of witnesses, substance of proposed testimonies, and
documentary and object evidence, naa na na siya sa pleading.
This is required for pleadings stating a claim or a defense. It could be
the:
1. Complaint;
2. Answer;
3. Counterclaim;
4. Cross-claim;
5. Third-party (etc.) complaint.
Q: What if any of these items would not be included in the
complaint or in the answer?
This was NOT required under the old rules. This was only required when
you file your pre-trial brief. In the pre-trial brief, that is where you
indicate the:
1. Names of the witnesses; and
2. The substance of their proposed testimonies.
1.
If you are the defendant and the complaint failed to indicate these
items, you can cite that as your affirmative defense – that the
complaint fails to state a cause of action kay kulang man ang mga
requirements.
But now, ibutang na nimo sa imohang complaint or answer.
2.
It could also be used as a ground for a judgment on the pleadings.
Because if you just rely on the pleadings and incomplete siya, you
can already render a judgment.
(b)
Summary of the witnesses’ intended testimonies, provided that
the judicial affidavits of said witnesses shall be attached to the
pleading and form an integral part thereof. Only witnesses
whose judicial affidavits are attached to the pleading shall be
presented by the parties during trial. Except if a party presents
meritorious reasons as basis for the admission of additional
witnesses, no other witness or affidavit shall be heard or
admitted by the court;
So, aside from including in the complaint the names of the witnesses
and the summary of their proposed testimonies, you now have to attach
the judicial affidavits.
This is a new change because prior to the amendment, the Judicial
Affidavit Rule provides that the judicial affidavit need not be attached to
the complaint or the answer. You only need to submit the judicial
affidavits at least 5 days prior to the preliminary conference, or pre-trial
or hearing, where those judicial affidavits are intended to be identified
and presented.
So, now, dili na. Didto na siya naka-attach sa complaint or sa answer.
Actually, mas lisod na karon mag prepare ug complaint. Because before
you can file your complaint, you have to complete everything. Maybe the
Supreme Court also noticed that this should be done kay magfile-file ka
ug kaso unya di man diay ka ready. Mag file ka ug complaint and then
later on, mag sige ka-postpone kay wala nahuman sa pagprepare sa
judicial affidavits.
Maybe this is also the reason why mas taas-taas na pud ang period sa
defendant to file his answer. Definitely, 15 days under the previous
Rules would not be sufficient to accomplish everything – the preparation
of the answer, the judicial affidavits.
A: The word used here is “shall.” So, wala pa man jurisprudence. How
can we interpret this? I cannot say that this should be interpreted na
discretion because when you say “shall,” it is a mandate. It should be
done.
So, this is one of the very different provision under the amended rules.
RULE 8
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Section 1. In general. — Every pleading shall contain in a
methodical and logical form, a plain, concise and direct
statement of the ultimate facts, including the evidence on which
the party pleading relies for his claim or defense, as the case
may be, omitting the statement of mere evidentiary facts.
If a cause of action or defense relied on is based on law, the
pertinent provisions thereof and their applicability to him or her
shall be clearly and concisely stated.
1.
What are the matters that you need to include in your
pleading?
The law says it shall contain in a methodical and logical form, a
plain, concise and direct statement of the ultimate facts, including
the evidence.
Before, prior to this amendment, the Rule says na you should state the
ultimate acts, omitting evidentiary facts. That is why we have to make
a distinction between ultimate facts and evidentiary facts. Because
if your pleading fails to state all the ultimate facts, your complaint is
susceptible to dismissal on the ground of failure to state an action. It may
be that even if in reality, you may have a cause of action, but the way
you drafted your complaint, it failed to recite all the elements of a cause
of action.
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When you say evidentiary facts, before ha, they are not required to be
stated in the pleading because they can just be proved later on during
the trial. The evidentiary facts are intended to prove the ultimate facts.
So, even if your complaint does not state the evidentiary facts, as long
as the ultimate facts are there, your complaint is already sufficient.
If a cause of action or defense relied on is based on law, the pertinent
provisions thereof and their applicability to him or her shall be clearly
and concisely stated.
But here again, the Rule says include the evidence – so, evidentiary
facts need to be mentioned.
Actually, under the previous rules, this is only required in a pleading
asserting a defense, like an answer. So, if you’re defense is based on a
provision of law, you should cite what that law is and how it is applicable
to you.
Even under the old rules, bisan pa’g ingon na ultimate facts lang,
detailed kaayo ko mag prepare ug pleading. Dili kaayo ko ga rely na
dapat ultimate facts lang. Kay feeling nako shabby ra pud kaayo siya
tanawon. So, dapat gwapo imong pleading. But now I’m right, so
advanced lang ko.
Ultimate Facts
factum probandum
Those essential to one’s cause
of action or defense.
Evidentiary Facts
factum probans
Those intended to prove the
ultimate facts.
HOW TO DETERMINE WON
THE FACT IS ESSENTIAL
(TEST/S):
1. If the omission of such
statement in a pleading
renders the cause of action
or defense incomplete.
1.
3.
How the defendant violated
your rights
As a consequence of the
violation, what did you
suffer?
Factum
probandum
is
a
proposition to be established
Factum
probandum
is
hypothetical
FACTS WHICH ARE PRESUMED BY LAW;
Q: What are those facts which are presumed by law?
A: Example, contract of breach of carriage. In that kind of contract, when
there is a violation, negligence is already presumed. So, when you file a
case for breach of contract of carriage, it is not required for the plaintiff
to prove negligence on the part of the defendant. The law presumes that
there is negligence. The burden is on the defendant to prove that he was
not negligent.
COMPLETE STATEMENT OF
THE ULTIMATE FACTS:
1. Statement of the rights;
Corresponding obligation of
the defendant;
Even if we have the Rules na revised, there are still matters that need
not be stated in the complaint. The law says na they don’t have a place
in your complaint, pero if you include them, would that make your
complaint defective? NO. As long as you have the ultimate facts and
now, also the evidentiary facts.
MATTERS THAT NEED NOT BE STATED IN THE PLEADING:
By reason of such omission, an
element of cause of action
disappears, then it must be a
statement of an ultimate fact.
2.
But now, even in the complaint or in a pleading asserting a claim. So in
your complaint, kung ang imohang basis is a violation of your right based
on the law, you should also cite the specific legal provision and how it is
applicable to you. Because, again, under the old rule, ultimate facts lang
ang kinahanglan nimo i-cite sa imong complaint.
So, when you file your complaint and your cause of action is breach of
contract of carriage, you don’t need to state in your complaint that the
defendant acted in a negligent manner because that is already
presumed by law. Although it may not be the reason for the breach of
contract, if you fail to state the negligent act, it does not make your
complaint deficient.
2.
4.
Factum probans is the material
evidencing the proposition
Factum probans is existent – it
proves
the
hypothetical
assertion
But, under the old rules, even in the complaint, you did not have to
indicate the evidentiary facts. But in order for you win your case, you
must be able to have both the ultimate facts and the evidentiary facts.
The evidentiary facts under the old rule had to be threshed out during
the trial already. But now, as early as in your complaint or answer,
you should state the evidentiary facts.
Q: What is the reason why you have to state the evidentiary facts
now?
A: Again, if you’re filing a case, you should have everything already. You
should have all pieces of evidence to prove your cause of action or
defense. In the first place, gwapo lagi kaayo pagkabuhat sa imong
complaint, kompleto siya sa statement of the ultimate facts, pero wala
ka’y ebidensya. So, you are just wasting the time of the Court and of
your client. Ngano pa man nato ni gipa-file ug kaso na kabalo man diay
ta na dili siya madaog kay kulang ang evidence. For the defendant,
nganong nahurot nato ang 10 years trying to defend this person na wala
man siya’y evidence to back up his defense? So, dapat sa complaint pa
lang or sa answer, makita na nato ang status sa case – is it winnable or
is it a losing case?
CONCLUSIONS OF FACT OR LAW
Statement of Fact
Example: 5 days na wala ka
nakatulog and nagpa-checkup
nalang ka sa psychiatrist kay feel
nimo nabuang na ka but it was
just because of your serious
anxiety.
Conclusion of Law
Example: 5 days na wala ka
nakatulog and nagpa-checkup
nalang ka sa psychiatrist kay feel
nimo nabuang na ka but it was
just because of your serious
anxiety – then, you are entitled
to moral damages.
It is the court which eventually decides what the proper application of
the law is. You can only help the court arrive at the decision.
3.
MATTERS WHICH ARE IN THE DOMAIN OF JUDICIAL NOTICE
There are certain matters that you don’t have to prove because they are
already of judicial notice.
Definition: It is a cognizance of certain facts which judges may properly
take and act on without proof because they already know of them. It is
a rule of law or of evidence that allows a fact to be introduced into
evidence and the truth of that fact is so notorious or well-known that it
cannot be refuted.
For example, in the complaint, you said Dajangas pero ang pangalan
niya karon is General Santos. Now, you are contesting that the venue is
improperly laid – what is that Dajangas that you are referring to? You do
not have prove that Dajangas is the same as General Santos.
Section 2. Alternative causes of action or defenses. — A party
may set forth two or more statements of a claim or defense
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alternatively or hypothetically, either in one cause of action or
defense or in separate causes of action or defenses. When two
or more statements are made in the alternative and one of them
if made independently would be sufficient, the pleading is not
made insufficient by the insufficiency of one or more of the
alternative statements.
We discussed before that a party can have 2 or more causes of actions
embodied in the same complaint. When you say alternative, you are
not praying to recover both of them. Either lang – quasi-delict or contract
of carriage?
Q: Are you allowed to assert alternative causes of actions?
A: Yes. It is mentioned under Section 2. As long as each cause of action
is complete and consistent, you can interpose 2 or more causes of
action.
Example: A passenger wanted to board a bus and then, he was about
to step on the ledge and nidagan ug kalit ang bus. So, nahulog siya and
he suffered damages. But what is your cause of action? Halimbawa, dili
ka sure. Naa ba’y contract of carriage kay wala man ko nakasakay sa
bus? So, if you’re not sure, then you can file in the alternative breach of
contract of carriage or quasi-delict.
So, kinsa imong defendant? If it is the driver alone, dili pwede sa iyaha
ang breach of contract of carriage because you don’t have a contract.
So, your defendant would be the bus company.
But there is also a thing such as alternative defendants. Or you can
just lump them. Anyway, if it is for quasi-delict, it would be both the driver
and the owner of the bus. If it for breach of contract, it would be the
owner of the bus. So, in the alternative also.
Q: What are the possible defenses that the defendant can interpose
in his answer? Can he impose alternative defenses?
A: Yes. For example, A filed a case against B for collection. B, in his
answer, what could be his possible defenses?
1. Payment – that he already paid the loan; or
2. Deny the existence of the loan – that I did not borrow anything or
my signature in the promissory note is forged.
Can he do that? Unsa man gyud? Wala ko ni-pirma unya ni-bayad na
ko. It may sound absurd, but he is not prohibited from doing that. He can
interpose alternative defenses. Although in the appreciation of these
defense, the court may think, “Unsa man gyud ang tinuod?” Because
your defenses could be inconsistent when compared to each other but
as long as it is consistent in itself, you are allowed to interpose the
defense. That is what we call a shotgun answer, murag sa exam.
And in relation to an answer, chances are ibutang nato tanan possible
defenses. So, bisan pa muingon ka nga na dili siya consistent, but we
have to be aware of the rule na defenses or objections, which are not
raised in the answer, are deemed waived.
February 21, 2020- PART 2- ARANJUEZ
So, ibutang jud nimo tanan ang imong defenses because kung didto pa
nimo ma realize later during the trial, wala na waived na, you cannot
prove your defense anymore. Bahala nag inconsistent imong mga
defenses as long as you can prove any of those defenses and you can
have the case dismissed.
You don't have to prove all of your defenses, any of those possible
defenses would be sufficient.
Q: What are the other alternatives provided in addition to Sec 2?
A: Under Rule 2, Sec 5 - Alternative causes of actions and
Rule 3, Sec 6 - Permissive joinder of parties when they are joined jointly,
severally or alternatively. Rule 3, Sec 13 - Alternative defendants which
we already discussed.
Section 3. Conditions precedent. — In any pleading, a general
averment of the performance or occurrence of all conditions
precedent shall be sufficient.
So, going back to how you make an allegation in your pleadings. Again,
you have to state the ultimate facts as well as the evidentiary facts.
We've already discussed before the concepts of a cause of action and
the right of action. A person may have a cause of action but he might
not have a right of action.
Example: Naay right ang plaintiff, right to retain sa gi utang ni defendant,
si defendant nay obligation to pay. He did not pay and the plaintiff
suffered damages. But as a general rule that kind of cause of action
requires prior conciliation with the barangay if both parties are
residents of the same city or municipality. You cannot file it directly in
court, so dapat naa kay certification to file an action.
How do you incorporate that? You have to incorporate that in your
complaint, otherwise it is insufficient because it is part of your right of
action, which is the observance of the conditions precedent. So, you
have to allege that in the complaint.
"On January 1, the plaintiff filed a case before the barangay and the
barangay issued summons to defendant and there were 3 conciliation
proceedings in which the defendant did not appear. Eventually it was
referred to the lupon.
Q: Do you have to cite the specifics?
A: It can just be averred generally that plaintiff complied with the prior
condition of barangay conciliation, attached to the complaint is the
certification to file action which is exhibit A to this complaint.
So what is needed is general averment , you don't have to cite the
specifics.
Earnest effort towards a compromise, this is required if a suit involves
members of the same family. It must be shown earnest effort towards a
compromise has been made. We don't have to prove na nag meeting
mo atong adlawa, you just have to state that there was earnest effort
towards a compromise but it failed. Tama na na siya, you don't have
to go into the details.
Exhaustion of Administrative Remedies, for example in just
compensation cases before the court proceeding muagi pa ka ug
administrative proceeding sa DARAB for the preliminary determination
of just compensation and if dili mo ma satisfy then you can go to court.
So you can just aver generally that there is a prior exhaustion of
administrative remedies because there was a decision by the DAR to
sustain the just compensation computed and that's why you are filing a
case before the court.
Section 4. Capacity. — Facts showing the capacity of a party to sue
or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized
association of persons that is made a party, must be averred. A
party desiring to raise an issue as to the legal existence of any
party or the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific denial, which shall
include such supporting particulars as are peculiarly within the
pleader’s knowledge.
For a party to be considered as a plaintiff or a defendant, aside from the
fact that he must be a real party in interest he must have the capacity to
sue and be sued. If you are talking of a natural person that person must
be of legal age, he must not be suffering under any of those
disqualifications like a case under civil interdiction. For example he is
under civil interdiction he can only be represented by a legal guardian.
If it is a juridical person, it must be registered with the SEC for it to be
considered as having the capacity to sue or be sued but subject to
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Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
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Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
certain exceptions like a labor union that even if it is not registered with
the SEC it can sue or be sued.
No, it is not curative. Because the petitioner here is the association
and not Hernandez.
Now in the pleadings, how do you allege that the plaintiff or
defendant has capacity to sue? Even if in reality naa siyay capacity to
sue but in your complaint or answer how do you say na naa siyay
capacity to sue?
How about the premise that it is a class suit? So the one filing is not the
only real party in interest but also the others who are members of the
class. These members may have the capacity to sue but would that be
enough?
The rule says na it should be stated with particularity. You have to
state the facts which shows that he has capacity to sue. If he is a
natural person so for example " Juan Dela Cruz of legal age, married,
Filipino Citizen, and a resident of Davao." So you have to state those
facts. No need to include the specifics like "to prove that he is of legal
age, attached hereto is the birth certificate" So you don't have to attach
or include the passport, marriage certificate in your complaint.
No, because Hernandez was not authorized by the members to
institute the suit. It is not actually a class suit, he is not authorized by
the members to represent them in this suit.
Although if in the answer of the defendant he would say na "the
defendant denies the allegations in paragraph 1 of the complaint
because plaintiff is not of legal age, not a resident of, not married." So
diri na ka kailangan mag present ug evidence. There is no presumption
of capacity or incapacity to be sued.
Example: The plaintiff is a minor and you are suing in your capacity as
the legal guardian of the plaintiff. If you are the parent, no problem
because under the law the parents are the legal guardian and you just
have to state that you are the parent. Pero if you are not the legal
guardian but only a guardian appointed by the court, then you have to
state on what basis did you become the guardian, so you will state that
under such decision you were appointed as a guardian.
Juridical persons, how do you allege the capacity of the juridical
person? If it is a corporation then "Plaintiff ABC corporation is a
corporation duly registered and existing under the laws of the Republic
of the Philippines, attached hereto is the articles of incorporation of ABC
corporation. The corporation for the purpose of the instance suit is to be
represented by its president Juan Dela Cruz then you attach the Board
Resolution or the Secretary Certificate proving the authorization of the
said person to represent the corporation"
Now, it is important that if it is a corporation you have to emphasize that
it is doing business in the Philippines. If it is a domestic corporation there
is no problem because they can sue and be sued in the Philippines but
if it is a foreign corporation you have to allege that it is doing business in
the Philippines for it to have capacity to sue.
In relation to capacity to sue which must be averred with particularity.
We have the case of Association of Flood Victims v. Comelec
ASSOCIATION OF FLOOD VICTIMS v. COMELEC
G.R. No. 203775, August 5, 2014
A petition was filed in this particular case. The petitioner Association of
Flood Victims represented by Hernandez. In the petition it was stated
that the petitioner Association of Flood Victims is a non profit and nor
partisan organization in the process of formal incorporation. The
primary purpose of which is for the benefit of the common or general
interests of many flood victims who are numerous, so numerous that it
is impracticable to join all as parties, so they intended to file a class suit.
The capacity to sue of the petitioner here was questioned. Does the
Association of Flood Victims have the capacity to sue? Obviously, it
does not have capacity. From the very allegation in the petition itself it
says "In the process of formal incorporation" so it is not yet registered
with the SEC and therefore it does not have a juridical personality
on its own which can sue or be sued.
How about the fact that the association was represented by Hernandez
who is a natural person? So as a natural person he has the capacity to
sue, would that be curative of the fact that the corporation does not have
the capacity to sue but it is represent by Hernandez who by himself has
the capacity to sue?
How about if all the members of the association will file on behalf of the
association? Will it cure the defect?
No, because the plaintiff is the association and not the members.
Maybe if the members themselves would file in their own name then they
would have capacity to sue. But when you say the Association which is
not a juridical person represented by all its members that will not cure
the defect that the corporation does not have the capacity to sue.
The SC said, it is not considered as a juridical person or an entity
authorized by law, which can be a party to a civil action.
Just remember, when you file a case in a representative capacity. You
look at the capacity of both, the capacity of the plaintiff and of the
representative. Even if the plaintiff has the capacity to sue but he only
authorized his 12-year-old son then it would not be proper because the
representative will not have the capacity to act.
Now let's discuss about the defendant. The rule says a party deciding to
raise an issue as to the legal existence of any party or of the capacity of
any party to sue or be sued in a representative capacity shall do so by
specific denial.
So, if you are the defendant and you want to make an issue as to the
legal capacity to sue of the plaintiff, so you will deny in your answer. You
just don't say "I deny the allegations in paragraph 1 of the complaint."
You have to specify why you are denying. "Defendant denies the
allegations in paragraph 1 of the complaint insofar as the capacity to sue
of the corporation is concerned because in truth this alleged corporation
is not registered with the SEC." So that is a specific denial, you have to
allege with particularity.
Section 5. Fraud, mistake, condition of the mind. — In all averments
of fraud or mistake, the circumstances constituting fraud or
mistake must be stated with particularity. Malice, intent,
knowledge, or other condition of the mind of a person may be
averred generally.
In your answer or in your complaint you want to allege fraud. Maybe in
your complaint for annulment of contract, so the basis would be fraud.
Or in a case of specific performance and your defense would be you
were induced to sign the contract because of fraud.
Would that be enough, to state that there was fraud employed by the
defendant which was precisely the reason why the plaintiff signed the
contract?
No, fraud or mistake must be stated with particularity. Meaning you
have to state what were those facts which would constitute fraud. Like
“The plaintiff already got himself a ballpen ready to sign the contract but
then suddenly there was a blackout and then the defendant lighted a
gas lamp and the plaintiff went to the comfort room, then went back to
the table and trusting that it is still the same document which he was
about to sign, he signed the contract. Because it was dark, he was not
able to read the contract before he signed. He was surprised that a few
days later that what he signed was a contract different from what was
presented to him by the defendant. Subsequently he discovered that
there was actually no blackout in the place but only the house of the
defendant."
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So, you have to state those facts which would show that there was
fraud. So that is how to allege a fraud or mistake.
The rule says that Malice, Intent, Knowledge, or Condition of the
mind may be averred generally. So why is general averment
sufficient?
When you say Malice or Condition of the mind, you cannot read the mind
of a person. In some cases, malice would be presumed based on the
circumstances. So here you cannot describe in detail what went on in
the mind of the defendant. So, there is no need to aver with particularity.
Section 6. Judgment. — In pleading a judgment or decision of a
domestic or foreign court, judicial or quasi-judicial tribunal, or of a
board or officer, it is sufficient to aver the judgment or decision
without setting forth matter showing jurisdiction to render it. An
authenticated copy of the judgment or decision shall be attached
to the pleading.
Before, in the previous rule there is actually no requirement to
attach an authenticated copy of the judgment or decision. Before it
is sufficient that it is alleged that there was a decision.
In your pleading it is enough that you mention it under the old rules but
during the hearing you will still have to prove the existence of the
judgment by presenting a certified true copy or authenticated copy of the
judgment, but this was done already during the hearing.
Now, sa imong pleading pa lang daan. If your defense for example or
cause of action is you have to rely on a judgment of a domestic, foreign
court, judicial or quasi-judicial or etc. You have to attach an
authenticated copy of the judgment or decision in your pleading, this is
now a requirement.
You don't have to set forth the matter showing jurisdiction to render it,
but when the other party denies it then that is when you present proof.
This is applicable if you are a defendant and your defense is based on
res judicata because there was already a prior decision involving the
same issue, the same parties and the same subject matter. So, you have
to attach the copy of the decision.
Section 7. Action or defense based on document. - Whenever an
action or defense is based upon a written instrument or document,
the substance of such instrument or document shall be set forth in
the pleading, and the original or a copy thereof shall be attached to
the pleading as an exhibit, which shall be deemed to be a part of
the pleading.
What is an actionable document? As defined in several cases, an
actionable document is one which is the basis or the foundation of the
cause of action or the defense and not merely an evidence of the cause
of action or defense. It is the very heart and soul of the cause of action
or defense.
If you are the plaintiff, without that document you don't have a cause of
action. If you are the defendant, without that document it is either you
don't have a defense or it is very difficult for you to prove that defense.
Example: In collection cases, what is the basis of the complaint? It would
be that the parties entered into a contract of loan or a debtor signs a
promissory note because he borrowed money. So in that particular
case, the contract of loan or the promissory note is the actionable
document or the foundation of the cause of action of the plaintiff. You
might have sent demand letters but it is not the actionable document as
it is only one of the pieces of evidence to corroborate the existence of
the cause of action.
In so far as the defendant is concerned, what could be one of his
defense? One would be payment although there is already a promissory
note or they admit the existence of the promissory note but they can say
na they paid already the obligation. The defendant can show an
acknowledgement receipt, so this acknowledgement of receipt is the
very foundation of the defense in this particular example. He relies
upon the said document to be absolved from the case, so it is an
actionable document.
Q: Why do we have to distinguish if a document is an actionable
document or not an actionable document?
A: Because the rule requires certain formalities. Like for example
under Sec 7, if your cause of action is based on an actionable document
the law requires that the document must be set forth in the complaint
and a copy of which is attached to your complaint. What happens if you
mention about a contract of loan or promissory note but you did not
attach a copy of your document? The complaint can also be dismissed
for failure to state a cause of action because part of the statement of
your cause of action is for you to attach a copy of that document in your
complaint to make the statement of your cause of action complete
because it is the foundation of your cause of action.
February 21, 2020- PART 3- BEJANO
You might mention the demand letter, even if you attach the demand
letter, still it would not affect the statement of your cause of action
because under the old rules only ultimate facts need to be stated. Now,
under the amended rules, with more reason na madismiss ang imohang
complaint because the law mentions "Not even the ultimate facts but
also the evidentiary facts must be mentioned or averred in the
complaint". Much more na wala ka nag attach ug copy sa imohang
actionable document.
The same thing for the defendant.
Ex. Plaintiff properly alleged the actionable document in his complaint.
When you say "properly", giset forth niya ang substance sa document
and then attach a copy. The defendant in his answer denied the
existence of the contract of loan or promissory note. But, he did not
make his denial or his answer is not relevant, meaning it's not under
oath, what is the consequence? because it is an actionable document
under the subsequent sections, the law says that the genuineness and
due execution of that document is already deemed refuted. So, naa nay
implied deemed admission on the part of the defendant, if that is an
actionable document.
Kung dili siya actionable document, which is attached to the complaint,
even if the defendant's answer is not verified, there will be no effect of
implied admission on the genuiness and due execution of the document.
So, dili siya actionable document. Pag dili siya actionable document.
So, if the document is actionable, again we have to follow section 7.
PLEADING AN ACTIONABLE DOCUMENT
Q: How do we plead an actionable document?
A: The rule says, the substance of such instrument or document shall
be set forth in the pleading and the original or a copy thereof shall be
attached to the pleading. It shall be deemed a part of the pleading
Example: Defendant and plaintiff entered into a contract of loan in
January 1, 2000 in the amount of 1 million. Payable within 1 month from
the time of the execution of the contract. You just cite the substance
of the complaint, you dont have to copy everything, but you have
to attach to your pleading either the original of the document or a
copy of the document. Now take note, diri sa new rules, isa nalang ang
way of pleading an actionable document.
Q: Why? unsa diay ang naa sa old rules?
A: Under the old rules, there are two options if you have an actionable
document:
1.) Set forth the substance of the document and attach an original or a
copy to the pleading; or
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
35
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
2.) You copy verbatim the document. You copy everything in the
document, even the "signed". You don't need to attach a copy anymore
under the previous rule.
Now, under the new rules, the second option has been removed.
So, isa nalang ang manner of setting forth the actionable document. So,
it is "Set forth the substance of the document and attach an original or a
copy to the pleading.
Metropolitan bank and trust company vs. LCDC
This is an action for recovery of sum of money and damages, with
prayer for writ of preliminary injunction and preliminary attachment.
The plaintiff here is Philippine banking corporation and the
defendants are LCDC and Sps. Ley.
FACTS: According to the plaintiff, LCDC, which is a general
contracting firm, through the oral representations of the spouses Ley,
applied with the bank for the opening of a letter of credit. Letter of
credit man gud, naay gusto paliton si LCDC abroad, and wala man si
LCDC abroad, muapply siya sa bank ug letter of credit para si bank
na karon ang mag pay, mag transact didto sa iyang palitan abroad.
Katong nagpalit sa abroad, irelease niya ang gipalit ni buyer, so
irelease nya but because diba naay letter of credit? so bale
nangutang ni si buyer kay bank. When the goods are released to the
buyer, aside from the letter of credit, mupirma pud ang trust receipt
agreement ang buyer for the goods received. So, mao na siya
basically ang ilahang transaction. For a letter of credit.
So, ang supplier didto sa abroad kay Global Enterprises Limited. Ang
covered sa ilahang letter of credit is for the importation of IRAQi
cement from IRAQ. So global enterprises negotiated its letter of credit
to the negotiating bank, so nag transact sila etc. And then, wala
nabayaran. So, karon, the bank filed an action for collection against
LCDC the one who applied for the letter of credit and the spouses
because the sps here also executed a continuing surety agreement
to guarantee the payment of the goods covered by the letter of credit.
So, wala man nagbayad, the bank filed a case, the case I mentioned,
and after the presentation of evidence, the court dismissed the case
filed by the bank. Why? what was the reason why it was dismissed?
According to the Court, the bank failed to prove its cause of action.
Why? according to the bank, "We proved the cause of action. In fact,
we presented in evidence of the documents (the letter of credit, the
trust receipt agreement, non-payment of amount) so this sufficiently
proved our cause of action.
In the complaint filed by the bank, it mentioned about the application
for a letter of credit between the bank and LCDC. It also mentioned
about the trust receipt agreement between the bank and the spouses
and LCDC. So, here, according to the court, wala naprove ni bank
ang iyahang cause of action against LCDC because ang attachment
sa complaint, katong application for a letter of credit, although it was
set forth substantially in the complaint and there was an attachment
in the complaint also, but the back portion of that attachment was
blank. Because of that, the court could not determine what was really
the relationship between the parties, the terms and conditions in the
letter of credit cannot be determined because again the portion at the
back was blank. So, it is not enough na naay delivery of the goods
pendant(?) in rem to determine the proper relationship, proper
obligation, makita jud didto sa application for a letter of credit.
But the bank said, the letter of credit is not our foundation of the cause
of action. The foundation of our cause of action is the trust receipt
agreement, according to the bank. We attached the copy of the trust
receipt agreement.
RULING: But the Supreme Court said, in relation to our discussion,
the fact that you considered the application or the letter of credit as
the foundation of your cause of action is clearly seen in the manner
that you feed them these documents. There was compliance with
section 7, rule 8, in so far as the letter of credit is concerned. So, you
pleaded the letter of credit in your complaint in the same manner that
an actionable document should be pleaded. But, in your complaint,
you did not at all comply as to the trust receipt agreement. So, you
did not rely on the trust receipt agreement as the foundation of your
cause of action or defense, it is really the letter of credit. But, sadly,
your supposed foundation is in conflict because the second page is
blank. So, the bank failed to prove its cause of action against LCDC
and the spouses. So, the Supreme Court also discussed what is a
cause of action.
Let's go to section 8. How to contest the actionable document.
Section 8. How to contest such documents. - When an action or
defense is founded upon a written instrument, or attached to the
corresponding pleading as provided in the preceding section,
the genuineness and due execution of the instrument shall be
deemed admitted unless the adverse party, under oath
specifically denies them, and sets forth what he or she claims to
be the facts; but the requirement of an oath does not apply when
the adverse party does not appear to be a party to the instrument
or when compliance with an order for an inspection of the
original instrument is refused. (8a)
Q: How do you contest an actionable document?
A:We go back to our discussion on verification. Diba, as we have
discussed, not all pleadings need to be verified. Although, there are
certain pleadings under the rules of court which must be verified. One of
them is when the pleading attaches an actionable document, if you wish
to deny that document, your pleading embodying your denial must be
under oath or verified.
Example:
Plaintiff: his cause of action is based on breach of contract-contract of
loan. So he files a case for collection of sum of money based on the
promissory note. So, it's an actionable document. Does the complaint
have to be verified? How do you plead that actionable document? You
have to set forth the substance and then attach a copy.
Does it have to be verified? the complaint setting forth the actionable
document? There is no such requirement. If you just say how to plead
the actionable document, there is no requirement that the pleading must
be under oath. Although, again, if it is an initiatory pleading, it needs to
be under oath because there is certification against forum shopping.
Actually the complaint need not be verified there has just to be a
certification against forum shopping. Now, if you are the defendant,
and you're filing your answer, and you're denying the existence and due
execution, like: Defendant denies paragraph 2 of the complaint in so far
as the allegation that he signed the promissory notice concerned, the
truth of the matter being that, the signature in the promissory note is a
forgery. The defendant did not sign any promissory note. Here, your
answer must be verified. It is in that pleading which DENIES the
actionable document that should be made under oath, that must be
verified. Why? what is the consequence if the answer in that example
is not verified? Even if giunsa pana nimo pag deny, very specific imong
denial, but your answer is not verified or under oath, under section 8,
you are deemed to have admitted the genuineness and due execution
of the instrument.
Now, what if in the complaint the plaintiff mention (collection gihapon ha)
about the promissory note and then the obligation of the defendant, BUT
he did not attach in his complaint a copy of the document and, on
the other hand, the defendant also in his answer, he denied the
genuineness and due execution of the promissory note mentioned
in the complaint, BUT it is not verified.
Q: Will he be deemed to have admitted the genuineness and due
execution of the promissory note mentioned in the complaint?
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
36
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
A: No, because the rule says only if the actionable document is
properly pleaded and attached to the complaint, then if you file an
answer denying such actionable document, you have to make your
answer verified. So, kung wala man diay in the first place na properly
pleaded and attached ang actionable document in the complaint, even
if your answer is not under oath, there is not such effect of admission. In
the first place, deficient ang complaint for failure to attach the actionable
document which is the foundation of the cause of action of the plaintiff.
ADMITTED THE GENUINENESS AND DUE EXECUTION OF THE
ACTIONABLE DOCUMENT; MEANING
Q: Now, when we say that if the defendant or the party fails to deny
under oath, he is deemed to have admitted the genuineness and due
execution of the actionable document. What do we mean by “Admitted
the genuineness and due execution of the document”? What is the
extent of that admission? what does it cover?
A: So, in the landmark case of (Inaudible) What is included in that
"Admitted the genuineness and due execution of the actionable
document"?
Meaning, delivered na siya. So, if the pleader fails to deny under oath
the genuineness and due execution or even if he denies it specifically
but the answer has no verification (not under oath) so it is to be
presumed that the document was delivered. Like katong promissory
note gideliver jud to. Gihatag gyud to sa creditor. Dili nga "Tinuod na
nagsign kog promissory note, pero wala man to nadayon. In fact,
gitaguan lang nako tong promissory note sa akoang drawer. Unya
gikawat diay niya and now he's collecting." So, again, if not under oath,
presumed that it was delivered.
5.) The formal requisites of law such as seal, acknowledgement, or
notarization, documentary stamps etc. are now waived.
So you cannot say na "Yes, there is a promissory note for a contract of
loan. But, actually, we agreed na isuspend lang sa to siya. In fact, I did
not appear before any notary public. I did not go to the office of attorney
bla bla bla to have the document acknowledged. But again, your answer
is not under oath, so useless lang to siya na answer. Still, because of
that, you are deemed to have admitted that niadto gyud ka sa office ni
attorney. Pero gi waive na to nimo siya defect. So, that's again another
consequence of failing to deny under oath the genuineness and due
execution of the actionable document.
1.) It means that the party whose signature it bears signed it;
EFFECT: DEFENSES THAT CAN NO LONGER BE USED
So dili na nimo pwede ideny ang imohang signature. Even if you deny
in your answer, since di siya under oath, you have admitted the
genuineness of your signature in that promissory note.
2.) If it is signed by another, it was signed for him and with his
authority;
Example: A(Agent) told C(Creditor) that her sister P (principal) wanted
to borrow money from C. So, C agreed. There was a promissory note
prepared. It was signed. But, of course, P did not sign the promissory
note. It was A. But, the promissory note it seemed that P executed
because she's supposed to be the principal but signed by her agent A.
So, that is the tenor of the promissory note.
A did not pay. So, Creditor filed a case for collection against P (kay si P
man ang supposedly nanghiram, agent lang man si A. Although wla
gyud sila nagkita in person ni P). So, si P karon ang defendant. P said
"I did not authorize A to borrow money for me." so, I deny the promissory
note. I did not become a principal in any debt. I deny. But, his denial is
NOT under oath. Even if giunsa pa to kaspecific ang iyahang denial but
it is not under oath, it has the effect of "Admission of the genuineness
and the due execution of the document" So this is another extent of that
motion. Even if it was signed by A, not P, but because P failed to verify
his answer, it is not made under oath, there's now Implied admission on
his part that it was really signed by A on her (P) behalf. That she
authorized A to borrow money on her behalf. So, that is the other
consequence of failing to make the denial under oath. So, the defense
now of P of unauthorized signature in his part is already out of the
question because he is deemed to have impliedly admitted that by failing
to verify his answer.
3.) At the time it was signed, it was in words and figures exactly as
set out in the pleading of the party relying upon it;
So, creditor C, sued debtor for collection of a loan: 15,000 pesos. Basis
of the loan was a promissory note which was properly pleaded and
attached to the complaint of C. Now, in his answer, D said "yes, I
borrowed from C, but only 5,000. Gidugangan lang nilag zero. mao
nahimog 50,000. But in fact, it was only 5,000." So, it was falsified, there
was alteration in the promissory note. But, the answer of D is not verified,
not under oath. So, what is the effect? He is deemed to have admitted
the genuineness and due execution of that promissory note and that the
amount mentioned in that promissory note is really the correct amount.
It was exactly in the words and figures as set forth in the promissory note
or the actionable document. So, wala nato ang defense niya of
falsification.
4.) That the document was delivered.
As a consequence, because you already admitted these matters which
we already discussed, what defenses now are no longer possible
because you failed to deny the genuineness and due execution of the
actionable document under oath. Unsa na defense na karon ang dili
nimo pwede iinterpose?
Isa lang imong timan an: Those defenses which are already
INCONSISTENT with the genuineness and due execution of the
actionable document. What are these defenses?'
1.) Forgery
2.) Authority to sign - You cannot say na the contract is unenforceable
because it was signed by unauthorized person. But again, the document
as written appears to be signed, so you failed to deny it under oath, then
you are deemed to have admitted the authority of the person alleging to
sign in your behalf.
If it is a corporation, you cannot deny already the authority of the
corporation who signed. So, you cannot interpose this defense that the
Corporation was not authorized under its charter to sign the instrument.
Maybe in reality, wala gyud siya nag authorize, but again you failed to
deny it under oath. So, you are deemed to have admitted.
3.) The parties charged signed in some other capacity than that
alleged in the pleading. - When you admit impliedly because you failed
to deny under oath, the genuineness and due execution of the
actionable document. You cannot vary the tenor of that document
already. Everything in the document is deemed to have been admitted.
So, you cannot say na "I did not sign it in my capacity as a principal. I
merely signed it in the capacity of a guarantor." But, in the contract, it
says you are the principal. So, wala na kay ing ana na defense.
4.) That it was never delivered.
February 24, 2020- MAGLINTE, DAHILIG
Last meeting we discussed about actionable documents.
If an actionable document is properly pleaded and attached to the
complaint or the counter-claim or any pleading asserting a claim, the
other party should deny it under oath, otherwise he is deemed to admit
the genuineness and due execution of the actionable document.
We also discuss what would go together when you admit the
genuineness. What does it mean when you admit the genuineness and
due execution of the document?
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
37
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
Based on what we discussed, if for example, you are the defendant and
in your answer, you denied the contract of loan, or the promissory note
(PN) but your answer is not verified, so it is not under oath. Therefore,
you are deemed to have admitted the genuineness and due execution
of the promissory note or contract of loan.
Does it follow, na pilde na jud ka as a defendant? That have no more
defense because you have deemed admitted the genuineness and due
execution of the document?
You can still interpose those defenses which are not inconsistent
with the genuineness and due execution of the document.
What are these defenses?
Payment – “I admit I signed the PN but I already paid". Even
if your defense is not under oath but your defense is payment;
you may have admitted it is genuine but you are still not liable
to pay.
▪
Or the consideration is illegal, or no consideration at all, or it
is an absolutely simulated contract,
▪
Or you were defrauded into entering the contract
▪
Or mistaken
▪
Or there was already a compromise.
▪
Or “yes, I signed the PN but the action had already prescribed
because it has been 15 years since the cause of action
accrued hence is barred by the Statute of limitations”.
▪
Estoppel – “you are already estopped from filing an action for
declaration of nullity because you allowed me to put
improvements in the property when it’s supposed to be null
and void”.
▪
Duress, minority imbecility
You can still interpose; it doesn’t follow na pilde na ka if you are the
defendant and you can no longer defend yourself
▪
The other question is, may the benefit of the admission of the
genuineness and due execution of an actionable document be
waived?
Supposedly, the defendant had already admitted the genuiness and due
execution of the document, so wala na siya kawala by failing to put his
answer under oath. Still, there are certain circumstances when that
benefit can still be waived. Meaning, the other party can still put into
issue that the document is not genuine, that it was forged, that the
person who signed there was not authorized by the party against whom
the party is being enforced.
There are 2 examples.
Here, although there was an implied admission, it was already deemed
waived.
1)
When he presented witnesses to prove the genuineness
and due execution.
YU CHUCK vs KONG LI PO
Yu Chuck filed a case against defendant, Kong Li Po because allegedly
there was a violation of their contract of employment (CoE). According
to the plaintiff, he was illegally dismissed because the contract was
illegally pre-terminated. Under the principle of economy of contracts, you
have to observe all the terms and conditions of the contract, including
the period. So if it is for 5 years, both parties must respect the contract
for 5 years. Neither one can pre-terminate the contract without the
consent of the other.
So there was an illegal pre-termination. Before the amendment there are
2 ways by which you can allege and prove the existence of your
actionable document.
1)
Katong atong ginagamit karon, you have to set forth in the
complaint the substance of the document and attach in your
complaint the authentic copy of your document.
Before you can also just copy verbatim in the complaint your actionable
document.
So here, it was not really attached but it was translated in the contract.
Sa body sa contract, gisulat niya ang contract but it was translated. SC
in that case considered it a copy, although again it is no longer
applicable pa. So this was how an actionable document is supposed to
be pleaded and attached. So proper na daw to ingon sa Supreme Court,
na even if wala niya gi-copy ang exact translation example French to,
but still an exact copy.
Now being considered as having been properly alleged, attached and
properly pleaded to the complaint, the defendant in his answer, if he
would deny the genuineness and due execution of the contract of
employment, you should make it under oath otherwise, there will be an
implied admission of the genuineness and due execution of the
actionable document.
So ang actionable document was the contract of employment and he did
not make his answer under oath. What was the consequence? He has
already impliedly deemed admitted the genuineness and due execution
of the CoE. Wala niya gi-deny under oath, so there is admission.
Being the plaintiff, naa na may admission, do you still have to prove the
genuineness and due execution of the CoE? NO NEED because there
was already an implied omission.
But here, the plaintiff during the trial, presented evidence to prove the
contract so the existence and due execution, and also the evidence as
to the authority of the agent to sign the contract on behalf of the alleged
principal. Again, supposedly, there was no need because the defendant
has already admitted the genuineness and due execution, and the
defendant also presented evidence to refute the authority of the agent
to sign on his behalf.
So what is the effect of that?
The defense implied admission was already waived. so the SC said,
both parties overlooked the rule regarding actionable documents. Kung
kabalo lang si lawyer ug si defendant about sa rule, wala na unta siya
nagpresent ug evidence in the first place because it was no longer
needed. So here the SC said, the object of the rule is to relieve the party
of the expense of proving the first instance of the alleged act the
existence of which is necessary to the knowledge of the adverse party
and of the necessity of establishing that such adverse party is notified
by his opponent’s pleading. But the plaintiff may also waive the rule and
that must be considered to have been done in the first place by
introducing evidence as to the execution of the document and failing to
object of the defendant’s evidence in presentation.
Kay pagpresent pud ni defendant sa evidence to refute the evidence of
the plaintiff, wala man pud siya nag object so this was already deemed
waived. All of this evidence is now competent and the case must be
decided thereupon. So, the court will no longer dwell on the supposed
implied admission made by the defendant in his answer by failing to
make his answer under oath. The court will now consider the evidence
of the plaintiff presented, precisely to prove the genuineness and due
execution of the document as well as the authority of the agent, and
would also consider the evidence of the defendant to refute the
documents.
So kalimtan na nato dire ang rule on actionable documents.
2)
When the pleader fails to object to evidence controverting the
due execution
So here, again the complaint was based on an actionable document
which was properly attached in the complaint but the lawyer of the
defendant, although he denied the document, he did not put it under
oath. So again there is an implied admission.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
38
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
Now supposedly, because there is already an implied admission, dili na
makapresent si defendant ug evidence to prove na forged tong
document. He is already bound by his implied admission.
The lawyer for the defendant forgot about the rule on actionable
document. When the defendant tried to present evidence to refute the
genuineness and due execution of the admission of that actionable
document, it was the plaintiff’s lawyers duties to object because why
would you present evidence to refute when in the first place, you have
already admitted the genuineness of execution by failing to make your
answer under oath. So sila duha ka-lawyer nakalimot and what is now
the consequence?
Example: C field a case for collection based on a promissory note
supposedly signed by the debtor, the debtor supposedly also. If he
denies, he is supposed to make it under oath. He did not. So there is
implied admission. During the trial, the defendant tried to present
evidence that it was a forgery. Presented on the witness stand was a
handwriting expert to disprove it was not his handwriting. The plaintiff
failed to object. So here, there is already a waiver of the rule on the
consequence of an actionable document not having been properly
denied under oath.
I remember last week, we had a hearing, I was confused because it was
supposedly pre-trial but the lawyer for the defendant said, “Your honor I
am not ready for pre-trial because my client did not receive the
summons, so there was no jurisdiction over the person of the client”. The
judge asked, ”where is your client?”. The lawyer answered, “she is in the
memorial park because the client is already dead”. Supposedly, pre-trial
there was already an answer so wala siya nakabalo na patay na diay
ang iyang client, so nag move siya na mag file daw siya ug motion to
dismiss on the ground that there is no jurisdiction over the person. Diba
the rule is that if patay na imong client, your atty client relationship is
terminated or extinguished and you no longer have the authority to act
for your client except to manifest int the court na client nimo patay na.
And then the lawyer pud for the plaintiff said in a motion, orally, that he
will amend daw his pleading. So nganong i-amend man niya? Diba
substitution of parties. It was the case of both parties did not know what
they are talking about. Proper remedy is the substitution of parties. So
na waive na ang consequence sa actionable document being impliedly
admitted.
What are those instances even if the denial is not under oath, it would
still be valid and has a consequence? Katong atong gidiscuss before,
the denial was not under oath. So example si defendant, the document
was not under oath, he has already deemed impliedly admitted the
genuineness and due execution of the document but can still interpose
defenses which are not inconsistent with the genuineness and due
execution of the actionable document.
Kani even if not under oath, still they are not deemed impliedly instituted
the genuineness and due execution of the document.
These instances include:
1)
When an adverse party does not appear to be a party to
the instrument
Example: ilang papa signed a contract and namatay, then
there is now a case filed against the estate or against the
heirs. The heirs denied the genuineness and due execution
but not under oath, are they deemed to impliedly admitted?
No, because they are not parties to the document. Only those
who are deemed parties to the document who failed to file
under oath are deemed to have impliedly admitted.
2)
When compliance with an order of inspection of the
original document is refused
3) When the document to be denied is not classified as an
actionable document or is merely an evidentiary matter
Example: Demand letter. It is not an actionable document, but
under the amended rules, you need to allege. But again, that
document, even if it is attached to your complaint, but it is not an
actionable document, the other party who denies it does not have
to deny it under oath and there will be no implied admission.
We have already discussed before the rule on Replies in relation
to an actionable document.
Gen. Rule: A reply, under the present amendment, is NOT allowed.
Under the Rules before, it was optional.
XPN: When the answer of the defendant contains a counter-claim and
there’s an actionable document attached. So you have to deny it under
oath. And in that case, the filing of a reply also becomes compulsory.
Section 9. Official document or act. – In pleading an official
document or official act, it is sufficient to aver that the document
was issued or the act was done in compliance with law.
Example: Official letter of the President, official communication by a
government agency
You don’t have to attach a copy of these documents in your pleading. It
is sufficient to aver that the document was issued or the act was done in
compliance with law. So this is a general averment.
This is different from what we have discussed before – if it is a
judgment, you have to attach in your pleading an authenticated copy of
the judgment.
Here, you don’t have to attach any copy of the document. Although,
again, this is different. When you say you did not have to plead or allege
in your pleading, and you don’t have to attach in your pleading this
official document, but when you go to trial, you have to present, because
the court does not take judicial notice that (for example) the President
has issued a letter. You have to present evidence. So, pleading is
different from proving.
Distinctions between Pleading and Proving
Pleading
Proving
You mention in your pleadings, You have to present already a
complaint,
answer,
reply, copy of the document
counter-claim or cross-claim, etc.
There are some matters that you
just need to plead but you don’t
need to attach in your pleadings
copies of those documents.
In the verification, it is sufficient to You have to offer the original or
state that the allegations are certified true copy.
based on authentic records. But
you do not have to attach the
original or certified true copy of
the document in the pleading
When you plead a JUDGMENT,
you
need
to
attach
an
authenticated copy
If you are referring to an
OFFICIAL DOCUMENT as one of
your pieces of evidence, you just
aver generally.
Same
with
proving
the
existence of the judgment, you
have
to
present
the
authenticated copy.
You have to present a copy.
Allegations that must be done GENERALLY:
1. Rule 8, Sec. 3 – Conditions precedent
i.e. barangay conciliation: -you don’t have to specifically state how you
arrived at the barangay conciliation and how did you secure the
certificate to file action.
2. Rule 8, Sec. 5, second sentence – conditions of the mind
3. Rule 8, Sec. 9 – Official document or act
Allegations that must be done with PARTICULARITY:
1. Rule 8, Sec. 4 – Capacity to sue or be sued
2. Rule 8, Sec. 4 – legal existence of any party to sue or be sued
3. Rule 8 Sec. 5 – Fraud or mistake
4. Rule 8, Sec. 6 – Judgment
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39
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
Section 10. Specific denial. — A defendant must specify each
material allegation of fact the truth of which he or she does not
admit and, whenever practicable, shall set forth the substance
of the matters upon which he or she relies to support his or her
denial. Where a defendant desires to deny only a part of an
averment, he or she shall specify so much of it as is true and
material and shall deny only the remainder. Where a defendant
is without knowledge or information sufficient to form a belief
as to the truth of a material averment made to the complaint, he
or she shall so state, and this shall have the effect of a denial.
It is just the same as the old Rules, except for the “he/she” and ”his/her”.
3 MODES OF DENIAL
FIRST MODE
1. A defendant must specify which material allegation of fact the
truth of which he does not admit and whenever practicable, he shall
set forth the substance of the matters upon which he relies to
support his denial.
So meaning, if you are the defendant and you are filing your answer, so
you are denying the allegations in the complaint, it’s not enough that you
just say “I deny all the allegations in the complaint. The plaintiff is a liar.”
Actually, this is already considered as an admission, because it does not
comply with the rules on how to deny. Denials must be specific.
If for example the allegation is breach of contract of carriage. So for
example, in par.4 of the complaint, it is alleged by the plaintiff that on Ja.
1, 2001 the plaintiff entered into a contract of carriage with the
defendant. Plaintiff boarded the bus with plate no. xxxx, bound to CDO.
So if you are the defendant, it is not enough that you say “I deny par. 4
of the complaint.” You should specify why you are denying such. So it
must be: “Defendant denies the allegations in par. 4 of the complaint,
there was no contract of carriage between the plaintiff and the defendant
because the plaintiff did not board the bus of the defendant.”
What happens if your denial violates this first mode of supposed denial
which should be specific? – this is a general denial, which has the effect
of automatically admitting the allegations in the complaint.
What if in your answer, you said “I deny specifically par. 5 of the
complaint”? – No, it is still not compliant. It does not become specific just
because you said “specifically. It is still in the nature of a general denial,
therefore you are deemed to have admitted the allegation. (Cortes v. Co
Bun Kim, 90 Phil 167)
SECOND MODE
2. Where a defendant desires to deny only a part of an averment,
he or she shall specify so much of it as is true and material and
shall deny only the remainder.
What if, for example, in one paragraph, there are statements which are
true and there are also some which are not true? How do you deny that?
You cannot deny everything since there are parts which are correct. You
cannot also admit everything because some parts are wrong. So you
have to specify what portions you are denying and what portions you are
admitting.
Example: The allegation in the complaint is that the defendant is in
possession of the property under litigation in bad faith.
Here, it is true that the defendant is in possession of the property, but he
is not in bad faith.
So in his answer, the defendant can admit some but qualify some.
“Defendant admits that portion of par.2 that he is in possession of the
property in question, but denies that he is a possessor in bad faith
because he was allowed by the plaintiff to possess the property. There
was a contract…” so you have to explain why.
For example, you are just denying everything. “I deny the allegations in
par. 5 of the complaint” even if there are some allegations which are
actually true and are not supposed to be denied. SC said that when the
entire allegation is denied without qualification, that is what we call a
NEGATIVE PREGNANT. In reality, you are not really denying the entire
paragraph, but only some of the allegations in such paragraph. So when
it is a negative pregnant, it is actually what we call a denial which is
coupled with admission.
RUBY RUTH MAHILUM v. SPS. ILANO
Facts: Ruby Ruth was the registered owner of a parcel of land. She
entrusted the land to an agent. Later on, the agent said that he lost the
owner’s copy of the title. So Ruby Ruth filed an affidavit of loss with the
Registry of Deeds (ROD). In the ROD, she discovered that there was an
annotated Deed of Sale made in favor of the Sps. Ilano. There was also
an affidavit of non-loss annotated by the Sps. Ilano.
So Ruby Ruth filed a complaint for annulment of the Deed of Sale
alleging that she did not authorize anyone to sell the land; that in fact
she was told that the owner’s copy of the title was lost.
(When you have an owner’s copy of the title, you cannot just request for
another copy before the ROD. You have to file a case in court for you to
be able to get another owner’s copy. Naay uban na wise, like, kabalo
sila na ang owner’s copy kay naa sa owner or somewhere else, or ang
owner mismo iyahang gi-prenda iyahang land, so nasa laing tao ang
owner’s copy, ang uban muingon na “lost”, so you have to annotate
before the ROD an affidavit of loss. Then you can use that now as basis
for filing a petition in court for the court to issue a new owner’s copy.
What if the owner’s copy was not really lost? Then that new title and the
decision of the court is null and void because the court has no jurisdiction
to order the issuance of a new owner’s copy if the original is lost. If you
are the owner then you see an annotation of an affidavit of loss when in
fact it was not lost, then you have to file an affidavit of non-loss.)
In the Answer of the defendant: Some time in October 2003, Perez,
accompanied by one Corazon Tingson, and a female person who
introduced herself as Ruby Ruth Serrano offered to sell to them the
property covered by TCT-85523.
Held: It is a negative pregnant, because it is actually an admission that
Ruby Ruth DID NOT sell the property. Why would you say “and a female
person who introduced herself as Ruby Ruth” if she really was the one
who introduced herself? It is very invasive. It must either be you admit
or you deny.
SC: They should not have referred to the supposed seller as “another
person herein named as ‘Jane Doe’ whose identity is yet to be
established who introduced herself as Ruby Ruth Serrano” or “the
person who introduced herself as Ruby Ruth Serrano” if indeed it was
petitioner herself who appeared and signed the agreement and deed of
sale in question. They should have categorically alleged that they bought
the property from petitioner herself if indeed this was so. Their
ambiguous allegations constitute a negative pregnant, which is in effect
an admission.
So it was in effect an admission that it was NOT the owner who sold to
them the property.
February 25, 2020 - Part 1- Evanne Maliones
So last meeting we discussed the modes of denying - the concept of a
negative pregnant.
As we already discussed before, under the second mode of denial, if
there are allegations in the complaint for example that some are true and
some are not, you would like to deny some but admit some, you'd have
to specify.
If your denial is total or evasive, it could be considered as a negative
pregnant and the effect is it's still not a denial. so where a fact is alleged
with some qualifying or modifying language and the denial is (inaudible
at 01:04 ) a negative pregnant exists. only the qualification or
modification is denied while the fact itself is admitted.
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Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
40
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
A denial in the form of a negative pregnant is an ambiguous pleading
since it cannot be ascertained whether it is the fact or only the
qualification that is intended to be denied.
Professional ignorance about a fact which is patently and necessarily
within the pleader's knowledge or means of knowing as ineffectual is no
denial at all.
Caneland Sugar Corporation vs. Hon Alon
G.R. No. 142896 | September 2007
Case digest:
FACTS: Caneland Sugar Corporation (petitioner) filed with the
Regional Trial Court (RTC) a complaint for damages, injunction,
and nullity of mortgage against the Land Bank of the Philippines
(respondent) and Sheriff Eric B. de Vera, docketed as Civil Case
No. 2067-40, praying for the following reliefs: issuance of a
temporary restraining order enjoining respondent and the Sheriff
from proceeding with the auction sale of petitioner’s property;
declaration of nullity of any foreclosure sale to be held; declaration
of nullity of the mortgage constituted over petitioner’s property
covered by TCT No. T-11292 in favor of respondent; and award of
damages.
In the answer of the defendant, he merely said that the promissory
notes are silent as to whether they were covered by the Mortgage
Trust Indenture and Mortgage Participation on its property covered
by TCT No. T-11292.
EXAMPLE:
Allegation on moral damages
So in the complaint, the plaintiff says:
Because of the illegal and deliberate act of the defendant, the plaintiff
suffered sleepless nights, serious anxiety, moral shock, besmirched
reputation for which reasons the plaintiff is entitled to moral damages
amounting to 5 million pesos.
Of course, in the answer of the defendant, you have to address
everything in the complaint of the plaintiff. otherwise, you are deemed to
have admitted those allegations which you did not deny or even if you
deny but deny generally.
Even the allegations of moral damages, the court will not presume na
the defendant has no knowlegde of these allegations. Still, the defendant
has to make a stand - admit or deny.
In this kind of allegation - sleepless nights, ngano nagtapad ba si
defendant ug plaintiff na kabalo sya na nagsuffer si plaintiff ug sleepless
nights? but the defendant, he cannot also deny na dili tinuod, nagsuffer
ug sleepless nights si plaintiff, in fact silingan mi, kusog kaayo syag
hagok every night (but of course, if that's the case, you can say that) but
most of the time, you have no knowledge or information as to whether
or not he really suffered sleepless nights. so this could be your
allegation:
Defendant has no knowledge or information, sufficient to form a belief
as to the truth of the allegation.
ISSUE: what is the nature of the defendant’s answer?
RULING: (as mentioned by Atty. LCYE) Negative pregnants. It
does not categorically deny that these promissory notes are
covered by the security documents.
now some people would say "and therefore he denies the same" actually
this last phrase is not necessary because it is sufficient that you
have knowledge or information, sufficient to form a belief as to the truth
of the allegation.
These vague assertions are, in fact, negative pregnants, i.e.,
denials pregnant with the admission of the substantial facts in the
pleading responded to which are not squarely denied.
That is the extent and has the effect of a denial. because again, you are
not in a position to confirm or deny because you are not there. it could
be true he suffered sleepless nights but you don't know about it.
Negative pregnant, defined
A negative pregnant is a "form of negative expression which
carries with it an affirmation or at least an implication of some kind
favorable to the adverse party.
Now, the Supreme court said that we should be careful in using this kind
of denial. Because this would only apply if you are in a position not
to know the truth or falsity of the allegation. We should not abuse
this kind of denial and only use this when you are nto in a position to
confirm or deny because for example in thsi case of
It is a denial pregnant with an admission of the substantial facts
alleged in the pleading. Where a fact is alleged with qualifying or
modifying language and the words of the allegation as so qualified
or modified are literally denied, has been held that the qualifying
circumstances alone are denied while the fact itself is admitted."
Comment:
So when you say silent it does not follow na there's no collateral to that
promissory notes.
EXAMPLE:
Uy naa nako'y uyab
Gwapo?
Tangkad sya.
Gwapo ba?
Bright, bright.
That's a negative pregnant, you're not really denying. You’re just being
evasive.
THIRD MODE
Here, when the defendant is without knowledge or information sufficient
to form a belief as to the truth of material averment made in the
complaint, he shall so state and it shall have the same effect of denial.
Here, there's an allegation in the complaint but the defendant is not in a
position to know the truth or the falsity of the allegations.
Capitol Motors vs, Yabut
G.R. No. L-28140 | March1970
Case digest:
Capitol Motors filed a complaint against Yabut where it averred
that teh defendant executed a promissory note in Capitol’s favor
for the sum of P30,134.25, payable in eighteen (18) equal monthly
installments with interest at 12% per annum, the first installment to
become due on June 10, 1965, that it was stipulated in the
promissory note that should the defendant fail to pay two (2)
successive installments.
The plaintiff filed a motion for judgment on the pleadings, on the
ground that the defendant, not having set forth in his answer the
substance of the matters relied upon by him to support his denial,
had failed to deny specifically the material allegations of the
complaint, hence, must be deemed to have admitted them.
What the defendant merely stated was that he was
”without knowledge or information sufficient to form a belief as to
the truth of a material averment in the complaint.”
Issue: Did the defendant’s answer constitute a specific denial
under Section 10, rule 8?
Ruling: NO.
In this case, a mere allegation of ignorance of the facts alleged in
the complaint, is insufficient to raise an issue; the defendant must
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41
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
aver positively or state how it is that he is ignorant of the facts so
alleged.
So they are not deemed admitted even when you did not specifically
deny them:
The present action is founded upon a written instrument attached
to the complaint, but defendant-appellant failed to deny under oath
the genuineness and due execution of the instrument; HENCE,
THE SAME ARE DEEMED ADMITTED. (Section 8, Rule 8 of the
Revised Rules of Court)
THOSE NOT DEEMED ADMITTED:
1. Amount of unliquidated damages
When you say liquidated damages, these are the damages which are
fixed by the parties in their contract. Example: it is stipulated in the
contract that in case of breach, the aggrieved party is entitled to recover
1 million to a guilty party. so that's equivalent to a penal clause.
ATTY LCYE’s Comment: Is it true? wala ka kabalo kung nangutang
ka? kung wala siguro ka nangutang, you deny. or kung nangutang man
ka, pero nabayaran na nimo, you say " defedant admits the allegation
that he signed a promissory note and borrowed money but he already
paid"
But when you say
'the defendant has no knowledge or information sufficient to form a belief
as to the truth of the allegation in paragraph 1"
Dili na pwede according to the Supreme Court. You must admit or deny
- you must know kung nangutang ka or wala. so in this instance, this is
equivalent to an admission. So that's the rule.
Section 11. Allegations not specifically denied deemed
admitted - Material averments in a pleading asserting a claim
or claims, other than those as to the amount of unliquidated
damages shall be deemed admitted when not specifically
denied.
Old Rule
Material averment in the
complaint
New Rule
material averments in the pleading
asserting a claim or claims. because
this is not limited only to the complaint.
Comment:
There are pleadings which assert a
claim or claims like a counterclaim,
cross claim, 3rd, 4th etc party
complaint. Although, even if udner the
old rules the phrase "pleading,
asserting a claim or claims was not
mentioned, jurisprudence said that
this is still applicable to a
counterclaim, cross claim, etc
Valdez vs. Paras
G.R. No. L-11474 | May 1959
Supreme court said that this rule extends to counterclaim, cross
claim, 3rd, 4th etc party complaint even if the rule merely
mentioned complaint.
Comment:
Now it is very clear na in the amended rules that this is applicable as
well to a claim or claims.
WHAT IS DEEMED ADMITTED UNDER SECTION 11?
1. Those material allegations not specifically denied - we already
mentioned before na the denial should be specific. Again, there are 3
modes of denial. if you did not follow any of those 3 modes, the effect is
you are deemed to have admitted the allegations in the complaint or
claim of the claiming party.
What are these material averments deemed admitted or not?
Note: it doesn't follow that even if your denial is general or maybe
specific but fails to comply with the rules, tanan na imong giadmit. still,
there are matters na even if you are deemed to have admitted but
because of your failure to deny properly, these items are not deemed
admitted.
Here, there's no need t o prove the amount of damages because it is
already agreed upon. What is necessary for the plaintiff to prove is the
fact of breach. And when there is proof then it follows that your entitled
to liquidated damages.
In a complaint where the cause of action is based on a contract and
liquidated damages are agreed upon, if you are the defendant and you
failed to make a proper denial, you are deemed to have admitted
including the liquidated damages. but if it is unliquidated damages, like
quasi-delict. by reason of negligence, the passenger suffered moral
damages amounting to 1 million and then, exemplary damages, actual
damages, these amoutns are considered unliquidated damages. they
are not admitted even if the defendant failed to properly deny them. The
rule is you have to prove unliquidate damages.
2. Immaterial averments
Those averments which have no relevance to the complaint. Like
damages. Diba breach of contract to marry is not actionable. But for
damages suffred, you can be sued. so for example the plaintiff said "
defendant is ugly but even if that is the case, plaintiff who is very
beautiful still married the defendant" so those are immaterial averments.
Eventually it is still the court which decide what is the applicable law on
the matter so these are not deemed included in the admission take note
section 11 no longer mentions user e because before and section 11 it
said allegation of usury in a complaint to recover usurious interest are
deemed admitted if not denied under oath it's no longer applicable
because again the usury law has been suspended even if you alleged
usury in the complaint but the law says it is not applicable.
So you you are not deemed to have admitted that allegation that would
now fall under conclusion of law na the defendant imposed interest
which are very high that is usurious - that is against the law. so that is
not correct. that is based on his wrong conclusion of law.
Which even if the defendant failed to deny specifically he will not be
deemed to have admitted that allegation and there is no need to deny it
under oath because the rules no longer requires such kind of denial so
forget about that usury.
Section 12. Affirmative Defenses – (a) A defendant shall raise
his or her affirmative defenses in his or her answer which will
be limited to the reasons set forth under section 5b rule 6 And
the following grounds:
1. That the court has no jurisdiction over the person
of the defending party
2. That the venue is improperly laid
3. That the plaintiff has no legal capacity to sue
4. That the pleading asserting the claim states no
cause of action and
5. That a condition precedent for filing the claim has
not been complied with
(b) Failure to raise the affirmative defenses at the earliest
opportunity show constitute a waiver thereof
(c) The court shall motu proprio resolve the above affirmative
defenses within 30 calendar days from the filing of the answer
(d) As to the other affirmative defenses underOkthe first
paragraph of section 5b rule 6 the court may conduct a
summary hearing within 15 calendar days from the filing of
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Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
the answer such affirmative defenses shall be resolved by the
court within 30 calendar days from the termination of the
summary hearing
(e) Affirmative defenses if denied shall not be the subject of a
motion for reconsideration or petition for certiorari
prohibition for mandamus but may be among the matters to
be raised on appeal after a judgment on the merits.
Comment: Section 12 is an entirely new rule or provision Dismiss
inserted here because before this was part of section 13 so now we have
this provision on affirmative defenses
What is an affirmative defense?
We already discussed this under rule 6 5(b).
So again an affirmative defense is an allegation of a new matter which
while hypothetically admitting the material allegations in the pleading of
the claimant would nevertheless prevent or bar recovery by him or her
even if you admitted but still the plaintiff is not entitled to his demand
because of your affirmative defense.
Affirmative Defenses Allowed
Based on section 12 of rule viii what are the affirmative defenses allowed
it mentions the affirmative defenses and rule 6 section 5b so what are
these affirmative defenses.
We have:
1. Fraud
2. Statute of limitation
3. Release
4. Payment
5. Illegality
6. Statute of fraud
7. Estoppel
8. Form of recovery
9. Discharge in bankruptcy and
9. Any other matter by way of confession and avoidance
In addition to the ones mentioned under section 8 of rule 12 which are
1. The court has no jurisdiction over the person of the defending party
and then
2. venue is improperly laid then
3. the plaintiff has no legal capacity to sue and then
4. the pleading asserting the claim states no cause of action and
5. that a condition precedent for filing the claim has not been complied
with
So these are the affirmative defenses mentioned in section 8 of rule 12.
Are there other affirmative defenses that can be found under the present
amended rules these are the others mentioned under rule 9 section 1
1. Lack of jurisdiction over the subject matter
2. Litis pendentia
3. Res judicata and
4. Prescription
Actually the affirmative defenses before were specifically mentioned in
rule 16 section 1 of the rules of court so these are from route 16 under
the previous through these grounds can be used as grounds in a motion
to dismiss so for example you are the defendant and you received
summons now some of your possible options would be :
1. immediately filed a motion to dismiss based on the ground
mentioned in the former route 16 which these are the matters
naturally mention most of them are the ones mentioned in rule 16 or
2. you will not file a motion to dismiss but you will instead file an
answer and then your answer the same grounds you will interpose
as you are affirmative defenses
So there are also consequences when you are allege them in your
motion to dismiss where your answer one difference is when you file a
motion to dismiss for example that the plaintiff or that the complaint fails
to state a cause of action director motion to dismiss under the rules
before the defendant filed a responsive pleading it is a matter of right on
the part of the plaintiff to amend
So muana si plaintiff "ay tama, thank you defendant, imo kong gi ingnan
that the complaitn fails to state a cause of action.” So what will the
defendant do? i amend lang nya ang iyahang complaint. It's a matter of
right so he can ammend.
If the defendant did not file a motion to dismiss but instead filed an
answer and then he interviews as one of his affirmative defenses that
the complaint failed to state a cause of action hear the amendment is no
longer a matter of right because after the defendant has filed a
responsive pleading if the plaintiff wants to amend the complaint I must
ask for a leave of court so that depends on the court if it allows that's
one basic distinction why you'd rather file an answer with affirmative
defenses then just file a motion to dismiss but again these grounds now
are already interposed in ulit section 12 so there's no rule 16 anymore
again deleted or some of the provisions are interposed in other
provisions of the amended rules to these are the one they are
transferred to rule it so under rule 9 section 1 naa lang gihapon ni siya
so gipangbahin bahin nila.
Now when do you raise the affirmative defenses?
Old rule
New rule
In a:
1. Only in the answer - don’t file
1. Motion to dismiss
a motion to dismiss.
2. Answer
February 25, 2020 - Part 2- CRISTY LEE B. GO
Didto lang nimo na siya iinterpose sa answer. Answer na you don't file
a motion to dismiss.
WHAT HAPPENS WHEN YOU FILE AN MTD?
Q: How about if you file a motion to dismiss? Just like in the previous
rule.
A: Not allowed. The only ones that can be made as grounds in a motion
to dismiss are those mentioned in Rule 9 Section 1 grounds based on:
1. lack of jurisdiction
2. litis pendentia
3. Res judicata
4. Prescription
A motion to dismiss is not allowed that is one of the prohibited pleadings
under Rule 15 Section 12 in the amended rules so dili na ka pwede
magmotion to dismiss, answer jud. Again, pwede lang ka magmotion to
dismiss if imohang ground kaning upat under Rule 9 Section 1.
WHEN TO RAISE AFFIRMATIVE DEFENSE
The Rules says you have to raise the affirmative defense at the earliest
opportunity
Q: When is the earliest opportunity to raise this affirmative defense?
A: Again, general rule, you can only raise these affirmative defenses
mentioned in section 8 rule 12 in the answer (kay di na man ka pwede
magmotion to dismiss) so when do you raise them? Under the present
rules, within 30 days so taas2 na, before kay 15 days lang ang period
and then pwede magfile ug extension. Actually wala nagingon ang old
rules kung kapila ka magfile ug extension which was abused as long as
you filed a motion for extension before the lapse of the period. So here
under the present rules you have 30 days to file the answer and you
can ask for extension for another 30 days provided you filed the
motion for extension within the first 30 days. So mao na ang
imohang earliest opportunity to raise your affirmative defense.
Now as I mentioned there are still defenses although wala sila
nakamention sa Rule 8 Section 12 in a way, affirmative defenses ra
gihapon katong naa sa Rule 9 Section 1:
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43
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
1. Lack of jurisdiction over the subject matter
2. Litis Pendentia
3. Res Judicata
4. Prescription
You can raise them in a motion to dismiss at anytime when you say at
any time, before you file the answer magfile na ka dayon motion to
dismiss. So you can raise this grounds. Or even sa tunga2 sa kaso, you
can raise these grounds as soon as they become apparent, there is no
waiver of these defenses under rule 9 section 1.
EFFECT OF FAILURE TO RAISE AFFIRMATIVE DEFENSES
Q: Now what is the effect of failure to raise these affirmative defenses
like you filed your answer but some of the grounds which could have
been utilized as an affirmative defense were not raised in the answer?
like payment, statute of fraud
A: the rule says the defense is waived except again, katong naa sa
Rule 9 section 1 which you can even raise in your answer. You can
even raise them in your motion to dismiss and you can raise them
anytime.
HOW COURT DISPOSE THE AFFIRMATIVE DEFENSES
Q: How shall the court dispose the affirmative defenses so if you are the
defendant and you filed your answer and your answer contained
affirmative defenses how will the court rule? How it will treat your
affirmative defenses?
A: Under the previous rule it was actually discretionary for the
court, pwede niya ichapa imohang affirmative defenses. padayon ra
gihapon siya sa hearing or pwede pud niya iset for hearing ang imohang
affirmative defenses and determine if naa ba jud ground for dismissal.
But now under the rules, the court shall motu proprio resolve the
affirmative defenses within 30 calendar days from the filing of the
answer so meaning motu proprio (on its own) there is actually no need
for a party to move that the affirmative defenses be heard in fact it is a
prohibited motion. you cannot file a motion to hear the affirmative
defenses that is prohibited under the amended rules. So maghulat pa
ka, so it is mandatory because the rule says the court SHALL motu
proprio.
AFFIRMATIVE DEFENSES THAT THE COURT SHALL RESOLVE
MOTU PROPRIO
Q: What are these affirmative defenses na the court shall motu proprio
resolve, these are the grounds:
1. The court has no jurisdiction over the person of the defending party
2. Venue is improperly laid
3. Plaintiff has no legal capacity to sue
4. That the pleading asserting the claim states no cause of action
5. A condition precedent for filing the claim has not been complied with
So if kani imohang affirmative defenses, it is mandatory that a court will
conduct a hearing. The court will not wait for any motion, the court on its
own shall conduct a hearing.
As to other affirmative defenses, under the first paragraph of Section 5b
Rule 6, kani siya discretionary. The court may conduct a summary
hearing within 15 calendar days from filing the answer and such
defenses will be resolved by the court within 30 days from the
termination of the summary hearing.
So again, there is a distinction if your affirmative defense will fall under
rule 6 5b so any of these affirmative defenses or even all, the court may
conduct a hearing. Dili siya mandatory but discretionary. But if your
affirmative defenses are these grounds the court, motu proprio shall
conduct a hearing. So naa nay distinction sa present rules before wala.
Q: So can the party move for the court resolve the affirmative defenses?
A: Again as I mentioned no because under rule 15 section 12 a motion
to resolve affirmative defenses is a prohibited motion unlike before.
REMEDY IF AFFIRMATIVE DEFENSE IS DENIED
Q: What is the remedy of the party if the affirmative defenses are denied
can you file a motion for reconsideration?
A: The Rule says no, you cannot file a motion for reconsideration
Q: Can you file a petition for Certiorari, Prohibition, Mandamus to
question the denial of the trial court?
A: NO
Q: What is the remedy for the denial of the affirmative defenses?
A: You wait until the case is terminated and then when you appeal, for
example after nahuman na ang kaso and then adverse gihapon sa
imoha ang decision, then now you can appeal. You may include in your
appeal those affirmative defenses. Because there will be a possibility
that even if the court denied your affirmative defenses but, in the end,
nadaog ra gihapon ka so why would you appeal.
REMEDY IF AFFIRMATIVE DEFENSE IS GRANTED
Q: How about if the affirmative defenses are granted, gidismiss ni court
ang case because the court granted the affirmative defenses what is
the remedy of the plaintiff or the claiming party
A: now we will discuss that under Rule 41 because there is dismissal
with prejudice, or without prejudice so that will be discussed under rule
41.
SPECIFIC GROUNDS MENTIONED IN RULE 8 SECTION 12
FRAUD
Under the previous rule fraud is not among the affirmative defenses
mentioned. So before, for example plaintiff filed a case against the
defendant for specific performance, in reality the defendant was just
actually defrauded in entering into the contract that his signature was
procured by fraud or his consent was induced by fraud.
Q: What is the remedy of the defendant in his answer? Can he moved
to dismiss on the ground of fraud or can he file his answer and set fraud
as an affirmative defense?
A: Previously no because it is not mentioned as one of the affirmative
defenses. So dili possible under the Old Rules na maghearing
preliminarily on the allegation of fraud because it's a defense which is
thresh out during the trial. So go to trial jud mo, kung mao na imohang
defense. but now it is already mentioned as one of the affirmative
defenses so it is possible that the court will conduct a hearing on this
affirmative defense of fraud. You don't have to go through a full-blown
trial, pagmadetermine na sa court na naay fraud the court will dismiss
the case because of this affirmative defense of fraud. Again, no need to
wait for a full-blown trial on the merits because before need jud siya
because this was not an affirmative defense.
TYPE OF FRAUD UNDER SECTION 12 RULE 8
Q: What is the fraud being referred to under section 12 rule 8?
A: In Obligations and Contract, this defense would only be possible if
the cause of action arises from the contract. Again, let's go back to our
5 sources of obligations
1. Law
2. Contract
3. Quasi-contract
4. Quasi-delict
5. Delict
Didto sa upat na causes of action, dili applicable ang fraud.
1. Law - because it is the law that is the basis your causes of action
2. Quasi-contract - solution indebiti, negotiorum gestio walay fraud diha
3. Quasi-delict - negligence so walay fraud
4. Delict - Crime
So it's possible in an obligation arising from a contract.
DEFINITION OF FRAUD
So what is the fraud here? As defined in this case:
Fontana Resort and Country Club Inc vs Spouses Tan
there is fraud when one party is induced by the other to
enter into a contract through and solely because the latter's
insidious words or machinations
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
44
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
Not all forms of fraud can vitiate consent. Under Article 1330 fraud refers
to dolo causante or causal fraud. In which prior to or simultaneous in the
execution of the contract, one party secures the consent of the other by
using deception, without which such consent will not be given.
The one which is considered as an affirmative defense is causal fraud
or fraud in the execution (not incidental fraud) Why? Because it affects
the perfection of the contract when there is fraud which vitiated the
consent of one party in the contract. So it is voidable so that can be a
ground for annulling, terminating, or extinguishing a contract. So if that
contract is enforced against you and your consent was vitiated by fraud
and that was the reason why you entered into the contract that could be
your affirmative defense which would free you from the contract.
There is another kind of fraud - the incidental fraud or fraud in the
performance is not the kind of fraud mentioned here. Incidental fraud
merely entitles the aggrieved party to damages. It can be interposed as
a counterclaim. That is not an affirmative defense that would free the
defendant from his obligation and therefore warrant the dismissal of the
case.
STATUTE OF LIMITATIONS AND ESTOPPEL (in relation to
Section 5b Rule 6)
Statute of limitations meaning restriction so under the rules on
prescription under the new civil code. The new civil code provides for
certain period within which actions must be instituted otherwise the
action is already deemed barred.
For example,
1. an action upon a written contract - file it within 10 years from the time
that a cause of action accrues.
2. unlawful detainer or forcible entry - within one year from the time the
cause of action accrues
So nakaspecify didto. Again, we also distinguish between cause of
action and right of action. So even if a person may have a cause of
action but still his case can be dismissed if he no longer has the right of
action because he filed the case beyond the prescriptive period or
beyond the statute of limitations. So that is governed by articles 1139 to
1155 of the Civil Code.
So take note under the present rules prescription can also be raised in
a motion to dismiss and not just in an answer.
DBT Mar-bay Construction Inc. vs Panes Et al.
The court just mentioned here the concept of prescription
either as an affirmative defense or as a ground in a motion
to dismiss. The same under the present Rules, even if the
defense has not been asserted at all, as where no
statement thereof is found in the pleadings but if the court
finds later on during the trial that the action has already
prescribed so there is also no time limitation within which
the defendant could raise the ground of prescription it
could be in the answer, in the motion to dismiss, or anytime
during the trial.
What is essential only, is that the facts demonstrating the
lapse of the prescriptive period be otherwise sufficiently
and satisfactorily apparent on the record; either in the
averments of the plaintiff's complaint, or otherwise
established by the evidence. so that could be erased
Heirs of Tomas Dolleton vs Fil-Estate Management
Inc.
the affirmative defense of prescription does not
automatically warrant the dismissal of a complaint under
Rule 16 of the Rules of Civil Procedure. An allegation of
prescription can effectively be used in a motion to dismiss
only when the Complaint on its face shows that indeed the
action has already prescribed. If the issue of prescription
is one involving evidentiary matters requiring a full-blown
trial on the merits, it cannot be determined in a motion to
dismiss.
Meaning even if prescription can be raised as an affirmative defense or
as a ground in a motion to dismiss or can be raised at any time but if it
is not clear also from the complaint, na naa nay prescription because
there is certain cases na from the complaint itself you will see na the
action has already prescribed. Like action for unlawful detainer, the
plaintiff alleged that the demand was made on January ,1 2005 because
demand also is an essential requisite to complete the right of action for
unlawful detainer, demand is necessary. Within one year from the date
of the last demand, action for unlawful detainer should be filed otherwise
the action has already prescribed. But in the complaint klaro nga
gibutang sa plaintiff na mao ni siya ang date sa last demand and then
upon filing (makita man pud kanus a gifile) so in that case very clear
from the complaint that the action has already prescribed so it is easy
for the court to determine no need for trial, based on the allegations
itself. But if dili clear from the allegations in the complaint na kanus a
siya nagprescribe, you are not even sure kanus a nagstart ang cause of
action ni plaintiff. So here you would need a trial, the court cannot just
on its own determine whether or not there is already prescription
because evidentiary matters would have to be thresh out first before the
court can determine whether or not the action has already prescribed so
it cannot be determined in a motion to dismiss because summary
hearing lang ang sa motion to dismiss.
LACHES
Sometimes people confuse prescription with laches because both of
them involved the passage of time.
DEFINITION
Laches is the failure of or neglect for unreasonable or unexplained
length of time to do that which by exercising due diligence could or
should have been done earlier or to assert a right within a reasonable
time warranting a presumption that the party entitled thereto has either
abandoned it or declined to assert it.
CONCEPT OF LACHES
In laches, we are also dealing with passage of time but it is not merely
limited to the mere passage of time. There are cases even if under the
law the prescriptive period has not yet lapse but the action is already
barred by laches. Why? because in those cases after the passage of
time coupled with the inaction on the part of the plaintiff, if the plaintiff
would be allowed after how many years to institute the action at this point
in time, it would already be prejudicial on the part of the defendant so
here the action of the plaintiff is already barred by laches
Example, there is a deed of sale between A and B. The deed of sale is
actually null and void because the deed of sale was not approved by the
executive department because here the seller was a member of the IP.
February 25, 2020 - Part 3- DINGAL
What do mean by laches? What is the concept of laches?
When you say laches, we are also dealing with the passage of time but
it is not limited to the mere passage of time. There are cases when even
if under the law, the prescriptive period has not yet lapsed but the action
is already barred by laches. Why? Because in those cases, after the
passage of time, coupled with the inaction on the part of the plaintiff, if
the plaintiff be allowed after how many years to institute the action at this
point in time, it would already be prejudicial on the part of the defendant.
Here, the action of the plaintiff is already barred by laches.
Example: There is a Deed of Sale (DOS) between A and B. The DOS
is actually null and void because it is not approved by the executive
department as the seller is a member of the Indigenous Cultural
Community or Indigenous People. Dapat mag agi sila sa NCIP (National
Commission on Indigenous Peoples). Without such approval, the DOS
is null and void. The sale happened for about how many years ago. At
the mean time, after the sale was made, the defendant occupied the
property and made improvements therein. Almost 50 years after, the
heirs of the seller filed an action to declare the DOS null and void.
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Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
45
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
Is that action barred by prescription?
No, as held in the case of Miguel vs Catalino. The action to declare a
contract null and void does not prescribe. It may be filed anytime. In
reality, the contract here is null and void because it is not approved by
the executive department.
Can the plaintiff recover the property from the defendant?
No. The action is already barred by laches. After how many years, the
plaintiff just kept silent and allowed the defendant to introduce
improvements over the property and now, after knowing that the
property has considerably increased in value, the plaintiff has now
instituted the case like an ambush. It would now be prejudicial and
inequitable to allow the plaintiff to recover from defendant. Even if the
defense of prescription is available, the action is already barred by
laches – estoppel by laches.
Other Important Points in the Fulltext Not Discussed
1. Elements of Laches: present in the case at bar, namely:
(a) conduct on the part of the defendant, or of one under whom
he claims, giving rise to the situation of which complaint is
made and for which the complaint seeks a remedy;
(b) delay in asserting the complainant's rights, the complainant
having had knowledge or notice, of the defendant's conduct
and having been afforded an opportunity to institute a suit;
(c) lack of knowledge or notice on the part of the defendant that
the complainant would assert the right on which he bases his
suit; and
(d) injury or prejudice to the defendant in the event relief is
accorded to the complainant, or the suit is not held to be
barred.
2. The difference between prescription and laches.
The defense of laches applies independently of prescription. Laches is
different from the statute of limitations. Prescription is concerned with
the fact of delay, whereas laches is concerned with the effect of delay.
Prescription is a matter of time; laches is principally a question of
inequity of permitting a claim to be enforced, this inequity being founded
on some change in the condition of the property or the relation of the
parties. Prescription is statutory; laches is not. Laches applies in equity,
whereas prescription applies at law. Prescription is based on fixed time
laches is not.
Summary
Basis
Delay
Issues involved
Basis
Application
Prescription
Fact of delay
Matter of time
Statute (Civil Code)
Law
Laches
Effect of delay
Question of inequity
Jurisprudence
Principle of equity
Before, in the previous Rules, estoppel by laches is not mentioned
expressly as one of the grounds for a motion to dismiss or as an
affirmative defense. Silent siya but in one case, the SC said that even if
laches should not be ground for a motion to dismiss a complaint in
Section 1 of Rule 16 because it did not expressly mention it, but actually
it could be subsumed under that phrase …
“(h) That the claim or demand set forth in the plaintiff's pleading has been
paid, waived, abandoned, or otherwise extinguished;” – Par (h), Sec 1,
Rule 16.
Under paragraph (h) thereof, where a claim or demand set forth in the
plaintiff's pleading has been paid, waived, abandoned, or otherwise
extinguished, the same may be raised in a motion to dismiss. The
language of the rule, particularly on the relation of the words
"abandoned" and "otherwise extinguished" to the phrase "claim or
demand deemed set forth in the plaintiff's pleading" is broad enough to
include within its ambit the defense of bar by laches – estoppels by
laches.
However, when a party moves for the dismissal of the complaint based
on laches, the trial court must set a hearing on the motion where the
parties shall submit not only their arguments on the questions of law but
also their evidence on the questions of fact involved. Thus, being factual
in nature, the elements of laches must be proved or disproved through
the presentation of evidence by the parties. As discussed above, an
apparent delay in the filing of a complaint as shown in a pleading does
not automatically warrant the dismissal of the complaint on the ground
of laches.
In the previous rule, it is not expressly mentioned as one of the grounds
for a motion to dismiss or as an affirmative defense but now, under the
amendments, it is expressly included.
How do you distinguish prescription from laches?
Again, they are two different concepts. Prescription is a creation of law
because it is expressly mention in the Civil Code; while laches is a
creation of equity as there is no codal provision that mentions laches
although it is recognized by jurisprudence. Prescription may be
acquisitive (acquire property) or extinctive (lose property); while laches
is always extinctive meaning it extinguishes your right of action. In
prescription, a cause of action may be effectively assailed on this
ground by a mere motion to dismiss if apparent in the pleadings; while
laches being evidentiary in nature, is a fact that cannot be established
by mere allegations in the pleadings as you cannot just allege inequity
so we have to prove it, hence, a full blown trial, not a mere motion to
dismiss is required to dismiss a cause of action on this ground.
If a cause of action is assailed due to prescription, the proper ground is
that the cause of action is barred by the statute of limitations; If a cause
of action is assailed due to laches, the proper ground is that the claim or
demand set forth in the plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished - we have to modify this because
this is under the old rule and now under the amendments, estoppel by
laches is already a specific ground - it falls under another item under
Section 12 or Rule 8 in relation to Section 5(b) of Rule 6.
When an action has already prescribed, it may also mean that there is
laches as there is an unreasonable length of time before a right is
exercised but even if there is an unreasonable length of time before a
right is exercised, it may not mean laches if the exercise is still within the
prescriptive period fixed by law as in the case of Miguel vs Catalino.
Again, when you say prescription, just count the number of years that
had already lapsed. If it already lapsed, the action is dismissible on the
ground of prescription. It could be possible that within that period also,
the action is barred by laches. But when you say laches, the period of
prescription may not have lapsed yet but because of laches, the plaintiff
is already barred like in the case of Miguel vs Catalino – an action to
declare a contract null and void does not prescribe so within the
prescriptive period pa jud ang case, however, even if that is the case, it
is already barred by laches so possible na barred by laches but not by
prescription.
But of course, if you are the defendant and the action has already
prescribed, even if there might be laches, didto nalang ka sa
prescription, mas klaro pa. Kay kung laches man gud, the Court will have
to determine the inequity of permitting the plaintiff of asserting the
demand after the lapse of an unreasonable length of time. Dira mag
arise ang question ang unreasonableness sa period. Unreasonable ba
jud nga gi allow niya ang ten years and would there be inequity that
would be caused to the defendant if the plaintiff will be allowed? If the
remedy of prescription is available, it would be safer to invoke
prescription eventhough you are not prohibited in invoking laches at the
same time.
Again, these are the grounds for dismissal of an action on the ground of
statute of limitations by way of an affirmative defense or in a motion to
dismiss and estoppel by laches as an affirmative defense but not in a
motion to dismiss.
Summary
Basis
Manner
creation
Modes
of
Prescription
Law (Civil Code)
Laches
Equity (Jurisprudence)
May be acquisitive or
extinctive
Always extinctive
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Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
46
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
How assailed
Ground
Inclusion
Application
Mere
motion
to
dismiss if apparent in
the pleadings
Statute of limitations
May also
laches
Favored
include
Cannot be established by
mere allegations in the
pleadings
Claim or demand set
forth in the plaintiff's
pleading has been paid,
waived, abandoned, or
otherwise extinguished
(Old Rule or estoppel by
laches (Amended Rule)
Not necessarily includes
prescription
Less favored
REALEASE AND PAYMENTS
They are of different concepts but I lumped them together. This shall be
based in Article 1231 of the New Civil Code – How are obligations
extinguished.
Article 1231. Obligations are extinguished:
(1) By payment or performance;
(2) By the loss of the thing due;
(3) By the condonation or remission of the debt;
(4) By the confusion or merger of the rights of creditor and debtor;
(5) By compensation;
(6) By novation.
Other causes of extinguishment of obligations, such as annulment,
rescission, fulfillment of a resolutory condition, and prescription, are
governed elsewhere in this Code. (1156a)
Take note under the Rules of Court that it mentions relief and payment.
Under Article 1231 of the NCC, asa mana siya?
(1) By payment or performance
(2) By the condonation or remission of the debt.
These are reliefs. How about the rest? Affirmative defenses ba sila?
What if a case is filed against you. Then you allege na you are already
absolved from obligation because of the grounds other than #1 and #3,
can you allege these as your affirmative defense? No, because they are
mentioned in the Rules. They are defenses but are not affirmative
defenses, meaning there has to be a full blown trial on these defenses.
Although, you can justify them under the last paragraph. Wala pa man
gud tay jurisprudence noh. .
Remember katong akong gi ingon ha. Naa pay other modes to
extinguish an obligation (those grounds other than #1 and #3), pero ang
gimention lang sa Rules kay #1 - By payment or performance and #3By the condonation or remission of the debt. Under the previous Rules,
nay nakabutang na…
“(h) That the claim or demand set forth in the plaintiff's pleading has been
paid, waived, abandoned, or otherwise extinguished;” – Par (h), Sec 1,
Rule 16.
Now in this case of Pineda vs Heirs of Eliseo Guevarra, the Court said
na these other grounds mentioned in Article 1231, could fall under that
the catch all phrase above that the claim or demand set forth in the
plaintiff's pleading has been paid, waived, abandoned, or otherwise
extinguished but under the present Rules, wala ni siya na mention.
ILLEGALITY
Now, let us go to illegality. Illegality as an affirmative defense is also not
mentioned under the previous Rules in Section 1, Rule 16. Wala siya.
Illustration: A case is filed against B for specific performance. His
defense is that the contract is null and void because the land sold was
actually his homestead land and under the law, within 5 years from the
award, you cannot sell/ transfer the homestead land. So, the sellerdefendant here alleges that the contract is null and void.
Questions: Can it be raised in a motion to dismiss? Ikaw si defendant –
seller, can you move for a motion to dismiss the case because the
contract is null and void?
That is not a ground mentioned under the previous Rules in Section 1,
Rule 16.
How about as an affirmative defense?
Dili gihapon because this is not one of those affirmative defenses
mentioned under Section 1, Rule 16. Now there are grounds to dismiss
a case in a motion to dismiss but if they are not interposed in a motion
to dismiss, they can be utilized as affirmative defenses in the answer.
But, this is not mentioned as one of those.
Again, if this is your defense, you can raise that but not in a motion to
dismiss and not as an affirmative defense in your answer. Just a defense
which will be tackled by the court and there shall be a full blown trial on
the merits. Diha pa na siya ma dismiss in the end kung tinuod jud ug na
prove nimu na the contract is null and void. Under the present
amendment, this is already an affirmative defense.
Now, what is the consequence?
The Court on its discretion can conduct a hearing on this affirmative
defense and determine kung dismissible ba ang case or not. So, pwede
nga sa start palang ma dismiss na dayun ang case.
What is the order ba in the trial so you can determine unsa ba ang
significance nganu ba diay kung affirmative defense siya in an
answer or as an ground for a motion to dismiss or mag-trial nga
pareha lang man japun nga ma dismiss siya?
First, the plaintiff files a complaint. Then the defendant can file a motion
to dismiss or an answer and interpose an affirmative defense. Kung
naay motion to dismiss, wala pa na siyay answer. The Court will conduct
a hearing on the motion to dismiss because as a general rule, no motion
can be granted without a prior hearing. So kung ma determine sa Court
na dismissible diay ang case, then I dismiss ang case so paspas siya
na dismiss without the defendant having to file an answer and going
through trial. Dismiss na.
Now, if there is no motion to dismiss, meaning the defendant opted to
file an answer interposing an affirmative defense, under the present
rules, depende kung unsa imong affirmative defense. Naay affirmative
defenses where the court will conduct a hearing and resolve. Naa pud
discretionary on the part of the Court. If the court conducts a hearing on
your affirmative defense and finds a ground to dismiss, then dismiss na
siya but you filed an answer. Kana, effort na siya on the part of the
defendant.
Now if dili siya affirmative defense, di pud siya ground for a motion
to dismiss, what will happen? Or if there is an affirmative defense
but it is not resolved by the Court, what will happen?
Diba, nay affirmative defenses na discretionary lang on the part of the
Court. Pwede nga nay reply. After the reply, the case will be set for pretrial but if mediatable ang case, mag mediation sa na sila. If mediation
fails, pre-trial. After pre-trial, start na sa presentation of evidence si
plaintiff tapos si defendant napud. Didto na mag decide si Court if I
dismiss ba niya ang case or not. In the decision of the Court, the Court
may also include in the determination katong affirmative defenses nga
wala niya gi resolve before. So even if in the end, gi dismiss gihapon
ang kaso pero dugay nahuman and expensive na on the part of both
parties. It would be better if the Court can resolve the case either in a
motion to dismiss or upon hearing on the affirmative defenses
interposed in an answer. So mas paspas siya. Karon ang illegality is
already part of the affirmative defenses. You do not have to go through
the process of a full-blown trial.
What is the illegality mentioned under the Amended Rules?
In cases of obligations, illegality is governed by Article 1409 of the New
Civil Code.
Article 1409. The following contracts are inexistent and void from the
beginning:
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
47
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
(1) Those whose cause, object or purpose is contrary to law, morals,
good customs, public order or public policy;
(2) Those which are absolutely simulated or fictitious;
(3) Those whose cause or object did not exist at the time of the
transaction;
(4) Those whose object is outside the commerce of men;
(5) Those which contemplate an impossible service;
(6) Those where the intention of the parties relative to the principal
object of the contract cannot be ascertained;
(7) Those expressly prohibited or declared void by law.
These contracts cannot be ratified. Neither can the right to set up the
defense of illegality be waived.
So, if these are the contracts which are the bases for the cause of action
of the plaintiff, the defendant can raise the defense that the contract is
null and void. That is his defense. He will not perform his obligations
under the contract because it is null and void. Again, defense. That
defense cannot be waived. He can always set that up as a defense
regardless of the passage of time.
In the case of Manzano vs Garcia (G.R. No. 179323, November 28,
2011)
There are two types of void contracts:
(1) those where one of the essential requisites of a valid contract as
provided for by Article 1318 of the Civil Code is totally wanting; and
Article 1318. There is no contract unless the following requisites
concur:
(1) Consent of the contracting parties;
(2) Object certain which is the subject matter of the contract;
(3) Cause of the obligation which is established.
(2) those declared to be so under Article 1409 of the Civil Code.
There is, however, a distinction between inexistent contracts and void
ones as to their effects as held in the case of G. HOLDINGS,
INC., Petitioner, v. CAGAYAN ELECTRIC POWER AND LIGHT
COMPANY, G.R. No. 226213, September 27, 2017.
Inexistent contracts produce no legal effect whatsoever in accordance
with the principle "quod nullum est nullum producit effectum" ( not in the
fulltext but mentioned by Maam: so it is equivalent to nothing and
because it does not exist in legal contemplation, it gives rise to no right
or obligations. The parties may treat it as it does not exist. )61 In case of
void contracts where the nullity proceeds from the illegality of the cause
of object, when executed (and not merely executory) they have the effect
of barring any action by the guilty to recover what he has already given
under the contract.
In short, not all void contracts are illegal contracts. There are void
contracts because some of the essential requisites are not present.
There are void contracts because they are prohibited by law.
Now, what is the illegality mentioned by the Rules of Court as an
affirmative defense?
Well,there is still no jurisprudence to this effect. For example, you are
asked, technically, you have to make a distinction between void
contracts and inexistent contracts. When you say kasi illegal, you can
raise that as an affirmative defense by interposing that in an answer. But
if the contract is void not because of illegality but because of other
reasons – not as an illegal contract and not an affirmative defense, it is
still a defense but not subject to a preliminary trial which is the
consequence supposedly of an affirmative defense.
So, if you are the defendant and your defense is that the contract is null
and void but not because of illegality, then, you have to go through trial
to prove that. Dili siya affirmative defense. Although, we do not know kay
the Supreme Court may come up with a jurisprudence that say na by
analogy illegality is similar to inexistence just being very technical about
it. There is a difference an illegal contract and an existent contract. We
just based it on present jurisprudence.
February 26, 2020- APOSTOL, FERNANDEZ, ROJO
So yesterday we discussed Illegality as an affirmative defense. Which is
a new term mentioned in the ROC as one of the affirmative defenses.
STATUTE OF FRAUDS
Let’s go to the next, Statute of Frauds. I believe that you are familiar with
the statute of frauds, you discussed that in first year.
Purpose: To prevent fraud and perjury in the enforcement of obligations
depending for their evidence upon the unassisted memory of witnesses
by requiring certain enumerated contracts and transactions to be in
writing
So under the SOF, those transactions/contracts enumerated in
Paragraph 2 of Article 1403 of the New Civil Code must be in writing.
Article 1403. The following contracts are unenforceable, unless they are
ratified:
(1) Those entered into in the name of another person by one who has
been given no authority or legal representation, or who has acted
beyond his powers;
(2) Those that do not comply with the Statute of Frauds as set forth in
this number. In the following cases an agreement hereafter made shall
be unenforceable by action, unless the same, or some note or
memorandum, thereof, be in writing, and subscribed by the party
charged, or by his agent; evidence, therefore, of the agreement cannot
be received without the writing, or a secondary evidence of its contents:
(a) An agreement that by its terms is not to be performed within a year
from the making thereof;
(b) A special promise to answer for the debt, default, or miscarriage of
another;
(c) An agreement made in consideration of marriage, other than a
mutual promise to marry;
(d) An agreement for the sale of goods, chattels or things in action, at a
price not less than five hundred pesos, unless the buyer accept and
receive part of such goods and chattels, or the evidences, or some of
them, of such things in action or pay at the time some part of the
purchase money; but when a sale is made by auction and entry is made
by the auctioneer in his sales book, at the time of the sale, of the amount
and kind of property sold, terms of sale, price, names of the purchasers
and person on whose account the sale is made, it is a sufficient
memorandum;
(e) An agreement for the leasing for a longer period than one year, or
for the sale of real property or of an interest therein;
( f ) A representation as to the credit of a third person.
(3) Those where both parties are incapable of giving consent to a
contract.
Consequence if not in writing: Valid but unenforceable.
When you say SOF as an affirmative defense, we are referring to those
causes of actions arising from contracts involving these transactions. So
please remember again, because you will discuss it again in evidence,
also in obligations and contracts.
What are these enumerated transactions?
(a) An agreement that by its terms is not to be performed within a year
from the making thereof;
Like construction agreement but it will start after 1 year, so it cannot be
orally made, it has to be in writing.
What if the agreement is A and B agreed that within one year from the
execution of the contract, B will not pass through the estate of A? Will
that fall under letter A?
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From the lectures of Atty. Lielanie C. Yangyang-Espejo
It is not covered because it is immediately enforceable. That is a
negative obligation so within 1 year starting from today you will not pass,
it is already being performed.
(b) A special promise to answer for the debt, default, or miscarriage of
another;
You are not the debtor but you promise to answer for the debt of the
debtor. Specific example is a contract of guaranty.
(c) An agreement made in consideration of marriage, other than a
mutual promise to marry;
Because you know, in mutual promise to marry, by itself, if breached, is
not actionable unless there has been a violation of the scattered
provisions of human relations. We are referring here to, for example
prenuptial agreements. So here the agreement is by reason of marriage,
it has to be in writing.
(d) An agreement for the sale of goods, chattels or things in action, at a
price not less than five hundred pesos, unless the buyer accept and
receive part of such goods and chattels, or the evidences, or some of
them, of such things in action or pay at the time some part of the
purchase money; but when a sale is made by auction and entry is made
by the auctioneer in his sales book, at the time of the sale, of the amount
and kind of property sold, terms of sale, price, names of the purchasers
and person on whose account the sale is made, it is a sufficient
memorandum;
So personal properties limited to goods, chattels or things in action if the
price not less than five hundred pesos, so atleast five hundred. If it is
made orally, it is not enforceable, so it must be in writing.
(e) An agreement for the leasing for a longer period than one year, or
for the sale of real property or of an interest therein;
Lease for more than 1 year of real property or interest therein or for sale
of real property or interest therein regardless of value, it has to be in
writing
The rule says the contract has to be in writing, embodying the essentials
of a contract and signed by the party in charge. Evidence of the
agreement cannot be received without the writing or a secondary
evidence of its contents. If you remember in your Obligations and
Contracts, when you say note or memorandum, does it have to be in a
single document? Should the single document embody all the terms and
conditions of the contract as well as the signatures? NO. Under the Rule
on Papers Connected, several documents can actually be considered
as long as they are properly connected in contents and signature, and
can give life to the nature of transaction.
Example: A offered to B in writing to sell his land, B answered and made
a counter-proposal. So A’s price is P1M payable immediately cash, B
says I’m willing to buy at P1M but can I pay in 2 installments within 1
month. A agrees to the two instalments but adds interest of 1% per
month. B agrees to the interest but asks for it to be half of 1% per month.
Then A says, okay. So from that time, there is already a perfected
contract. But there is no single document there that embodies all the
terms and conditions of the perfected contract of sale. So in that case,
you can consider all those letters exchanged between A and B. That
would constitute as sufficient memorandum and satisfy the requirements
of the Statute of Frauds.
Now the purpose again of SOF is merely evidentiary. Meaning, you
cannot prove the existence of the contract of sale by oral or parole
evidence, there has to be a written instrument. Although again as we
said, the contract is valid, although it is not enforceable.
So, we already discussed the requirements of a Note or Memorandum:
1. It should state the names of the parties, the terms and
conditions of the contract and the description of the property
2. Subscribed to by the party in charge
Now how do you raise SOF as a defense? Lets go back to the contract
of sale between A and B. So suko kayo si B, nganong lahi lahi ug isip si
A? (B:) I want the land, we already agreed at P10,000 so he files a case
against A for specific performance. If you’re the lawyer for A, what do
you do?
1.
( f ) A representation as to the credit of a third person.
In letter (f) you do not promise to answer if the debtor defaults you just
say, lend me money because I assure you we can pay. So that’s
different from letter B, but if your representation turns out to be false,
and it is not in writing. It is not enforceable.
Now what is the importance here? Under the SOF, it is required na these
transactions must be in writing, in a note or memorandum subscribed by
the party charged. So if it is not in writing, it cannot be enforced.
Situation: A and B entered into a contract of sale (for a parcel of land).
1 hectare for P10,000. (Jackpot daw si B because mura) So they did the
transaction while drinking in the sari-sari store of Juan, so they shook
hands, B said tomorrow I will give you the P10,000 and A also said that
he will give B the owner’s copy of the title tomorrow. So it was already a
perfected transaction because sale is a consensual contract. It is
perfected by mere consent. So the next day, B goes to the house of A
carrying with him the P10,000. But A now refuses saying he was only
drunk, now that he was sober he is withdrawing from the contract and
that he was infact selling the land to Y who was willing to pay
P1,000,000.
What is the status of the contract between A and B(verbal)?
That contract is unenforceable, because it was a sale of real property,
therefore it must be in writing.
Now B files a case against A for specific performance, what would
be the defense of A, the seller?
The contract is unenforceable under the Statute of Frauds.
Interpose the defense of Statute of Frauds in Answer –
Upon receiving the summons, requiring you to answer, in the
answer you should already interpose the defense of SOF. You
will say “the defendant admits the allegations in paragraph 4
of the complaint ‘the plaintiff and defendant entered into a
contract of sale’ however the contract of sale is not
enforceable because it is not in writing. Under Article 1403(2)
of the NCC, A contract of sale of involving real property or of
an interest therein must be in writing to be enforceable. That
is how you interpose your affirmative defense.
Now before the SOF is also a ground for a motion to dismiss but under
the present amended rules, it can no longer be availed of as a ground
for a motion to dismiss but it remains to be an affirmative defense. So
again if you are the defendant, you should raise that as an affirmative
defense in the answer.
Consequence if you lawyer forgot to interpose the SOF as an affirmative
defense, instead the lawyer said, “the contract of sale is voidable
because at the time when A agreed to the sale he was drunk, he was
not in his proper frame of mind” That is his defense, he did not mention
about the SOF. What is the effect? The effect is that defense is already
waived. Meaning, B can present parole or oral evidence to prove the
existence of the contract of sale. That’s one.
2.
Demurrer to evidence – Second possible remedy, if
assuming, na the defendant A, even if he raised SOF in his
affirmative defense, but it depends upon the court whether or
not it will conduct a hearing in that ground. Those affirmative
defenses under Rule 6, Section 5(b) which includes the SOF,
its actually discretionary on the part of the court whether or
not it will conduct a hearing. Katong naa sa Rule 8 Sec 12,
katong nay no jurisdiction over the person of the defendant,
failure to comply with the condition precedent, etc, kato sila
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Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
ang mandatory. So here its possible na despite the fact that
the defendant raised it in his anser as an affirmative defense,
the judge may opt not to rule on the issue, and just to proceed
with the trial. So trial and then recitation of evidence for the
plaintiff. So it is possible also that in the demurrer to evidence.
What is a demurrer to evidence? It is like a motion to dismiss,
but it is only filed after the trial on the merits. After the plaintiff
has rested his case. So diha, you will file a demurrer to
evidence and ask for the dismissal of the case because based
on the evidence so far presented by the plaintiff, he is not
entitled to relief.
3.
Objection to the reception of oral evidence – Another
option, by objection to the reception of the oral evidence.
Because under Article 1305 of the NCC, the defect under the
SOF can actually be ratified or waived. In so far as Civil
Procedure is concerned, one mode of waiving or ratifying is
failure to object to the reception of oral evidence. So ang
lawyer ni A, he interposed the SOF as an affirmative defense,
so wala na waive. Now, during the trial, so plaintiff B, his
lawyer called to the witness stand the owner, Juan, the owner
of the sari-sari store who witnessed the transaction between
A and B. So when you call the witness to testify, before the
witness will testify, you will first state the purpose of the
testimony. You will offer the testimony of the witness and state
the purpose of his testimony.
“Your honor, I am calling to the witness stand Mr. Juan dela
Cruz, the following are the purposes of the testimony of Mr.
Juan dela Cruz. So I am offering the testimony of Juan dela
Cruz for the following purposes:
To prove that on January 1, 2000, A and B entered
into a contract of sale orally, regarding the parcel of
land covered by TCT No. 123
…and for other purposes mentioned.”
Now if you are the lawyer for A, the defendant, what is your
move? Usually the judge will ask, what is your comment on
the offer, Atty…? Unsa man imong buhaton? No comment
your honor? *class laughs*. “Your honor, I object to the
presentation of Juan dela Cruz as witness because his
testimony is not admissible, it violates the Statute of Frauds,
the contract of sale between A and B cannot be proved by
Oral Evidence.” So that is your ground for objection.
What is the consequence if you did not object? So
nagtestify na si Juan dela Cruz, worse, nag cross examine
pagyud ang lawyer ni A. Then the defect is already cured. You
have already waived the defense of the statute of frauds. So
that’s also the importance, even if it is unenforceable, it
doesn’t mean na if you are B, pildi najud ka. So gi advise na
nimo ayaw na file ug case kay its unenforceable, so even if
you file, even if it is valid, you cannot prove it by oral evidence.
So wala ka kabalo na basi diay ang lawyer sa defendant dili
niya maraise and SOF as a defense, or na waive nila. There
are cases na I encountered na mapildi lang ang pikas
because of technicalities. So dili pa siya hopeless actually.
That’s the difference between an unenforceable contract and
a void contract. Because a void contract cannot be enforced
and cannot be waived, pero pag unenforceable it’s valid and
it can be ratified or the defense can be waived.
So that is also mentioned in the Article 1403 of the New Civil
Code. When is that defense considered waived? By failure to
object to the presentation of oral evidence to prove the same.
Or by acceptance of benefit under them. These are already
more substantive. Just remember that even if supposedly a
contract of sale, for example, over real property must be in
writing for it to be enforceable, but if there is already
performance whether partial or full, you can no longer raise
the defense of the SOF. The contract, even if not in writing, it
can already be proved by oral evidence. Why? Because it will
be unfair on the part of the buyer who already paid, and now
he will not be allowed to prove the existence of the contract. It
runs counter to the reason why we have the SOF. The
purpose of which, supposedly, is to prevent fraud. Now if he
already paid and he will not be allowed to present oral
evidence as to the existence of the contract, we will now be
perpetrating fraud. So that will not be countenanced by law.
FORMER RECOVERY
Lets go to former recovery. This is also another new term included in the
ROC as an affirmative defense.
Former recovery simply means that you have already recovered before
on the same cause of action that you are filing. Or even not in the same
cause of action. If you remember, going back to obligations and
contracts, if youre a passenger in a bus, driven by D, the driver and
owned by O, the owner. You sustained injuries because the driver was
negligent in driving the car. In that case you have different causes of
action arising from the same facts. You can file a case for breach of
contract of carriage against the owner of the bus only, and then you can
file a case for quasi-delict against the driver and the owner, invoking his
vicarious liability. And then you can file a case for reckless imprudence
resulting to physical injuries against D, the driver only, which is a criminal
case, delict. And there is a possibility that you can invoke the subsidiary
liability of the owner if the driver is insolvent. So those are different
cases. But if you have already recovered in one case, we have the rule
that you cannot recover twice for the same act or omission. So that can
also be invoked as a defense, former recovery.
DISCHARGE IN BANKRUPTCY
Again this is a new term mentioned. What is a discharge in bankruptcy?
It is a court order that states that the debtor is no longer responsible for
certain types of debts. When will this happen? If there’s already an
insolvency proceeding instituted. Under the present law we have RA
10142 – Financial Rehabilitation and Insolvency Act of 2010 (FRIA Act)
There are several remedies there.
If the debtor is already discharged by reason of the insolvency
proceeding over certain specified debts and there is another case filed
against the debtor for the same debt, he can invoke discharge in
bankruptcy as an affirmative defense. So, I have already been
discharged for this particular obligation.
So this was not mentioned before in the prior rules. But it can be applied
under the phrase “the claim or demand set forth in the plaintiff’s pleading
has been paid, waived, abandoned, or otherwise extinguished”. But now
they really specified that, discharge in bankruptcy as an affirmative
defense.
Although based on my research, it has been noted that in the US federal
rules of procedure, na remove napud sa ilaha ang discharge in
bankruptcy as an affirmative defense. Pero again, our rules are different
from their rules, so we have this now under the amended ROC.
ANY OTHER MATTER BY WAY OF CONFESSION AND
AVOIDANCE
Meaning, the defendant will say, assuming that you are correct that we
entered into a contract, I admit that, but still I am not liable because of
these reasons. Now we mentioned in the earlier discussions, release
and payment under Article 1231. They are specified as affirmative
defenses. How about the other modes of extinguishing obligations?
Like, confusion, novation, tender of payment and consignation. How do
we invoke that? Because these are also defenses. Actually, by analogy,
they are also matters of confession and avoidance. So by analogy, you
can say na they can also be invoked as affirmative defense by way of
confession and avoidance. So that is one possible interpretation.
Fraud was mentioned, diba we discussed it yesterday, pero diba we
know that in obligations and contracts, fraud is not the only vice of
consent, Mistake, intimidation, undue influence, so how about these
vices of consent? Yes I entered into that contract, minority, insanity,
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Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
hypnotism, so I entered in to that contract but I was mistaken, my
consent was vitiated. But these other vices of consent are not
mentioned(in the provi), but again we can invoke them as matters by
way of confession or avoidance by analogy. So that’s my interpretation
kay wala pa man…
Then we discussed before Illegality as an affirmative defense. But again,
as we have discussed yesterday, a void contract is not only an illegal
contract.
There are 2 types of void contracts.
1. This which are declared Null and Void under Article 1409 of
the NCC; and
2. Those which do not have the essential requisites under article
1318
So illegality lang pud ang gimention for affirmative defense, how about
the other reasons for nullity? Well again, we can use those ground by
way of confession and avoidance. And if you notice, Rule 8, Section 12
it makes reference to Rule 6, Sec 5(b). It also specifically mentions other
grounds, like the court has no jurisdiction over the person of the
defending party, failure to state cause of action, failure to comply with
condition precedent, etc. Pero wala niya gimention sa Rule 8, Section
12 tong no jurisdiction over the subject matter, litis pendentia, and res
judicata. They are not mentioned. So do they cease to be affirmative
defenses? Again no, because they are also matters by way of
confession and avoidance. And in fact, as we have already discussed,
these defenses cannot be waived and they can be invoked at any time.
So they are still affirmative defenses.
Now let’s go to the other affirmative defenses specifically mentioned
under Rule 8, Section 12.
Section 12. Affirmative defenses. — (a) A defendant shall raise
his or her affirmative defenses in his or her answer, which shall
be limited to the reasons set forth under Section 5(b), Rule 6,
and the following grounds:
1.
2.
3.
4.
5.
That the court has no jurisdiction over the person of
the defending party;
That venue is improperly laid;
That the plaintiff has no legal capacity to sue;
That the pleading asserting the claim states no cause
of action; and
That a condition precedent for filing the claim has not
been complied with.
(b) Failure to raise the affirmative defenses at the earliest
opportunity shall constitute a waiver thereof.
(c) The court shall motu proprio resolve the above affirmative
defenses within thirty (30) calendar days from the filing of the
answer.
How is jurisdiction over the person of the defendant acquired? There are
2 ways:
1. Valid service of summons; or
2. Voluntary appearance in court.
So even if wala na-summon or improper ang service sa summons but
the defendant voluntarily appeared in court. Kanusa mana siya
voluntarily appeared? Kanang nisulod siya sa Korte? Your Honor
present? Okay, dili na siya mao.
We will discuss later what do we mean by voluntary appearance in court,
voluntary submission to the jurisdiction of the court.
Q: What is the effect if the court did not acquire jurisdiction over
the person of the defendant? So walay proper service of summons,
and there was no voluntary appearance.
A: All the proceedings in that case would be null and void because the
court again, did not acquire jurisdiction. Any judgment of the court over
the defendant will be null and void as discussed in the case of Manotok
v. Court of Appeals, although it is no longer a ground for a motion to
dismiss today.
So before, this was a ground for a motion to dismiss under Rule 16, but
under the Amended Rules, it’s no longer a ground for a motion to
dismiss. Again, just raise this as an affirmative defense in the Answer.
Q: What are the limitations on the first ground?
A: (1) Lack of jurisdiction over the person of the defendant is a viable
ground only for actions that are purely in personam.
Actually, jurisdiction over the person of the defendant is
not even required in the case of actions in rem or quasi
in rem, but diba we said before na there must be service
of summons? Yes, but not for the purpose of acquiring
jurisdiction over the person. It’s just a requirement of due
process. Technically, you cannot acquire jurisdiction
over that person because they’re not here. The court’s
processes are only limited to our territory, so territorial.
(2) Lack of jurisdiction over the person of the defendant can be waived.
-
So, even if you raise the affirmative defense that the
court did not acquire jurisdiction over your person, but it
is not sure na the case can be dismissed on that ground
because that defense can be waived as we will discuss
later.
-
What are the forms by which this defense can be
waived? There are two:
1.
Even if there was no proper service of
summons on the defendant, he filed his
answer and he did not raise this as an
affirmative defense. - Again, the rule is
objections and defenses not raised in the
answer or in the motion to dismiss are deemed
waived. That is still the rule. So, even if there
is such a defect pero the defendant did not
raise it in his answer, it is waived.
2.
By the voluntary appearance of the defendant
in court. - Wala na na sya na ground because
by his voluntary appearance, the court has
already acquired jurisdiction over his person.
Now, it is provided in Section 3 of Rule 14.
This is different from the previous rule. The
rule here now is under Section 23.
(d) As to the other affirmative defenses under the first paragraph
of Section 5(b), Rule 6, the court may conduct a summary
hearing within fifteen (15) calendar days from the filing of the
answer. Such affirmative defenses shall be resolved by the
court within thirty (30) calendar days from the termination of the
summary hearing.
(e) Affirmative defenses, if denied, shall not be the subject of a
motion for reconsideration or petition for certiorari, prohibition
or mandamus, but may be among the matters to be raised on
appeal after a judgment on the merits. (n)
That the court has no jurisdiction over the defending party. We
discussed this before under jurisdiction. The court has to obtain
jurisdiction over the subject matter, over the person of the plaintiff, over
the defendant, over the issues and in some case, over the res. So one
defect, if the court does not acquire jurisdiction over the person of the
defendant…
Section 23. Voluntary appearance. — The defendant's voluntary
appearance in the action shall be equivalent to service of summons.
The inclusion in a motion to
dismiss of other grounds aside from lack of jurisdiction over the
person of the defendant shall be deemed a voluntary appearance.
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Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
-
So, although I will discuss with you my observation on
this amended portion of the Rules of Court, just for our
discussion, these are the two ways by which this defense
of lack of jurisdiction over the person of the defendant is
waived. Again, (1) failure to raise it as an affirmative
defense, and (2) voluntary appearance.
1.
-
In some cases where summons was improperly served
(summons is singular; summonses, plural), such as in
the case of substituted service upon a person not of
suitable age and discretion, but the defendant was still
able to receive it, the defect is cured. When we go to
summons, it is a requirement na, if for example, you
need to resort to a personal service ang priority. So
dapat si defendant gid mismo ang tagaan nimo sa
summons. Now, if sige kag balik-balik, wala gyud so naa
kay gibilinan. Dapat suitable age and discretion kaya
lang bata pa man tung imohang gibilinan pero murag na
gud syang tigulang ug nawong so mao tung pagtoo
nimo. But nadawat gyud ni defendant ang summons so
the Supreme Court said the defect is cured. We apply
the liberal policy of the Rules.
(4) If the reason why service of summons was not effected upon the
defendant was because of the act himself of the defendant.
-
-
Here, the Supreme Court said, the plaintiff should not be
allowed to suffer due to lapses on the part of the officers
of the court. If for example, the failure was due to the act
itself which is attributable to the defendant.
Now in this case of Lingner & Fisher v. Intermediate
Appellate Court:
LINGNER & FISHER v. INTERMEDIATE APPELLATE COURT
G.R. No. L-63557, October 28, 1983
Summons was served improperly on the defendant. Because of this,
the defendant filed a motion to dismiss. Again, under the previous
rules, pwede ka magfile motion to dismiss on the ground of lack of
jurisdiction over the person of the defendant. So nagfile sya motion
to dismiss based on this ground.
But the Court said, a case should not be dismissed simply because
an original summons was improperly or wrongfully served. It should
be difficult to conceive, for example, that when a defendant
personally appears before a Court complaining that he had not been
validly summoned, that the case filed against him should be
dismissed. The remedy here is issue an alias summons that can be
acutally be served upon the defendant. So the Court may not dismiss
the case just because of that ground.
-
The same in the case of G.V. Florida Transport, Inc. v.
Tiara:
G.V. FLORIDA TRANSPORT, INC. v. TIARA
G.R. No. 201378, October 18, 2017
Dili dismissal ang first response to that complaint na the court did not
acquire jurisdiction over the person of the defendant because of
improper service of summons. The remedy is to issue alias
summons, which is also applicable under the present case.
We discussed the limitations on this affirmative defense. So based on
our discussion, lisod sya i-invoke because pwede ma-cure, pwede mawaive, and then pwede mag issue ug alias summons ang court. Now
under the Amended Rules, it’s even more difficult to invoke this ground
to dismiss by way of affirmative defense (based on Atty. LCYE’s Word
document):
This is a new provision. So wala kay lusot. (??? 40:4640:51) So the court will just cure the defect by deputizing
the defendant’s lawyer.
2.
This is no longer a ground for a motion to dismiss [Rule 15, Section
12(a)]. So it is also impossible that the defendant will just file a
motion to dismiss based on this ground alone.
3.
Because the defendant is not allowed to file a motion to dismiss
based on this ground, he will have to necessarily file an answer and
interpose this as an affirmative defense. By filing an answer, the
defendant is submitting voluntarily to the jurisdiction of the court.
(3) Lack of jurisdiction over the person of the defendant can be
disregarded if the purpose of the law in requiring service of summons
have been attained nonetheless.
-
Rule 14, Section 13 states that:
Discussion:
Now, going back to Section 23 of Rule 14. It says: x x x The inclusion in
a motion to dismiss of other grounds aside from lack of jurisdiction over
the person of the defendant shall be deemed a voluntary appearance.
Mao ni sya ang sa Amended Rules. Actually sa prior rules, ang
nakabutang didto, when you include other grounds in the motion to
dismiss other than lack of jurisdiction over the person of the defendant,
it shall not be deemed as voluntary appearance. Ang (??? 41:48-49) is
you have no choice because under the Omnibus Motion Rule you have
to include everything for as long as you did not ask for affirmative relief
from the court even if you included other affirmative defenses. So lahi
nang affirmative relief, lahi pud nang affirmative defenses. Affirmative
relief, injunction, TRO, etc. Affirmative defenses, katong for example,
the defense of confession and avoidance. Ana ang Supreme Court,
katong La Naval Doctrine, na dili sya considered as voluntary
appearance kung nag include kag other grounds but karon, waiver na
sya so going back niingon sya didto nga inclusion in a Motion to Dismiss
of grounds other than lack of jurisdiction over the person but in fact, this
is not even available as a ground for a Motion to Dismiss.
When you go to Rule 15 and Rule 9, dili na sya ground for a motion to
dismiss in the first place. So unsa imong buhaton? So that’s impossible
for you to include this in your motion to dismiss. So unsa ang
consequence? Because you’re not allowed to include this in your Motion
to Dismiss, you will have to include this in your answer as an affirmative
defense. But jurisprudence says na when you file your answer, that is
submission to the jurisdiction of the court. That is equivalent to voluntary
appearance.
Also, it would be difficult for you if you are the defendant if you will not
include other grounds kay again the Omnibus Motion Rules still exist.
So you will have to include everything otherwise the other defenses are
deemed waived except kung lack of jurisdiction, di to sya ma-waive.
Pwede nimo sya nga, mag-file sa ko ug Answer but in the first place, the
filing of an Answer is a voluntary appearance. So the Supreme Court is
(???44:14-16) Wala na gyud kay ground if kung mao ni sya imohang
ground lack of jurisdiction over the person of the defendant atik lang ni
sya kay necessarily you’ll be forced to submit to the jurisdiction of the
court.
Difference Between the 1997 Rules and the 2019 Amended Rules
as to Voluntary Appearance
1997 Rules
Section
20.
Voluntary
appearance. — The defendant's
voluntary appearance in the
action shall be equivalent to
service of summons. The
inclusion in a motion to dismiss
of other grounds aside from lack
of jurisdiction over the person of
the defendant shall not be
deemed
a
voluntary
appearance.
2019 Amended Rules
Section
23.
Voluntary
appearance. — The defendant's
voluntary appearance in the
action shall be equivalent to
service of summons. The
inclusion in a motion to
dismiss of other grounds aside
from lack of jurisdiction over the
person of the defendant shall be
deemed
a
voluntary
appearance.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
52
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
In the 1997 Rules, the inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the defendant shall not
be deemed a voluntary appearance. Karon, totally different. The total
opposite. It is considered as a voluntary appearance.
I already mentioned the effect na it’s dangerous on the part of the
defendant because if you will not cite the other grounds, wala na waived
na to sila. And then the fact that he filed his Answer, he is submitting
himself to the jurisdiction of the court. Rule 9, Section 1 still says:
Section 1. Defenses and objections not pleaded. — Defenses and
objections not pleaded either in a motion to dismiss or in the answer
are deemed waived. However, when it appears from the pleadings
or the evidence on record that the court has no jurisdiction over the
subject matter, that there is another action pending between the
same parties for the same cause, or that the action is barred by a
prior judgment or by statute of limitations, the court shall dismiss the
claim.
So, these are the only affirmative defenses which are not deemed
waived even if they are not raised in the answer or in a motion to dismiss.
Some of you have asked if applicable pa ba ang provision on
appearance, special appearance? Yes. That is the one precisely
contemplated under Rule 14 na a lawyer makes a special appearance
in court for the purpose of questioning among others, the validity of the
service of summons because if he enters an appearance
unconditionally, he will be deemed to have submitted and his client to
the jurisdiction of the court. So the court does not have to deputize him,
to issue summons, because they have already submitted to the
jurisdiction of the court. Sa kani, wala sya nagsubmit to the jurisdiction
of the court precisely because they’re questioning the service of
summons. But the Court, “okay, that is the case, I will deputize you to
serve the summons to your client so that maclear nato ang defect sa
improper service of summons.”
When a lawyer appears, it does not follow na nagvoluntary submit na
gid na sa jurisdiction of the court. It could be na conditional or special
kay kung wala gyuy ingana conditional or special appearance without
mentioning the objection, the entry of appearance of the lawyer has the
effect of his client submitting to the jurisdiction of the court.
Q: How can the lawyer enter his appearance?
A: He can do it when he goes to court kung naay schedule sa hearing.
But he can file notice of appearance.
Again, kung wala pa kay intention to submit to the jurisdiction of the
court, you have to specify na it is conditional or special. Otherwise, your
client is deemed to have submitted to the jurisdiction of the court.
So lahi pud nang answer. When you enter your appearance, it does not
follow naa na kay answer. You just enter your appearance. Wala pa kay
motion to dismiss. Entry of appearance lang gyud.
Section 13. Duty of counsel of record. — Where the summons is
improperly served and a lawyer makes a special appearance on
behalf of the defendant to, among others, question the validity of
service of summons, the counsel shall be deputized by the court to
serve summons on his or her client.
NATION PETROLEUM GAS, INC. v. RIZAL COMMERCIAL
BANKING CORPORATION
G.R. No. 183370, August 7, 2015
or in your motion to dismiss other affirmative defenses in addition to
lack of jurisdiction over the person of the defendant under the old
rules, you are not deemed to have submitted to the jurisdiction of the
court. It’s not equivalent to voluntary appearance because that is
precisely mentioned under Section 20, Rule 14. But if you include
other affirmative relief, like here. The petitioners ask for the discharge
of the writ of attachment on their properties; they ask for the denial of
the motion to declare them in default; they ask for the admission of
the comment or opposition to the motion to declare them in default;
they ask for the denial of the respondent’s motion to strike off from
the records their opposition to the motion to declare them in default.
These are affirmative reliefs. So, by asking for affirmative reliefs, they
are deemed to have submitted to the jurisdiction of the court.
A party cannot invoke the jurisdiction of a court to secure affirmative
relief against his opponent and after obtaining or failing to obtain such
relief, repudiate or question that same jurisdiction.
Kani sya sa prior rule. Under the present rule, even if you include
affirmative defenses, not affirmative relief, but affirmative defenses
other than lack of jurisdiction over the person of the defendant, you
are already deemed to have submitted to the jurisdiction of the court.
Kani sya nga ruling has already been superseded or modified by the
present Rule. Even seeking affirmative defenses will be considered
as voluntary appearance.
So, this case also of Millenium Industrial Commercial Corporation v.
Jackson Tan which reiterated the the La Naval Doctrine. Katung La
Naval Doctrine was the prior Section 20, Rule 14 of the Rules of Court
is already abrogated, superseded by the present Rule.
Lack of jurisdiction over the defendant is a personal defense.
So as discussed in the case of Atty. Sarsaba v. de Te, so this is still
applicable. Meaning, if you are the defendant who was not served
summons, or over whose person the summons was improperly served,
only you can invoke that as a defense. Kung katung imong mga codefendants were properly served summons, then the court acquires
jurisdiction over their person. They cannot say that this case shall be be
dismissed because one of our co-defendants was not able to receive
summons, or summons upon him was improperly served.
ATTY. SARSABA v. DE TE
G.R. No. 175910, July 30, 2009
Held: Failure to serve summons on Sereno’s person will not be a
cause for the dismissal of the complaint against the other defendants,
considering that they have been served with copies of the summons
and complaints and have long submitted their respective responsive
pleadings.
Improper venue as an affirmative defense.
This is the same in the old rule. Venue is improperly laid, meaning, it
was filed in the wrong place. It means that the plaintiff has filed the
complaint at the wrong place, although not necessarily before the wrong
court.
Example: It’s a real action, the property is located in Panabo. So, the
venue is in Panabo. The assessed value of the property let’s say is
P100K. The proper court which has jurisdiction is the Regional Trial
Court. What if he filed it in Tagum RTC? It was filed in the proper court
but wrong venue. So here, the case is still dismissible.
Q: If it is filed in the wrong court?
This is still under the previous rules which cited na the inclusion in a
motion to dismiss of other grounds aside from lack of jurisdiction over
the person of the defendant shall not be deemed a voluntary
appearance.
A: It is dismissible. Lack of jurisdiction over the subject matter.
Q: What is the rule regarding improper venue as an affirmative
relief?
Here, the Supreme Court made a distinction between including in the
motion to dismiss affirmative defenses and asking for affirmative
relief. These are different things. When you include in your answer
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
53
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
A: That defense can be waived if it is not seasonably interposed, or even
if the defendant interposed it seasonably but he asked for other relief
from the court. That is also a waiver of the defect.
PANGASINAN TRANSPORTATION CO., INC. v. NICASIO
YATCO, ET AL.
G.R. No. L-23090, October 31, 1967
Facts: The complaint here was for recovery of damages. It was filed
before the Court of First Instance or the Regional Trial Court. The
defendant filed an answer with counterclaim and third party
complaint. During the hearing, the plaintiff testified that he was a
resident of Dagupan City and was merely taking a vacation in
Quezon City. The defendant moved to dismiss on the ground of
improper venue. And then there was presentation of evidence on the
claim for damages.
Issue: Regarding the affirmative defense of improper venue, what
did the Supreme Court say about it?
Held: The petition herein is untenable, not so much because the
objection to venue is deemed waived, when, as in the present case,
it is not set up before the filing of the answer, as because the filing of
Pantranco’s claim in the CFI of Rizal, and, later, of Pantranco’s third
party complaint against the La Mallorca Pambusco, necessarily
implied a submission to the jurisdiction of the court, and accordingly,
a waiver of such right as the Pantranco may have had to object to
the venue, upon the ground that it had been improperly laid. The
introduction of part of the evidence for the Pantranco after the denial
of its motion to dismiss and before the institution of the present case,
tended, also, to have the same effect.
Q: When do you interpose the affirmative defense of improper
venue?
A: Under the present Rules, it could only be in the answer. Answer with
affirmative defense. You cannot file anymore a motion to dismiss on the
ground of improper venue because that is expressly prohibited by the
rules. So bawal na ang motion to dismiss except for grounds in lack of
jurisdiction over the subject matter, prescription, litis pendentia, res
judicata. Mao na lang gyud na sila ang pwede na motion to dismiss.
Under the present rules, your only possible (??? 59:24) of filing an
affirmative defense regarding improper venue is in the answer.
In addition to that, using this case, assuming na you file that in your
answer, but if you ask for other relief from the court, like in this case,
nagfile kag answer unya affirmative defense nimo is improper venue
pero you filed a counterclaim and a third party complaint. So meaning
you are asking for relief from the very same court na imohang girepudiate ang iyahang taking cognizance because of improper venue.
So, you are deemed to have waived also this defect. And also in this
case, the Supreme Court said na, nagpresent na gani mog evidence,
nya ang defendant himself ang nagpresent na ug evidence and then
later on giquestion nya ang venue, so that is already waived.
Distinctions between Improper Venue and Lack of Jurisdiction
Over the Subject Matter
VENUE
Complaint was filed at the wrong
place.
Dismissal on this ground is
generally without prejudice to the
re-filing of the same case before
the courts of proper venue.
Must be raised as an affirmative
defense in the Answer.
Can be raised only in the Answer
within 30 days from receipt of
summons, subject to extension.
JURISDICTION OVER
SUBJECT MATTER
Complaint was filed before the
wrong court.
Dismissal in this ground may
also allow re-filing before the
court of proper jurisdiction
Can be raised in a Motion to
Dismiss or as an affirmative
defense in the Answer.
Can be raised at any time, even
after the Answer was already
filed.
Waived if not seasonably raised.
As a general rule, not lost by
waiver or estoppel, except in
exceptional circumstances.
Q: What is the difference between the rules in venue in civil cases and
in criminal cases?
A: When you speak of criminal cases, venue us synonymous of
jurisdiction. Kung diri nahitabo ang crime, diri pud na court ang naay
jurisdiction.
Q: What is the remedy of the defendant in case the court of a proper
venue exist in proceeding with the case? Nagreklamo na ka the case is
filed before the wrong venue, then the court did not dismiss the case,
the court denied your affirmative defense.
A: Under the old rule, your remedy is to file an action for petition for
prohibition to prevent the court from trying with the case again, because
it is a court of improper venue. Before you file a petition for prohibition,
usually you first file a motion for reconsideration.
: But under the present rules that we discussed in Section 12 (e), when
your affirmative defense is denied, you cannot file a motion for
reconsideration, you cannot file a motion for certiorari, prohibition or
mandamus. Your remedy is to wait until the court has decided on the
merits and still you deduce, kay kung ni daog ka dili na ka mag reklamo
sa venue, pero kung na pildi ka, you appeal the decision in merits
including your affirmative defense of improper venue.
Plaintiff has no legal capacity to sue
Q: When is a person or the plaintiff without legal capacity to sue?
A: If you are a minor you do not have a legal capacity to sue.
EXAMPLE:
You are a minor and there is a person representing you claiming that he
is your guardian, and he or she is not your parent or legal guardian.
Then, he files a case in your behalf.
Q: A represented by B (guardian). Assuming that B has not been
appointed by the court as the guardian, what is now the defect here?
A: B has no legal capacity to sue because he does not have the authority
to institute a case for and behalf of the minor, he does not have the legal
representation that he claims.
When you say that the plaintiff lacks legal capacity to sue, these are the
2 possible meanings:
1. The plaintiff does not possess the necessary qualifications to
appear at the trial or he does not have the capacity to act.
distinguish capacity to act from juridical
personality
o
juridical personality arises from
birth, you have civil personality and
you can be the subject of legal
relations
o
capacity to act is to give legal
effects, like entering into a contract
(minor, insane, person suffering
from civil interdiction, aliens)
2.
The plaintiff does not have the character or representation
that he claims
Example:
-he is not authorized by any court
-claims to be representative of A but there is
no special power of attorney in his favor
-a person alleges that he is the representative
of a corporation, but he does not have a board
resolution or secretary’s certificate in his favor
- The complaint is dismissible on the ground that
the plaintiff has no legal capacity to sue. Even if the
person being represented has legal capacity, pero
wala man gud siyay authority kay ang nag file sa
case kay agent man, so he does not have legal
capacity to sue.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
54
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
Distinguish lack of legal capacity to sue from lack of legal
personality to sue
LACK OF LEGAL
LACK OF LEGAL
CAPACITY TO
PERSONALITY TO
SUE
SUE
Refers to
Ground for
dismissal
The qualification to
the plaintiff to sue.
The
ability
to
institute the suit.
specifically lack of
capacity to sue.
The fact that plaintiff
is not the real partyin-interest.
failure to state
cause of action.
a
When you say lack of legal personality to sue, it is not an affirmative
defense. The ground for dismissal is failure to state a cause of action.
Because the person instituting the case has no personality to sue.
Diba? For one to have a cause of action, first is that he should have a
right, here he does not have a right, because he is not the real-party-ininterest.
SCENARIO 1:
Agent (A) files an action in his own name involving the property of the
supposed principal. So ang case is, A vs B, but he is the agent, siya ang
plaintiff sa kaso.
Q: What is the defect? What is the ground for dismissal? How does he
have a cause of action, when in the first place he does not have a right?
A: He does not have a legal personality to institute the action, that’s why
the case is dismissible for failure to state a cause of action.
SCENARIO 2:
B (principal), represented by A vs C. In reality, A here has no authority,
he has no SPA from B.
Q: What is the defect?
A: He does not have the representation that he claims, although in
reality naa siyay capacity to sue on its own because he is a natural
person and of legal age. Iyang principal naa sad capacity to sue. Pero,
wala siyay authorization from the principal and he is not suing on his
own.
: The defect is lack of legal personality to sue, because he does not
have the representation that he claims.
That the pleading asserting the claim states no cause of action
Just remember what we already discussed, what are the elements of a
cause of action. For your complaint to be sufficient in form, your
complaint should be able to recite all the factual allegations not only to
complete the cause of action but also the right of action.
If any of the elements is absent, the complaint becomes vulnerable to
motion to dismiss, karuna ano na sya, to dismissal by way of affirmative
defense because it failed to state a cause of action.
Q: What is the test of sufficiency? How do you know na pwede na ba
sya mag stand imong complaint?
A: The test of sufficiency rest on whether hypothetically admitting the
facts alleged in the complaint. Assuming for the sake of argument na
tinuod ba jud ng tanan na nakabutang sa imohang complaint, is the
plaintiff entitled to relief? Can the court render a valid judgment upon the
same in accordance with the prayer in the complaint?
: Whether or not tinuod ng mga gpang ingon sa complaint, we are not
concerned about that when we invoke the ground that the complaint fails
to state a cause of action. Ang basis here is the sufficiency, if kumpleto
na ba ang recital sa complaint that would constitute a cause of action,
whether or not tinuod ng allegations in the complaint.
You might confuse “failure to state a cause of action” and “lack of cause
of action”
Q: Is there a difference?
A: Yes, in so far as affirmative defense is concerned. When you say, the
plaintiff does not have a cause of action, even if iyahang complaint
gwapo pagkasulat but after the presentation of evidence, the defendant
proves na dili tinuod ang ubang nakabutang sa complaint or they do not
exist. So, dili complete, therefore he does not have a cause of action.
His complaint may perfectly state a cause of action, but in reality, he
does nor have a cause of action.
Failure to state a cause of action can be determined only from the
allegations in the complaint. We don’t need to go beyond the complaint.
We don’t need to present evidence to determine if the complaint fails to
state a cause of action.
Didto lng mag tan’aw sa complaint. If tama tanan, nakabutang tanan
didto then the complaint states a cause of action.
Q: Can we now say that plaintiff won the case?
A: No, because he still has to prove these allegations.
So, whether the plaintiff lacks a cause of action, that can be determined
only after trial on the merits. Then, failure to state a cause of action, that
is determined only from the face of the complaint.
In most cases also, the complaint is defective or insufficient because
there are certain matters that are vague or ambiguous.
Q: Kung ikaw si defendant, unsa imohang possible na remedies?
A: You can file an answer and then cite as an affirmative defense, that
the complaint fails to state a cause of action.
: Pwede pud, instead of filing an answer, you move for a bill of
particulars. This means that, you ask the court to tell the plaintiff to clarify
what are these vague and ambiguous in his complaint.
Most likely the court will just grant for a bill of particulars, kay sa I’dismiss
ni court because of failure to state a cause of action. Usually the
Supreme Court said na, it will consider a motion to dismiss as a motion
for bill of particulars.
So, even if dili siya motion for bill of particulars it is a motion to dismiss,
but the tenor of motion is that it can be addressed by a bill of particulars,
the Supreme Court said na, mas unahon nato ang bill of particulars
instead of dismissing the case.
Another scenario would be, karun failure to state a cause of action is no
longer a ground for a motion to dismiss. Before, this was a ground for a
motion to dismiss.
Q: What is the significance of this?
A: Before, the defendant instead of filing an answer, he can just file a
motion to dismiss and allege that the complaint fails to state a cause of
action. Then, the plaintiff when that happens, he can just immediately
amend his complaint and rectify whatever those omissions because
before filing a responsive pleading, amendment is a matter of right, the
plaintiff can always amend.
Q: How about a motion to dismiss?
A: It is not a responsive pleading; the responsive pleading is the answer.
So kung motion to dismiss lang ang I’file, a matter of right ni plaintiff to
amend. But now, because this affirmative defense is no longer a ground
for a motion to dismiss, that defendant will have to file his answer and
allege it as an affirmative defense.
: Dili na a matter of right on the part of the plaintiff to amend. Kung gusto
ni plaintiff I’amend, he will have to move, mag motion siya for leave to
file an amended complaint, ang court ang mag decide if it will allow.
In the case of,
PNB vs Spouses Rivera
The Supreme Court distinguish between a failure to state a cause of
action and lack of cause of action.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
55
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
(*note: Ma’am said to take note of this portion of the case, so I copied
it na lng for our convenience).
From the case:
Failure to state a cause of action and lack of cause of action
distinguished
Section 2, Rule 2 of the Revised Rules of Civil Procedure defines a
cause of action as the act or omission by which a party violates a
right of another. Its elements are as follows:
1.
2.
3.
A right in favor of the plaintiff by whatever means and
under whatever law it arises or is created;
An obligation on the part of the named defendant to
respect or not to violate such right; and
Act or omission on the part of such defendant in violation
of the right of the plaintiff or constituting a breach of the
obligation of the defendant to the plaintiff for which the
latter may maintain an action for recovery of damages or
other appropriate relief.
Lack of cause of action refers to the insufficiency of the factual
basis for the action. Dismissal due to lack of cause of action may be
raised any time after the questions of fact have been resolved on
the basis of stipulations, admissions or evidence presented by the
plaintiff. It is a proper ground for a demurrer to evidence under Rule
33 of the ROC, which provides:
Section 1. Demurrer to evidence. — After the plaintiff
has completed the presentation of his evidence, the
defendant may move for dismissal on the ground that upon
the facts and the law the plaintiff has shown no right to
relief. If his motion is denied he shall have the right to
present evidence. If the motion is granted but on appeal
the order of dismissal is reversed he shall be deemed to
have waived the right to present evidence.
In this case, the RTC could not have dismissed the complaint due to
lack of cause of action for as stated above, such ground may only be
raised after the plaintiff has completed the presentation of his
evidence.
If the allegations of the complaint do not state the concurrence of the
above elements, the complaint becomes vulnerable to a motion to
dismiss on the ground of failure to state a cause of action which is
the proper remedy under Section 1(g) of Rule 16 of the Revised
Rules of Civil Procedure, which provides:
By filing a motion to dismiss, a defendant hypothetically admits the
truth of the material allegations of the ultimate facts contained in the
plaintiff’s complaint. When a motion to dismiss is grounded on the
failure to state a cause of action, a ruling thereon should, as a rule,
be based only on the facts alleged in the complaint.
Applying the foregoing principles to this case, the CA correctly found
that the complaint filed by the Spouses Rivera sufficiently stated a
cause of action for annulment of sheriff’s sale. We quote with favor
the relevant portion of the decision:
Thus, by filing a motion to dismiss on the ground that the
complaint does not state a cause of action, defendantappellee PNB hypothetically admits the material
allegations in the complaint. These material allegations
read:
4.
That plaintiff is the owner of a parcel of residential lot with
improvements located at blk 17 lot 2 La Colina Subdivision,
Parang, Marikina City which it mortgaged to defendant
PNB
x
x
x;
4. That plaintiff came to know that said property had been
sold at public auction on September 9, 2004 by codefendant sheriff, x x x and that the highest bidder was
defendant
PNB
x
x
x;
5. That there was no notice received by the plaintiff
regarding this auction sale as a careful verification would
show that the notice was sent to the wrong address at 26
Verdi Street, Ideal Subdivision, Fairview, Quezon City
when defendant PNB knows fully well my correct address;
6. That had plaintiff been formally informed of the auction
sale he could have made known to co- defendant sheriff
that he has already paid his obligation of defendant
corporation considering that plaintiff had made a total
payment to defendant PNB in the amount of
P2,292,159.62 which is even more than the amount of
P2,250,000.00 being claimed by defendant PNB.
The foregoing allegations of non-receipt by plaintiffs-appellants of
any notice of the auction sale and their full payment of their obligation
to defendant-appellee PNB are hypothetically admitted by the latter
and sufficiently make out a cause of action against defendantsappellees. Whether said allegations are true or not are
inconsequential to a determination of the sufficiency of the
allegations in the complaint.
Section 1. Grounds. — Within the time for but before
filing the answer to the complaint or pleading asserting a
claim, a motion to dismiss may be made on any of the
following grounds:
Lack of cause of action refers to the insufficiency of the factual basis for
the action, it goes to the evidence to support your allegations in your
complaint.
xxx
If the complaint fails to state a cause of action, the remedy of the
defendant is to ask for the dismissal of the complaint by way of his
affirmative defense in the answer.
(g) That the pleading asserting the claim states no cause
of action; x x x
The case of Hongkong and Shanghai Banking Corporation Limited
v. Catalan laid down the test to determine the sufficiency of the
facts alleged in the complaint, to wit:
The elementary test for failure to state a cause of action is
whether the complaint alleges facts which if true would
justify the relief demanded. Stated otherwise, may the
court render a valid judgment upon the facts alleged
therein? The inquiry is into the sufficiency, not the veracity
of the material allegations. If the allegations in the
complaint furnish sufficient basis on which it can be
maintained, it should not be dismissed regardless of the
defense that may be presented by the defendants.
Q: If there is no cause of action, what is the remedy of the defendant?
A: You will have to wait for the presentation of evidence of the plaintiff
and after the plaintiff rests his case, the defendant can move to dismiss
the case in the ground that the plaintiff lacks a cause of action.
Q: How does he do that?
A: By filing a demurrer to evidence, this is actually a motion to dismiss
(Rule 33). Because based on the evidence presented by the plaintiff, he
was not able to establish his cause of action. He was not able to prove
the allegations in his complaint, even if the complaint states a cause of
action but in reality, he has no cause of action so the case can be
dismissed by way of demurrer to evidence.
In the case of PNB vs Spouses Rivera, the Court held that it was
improper for the RTC to dismiss the complaint based on lack of cause
of action when in fact there no presentation of evidence. So, pwede lang
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
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ma dismiss on failure to state a cause of action again, mu tan’aw lang
ka sa complaint kung complete ba ang recitals. If complete then, go to
trial and after that kung walay supporting evidence then demurrer to
evidence because of lack of cause of action.
Lack of cause of action vs Failure to state a cause of action
Lack Of Cause Of Action
Failure To State A Cause Of
Action
This is similar into saying that This is similar into saying that the
the evidence does not sustain complaint does not allege a
the cause of action alleged.
sufficient cause of action.
Proven at the trial on merits.
The trial court necessarily
examines the evidence on
record
The issue is the veracity of the
facts, whether or not these
facts are true.
It is raised in demurrer to
evidence under Rule 33 after
the plaintiff has rested its
case.
If the demurrer is granted, it
can be a subject of appeal on
questions of fact and law.
Limited to what is stated in the
complaint
The trial court must limit itself to
examine the sufficiency of the
allegations in the complaint as well
as the annexes. It is proscribed
from inquiring into the truth of the
allegations in the complaint or the
authenticity of the documents
attached or referred to in the
complaint. Because all these
allegations
and
documentary
evidence attached to the complaint
are hypothetically admitted when in
invoked the affirmative defense of
failure to state a cause of action.
Meaning assuming tama na tanan
ang naa sa complaint, assuming
na tinuod tanan ang documents na
naka attached sa complaint, maski
pag tama pa siya kulang siya kay
mao lang man na iyang g’ingon, it
fails to state a cause of action.
The issue is the sufficiency of the
allegations
It is raised as an affirmative
defense in the answer.
If the complaint is dismissed on the
ground of failure to state a cause of
action, it can be a subject of appeal
only on the question of law,
because the facts are already
hypothetically admitted.
In a Motion to Dismiss based on failure to state a cause of action,
there cannot be any question of fact or "doubt or difference as to the
truth or falsehood of facts," simply because there are no findings of
fact in the first place. What the trial court merely does is to apply the
law to the facts as alleged in the complaint, assuming such
allegations to be true. It follows then that any appeal therefrom could
only raise questions of law or "doubt or controversy as to what the
law is on a certain state of facts." Therefore, a decision dismissing a
complaint based on failure to state a cause of action necessarily
precludes a review of the same decision on questions of fact. One is
the legal and logical opposite of the other.
HYPOTHETICAL ADMISSION
It can be described as an admission for the sake of assumption.
Assuming for the sake of argument that the allegations are true, but still
the complaint is dismissible.
When the defendant interposes an affirmative defense then assuming
for the sake of argument, that allegation is true, still the plaintiff cannot
win because of affirmative defense.
When you invoke an affirmative defense, so, this applies to all affirmative
defenses, confession and avoidance. So, meaning assuming that the
allegations in the complaint are true but still the case has to be dismissed
because, for example the complaint fails to state a cause of action; or
the complaint is filed in an improper venue; or there was fraud; or no
observance under the statute of frauds.
Q: When you say hypothetical admission, are we saying that we are
hypothetically admitting everything (the allegations) in the complaint?
A: No, there are exceptions to that
Exceptions to hypothetical admission:
1. Only the allegations relevant and material to the resolution of
the issue raised in the dismissal, but not the other facts of the
case.
EXAMPLE:
If you raise the affirmative defense of statute of limitations or
prescription, you are only deemed to have hypothetically
admitted those facts relating to prescription. Like, the dates.
The dates are related to prescription.
But not as to the other facts, like those which relates to
entitlement of damages. You are not hypothetically admitting
those because they do not relate to your affirmative defense.
2. The hypothetical admission extends only to such matters of
fact that which has been sufficiently pleaded.
3.
The hypothetical admission does not extend to mere epithets
charging fraud, allegations of legal conclusions or erroneous
statements of law, inferences from facts not stated matters if
evidence or irrelevant matters (De Dios vs Bristol
Laboratories) nor does it cover allegations of fact the falsity of
which is subject to judicial notice (U. Banez Electric Light Co.
vs Abra Electric Cooperative, Inc.).
4.
In addition, the Supreme Court ruled in a case that:
EXAMPLE:
You file an answer and invoked the affirmative defense of failure to state
a cause of action and it is granted. The court will now dismiss the case.
Then, plaintiff will appeal.
Q: Unsa man ang issues na pwede I’raise ni plaintiff sa iyang appeal?
A: Only questions of law. If the dismissal is because of failure to state a
cause of action, again, the allegations are deemed hypothetically
admitted. So, assuming na tinuod imong complaint pero kulang siya ug
elements of cause of action. That is why it has to be dismissed. So,
walay question as to the facts. Didto lang mo mag daog unsa ang
applicable law, because the plaintiff might say na, “this is not an element
of this particular cause of action, the law is this but you applied it
differently RTC or MTC.” So, again, didto lang mo sa applicability of the
law.
The plaintiff could just insist na sufficient iyang complaint because all the
elements are mentioned there. Wala nay question unsa pang facts ang
dapat I’allege, it is not part of the issues.
ST. MARY OF THE WOODS SCHOOL, INC., ET AL. v. OFFICE
OF THE REGISTRY OF DEEDS OF MAKATI CITY, ET AL.
HEIRS OF MARAMAG VS DE GUZMAN MARAMAG ET AL
G.R. No. 181132 June 5, 2009
There is no hypothetical admission of the veracity of the
allegations if:
1.
the falsity of the allegations is subject to judicial
notice;
2.
such allegations are legally impossible;
3.
the allegations refer to facts which are inadmissible in
evidence;
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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4.
by the record or document in the pleading, the
allegations appear unfounded; or
5.
there is evidence which has been presented to the
court by stipulation of the parties or in the course of
the hearings related to the case.
Discussion as to exception no. 5
During the trial, as the case progresses, the parties can actually make
stipulations. If those stipulations are different from what was alleged in
the complaint, the stipulations prevail over those alleged in the
complaint.
Even if there is a previous hypothetical admission before, but
superseded na na sila what are the stipulated facts by the parties.
Only deemed hypothetically admitted are material allegations, not
conclusions. An allegation that a contract is an “equitable mortgage” is
a conclusion and not a material allegation. Hence, it is not deemed
admitted by the motion to dismiss (Dalandan vs Julio).
February 29, 2020 – REYES DM, REYES RA, SAMBRANO
Section 12 (a) 4: That the pleading asserting the claim states
no cause of action.
So, failure to state a cause of action that was our last topic.
We already discussed what are these matters which are not
hypothetically admitted by the filing of a motion to dismiss or by
interposing an affirmative defense.
We now go to the case of Maramang v. De Guzman which we also
mentioned before.
Now again, in determining whether or not a complaint states a cause of
action we only look into the complaint itself regardless of the allegations
in the answer of the defendant.
Maramang v. De Guzman
Actually, the question here was in determining the merits of a motion
to dismiss (so before it was motion to dismiss) for failure to state a
cause of action may the court consider matters which were not
alleged in the complaint, particularly defenses put up by the
defendants in their answers?
FACTS:
What was filed here was for recovery of insurance proceeds. This
was filed by the children of the decedent claiming that the said
proceeds should be nearer to the estate of the decedent.
In the insurance policy, the decedent designated his mistress as the
insurance beneficiary and also listed his illegitimate children with
the mistress.
According to the petitioners in their complaint, there was an
insurance policy taken out by the decedent. That the decedent
(again): designated Eva as his beneficiary and also the illegitimate
children. That according to them, under the Insurance Code, Eva is
disqualified from being instituted from being a beneficiary. That is
why that insurance proceeds pertaining to Eva should go to the
estate of the decedent. Therefore, the plaintiffs (who are the
petitioners in this case) are the ones entitled to the insurance
proceeds because they are the legal heirs there being no last will
and testament. That was the allegation.
Now Insular and (inaudible 4:05) filed a motion to dismiss stating
that the complaint failed to state a cause of action. Why? Because
according to the answer even if Eva was disqualified, the illegitimate
children as the remaining named beneficiaries should be the ones
entitled to the proceeds of the insurance. And as to the premiums
those have already been refunded.
Now according to the petitioners, in determining whether the
complaint states a cause of action, you should only limit the
examination on the face of the complaint. So we will not take into
account the answers of the defendant i.e. even if Eva was
disqualified still the petitioners are not entitled because the other
named beneficiaries are the illegitimate children of the decedent
who are not DQ to get the insurance proceeds.
So the court actually granted the motion of Insular. So this went all
the way to the SC.
ISSUE:
Was it proper to dismiss the complaint? YES.
Because according to the petitioners, in dismissing the complaint
the court did not limit only to the allegations of the complaint. It took
into account the answers of the defendant.
RULING:
The SC said that again, in determining the question of whether
or not the complaint states a cause of action, we limit our
discussion on the contents of the complaint.
Here, according to the petitioners their petition should not have
been dismissed for failure to state a cause of action because the
finding that Eva is whether DQ as a beneficiary by the insurance
companies or that her designation was revoked, hypothetically
admitted as to was raised only in the answers and the motions for
reconsideration of Insular.
According to the SC, you are wrong. Again, when a motion to
dismiss is premised on this ground, failure to state a cause of action,
the ruling thereon should only be based on the facts alleged in the
complaint. The court must resolve the issue on the strength of such
allegation assuming them to be true.
So the test of sufficiency of a cause of action rests on: whether,
hypothetically admitting the facts alleged in the complaint to
be true, the court can render a valid judgment.
Did the court take into account the allegations in the answer
of the defendants in determining whether the complaint failed
to state a cause of action?
Actually the SC said NO. The complaint is sufficient because
insurance is different from succession. Succession who are the
beneficiaries they are provided for by law. The law provides who are
the compulsory heirs in case there is last will and testament and
who are the legal heirs in case there’s no will.
In insurance, the beneficiaries are the ones they designate in the
insurance policy. Nowhere is it alleged in the petition or complaint
that the complainants were the named beneficiaries.
So, according to the SC that alone, the complaint failed to state a
cause of action. It is evident from the face of the complaint that
petitioners are not entitled to a favorable judgment in light of Article
2011 of the Civil Code which expressly provides that: insurance
contracts shall be governed by special laws especially the
Insurance Code specifically under section 53.
So, the insurance proceeds shall be applied exclusively to the
proper interest of the person in whose name or for whose benefit it
is made, unless otherwise specified in the policy. So, it is obvious
that the only persons entitled to claim the insurance proceeds are
either the insured (if still alive) or the beneficiary (if the insured is
already deceased).
So, the exception to this rule is a situation where the insurance
contracts was entered for the benefit of third persons who are not
parties to the same in the form of favorable stipulations or indemnity.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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So, petitioners are 3rd parties to the insurance contracts and they
are not entitled to the proceeds.
It is only in cases where the insured has not designated any
beneficiary or when the designated beneficiary is DQ by law to
receive the proceeds. That the proceeds shall redound to the benefit
of the estate of the insured.
Section 12(a) 5: That a condition precedent for filing the claim has
not been complied with.
So, there are cases when you cannot go directly to the court. You have
to comply with certain prerequisites.
What are these examples?
1. Failure to exhaust administrative remedies (doctrine of
primary jurisdiction) –
For example of cases of just compensation. The jurisdiction is
with RTC. For example, if the land is covered by the agrarian
reform program.
Here, again, there was no allegation that they were the ones
designated beneficiaries of the insurance. There was also no
allegation that no one was designated as beneficiary in the
insurance policy.
So before you go to the RTC, you must first go to the DARAdjudication Board. It will be the DARAB which will determine
just compensation. If you are not agreeable, then now you go
to court. So that is one condition precedent.
Therefore, plaintiffs complaint failed to state a cause of action.
Is there EXCEPTION to the rule that the determination of whether
the complaint failed to state a cause of action is limited to the
complaint?
YES. There is. The court may go beyond the allegations of the
complaint if there is evidence which has been presented to the court by
stipulation of the parties or in the course of the hearings related to the
case. That is before the court resolves the motion to dismiss or the
affirmative defenses in the answers. There are facts that have come to
the knowledge of the court. (alangan naman magpabungol-bungol si
court) So that would be the exception.
But GENERAL RULE: when the motion to dismiss or in our case today
because of the amended rules, when the affirmative defense is failure
to state a cause of action, the court will only have to look in the 4 corners
of the complaint.
So the exception also happened in this case of: Santiago v. Pioneers
Savings and Loan Bank.
Santiago v. Pioneers Savings and Loan Bank
FACTS:
There was a motion to dismiss on the ground that the complaint
failed to state a cause of action. But simultaneously with that motion
to dismiss there was also a hearing on the preliminary injunction
because the plaintiff applied for this writ. So it was still plaintiff who
asked for this injunction and then the court set the hearing for the
application of the writ. During the hearing on that application there
were facts which were brought up to the attention of the court.
Which also affected the issue of whether or not the complaint failed
to state a cause of action.
ISSUE:
Whether or not the complaint failed to state a cause of action.
RULING:
The SC said, after the hearing, here comes the defendant moving
to dismiss the entire case because there is no cause of action based
on the evidence presented during the hearing for preliminary
injunction.
The SC said the it is true that the determination of the sufficiency of
a cause of action must be limited to the facts of the complaint.
However, where a hearing was held and documentary evidence
was presented, not on the motion to dismiss, but on the issue
of granting or denying an application for a preliminary
injunction, a motion to dismiss for insufficiency of cause of
action will be granted if documentary evidence admitted by a
stipulation disclosed facts sufficient to defeat the claim which
authorizes the court to go beyond the complaint. So, this was
the exception.
The Court went beyond the statements made in the complaint in
determining whether or not the complaint failed to state a cause of
action.
So, now let’s go to another affirmative defense.
2.
–
Failure
to
undergo
barangay
conciliation
(we will discuss the katarungang pambarangay rules)
So here there are cases that must undergo brgy. Conciliation.
And you need a certification to file action before you can go to
court. That would apply if the parties are residents of the same
cities or municipalities although there are certain exceptions.
3.
And under Article 151 of the Family Code in cases or suits
involving members of the family –
It must be alleged in the complaint (although this is just
general averment) that earnest efforts towards a compromise
was made. Between husbands and wife; parents and children;
ascendants and descendants; brother and sisters whether full
or half.
It should be shown that before you instituted the action
(because we have this policy of preserving the family as a
social institution; we have to protect). So as much as possible
we must make sure that we would not allow litigations among
members of the family unless there was earnest efforts
towards a compromise.
What do you mean by a compromise? A compromise is a
contract whereby the parties by making reciprocal
concessions avoid litigation or put an end to one already
commenced. So here in compromise you actually meet
halfway. Is it possible for you to arrive at a settlement.
So, going back to the case of brgy conciliation as a condition precedent,
in the case of: Aquino v. Aure.
Aquino v. Aure
What is the effect if the complaint fails to show that brgy conciliation
was not resorted to?
It will be known that no brgy conciliation was resorted to if there is no
attachment of a certification to file action.
For example, there really was no brgy conciliation and you filed a
case and the other party was also not able to notice this. So the case
continued until they eventually realized that there was no brgy
conciliation. Now they filed a motion to dismiss on the ground lack of
jurisdiction.
ISSUE:
Whether non-recourse to brgy conciliation process is a jurisdictional
flaw that warrants the dismissal of the ejectment suit?
RULING:
The SC said that it is true that the precise technical effect of failure
to comply with the requirement of Section 412 of the LGC or Brgy
Conciliation is much the same effect produced by non-exhaustion of
administrative remedies. The complaint becomes tainted with the
vice of prematurity and the controversy there alleged is not ripe for
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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judicial determination. The complaint becomes vulnerable to a
motion to dismiss.
However, the conciliation is NOT a jurisdictional requirement.
Non-compliance therewith cannot affect the jurisdiction of the
court which has otherwise acquired jurisdiction over the subject
matter or over the person of the defendant.
So, here what happens if the defendant fails to invoke that in
his answer?
It will be deemed waived.
So, here where the defendant, as in this case, failed to object to such
exercise of jurisdiction in their answer even during the entire
proceedings, it will not prevent the court from exercising its power of
adjudication over the parties.
Here, they are deemed to have waived this pursuant to Rule 9
Section 1.
RULE 9 EFFECT OF FAILURE TO PLEAD
Section 1.Defenses and objections not pleaded.
— Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived.
xxx
(f) Disputes involving parties who actually reside in barangays of
different cities or municipalities, except where such barangay units
adjoin each other and the parties thereto agree to submit their
differences to amicable settlement by an appropriate lupon;
(g) Such other classes of disputes which the President may
determine in the interest of justice or upon the recommendation of
the Secretary of Justice.
The court in which non-criminal cases not falling within the authority
of the lupon under this Code are filed may, at any time before trial,
motu proprio refer the case to the lupon concerned for amicable
settlement.
So ang timanan nato dira ang exception. Di na siya muagig barngay.
(c) Offenses punishable by imprisonment exceeding one (1) year
or a fine exceeding Five thousand pesos (P5,000.00);
DISCUSSION: So kini for criminal cases
(d) Offenses where there is no private offended party;
The SC also said that because it can be waived the court does not
have the power to motu proprio dimiss the case. The court has
to wait the answer citing this affirmative defense before the
court can dismiss.
DISCUSSION: when will this happen? Pag civil action di siya pwede kay
naa dyud na siya’y kalaban sa pikas. This will apply in criminal cases
like gambling, illegal possession of firearms, dangerous drugs or
treason. Kana sila wala na sila’y private offended party. It is the State
which is offended so di na siya kinahanglan muagi ug barangay
conciliation.
Because if this is not interposed as a defense then it is considered
waived. It is not one of those grounds which are mentioned for the
dismissal by the trial court on its own initiative.
e) Where the dispute involves real properties located in different
cities or municipalities unless the parties thereto agree to submit
their differences to amicable settlement by an appropriate lupon;
Now let us go to KATARUNGANG PAMBARANGAY.
KATARUNGANG PAMBARANGAY
(Sections 399-422, Chapter 7 Title One, Book III of RA 7160)
We will just mention this in relation to civil actions.
What is important here you have to know what are those cases which
are subject to barangay conciliation; what are those cases subject for
amicable settlement.
Again number 1, before you look at these cases, you have to know
whether the parties reside in the same city or municipality. Kay kung dili,
dili mag apply ang barangay conciliation.
Actually the law says:
DISCUSSION: So lahi ang location. Bisan pa silingan mo pero ang
inyong giawayan na property naa sa pikas lugar unless the parties
thereto agree to submit their difference to amicable settlement by an
appropriate Lupon.
(f) Disputes involving parties who actually reside in barangays of
different cities or municipalities, except where such barangay units
adjoin each other and the parties thereto agree to submit their
differences to amicable settlement by an appropriate lupon;
DISCUSSION: So kung isa lang mo ka city although different barangays
covered mo. Pero kung lahi na dyud ang city or municipality sa imong
kalaban di na mo covered sa barangay conciliation except where such
barangay units adjoin each other and the parties thereto agree so kung
nagsabot lang sila, kung okay lang sa ilaha to submit to the appropriate
Lupon. Pwede nimo sila mapugos in this case.
SECTION 408. Subject Matter for Amicable Settlement;
Exception Thereto. – The Lupon of each barangay shall have
authority to bring together the parties actually residing in the same
city or municipality for amicable settlement of all disputes except:
The court in which non-criminal cases not falling within the
authority of the Lupon under this Code are filed may, at any time
before trial, motu proprio refer case to the Lupon concerned for
amicable settlement.
(a) Where one party is the government, or any subdivision or
instrumentality thereof;
DISCUSSION: So pwede pud ang court bisag not falling under the
authority of the Lupon, the court can still refer to the Lupon for amicable
settlement.
(b) Where one party is a public officer or employee, and the dispute
relates to the performance of his official functions;
(c) Offenses punishable by imprisonment exceeding one (1) year or
a fine exceeding Five thousand pesos (P5,000.00);
(d) Offenses where there is no private offended party;
(e) Where the dispute involves real properties located in different
cities or municipalities unless the parties thereto agree to submit their
differences to amicable settlement by an appropriate lupon;
Where’s the venue?
SECTION 409. Venue. – (a) Disputes between persons actually
residing in the same barangay shall be brought for amicable
settlement before the lupon of said barangay.
(b) Those involving actual residents of different barangays within the
same city or municipality shall be brought in the barangay where the
respondent or any of the respondents actually resides, at the election
of the complainant.
(c) All disputes involving real property or any interest therein shall be
brought in the barangay where the real property or the larger portion
thereof is situated.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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(d) Those arising at the workplace where the contending parties are
employed or at the institution where such parties are enrolled for
study, shall be brought in the barangay where such workplace or
institution is located.
Objections to venue shall be raised in the mediation proceedings
before the punong barangay; otherwise, the same shall be deemed
waived. Any legal question which may confront the punong barangay
in resolving objections to venue herein referred to may be submitted
to the Secretary of Justice or his duly designated representative,
whose ruling thereon shall be binding.
(a) Disputes between persons actually residing in the same
barangay shall be brought for amicable settlement before the lupon
of said barangay.
DISCUSSION: Kung isa lang sila na barangay then wala’y problema
didto lang sa ilang barangay.
(b) Those involving actual residents of different barangays within
the same city or municipality shall be brought in the barangay
where the respondent or any of the respondents actually resides,
at the election of the complainant.
DISCUSSION: Ang election or option sa complainant maggawas lang
na siya kung daghan respondents of different barangays. Magpili siya
didto kung asa siya na barangay pero wala siya’y option to choose his
barangay.
(c) All disputes involving real property or any interest therein shall
be brought in the barangay where the real property or the larger
portion thereof is situated.
DISCUSSION: Diba pwede man ng naa kay property sa boundary so
duha ka barangay. Pwede ka magfile sa either. Pero pwede where or
the larger portion thereof is situated.
(d) Those arising at the workplace where the contending parties are
employed or at the institution where such parties are enrolled for
study, shall be brought in the barangay where such workplace or
institution is located.
DISUCSSION: So kung mgaway mo diri unya lahi-lahi mog barangay,
ang uban kay taga-Kidapawan ug taga-Panabo, pero nagaway mo diri.
So didto mo magkita sa barangay covered sa Jacinto street.
Objections to venue shall be raised in the mediation proceedings
before the punong barangay; otherwise, the same shall be deemed
waived.
DISCUSSION: So muingon ka na dili man ni proper ang venue kay
barangay man ni sa complainant. So pwede ka mag file sa barangay
where the complainant resides kay kung di magreklamo si respondent,
okay na toh siya. Pero kung magreklamo balhin gyud mo sa brangay
where the respondent resides.
Any legal question which may confront the punong barangay in
resolving objections to venue herein referred to may be submitted
to the Secretary of Justice or his duly designated representative,
whose ruling thereon shall be binding.
respondent(s), with notice to the complainant(s) for them and their
witnesses to appear before him for a mediation of their conflicting
interests. If he fails in his mediation effort within fifteen (15) days from
the first meeting of the parties before him, he shall forthwith set a
date for the constitution of the pangkat in accordance with the
provisions of this Chapter.
(c) Suspension of prescriptive period of offenses – While the dispute
is under mediation, conciliation, or arbitration, the prescriptive
periods for offenses and cause of action under existing laws shall be
interrupted upon filing of the complaint with the punong barangay.
The prescriptive periods shall resume upon receipt by the
complainant of the complaint or the certificate of repudiation or of the
certification to file action issued by the lupon or pangkat secretary:
Provided, however, That such interruption shall not exceed sixty (60)
days from the filing of the complaint with the punong barangay.
(d) Issuance of summons; hearing; grounds for disqualification – The
pangkat shall convene not later than three (3) days from its
constitution, on the day and hour set by the lupon chairman, to hear
both parties and their witnesses, simplify issues, and explore all
possibilities for amicable settlement. For this purpose, the pangkat
may issue summons for the personal appearance of parties and
witnesses before it. In the event that a party moves to disqualify any
member of the pangkat by reason of relationship, bias, interest, or
any other similar grounds discovered after the constitution of the
pangkat, the matter shall be resolved by the affirmative vote of the
majority of the pangkat whose decision shall be final. Should
disqualification be decided upon, the resulting vacancy shall be filled
as herein provided for.
e) Period to arrive at a settlement – The pangkat shall arrive at a
settlement or resolution of the dispute within fifteen (15) days from
the day it convenes in accordance with this section. This period shall,
at the discretion of the pangkat, be extendible for another period
which shall not exceed fifteen (15) days, except in clearly meritorious
cases.
(a) Who may initiate proceeding – Upon payment of the appropriate
filing fee, any individual who has a cause of action against another
individual involving any matter within the authority of the lupon
may complain, orally or in writing, to the lupon chairman of the
barangay.
DISCUSSION: So naa’y filing fee. How do you complain? Orally or in
writing. Dili mag apply tong atong mga complaints na atong gi-discuss.
Pwede ka magsulat or pwede ka magstorya didto uny i-record na nila sa
ilahang minutes.
(b) Mediation by lupon chairman – Upon receipt of the complaint,
the lupon chairman shall, within the next working day, summon the
respondent(s), with notice to the complainant(s) for them and their
witnesses to appear before him for a mediation of their conflicting
interests. If he fails in his mediation effort within fifteen (15) days
from the first meeting of the parties before him, he shall forthwith
set a date for the constitution of the pangkat in accordance with
the provisions of this Chapter.
DISCUSSION: Take note pila ka number of days ang mediation. If the
Lupon Chairman fails in his mediation effort within fifteen (15) days from
the first meeting of the parties before him, he shall forthwith set a date
for the constitution of the pangkat.
DISCUSSION: So sila mag rule as to venue.
What is the procedure under the Barangay Conciliation process?
SECTION 410. Procedure for Amicable Settlement. – (a) Who
may initiate proceeding – Upon payment of the appropriate filing fee,
any individual who has a cause of action against another individual
involving any matter within the authority of the lupon may complain,
orally or in writing, to the lupon chairman of the barangay.
(b) Mediation by lupon chairman – Upon receipt of the complaint, the
lupon chairman shall, within the next working day, summon the
What happens to the prescriptive period samtang niagi pa ka’g
barangay? The law says:
(c) Suspension of prescriptive period of offenses – While the
dispute is under mediation, conciliation, or arbitration, the
prescriptive periods for offenses and cause of action under
existing laws shall be interrupted upon filing of the complaint with
the punong barangay. The prescriptive periods shall resume upon
receipt by the complainant of the complaint or the certificate of
repudiation or of the certification to file action issued by the lupon
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
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Civil Procedure Second Exam
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or pangkat secretary: Provided, however, That such interruption
shall not exceed sixty (60) days from the filing of the complaint with
the punong barangay.
DISCUSSION: While the dispute is under mediation, conciliation, or
arbitration, the prescriptive periods for offenses and cause of action
under existing laws shall be interrupted but it is not forever. For as long
as naa sa barangay, interrupted. Asa magsugod ang interruption? From
the filing of the complain with the Punong Barangay. When will it
resume? Upon receipt of the complainant of the complain or the
certification of repudiation or the certification to file action issued by the
Lupon or Pagnkat Secretary. And take note that the interruption shall not
exceed 60 days from the filing of the complaint with the Punong
Barangay. So dapat paspasan na siya.
Just take note of the issuance of summons.
Take note that the barangay cannot decide. It will not say who is right or
wrong. Ang mahitabo lang sa barangay is settlement kay naa pay
possibility of settlement. Kung dili ma-settle ang parties then it is the duty
of the barangay to issue a Certification to file action.
SECTION 411. Form of Settlement. – All amicable settlements shall
be in writing, in a language or dialect known to the parties, signed by
them, and attested to by the lupon chairman or the pangkat
chairman, as the case may be. When the parties to the dispute do
not use the same language or dialect, the settlement shall be written
in the language known to them.
Now the form of settlement kung naa shall be in writing in a language or
dialect known to the parties, signed by them, and attested to by the lupon
chairman or the pangkat chairman.
SECTION 412. Conciliation. – (a) Pre-condition to Filing of
Complaint in Court. – No complaint, petition, action, or proceeding
involving any matter within the authority of the lupon shall be filed or
instituted directly in court or any other government office for
adjudication, unless there has been a confrontation between the
parties before the lupon chairman or the pangkat, and that no
conciliation or settlement has been reached as certified by the lupon
secretary or pangkat secretary as attested to by the lupon or pangkat
chairman or unless the settlement has been repudiated by the parties
thereto.
(b) Where Parties May Go Directly to Court. – The parties may go
directly to court in the following instances:
(1) Where the accused is under detention;
(2) Where a person has otherwise been deprived of personal liberty
calling for habeas corpus proceedings;
(3) Where actions are coupled with provisional remedies such as
preliminary injunction, attachment, delivery of personal property and
support pendente lite; and
(4) Where the action may otherwise be barred by the statute of
limitations.
(c) Conciliation Among Members of Indigenous Cultural
Communities. – The customs and traditions of indigenous cultural
communities shall be applied in settling disputes between members
of the cultural communities.a
(a) Pre-condition to Filing of Complaint in Court. – No complaint,
petition, action, or proceeding involving any matter within the
authority of the lupon shall be filed or instituted directly in court or
any other government office for adjudication, unless there has
been a confrontation between the parties before the lupon
chairman or the pangkat, and that no conciliation or settlement has
been reached as certified by the lupon secretary or pangkat
secretary as attested to by the lupon or pangkat chairman or unless
the settlement has been repudiated by the parties thereto.
DISCUSSION: Ang primero ana sa Lupon. Kung dili ma-settle iconstitute ang Pangkat. So dili na siya derecho na Certification to File
An Action. Muagi pa na’g pangkat unless di gihapon ma-settle then
Certification to File Action.
What are the instances that there’s no need to go to the process of
Barangay conciliation and the parties may go directly to the court?
(b) Where Parties May Go Directly to Court. – The parties may go
directly to court in the following instances:
(1) Where the accused is under detention;
DISCUSSION: Di na ka muagi ug barangay because of the urgency of
the situation.
(2) Where a person has otherwise been deprived of personal liberty
calling for habeas corpus proceedings;
DISCUSSION: Again urgency ang consideration.
(3) Where actions are coupled with provisional remedies such as
preliminary injunction, attachment, delivery of personal property
and support pendente lite; and
DISCUSSION: Kung naa’y provisional remedies. Again because the
concept or premise here is naay urgency. Now this is a very ___
procedure. Why? Daghan kayo mga tao or mga clients na dili gusto
muagai ug barangay kay samok kaayo kay barangay sa respondent
basig madunggaban ang complainant didto siyempre kaila niya ng mga
Chairman. Mangutana na sila unsa’y paagi na dili na lang muagi ug
barangay. Magbutang ug Prayer for Preliminary Injunction pero dili lang
magexpect na i-grant na siya kay wala’y reason. Gibutang lang na siya
kay para di muagi’g barangay. I’m not saying na butan na ninyo ha but
in reality mao na siya ang ginagamit para maka skip ka sa barangay
conciliation process. Althoug wala gud merit ang imong injunction.
Gibutang lang nimo didto para dili ka muagi’g barangay.
(4) Where the action may otherwise be barred by the statute of
limitations.
DISCUSSION: So gamay na lang ang period kay delikado naman pag
muagi kag barangay basig mag prescribe na ang imong right of action.
(c) Conciliation Among Members of Indigenous Cultural
Communities. – The customs and traditions of indigenous cultural
communities shall be applied in settling disputes between
members of the cultural communities.
DISCUSSION: SO ilaha ang atong gamiton na way of settling their
dispute.
SECTION 413. Arbitration. – (a) The parties may, at any stage of
the proceedings, agree in writing that they shall abide by the
arbitration award of the lupon chairman or the pangkat. Such
agreement to arbitrate may be repudiated within five (5) days from
the date thereof for the same grounds and in accordance with the
procedure hereinafter prescribed. The arbitration award shall be
made after the lapse of the period for repudiation and within ten (10)
days thereafter.
(b) The arbitration award shall be in writing in a language or dialect
known to the parties. When the parties to the dispute do not use the
same language or dialect, the award shall be written in the language
or dialect known to them.
SECTION 414. Proceedings Open to the Public; Exception. – All
proceedings for settlement shall be public and informal: Provided,
however, That the lupon chairman or the pangkat chairman, as the
case may be, may motu proprio or upon request of a party, exclude
the public from the proceedings in the interest of privacy, decency,
or public morals.
SECTION 415. Appearance of Parties in Person. – In all
katarungang pambarangay proceedings, the parties must appear in
person without the assistance of counsel or representative, except
for minors and incompetents who may be assisted by their next-ofkin who are not lawyers.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
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So bawal ang lawyer sa barangay. So do not commit a mistake na
magenter ka ug appearance didto sa barangay kay that would be very
embarrassing. So dili ta pwede sa barangay except kung ikaw mismo
ang complainant. For minors and incompetents, dapat ang ilang nextof-kin must not be lawyers except kung lawyers ilang parents wa nay
mabuhat ana.
How about mag-SPA? Kay daghan kog mga ingana na clients kay dili
sila gusto muadto sa barangay. Technicaly speaking, the law says must
appear in person. Although naay barangays na okay lang sa ilaha pero
naa’y mga barangays na dili gyud musugot. Dapat dyud paaatuon ang
parties.
SECTION 416. Effect of Amicable Settlement and Arbitration
Award. – The amicable settlement and arbitration award shall have
the force and effect of a final judgment of a court upon the expiration
of ten (10) days from the date thereof, unless repudiation of the
settlement has been made or a petition to nullify the award has been
filed before the proper city or municipal court.
However, this provision shall not apply to court cases settled by the
lupon under the last paragraph of Section 408 of this Code, in which
case the compromise settlement agreed upon by the parties before
the lupon chairman or the pangkat chairman shall be submitted to
the court and upon approval thereof, have the force and effect of a
judgment of said court.
SECTION 417. Execution. – The amicable settlement or arbitration
award may be enforced by execution by the lupon within six (6)
months from the date of the settlement. After the lapse of such time,
the settlement may be enforced by action in the appropriate city or
municipal court.
Actually kanang enforcement sa award sa barangay is already covered
by the Small Claims Act.
So pwede ba ninyo i-repudiate ang inyong sabot?
SECTION 418. Repudiation. – Any party to the dispute may, within
ten (10) days from the date of the settlement, repudiate the same by
filing with the lupon chairman a statement to that effect sworn to
before him, where the consent is vitiated by fraud, violence, or
intimidation. Such repudiation shall be sufficient basis for the
issuance of the certification for filing a complaint as hereinabove
provided.
Unsay reason sa repudiatiom? Consent is vitiated by fraud, violence, or
intimidation. So kung naay repudiation, what happens? Wala nay
settlement. So that will be the basis of the barangay to issue a
certification to file an action.
SECTION 419. Transmittal of Settlement and Arbitration Award
to the Court. – The secretary of the lupon shall transmit the
settlement or the arbitration award to the appropriate city or municipal
court within five (5) days from the date of the award or from the lapse
of the ten-day period repudiating the settlement and shall furnish
copies thereof to each of the parties to the settlement and the lupon
chairman.
SECTION 420. Power to Administer Oaths. – The punong
barangay, as chairman of the lupong tagapamayapa, and the
members of the pangkat are hereby authorized to administer oaths
in connection with any matter relating to all proceedings in the
implementation of the katarungang pambarangay.
SECTION 421. Administration; Rules and Regulations. – The city
or municipal mayor, as the case may be, shall see to the efficient and
effective implementation and administration of the katarungang
pambarangay. The Secretary of Justice shall promulgate the rules
and regulations necessary to implement this Chapter.
SECTION 422. Appropriations. – Such amount as may be
necessary for the effective implementation of the katarungang
pambarangay shall be provided for in the annual budget of the city or
municipality concerned.
Now we go to Administrative Circular 14-93 in relation to the Lupon.
ADMINISTRATIVE CIRCULAR NO. 14-93 July 15, 1993
This is a directive to all ALL REGIONAL TRIAL COURTS,
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS AND
MUNICIPAL CIRCUIT TRIAL COURTS.
I. All disputes are subject to Barangay conciliation pursuant to the
Revised Katarungang Pambarangay Law (formerly P.D. 1508,
repealed and now replaced by Secs. 399-422, Chapter VII, Title I,
Book III, and Sec. 515, Title I, Book IV, R.A. 7160, otherwise known
as the Local Government Code of 1991), and prior recourse thereto
is a pre-condition before filing a complaint in court or any government
offices, except in the following disputes:
1. Where one party is the government, or any subdivision or
instrumentality thereof;
2. Where one party is a public officer or employee, and the dispute
relates to the performance of his official functions;
3. Where the dispute involves real properties located in different
cities and municipalities, unless the parties thereto agree to submit
their difference to amicable settlement by an appropriate Lupon;
4. Any complaint by or against corporations, partnership or juridical
entities, since only individuals shall be parties to Barangay
conciliation proceedings either as complainants or respondents (Sec.
1, Rule VI, Katarungang Pambarangay Rules);
5. Disputes involving parties who actually reside in barangays of
different cities or municipalities, except where such barangay units
adjoin each other and the parties thereto agree to submit their
differences to amicable settlement by an appropriate Lupon;
6. Offenses for which the law prescribes a maximum penalty of
imprisonment exceeding one (1) year or a fine over five thousand
pesos (P5,000.00);
7. Offenses where there is no private offended party;
8. Disputes where urgent legal action is necessary to prevent
injustice from being committed or further continued, specifically the
following:
a. Criminal cases where accused is under police custody or detention
(see Sec. 412 (b) (1), Revised Katarungang Pambarangay Law);
b. Petitions for habeas corpus by a person illegally deprived of his
rightful custody over another or a person illegally deprived or on
acting in his behalf;
c. Actions coupled with provisional remedies such as preliminary
injunction, attachment, delivery of personal property and support
during the pendency of the action; and
d. Actions which may be barred by the Statute of Limitations.
9. Any class of disputes which the President may determine in the
interest of justice or upon the recommendation of the Secretary of
Justice;
10. Where the dispute arises from the Comprehensive Agrarian
Reform Law (CARL) (Sec. 46 & 47, R.A. 6657);
11. Labor disputes or controversies arising from employer-employee
relations (Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor
Code, as amended, which grants original and exclusive jurisdiction
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
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Civil Procedure Second Exam
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over conciliation and mediation of disputes, grievances or problems
to certain offices of the Department of Labor and Employment);
12. Actions to annul judgment upon a compromise which may be filed
directly in court (See Sanchez vs. Tupaz, 158 SCRA 459).
DISCUSSION: Pwede pud dili i-dismiss para pud di kaayo ulaw na
derecho nimo gi-file sa court na dapat muagi pa diay kag barangay. The
court may suspend the proceedings upon petition of any party and refer
the case motu proprio to the appropriate barangay authority.
That is the process of Barangay Conciliation.
Again the Supreme Court reiterated that all disputes must undergo
Barangay Conciliation and prior recourse is a pre-condition before the
filing of the complaint except in the following disputes. Some of them are
already covered by the Local Government Code.
4. Any complaint by or against corporations, partnership or
juridical entities, since only individuals shall be parties to
Barangay conciliation proceedings either as complainants or
respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules);
DISCUSSION: They are not covered by the Barangay Conciliation
proceeding. Why? Persons dapat ang magadto sa barangay so kung
corporation di na siya covered sa barangay conciliation.
How about Estate ang imong kalaban? Di na siya covered because it is
a juridical entity.
10. Where the dispute arises from the Comprehensive Agrarian
Reform Law (CARL) (Sec. 46 & 47, R.A. 6657);
DISCUSSION: Agrarian disputes are not required to go through
Barangay Conciliation. Lahi na sa ilaha- sa Barangay Agrarian Reform
Council (BARC). Barngay gihapon but not under the LGC.
11. Labor disputes or controversies arising from employeremployee relations (Montoya vs. Escayo, et al., 171 SCRA 442; Art.
226, Labor Code, as amended, which grants original and exclusive
jurisdiction over conciliation and mediation of disputes,
grievances or problems to certain offices of the Department of
Labor and Employment);
DISCUSSION: Illegal Dismissal. Underpayment of Wages. Illegal Strike.
Unfair Labor Practices. These are not covered by the Barangay
Conciliation. Illegal Dismissal- Labor Arbiter or NLRC. Money ClaimsDOLE.
12. Actions to annul judgment upon a compromise which may be
filed directly in court (See Sanchez vs. Tupaz, 158 SCRA 459).
IV. A case filed in court without compliance with prior Barangay
conciliation which is a pre-condition for formal adjudication (Sec. 412
[a] of the Revised Katarungang Pambarangay Law) may be
dismissed upon motion of defendant/s, not for lack of jurisdiction of
the court but for failure to state a cause of action or prematurity
(Royales vs. IAC, 127 SCRA 470; Gonzales vs. CA, 151 SCRA 289),
or the court may suspend proceedings upon petition of any party
under Sec. 1, Rule 21 of the Rules of Court; and refer the case motu
proprio to the appropriate Barangay authority, applying by analogy
Sec. 408 [g], 2nd par., of the Revised Katarungang Pambarangay
Law which reads as follows:
The court in which non-criminal cases not falling within the authority
of the Lupon under this Code are filed may at any time before trial,
motu proprio refer case to the Lupon concerned for amicable
settlement.
A case filed in court without compliance with prior Barangay
conciliation which is a pre-condition for formal adjudication may
be dismissed upon motion of defendant/s, not for lack of
jurisdiction of the court but for failure to state a cause of action or
prematurity
DISCUSSION: So it can be failure to state a cause of action or
prematurity – failure to comply with condition precedent. That will be the
proper ground. Again it is not jurisdictional.
Or the court may suspend proceedings upon petition of any party
under Sec. 1, Rule 21 of the Rules of Court; and refer the case motu
proprio to the appropriate Barangay authority, applying by analogy
Sec. 408 [g], 2nd par., of the Revised Katarungang Pambarangay
Law
Now let’s go to another condition precedent which we already
mentioned.
Section 12 (a) (5) That a condition precedent for filing the claim
has not been complied with
Even if most of them are members of the family but there is a stranger
included in the suit, the rule is, that requirement to state that earnest
efforts towards a compromise agreement is not applicable because
there’s already a third party included.
Under the last paragraph also of Article 151 of the Family Code, it says
Article 151. xxx. This rule shall not apply to cases which may not be
the subject of compromise under the Civil Code.
So, if the case itself is one of the cases mentioned in Article 2035 of the
CC where the law does not allow a compromise then there’s no
requirement to state in the complaint that earnest efforts were made.
What are these cases?
Article 2035. No compromise upon the following questions shall be
valid:
1) The Civil Status of persons;
2) The validity of a marriage or a legal separation;
3) Any ground for legal separation;
4) Future Support;
5) The jurisdiction of courts;
6) Future Legitime.
1. The Civil Status of persons
You cannot subject that to compromise because the law which says
unsa ilang civil status.
2. The validity of a marriage or a legal separation
In cases involving annulment of marriage and declaration of nullity of
marriage, if there is any appearance that there is a collusion between
the parties, the Court may dismiss the case.
Na-encounter na nako na sya na case, “attorney di gyud magpirma ang
pikas gusto nagyud nako ma-annul” Ha? Mao na ang impression sa
uban na need magpirma ang pikas. When in fact di na sila pwede mag
sabot na magpa-annul kay collusion na sya.
Now what happens under the new rules of annulment of marriage and
declaration of nullity.
Number 1, daghan napud cases na ifile nimu dire kay ng judge dire kay
relax lang kay sya or before sa Cotabato, dali ra kaayo ang annulment
kay for sale sya wherein naa ra ka certain amount to pay for as long as
the parties are sure nga sila duha walay mu-oppose, then 15 days lang
mugawas na ang annulmet, gina-ante-date lang nila ang filing of the
action. Then sila napud bahala mag process sa LCR. Mao na sa petition
resident of Cotabato City.
So, nakabalo si Supreme Court, that’s why tanan na Cotabato cases for
annulment or declaration of nullity gihalungkat nila. Ang issue nila
usually kay psychological incapacity under Article 36, So wala na na ang
sa Cotabato. Kay wala naman sa Cotabato, iba naman karun, magpa
convert into muslim tapos magpa- divorce under Sharia Law. Kana siya
i-annotate man na nila sa PSA nga marriage contract. Kung wala
nagreklamo okay lang na siya. Pero, I tell you, kung nagpa kasal mo
civil, and then later on magpa-muslim ka kay magpa divorce ka or
magpakasal ka ug isa pa, that’s bigamy. It doesn’t mean na nagpamuslim ka pwede ka na magpakasal ug daghan because again, the first
marriage is a civil wedding which is covered ka under the Civil Code.
Even if you apply for divorce, dili na niya maresolve and civil wedding
under the sharia law, married lang gihapon ka. So, it’s a misconception
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
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Civil Procedure Second Exam
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nap ag magpa-muslim ka pwede naka magpakasal ug daghan. So, i
think nabantayan napud na sa supreme court.
That’s why now, kung magfile kag declaration of nullity or annulment of
marriage, dapt mag-attach jud ka sa imong petition ug certification from
the Barangay nga you are a resident of that Barangay at least 6 months
prior to the institution of the petition. Mag-attach pud ka ug bills nimu,
like water and electricity bills sa imong name to prove na taga diha gyud
ka. And kung naa kay property, titulo or contract of lease.
And then, for example, magfile kag petition and dili mutubag ang pikas,
magorder ang court to the fiscal to investigate kung naa bay collusion
between the parties. Because again, the validity of a marriage cannot
be the subject of compromise. Di pud ka madeclare in default kay kung
pwede edi dali ra kayo magpa-annul magfile ra ka na in-default si
defendant tapos annulled na.
3.
Any ground for legal separation
4. Future Support
Past support, pwede na sya kay it already happened. Naa naka proper
judgment kung i-waive nako or dili ang support.
5.
scandalous, impertinent, irrelevant matters which were mentioned.
So he filed a case, against the defendant saying that those were
libelous matters.
Now, if you remember your criminal law, kanang mga pleadings in
court, usually, privileged communication so dili ka pwede macharge
for libel because that’s also part of your defense. But here, gifile-an
niyag separate case si defendant on the ground na malicious, willful
ang mga statements sa answer.
Mao ni ang answer: that he specifically deny x x x and for the plaintiff
to do such acts with a twisted color is indicative of a twisted mind.
And then paragraph 5: that they specifically deny x x x it is only a
dirty minded mind of the plaintiff that can concoct an equally dirty
thinking.
And then paragraph 7: that they specifically deny the accusations of
par. 10 and 11 of the complaint as purely false, a devise of
wickedness as earmarks of plainiff’s traits x x x not have been unjust.
Malicious and with conspiracy, to think and to allude the way plaintiff
did is again characteristic of plaintiff’s wicked, twisted and
ignominious mentality.
The jurisdiction of courts
6. Future legitime
When we say future, habang buhi pa imong parents, di mo pwede
magcompromise na kani ra akong kuhaon, kana ra imuha, ka wala ka
kabalo na you will survive your parents nga ang legitime presupposes
na you are an heir and you will become heir kung namatay na imong
parents pero kung namatay ka una, syempre dili ka heir.
So again, in all these cases, even the case involves members of the
same family, it is not required that you should allege na earnest efforts
towards a possible compromise had been made because it is not
allowed. Or, even involving members of the same family pero nay
stranger na naapil, again, it’s not required.
Section 13. Striking out of pleading or matter contained therein.
— Upon motion made by a party before responding to a pleading
or, if no responsive pleading is permitted by these Rules, upon
motion made by a party within twenty (20) calendar days after
the service of the pleading upon him or her, or upon the court's
own initiative at any time, the court may order any pleading to
be stricken out or that any sham or false, redundant, immaterial,
impertinent, or scandalous matter be stricken out therefrom.
So, here, there is a pleading, the pleading itself or any matter contained
in the pleading or there are matters that are sham or false, redundant,
immaterial, impertinent, or scandalous, the court may order that those
matters be stricken out.
So, upon motion made by a party before responding to a pleading, so if
it is the complaint which contains these matters, so you can file a motion,
to strike out the complaint or some matters in the complaint. Or if there’s
no responsive pleading is permitted upon motion made by a party within
20 calendar days, upon the court’s own initiative, or upon motion, may
order.
So what if it’s the reply, well, the reply is no longer permitted under the
new rules, except, when there is an actionable document alleged in the
answer.So kung nagreply ka, what if nay scandalous matter, or diba
pwede man ka magrejoinder, siya najud tong last na pleading allowed,
and there is something there which is scandalous, sham, or false, and
you have 20 days to file the motion.
And then paragraph 8: that they deny the braggadocio in par. 12 of
the complaint x x x for he cannot be a dignified pater familias, as
plaintiff claim he is because he had been hailed to the police station,
the fiscal’s office and the courts many times for crimes which do not
bespeak of a dignified person, much less a ‘dignified pater familia’
which is indeed a big joke.
And lastly, paragraph 9: that they specifically deny x x x instead of
capitalizing on it for vindictiveness and in procuring money from his
neighbors under a disguise of a court action, since such results are
very ordinary in the course of human relations.
ISSUE: W/N the defendant can be charged for libel considering that
pleadings are supposed to be privileged communication.
RULING: Well-entrenched in the Philippine and American
jurisprudence is the rule that for reasons of public policy, utterances
made in the course of juridical proceedings, including all kinds of
pleadings, petitions and motions are absolutely privileged when
pertinent and relevant to the subject under inquiry, however false or
malicious such utterances may be.
However, the Court defined the restriction to the privilege enjoyed by
pleadings thus:
"The pleadings should contain but the plain and concise statements
of the material facts and not the evidence by which they are to be
proved. . .. if the pleader goes beyond the requirements of the statute
and alleges an irrelevant matter which is libelous, he loses his
privilege."
Meaning, bisag unsa pa to ka scandalous pero related sya s aimong
defense, material siya in proving your defense as such, they are
considered to be privileged and not libelous.
The requirement of materiality and relevancy is imposed so that the
protection given to individuals in the interest of an efficient
administration of justice may not be abused as a cloak from beneath
which private malice may be gratified
GUTIERREZ VS ABILA ET. AL.
Now, how do you know kung material siya? The Sc said, we examine.
Will the defendant’s stand even without those statements? The SC
said, they can stand. A most liberal view of the questioned
statements casts a shadow as to their relevancy and materiality to
the issue involved in Civil Case whether the said suit for damages
instituted by the plaintiff was meritorious or not.
FACTS: there was a complaint filed. Actually, complaint and then
answer. So, in the answer, according to the plaintiff, there were
Repeated litigations between the same parties might indeed be
tiresome, even nettlesome, but this alone is not sufficient cause for
What are these matters that can be stricken out in the pleading?
Sham or false, redundant, immaterial, impertinent, or scandalous
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
65
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
calling another "dirty-minded," and of a "limited mind," "twisted mind"
or to characterize his act as a "device of wickedness as earmarks of
plaintiff’s traits.”
The aforementioned personal opinions of the defendants, expressed
in vituperative and intemperate language, are palpably devoid of any
relation whatever to the subject of inquiry and have no place in a
pleading. Meaning, even without the statements, the defendant can
prove his defense. While indeed lawyers should be allowed some
latitude of remark or comment in the furtherance of the causes, they
uphold such remarks or comments should not trench beyond the
bounds of relevancy and propriety. Besides, the language vehicle
does not run short of expressions which are emphatic but respectful,
convincing but not derogatory, illuminating but not offensive.
So again, as I said, you can insult your opponent in a nice way and
do not use this kind of words. So, these can be stricken out but also
be careful because this can be sued for damages as these are not
entirely privileged communications.
March 4, 2020 – ESCOBIDO, VILLAVICENCIO, MADUM
RULE 9
EFFECT OF FAILURE TO PLEAD
Section 1. Defenses and objections not pleaded. — Defenses
and objections not pleaded either in a motion to dismiss or in
the answer are deemed waived. However, when it appears from
the pleadings or the evidence on record that the court has no
jurisdiction over the subject matter, that there is another action
pending between the same parties for the same cause, or that
the action is barred by a prior judgment or by statute of
limitations, the court shall dismiss the claim. (1)
Rule 9 Section 1 is what we call the Omnibus Motion Rule, that if you
have objections and you have defenses --- before, you have an option:
you can either set them forth in your motion to dismiss so that is before
you file the Answer, you ought to file a Motion to Dismiss or you file an
Answer and you interpose these affirmative defenses. But again, based
on our discussion under Rule 15, a Motion to Dismiss is no longer
allowed except for these grounds:
1. Lack of jurisdiction over the subject matter
2. Litis Pendentia
3. The action is barred by prior judgment (Res Judicata)
4. Statute of Limitations or Prescription
Now as to the other affirmative defenses that we discussed, you cannot
raise them in a Motion to Dismiss. You can only raise them in the
Answer.
Regarding the four mentioned, you have an option: either you file a
motion to dismiss on these grounds or you can file an Answer and also
interpose this as your affirmative defense.
Even if these objections in Section 1 are not pleaded in the Answer or in
the Motion to Dismiss, they are not deemed waived.
What happens?
Actually, you can raise them any time, during the trial, before the
decision; you are not barred from raising these matters even on appeal.
When it appears from the pleadings or the evidence on record, the court
shall dismiss the case.
What is the rationale why you have to set forth your defenses either
in the Answer or in the Motion to Dismiss?
That is to prevent surprises. Sa sugod pa lang dapat makabalo na ang
parties kung unsa ang standing: mao ni sya ang complaint, mao ni sya
ang allegations in the complaint, mao ni sya ang answer and then mao
ni sya iyahang defenses. So you cannot say na ‘okay, naa paman
answer’ so giuna sa nimu tong uban na grounds, ‘kini sya last nani sya,
I’ll just give this, and this later na’ and in the middle of the trial nagpresent
ka karon ug Acknowledgment Receipt to prove payment.
Are you allowed to do that?
No more. Because, when you filed your Answer you should have already
included the defense and again pursuant to the Omnibus Motion Rule,
those which are not interposed are already deemed waived even if they
are material. You should have raised them unless you have these four
grounds, you can always raise them at any time.
Let’s discuss what are the specific objections which are not deemed
waived:
1. Lack of Jurisdiction over the subject matter
Jurisdiction over the subject matter is determined by the allegations in
the complaint, although again, the law says which court has jurisdiction
over this particular case. But now when you file a complaint, how do we
prove na kining complaint na imung gi file naa jud ni sya sa jurisdiction
sa RTC? That is determined based on the allegations of the complaint.
Because even if property involved is real property in your complaint,
pero imung complaint diay based on the allegations, they do not involve
any title to or possession, or ownership of real property kundi specific
performance lang and annulment of contract. So, here based on your
allegations, we will determine which court has jurisdiction, is it with RTC
because it is incapable of pecuniary estimation based on your
allegations? Or is it with the MTC because the property involved is only
15k? So it is determined upon the allegations.
Wha tif the Answer says---for example, ang imuhang complaint is for
recovery of possession of a real property, and then ang assessed value
in your allegation is 50k, and then niingon ang defendant na actually the
value of the property is only 10k, so it should be with the MTC. Asa man
karon ang jurisdiction?
Again, based on the allegations of the complaint whether or not the
plaintiff is entitled to the allegations of the complaint. Didto lang jud tha
mag base regardless of what the defendant says. Because if you do that
we will now subject the determination of jurisdiction on the allegations of
the defendant as discussed in the case of Lourdes Eristincol(?) vs CA.
2. When your defense is that the court has no jurisdiction over the
subject matter of the complaint. Actually, in all affirmative defenses,
there is a hypothetical admission. You are saying that, assuming, for the
sake of argument that the allegations in the complaint are correct, but
still, the case must be dismissed because the court has no jurisdiction
over the subject matter. And again, based on our discussion, the
hypothetical admission is only limited to those matters relating to your
affirmative defense. If it is about the lack of jurisdiction over the subject
matter, then you are only hypothetically admitting all those allegations in
relation to the subject matter. Like, you say, affirmative defense, based
on the allegations in the complaint, the amount of the assessed value of
the property is 15k so jurisdiction is with the MTC. So you are admitting
na 15k ang assessed value, so okay sige, di nako mureklamo kay mali
akong gikaso , unya pag abot sa MTC muingon na lack of jurisdiction,
why? Kay 50k ang value sa property. No, dili na na sya. You’re
hypothetically admitting all the allegations in relation to your affirmative
defense. Everything must be decided based on the face of the
complaint.
3. Where the court has already obtained and exercised jurisdiction over
a controversy its jurisdiction to proceed to the final determination of the
cause is not affected by new legislation placing such jurisdiction in
another tribunal. As long as at the time of the filing of the complaint, the
court had jurisdiction over the subject matter, regardless of any
amendment or any new law passed wherein there is a new jurisdictional
requirement or the court is now bereft of jurisdiction, pero as long as the
law itself does not say all cases pending before the RTC as of the
effectivity of this Act shall be transferred to the MTC, as long as waly
giingon na ingon ana, jurisdiction is retained by the Court --Continuity of
jurisdiction.
4. Jurisdiction is also not lost by waiver or estoppel. Whenever it appears
that the court has no jurisdiction over the subject matter, the action shall
be dismissed. This can be interposed at any time even on execution
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
66
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
stage. Once the court has no jurisdiction over the subject matter,
everything that happens in the court is a nullity.
In relation to that, you cannot enter into any agreement regarding
jurisdiction. That is different from venue where you can actually agree
on the venue. I cannot be subject to silence.
Recovery of Possession of real property valued at P 50,000 filed before
the RTC. Nya wala nireklamo ang pikas (party)
Is that cured already (the lack of jurisdiction)?
General Rule: Jurisdiction cannot be conferred by the silence of the
parties, nor by waiver. It cannot also be the subject of estoppel; by
laches.
Exception: JURISDICTION BY ESTOPPEL
This happened in the very exceptional case of Tijam vs Sibonghanoy
(GR L-21450, April 15, 1968)
TIJAM v SIBONGHANOY
GR L-21450, April 15, 1968
Facts: Tijam filed a case for recovery of sum of money. The claim was
for 1,000 and was filed at the Court of First Instance (equivalent to RTC).
The defendant filed a counterbond. There was a judgment in favor of the
plaintiff and there was a writ of execution, so final na ang decision. The
defendants moved for a writ of execution against the surety and then the
surety moved to quash the writ but was denied. The surety appealed to
the CA without raising the issue of jurisdiction. Later on, when the CA
decided against the surety, that was the time when the surety raised the
issue of jurisdiction.
(The jurisdiction of MTC that time was up to 2,000 so dapat sa MTC siya
gi file.)
Held: Surety is now barred by laches from invoking this plea at this late
hour for the purpose of annulling everything done heretofore in the case
with its active participation. It has been 15 years before the surety filed
his Motion to Dismiss raising the question of lack of jurisdiction.
A party may be estopped or barred from raising a question in different
ways and for different reasons. Thus, we speak of estoppel in pais
(conduct), or estoppel by deed or by record (if there is a document), and
of estoppel by laches (effect of delay).
It has been held that a party cannot invoke the jurisdiction of a court to
sure affirmative relief against his opponent and, after obtaining or failing
to obtain such relief, repudiate or question that same jurisdiction…the
question whether the court had jurisdiction either of the subject-matter
of the action or of the parties was not important in such cases because
the party is barred from such conduct not because the judgment or order
of the court is valid and conclusive as an adjudication, but for the reason
that such a practice cannot be tolerated — obviously for reasons of
public policy.
Here, after voluntarily submitting a cause and encountering an adverse
decision on the merits, it is too late for the loser to question the
jurisdiction or power of the court. This was termed by the Supreme Court
as the 'undesirable practice' of a party submitting his case for decision
and then accepting the judgment, only if favorable, but attacking it for
lack of jurisdiction when the decision is adverse.
Here, judgment was rendered in favor of the plaintiff. So, meaning
napildi si defendant. So, the plaintiff filed a Motion for Execution. There
was a Writ of Execution that was issued. This means that the decision
is already final an executory. In execution cases, execution pending
appeal is not usually allowed.
So, here, there was a final and executory decision. Defendants moved
that the writ of execution be implemented against the surety, which was
granted.
Surety moved to quash the writ but was denied.
The Surety did not raise the issue on jurisdiction when they appealed
the denial of their motion to quash before the Court of Appeals. Ang
appeal sa surety diri dili ni sya sa main case, kato ra ning denial sa iyang
motion to quash the writ of execution because the case has already
become final and executory.
So, CA dismissed the surety’s appeal. And that was when the surety
filed a motion to dismiss on the ground of lack of jurisdiction. It happened
15 years after the case was originally filed.
Here, the Supreme Court there was jurisdiction by laches. However, you
must be very careful because not every situation that there is some sort
of silence or waiver, etc. we can invoke the case of Tijam vs
Sibonghanoy. In the case of Calimlim vs Ramirez (G.R. No. L-34362
November 19, 1982) Supreme Court said that:
The jurisdiction of a court over the subject-matter of the action is a matter
of law and may not be conferred by consent or agreement of the parties.
The lack of jurisdiction of a court may be raised at any stage of the
proceedings, even on appeal. This doctrine has been qualified by recent
pronouncements which stemmed principally from the ruling in the cited
case of Sibonghanoy. It is to be regretted, however, that the holding in
said case had been applied to situations which were obviously not
contemplated therein. The exceptional circumstance involved
in Sibonghanoy which justified the departure from the accepted concept
of non-waivability of objection to jurisdiction has been ignored and,
instead a blanket doctrine had been repeatedly upheld that rendered the
supposed ruling in Sibonghanoy not as the exception, but rather the
general rule, virtually overthrowing altogether the time-honored principle
that the issue of jurisdiction is not lost by waiver or by estoppel.
The Supreme Court is saying that Tijam vs Sibonghanoy case is just an
exception. The circumstances of the case must be similar to
circumstances in the Tijam case before you can invoke jurisdiction by
laches.
ADLAWAN v JOAQUINO
GR 203152, June 20, 2016
Facts: There was a petition for reconstitution of title before the RTC.
Here were several complaints filed - there was an original complaint and
there was an amended complaint. In the amended complaint, the
defendants were impleaded. The RTC rendered an adverse decision.
The defendant filed an appeal before the CA questioning the jurisdiction
of the RTC.
The second case was for annulment of judgment. Let's say RTC Branch
14 rendered a decision on the reconstitution of title and another case
was filed before the RTC Branch 17 for the annulment of that decision
of the RTC Branch 14. (We discussed this in the doctrine of judicial
stability na if you are courts of coequal jurisdiction, you cannot annul or
declare as null and void the decision of a co-equal branch.) Here, a
petition for annulment of judgment of the RTC should be filed before the
CA.
Nag appeal ang Adlawans claiming that walay jurisdiction ang RTC
Branch 17. But, katong appeal nila sa CA, it took 20 years for that to be
raised. So here, the other party cited that in the case of Tijam v.
Sibonghanoy, there is already estoppel by laches - you failed to invoke
that ground for so long. You are deemed to have abandoned it.
Held: (The SC clarified that Tijam v Sibonghanoy is really just an
exceptional case.) There is no rule in procedural law as basic as the
principle that jurisdiction is conferred by law, and any judgment, order,
or resolution issued without it is void and cannot be given any effect. The
singular exception to the basic rule mentioned, which the CA applied to
this case, operates on the principle of estoppel by laches - whereby a
party may be barred by laches from invoking the lack of jurisdiction at a
late hour for the purpose of annulling everything done in the case with
the active participation of said party invoking the plea. The SC said that
yes, we apply this in the case of Tijam v Sibonghanoy, but this is not
applicable to your case.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
67
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
In Sibonghanoy, the defense of lack of jurisdiction was raised for the first
time in a motion to dismiss filed by a party-surety almost fifteen (15)
years later and at a stage when the proceedings had already been
elevated to the CA. Prior to this, the party-surety invoked the jurisdictions
of both the trial and appellate courts in order to obtain affirmative relief,
and even submitted the case for final adjudication on the merits. It was
only after the CA had rendered an adverse decision that the party-surety
raised the question of jurisdiction.
We emphasize that our ruling in Sibonghanoy establishes an exception
which is to be applied only under extraordinary circumstances or to
those cases similar to its factual situation. The rule to be followed is that
the lack of a court's jurisdiction is a non-waivable defense that a party
can raise at any stage of the proceedings in a case, even on appeal; the
doctrine of estoppel, being the exception to such non-waivable defense,
must be applied with great care and the equity must be strong in its favor.
So the Court of Appeal ruled that the reconstitution was null and void
and that the petitioners are estopped from questioning the jurisdiction of
Branch 14, for the first on time on appeal after losing the case in the
RTC 20 years later and declared that Adlawans were not buyers in good
faith.
ISSUES:
1. Whether or not RTC Branch 17 has a jurisdiction over a
court of same level? NO
*Kay ang gipanannul nila was the decision of RTC Branch 14, but they
filed the petition for the annulment of judgment with the RTC, same but
raffled to branch 17.
2.
Whether or not the petitioners (the Adlawans) were
estopped in questioning the jurisdiction of RTC Branch
17? NO
HELD:
1.
Whether or not RTC Branch 17 has a jurisdiction over a
court of same level?
RTC Branch 17 has no jurisdiction over the petition for annulment of
judgment involving the decision of Branch 14. Under BP 129, it is the
Court of Appeal which has jurisdiction to annul judgement of the
Regional Trial Court and applying the Doctrine of Non-interference or
judicial stability, courts of co-equal should not interfere with the exercise
of jurisdiction by another court of the same level.
You cannot annul or impugn the decision render by the RTC. If you wish
to question the decision of the RTC you go to a higher court not the
same level. So it was not within the jurisdiction of the RTC Branch 17.
2.
Whether or not the petitioners (the Adlawans) were
estopped in questioning the jurisdiction of RTC Branch
17?
The Supreme court said, NO. There is no rule in procedural law as
basic as the principle that jurisdiction is conferred by law, and any
judgment, order, or resolution issued without it is void and cannot
be given any effect. This rule applies even if the issue on
jurisdiction was raised for the first time on appeal or even after final
judgment.
apply the exception on estoppel by laches in this case because they are
not similar.
First, in this particular case the petitioners raised the lack of jurisdiction
of the RTC Branch 17 in the appeal with the CA. So although wala nya
gi raise sa RTC but gi raise on appeal nya sa CA. At that time wala pa
naka render ng decision ang CA. Unlike in the case of Sibonghanoy na
nakarender na ng decision ang CA. in fact the decision of his appeal
was final and executory.
Second, the unfairness and inequity that the application of
estoppel seeks to avoid is not present in this case. The present
case does not involve a situation where a party who, after obtaining
affirmative relief from the court, later on turned around to assail the
jurisdiction of the same court that granted such relief by reason of
an unfavorable judgment. So the petitioner and her husband did
not obtain affirmative relief from the very same court whose
jurisdiction they are assailing, as they never won their case.
Also here the petitioners were not privy to the case before the RTC
Branch 14 . So here, they could not raise any defenses in the RTC.
Didto lang sila na implead when the respondents filed a supplemental
complaint to annul the judgment. The spouses at any stage of the
case, never asked for affirmative relief unlike in Sibonghanoy.
We emphasize that our ruling in Sibonghanoy establishes an
exception which is to be applied only under extraordinary
circumstances or to those cases similar to its factual situation. The
rule to be followed is that the lack of a court's jurisdiction is a nonwaivable defense that a party can raise at any stage of the
proceedings in a case, even on appeal; the doctrine of estoppel,
being the exception to such non-waivable defense, must be applied
with great care and the equity must be strong in its favor.
In this case of Atwell v. Concepcion Progressive Association Inc.
How do we know kung pwede or possible ba mag apply ang principle of
jurisdiction by estoppel. So this was the clarification of the Supreme
Court in this particular case:
EUSTACIO ATWELL V.
ASSOCIATION INC.
GR NO. G.R. No. 169370
CONCEPCION
PROGRESSIVE
In Lozon v. NLRC,18 this Court came up with a clear rule on when
jurisdiction by estoppel applies and when it does not:
The operation of estoppel on the question of jurisdiction
seemingly depends on whether the lower court actually had
jurisdiction or not. If it had no jurisdiction, but the case was tried
and decided upon the theory that it had jurisdiction, the parties
are not barred, on appeal, from assailing such jurisdiction, for
the same "must exist as a matter of law, and may not be
conferred by the consent of the parties or by estoppel."
However, if the lower court had jurisdiction, and the case was
heard and decided upon a given theory, such, for instance, as
that the court had no jurisdiction, the party who induced it to
adopt such theory will not be permitted, on appeal, to assume
an inconsistent position - that the lower court had jurisdiction....
(emphasis supplied)
In this particular case, the SC compared it with the case of Sibonghanoy.
In Sibonghanoy the defense of lack of jurisdiction was raised for the first
time in a Motion to dismiss filed by the party-surety almost 15 years after
the complaint was filed. It pass at a stage when the proceedings has
already elevated to the CA. Prior to this, the party-surety invoked the
jurisdiction of both the trial and appellate courts in order to obtain
affirmative relief and even submitted the case for final adjudication on
the merits.
In short, a party who induced the theory that the court has no jurisdiction
even though in reality it has jurisdiction cannot on appeal change this
theory and say that the court now has jurisdiction.
Katong si surety, when it filed the Motion to Quash the Writ of Execution
before the RTC, wala niya gi question ang jurisdiction. So by Moving to
Quash, nangayo sya ug relief from the RTC. And then nag appeal pa
jud sya sa CA. Never again he the raise the issue of jurisdiction. So that
is why, the surety was estopped, because it was only after the CA denied
the appeal, diha pa sya nag question ng jurisdiction after seeking relief
from both the RTC and the CA. So there is no sufficient justification to
Kung sa beginning wla jud syay jurisdiction, dili na sya ma-cure by
laches kasi wa man syay jurisdiction. Pero kung ang court my jurisdiction
and niingon ang isa ka party na walay jurisdiction and then later on na
prove nya na dili sya maayo na defense para sa ako ha, changed na
pud sya ug theory. Ingon na pud sya na naay jurisdiction. So here, you
are not permitted to do that. So he could not change his theory and say
that the court has jurisdiction.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
68
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
The same with the case of FEGUEROA V. PEOPLE OF THE
PHILIPPINES. Again reiterating the case of Sibonghanoy.
FEGUEROA V. PEOPLE OF THE PHILIPPINES.
G.R. NO. 147406 : July 14, 2008
HELD:
Clearly, the factual settings attendant in Sibonghanoy are not present
in the case at bar. Petitioner Atty. Regalado, after the receipt of the
Court of Appeals resolution finding her guilty of contempt, promptly
filed a Motion for Reconsideration assailing the said court's
jurisdiction based on procedural infirmity in initiating the action. Her
compliance with the appellate court's directive to show cause why
she should not be cited for contempt and filing a single piece of
pleading to that effect could not be considered as an active
participation in the judicial proceedings so as to take the case within
the milieu of Sibonghanoy. Rather, it is the natural fear to disobey the
mandate of the court that could lead to dire consequences that
impelled her to comply.
The general rule should, however, be, as it has always been, that
the issue of jurisdiction may be raised at any stage of the
proceedings, even on appeal, and is not lost by waiver or by
estoppel. Estoppel by laches, to bar a litigant from asserting the
court's absence or lack of jurisdiction, only supervenes in
exceptional cases similar to the factual milieu of Tijam v.
Sibonghanoy. Indeed, the fact that a person attempts to invoke
unauthorized jurisdiction of a court does not estop him from
thereafter challenging its jurisdiction over the subject matter,
since such jurisdiction must arise by law and not by mere
consent of the parties. This is especially true where the person
seeking to invoke unauthorized jurisdiction of the court does
not thereby secure any advantage or the adverse party does not
suffer any harm.
Applying the said doctrine to the instant case, the petitioner is in no
way estopped by laches in assailing the jurisdiction of the RTC,
considering that he raised the lack thereof in his appeal before the
appellate court. At that time, no considerable period had yet elapsed
for laches to attach. True, delay alone, though unreasonable, will not
sustain the defense of "estoppel by laches" unless it further appears
that the party, knowing his rights, has not sought to enforce them until
the condition of the party pleading laches has in good faith become
so changed that he cannot be restored to his former state, if the rights
be then enforced, due to loss of evidence, change of title, intervention
of equities, and other causes. In applying the principle of estoppel by
laches in the exceptional case of Sibonghanoy, the Court therein
considered the patent and revolting inequity and unfairness of having
the judgment creditors go up their Calvary once more after more or
less 15 years.37 The same, however, does not obtain in the instant
case.
We note at this point that estoppel, being in the nature of a
forfeiture, is not favored by law. It is to be applied rarely only
from necessity, and only in extraordinary circumstances. The
doctrine must be applied with great care and the equity must be
strong in its favor. When misapplied, the doctrine of estoppel
may be a most effective weapon for the accomplishment of
injustice. Moreover, a judgment rendered without jurisdiction
over the subject matter is void. Hence, the Revised Rules of
Court provides for remedies in attacking judgments rendered by
courts or tribunals that have no jurisdiction over the concerned
cases. No laches will even attach when the judgment is null and
void for want of jurisdiction.
March 9, 2020 – MAGLINTE, DAHILIG
Review on Lack of Jurisdiction over the Subject Matter:
Gen. Rule: It is not subject to agreement, consent, silence, waiver and
estoppel.
But we discussed before, only in very exceptional cases, like it should
be the same factual circumstances, as in the case of Tijam v.
Sibonghanoy, for you to be able to invoke jurisdiction by estoppel.
LITIS PENDENTIA
Litis pendentia is one of those defenses which can be raised ANYTIME.
So it can be raised even after you file your Answer.
Litis
pendentia
as
defined
in
the
case
of
SUBIC
TELECOMMUNICATIONS
COMPANY
v.
SUBIC
BAY
METROPOLITAN AUTHORITY:
“It is a Latin term meaning ‘a pending suit’. It is also referred to as lis
pendens and auter action pendant. While it is normally connected with
the control which the court has over a property involved in a suit during
the continuance proceedings, it is interposed more as a ground for the
dismissal of a civil action pending in court.”
Simply stated, if there are 2 or more cases instituted based on the same
cause of action, there is litis pendentia. You cannot institute 2 or more
cases arising from the same cause of action.
“Litis pendentia as a ground for the dismissal of a civil action
contemplates a situation wherein another action is pending between the
same parties for the same cause of action, such that the second action
becomes unnecessary and vexatious.”
So the reason here is we should not put out opponent under
unnecessary vexation. It would already be tantamount to harassment if
you file 2 or more cases but you only have one cause of action. You will
be wasting your time, the time of the court and that of your opponent.
Rationale: “Litis pendentia is predicated on the principle that a party
should not be allowed to vex another more than once regarding the
same subject matter and for the same cause of action.
Another reason: Public policy. If you file 2 cases based on the same
cause of action, there might be conflicting decisions between one branch
and another co-equal branch.
(still from the Subic case) “…in order that possible conflicting judgments
may be avoided for the sake of the stability of the rights and status of
persons, and also to avoid the costs and expenses incident to numerous
suits.
TESTS TO DETERMINE WHETHER THERE IS LITIS PENDENTIA
(taken from Subic case)
There are a lot of tests, but these are the most used ones:
1. Whether the same evidence would support and sustain both the first
and second causes of action
2. Whether the defenses in one case may be used to substantiate the
complaint in the other
This is also related to the doctrine of Res Judicata. Although when you
say res judicata, this is already decided with finality. In litis pendentia,
both of the actions are pending.
Another example of litis pendentia:
Compulsory counterclaim:
A filed a case against B. B filed his Answer, wherein he interposed a
counterclaim saying that the suit which A filed against him as intended
merely to harass him. That is a compulsory counterclaim – related to the
complaint.
Can you institute a separate action? Can you say that you will just file a
counterclaim later on? – NO, you are not allowed to do that. You are
barred from instituting a separate action on the ground of litis pendentia.
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If you institute another action, the evidence to be used in the first case
will also be the evidence to be used in the second case, because you
have to prove that the complaint of the plaintiff is really intended to
harass you. Where do you do that, diba in the first case? So you cannot
do that again in another case.
ELEMENTS OF LITIS PENDENTIA (Subic case)
1. Identity of parties, or at least such parties who represent the
same interests in both actions;
A filed a case for recovery of possession against B. Later on, A died. His
heirs filed another case for recovery of possession against B. Would that
be considered as litis pendentia?
The heirs of A were not parties to the first case. But they represent the
SAME INTEREST in both actions. So both of the cases are actually the
same.
It’s not really necessary that there be identity of parties, as long as they
represent the same interest, like transferee, assignee, vendee…
Possible case involving vendee: first case involves the vendor, then he
sold the thing to the vendee, so the second case would involve the
vendee. They actually represent the same interest.
2. Identity of rights asserted and relief prayed for, the relief being
founded on the same facts
So if in the first case the court said that the wife is not entitled to support,
and it becomes final, it can be used as a bar to file a second case.
What if the court said that the wife is entitled to support? What will be
the effect? It will also affect the second case, because if in the first case
she is entitled to support and becomes res judicata, it now become
conclusive. There is what we call conclusiveness of judgment, in so far
as that issue is concerned.
Question asked by a student: What if the support is a provisional
remedy?
Atty. LCYE: It’s different, because when you say provisional remedy,
pendente lite, meaning it does not really consider yet the merits of the
case. One requisite of res judicata is that there must be judgment on the
merits of the case.
TAMBUNTING v. ONG (Aug. 11, 1950)
FACTS:
FIRST CASE
The mortgagor-debtor filed
an action for annulment of
mortgage.
SECOND CASE
The mortagee-creditor filed
an action to foreclose the
mortgage.
Mortagor-debtor filed a
Motion to Dismiss the
second case on the ground
of litis pendentia.
Example: if they ask for the same relief, i.e. recovery of possession
ISSUE: WON litis pendentia exists? – NO.
3. Identity with respect to the 2 preceding particulars in the 2 cases
is such that any judgment that may be rendered in the pending
case, regardless of which party is successful, would amount to res
judicata in the other case.
RULING: The third requisite provides that the identity in the 2 cases
should be such that the judgment that may be rendered in the pending
case would, regardless of which party is successful, amount to res
judicata in the other.
They are really identical in the sense that if one of them is decided, the
other one would be barred, regardless as to who is successful.
ANALYSIS: If the court annuls the mortgage in the first case,
it means that the mortgagee-creditor cannot foreclose
because he would no longer have basis for the exercise of
such right in the second case.
OLAYVAR v. OLAYVAR (98 Phil 52, 1955)
FACTS:
FIRST CASE
Husband filed an action for
legal separation. The wife
filed a counterclaim for
support.
SECOND CASE
Wife filed an independent
case for support.
ISSUE: WON litis pendentia exists – YES
RULING: A counterclaim partakes of the nature of a complaint and/or a
cause of action against the plantiff in a case. To interpose a cause of
action in a counterclaim and again invoke it in a complaint against the
same person or party would be splitting a cause of action not sanctioned
by the Rules.
ANALYSIS: If the court dismisses the counterclaim in the first
case, the issue of support in the second case is also defeated.
Thus, the adjudication of the issue in the first case, whether in
favor of the plaintiff or the defendant, is enough to fully
dispose of the similar issue in the second case.
Atty. LCYE’s discussion: Would there be litis pendentia? Would the
judgment in either case, regardless of who wins, constitute res judicata
as to the other?
For example, if the court will dismiss the counterclaim for support in the
first case, what will be the effect in so far as the second case is
concerned? Would that be a bar? YES, because they are founded on
the same cause of action – SUPPORT.
Atty. LCYE’s discussion: If the debtor-mortgagor in the first case wins
– if the court says that the mortgage is annulled, then it would affect the
second case. Consequently, the creditor-mortgagee’s action to
foreclose can no longer prosper.
But if the debtor-mortgagor in the first case does not win the case, then
the second case may prosper. If the court dismisses the annulment for
mortgage case, this means that the mortgage is valid and the second
case for foreclosure is proper. So the first case will only be res
judicata if the debtor-mortgagor wins. When you say litis
pendentia, regardless of the result in either case, there will be res
judicata. So here, there is no litis pendentia.
“There is no identity in all respects because the presence of res judicata
would vary according to which party would win the case.”
CONSEQUENCES OF LITIS PENDENTIA
1. The court may take note, upon proper motion by the defendant, or
motu proprio, dismiss the action;
So meaning, even without a motion, if it becomes apparent to the court,
based on the records and evidence presented that there is litis
pendentia, the court can dismiss the case.
2. When there is litis pendentia, a party in effect violates the rule on
splitting a cause of action, to wit:
Rule 2, Sec. 4 Splitting a single cause of action; effect of. — If two
or more suits are instituted on the basis of the same cause of action, the
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filing of one or a judgment upon the merits in any one is available as a
ground for the dismissal of the others
Although in Rule 2, Sec. 4, it does not say which case will be dismissed
– is it the first case or the second case? It just says “dismissal of the
others”.
3. Under the ground of litis pendentia, at least one of the identical cases
must be dismissed pursuant to Rule 2, Sec. 4 as well because the filing
of one or a judgment upon the merits in any one is available as a ground
for the dismissal of the others.
4. The act of filing multiple suits may constitute forum-shopping. In this
case, among all other sanctions previously discussed, all such actions
so filed may be summarily dismissed.
Memorandum of Agreement, while the second case was a complaint for
sums of money arising from obligations under a promissory note and a
chattel mortgage, and damages. The cases may seem different but they
are actually the same. The court dismissed the second case because
the claims for sums of money therein arose from the Memorandum of
Agreement sued upon in the first case. The second case should yield to
the first case.
AGO TIMBER CORP v. RUIZ, GR No. L-23887, offered an insightful
reason after both parties had each pleaded the deficiency of another
action between the same parties for the same cause. The court ruled
that the second action should be dismissed, “not only as a matter of
comity with a coordinate and co-equal court, but also to prevent
confusion that might seriously hinder the administration of justice.
In all these cases, the Supreme Court gave preference to the first action
filed to be retained.
WHICH CASE SHOULD BE DISMISSED?
The PRIORITY-IN-TIME RULE HOWEVER IS NOT ABSOLUTE.
DOTMATRIX TRADING v. LEGASPI
G.R. No. 155622, Oct. 26, 2009
The following considerations predominate in the ascending order of
importance in determining which action should prevail:
(1)
(2)
(3)
the date of filing, with preference generally given to the first
action filed to be retained (Priority in Time Rule);
whether the action sought to be dismissed was filed merely to
preempt the latter action or to anticipate its filing and lay the
basis for its dismissal (Anticipatory Test);
Whether the action is the appropriate vehicle for litigating the
issues between the parties (Appropriate Action Test).
PRIORITY IN TIME RULE
The rule on litis pendentia does not require that the case later in time
should yield the earlier case; what is required is that there be another
pending action, not a PRIOR pending action. Neither is it required that
the party be served with summons before lis pendens can apply; it is the
filing of the action, not the receipt of summons, which determines priority
in date.
MORE APPROPRIATE ACTION TEST AND THE ANTICIPATORY
TEST
In TEODORO v. MIRASOL (1956), the SC deviated from the “priorityin-time rule” and applied the “more appropriate action test” and the
“anticipatory test”.
The MORE APPROPRIATE ACTION TEST considers the real issue
raised by the pleadings and the ultimate objective of the parties; the
more appropriate action id the one where the real issues raised can be
fully and completely settled. The first case was an action for declaratory
relief to fix the period of the lease because there was no clear
declaration of the real period of the lease. Subsequently, the lessor filed
an action for ejectment or unlawful detainer against the lessee. So he
filed a motion to dismiss the first case on the ground that he filed an
action for ejectment against the lessee.
Early on, the Supreme Court applied the principle of QUI PRIOR EST
TEMPORE, POTIOR EST JURE (literally, he who is before in time is
better in right) in dismissing a case on the ground of litis pendentia.
The Supreme Court there noted that the unlawful detainer suit was the
more appropriate action to resolve the real issue between the parties –
whether or not the lessee should be allowed to continue occupying the
land under the terms of the lease contract; this was the subject matter
of the second suit for unlawful detainer, and was also the main or
principal purpose of the suit for declaratory relief (aside from declaration
of rights, there is a remedy of ejectment if indeed there is violation).
This was exemplified in the relatively early case of DEL Atty. LCYE’s
discussion:, G.R. L-20340 where two complaints for reconveyance
and/or recovery of the same parcel of land were filed by substantially the
same parties, with the second case only impleading more partyplaintiffs. The Court held that “parties who base their contention upon
the same right as the litigants in a previous suit are bound by the
judgment in the latter case”. Without expressly saying so in litis
pendentia terms, the Court gave priority to the suit filed earlier.
Atty. LCYE’s discussion: The two cases involve the same issues
because in the first case, the lessee wanted the court to declare what is
the duration of the lease so that he will be justified in continuing in the
lease of the premises. But in the ejectment case filed by the lessor, the
latter contended that the lease contract had already expired so the
lessee had no more right to continue the leased premises. Actually, the
issues here are the same. Definitely there is litis pendentia, but which
action should remain? The two tests were applied here.
In PAMPANGA BUS COMPANY, INC. v. OFEMIA, G.R. No. L-21793,
complaints for damages arising from a collision of a cargo truck and a
bus were separately filed by the owners of the colliding vehicles. Ang
nauna ug file kay ang complaint sa owners of the cargo truck, next is the
complaint of the owner of the bus. The complaint of the owners of the
cargo truck, prevailed and the complaint of the owners of the bus had to
yield, as the cargo owners first filed their complaint. Notably, the first and
prevailing case was far advanced in the development, with an answer
with counterclaim and an answer to the counterclaim having been
already filed, thus fully joining the issues.
In declaratory relief, it merely declares what the contract is about and
the rights and obligations but It cannot order the ejectment. While in an
action for ejectment, the court will also look into the contention of the
parties as to the duration of the lease. Because it is an action for
ejectment, the court can order the relief that the defendant can leave the
lease premises because the contract has already expired. So comparing
the two actions, the second case is the more complete action that will
settle the issues of the parties—duration and unlawful occupation of the
lessee. The second case is the more appropriate action because it will
completely settle the issues between the parties. The SC noted that it
is clear that the lessee only filed the case because he anticipated that
the lessor will file an action for ejectment. So the action for declaratory
relief was just to pre-empt the second action which was later on filed by
the lessor. So in short, the two tests were applied here.
Atty. LCYE’s discussion: So at that time na file ang second case,
naka-file na ug answer with the counter-claim sa first case and they both
involve the same parties, the same causes of action, the same subject
matter, so according to the SC, the second case should yield to the first
case.
In LAMIS ENTERPRISES v. LAGAMON, GR No. L-57250, the first case
was a complaint for specific performance of obligations under a
In the ANTICIPATORY TEST, the bona fide or GOOD FAITH of the
parties is a critical element. If the first suit is filed merely to pre-empt the
later action or to anticipate its filing and lay the basis for its dismissal,
then the first suit should be dismissed. In Teodoro, the SC noted that the
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first action, declaratory relief was filed by the lessee to anticipate the
filing of the second action, unlawful detainer, considering the lessor’s
letter informing the lessee that the lease contract had expired.
The SC also applied the “more appropriate action test” in RAMOS v.
PERALTA, GR No. 45107. In this case, the lessee filed an action for
consignation of lease rentals against the new owner of the property, but
the new owner moved to dismiss the consignation case because of the
quieting of title case he had also filed against the lessee. Finding that
the real issue between the parties involved the right to occupy/possess
the subject property, the SC ordered the dismissal of the consignation
case, noting that the quieting of title case which raised the issue of the
validity and effectivity of the same lease contract.
Atty. LCYE’s discussion: In consignation, the court will just declare
whether the consignation is proper. Whether there is a debt that is due
and demandable and there was a prior tender of payment to the creditor.
It does not resolve the issue of the ownership of the property although it
was also the intention of the lessee in cosigning the amount. But the
quieting of title will really resolve the issue of the right to possess or
occupy of the leased premises. If there is a cloud in the title of the owner
that has to be removed, then the lessee does not have the right to remain
in the premises. There is no reason for him to continue paying the
rentals. Hence, it is the most appropriate action.
In UNIVERSITY PHYSICIAN SERVICES, INC. v. CA, GR No. 100424,
the SC applied both the “more appropriate action test” and “anticipatory
test”. In this case, the new owner of an apartment sent a demand letter
to the lessee to vacate the leased apartment unit. When the lessee filed
an action for damages and injunction against the new owner, the new
owner moved for the dismissal of the action for damages on account of
the action for ejectment it had also filed. The SC noted that the ejectment
suit is the more appropriate action to resolve the issue whether the
lessee had the right to occupy the apartment unit, where the question of
possession is likewise the primary issue for resolution. The SC noted
that after her unjustified refusal to vacate the premises, was ware than
an ejectment case against her was forthcoming; the lessee’s filing of the
complaint for damages and injunction was but a canny and preemptive
maneuver intended to block the new owner’s action for ejectment.
Atty. LCYE’s discussion: The first case was injunction and damages.
Later on, an ejectment suit was filed. The priority in time is not applied
but the anticipatory and appropriate action test. Clearly, the first case
anticipated the filing of the second case. It must be noted that there was
already a demand letter sent by the new owner of the property to the
lessee and when the latter learned about it, he then filed a case for
injunction and damages. It preempted, there was bad faith in the part of
the lessee. He knew that the case is coming. The best defense is
offense, mao nang para sa iyaha. Ejectment suit is the more appropriate
action because possession is the primary issue.
The SC also applied the “more appropriate action test” in PANGANIBAN
v. PILIPINAS SHELL PETROLEUM CORP. (2003), GR No. 131471,
where the lessee filed a petition for declaratory relief on the issue of
renewal of the lease of a gasoline service station, while the lessor filed
an unlawful detainer case against the lessee. On the action of which
action should be dismissed, the SC noted that the interpretation of a
provision in the lease contract as to when the lease would expire is the
key issue that would determine the lessee’s right to possess the gasoline
service station. The primary issue – the physical possession of the
gasoline station – is best settled in the ejectment suit that are directly
confronted the physical possession issue, and not in another case such
as an action for declaratory relief (Same as Teodoro v. Mirasol).
March 11, 2020 – TAN, CARAMUGAN, ADLAWAN
Recap on Tests to Determine Litis Pendentia
So we have already discussed, the three (3) tests:
1. Priority in Time Rule
2. Anticipatory Test
3. More Appropriate Action Test
There is another test: Interest of Justice Test
Interest of Justice Test
As discussed in the cases of Roa Magsaysay vs. Magsaysay and the
Anderson Group vs. CA
The Supreme Court said we have to answer or take into account these
questions
i.
the nature of the controversy,
ii.
the comparative accessibility of the court to the parties, having
in view their peculiar positions and capabilities, and
iii.
other similar factors.
CARMEN ROA-MAGSAYSAY, Petitioner, vs.
CESAR P. MAGSAYSAY and HON. RUFINO T. VERIDIANO II as
Judge of the Court of First Instance of Zambales, Third Judicial
District, Branch I, Respondents.
G.R. No. L-49847 | July 17, 1980
ISSUE: Whether or not the other aspects of the controversy between
the parties should be tried and decided by the Zambales court or that of
Quezon City.
RULING: In any event, since We are not really dealing with jurisdiction
but mainly with venue, considering both courts concerned do have
jurisdiction over the causes of action of the parties herein against each
, other, the better rule in the event of conflict between two courts of
concurrent jurisdiction as in the present case, is to allow the litigation to
be tried and decided by the court which, under the circumstances
obtaining in the controversy, would, in the mind of this Court, be in a
better position to serve the interests of justice, considering the
nature of the controversy, the comparative accessibility of the
court to the parties, having in view their peculiar positions and
capabilities, and other similar factors.
Without in any manner casting doubt as to the capacity of the Court of
First Instance of Zambales to adjudicate properly cases involving
domestic relations, it is easy to see that the Juvenile and Domestic
Relations Court of Quezon City which was created in order to give
special attention to family problems, armed as it is with adequate and
corresponding facilities not available to ordinary courts of first instance,
would be able to attend to the matters here in dispute with a little more
degree of expertise and experience, resulting in better service to the
interests of justice.
A reading of the causes of action alleged by the contending spouses
and a consideration of their nature, cannot but convince Us that, since
anyway, there is an available Domestic Court that can legally take
cognizance of such family issues, it is better that said Domestic Court
be the one chosen to settle the same as the facts and the law may
warrant.
ANDERSONS GROUP INC., Petitioner, vs.
COURT OF APPEALS SPOUSES WILLIE A. DENATE and MYRNA
LO DENATE, Respondents.
G.R. No. 114928 | January 21, 1997
FACTS: Two collection suits were filed in separate venues, one in
Caloocan and one in Davao.
RULING:
CRITERIA IN DETERMINING WHICH CASE SHOULD BE ABATED.It must be emphasized that the rule on litis pendentia does not require
that the latter case should yield to the earlier. The criterion used in
determining which case should be abated is which is the more
appropriate action or which court would be "in a better position to serve
the interests of justice." Applying these criteria, and considering that
both cases involve a sum of money collected in and around Davao, the
Davao Court would be in a better position to hear and try the case, as
the witnesses and evidence would be coming from said area.
OMBUDSMAN vs. ESTANDARTE
G.R. NO. 168670 | April 13, 2007
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FACTS: A complaint was filed against school principal Estandarte and
the Ombudsman dismissed her from service. Estandarte here assails
the jurisdiction over the case it involves public school teachers arguing
that the OMB has no authority. The OMB however contends that it has
concurrent jurisdiction with the DECS as the respondent is still a public
official. Estandarte here continues to assert that DECS could not be
divested of its jurisdiction.
ISSUE: Whether or not Motion to Dismiss should not be granted due to
estoppel.
RULING: In case of concurrent jurisdiction, one with better position is
favored. – In event of conflict between two courts of concurrent
jurisdiction, is to allow the litigation to be tried and decided by the court
which, under the circumstances obtaining in the controversy, would, in
the mind of this Court, be in a better position to serve the interests of
justice, considering the nature of the controversy, the comparative
accessibility of the court to the parties, having in view their peculiar
positions and capabilities, and other similar factors.
Considering the Estandarte is a public school teacher covered by the
Magna Carte for Public School Teacher, DECS is in a better position to
decide the matter. DECS already commenced the proceeding by having
an investigating committee
Read the case of DOTMATRIX TRAINING vs. LEGASPI G.R. No.
155622 (2010), I’ve mentioned this already.
FORUM SHOPPING
When you say litis pendentia is can also be considered as forum
shopping but of course there is a difference between the two. The
elements of forum shopping are the same with litis pendentia.
Definition of Forum Shopping
CHAVEZ vs. COURT OF APPEALS
G.R. NO. 174356 | January 20, 2010
RULING: By forum shopping, a party initiates two or more actions in
separate tribunals, grounded on the same cause, trusting that one or the
other tribunal would favorably dispose of the matter. The elements of
forum shopping are the same as in litis pendentia where the final
judgment in one case will amount to res judicata in the other.
The elements of forum shopping are
(1) identity of parties, or at least such parties as would represent the
same interest in both actions;
(2) identity of rights asserted and relief prayed for, the relief being
founded on the same facts; and
(3) identity of the two preceding particulars such that any judgment
rendered in the other action will, regardless of which party is
successful, amount to res judicata in the action under consideration.
Here, however, the various suits Fidela initiated against Evelina and
Aida involved different causes of action and sought different reliefs. The
present civil action that she filed with the RTC sought to recover
possession of the property based on Evelina and Aida‘s failure to
account for its fruits. The estafa cases she filed with the RTC accused
the two of misappropriating and converting her share in the harvests for
their own benefit.
Her complaint for dispossession under Republic Act 8048 with the
DARAB sought to dispossess the two for allegedly cutting coconut trees
without the prior authority of Fidela or of the Philippine Coconut
Authority.
The above cases are similar only in that they involved the same parties
and Fidela sought the placing of the properties under receivership in all
of them. But receivership is not an action. It is but an auxiliary remedy,
a mere incident of the suit to help achieve its purpose. Consequently, it
cannot be said that the grant of receivership in one case will amount to
res judicata on the merits of the other cases. The grant or denial of this
provisional remedy will still depend on the need for it in the particular
action.
Three Modes of Forum Shopping
1. by filing multiple cases based on the same cause of action
and with the same prayer, the previous case not having been
resolved yet (which makes the cases susceptible to dismissal
based on litis pendentia);
2.
by filing multiple cases based on the same cause of action
and the same prayer, the previous case having been finally
resolved (which makes the subsequent case susceptible to
dismissal based on res judicata); and
3.
by filing multiple cases based on the same cause of action,
but with different prayers (which amounts to splitting of causes
of action, which renders the cases susceptible to dismissal on
the ground of either litis pendentia or res judicata).
VDA. DE KARAAN vs. AGUINALDO
G.R. NO. 182151 | September 21, 2015
RULING: The identity of the parties in the instant case and Civil Case
No. 7345 are established. However, the causes of action and reliefs
sought in the two cases differ substantially.
This instant case is premised on a quasi-delict arising from the
demolition of structures in petitioner’s resort. On the other hand, Civil
Case No. 7345 involves a claim for easement of right of way over
respondent’s property in Bataan based on Article 649 of the Civil Code.
The reliefs sought in the two cases are likewise different. The relief
sought in this instant case is that of damages (actual, exemplary, moral)
while that of Civil Case No. 7345 pertain exclusively to the right-of-way
over the property. Since the causes of action and the reliefs sought in
the two cases are completely different, a decision in either case will not
amount to res judicata in the other.
Litis Pendentia vs. Forum Shopping
LITIS PENDENTIA
FORUM SHOPPING
A generic ground for a motion to A special ground for a motion to
dismiss under Rule 9
dismiss under Rule 7
Only one action will be All actions that were filed can be
Dismissed using the different dismissed summarily
guidelines
Does not constitute contempt
Constitutes contempt
Not a ground for disciplinary Constitutes
a ground for
action against the lawyer
disciplinary action against the
lawyer
Not necessary that the actions The actions are necessarily filed
were filed by one party, it can be by one party and one party only
filed by several parties
Does not constitute contempt
Constitutes contempt of court
RES JUDICATA
Definition
Res judicata refers to the rule that the final judgment or decree on the
merits of the case by a court of competent jurisdiction is conclusive of
the right of the parties and all their privies on all matters determined in
the suit.
Reason of Res Judicata
Two principles why res judicata is frowned upon in filing upon two suits
when one is finally litigated and decided.
1. Public policy and necessity
because it is the interest of the state that there be
an end to litigation;
2. No person ought to be vexed for the same thing twice.
Two Concepts of Res Judicata
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73
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
(1)
Bar by prior judgment
There is bar by prior judgment when, as between
the first case where the judgment was rendered and the
second case which is sought to be barred, there is identity of
parties, subject matter, and causes of action. But where
between the first and second cases, there is identity of parties
but no identity of cause of action, the first judgment is
conclusive in the second case, only as to those matters
actually and directly controverted and determined and not as
to matters merely involved therein.
In Bar by Prior Judgement, everything between the first case
and the second case is identical. Identity of parties, subject
matter, causes of action or issues. So definitely if the first case
already been decided applying also the Doctrine of
Immutability of Judgement or Doctrine of Finality of
Judgement that decision should no longer be disturbed, it
cannot be modified anymore. So, if there is another case filed
involving the same issue, party, subject matter it will be barred
by the first judgement.
(2)
Conclusiveness of judgment
A fact or question which was in issue in a former
suit and there was judicially passed upon and determined by
a court of competent jurisdiction, is conclusively settled by the
judgment therein as far as the parties to that action and
persons in privity with them are concerned and cannot be
again litigated in any future action between such parties or
their privies, in the same court or any other court of concurrent
jurisdiction on either the same or different cause of action,
while the judgment remains unreversed by proper authority.
So in another proceeding you cannot raise anymore the genuiness
of the will because again it is barred by the Doctrine of
Conclusiveness of Judgement even if it involves a different cause of
action or different parties.
[Transcriber’s Note: The case discussed by Ma’am is Atilano
Mercado vs. Santos (66 Phil 216) “the probate of the will by the probate
court having jurisdiction thereof is considered as conclusive to its due
execution and validity, and that the will is genuine and not a forgery.”]
Elements of Res Judicata
1. The former judgment must be Final;
2. The court which rendered it had Jurisdiction over the
subject matter and the parties,
3. The judgment must be on the Merits;
4. There must be between the first and second action the
Identity of parties, subject matter and causes of action.
Discussion on Elements of Res Judicata
1. The former judgment must be Final;
Because if it still on Appeal or on Motion for
Reconsideration it is not yet final. There must be already
an Entry of Judgment.
2. The court which rendered it had Jurisdiction over the
subject matter and the parties,
Because if the court has no jurisdiction over the
subject matter, it can be assailed anytime for such
judgment is a nullity;
3. The judgment must be on the Merits;
The court has really considered the arguments of
the party not merely for technicality.
We will learn later on what is judgement on the merits.
LZK HOLDINGS vs. PLANTERS DEVELOPMENT BANK
G.R. NO. 187973 | January 20, 2014
RULING: In the first case, the court’s final decision ruled on the right of
the mortgagee to be issued a writ of possession even though the
redemption period is still effective. In a subsequent case for the
annulment of the foreclosure sale, the same issue on the writ of
possession was raised.
But the SC says, even if this is a different case, but with respect to the
issue on writ of possession, that was already settled in the first case. As
to that issue there was already conclusiveness of judgment even if the
cases were not similar.
The doctrine of res judicata by conclusiveness of judgment postulates
that "when a right or fact has been judicially tried and determined by a
court of competent jurisdiction, or when an opportunity for such trial has
been given, the judgment of the court, as long as it remains unreversed,
should be conclusive upon the parties and those in privity with them.
Probate of Wills
Another example, in succession. In probate of wills, when the will is
allowed it makes that the will genuine and it is not forged that is one of
the effects if the will is admitted to probate.
Illustration
In one case, the court already allowed the will and the
judgement became final and executory. Therefore, no one
appealed.
Later on there was a criminal case filed (this is a different cause of
action because it is not a civil case nor a special proceeding),
allegedly the will was forged. So the case filed was forgery of will.
The issue here is can the criminal case for forgery proceed?
The Supreme Court said no, because the determination of the
probate court in a probate proceeding is conclusive as to the
genuiness of that last will and testament therefore that issue is
already settled in so far as that aspect is concerned.
4.
For example, plaintiff did not appear during pre-trial and
the court dismissed the case. There is no litigation there,
there is no presentation of evidence. But do we consider
it as judgement on the merits na if there is another case
filed involving the same issue as the one that was
dismissed, will it bar the subsequent case? We will learn
it later on. When we say judgement on merits, the
dismissal is with prejudice.
There must be between the first and second action the
Identity of parties, subject matter and causes of action.
Identitiy of parties does not mean absolute identity
as long as they represent the same interest or there exists
privity between the parties.
Quasi-Judicial Proceedings
Is the concept of Res Judicata applicable in Quasi-Judicial
Proceedings?
Yes! It applies to quasi-judicial acts of public, executive or
administrative acting in their jurisdiction.
Criminal Cases
Illustration
For example, you filed an Affidavit of Complaint at the
Prosecutors Office and then the Fiscal dismissed the case.
Will this bar a re-filing of the action?
No! Because there is no res judicata and this does not amount
to double jeopardy. In criminal cases, there is only double jeopardy
when the accused has already been arraigned. In the fiscal step,
there is no arraignment.
No Res Judicata in Criminal Proceedings
Regardless of the decision of the public prosecutor (technicality nor the
merits), it is not barred by res judicata. There is also no double jeopardy
yet in the resolution of public prosecution as discussed in case of
Trinidad v. Ombudsman because preliminary investigation is not part of
trial.
Prescription or Statute of Limitations
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74
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
We have already discussed this in Rule 8 Section 12.
Now based on these grounds in Rule 9: Lack of jurisdiction over the
subject matter, prescription, litis pendetia, res judicata can the court on
its own motu proprio dismiss the case without any motion from the
defendant?
Yes! That is specifically mentioned in Section 1 of Rule 9.
Unlike the other affirmative defenses that the court cannot dismiss motu
proprio there has to be a motion.
The defending party to which Sec. 3 pertains to both the defendant and
the original complainant in a permissive counterclaim. The rule applies
to both.
The defending party has two options, either to file an answer or to file a
motion to dismiss based on the four (4) grounds in Sec. 1, Rule 9. If you
fail to file your answer or MTD within 30 days from receipt of summons,
you can be declared in default.
What is the effect when one is declared in default?
Why?
Because these other affirmative defenses can be waived.
Meaning, if the defendant did not assail the complaint based on these
affirmative defenses diba based on the Omnibus Motion Rule all
objections and defenses not pleaded in the answer or motion to dismiss
are deemed waived except this four.
Section 2. Compulsory counterclaim, or cross-claim, not set up
barred. — A compulsory counterclaim, or a cross-claim, not set up
shall be barred. (2)
If it is a compulsory counterclaim, the counterclaim is necessarily related
to the claim. That is why you have no option but to file your counterclaim
in the same case it is a compulsory counterclaim. You cannot file a
separate action it will be considered as splitting because your
counterclaim is interrelated with the complaint.
Section 3. Default; Declaration of. — If the defending party fails
to answer within the time allowed therefor, the court shall, upon
motion of the claiming party with notice to the defending party,
and proof of such failure, declare the defending party in default.
Thereupon, the court shall proceed to render judgment granting
the claimant such relief as his or her pleading may warrant,
unless the court in its discretion requires the claimant to submit
evidence. Such reception of evidence may be delegated to the
clerk of court.
(a) Effect of order of default. — A party in default shall be
entitled to notices of subsequent proceedings but shall
not take part in the trial.
(b) Relief from order of default. — A party declared in default
may at any time after notice thereof and before judgment,
file a motion under oath to set aside the order of default
upon proper showing that his or her failure to answer was
due to fraud, accident, mistake or excusable negligence
and that he or she has a meritorious defense. In such case,
the order of default may be set aside on such terms and
conditions as the judge may impose in the interest of
justice.
(c) Effect of partial default. — When a pleading asserting a
claim states a common cause of action against several
defending parties, some of whom answer and the others
fail to do so, the court shall try the case against all upon
the answers thus filed and render judgment upon the
evidence presented.
(d) Extent of relief to be awarded. — A judgment rendered
against a party in default shall neither exceed the amount
or be different in kind from that prayed for nor award
unliquidated damages.
(e) Where no defaults allowed. — If the defending party in an
action for annulment or declaration of nullity of marriage
or for legal separation fails to answer, the court shall order
the Solicitor General or his or her deputized public
prosecutor, to investigate whether or not a collusion
between the parties exists, and if there is no collusion, to
intervene for the State in order to see to it that the
evidence submitted is not fabricated. (3a)
Discussion:
Please take note of this Rule as this is a favourite bar question.
Loses his standing in the case. He cannot participate in the trial. He can
no longer file pleadings or motions and he cannot present evidence in
his behalf. Chances are, he may lose in the case.
Can there be a motu proprio declaration of default? Can the court
on its own declare the defendant in default?
Answer: No. The Rules provide that in order for one to be declared in
default, such must be made upon motion of the claiming party with notice
to the defending party.
There must be a motion from the plaintiff/claimant.
Note: When we say default, we refer only the failure to file a responsive
pleading, particularly an answer.
Suppose the defendant did not appear during the pre-trial or during
the hearings, can he be declared in default?
Answer: No. It is only upon the failure of the defendant to file a
responsive pleading can he be declared in default. This is the only
instance when a defending party may be declared in default.
What would happen if the defendant files his answer but fails to
appear during pre-trial without any justifiable reasons?
The defendant cannot be declared in default but the plaintiff can present
evidence ex parte. Even in the absence of the defendant, the plaintiff
can present evidence.
What is the difference between the scenario where the defendant is
declared in default versus when the plaintiff is allowed to present his
evidence ex parte?
If the defendant is declared in default.
The defendant cannot present evidences or file motions and pleadings
and is entitled only to notices and shall not take part in the trial. The court
may proceed to render judgement or hear evidence ex parte.
If during the defendant files an answer but fails to attend the pre-trial
without justifiable reason.
The court will authorize the plaintiff to present evidence ex parte and can
proceed to render judgement based from the evidence presented.
If the defendant files an answer but fails to attend the trial without
justifiable reason.
The court cannot decide the case immediately. The plaintiff is still
required to present evidence ex parte. Meanwhile, the defendant can
still present evidences during the trial.
The Philippine American Life & General Insurance Company v.
Joseph Anario (G.R. No. 182075, 15 September 2010)
The Supreme Court clarified, the failure to file a responsive pleading
within the reglementary period, and not failure to appear at the hearing,
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75
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
is the sole ground for an order of default, except the failure to appear
at a pre-trial conference wherein the effects of a default on the part of
the defendant are followed, that is, the plaintiff shall be allowed to
present evidence ex parte and a judgment based thereon may be
rendered against defendant.
HELD: The Supreme Court said, failure to furnish the plaintiff a copy
can consider him in default because the Rules provide that the
defendant must furnish a copy of his answer. The answer is defective
in form and deemed as non-filed. It is considered as a mere scrap of
paper.
In relation Rule 13 Section 4
Bar Question:
If the defendant is declared in default for failure to file an answer,
is he deemed to have admitted the allegations in the complaint to
be true and correct?
Section 4. Papers required to be filed and served. — Every judgment,
resolution, order, pleading subsequent to the complaint, written motion,
notice, appearance, demand, offer of judgment or similar papers shall
be filed with the court, and served upon the parties affected.
Answer: Yes. The court shall proceed to render judgment granting the
claimant such relief as his or her pleading may warrant.
Even if belatedly mentioned in the Rule, a pleading must be first
served to the other party before it is filed in court.
RECALL: Options of a defendant in filing a responsive pleading
Under Sec. 3, the court has another option which is the reception of
evidence ex parte. Reception of evidence ex parte may be delegated to
the clerk of court. This is in relation to Sec. 9, Rule 30.
Section 9. Judge to receive evidence; delegation to clerk of court. — The
judge of the court where the case is pending shall personally receive the
evidence to be adduced by the parties. However, in default or ex parte
hearings, and in any case where the parties agree in writing, the court
may delegate the reception of evidence to its clerk of court who is a
member of the bar. The clerk of court shall have no power to rule on
objections to any question or to the admission of exhibits, which
objections shall be resolved by the court upon submission of his or her
report and the transcripts within ten (10) calendar days from termination
of the hearing.
Discussion: The judge may delegate the reception of evidence ex parte
with the clerk of court. In default or presentation of evidence ex parte,
the phrase “The clerk of court shall have no power to rule on objections
to any question or to the admission of exhibits...” does not apply as there
is only the plaintiff who is present. No other person may raise any
objection or opposition.
SUMMARY: Steps to follow in case defendant fails to file an answer.
If you are the plaintiff:
1.
2.
3.
File a motion to declare defendant in default;
The Judge will order that the defendant is now in default (order
of default); and
Judgment based on the complaint of the plaintiff (default
judgment) unless the court requires claimant to present
evidence ex parte.
Discussion:
If the defendant files no answer, he will not be allowed to file any defense
anymore. The plaintiff need only to prove his allegation. The court may
opt to render judgment based solely on the complaint. The defendant is
deemed to have admitted the allegation against him for his failure to
controvert the same.
Ramirez v. Court of Appeals (G.R. No. 182075, 15 September 2010)
-
Answer
Motion to Dismiss
Motion for a Bill of Particulars
File a Motion for a Bill of Particulars for example when allegations in a
complaint are not clear.
EXAMPLE: On the fifth day of the 15 day period within which you are
given time to file an answer, you filed a motion to dismiss. You still
have 10 days left. Let us say it is only after 3 months that your motion
to dismiss was resolved, and in the resolution, it was denied. What
should you do? File an ANSWER. Period is deemed interrupted, you
still have a period left within which you can file an answer.
A defective motion does not toll the period of filling the motion.
Del Castillo v. Aguinaldo (G.R. No. 57127, 5 August 1992)
Facts: There‘s a motion to dismiss which would ordinarily interrupt the
period for filing an answer but this motion did not contain a notice of
the time and place of hearing and the motion is denied.
Held: The motion to dismiss and is therefore a useless piece of paper
with no legal effect. Any motion that does not comply with the
foregoing rules should not be accepted for filing and if filed, is not
entitled to judicial cognizance and does not affect any reglementary
period involved for the filing of the requisite pleading.
Thus, where the motion is directed to the Clerk of Court, not to the
parties and merely states that the same is submitted "for the resolution
of the court upon receipt thereof" said motion is fatally defective.
MOTION FILED: PERIOD TOLLED
Golden Country Farms vs. Sanvar Development (G.R. No. 58027,
28 September 1992)
FACTS: After receiving the order of the court denying his motion to
dismiss, instead of filing his answer, on the 15th day he filed a motion
for reconsideration to the order denying his motion to dismiss. In the
meantime while the motion for reconsideration was pending, the 15
day reglementary period to file an answer already lapsed despite its
being interrupted by the previously filed motion to dismiss.
ISSUE: Can the party be declared in default?
FACTS: Defendant filed an answer but he failed to furnish the plaintiff
a copy of the answer. He was supposed to file his answer within 15
days from the receipt of summons from the court.
HELD: Yes, because a motion for reconsideration does not interrupt
the 15 day reglementary period to file an answer.
ISSUE: The 15 days lapsed. Can the defendant be declared in default
even if he filed an answer?
REVIEW: So, last time, we discussed that the defendant has to file an
answer within 15 days from the time he receives summons from the
court. So, if you are a plaintiff and the defendant did not file an answer
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Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
within the reglementary period, what you can do is to file a motion to
declare the defendant in default.
As we have also discussed, although again the defendant can ask for
extensions, but what if he filed a motion to dismiss within 15 days but
the motion is still denied? He can still file an answer within the balance
of the reglementary period. But if he filed a motion to dismiss but the
motion to dismiss is not properly formed, like he did not file a notice of
hearing, or the notice was not furnished to the adverse party, again
that motion will be treated as a mere scrap of paper (pro forma). So, it
is as if he did not file a motion to dismiss and if the 15 day period
would lapse, then he can still be declared in default.
Also answer noh, even if he filed an answer, if the case which we
discussed before, if the answer was not furnished to the plaintiff, that is
considered as not filed. Therefore, it’s as if there’s no answer filed
within the reglementary period, so the defendant can be declared in
default.
the proceedings, you cannot examine or cross-examine the witnesses.
You cannot expect that your pleadings be acted upon by the Court.
You cannot object to or refute evidence or motions filed against you if
you are declared in default. There is nothing in the rule however, which
contemplates a disqualification to be a witness or an opponent in a
case of a person who has to be declared in default.
You can still be a witness, because in that case, you are not the party
litigant. You are not the contestant or legal adversary. Here, as a
witness, you merely testify. A witness is merely a spectator or
onlooker, called upon to testify on what he has seen heard or
observed. He is not an active party in the contest of rights between the
party litigants. So, one who is a witness is not considered as a party in
a trial. He still remains to be disqualified in the proceedings as a
contestant. As a party litigant. That’s clarified by the SC in this case.
RELIEF FROM ORDER OF DEFAULT
(b) Relief from order of default. — A party declared in default may
at any time after notice thereof and before judgment file a motion
under oath to set aside the order of default upon proper showing
that his failure to answer was due to fraud, accident, mistake or
excusable negligence and that he has a meritorious defense. In
such case, the order of default may be set aside on such terms
and conditions as the judge may impose in the interest of justice.
(3a, R18)
EFFECT OF ORDER OF DEFAULT
(a) Effect of order of default. — A party in default shall be entitled
to notice of subsequent proceedings but not to take part in the
trial. (2a, R18)
Why is it that if you are the plaintiff, nganong maningkamot man ka na
madeclare in default si defendant? This is because it is advantageous
for the plaintiff. As we have discussed, a party in default shall be
entitled to notice of subsequent proceedings but not to take part in the
trial.
As we have discussed, if the defendant will be declared in default, the
Court will order that he is already in default. What can the Court do?
1. It can proceed to render judgement in default (Default
Judgement) based on the pleadings and the prayers of the plaintiff
and can award the prayers or the relief prayed for in the complaint
except for unliquidated damages.
2. The Court can order the presentation of evidence ex parte – so
there will still be a hearing, but it is only the plaintiff who will submit
evidence. Wala nay labot si defendant, or he will be notified again
and then the Court will render judgement based only on the
complaint or the evidence presented by the plaintiff.
In both cases, it would be very beneficial to the plaintiff. You will not to
take part in the trial – meaning you cannot cross-examine the plaintiff
for example if the plaintiff presents evidences. All that you can avail of
is to be notified of the subsequent proceedings.
REMEDY OF DEFENDANT DECLARED IN DEFAULT
If you are the defendant and you are declared in default naa pa ba kay
remedy? You still have a remedy: relief from order of default,
actually you have several remedies.
MOTION TO LIFT THE ORDER OF DEFAULT
Anytime after notice that you have been declared in default but before
rendition of judgement, you can file a motion to lift the default.
Rule 9 Sec. 3. Default; declaration of.
(b) Relief from order of default. - A party declared in default may
at any time after notice thereof and before judgment file a motion
under oath to set aside the order of default upon proper showing
that his failure to answer was due to fraud, accident, mistake or
excusable negligence and that he has a meritorious defense. In
such case, the order of default may be set aside on such terms
and conditions as the judge may impose in the interest of justice.
REQUISITES OF MOTION TO LIFT ORDER OF DEFAULT
1.
Cavite v. Florendo
2.
The court further explained the concept of loss of standing when it
comes to a defendant who has been declared in default. SC said Loss
of standing must be understood to mean only the forfeiture of one’s
right to be the party litigant, contestant or legal adversary.
In this case the defendant was declared in default. So, he was not
allowed to participate during trial, he cannot cross-examine, he cannot
present evidence. However there were several defendants here, and
that defendant who was declared in default, he was presented as a
witness by his co-defendant. And it was opposed by the plaintiff
because he had already been declared in default. So meaning if you
are declared in default, you cannot anymore participate and that will
include your participation as a witness in the case.
SC said the forfeiture of one’s right as a party litigant, contestant or
legal adversary. You cannot present your defense, you cannot control
3.
Motion has to be under oath – once it is under oath, it must be
verified – it must be subscribed and sworn to;
You have to show that your failure to answer was due to: (FAME)
a)
Fraud
b)
Accident
c)
Mistake
d)
Excusable Negligence
That you have a meritorious defense.
It’s not just that you are prevented from filing but it’s because you have
a meritorious defense, because you could also just be wasting the time
of the court if you don’t have a meritorious defense. So, what’s the
point? This is only one of the remedies.
One defendant here was declared in default. However, there
are several defendants. He was asked to testify as a witness in the case.
Of course, the plaintiff objected because according to the plaintiff, you
are already declared in default. You lose your standing in court. If you
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Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
will be allowed to testify, then you will be indirectly supporting your
supposed defenses when, in fact, you did not file your answer. That will
be circumventing the effects of the default if you are allowed to testify as
a witness in the trial.
Loss of standing in court is the consequence of an order of
default. Thus, a party declared in default is considered out of court and
cannot appear therein, adduce evidence, and be heard and for that
reason he is not entitled to notice. (Rule 18, Rules of Court; Lim Toco v.
Go Fay, 80 Phil. 166) However, "loss of standing" must be understood
to mean only the forfeiture of one's rights as a party litigant, contestant
or legal adversary. A party in default loses his right to present his
defense, control the proceedings, and examine or cross-examine
witnesses. He has no right to expect that his pleadings would be acted
upon by the court nor may he object to or refute evidence or motions
filed against him. There is nothing in the rule, however, which
contemplates a disqualification to be a witness or a deponent in a case.
Default does not make him an incompetent. (Cavili vs. Florendo, 154
SCRA 610, No. L-73039, No. L-68680, No. L-57771 October 9, 1987)
Even if you are declared in default, you do not become
disqualified to testify in the case.
As opposed to a party litigant, a witness is merely a beholder,
a spectator or onlooker, called upon to testify to what he has seen,
heard, or observed. As such, he takes no active part in the contest of
rights between the parties. Cast in the limited role of witness, a party in
default cannot be considered as "taking part in the trial." He remains
suffering the effects of an order of default. Cavili vs. Florendo, 154 SCRA
610, No. L-73039, No. L-68680, No. L-57771 October 9, 1987.
A party in default may be cited as a witness by his
codefendants in the case. Even if the testimony of that witness, who was
also a defaulted party would be beneficial for his cause, but still, he can
testify as a witness. He merely loses standing in court as a party litigant.
A party in default may thus be cited as a witness by his
codefendants who have the standing and the right to present evidence
which the former may provide. The incidental benefit giving the party in
default the opportunity to present evidence which may eventually
redound to his advantage or bring about a desired result, through his codefendants. is of minor consequence. Cavili vs. Florendo, 154 SCRA
610, No. L-73039, No. L-68680, No. L-57771 October 9, 1987.
Since the other defendants are not declared in default, they
can present witnesses to support their defenses.
These are the things you need to remember because even if
you have two out of three components, if one is lacking, then the court
will not set the order of default aside.
Meaning, even if you are a victim of FAME, if you have no
meritorious defense comma the court will not lift the order of default.
There is no chance for you to in any way. But if you have a meritorious
defense, there is no guarantee that you will win but at least you have a
fighting chance if your standing will be restored.
Upon proof comma the court will set aside or lift the order of
default and will give the defendant that opportunity to answer, where he
will plead his supposed meritorious defenses. in effect, he regains his
standing in court.
These are the steps that a defendant declared in default must
take in order for the order of default to be set aside.
In Rule 9, Section 3(b), we are merely discussing the remedy
of a defendant in default before judgment. Are there still other remedies?
In this case of Republic vs. Sandiganbayan (540 SCRA 431,
G.R. No. 148154 December 17, 2007), the Supreme Court also
enumerated the different remedies of a defendant declared in default.
The remedies against a default order are:
(1)
a motion to set aside the order of default at any time after
discovery thereof and before judgment on the ground
that the defendant’s failure to file an answer was due to
fraud, accident, mistake or excusable neglect and that
the defendant has a meritorious defense;
(2)
a motion for new trial within the reglementary period to
appeal (15 days) from receipt of judgment by default, if
judgment had already been rendered before the
defendant discovered the default, but before said
judgment has become final and executory.
You cannot file this in a motion for reconsideration because in
the motion for consideration you are agreeing to the factual allegations
within the case. It's just that you are disagreeing with the application of
the law by the courts. If you want to controvert the factual allegations
within the case, then a motion for a new trial is the proper remedy for
you to present your own evidence.
(3)
Is there a remedy if, for example, the defendant is already
declared in default? Does it mean he loses the case already? There are
remedies.
If there is still no judgment (before judgment), there is still no
particular days from the time that he received the notice of default and
before judgment, what can you do?
Section 3(b), Rule 9 of the Amended Rules of Court:
A party declared in default may at any time after notice thereof
and before judgment, file a motion under oath to set aside the order of
default upon showing that his or her failure to answer was due the fraud,
accident, mistake, or excusable negligence and that he or she has a
meritorious defense. In such case comma the order of default may be
set aside on such terms and conditions as the judge may impose in the
interest of justice.
In your motion of default, you must be very careful.
1. The motion to set aside the order of default must be
under oath. This is one of those pleadings that have
to be verified because it is under oath.
2. It must be supported by affidavits showing that the
failure to file to answer within the reglementary
period was by reason of fraud, accident, mistake, or
excusable negligence; and
3. That you have a meritorious defense.
an appeal within the reglementary period to appeal (15
days) from receipt of judgment by default;
You can choose to appeal the case to the higher court. But in
appeal, you no longer dispute the factual allegations within the case.
You're contending that there is a misapplication of the law or
misappreciation of the facts. But you can no longer present your own
evidence in an appeal.
(4)
a petition for relief from judgment within 60 days from
notice of judgment and within 6 months from entry
thereof; and
Here, when it is already beyond the reglementary period for
appeal, for a motion for new trial, for a motion for reconsideration, the
remedy that you have is a petition for relief from judgment. This
presupposes that the judgment already became final and executory.
When? 60 days from the notice of final judgment and 6 months from
entry. So, there are two limitations.
Can you present evidence on your behalf in a petition for relief
from judgment? YES
(5) a petition for certiorari in exceptional circumstances.
A petition for certiorari presupposes that the judgment already
became final. This must be made within 60 days from notice. In a petition
for certiorari, your only ground is grave abuse of discretion Amounting
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to lack or excess of jurisdiction. You cannot present evidence on your
behalf. You can only say that based on the factual allegations here, the
court gravely abused its discretion and it amounts to lack or excess of
jurisdiction.
•
Also, the Court also discussed the remedies in the case of Lui
Enterprises, Inc. vs. Zuellig Pharma Corporation (719 SCRA 88, G.R.
No. 193494 March 12, 2014).
•
(1)
After notice of the declaration of default but before the
court renders the default judgment, the defendant may
file, under oath, a motion to set aside order of default.
•
The defendant must properly show that his or her failure to
answer was due to fraud, accident, mistake or excusable negligence.
The defendant must also have a meritorious defense. In such case, the
order of default may be set aside on such terms and conditions as the
judge may impose in the interest of justice.
(2)
(3)
If the defendant discovers his or her default after
judgment but prior to the judgment becoming final and
executory, he or she may file a motion for new trial under
Rule 37, Section 1, paragraph (a) of the 1997 Rules of
Civil Procedure.
If he or she discovers his or her default after the
judgment has become final and executory, a petition for
relief from judgment under Rule 38, Section 1 of the 1997
Rules of Civil Procedure may be filed.
(4)
Appeal is also available to the defendant declared in
default. He or she may appeal the judgment for being
contrary to the evidence or to the law under Rule 41,
Section 2 of the 1997 Rules of Civil Procedure. He or she
may do so even if he or she did not file a petition to set
aside order of default.
(5)
A petition for certiorari may also be filed if the trial court
declared the defendant in default with grave abuse of
discretion.
The Court also said here that:
The remedies of the motion to set aside order of default,
motion for new trial, and petition for relief from judgment are mutually
exclusive, not alternative or cumulative. This is to compel defendants to
remedy their default at the earliest possible opportunity. Depending on
when the default was discovered and whether a default judgment was
already rendered, a defendant declared in default may avail of only one
of the three remedies. (Lui Enterprises, Inc. vs. Zuellig Pharma
Corporation, 719 SCRA 88, G.R. No. 193494 March 12, 2014)
This precludes the possibility of the scenario wherein:
You file a motion to set aside the motion for default, denied.
Then the case continued with plaintiff’s presentation of evidence ex
parte. Then a judgment is rendered. Now, you ask for a motion for new
trial, denied. Then the case attained finality. You now ask for a petition
for relief from judgment.
He can only file one depending on the circumstances. That
was the discussion of the Supreme Court in the case.
Also, the remedies against default become narrower and
narrower as the trial nears judgment. Upon finality of the decision, you
only have two remedies left: petition for relief for judgment or petition for
certiorari.
•
•
The defendant enjoys the most liberality from this court with a
motion to set aside order of default, as he or she has no default
judgment to contend with, and he or she has the whole period
before judgment to remedy his or her default.
With a motion for new trial, the defendant must file the motion within
the period for taking an appeal or within 15 days from notice of the
default judgment. Although a default judgment has already been
•
rendered, the filing of the motion for new trial tolls the reglementary
period of appeal, and the default judgment cannot be executed
against the defendant.
A petition for relief from judgment is filed after the default judgment
has become final and executory. Thus, the filing of the petition for
relief from judgment does not stay the execution of the default
judgment unless a writ of preliminary injunction is issued pending
the petition’s resolution.
Upon the grant of a motion to set aside order of default, motion for
new trial, or a petition for relief from judgment, the defendant is
given the chance to present his or her evidence against that of
plaintiff’s.
With an appeal, however, the defendant has no right to present
evidence on his or her behalf and can only appeal the judgment for
being contrary to plaintiff’s evidence or the law.
Similar to an appeal, a petition for certiorari does not allow the
defendant to present evidence on his or her behalf. The defendant
can only argue that the trial court committed grave abuse of
discretion in declaring him or her in default.
Thus, should a defendant prefer to present evidence on his or
her behalf, he or she must file either a motion to set aside order of
default, motion for new trial, or a petition for relief from judgment. (Lui
Enterprises, Inc. vs. Zuellig Pharma Corporation, 719 SCRA 88, G.R.
No. 193494 March 12, 2014).
Going to the discussion on Fraud, Accident, Mistake, and
Excusable Negligence, these must be the grounds upon which the
defendant in default must not have been able to file his answer within
the reglementary period. In the same case, the Supreme Court defined
the meaning of excusable negligence:
Excusable negligence is “one which ordinary diligence and
prudence could not have guarded against.” The circumstances should
be properly alleged and proved. (Lui Enterprises, Inc. vs. Zuellig Pharma
Corporation, 719 SCRA 88, G.R. No. 193494 March 12, 2014).
When you say excusable negligence, several jurisprudence
provide that the Supreme Court will not consider the negligence
excusable if the negligence is of the lawyer because the negligence of
the counsel/lawyer binds the client.
When you file a motion to set aside the order for default, You
must show that it is not based on the negligence of your lawyer. It should
be negligence on the part of the plaintiff or the counsel of the plaintiff for
the negligence to be excusable. In this case, the Court further said:
In this case, we find that Lui Enterprises’ failure to answer
within the required period is inexcusable.
Lui Enterprises’ counsel filed its motion to dismiss four days
late. It did not immediately take steps to remedy its default and took one
year from discovery of default to file a motion to set aside order of
default. In its motion to set aside order of default, Lui Enterprises only
“conveniently blamed its x x x counsel [for the late filing of the
answer]”126 without offering any excuse for the late filing. This is not
excusable negligence under Rule 9, Section 3, paragraph (b)127 of the
1997 Rules of Civil Procedure. Thus, the Regional Trial Court of Makati
did not err in refusing to set aside the order of default. (Lui Enterprises,
Inc. vs. Zuellig Pharma Corporation, 719 SCRA 88, G.R. No. 193494
March 12, 2014).
There are some instances in which the Supreme Court held
that the negligence of the council did not bind the client because, in that
case, the client would already be deprived of due process because of
that kind of negligence. In those cases, the Supreme Court allowed.
As discussed, Lui Enterprises never explained why its counsel
failed to file the motion to dismiss on time. It just argued that courts
should be liberal in setting aside orders of default. Even assuming that
it had a meritorious defense and that its representative and counsel had
to fly in from Davao to Makati to personally appear and manifest in court
its meritorious defense, Lui Enterprises must first show that its failure to
answer was due to fraud, accident, mistake or excusable negligence.
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This Lui Enterprises did not do. (Lui Enterprises, Inc. vs. Zuellig Pharma
Corporation, 719 SCRA 88, G.R. No. 193494 March 12, 2014).
Let’s discuss the case of Momarco Import Company, Inc. vs.
Villamena (798 SCRA 513, G.R. No. 192477 July 27, 2016).
In this case, plaintiff filed a Complaint for Nullification of Deed
of Sale. Defendant did not find an answer but its lawyer made an entry
of appearance. After four months, plaintiff filed a motion to declare
defendant in default. Defendant filed an answer. Despite the answer of
the defendant, the RTC declared defendant in default and ordered that
the answer already received be stricken from the records. The RTC also
received the evidence of the plaintiff ex parte. The RTC also rendered
default judgment.
Defendant did not file a motion to set aside the order of
default. Only when the default judgment was rendered did the defendant
complain. The petitioner appealed the default judgment to the Court of
Appeals.
Should the appeal of the defendant be granted? The Supreme
Court said NO
Under Section 3, Rule 9 of the Rules of Court, the three
requirements to be complied with by the claiming party before the
defending party can be declared in default are:
(1) that the claiming party must file a motion praying that the
court declare the defending party in default;
(2) the defending party must be notified of the motion to
declare it in default;
(3) the claiming party must prove that the defending party
failed to answer the complaint within the period provided
by the rule.
It is plain, therefore, that the default of the defending party
cannot be declared motu proprio. (Momarco Import Company, Inc. vs.
Villamena, 798 SCRA 513, G.R. No. 192477 July 27, 2016).
The underlying philosophy of the doctrine of default is that the
defendant’s failure to answer the complaint despite receiving copy
thereof together with summons, is attributable to one of two causes:
either
(a) to his realization that he has no defenses to the plaintiff’s
cause and hence resolves not to oppose the complaint,
or
(b) having good defenses to the suit, to fraud, accident,
mistake or excusable negligence which prevented him
from seasonably filing an answer setting forth those
defenses.
It does make sense for a defendant without defenses, and
who accepts the correctness of the specific relief prayed for in the
complaint, to forego the filing of the answer or any sort of intervention in
the action at all. For even if he did intervene, the result would be the
same: since he would be unable to establish any good defense, having
none in fact, judgment would inevitably go against him. And this would
be an acceptable result, if not being in his power to alter or prevent it,
provided that the judgment did not go beyond or differ from the specific
relief stated in the complaint. It would moreover spare him from the
embarrassment of openly appearing to defend the indefensible.
On the other hand, if he did have good defenses, it would
be unnatural for him not to set them up properly and timely, and if
he did not in fact set them up, it must be presumed that some
insuperable cause prevented him from doing so: fraud, accident,
mistake, excusable negligence. In this event, the law will grant him
relief; and the law is in truth quite liberal in the reliefs made
available to him: a motion to set aside the order of default prior to
judgment, a motion for new trial to set aside the default judgment;
an appeal from the judgment by default even if no motion to set
aside the order of default or motion for new trial had been
previously
presented;
a
special
civil
action
for certiorari impugning the court’s jurisdiction.
As a general rule, in implementation of the policy against
defaults, the courts have admitted answers filed beyond the
reglementary periods but before the declaration of default.
The policy of the law has been to have every litigated case
tried on the merits. As a consequence, the courts have generally looked
upon a default judgment with disfavor because it is in violation of the
right of a defending party to be heard. As the Court has said in Coombs
v. Santos:
A default judgment does not pretend to be based upon the
merits of the controversy. Its existence is justified on the ground that it
is the one final expedient to induce defendant to join issue upon the
allegations tendered by the plaintiff, and to do so without unnecessary
delay. A judgment by default may amount to a positive and considerable
injustice to the defendant; and the possibility of such serious
consequences necessitates a careful examination of the grounds upon
which the defendant asks that it be set aside.
In implementation of the policy against defaults, the courts
have admitted answers filed beyond the reglementary periods but before
the declaration of default.
Considering that the petitioner was not yet declared in default
when it filed the answer on September 10, 1998, should not its answer
have been admitted?
February 3, 2020 - DE CASTRO, ABRENILLO
PARTIAL DEFAULT
So let’s talk about “partial default. Let’s read the provision.
(c) Effect of partial default. — When a pleading asserting a claim
states a common cause of action against several defending parties,
some of whom answer and the others fail to do so, the court shall
try the case against all upon the answers thus filed and render
judgment upon the evidence presented.
So what do we have to remember about this rule?
1) There are two or more defendants;
2) One, or of the defendants, did not file an answer;
3) Claim states a common cause of action.
So, what is the rule? Can those defendants who did not file their answer
be declared in default? Can the court proceed to render judgment
against those default defendants who did not file their answer. The rule
is:
In such case, the court shall try the case against all upon the answers
thus filed and render judgment upon the evidence presented.
So meaning, the court will not proceed to render default judgment
against those defendants who did not file their answer. Because, there
is a common cause again the defendants. And we presuppose also that
these defendants have a common defense or at least, the
defense/defenses of those defendants who filed their answer can also
benefit/ apply to the defendants who did not file their answer. So here
the court shall proceed with the trial, will receive evidence based on the
answer of those defendants who filed their answer. So the trial here will
be the plaintiff and the defendants who filed their answer. But then again,
the defendants who did not file their answer can also benefit from the
answers filed, from the evidence presented, then the court will decide
based on the evidence presented from these defendants who filed an
answer and will render judgment based on that evidence. So the answer
filed by the answering defendant will automatically benefit the nonanswering defendant.
EXAMPLE FROM SLIDES:
A and B signed a promissory note, binding themselves to pay C
solidarily. Both of them were sued. A answered and alleged that the
debt was already paid. B did not answer. Can there be default judgment
against B?
NO, there will be a trial based on the answer of A, in effect, A will defend
not only himself but also B?
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If the case is dismissed, the dismissal benefits B as well.
In this, for example, A answered, and his defense was the debt was
already paid. Then B did not answer. Can B be declared in default?
Now remember, in solidary obligations, any of the solidary debtors can
be held liable for the entire obligation. So here, actually, this defense of
payment, what are those defense which can be raised by the solidary
debtor?
1) Those defenses inherent in the obligation itself;
2) Those defenses which are personal to a solidary debtor;
3) Defenses which are personal to the solidary debtor.
Going back to the first two defenses of the solidary debtor. If it is a
defense which is inherent in the obligation itself, like payment or
prescription, that defense can be invoked by anyone of the solidary
debtors. And that is a complete or total defense. So when you say
“complete or total defense”, it means once it is proved, it obliterates the
entire obligation, and applies to all of the debtors, regardless of WON it
was A who invoked that defense or B who invoked. So that defense
could be invoked by anyone of them and it will totally extinguish the
obligation.
The other one is the defense which is personal to the solidary debtor.
We’ll discuss that later.
But again, assuming B did not answer, can he be declared in default?
Of course no, there will be trial for the court to determine whether there
is evidence to prove the defense of A, which is full payment. And of
course a default judgment cannot be rendered against B, because if A
is able to prove the defense of payment, then A has no obligation to pay,
the entire obligation is extinguished. If A is able to prove his defense,
this will benefit B, and extinguish the obligation for both A and B. If the
case is dismissed, then the dismissal benefits both A and B.
What if A’s defense was that he was insane at the time when the
obligation was contracted and he did not benefit at all from the proceeds
of the loan, and B did not file an answer? What kind of defense is this?
Insanity, that is a defense that is personal to A. As to A, that is a
complete defense. Why? Because is he says “I admit, I signed this
promissory note, and bound myself to solidarily pay B. But at the time I
signed the promissory note I was actually insane. So I am not bound to
pay whatever is mentioned in the promissory note because I had no
legal capacity to enter into that obligation and I did not benefit at all from
the proceeds of the loan. Because I was insane. Can the plaintiff say
“Ok A, you were insane at the time you contracted the obligation, but
remember this is a solidary obligation. So anyone of the debtors can be
held liable to pay the obligation, still because it is solidary, he will still
pay B’s obligation. Would that be correct? Can we say that at the time A
signed the note, he was insane to his share, but he was not insane as
to the share of B. So as to A, insanity is a complete defense. It will
obliterate his obligation.
Now how about B? If B did not file an answer, can B be declared in
default? Can there be a default judgment against B? Because as we
said, insanity is a defense which is personal only, through A. Now
remember: even if that defense is personal only to the solidary debtor
and as to him it is a complete defense, as to B he can still invoke that
defense. Not completely but only partially. Not a complete but a partial
defense. Assuming that that is the only defense he could invoke, insanity
of A, what is the effect? If the insanity of A is proved during trial, A would
be completely exempted from the obligation because we would deduct
his share.
Now as to B, he can still avail of that defense of A. So that share of A
will be deducted from the entire obligation, but B will still be liable for his
own share in the obligation. If B, filed an answer. How about if B did not
file an answer. Would he be liable as well, even if A is able to prove that
he was insane. Here of course, for me, even if B did not file his answer
because there is again a defense which can be proved during the trial,
if it obliterates the obligation of A, then a default judgement can be
rendered against B, that would be less the share of B.
CASES:
LIM TANHU VS RAMOLETE (66 SCRA 425)
IMSON VS CA (239 SCRA 58)
EXTENT OF RELIEF TO BE AWARDED
d) Extent of relief to be awarded – A judgment rendered against a
party in default shall neither exceed the amount or be different in
kind from that prayed for nor award unliquidated damages.
Even if a defendant has been declared in default, please remember
these limitations on judgment.
LIMITATIONS OF DEFAULT JUDGMENT
1) The default judgment should not exceed the amount prayed for in the
complaint;
2) The default judgment should not be different from that prayed for in
the complaint;
3) The default judgment should not award unliquidated damages.
ILLUSTRATIVE EXAMPLE
Q: In the complaint, the claim is P300,000. The defendant defaulted. The
court required the plaintiff to present his evidence and during the trial,
the latter proved P 500,000 total claim. Can the court award P 500,000
claim as proved.
Assuming the plaintiff was able to prove that the defendant was actually
liable to him for P500,000. So the question here is: can the court award
P500,000? Because it was the amount proved during trial.
As we have mentioned, the judgment should not render an award which
exceeds the amount prayed for. It should only be P300,000, as prayed
for.
So assuming during trial, the plaintiff was able to prove P 200,000. He
prayed in the complaint for P300,000. What should be the amount in the
default judgment? Diba the rule says it should not be different from the
amount in the complaint? Should the court give P300,000, even if what
was only proved was P 500,000? Of course, even if you did not read the
Rules, common sense would tell you that amount should only be P
200,000. Because it was the amount, even if a higher amount was
prayed for in the complaint. So meaning, there are actually two
limitations we have to remember regarding the amount prayed for, and
the amount proved during trial. So the default judgment cannot exceed
the amount prayed for in the complaint, but it could be less the amount
prayed for.
Now what is the reason why we have this rule? That the award should
not be more than that prayed for in the complaint, or should not be
different in kind, than that prayed for in the complaint? Let us go back.
What are the presumptions, that the defendant will not file his answer?
1) Defendant deliberately did not answer because he believed that he
had not good defense, and that the claim is fair. And if he will make an
answer, still he will not win and would just incur expenses;
2) He had a meritorious defense and he wanted to answer but because
of FAME, he failed to file his answer.
Now going back to that first reason, suppose the defendant did not
deliberately file his answer because he thinks the complaint advanced
meritorious claims and it would be a waste of his time to file his answer.
Of course in his mind, he might say, “of course I owe A as much as P
300,000, so even if declared in default, I would be able to pay”. But
suppose after trial, he is made to pay P 1, 000, 000. It would cause
surprise, and would not be fair, because he is faced with a P 1,000,000
award.
It would be a surprise on the part of the defendant, it would also not be
fair because again he decided not to file his answer thinking that the
amount is correct and now he is faced with a 1Million award. At least
that contingency will not happen under the rules.
In the case of Diona vs Balangue
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LETICIA DIONA, REPRESENTED BY HER ATTORNEY-INFACT,MARCELINA DIONA, Petitioner, v. SONNY A. BALANGUE,
ROMEO A. BALANGUE, REYNALDO A. BALANGUE, AND
ESTEBAN A. BALANGUE, JR., Respondents.
The court granted 5% interest but in the complaint the plaintiff just
prayed for an interest of 12% per annum. Definitely 5% monthly x 12
and that would be 60% per annum. The court awarded damages
which are greater than the amount paid for in the complaint.
The SC reiterated that you cannot do that. The court cannot grant a
relief that not prayed for in the pleadings or in excess of what is being
sought by the party. They cannot also grant a relief without first
ascertaining the evidence presented in support thereof. Due
considerations require that judgments must conform to and
supported by the pleadings and evidence presented in court. The
rules are even more strict in safeguarding the right to due process of
a defendant in default than of a defendant who participated in a trial.
Comment: because when you are declaring default you have no right
to participate in the trial, you cannot present evidence on your behalf,
you cannot cross examine witnesses of the plaintiff, you are only
limited to be notified to the proceedings in court.
As much as possible, even if the defendant is declared in default at
least he will be accorded with due process of law.
In the complaint, aside from the prayers that we make in the prayer
section of the complaint, we usually add that phrase plaintiff prays for
other relief and remedies just and equitable under the premises. Now
the question is can that award of 5% be subsumed in this general
prayer? The SC said, No. the court’s grant of relief is limited only to
what has been prayed in the complaint or related thereto, supported
by evidence and covered by the party’s cause of action.
So even if it was prayed for other reliefs just and equitable, still, we
cannot grant a relief which is more than what the complaint
specifically prays for and there must be evidence to prove that.
In this case also, there was no evidence to prove that the plaintiff was
entitled to 5% interest per month. 1. The 5% monthly interest was not
supported by both the allegations in the pleadings and the evidence
on record.
2. The real estate mortgage executed by the parties does not include
any provision on interest. Di ba you have learned before that a
stipulation to pay interest must be in writing otherwise the interest is
void. So here, how can you even award 5% interest per month when
the contract itself does not mention any provision on interest.
In the complaint there was a mention of an interest but it says 12%
per annum. So it could not be different from what was prayed for in
the complaint. The contract did not even mention about the interest.
And then the plaintiff did not allege or pray for the 5% monthly interest
and she did not present evidence nor testify on that claim of 5%
interest per month.
Even assuming for the sake of argument that there was really an
agreement on 5% interest per month in the real estate mortgage
contract and it was properly alleged in the complaint of the plaintiff
and it was proved by the evidence during the trial still, as you have
probably discussed in your credits and transactions, 5% per month
interest is iniqutuous and unconscionable. Even if that is agreed upon
it could be reduced by the courts. There was no ground to award 5%
monthly interest.
The case of Mangelin vs Court of Appeals
MANGELIN VS COURT OF APPEALS
What is the difference between ex parte presentation of evidence by
virtue of default judgment and ex parte presentation of evidence by
failure to appear during trial. Going back, when the defendant is
declared in default, the court may render default judgment or it may
require the presentation of evidence ex parte against the defaulted
defendant. That is in case of default. The other one is during trial,
assuming that the defendant who already answered, he did not
appear during trial and there is no justifiable reason or explanation
why he did not appear. The court will now allow the plaintiff to present
evidence ex parte.
Difference between the two?
1. When it is an ex parte presentation of evidence because
the defendant was declared in default, there is that
limitation under paragraph d, that the judgement cannot
exceed the amount or be different in kind from that prayed
for in the complaint. Even if during the presentation of
evidence ex parte of the plaintiff he was to prove an
amount more than what he prayed for in the complaint or
different from the one which he prayed for in the complaint.
Whereas, in ex parte presentation of evidence not because
the defendant was declared in default but because during
trial the defendant did not appear without any justifiable
reason, actually here, the court can still award maybe
damages or relief which is different from the one prayed
for in the complaint or which is more than the amount
prayed for in the complaint if that is proved during the trial.
Going back to that ex parte presentation of evidence
because the defendant was declared in default.
After the presentation by the plaintiff of evidence it ends there, the
plaintiff may formal offer of his or her exhibits of evidence and then
the court can now render judgment. But, if it is ex parte presentation
of evidence because again, the defendant answered but he just did
not appear during the trial, after the plaintiff rest his case the
defendant still has the right to present his own evidence. Based on
that, the defendant was able to present his evidence. The relief is not
limited to that prayed for in the complaint. The SC said: in the latter
however, meaning ex parte presentation of evidence by a plaintiff or
the defendant was not declared in default but he just no appear
during the trial, the award may exceed the amount or be different in
kind from that what prayed for. This is because when there is ex parte
presentation of evidence due to failure to appear in trial, one’s
standing in court is not lost. He can still present evidence later to
refute the plaintiff’s evidence. Whereas in a defendant who was
declared in default he loses his standing during the trial.
UNLIQUIDATED DAMAGES ( 3RD LIMITATION)
The court cannot award unliquidated damages, a default judgment
cannot grant unliquidated damages. When you say unliquidated
damages, what are those unliquidated damages? Damages that can be
awarded are those Moral, exemplary, nominal, temperate, actual,
liquidated. So the end there is liquidated damages, the rest would be
unliquidated damages. Actual damages still fall under the concept of
unliquidated damages.
Unliquidated damages are those which are still subject to evidence
before it can be properly awarded such as when you want to claim actual
or compensatory damages, you still need to present evidence of the
actual damages di ba for example hospitalization expenses so you need
to present the receipts, how much you pay for your injuries or loss of
income so you have to present evidence that you actually earned this
income and you were not able to earn them because of the act of the
defendant. Moral damages di ba sleepless nights, besmirched
reputation, serious anxiety, this are examples of unliquidated damages
meaning you still need to prove them. They are not admitted simply
because the defendant did not file his answer and was declared in
default.
When you say liquidated damages, these are the damages which are
already fixed and proof or evidence to establish the same are not
required.
This is similar to the concept of penal clause. For example you enter into
a contract. You are a contractor and then you enter with your client or
the principal, you have a construction agreement. In your agreement you
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agreed to construct the house of the client and for 7 Million to be finished
within a year and in case of delay, the contractor will pay to the principal
10,000 for every day of delay. The amount of the damages is already
mentioned in the contract. It is already stipulated. When the construction
is not finished within the period agreed upon, then automatically as long
as the aggrieved party in our example the client proves that there was
breach because the construction was not finished within a specified
time. He can claim the amount although again it is subject to the rules
on penal clause on how can it be reduced if there is partial or irregular
performance if it is inquituous but again that is the concept of liquidated
damages.
In so far as this rule regarding unliquidated damages is concerned there
was this criticism of our late Dean INIGO. Why? Because for example
you are the defendant and the claim against you is merely for
unliquidated damages. Meaning he claims for actual damages or
compensatory damages, moral damages, exemplary damages, etc. If I
were the defendant and I think na your claim is actually understated
because you could be entitle to more, I would not just file an answer.
Why? Because anyway even if I am declared in default and a default
judgment is rendered against me at least I am confident that if your claim
and you complaint is only 1million, I would not be liable for more even if
you were able to present evidence later on that I am actually liable for 2
million but still because under the rule the judgment cannot award more
than what was prayed for from the complaint. I am confident that I will
not be made liable for more than 1 million because if I answer and I go
through the trial, there is danger that I will be made liable for the amount
that you are really able to establish during trial. That is one criticism
under this particular rule.
(e) Where no defaults allowed. — If the defending party in an action
for annulment or declaration of nullity of marriage or for legal
separation fails to answer, the court shall order the Solicitor
General or his or her deputized public prosecutor, to investigate
whether or not a collusion between the parties exists, and if there
is no collusion, to intervene for the State in order to see to it that
the evidence submitted is not fabricated.
This rule refers to cases involving marital relations. Because the policy
of the state is to preserve marriage and not to encourage break-ups. If
default judgments are allowed it would very easy to secure annulment
of marriage or declaration of nullity just agree with the other. Okay ayaw
na mog answer and then the court will render default judgment against
you and then marriage is annulled or declared null and void. So it would
be easy to terminate marital relation by the simple expedient of not filing
one’s answer and allowing oneself to be declared in default.
Under the rules, what happens? If for example the defendant did not file
an answer and the court cannot declare him in default. Then the court
shall order the solicitor general or his deputized public prosecutor to
investigate if there is collusion between the parties. Meaning kung nag
sabot ba ning duha na “okay ayaw nag tubag para dali na lang sa akoa
ang pag prove sa case para paspas atung proceedings. What if it is
found out that there is really collusion between the parties? The court
will dismiss the case. The court should determine if there is really no
collusion and if the evidence presented during the trial is not fabricated.
This is related the family code, articles 48 and 60. In cases of annulment
or declaration of nullity of marriage, the court shall order the prosecuting
attorney or fiscal assigned ….. to prevent collusion between the parties
and to take care that the evidence is not fabricated or suppressed. It is
not only a matter of procedural but also substantive law.
(article60) No judgment shall be based upon stipulation of facts or a
confession of judgment. Even in declaration of judgment or nullity of
marriage there is a pre trial but in that pre trial of course you cannot
agree on certain facts which would just be equivalent to saying na our
marriage is void. But you can stipulate facts which those facts not
tantamount to a confession of judgment.
March 24, 2020- ARANJUEZ, BALLOS, BEJANO
RULE 10
AMENDED AND SUPPLEMENTAL PLEADINGS
We will discuss when do you amend a pleading and when do you
supplement it. What are the periods given under the rules within which
you can amend and file supplemental pleadings.
Section 1. Amendments in general. — Pleadings may be
amended by adding or striking out an allegation or the name of
any party, or by correcting a mistake in the name of a party or a
mistaken or inadequate allegation or description in any other
respect, so that the actual merits of the controversy may
speedily be determined, without regard to technicalities, in the
most expeditious and inexpensive manner.
HOW ARE PLEADINGS AMENDED
According to Section 1, pleadings may be amended by:
1. Adding or striking out an allegation;
2. Adding or striking out the name of any party;
3. By correcting a mistake in the name of a party; or
4. By correcting a mistaken or inadequate allegation or
description in any other respect.
NOTE: In short, two matters can be amended:
1. THE NAMES OF THE PARTIES and
2. ALLEGATIONS.
Thus, if you file a complaint against A, then later on you will include
another defendant, B the inclusion of an additional defendant party is an
amendment.
So we mentioned that, for example, you add a defendant in your
complaint, so that is actually an amendment. Now the question is,
regarding the application of the prescriptive periods when do we
consider the complaint as having been filed against the ADDED
defendant? Will it be at the time when the original complaint was filed?
Or would it be at the time the amended complaint was filed?
A: Based on Section 5 of Rule 1, insofar as the original defendant is
concerned, the case upon him is commenced upon the filing of the
ORIGINAL COMPLAINT. But, insofar as the added defendant (2nd
defendant) is concerned, the case against him is commenced starting
from the filing of the AMENDED COMPLAINT, it’s not from the date of
the filing of the original complaint.
So, there is no retroactive effect insofar as amendment is concerned.
The amendment does not retroact to the date of the filing of the action.
OTHER PROVISIONS ON AMENDMENT:
Rule 3, Section 14. Unknown identity or name of defendant. —
Whenever the identity or name of a defendant is unknown, he may be
sued as the unknown owner, heir, devisee, or by such other designation
as the case may require, when his identity or true name is discovered,
the pleading must be amended accordingly.
So here, we also amend the complaint.
POLICY OF THE LAW REGARDING AMENDMENTS
LIMBAUAN vs. ACOSTA
G.R. No. 148606, June 30, 2008
It is well-settled that amendment of pleadings is favored and should be
liberally allowed in the furtherance of justice in order to determine every
case as far as possible on its merits without regard to technicalities. This
principle is generally recognized in order that the real controversies
between the parties are presented, their rights determined and the case
decided on the merits without unnecessary delay to prevent circuity of
action and needless expense.
COMMENT: This is so because as much as possible we have to
determine the merits of the case. We have to determine what the real
controversies between the parties are and what are the respective rights
and obligations.
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SECTION 2. AMENDMENTS AS A MATTER OF RIGHT. — A party
may amend his pleading once as a matter of right at any time before
a responsive pleading is served or, in the case of a reply, at any
time within ten (10) calendar days after it is served. (2a)
AMENDMENT AS A MATTER OF RIGHT
What does the law mean when it talks about “amendment as a matter of
right”?
It simply means that: The court has no discretion to deny the
amendment, as a general rule. The Court has the duty to allow the
amendment and this is actually a purely ministerial duty. So, when you
say amendment as a matter of right, you don’t need to file a motion for
leave to file an amended complaint. You just simply file the amended
pleading.
Q: For example, the court does not admit, or refuses to admit, the
amended pleading what is the remedy of the party?
A: As discussed in the case of BRESLIN vs. LUZON STEVEDORING
CO., 84 Phil. 618 (1949), the remedy of the party is to FILE a petition
for MANDAMUS because it is the remedy to compel the performance
of a ministerial act.
The Supreme Court in ALPINE LENDING INVESTORS vs. ESTRELLA
CORPUZ, G.R. No. 158960, November 24, 2006, ruled that the trial
court’s duty to allow and to admit the amended complaint is purely
ministerial. In fact, the party who seeks to amend a pleading as a matter
of right need not file a motion to admit an amended complaint.
Q: What is the consequence of the characterization of the trial court’s
duty to admit an amended pleading as a matter right as MINISTERIAL?
A: The court would be in error if it refuses to admit an amended pleading
when its exercise is a matter of right. THIS ERROR IS CORRECTIBLE
BY MANDAMUS (BRESLIN vs. LUZON STEVEDORING CO., 84 Phil.
618 (1949)).
WHEN AMENDMENT IS A MATTER OF RIGHT
Example: You are the defendant. Then, you received the summons
requiring you to file an answer. However, you did not yet file an answer
or a responsive pleading.
On the part of the plaintiff: Before an answer is served on the plaintiff,
the latter may amend his complaint as a matter of right. Meaning, he
does not have to file any motion to allow him to file the amended
complaint. He just has to file because it is his right.
On the part of the defendant: The defendant may also amend his
answer, also as a matter of right, before a reply is served upon him
because insofar as the defendant is concerned, the responsive pleading
is the reply. However, do remember that we discuss before that reply is
allowed only under the amended rules when there is NEW MATTER
ALLEGED in the actionable document attached to the answer. Hence, it
is possible that there is no longer any reply. In that case, the answer
may be amended at any time within 10 days after it is served (when the
defendant served his answer).
FREQUENCY
Q: When can the pleading be amended as a matter of right?
A: The rule says, it’s only ONCE.
Q: How about if you have already amended your complaint as a matter
of right, but still the defendant has not yet filed his answer? Can you still
amend?
A: Actually, you can still amend IF THE COURT ALLOWS IT, but that
amendment is no longer a matter of right. You need leave of court.
Q: How about formal amendments?
A: Actually, you can amend your complaint, your responsive pleading, if
the amendment is merely formal. But, if the amendment is subsequent
already to a previous amendment made as a matter of right (meaning it
is not your first time to amend), the subsequent amendment must be
with leave of court.
The right to amend a pleading as matter of right may, according to the
Rules, be exercised only once (Sec. 2, Rule 10, Rules of Court). Hence,
even if no responsive pleading has yet been served and even if the
amendment is merely formal, if the amendment is subsequent to a
previous amendment made as a matter of right, the subsequent
amendment must be with leave of court.
NOTES ON APPLICABILITY OF THE RULE
Amendment, if made as a matter of right, is allowed EVEN IF THERE IS
AN ALLEGATION OF A NEW CAUSE OF ACTION OR A CHANGE IN
THEORY (BAUTISTA vs. MAYA-MAYA COTTAGES, INC., G.R. No.
148411, November 29, 2005); You can still amend because, again, it is
a matter of right and it does not prejudice the defendant. This is so
because when you say amendment as a matter of right, it presupposes
that the defendant HAS NOT YET filed his answer. So, if you amended
your complaint, before he filed his answer, the defendant can easily
address all your allegations in your complaint.
Purpose why amendment is no longer allowed as a matter of right
after the defendant has files his answer:
It is because, if the defendant has already filed his answer, naturally, he
would already be incorporating or he has already set forth his answer or
his defenses. Now for example, you alleged a new cause of action or
you change your theory, then the defendant, again, has to address those
new allegations or the new theories that you incorporated in your
amended complaint. So, that is why, in that case, if there’s already a
responsive pleading, it requires leave of court, but not if it is a matter of
right.
Sec. 2 refers to an amendment made before the trial court, not to
amendments before the Court of Appeals.
Q: For example, you filed a petition before the court of appeals. Prior to
the comment, for example, or any response from the other
party(defending party) or the respondent, can you amend your petition
as a matter of right?
A: Actually, the rule that applies here is Section 6, Rule 42 on petitions
for review from the RTC in the exercise of its appellate jurisdiction.
That’s one example.
The Court of Appeals is vested with jurisdiction to admit or deny
amended petitions filed before it (NAVARRO vs. VDA. DE TAROMA,
478 SCRA 336). For pleadings before the Court of Appeals, what applies
is
Section 6, Rule 42 on petitions for review from the RTC in the exercise
of its appellate jurisdiction which states:
Section 6. (RULE 42) Due Course. – If upon the filing of the comment
or such other pleadings as the court may allow or require, or after
the expiration of the period for the filing thereof without such comment
or pleading having been submitted, the Court of Appeals finds prima
facie that the lower court has committed an error of fact or law that will
warrant a reversal or modification of the appealed decision, it may
accordingly give due course to the petition.
It simply means that, in the court of appeals, we don’t have that rule that
before a comment or any other responsive pleading is filed, we can
amend the petition as a matter of right, is not applied to the court of
appeals because it is ALWAYS within the discretion of the Court of
Appeals whether or not to accept or allow your amended petition.
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APPLICATION OF THE RULE
1. file an answer; or
2. a motion to dismiss.
of the complaint or other initiatory pleading but shall be cause for the
dismissal of the case without prejudice. Upon being served with
summons, Michelle files a motion to dismiss on the ground that there
was no certification against forum shopping attached. Now, again, since
it is a mere motion to dismiss and is not a responsive pleading, can Emily
amend her complaint as a matter of right?
Now, basically, insofar as amendment is concerned, what would be the
distinction?
Because again Under Rule 7, Section 5, “failure to comply with the
requirement shall not be curable by mere amendment of the complaint”
If you file the motion to dismiss, for example you alleged grounds like
prescription, litis pendencia, res judicata, lack of jurisdiction over the
subject matter, (remember these are the only grounds for a motion to
dismiss allowed under the amended rules) in that case, if I were the
plaintiff, I could just easily amend my complaint to address the defenses
which you mentioned in your motion to dismiss. I can amend as a matter
of right because a motion to dismiss IS NOT a responsive pleading.
A: If the motion to dismiss has not yet been granted, it is submitted that
she can still amend the complaint as a matter of right following the ruling
of the Supreme Court in IRENE MARCOS-ARANETA vs. COURT OF
APPEALS.
When the defendant is served with summons, he may opt either to:
Or, if I am the defendant, I can file an answer. In my answer, I should
also include all the defenses available. Otherwise, if these defenses are
not set forth in the answer, except again for allowable grounds for motion
to dismiss, these defenses are deemed waived.
This principle is also similar with the case of:
GUNTALILIB vs. DELA CRUZ
G.R. No. 200042, July 07, 2016)
Q: So, what is the consequence if defendant filed his answer?
On July 14, 2009, respondents Aurelio and Salome dela Cruz filed a
Complaint for "Quieting Of Titles x x x; Annulment and Cancellation of
Unnumbered OCT/Damages," against petitioner Guntalilib and other
heirs of Bernardo (or Bernardino) Tumaliuan.
A: If the defendant files an answer, the plaintiff cannot amend his
pleading/complaint anymore as a matter of right. So that plaintiff has to
file a motion for leave of court to grant him leave to file an amended
complaint. Before service of the answer upon the plaintiff, he may still
amend his pleading as a matter of right and it doesn’t matter if he
subsequently receives the answer immediately after filing.
Petitioner and his co-defendants filed a Motion to Dismiss Civil Case No.
6975, arguing that the Complaint stated no cause of action; that the case
constituted a collateral attack on their unnumbered OCT; that
respondents failed to implead all the heirs of Bernardo Tumaliuan, who
are indispensable parties to the case; and that the Complaint's
verification and certification on non-forum shopping were defective.
That would be the distinction.
Side comment: Take note class that this should not have been through
a motion because it was BEFORE a responsive pleading was filed, it
was just a motion to dismiss which is filed by the defendant. Anyway.
HYPOTHETICAL EXAMPLES:
Emily sues Michelle for non-payment of a loan, she attached therein (in
the complaint) a contract of loan that became due and demandable
August 15, 2009. Upon being served with summons, Michelle files a
motion to dismiss on the ground of prescription because more than 10
years has already elapsed from the time that the obligation became due
and demandable or the cause of action accrued. However, Emily
realized that the claim in her complaint the August 15, 2009 debt was a
clerical error. She should have alleged instead that it became due and
demandable August 15, 2010.
Now, as we said, Michelle already filed a motion to dismiss on the
ground of prescription.
What should Emily, the plaintiff, do?
Can she file a motion for leave of court to amend the complaint?
Does she have to refile the case and reflect the true date?
Actually, Emily can still amend her answer as a matter of right because
she did not file a responsive pleading. A motion to dismiss is NOT a
responsive pleading. The rule to remember is that amendment is matter
of right before service of a responsive pleading. A motion to dismiss is
NOT a responsive pleading. In fact, it is not even a pleading.
IRENE MARCOS-ARANETA vs. COURT OF APPEALS
G.R. No. 154096, August 22, 2008
Responsive pleadings are those which seek affirmative relief and/or set
up defenses, like an answer. A motion to dismiss is not a responsive
pleading for purposes of Sec. 2 of Rule 10. Remember, there are only 7
responsive pleadings under the rules of court and a motion to dismiss is
not one of them.
ANOTHER EXAMPLE:
Emily sues Michelle for non-payment of a loan but she failed to attach a
certification of non-forum-shopping. Under Rule 7, Section 5, failure to
comply with the requirement shall not be curable by mere amendment
Respondents filed a Motion for Admission of Amended Complaint
arguing in their Opposition (Ad Cautelam), with attached Amended
Complaint for "Quieting Of Titles x x x; Cancellation of Unnumbered
OCT/Damages." Apart from incorporating the same allegations
contained in their original Complaint, respondents further alleged in said
Amended Complaint that their mother title, OCT 213 which was issued
on August 7, 1916, should prevail over the petitioner's unnumbered OCT
which was issued only on August 29, 1916; that petitioner and his coheirs had prior knowledge of the dela Cruzes' previous and existing
titles, and were never in possession of Lot 421; and that through fraud,
false misrepresentations, and irregularities in the proceedings for
reconstitution (LRC Case No. 6544), petitioner was able to secure a
copy of his predecessor's supposed unnumbered OCT.
Comment: They actually corrected the lapses which they committed in
the complaint and this time, the plaintiff already complied with the rule
on verification and certification on forum shopping.
Petitioner and his co-defendants opposed the Motion for Admission of
Amended Complaint, that the motion was a mere scrap of paper
because it did not comply with Sections 4, 5 and 6 of Rule 15 of the 1997
Rules of Civil Procedure (1997 Rules), as no date of hearing was set
and the motion was addressed to the Clerk of Court alone (Not the
opposing counsel); that the verification and certification on non-forum
shopping contained in the original Complaint, being defective, could not
be cured by the subsequent filing of the Amended Complaint; and that
the Amended Complaint was improper and prohibited, as it is essentially
aimed at setting aside the Decision in LRC Case No. 6544 issued by a
court of concurrent jurisdiction.
RULING:
Petitioner's claim that the trial court should not have admitted
respondents' Amended Complaint since the original Complaint on which
it was based is void for being a mere scrap of paper as it contained a
defective verification and certification against forum-shopping, is
fundamentally absurd. A party to a civil case is precisely given the
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opportunity to amend his pleadings, under certain conditions, in order to
correct the mistakes found therein; if one were to follow petitioner's
reasoning, then the rule on amendment of pleadings might just as well
be scrapped, for then no pleading would be susceptible of amendment.
Also, their contention that the motion to admit the amended complaint
was defective allegedly because it was not set for hearing, that there
was no notice of hearing, that it was addressed to the clerk of court, IT
DOES NOT MATTER because again, when an amendment is a
MATTER OF RIGHT, you don’t need to file a motion to allow you to file
the amended complaint because it is a matter of right. You just file your
amended complaint.
In the present case, respondents' Complaint was amended even before
petitioner (defendant) could file any responsive pleading thereto; under
the 1997 Rules (ALSO UNDER THE AMENDED RULES), a party may
amend his pleading once as a matter of right at any time before a
responsive pleading is served. No motion to admit the same was
required; as the amendment is allowed as a matter of right, prior leave
of court was unnecessary. Indeed, even if such a motion was filed, no
hearing was required therefor, because it is not a contentious motion.
Now, going back to our previous example, in that case filed by Emily
against Michelle:
Q: What if the judge is very prompt and proceeded to dismiss the case
after receipt of the motion filed by Michelle? What should Emily do?
The Supreme Court answered that in the case of BAUTISTA vs. MAYAMAYA COTTAGES, INC.
BAUTISTA vs. MAYA-MAYA COTTAGES, INC.
G.R. No. 148411, November 29, 2005
The Plaintiff may file an amended complaint even after the original
complaint was ordered dismissed, PROVIDED THAT THE ORDER OF
DISMISSAL IS NOT YET FINAL.
THE RULE IS MANDATORY IN CHARACTER. A party’s failure to
comply with the law will result in the decision becoming final and
executory and, as such, can no longer be modified or reversed.
COMMENTARY: WHY? When a decision becomes final and executory,
it already becomes immutable and cannot be modified and it is beyond
the power of the court to amend the same after the lapse of the
reglementary period to file an appeal.
Thus, it is beyond the power or jurisdiction of the court which rendered
the decision or order to amend or revoke the same after the lapse of the
fifteen-day reglementary period to file an appeal.
RIGHT TO AMEND PLEADING AS A MATTER OF RIGHT IS NOT
AFFECTED BY OTHER PROCEEDINGS
SEEKING DISMISSAL OF THE VERY SAME COMPLAINT YOU ARE
SEEKING TO AMEND
REMINGTON INDUSTRIAL SALES CORPORATION vs. COURT OF
APPEALS, ET AL.
G.R. No. 133657, May 29, 2002
Plaintiff filed a complaint for sum of money and damages arising from
breach of contract, before the Regional Trial Court of Manila.
Defendant moved for the dismissal of the complaint on the ground that
it failed to state a cause of action. The RTC denied the motions to
dismiss, as well as the ensuing motion for reconsideration.
Defendant filed a petition for certiorari and prohibition before the Court
of Appeals, alleging that the RTC was wrong in denying its motion to
dismiss.
Facts
Q: So, you can still amend. But when is a dismissal considered final?
UNDER RULE 36, SECTION 2:
COMMENT: So, all those allegations of the defendant in
his MTD, saying your complaint failed to state a cause of
action, the plaintiff addressed them by filing his amended
complaint.
Section 2. Entry of judgments and final orders. — If no appeal or
motion for new trial or reconsideration is filed within the time provided
in these Rules, the judgment or final order shall forthwith be entered
by the clerk in the book of entries of judgments. The date of finality
of the judgment or final order shall be deemed to be the date of its
entry. The record shall contain the dispositive part of the judgment or
final order and shall be signed by the clerk, within a certificate that
such judgment or final order has become final and executory.
Pursuant to Section 2, Rule 10 of the Rules of Court, the
plaintiff maintained that it can amend the complaint as a
matter of right because respondent has not yet filed a
responsive pleading thereto.
Thereafter, the Court of Appeals rendered the assailed
decision granting the writ of certiorari and ordering the
RTC judge to dismiss without prejudice the plaintiff’s
Complaint.
COMMENT: The rule says: 15 days – you have 15 days to file your
motion for new trial or reconsideration.
Q: What if the Motion to Dismiss filed by the defendant was granted and
it became final and executory? Can you still amend your complaint?
Because again, under the amended rules, you can amend before the
filing of a responsive pleading so in such case, amendment is a matter
of right. Can you still amend? NO.
NATIONAL MINES AND ALLIED WORKERS UNION vs.
CALDERON
G.R. No. 157232, December 10, 2007
In the present case, however, THE MOTION TO FILE AN AMENDED
COMPLAINT WAS FILED ONE MONTH AFTER THE ORDER OF THE
TRIAL
COURT
DISMISSING
PRIVATE
RESPONDENT’S
COMPLAINT BECAME FINAL due to the latter’s failure to perfect an
appeal.
AS A RULE, THE AGGRIEVED PARTY MUST PERFECT HIS
APPEAL WITHIN THE PERIOD AS PROVIDED FOR BY LAW.
The plaintiff was actually wise because while the petition
for certiorari was pending at the CA, the plaintiff sought to
amend its complaint with the RTC by incorporating therein
additional factual allegations constitutive of its cause of
action against the defendant.
Issue
Can a complaint still be amended as a matter of right
before an answer has been filed, even if there was a
pending proceeding for its dismissal before the higher
court?
RULING: YES. Prior to the filing of an answer, the plaintiff has the
absolute right to amend the complaint whether a new cause of action or
change in theory is introduced. The reason for this rule is implied in the
subsequent Section 3 of Rule 10. UNDER THIS PROVISION,
SUBSTANTIAL AMENDMENT OF THE COMPLAINT IS NOT
ALLOWED WITHOUT LEAVE OF COURT AFTER AN ANSWER HAS
BEEN SERVED, because any material change in the allegations
contained in the complaint could prejudice the rights of the defendant
who has already set up his defense in the answer.
Conversely, it cannot be said that the defendant’s rights have been
violated by changes made in the complaint if he has yet to file an
answer thereto. In such an event, the defendant has not presented any
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defense that can be altered or affected by the amendment of the
complaint in accordance with Section 2 of Rule 10. The defendant still
retains the unqualified opportunity to address the allegations against him
by properly setting up his defense in the answer. Considerable leeway
is thus given to the plaintiff to amend his complaint once, as a matter of
right, prior to the filing of an answer by the defendant.
The right granted to the plaintiff under procedural law to amend the
complaint before an answer has been served is not precluded by the
filing of a motion to dismiss or any other proceeding contesting its
sufficiency. Were we to conclude otherwise, the right to amend a
pleading under Section 2, Rule 10 will be rendered nugatory and
ineffectual, since all that a defendant has to do to foreclose this remedial
right is to challenge the adequacy of the complaint before he files an
answer.
COMMENT: Besides, if you think about it, the dismissal before the CA
(meaning, when the CA granted the petition for certiorari), what was
dismissed was the original complaint but the original complaint was
already superseded by the amended complaint. So, even if there was a
dismissal subsequent to the amendment of the complaint that dismissal
did not affect the right of the plaintiff who amended his complaint prior
to the dismissal of the CA. Again, the subject of the petition for certiorari
before the CA was actually the original complaint.
Moreover, amendment of pleadings is favored and should be liberally
allowed in the furtherance of justice in order to determine every case as
far as possible on its merits without regard to technicalities. This
principle is generally recognized to speed up trial and save party litigants
from incurring unnecessary expense, so that a full hearing on the merits
of every case may be had and multiplicity of suits avoided.
In this case, the remedy espoused by the appellate court in its assailed
judgment will precisely result in multiple suits, involving the same set of
facts and to which the defendants would likely raise the same or, at least,
related defenses. Plainly stated, we find no practical advantage in
ordering the dismissal of the complaint against respondent and for
petitioner to re-file the same, when the latter can still clearly amend the
complaint as a matter of right. THE AMENDMENT OF THE
COMPLAINT WOULD NOT PREJUDICE RESPONDENTS OR DELAY
THE ACTION, AS THIS WOULD, IN FACT, SIMPLIFY THE CASE AND
EXPEDITE ITS DISPOSITION.
SECTION 3. AMENDMENTS BY LEAVE OF COURT. — Except as
provided in the next preceding Section, substantial amendments
may be made only upon leave of court. But such leave shall be
refused if it appears to the court that the motion was made with
intent to delay or confer jurisdiction on the court, or the pleading
stated no cause of action from the beginning which could be
amended. Orders of the court upon the matters provided in this
Section shall be made upon motion filed in court, and after notice
to the adverse party, and an opportunity to be heard. (3a)
AMENDMENTS BY LEAVE OF COURT
Previously, we discussed amendment as a matter of right. Now, we go
to AMENDMENT AS A MATTER OF DISCRETION. This means that
the amendment requires leave of court.
Q: Under Section 3 of Rule 10, when is leave of court required?
A: 1ST SITUATION — Leave of court is required for an amendment made
AFTER SERVICE OF A RESPONSIVE PLEADING (Sec. 3, Rule 10,
Rules of Court). This rule assumes more force and effect especially
when the amendment is substantial.
COMMENT: If the defendant has already filed his answer, it is no longer
a matter of right on the part of the plaintiff to amend his complaint. He
has to seek leave of court. He cannot just change his cause of action or
add a new defendant or add a new cause of action without seeking prior
leave of court.
A: 2ND SIUATION — In addition, even if a responsive pleading has not
yet been filed but the amendment is not the first amendment, leave of
court is already required.
COMMENT: Again, you can amend your pleading only once. So, if it’s
not the first amendment, you need to file a motion for leave to amend
your pleading.
So in these 2 cases:
1. Amendment is not a matter of right.
2. Amendment requires leave of court.
3. Amendment is a matter of discretion.
REASON FOR THE RULE
Q: Why is it that after a responsive pleading is filed, amendment
needs leave of court?
A: Under this provision, substantial amendment of the complaint is not
allowed without leave of court after an answer has been served,
because any material change in the allegations contained in the
complaint could prejudice the rights of the defendant who has already
set up his defense in the answer.
AFTER A RESPONSIVE PLEADING IS FILED, AN AMENDMENT TO
THE COMPLAINT MAY BE SUBSTANTIAL AND WILL
CORRESPONDINGLY REQUIRE A SUBSTANTIAL ALTERATION IN
THE DEFENSES OF THE ADVERSE PARTY. The amendment of the
complaint is not only unfair to the defendant but will cause unnecessary
delay in the proceedings.
Leave of court is thus, required. On the other hand, where no responsive
pleading has yet been served, no defenses would be altered. The
amendment of the pleading will not then require leave of court
(SIASOCO vs. COURT OF APPEALS, 303 SCRA 186).
Take note also under Rule 6, Section 10 THAT IF THERE ARE NEW
MATTERS ALLEGED IN THE ANSWER AND THE PLAINTIFF
WISHES TO INTERPOSE ANY CLAIMS ARISING OUT OF THE NEW
MATTERS SO ALLEGED, SUCH CLAIMS SHALL BE SET FORTH IN
AN AMENDED OR SUPPLEMENTAL COMPLAINT.
Under the previous rule – file a reply
Under the amended rule – set forth the claims in an amended or
supplemental complaint.
INSTANCES WHEN LEAVE OF COURT SHOULD BE DENIED
If it appears to the court that:
1.
The motion was made with intent to delay; or
COMMENT: For example, from the filing of the complaint, several
incidents have already happened. Then, after 3 years (after the
defendant has filed his answer), you are now seeking to amend your
complaint and the amendment you want to incorporate is apparent from
the beginning or few months after the court started the trial. In that case,
it is obvious that there is intent to delay because the plaintiff could have
done it sooner.
2.
The amendment is intended to confer jurisdiction on the
court; or
3.
The pleading stated no cause of action from the
beginning which could be amended.
COMMENT: Prior to amendment, only #1 was mentioned in the rules
and nos. 2 and 3 are in jurisprudence.
4.
Other reason for denial:
Rule 7, Section 5. Certification against forum shopping. — XXX
Failure to comply with the foregoing requirements shall not be
curable by mere amendment of the complaint or other initiatory
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pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing.
Xxx.
COMMENT: What we have discussed before are those cases where
amendment is a matter of right. So, in those cases, even if the complaint
is said to be defective because it failed to comply with the rules on proper
certification against forum shopping, the Supreme Court said that
because amendment is still a matter of right, there being no responsive
pleadings filed yet, then amendment could be allowed. Otherwise, the
rule on amendment as a matter of right would be rendered nugatory.
But here, if there is already a responsive pleading and you are seeking
to amend your complaint, which is defective because it failed to comply
with the rules on certification against forum shopping, it is already the
discretion of the court — WON it will allow the amendment of the
complaint.
The rule clearly says it hall not be curable by mere amendment of the
complaint.
Defendant filed a motion to dismiss on the ground that the amount
sought to be recovered is beyond the jurisdiction of the court and that
there are no allegations in the complaint showing that the defendant was
unlawfully withholding the premises from the plaintiff.
Before action could be taken on the motion to dismiss, the plaintiff
amended the complaint, to include the requisite allegations.
The court denied the motion to dismiss and the opposition to the
amended complaint. The court ruled that since no responsive pleading
was served at the time of the amendment, the plaintiff had done so as a
matter of course. Reiterating the rule that a motion to dismiss is not a
responsive pleading, the Supreme Court sustained the trial court.
2. AMENDMENT TO CORRECT A JURISDICTIONAL DEFECT
AFTER A RESPONSIVE PLEADING IS SERVED
Cannot be validly done after a responsive pleading is served.
Why not?
SITUATION: You already filed your complaint but it is defective because
there’s no certificate against forum shopping attached to your complaint
and then the defendant already filed his answer and one of his defenses
is that there is a defect in your complaint and you filed a motion to allow
you to amend you complaint but the court denied the motion.
REMEDY: Just refile your complaint and comply with the rules against
forum shopping but you will be made to pay docket fees again.
THE AMENDMENT IS INTENDED TO CONFER JURISDICTION ON
THE COURT
Based on jurisprudence, there 2 instances you have to consider:
1. AMENDMENT TO CORRECT A JURISDICTIONAL DEFECT
BEFORE A RE-SPONSIVE PLEADING IS SERVED
A fair reading of jurisprudence recognizes the right of a pleader to
amend his complaint before a responsive pleading is served even if its
effect is to correct a jurisdictional defect. The argument that the court
cannot allow such type of amendment since the court must first possess
jurisdiction over the subject matter of the complaint before it can act on
any amendment has no application upon an amendment that is made
as matter of right.
GUMABAY vs. BARALIN, 77 SCRA 258
The complaint filed with the then Court of First Instance (now Regional
Trial Court), was a complaint alleging forcible entry.
The defendants did not file an answer, but instead filed a motion to
dismiss alleging that the court has no jurisdiction over an action for
forcible entry.
Without waiting for the resolution of the motion to dismiss, the plaintiff
filed an amended complaint with new allegations which transformed the
original allegations of forcible entry into an action for quieting of title, an
action which at that time was solely cognizable by the Court of First
Instance.
The trial court admitted the amended complaint, ordered the defendants
to answer it and denied the motion to dismiss.
RULING: The Supreme Court sustained the trial court as being
consistent with the purpose and spirit of the Rules
Amendment after responsive pleading requires leave of court. The
exercise of this discretion requires the performance of a positive act by
the court. If it grants the amendment, it would be acting on a complaint
over which it has no jurisdiction. Its action would be one performed
without jurisdiction.
This is different from an amendment before a responsive pleading is
served or filed. Because in that case amendment is a matter of right and
you do not the court to act on the amendment. You simply file the
amended complaint it does not require any positive action by the court.
When a responsive pleading is already filed by the defendant you need
a positive action from the court and that the court cannot do if in the
original complaint the court does not have jurisdiction over the subject
matter. It is basic that when the court has no jurisdiction it has no
authority to act and its only power is to dismiss the case. It cannot do
any positive act such as allowing an amended complaint to be admitted
As held by the SC. The situation is vastly different from an amendment
as a matter of right. Here, the court does not act. The admission of the
amendment is a ministerial duty of the court. It requires no positive
action from the court. Since it would not be acting in this regard, it could
not be deemed as acting without jurisdiction.
SPOUSES TIRONA, ET AL., vs. HON. FLORO P. ALEJO, ET AL.
G.R. No. 129313, October 10, 2001
The policy in this jurisdiction is that amendments to pleadings are
favored and liberally allowed in the interests of substantial justice. Thus,
amendments of the complaint may be allowed even if an order for its
amendments of the complaint may be allowed even if an order for its
dismissal has been issued so long as the motion to amend is filed before
the order of dismissal acquired finality. Note, however, that it is not a
hard and fast rule. An amendment is not allowed where the court has no
jurisdiction over the original complaint and the purpose of the
amendment is to confer jurisdiction upon the court, or where the action
originally pleaded in the complaint was outside the jurisdiction of the
court.
Read also the cases of:
CAMPOS RUEDA vs. BAUTISTA
6 SCRA 240
SOLEDAD vs. MAMANGUN, 8 SCRA 110
ROSARIO AND UNTALAN vs. CARANDANG, ET AL.
G.R. No. L-7076, 96 Phil. 845, 850 (1955)
Case filed before the City Court of Manila to recover unpaid rentals with
a prayer that an order be issued for the surrender of the premises by the
defendant to the plaintiff.
A complaint cannot be amended to confer jurisdiction on the court in
which it was filed, if the cause of action originally set forth was not within
the court's jurisdiction"
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The principles to remember are:
1.
When the court admits an amendment made by the pleader
as a matter of right, it is acting on a purely ministerial duty. No discretion
is exercised. It is not exercising its jurisdiction. Hence, it cannot be
deemed to be acting on a matter over which it has no jurisdiction;
2.
When the court is confronted with a proposed amendment
made by the pleader not as a matter of right, the court has to exercise
its discretion. If it has to exercise its discretion, the court will have to
exercise its jurisdiction. Since the complaint as filed and before
amendment is not within the court’s jurisdiction, it has no power to act
on the amendment.
The third ground for the court to deny a motion for leave to file an
amended pleading is when
THE PLEADING STATED NO CAUSE OF ACTION FROM THE
BEGINNING WHICH COULD BE AMENDED
What do we mean by this? When we look at the previous rule.
If the complaint failed to aver the fact that certain conditions precedent
were undertaken and complied with, the failure to so allege the same
may be corrected by an amendment of the complaint under the previous
rule. Even under the present Section 5 of Rule 10, there are situations
wherein evidence not within the issues raised in the pleadings is
presented by the parties during the trial and was not objected to. Thus,
a complaint which fails to state a cause of action may be cured by
evidence presented during the trial.
However, if during the course of the proceedings, evidence is offered on
the fact of payment without objection from the debtor, the defect in the
complaint was cured by the evidence. (PHILIPPINE EXPORT AND
FOREIGN
LOAN
GUARANTEE
CORP.
vs.
PHILIPPINE
INFRASTRUCTURES, INC., 419 SCRA 6).
Thus, the principle to remember is: FAILURE TO STATE A CAUSE OF
ACTION MAY BE CURED.
But the SC emphasized that.
This is different from a complaint which merely fails to state a cause of
action that can actually be remedied.
If the complaint itself lacks a cause of action for example at the time
when the complaint was filed, there was really no cause of action but
subsequent to the filing of the complaint the cause of action accrued.
So, can you now amend your complaint to reflect the cause of action
which you now have at present?
May a complaint that lacks a cause of action at the time it was filed be
cured by the accrual of a cause of action during the pendency of the
case?
SWAGMAN HOTELS AND TRAVEL, INC. vs. COURT OF APPEALS
G.R. No. 161135, April 8, 2005, 455 SCRA 175
When the case was filed none of the promissory notes subject of the
action was due and demandable but two of the notes became due during
the pendency of the action.
According to the trial court as sustained by the Court of Appeals, Sec. 5
of Rule 10 allows a complaint that does not state a cause of action to be
cured by evidence presented without objection during the trial. The trial
court ruled that even if the private respondent had no cause of action
when he filed the complaint for a sum of money and damages because
none of the three promissory notes was due yet, he could nevertheless
recover on the first two promissory notes which became due during the
pendency of the case in view of the introduction of evidence of their
maturity during the trial.
Issue: Can the amendment be allowed?
Ruling: NO. Amendments of pleadings are allowed under Rule 10 of the
1997 Rules of Civil Procedure in order that the actual merits of a case
may be determined in the most expeditious and inexpensive manner
without regard to technicalities, and that all other matters included in the
case may be determined in a single proceeding, thereby avoiding
multiplicity of suits. Section 5 thereof applies to situations wherein
evidence not within the issues raised in the pleadings is presented by
the parties during the trial, and to conform to such evidence the
pleadings are subsequently amended on motion of a party. Thus, a
com-plaint which fails to state a cause of action may be cured by
evidence presented during the trial.
However, the curing effect under Section 5 is appli-cable only if a cause
of action in fact exists at the time the complaint is filed, but the complaint
is defective for failure to allege the essential facts. For example, if a
complaint failed to allege the fulfillment of a condition precedent upon
which the cause of action depends, evidence show-ing that such
condition had already been fulfilled when the complaint was filed may
be presented during the trial, and the complaint may accordingly be
amended thereaf-ter. Thus, in Roces v. Jalandoni, this Court upheld the
trial court in taking cognizance of an otherwise defective complaint which
was later cured by the testimony of the plaintiff during the trial. In that
case, there was in fact a cause of action and the only problem was the
insufficiency of the allegations in the complaint. It thus follows that a
complaint whose cause of action has not yet accrued can-not be cured
or remedied by an amended or supplemental pleading alleging the
existence or accrual of a cause of action while the case is pending. Such
an action is prema-turely brought and is, therefore, a groundless suit,
which should be dismissed by the court upon proper motion sea-sonably
filed by the defendant. The underlying reason for this rule is that a
person should not be summoned before the public tribunals to answer
for complaints which are immature.
DISTINCTIONS BETWEEN LACK OF CAUSE OF ACTION
AND FAILURE TO STATE A CAUSE OF ACTION
(NON-EXISTENT versus IMPERFECT)
The following are the distinctions:
NON EXISTENT
In a NON-EXISTENT cause of
action, there is yet no delict or
wrong committed by the
defendant
(Limpangco
vs.
Mercado, 10 Phil. 508)
NON-EXISTENT
cause
of
action is not curable by
amendment (Limpangco vs.
Mercado, 10 Phil. 508; Surigao
Mine vs. Harris, 68 Phil. 113)
IMPERFECT
whereas in an IMPERFECT
cause of action, a delict or
wrong has already been
committed and alleged in the
complaint, but the cause of
action is incomplete (Alto Surety
vs. Aguilar, L-5625, March 16,
1945)
an IMPERFECT cause of action
is curable by amendment (Alto
Surety vs. Aguilar, L-5625,
March 16, 1945; Ramos vs.
Gibbon, 67 Phil. 371).
These cases of jurisprudence are now incorporated in the now amended
rules.
REPUBLIC OF THE PHILIPPINES, represented by THE
SECRETARY OF THE DEPARTMENT OF PUBLIC WORKS AND
HIGHWAYS (DPWH)
vs. TETRO ENTERPRISES, INCORPORATED
(G.R. No. 183015, January 15, 2014)
The original case which respondent filed in 1992 was for recovery of
possession, which the RTC, with the parties' conformity, converted into
an expropriation case as recovery of the subject lot was no longer
possible.
Pre-trial of the case had long taken place in 1994. The expropriation
case was then decided by the RTC on March 29, 1996, fixing the value
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of the subject lot in the total amount of ₱75,858,000.00 as just
compensation.
RTC decision was modified by the CA's Former Third Division in a
Decision dated May 24, 2001, docketed as CA-G.R. CV No. 60492,
reducing the amount of just compensation to ₱252,869.00 plus 6%
interest from 1974 until full payment thereof and ordered the remand of
the case to the RTC for further determination of other damages
respondent suffered for the loss of use and enjoyment of its property.
If the amendment introduces a NEW AND DIFFERENT CAUSE OF
ACTION, then the prescriptive period is deemed interrupted upon the
filing of the amended complaint; (RUYMANN vs. DIR. OF LANDS, 34
Phil. 428)
WHERE THE AMENDMENT HAS
a. NOT ALTERED OR CHANGED the original cause of action; or
b. no different cause of action is introduced in the amended complaint;
The CA decision was brought to the SC in a petition for review on
certiorari which, in a Resolution dated October 2, 2002, denied the same
and affirmed the CA decision. In ordering the remand of the case to the
RTC, the CA then said:
x x x In addition to the actual value of the land at the time of the taking,
plus legal interest thereon, plaintiff-appellee is likewise entitled to
damages. The subject property used to be a sugar land earmarked for
a subdivision, but no evidence was adduced before the trial court. Any
attempt on our part to award damages in the present appeal would then
be purely speculative. Thus, there is a need to remand this case to the
court of origin to determine the amount of damages that plaintiff-appellee
suffered since 1974 as the lawful owner of the property unduly deprived
of its use and enjoyment for twenty-seven years
Respondent's contention that amending the complaint to include
reasonable rental value for the deprivation of the use and enjoyment of
the land is the logical implication of the CA ruling is not persuasive. It
cannot be clearly inferred from the CA decision that when it remanded
the case to the RTC for determination of damages respondent suffered
that the former referred to indemnity for rentals. Assuming that the CA
did refer to the rentals on the subject lot, it bears stressing that when it
modified the RTC's award of just compensation, it reckoned the value of
the land on the date of its actual taking. The owner of the private
property should be compensated only for what he actually loses; it is not
intended that his compensation shall extend beyond his loss or injury.
And what he loses is only the actual value of his property at the time it
is taken. This is the only way that compensation to be paid can be truly
just; i.e., "just not only to the individual whose property is taken," "but to
the public, which is to pay for it."
The problem here was that when the case was remanded to the RTC
and during the preliminary conference. The respondent actually
manifested his intention to amend the complaint because he wanted to
include reasonable rental value for the deprivation of the use and
enjoyment of the land which was expropriated.
Would that amendment be proper in that stage of the proceedings?
Then the interruption of the prescriptive period retroacts on the date of
the filing of the original complaint. (PANTRANCO vs. PHIL. FARMING
CO., 81 Phil. 273).
Furia
Summary type of amendments
As to foundation:
1.
Amendment as a Matter of Right; and
2.
Amendment by Leave of Court or amendment as a Matter of
judicial Discretion
As to Nature:
1.
Formal Amendment; and
2.
Substantial Amendment.
Discussion: Now based on what we have discussed so far, what are
the different types of amendment under the rules of court?
Basically there are two classifications of amendments; 1. As to
foundation; 2. As to nature. When it comes to amendment as to
foundation, we have amendment as a Matter of Right; and Amendment
by Leave of Court or Amendment as a matter of Judicial Discretion. Now
as to Nature we have 1. Formal Amendment; and 2. Substantial
Amendment.
So now, let’s go to Formal Amendments
Section 4. Formal Amendments. – A defect in the designation
of the parties and other clearly clerical typographical errors
may be summarily corrected by the court at any stage of the
action, at its initiative or on motion, provided no prejudice is
caused thereby to the adverse party.
Formal Amendments as a matter of right
Question: Is there any other instance when amendment is a matter of
right even if there is already an answer?
Was the amendment proper?
NO. Clearly, the only thing the RTC was asked to do when the case was
remanded to it by the CA was to determine the damages respondent is
entitled to for the loss of the use and enjoyment of the property when the
property was taken from it in 1974. Thus, when the case was remanded
to the RTC for the purpose of computing the damages, the case was not
considered a new case where an amendment of the complaint may still
be allowed. Rather, it is merely a continuation of the trial of the original
complaint filed in 1992 only for the purpose of receiving the evidence of
the damages which respondent allegedly suffered as alleged in the
original complaint, since no evidence proving damages was received
and passed upon when the RTC issued its Order dated March 29, 1996.
Therefore, the above-quoted provisions on amendments of pleading find
no applicability in this case.
Answer: Yes there is a second instance, when the amendment is
FORMAL IN NATURE as found in Section 4.
When the amendment is merely a formal:
•
It can be done anytime
•
It can be summarily corrected by the court at any stage of the
action (upon motion or even without motion)
•
Discussion:
We discussed before that before a responsive pleading is filed by the
defending party, amendment is a matter of right. So that is one instance
when amendment is a matter of right.
Because it was not an original case. It was merely a continuation of a
trial and there was already a decision rendered by the RTC, CA and SC.
Is there any other instance under the rules of court when the
amendment is a matter of right?
When an original complaint is amended, when is the prescriptive period
for filing the action interrupted? Is it upon the filing of the original
complaint? Or upon the filing of the amended complaint? It depends
upon the nature of the amendment.
Yes, that would be Formal Amendment. So take note that formal
amendment it does not even matter whether or not the defendant has
already filed a responsive pleading when it is a formal amendment even
after the responsive pleading is already filed it is still a matter of right. It
can be done anytime, as a matter of fact it can be summarily corrected
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Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
by the court at any stage of the action upon motion or even without
motion the court will order the amendment.
Just remember what we discussed before, you can only amend your
pleading as a matter of right so if it is the second time that you amend
then in that case you will need if with leave of court and applies also to
formal amendment.
When is an Amendment Formal?
How do we know on whether or not it is a formal amendment? Or it is a
substantial amendment? So these are the guidelines to which the rules
give us:
It is formal if the defect relates to:
1. The designation of the parties; and
2. Other clearly clerical or typographical errors.
Standards to be considered in determining whether the
amendment is formal or substantial is: Whether or not prejudice is
caused to the adverse party by the amendment.
Question: When is there considered to be prejudice to the adverse
party?
Answer is in the case of: Remington Industrial Sales Corporation Vs
Court of Appeals, et al., Gr no. 133657, May 29, 2002. The standard
here given by the Supreme Court is if the amendment will alter the
defense it is not simply a formal amendment.
Example: In the complaint the amount alleged is P40,000 however, the
plaintiff would like to modify or amend his complaint to change to amount
because according to him this is just a typographical error. Do we
consider this a formal amendment because it is just a typographical
error?
General Rule: A change of amount of damages claim is only formal
because there is no change in the cause of action.
he actually suffered actual damages of 400,000 it was just a clerical error
the 40,000. Will that principle apply? Would these circumstances will
prejudice that defendant if the amount claimed is based on actual
damages?
For example the reason why the plaintiff really wanted to change the
amount from 40,000 to 400,000 is because he found additional receipts
and then when he computed he actually suffered not only 40,000 but
400,000 and in the complaint the receipts he attached are only 40,000,
now he would like to include additional receipts for 400,000. So in this
particular example, do we still consider the amendment as formal?
Changing from 40,000 to 400,000? Now what if by changing the amount
the defense of the defendant will also be altered because for example
going back to the 40,000 the defendant says in his defense granting that
owe that plaintiff that amount but I already paid. So I can present
evidence that there is an acknowledgement receipt for the P40, 000
when the defendant paid the plaintiff. But now if the plaintiff would claim
400,000, so the defendant who already answered and would like to
defend himself from the additional claim of the plaintiff over and above
the 40,000 the defendant would need to set forth new possible defenses
like, maybe he also paid already the excess from the 40,000 or in so far
as that excess is concerned he was just forced to signed the promissory
note or his consent was vitiated, he was not of sound mind at the time
or the amount had already been prescribed.
So here, if the defense of the defendant will be substantially altered, by
reason of the amendment, it is no longer considered as a formal defect.
So what is the consequence if it would not be considered as a formal
defect? Do we mean to say that that plaintiff can no longer amend his
complaint? No. He can still amend provided that he is allowed by the
court and for this purpose the plaintiff should file a motion for leave to
allow him to file an amended pleading. If the court finds that the
amendments sought shall serve the higher interest of substantial justice
probably the court will grant also the with leave the file an amended
complaint.
Example: Your cause of action is for breach of contract, quasi delict,
you don’t change your cause of action, you just change the amount
stated in your complaint.
However, take note that recovery of actual damages would hinge on two
requisites (How do you recovery from actual damages):
1.
You have to properly plead it
2.
You have to be able to prove it.
However the same principle stated applies squarely to damages where
no proof of actual loss is required (i.e., moral damages, exemplary
damages). How is that possible? For example you are claiming moral
damages or exemplary damages, actually when you claim for moral
damages you merely state that you suffered sleepless nights, moral
shock, mental anguish, serious anxiety and others. You do not actually
present evidence on how did you incur these damages.
So, going back to the first requirement that is why if you actually have a
higher claim than the amount set forth in your complaint, for you to be
able to recover that higher amount, generally you have to plead it in your
complaint and if the amount stated in the complaint is not correct, you
have to amend your complaint.
The defense of the defendant would remain the same. He will not be
able to change it. So in that case he will not be prejudiced if he will be
allowed to change the amount from 40,000 to 400,000.
Question: However does this principle apply to actual damages, if we
consider the rule that one is entitled to such compensation as he has
duly proved?
Suppose that A
is claiming actual damages in the amount of P40,
000 but later amends it to be P400, 000 because he found more receipts.
If the defendant already answered, can this still be considered formal
defect?
So again it would matter as to what effect that amendment to the
defendant has. So it would determine whether or not that amendment is
merely formal or substantial.
However, what if the amount proven is different from the one pleaded?
It depends. If the amount proven is less than the amount pleaded, the
amount proven will be the measure of actual damages.
Question: What if the amount proved is greater the amount pleaded?
Can you recover the higher amount which is proved even if in your
complaint you merely pleaded the amount if 300,000 as the actual
damages suffered but during the trial it was actually proved by the
plaintiff that he suffered actual damages amounting to 500,000?
Answer: If the defense of the defendant will be substantially altered
(from a defense of payment for the P10, 000 to a defense of denial for
the additional amount claimed), it is no longer a formal defect.
If the amount proven is greater than the amount pleaded, the law is clear
that one is entitled to such compensation as he has duly proved. How
do we reconcile this variance? This is answered in Section 5.
Discussion: If the basis of the plaintiff in claiming for this amount would
be actual or compensatory damages so in the complaint he alleged
40,000 but in the complaint he wanted to amend the complaint because
Section 5. No amendment necessary to conform to or authorize
presentation of evidence. – When issues not raised by the
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91
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
pleadings are tried with the express or implied consent of the
parties, they shall be treated in all respects as if they had been
raised in the pleadings. No amendments of such pleadings
deemed amended are necessary to cause them to conform to the
evidence.(5a.)
Take note of the old rule
Sec. 5. Amendment to
presentation
conform
of
to
or
authorize
evidence.
When issues not raised by the pleadings are tried with the
express or implied consent of the parties, they shall be treated
in all respects as if they had been raised in the pleadings.
Such amendment of the pleadings as may be necessary
to cause them to conform to the evidence and to raise
these issues may be made upon motion of any party at
any time, even after judgment; but failure to amend does
not affect the result of the trial of these issues. If evidence
is objected to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the
pleadings to be amended and shall do so with liberality if the
presentation of the merits of the action and the ends of
substantial justice will be subserved thereby. The court may
grant a continuance to enable the amendment to be made.
Now let us compare the amended Section 5 of Rule 10 with the Old rule
of Section 5 of Rule 10. Just simply read it and the ones that are in bold
in the old provision are no longer present in the amended provision. So
take note ha.
Amendment necessary to conform to or authorize
presentation of evidence
General Rule: Objections and defenses not raised are deemed waived
In relation to Section 5 of this Rule, we first go back to Section 1 of Rule
9.
Basically it states that objections and defenses not pleaded are deemed
waived. So for example if you are the defendant, you should already
include in your motion to dismiss or in your answer all possible defenses
and objections that you may already have at the time you already filed
your answer. So, those additional defenses which are later on
discovered but were already present at the time when the answer I filed
or was just later on realized by the party. You can no longer raise them
because they are already deemed barred. Of course there are
exceptions when your defenses would lack of jurisdiction over the
subject matter, prescription, res judicata, litis pendencia
For reference:
Rule 9, Section 1. Defenses and objections not pleaded.
– Defenses and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived. However, when
it appears from the pleadings or the evidence on record that
the court has no jurisdiction over the subject matter, that there
is another action pending between the same parties for the
same cause, or that the action is barred by a prior judgment
or by statute of limitations, the court shall dismiss the claim.
General Rule: A defendant during the trial is not allowed to prove a
defense that it not raised in the pleadings based on Rule 9, Section 1.
This is so because the court has no jurisdiction over the issue
Exception: Section 5 is an exception to Rule 9, Section 1. It is a
relaxation of the rule specifically the first sentence: “ when issues not
raised in the pleadings are tried with the express or implied consent of
the parties, they shall be treated in all respects as if they had been
raised in the pleadings.” EXPRESS CONSENT is when the parties
manifest their consent in court as to taking up the unpleaded issue. In
the case of implied consent, the best example is when the defendant
attempts to prove an unpleaded defense and the plaintiff FAILED TO
OBJECT (E.g. Payment, Fraud)
Discussion: So as a general rule because of rule 9 section 1, you
cannot anymore raise during the trial those objections or defenses to
which you did not raise in your answer or in your motion to dismiss.
Why? Because by failure to raise these issues the court did not acquire
jurisdiction over the issue. We learned before how does the court
acquire jurisdiction over the issue? When these issues are raised in the
pleadings of the parties.
Are there instances when even if that parties failed to raise the issue
either as a defense in the motion to dismiss or as an objection? Can this
issue be tried and can afford take cognizance of these issues? Can the
court decide the case taking into account with these issues even if the
issues were not raised in the pleadings?
Yes! That would be Section 5 of Rule 10. However, take note that it
should be with the express or implied consent of the parties. Even if
these issues were not raised in the pleadings, but during the trial they
were raised without objection or with express consent of the parties.
How can there be a express consent or implied consent of the parties?
EXPRESS CONSENT is when the parties manifest their consent in court
as to taking up the unpleaded issue.
Example: During the pre-trial you are asked there to stipulate on the
admitted facts, what are the issues? So during pre-trial even if this issue
was not raised in the complaint or in the answer but both parties agree
during pre-trial that this is an issue which shall be submitted to the
resolution or determination of the court then it will be considered as part
of the issues even if this issue is not pleaded in the pleadings of the
parties.
In the case of implied consent, the best example is when the defendant
attempts to prove an unpleaded defense and the plaintiff FAILED TO
OBJECT.
Example: The plaintiff filed a case for collection, and then the answer
the defendant interposed several defenses like fraud, prescription but
the defendant failed to interpose the defense of payment. Now under the
rules, the defense is already deemed waived. However, during the trial
the defendant presented evidence, so he presented a witness to testify
and that witness also presented as part of the documentary evidence an
acknowledgement receipt seeking to prove that indeed that debt is
already fully or partially paid and it was not objected by the lawyer of the
plaintiff. Thus, that failure to object is considered as an implied consent
regarding that presentation of the defense of payment which in the first
place was not raised in the pleading.
Based on the principle of estoppel
Rule 10 Section 5 is based on the principle of estoppel. The parties are
in estoppel because they expressly or impliedly agreed to try an issue
which is not raised in the pleadings.
Note that the decision will not jibe with the pleadings. The pleadings are
not in harmony with the decision.
Discussion: So in case of Section 5 it is as if that the pleaded causes
of action or defense was raised in the pleadings. This is actually based
on the principle of estoppel because the parties already expressly or
impliedly agreed to try and issue which is not raised in the pleadings.
Now, when this happens you will notice that the decision will not jibe with
the allegations in the pleadings, if you read the complaint and the
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92
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
answer. For example there is no mention of payment but in the decision
it mentions payment and in fact maybe there is a reason why the case if
dismissed because there was already payment. So if we analyzed it in
this situation, the pleadings are not in harmony with the decision.
Implied amendment
In a situation where issues not raised in the pleadings are tried with
the express or implied consent of the parties, Section 5 of Rule 10 the
issues tried shall be treated in all aspects as if they had been raised in
the pleadings even if not actually previously raised in the pleadings.
There is no need to amend the pleadings. Under the previous rule, if the
parties fail to amend the pleadings, such failure will not affect the trial of
these issues because such issues are deemed to have been raised in
the pleadings of the parties. This provision under the old rules virtually
authorizes an implied amendment of the pleadings.
Discussion: Under the present rule, again, there is no need to amend
the pleadings because anyway even under the old rules, even if the
pleadings were not amended but for as long as these issues were raised
with the express or implied consent of the parties during the trial and
even if the issues were not raised in the pleadings, the can court can still
make judgment based on this issues which is tried with the express or
implied consent of the parties. Actually amendment is not really that
significant or relevant so maybe that is the reason why under the present
rule the Supreme said there is no need to amend the pleadings as long
as these issues were tried with express or implies consent of the parties
thus the court already acquires jurisdiction over those issues.
Additional Cases to Read:
1. NORTHERN
CEMENT
CORPORATION
VS
INTERMEDIATE APPELLATE COURT (158SCRA 408)
2. TALISAY-SILAY MILLING CO. VS ASSOCIATION DE
AGRICULTURES DE TALISAY-SILAY (247 SCRA 361)
3. BANK OF AMERICA VS AMERICAN REALTY
CORPORATION (G.R. No. 133876 December 29, 1999)
However please take note that of the ruling of the Supreme Court of the
ruling of Verzosa vs Court of Appeals where it clarified that the original
complaint is deemed superseded and abandoned by the amendatory
complaint only if the latter introduces a new or different cause of action.
So meaning if there is a different or new cause of action it is just not
merely an addition of a new complainant a new defendant but it is really
a new cause of action like the original complaint was Culpa Aquiliana
and the amended one is Culpa Contractual.
How about the admissions in the original pleading? If by reason of the
amendment, the original pleading is now deemed superseded. What
happens to the admissions made in the original pleading which are
favorable to the defendant?
In the case of Ching vs Court of Appeals the Supreme Court said that
the Admissions made in the original pleadings cease to be judicial
admissions. So if they cease to be judicial admissions, what is now the
status of these admissions? They are now considered extrajudicial
admissions. As held in the case of Bastida vs Menzi and Torres vs Court
of Appeals.
So when you say they are to be considered extrajudicial admissions,
what is the consequence? Can they still be used? Yes, they can still be
used. What is the effect? How can you use it? How do we distinguish
from judicial admissions?
Judicial Admissions
You don’t have to prove
them. The court can take
cognizance
of
these
admissions.
Extrajudicial Admissions
In order the court will take
cognizance, you will to offer
first as evidence
That is why in the present amended rules, it is very clear they must be
offered for the court to take cognizance of these admissions.
NONO
Effects of amendment
Section 8. Effect of amended pleadings. – An amended
pleading supersedes the pleading that it amends. However,
admissions in the superseded pleadings may be offered in
evidence against the pleader, and claims or defenses alleged
therein not incorporated in the amended pleading shall be
deemed waived.
On the original pleading
An amended pleading supersedes the original one which it amends
(Section 8, Rule 10, Rules of Court).
•
•
•
•
The original complaint is deemed superseded and abandoned
by the amendatory complaint only if the latter introduces a
new or different cause of action (Verzosa vs Court of
Appeals, 299 SCRA 100);Eg Culpa Aquiliana to Culpa
Contractual)
On admissions made in the original pleading
Admissions made in the original pleadings cease to be judicial
admissions (Ching vs Court of Appeals, 331 SCRA 16).
They are to be considered as extrajudicial admissions
(Bastida vs Menzi & Co., Inc., 58 Phil. 188; Torres vs Court of
Appeals, 131 SCRA 224).
They must in order to have such effect, be formally offered in
evidence (Ching vs Court of Appeals, 331 SCRA 16).
Discussion: What is the effect of Amendment? In so far as the original
pleading is concerned under Section 8 of Rule 10, it says that the
amended pleading supersedes the original one which it amends.
Now, what is the effect of amendment insofar as service of summons is
concern. For example, under the original complaint that you filed there
was already service of summons upon the defendants or maybe there
was yet no service of summons, what is the rule?
3. ON NECESSITY OF SUMMONS. Although the original
pleading is deemed superseded by the pleading that
amends it, it does not ipso facto follow that service of new
summons is required.
A. Where the defendants have already appeared
before the trial court by virtue of a summons in
the original complaint, the amended complaint
may be served upon them without need of
another summons, even if new causes of action
are alleged.
Reason: the court already acquired jurisdiction
by reason of the summons.
B. When the defendants have not yet appeared in
court, new summons on the amended complaint
must be served on them.
Reason: The trial court has not yet acquired
jurisdiction over them, a new summons for the
amended complaint is required (Vlason
Enterprises vs. Court of Appeals, 310 SCRA
26).
C. Where a new defendant is impleaded, summons
must be served upon him so that the court may
acquire jurisdiction over his person. The new
defendant cannot be deemed to have already
appeared by virtue of summons under the
original complaint in which he was not yet a party
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93
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
(Arcenas vs. Court of Appeals, 299 SCRA
733).
•
Note: It is not the change of a cause of action that gives
rise to the need to serve another summons for the
amended complaint but rather the acquisition of jurisdiction
over the persons of the defendants.
•
Now, although the original pleading is deemed superseded by the
pleading that amends it, it does not ipso facto follow that service of new
summons is required. It depends upon the circumstances:
1. Where the defendants have already appeared before the trial
court by virtue of a summons in the original complaint, the
amended complaint may be served upon them without need
of another summons, even if new causes of action are
alleged.
Why? Because a court’s jurisdiction continues until the case
is finally terminated once is it acquired.
2. When the defendants have not yet appeared in court, new
summons on the amended complaint must be served on
them.
It is not the change of a cause of action that gives rise to the
need to serve another summons for the amendment
complaint but rather the acquisition of jurisdiction over the
persons of the defendants. So, if the trial court has not yet
acquired jurisdiction over them because, even if there was
summons issued for the original complaint but not yet served,
a new summons for the amended complaint is required
(Vlason Enterprises vs. Court of Appeals, 310 SCRA 26).
3. Now, what if in the amendment complaint, even if there was
already service of summons upon the original defendants but
there is a new defendant who is being impleaded. What is the
rule?
Where a new defendant is impleaded in the amended
complaint, summons must be served upon him. Why? Of
course, so that the court may acquire jurisdiction over his
person. Because the new defendant cannot be deemed to
have already appeared by virtue of summons under the
original complaint in which he was not yet a party (Arcenas
vs. Court of Appeals, 299 SCRA 733).
Let us discuss this case of Mercado, et. al. vs. Espina.
MERCADO, ET. AL. vs. ESPINA and LOURDES ESPINA
(G.R. No. 173987, February 25, 2012)
FACTS:
•
On May 8, 2000, herein petitioners filed with the
Regional Trial Court (RTC) a Complaint for Recovery
of Property and Declaration of Nullity of Deed of Sale,
Certificate of Title and Damages. The case was
docketed as Civil Case No. R-3147.
•
On June 29, 2000, respondents filed a Motion to
Dismiss on grounds that the RTC has no jurisdiction
over the case due to the failure of the complainant to
state the assessed value of the property, that
petitioners' cause of action is barred by prescription,
laches and indefeasibility of title, and that the
complaint does not state sufficient cause of action
against respondents who are buyers in good faith.
•
The RTC denied respondents' Motion to Dismiss.
Respondents then filed a motion for reconsideration,
but the same was denied by the RTC.
•
Respondents then filed a special civil action for
certiorari with the CA assailing the above orders of the
RTC.
•
In its Resolution dated March 13, 2001, the CA denied
due course and dismissed respondents' petition for
certiorari. Respondents filed a motion for
reconsideration, but the same was denied by the CA in
its Resolution dated October 21, 2003.
•
•
•
Meanwhile, on August 17, 2000, petitioners, by leave of
court, filed an Amended Complaint to include the
assessed value of the subject property.
On November 21, 2003, respondents filed a Motion to
Dismiss Amended Complaint on grounds of
prescription, laches, indefeasibility of title and lack of
cause of action.
On February 18, 2004, the RTC issued an Order denying
respondents' Motion to Dismiss Amended Complaint.
Respondents filed a motion for reconsideration, but
the RTC denied it in its Order dated April 19, 2004.
Respondents filed a special civil action for certiorari
with the CA praying that the February 18, 2004 and April
19, 2004 Orders of the RTC be set aside and petitioners'
complaint dismissed.
On April 27, 2005, the CA granted the Petition. The CA
ruled that respondents' title has become indefeasible
and incontrovertible by lapse of time and that
petitioners' action is already barred by prescription.
The CA also held that since petitioners did not allege
that respondents were not buyers in good faith, the
latter are presumed to be purchasers in good faith and
for value.
ISSUE:
Whether or not the Court of Appeals erred in giving due course to
respondents’ second motion to dismiss filed on November 21, 2003
on the amended complaint filed on August 16, 2000.
RULING:
Respondent's filing of their Motion to Dismiss Amended
Complaint may not be considered as a circumvention of the
rules of procedure. Under Section 8, Rule 10 of the Rules of
Court, an amended complaint supersedes an original one. As a
consequence, the original complaint is deemed withdrawn and
no longer considered part of the record. In the present case, the
Amended Complaint is, thus, treated as an entirely new
complaint. As such, respondents had every right to move for the
dismissal of the said Amended Complaint.
Now, how do we file an amendment complaint or answer or pleading.
That is answered by Section 7:
HOW TO FILE AMENDMENT
Section 7. Filing of amended pleadings. — When any pleading is
amended, a new copy of the entire pleading, incorporating the
amendments, which shall be indicated by appropriate marks, shall be
filed. (7)
SUPPLEMENTAL PLEADINGS
Section 6. Supplemental pleadings. — Upon motion of a party, the
court may, upon reasonable notice and upon such terms as are just,
permit him or her to serve a supplemental pleading setting forth
transactions, occurrences or events which have happened since the
date of the pleading sought to be supplemented. The adverse party
may plead thereto within ten (10) calendar days from notice of the
order admitting the supplemental pleading. (6a)
Now, if this is amendment as a matter right you just file your amendment
complaint. For example, amended complaint: so, you just file your
amendment complaint, the title is "Amended Complaint" and then all the
amendments there incorporated, just reproduce, actually, the
allegations, everything, in your original complaint and if there are
amendments, like you add the name of a particular defendant, you
UNDERLINE that portion which is the amendment. Every portion which
is amendment must be underlined, indicated by appropriate marks.
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94
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
Now, if it is amendment as a matter of discretion. So, you need to file a
motion - Motion for Leave to File the Attached Amendment Complaint.
Attached because you have to attache already the copy of your
amended complaint. Still the same, you have to underline or indicate by
appropriate marks all the changes, modifications, amendment which are
embodied in your amended complaint.
Now, we go to supplemental pleadings. That would be under Section 6.
A supplemental pleading:
•
only serves to bolster or add something to the primary
pleading;
•
exists side by side with the original;
•
does not replace that which it supplements;
•
is but a continuation of the complaint.
CAUSE OF ACTION IN SUPPLEMENTAL PLEADINGS
When the cause of action in the supplemental complaint is different
from the cause of action mentioned in the original complaint, the court
should not admit the supplemental complaint (ASSET
PRIVATIZATION TRUST vs. COURT OF APPEALS, 324 SCRA
533).
So, based on the Rules, when you say Supplemental Pleadings you're
just actually setting forth transactions, occurrences, or events which had
have happened after you file your original pleading. Meaning, at the time
when you filed your original pleading, these transactions, occurrences,
or events were not yet present but because of the passage of time, after
you filed your original pleading, then these transactions, occurrences, or
events happened. So, based on the Rules a Supplemental Pleading
actually serves only to bolster or add something to the primary pleading,
and because of that, a supplemental pleading exists side by side with
the original complaint. It's not like an amended pleading where the
amendment supersedes the original complaint or original pleading.
Here, the supplemental pleading merely exists side by side. It does not
replace that which it supplements, and it is just but a continuation of the
complaint.
So, when you say supplemental pleading you are not actually changing
your original cause of action, still the same, the transactions,
occurrences, or events that you set forth in your supplemental pleading
must relate to the cause of action which you alleged in your original
pleading.
So, in the case of ASSET PRIVATIZATION TRUST vs. COURT OF
APPEALS (324 SCRA 533)
CAUSE OF ACTION IN SUPPLEMENTAL PLEADINGS: When the
cause of action in the supplemental complaint is different from the cause
of action mentioned in the original complaint, the court should not admit
the supplemental complaint.
Again, the supplemental complaint should be related to your original
cause of action. It should not be different from it.
Also, in this case of Young vs. Spouses Sy, the Supreme Court said:
When the cause of action stated in the supplemental complaint is
different from the causes of action mentioned in the original
complaint, the court should not admit the supplemental complaint;
the parties may file supplemental pleadings only to supply
deficiencies in aid of an original pleading, but not to introduce new
and independent causes of action (YOUNG vs. SPOUSES SY, 503
SCRA 151).
Now, if there is a supplemental complaint, for example, should the
defendant file an answer to the supplemental complaint? That was
discussed in the case of CHAN vs. CHAN. The same question should
an answer to a supplemental compliant be filed. In relation to this
question we have Section 6 of Rule 10. Again, let's read, 'The adverse
party may plead thereto within ten (10) calendar days from notice of
the order admitting the supplemental pleading.'
ANSWER TO A SUPPLEMENTAL PLEADING NOT MANDATORY
CHAN vs. CHAN
G.R. No. 150746, October 15, 2008
Should an answer to a supplemental complaint be filed?
Section 6, Rule 10 and Section 7, Rule 11, of the Rules of Court are
relevant, thus:
Section 6. Supplemental pleadings. — Upon motion of a party, the
court may, upon reasonable notice and upon such terms as are just,
permit him or her to serve a supplemental pleading setting forth
transactions, occurrences or events which have happened since the
date of the pleading sought to be supplemented. The adverse party
may plead thereto within ten (10) calendar days from notice of the
order admitting the supplemental pleading. (6a)
And then Section 7 says:
Rule 11, Sec. 7. Answer to supplemental complaint. _ A
supplemental complaint may be answered within twenty (20)
calendar days from notice of the order admitting the same, unless a
different period is fixed by the court. The answer to the complaint
shall serve as the answer to the supplemental complaint if no new or
supplemental answer is filed.
Hence: NOT MANDATORY because of the use of the word "may."
Thus, the Court cannot declare the respondents in default simply
because the latter opted not to file their answer to the supplemental
petition.
Note: Rule 10, Section 6 says 10 calendar days. Rule 11, Section 7
says 20 days. Reconcile.
Well, as we have already discussed, when you say supplemental
complaint or pleading, it does not supersede the original one, you cannot
even set forth in your supplemental pleading causes of action which are
different from the original one. So, if you already filed your answer to the
original complaint, for example, that answer would be sufficient insofar
as addressing the issues mentioned in the original complaint. If you fail
to file your answer to the supplemental complaint, your original answer
to the original complaint shall serve as the answer to the supplemental
complaint, if no new or supplemental answer is filed.
Now, if you notice, under Rule 10, Section 6 says 10 calendar days. But
if we go to Rule 11 Section 7, please take note of the one which is cited
above, it's says 20 calendar days. How do we reconcile?
When you say answer to a supplemental complaint, if you want to file
an answer to the supplemental complaint you can do that within 20
calendar days from the time that you received the order of the court
saying that the supplemental complaint is admitted. Of course, the time
- 20 calendar days, will not start from the time when you received a copy
of the supplemental complaint of the filing party. Why? Because, again,
when you file a supplemental complaint/pleading it requires leave of
court. So, meaning the court has to say, whether or not it admits the
supplemental complaint/pleading. So, premature for you to immediately
file your answer to the supplemental complaint, for example, once you
received a copy of the supplemental complaint because for all you know
the court will not allow that supplemental complaint. So, you are just
wasting your time. So, from the time that you received notice from the
court that the supplemental compliant is admitted.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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Now, how about the 10 days which Section 6, Rule 10 says. This should
refer to other pleadings. There are several pleadings which we already
discussed. Aside from the complaint, if you wish to file a response to the
supplemental pleading you have 10 calendar days but if the pleading
which is supplemented is a complaint, and if you want to file your answer
you have 20 calendar days.
How we distinguished between amended pleadings and supplemental
pleadings:
DISTINCTIONS BETWEEN AMENDED AND SUPPLEMENTAL
PLEADINGS
1.
AS TO THE ALLEGATIONS:
An
AMENDED
pleading
contains
transactions,
occurrences or events which already happened at the time
the original pleading was filed and could have been raised
at the original pleading, but which the pleader failed to
raise in the original pleading because, oversight or
inadvertence or inexcusable negligence. If he wants to
raise it, he must amend the pleading.
Whereas, a SUPPLEMENTAL pleading contains
transactions, occurrences or events which were not in
existence at the time the original pleading was filed but
which only happened after the filing of the original pleading
and therefore, could not have been raised in the original
pleading.
So, of course, for example, the plaintiff could have not raised these
transactions, occurrences, or events at the time when he filed the
complaint or the original pleading because, precisely, these were not yet
present at that time.
Now, if you notice this is the very same distinction emphasized in Rule
11, Sections 9 and 10, although we are not yet there but we will just cite.
That is the distinction emphasized in the New Rule – Rule 11,
Sections 9 and 10:
Rule 11, Section 9. Counterclaim or cross-claim arising after answer.
– A counterclaim or cross-claim which either matured or was
acquired by a party after serving his or her pleading may, with the
permission of the court, be presented as a counterclaim or crossclaim by supplemental pleading before judgment.
Rule 11, Section 10. Omitted counterclaim or cross-claim. – When a
pleader fails to set up a counterclaim or a cross-claim through
oversight, inadvertence, or excusable neglect, or when justice
requires, he or she may, by leave of court, set up the counterclaim or
cross-claim by amendment before judgment.
Rule 11, Section 9. Counterclaim or cross-claim arising after answer.
Comment: So, meaning we are referring to those which are acquired or
matured after you serve your original pleading.
Rule 11, Section 10. Omitted counterclaim or cross-claim.
Comment: So, we are referring here to those counterclaim or crossclaim which were already present at the time when you filed
counterclaim or cross-claim but you just failed to set them up because
of oversight, inadvertence, or excusable neglect. So, you have to file an
amended counterclaim or cross-claim.
2.
AS TO EFFECT
In an AMENDED pleading, the amended pleading
supersedes the original pleading. The original pleading is
deemed erased. The amended substitutes the original. So,
from the viewpoint of the law, the original pleading no
longer exists. Whereas, When a SUPPLEMENTAL
pleading is filed, it does not supersede the original
pleading. In effect, there are now two (2) pleadings which
stand side by side in the case – the original and the
supplemental pleadings.
3.
AS TO EXTENT OF COURT DISCRETION
The filing of an AMENDED pleading could be a matter
right or of judicial discretion under Sections 2 and
whereas the filing of a SUPPLEMENTAL pleading
always a matter of judicial discretion under Section
There is always leave of court.
of
3;
is
6.
Now, in this case of LEOBRERA vs. COURT OF APPEALS, this is a
case involving collection of the sum of money. And then, the plaintiff and
the defendant are actually are the same persons. But the plaintiff,
wanted to file a supplemental complaint because he wanted to set forth
the other contract of loan. So, can he do that in his supplemental
complaint? The Supreme Court said, NO.
LEOBRERA vs. COURT OF APPEALS
170 SCRA 711
Although the plaintiff and the defendant are the same, there are two
separate loans independent of each other as a matter of fact the
stipulations are not identical. It cannot be the subject matter of a
supplemental complaint. In this case, there are many types of loans
secured in different terms and conditions.
“A supplemental complaint must be based on matters arising
subsequent to the original complaint RELATED to the claim
presented therein and founded on the same cause of action.” It
cannot be used to try another matter or a new cause of action.
Now, how about in this case of SUPERCLEAN SERVICES INC. vs.
COURT OF APPEALS
SUPERCLEAN SERVICES INC. vs. COURT OF APPEALS
258 SCRA 165 [1996]
FACTS: Superclean Service Corp. is a company engaged in
janitorial services. A government corporation, the Home
Development and Mutual Fund (HDMF) sought a public bidding
on who will be the company who shall provide janitorial services
to the offices of the HDMF for the year 1990. Superclean won as it
was the lowest bidder. It was supposed to start providing the
service for the year 1990. However, the HDMF refused to honor
the award. So, on November 8, 1989, Superclean filed in the RTC
of Manila a complaint for mandamus and certiorari against
HDMF alleging that at public bidding for janitorial services for
the year 1990, it won as the lowest bidder but HDMF refused
without just cause, to award the contract to them. The problem
was that 1990 already ended and the case was still on-going. So
it was already rendered moot and academic. What Superclean
did was to file a supplemental complaint in 1991 alleging that
because the contract of service was the furnishing of janitorial
services for the year 1990, the delay in the decision of the case
has rendered the case moot and academic without Superclean
obtaining complete relief to redress the wrong committed
against it by HDMF which relied now consists of unrealized profits,
exemplary damages and attorney’s fees.
ISSUE: Is the filing of supplemental complaint proper in order to seek
a different relief in view of developments rendering the original
complaint impossible of attainment? NO.
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HELD: “The transaction, occurrence or event happening since the
filing of the pleading, which is sought to be supplemented, must be
pleaded in aid of a party's right of defense as the case may be.
[That’s the purpose of the supplemental pleading – in aid of the
party’s cause of action or defense] But in the case at bar, the
supervening event is not invoked for that purpose but to justify
the new relief sought.”
VERANA
“To begin with, what was alleged as a supervening event causing
damage to Superclean was the fact that the year for which the
contract should have been made had passed without resolution of
the case. The supervening event was cited not to reinforce or aid the
original demand, which was for the execution of a contract in
petitioner’s favor, but to say that precisely because of it, petitioner’s
demand could no longer be enforced, thus justifying petitioner in
changing the relief sought to one for recovery of damages. This being
the case, petitioner’s remedy was not to supplement, but rather to
amend its complaint.”
“Be that as it may, the so called Supplemental Complaint filed by
petitioner should simply be treated as embodying amendments to the
original complaint or petitioner may be required to file an amended
complaint.”
COMMENT: So in this case, the supervening event which was cited by
Superclean was not to reinforce or aid the original demand. But precisely
because the original demand could no longer be enforced, Superclean
instead wants to change the relief sought to one for recovery of
damages. So this being the case, clearly, Superclean’s remedy was not
to supplement, but rather to amend the complaint. It is actually changing
the relief, so the correct remedy here is not a supplemental relief, but an
amended complaint.
So does it mean na sorry ka nalang Superclean, because you should
have filed instead an amended complaint? Well the SC said, “Be that as
it may, the so called Supplemental Complaint filed by petitioner should
simply be treated as embodying amendments to the original complaint
or petitioner may be required to file an amended complaint.” So
meaning, you call it a supplemental complaint, but the court will call it as
an amended complaint, or the other alternative- you can require a party
to file an amended complaint, so it doesn’t actually prejudice also
Superclean. The Supplemental complaint can just be treated as an
amended complaint or require Superclean to file an amended complaint.
EJERA vs. MERTO AND VERGARA
GR No. 163109
January 22, 2014
On April 16, 2001, the petitioner filed in the RTC her complaint for
“final injunction with temporary restraining order and/or preliminary
injunction, and damages” averring that:
1. Merto had issued Office Order No. 008 because he had so
bitterly resented her attacks against him before the CSC
Regional Office;
2. that her reassignment was a virtual “banishment” because
her position required her to stay in Dumaguete City;
3. that the re-assignment was a “gross and blatant violation
of the Omnibus Rules on Appointments and other Personal
Actions” prohibiting whimsical and indiscriminate
reassignments;
4. that on account of her refusal to obey Office Order No. 008,
Merto had charged her administratively;
5. that Merto had no power to investigate, because the
Provincial Governor was the proper disciplining authority;
6.
7.
8.
that the letter of Merto requiring her to explain violated
Rule II, Section B of CSC Memorandum Circ. No. 19,
Series of 1999, requiring complaints to be under oath;
that Merto connived with Vergara, who had issued a
“Notice of Conference” on March 30, 2001 setting the
preliminary conference on April 5 2001;
and that the conference could not be terminated when she
and her counsel walked out due to the refusal of Vergara
to allow the recording of the objections of her counsel.
COMMENT: Now in this case, the case filed was for final injunction with
TRO and/or preliminary injunction. The subject of this petition was Office
Order No. 008 because it reassigned petitioner to another office or
location.
Subsequently, the petitioner moved for the admission of a
supplemental complaint in order to implead Gregorio P. Platinca, the
Officer-in-charge of the Office of the Provincial Agriculturist for
issuing on June 29, 2001 Office Order No. 005, Series of 2001, to
amend Office Order No. 008. Office Order No. 005 re-assigning her
to Barangays Balanan, Sandulot, and Jumalon in the Municipality of
Siaton as her official duty stations.
COMMENT: Now there was another order. It was Office Order No. 005,
Series of 2001, which amended the original order which was the subject
of the petition. And here, it was issued by one Gregorio Paltinca, the
Officer-in-Charge of the Office of Provincial Agriculturist. So in this
subsequent memorandum, the petitioner-complainant was transferred
to another station, which according to her, was more prejudicial than the
original one. So the petitioner moved for the admission of a
Supplemental Complaint. The purpose was to implead Gregorio Platinca
in the complaint.
The supplemental complaint stated that:
1.
Office Order No. 005, to take effect on July 2, 2001 had
not been posted in the bulletin board of the Office of the
Provincial Agriculturist;
2.
that she had not been furnished a copy of the order;
3.
that OIC Paltinca had acted with malice and evident bad
faith by his failure to notify her of the re-assignment, which
was “worse than the original re-assignment” by Merto, as
it constituted her “banishment” from her office in
Dumaguete City;
4.
that the re-assignment had violated Book V, Section 12(2)
and (3) of the Administrative Code of 1987 prohibiting reassignments that were indiscriminately and whimsically
done;
5.
that although the appointing and disciplining authority was
the Provincial Governor, who had approved Office Order
No. 005, Paltinca should be impleaded because it was he
who had thereby violated the Administrative Code of
1987; and
6.
that she had refused to obey the two office orders for
justifiable reasons because both were null and void ab
initio as far as she was concerned.
COMMENT: So basically in the supplemental complaint among others,
the petitioner alleged that the subsequent order was worse than the
original assignment, as it:
1.
Constituted her banishment from her office;
2.
and that it violated the Administrative Code of 1987.
Paltinca moved to dismiss the complaint on the ground that:
1.
the admission of the petitioner that the Provincial
Governor, not he, was her appointing and disciplining
authority exposed her lack of cause of action;
2.
that the non-inclusion of the Provincial Governor as the
real party in interest was a fatal error; and
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3.
that the failure of the petitioner to exhaust administrative
remedies before going to court was also a ground for the
dismissal of the case.
ISSUE: CAN THE COURT RESOLVE THE MOTION TO DISMISS
THE ORIGINAL COMPLAINT EVEN BEFORE THE ADMISSION
OF THE SUPPLEMENTAL COMPLAINT?
HELD: YES. Paltinca’s motion to dismiss (on the ground of nonexhaustion of administrative remedies) could be resolved before the
admission of the supplemental complaint.
COMMENT: So the issue here is, can the court resolve the motion to
dismiss the original complaint even before the admission of the
Supplemental Complaint? Because again, there was an original
complaint, and there was a Supplemental Complaint. But before that
Supplemental Complaint was admitted, we have here the defendant
moving to dismiss the original complaint itself.
The SC said yes. The motion to dismiss on the ground of non-exhaustion
of administrative remedies could be resolved before the admission of
the supplemental complaint.
The insistence is not correct. The petitioner filed her supplemental
complaint to assail Office Order No. 005, and thereby raised issues
identical to those raised in her original complaint involving Office
Order No. 008. Hence, the RTC could already resolve Paltinca’s
motion to dismiss even without first admitting the supplemental
complaint. Unlike an amended complaint, her supplemental
complaint could “exist side-by-side” with the original complaint,
because the supplemental complaint averred facts supervening from
the filing of the complaint.
Oh the other hand, the Second Amended/Supplemental complaint
stemmed from the alleged oppressive and arbitrary acts committed
by the BSP and its MB against Banco Filipino after respondent bank
was reopened in 1994. Since the acts or omissions allegedly
committed in violation of respondent’s rights are different, they
constitute separate causes of action.
COMMENT: What Banco Filipino filed here was a Second
Amendment/Supplemental Complaint. First we resolve this from the
point of view of an amended complaint. ISSUE: Can it be allowed as
an amended complaint?
The SC evaluated, and ruled that the second amendment of the
complaint was improper (as ratiocinated above).
A closer examination of the Second Amended/Supplemental
Complaint shows that Banco Filipino asks the Court to order the
defendants to pay, among others, actual damages of atleast P18.8
billion “as consequence of the acts herein complained of.”
The “acts complained of” cover not just the conservatorship,
receivership, closure, and liquidation of Banco Filipino in 1984 and
1985, but also the alleged acts of harassment committed by the BSP
and its MB after respondent bank was reopened in 1994. These acts
constituted a whole new cause of action. In effect, respondent raised
new causes of action and asserted a new relief in the Second
Amended/Supplemental Complaint. If it is admitted, the RTC would
need to look into the propriety of two entirely different causes of
action. This is not countenanced by law.
COMMENT: The Supplemental Complaint was actually filed, and it
raised issues identical to those raised in the original complaint. So the
SC said the RTC could already resolve the Motion to Dismiss even
without first admitting the Supplemental Complaint, because unlike an
Amended Complaint, the Supplemental Complaint could exist side by
side with the original complaint. The Supplemental Complaint here
averred facts supervening from the filing of the complaint.
Banco Filipino contends that the Second Amended/Supplemental
Complaint does not:

alter the substance of the original demand, or

change the cause of action against the original
defendants, or

seek additional or new reliefs. Rather, respondent
contends that the only change sought is the addition of
the BSP and its MB as parties-defendants.
CENTRAL BANK BOARD OF LIQUIDATORS vs. BANCO
FILIPINO SAVINGS AND MORTGAGE BANK
GR No. 173399
February 21, 2017
Respondent further argues that what petitioner erroneously views as
new causes of action are merely demonstrations to show that the
BSP has come to adopt the same repressive and oppressive attitude
of the latter’s alleged predecessor-in-interest.
Our ruling in this case is confined to the resolution of procedural
issues pertaining to the propriety of the admission of a Second
Amended/Supplemental Complaint. The latter sought to hold the
Bangko Sentral ng Pilipinas (BSP) and its Monetary Board (MB)
liable for causes of action that arose almost 10 years after the original
Complaint was filed against the now defunct Central Bank of the
Philppines (CB).
COMMENT: Now this case of Central Bank Board of Liquidators vs.
Banco Filipino Savings and Mortgage bank, we actually discussed
already in relation to joinder of parties, joinder of causes of actions,
amendments- so we discuss this again in relation to Supplemental
pleadings. Here, Banco Filipino Savings and Mortgage Bank sought to
hold the Bangko Sentral ng Pilipinas (BSP) and its Monetary Board (MB)
liable for causes of action that arose almost 10 years after the original
Complaint was filed against Central Bank of the Philippines.
Cannot be an Amended Pleading:
The prevailing rule on the amendment of pleadings is one of liberality,
with the end of obtaining substantial justice for the parties. However,
the option of a party-litigant to amend a pleading is not without
limitation. If the purpose is to set up a cause of action not existing at
the time of the filing of the complaint, amendment is not allowed. If
no right existed at the time the action was commenced, the suit
cannot be maintained, even if the right of action may have accrued
thereafter.
COMMENT: So the SC said, ruling on the case, that this cannot be the
subject of an amended pleading. In this particular case, the acts of BSP
and its alleged MB which are the subject of the amended pleading, were
not yet present, committed, or existent at the time when the original
complaint was filed. They only happened after.
HELD: The second amendment of the complaint was improper.
The original complaint was based on the alleged illegal closure of
Banco Filipino effected in 1985 by the defunct CB and its MB.
We have already discussed before that you cannot make an amendment
to include causes of action which were not present at the time the
original pleading was filed. That was even clearly stated in the Amended
Rules already.
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Cannot be a Supplemental Pleading:
The option of a party-litigant to supplement a pleading is not without
limitation. A supplemental pleading only serves to bolster or add
something to the primary pleading. Its usual function is to set up new
facts that justify, enlarge, or change the kind of relief sought with
respect to the same subject matter as that of the original complaint.
A supplemental complaint must be founded on the same cause of
action as that raised in the original complaint. Although in Planters
Development Bank vs. LZK Holdings & Development Corporation,
the Court clarified that the fact that a supplemental pleading
technically states a new cause of action should not be a bar to its
allowance, still, the matter stated in the supplemental complaint must
have a relation to the cause of action set forth in the original pleading.
That is, the matter must be germane and intertwined with the cause
of action stated in the original complaint so that the principal and core
issues raised by the parties in their original pleadings remain the
same.
COMMENT: So we’re saying now that the acts of the BSP and its MB
happened after the filing of the original complaint. How about a
Supplemental Complaint? Because a Supplemental Complaint as we
said sets for transactions, events, or occurences that happen after the
filing of the original complaint. Can this be now admitted as a
Supplemental Pleading?
The SC said No. The option of a party-litigant to supplement a pleading
is not without limitation. Now even if we are saying that in a
Supplemental Pleading we interpose transactions, events or occurences
that happened after the original pleading was filed, but the purpose of a
Supplemental Pleading is to justify, enlarge, or change the kind of relief
sought with respect to the same subject matter with that of the original
complaint. So a Supplemental Complaint must be founded on the same
cause of action as that raised in the original complaint. So the matters
stated in the Supplemental Complaint must have a relation to the cause
of action set forth in the original complaint. It must be germane and
intertwined with the cause of action stated in the original complaint so
that the principal and core issues raised by the parties in the original
pleading remain the same.
In the instant case, Banco Filipino, through the Second
Amended/Supplemental Complaint, attempted to raise new and
different causes of action that arose only in 1994. These causes of
action had no relation whatsoever to the causes of action in the
original complaint, as they involved different acts or omissions,
transactions, and parties. If the Court admits the Second
Amended/Supplemental Complaint under these circumstances,
there will be no end to the process of amending the Complaint. What
indeed would prevent respondent from seeking further amendments
by alleging acts that may be committed in the future?
For these reasons, whether viewed as an amendment or a
supplement
to
the
original
complaint,
the
Second
Amended/Supplemental Complaint should not have been admitted.
COMMENT: In this particular case, although those facts happened after
the complaint was filed, the SC said that these additional matters
represent causes of action which have no relation whatsoever to the
causes of action in the original complaint (the subject matter) as they
involve different acts or omissions, transactions, and parties. So this
cannot also be admitted as a Supplemental Complaint. Otherwise what
would prevent respondent from seeking further amendments by alleging
facts that may be committed in the future.
The amendment/supplement violates the rules on joinder of
parties and causes of action.
The admission of the Second Amended/Supplemental Complaint is
inappropriate because it violates the rule on joinder of parties and
causes of action. If its admission is upheld, the causes of action set
forth therein would be joined with those in the original complaint. The
joinder of causes of action is indeed allowed under Section 5, Rule 2
of the 1997 Rules of Court; but if there are multiple parties, the joinder
is made subject to the rules on joinder of parties under Section 6,
Rule 3. Specifically, before causes of action and parties can be joined
in a complaint involving multiple parties:
1.
The right relief must arise out of the same transaction or
series of transactions; and
2.
There must be a question of law or fact common to all the
parties.
COMMENT: But can we not consider this under the rule on joinder of
causes of actions? Diba when you say joinder of causes of action, you
may actually join as many causes of actions that you may have against
a party.
Well the SC said this still cannot be considered under the rule of joinder
of causes of actions. Because when you say joinder of causes of
actions, if there are several parties, you must also comply with the rule
on joinder of parties. And when there is joinder of parties, your cause of
action for the other parties must be related to the cause of action which
is the subject matter of the original complaint.
Example: In the original complaint of Banco Filipino, if BF would like to
include or join its cause of action against BSP, BSP is a different party.
It is not the same as the Central Bank. And the acts alleged against BSP
here were not committed by the now defunct Central Bank. These acts
were committed by the successor BSP. So they really constituted
different causes of action and the personalities here are different. So for
you to join your cause of action against Central Bank (which was the
original defendant) and your cause of action against BSP and its MB
which you now wish to be included in the case, you must comply with
the rules on joinder of causes of action and joinder of parties.
Here this cannot qualify under the concept of joinder of parties because
your cause of action against BSP has no relation. They do not involve
the same facts, the same question of law vis-à-vis your complaint
against Central Bank. So you have to observe the rule on joinder parties
under Section 6, Rule 3. Where:
1.
The right relief must arise out of the same transaction or series
of transactions; and
2.
There must be a question of law or fact common to all the
parties.
In the instant case, Banco Filipino is seeking to join the BSP and its
MB as parties to the complaint. However, they have different legal
personalities from those of the defunct CB and its MB: firstly, because
the CB was abolished by RA 7653, and the BSP created in its stead;
and secondly, because the members of each MB are natural
persons. These factors make the BSP and its MB different from the
CB and its MB. Since there are multiple parties involved, the two
requirements mentioned in the previous paragraph must be present
before the causes of action and parties can be joined. Neither of the
two requirements for the joinder of causes of action and parties were
met.
COMMENT: So the SC clarified that Central Bank and its MB are
different from the BSP and its MB. They are created by different laws,
the members of each are natural persons who are different from each
other. And because there are multiple parties involved, the two
requirements of joinder of parties must be present- which aren’t met in
this particular case.
Second, there is no common question of fact or law between the
parties involved. The acts attributed by Banco Filipino to the BSP and
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its MB pertain to events that transpired after this Court ordered the
respondent bank’s reopening in 1994. These acts bear no relation to
those alleged in the original Complaint, which related to the propriety
of the closure and liquidation of respondent as a banking institution
way back in 1985.
The only common factor in all these allegations is respondent bank
itself as the alleged aggrieved party. Since the BSP and its MB
cannot be joined as parties, then neither can the causes of action
against them be joined.
COMMENT: The only common factor in all these allegations is
respondent bank itself as the alleged aggrieved party. So its only the
personality of Banco Filipino which is common. So there can be no
joinder of causes of action because there cannot be a joinder of parties.
SLIDES 1-14 : by Evanne Maliones
RULE 11
When to File Responsive Pleadings
When do you file:
Answer
Cross claim
Counter claim, etc
Reply
SECTION 1. Answer to the complaint.—The defendant shall file his or
her answer to the complaint within THIRTY (30) CALENDAR DAYS
after service of summons, unless a different period is fixed by the court.
(1a)
Q: Now the defendant already received the summons against him. What
are his options?
OPTIONS OF THE DEFENDANT AFTER SERVICE OF SUMMONS
UPON HIM
1.
2.
3.
File an answer;
File a motion to dismiss;
File a motion for a bill of particulars in the meantime.
DEFENDANT FILES AN ANSWER
Defendant has a period of 30 DAYS AFTER SERVICE OF SUMMONS
within which to file his answer. The court is allowed to fixed a different
period, by way of exception.
Comment: the rule says the court is allowed to fix a different period.
What are these instances when the court may fix a different period?
They are those mentioned in Rule 14, Sections 16, 17, and 18 where
there is service of summons by publication.
HOW TO COMPUTE PERIOD WITHIN WHICH TO FILE AN
ANSWER
First, we apply the Civil Code:
Art. 13. XXX In computing a period, the FIRST DAY SHALL BE
EXCLUDED, AND THE LAST DAY INCLUDED.
Such rule is also found in Section 1 of Rule 22 on Computation of Time:
Rule 22, Sec. 1. How to compute time. - In computing any period of time
prescribed or allowed by these Rules, or by order of the court, or by any
applicable statute, THE DAY OF THE ACT OR EVENT FROM WHICH
THE DESIGNATED PERIOD OF TIME BEGINS TO RUN IS TO BE
EXCLUDED AND THE DATE OF PERFORMANCE INCLUDED. If the
last day of the period, as thus computed, falls on a Saturday, a Sunday,
or a legal holiday in the place where the court sits, the time shall not run
until the next working day.
Example:
The defendant received summons on August 1 2019. A: so we exclude
august 1. We start from August 2. So the 30th day would be august 31
2019.
But if you look at the calendar, that’s a Saturday. And the next day is a
Sunday. So the deadline would be the next working day which is
September 2.
OTHER OPTIONS:
1. MOTIONS TO DISMISS AND
2. FOR BILL OF PARTICULARS
GR: Motion to dismiss is no longer allowed under the amended rules but
you can still file if the grounds are:
A. Lack of jurisdiction over the subject matter
B. Prescription
C. Litis Pendentia
D. Res Judicata
Of course, the defendant has other options:
1. he may opt to file either a motion to dismiss if he
thinks there is a ground therefor or,
2. if he feels that the complaint is not of sufficient
definiteness or particularity or the allegations
therein are vague that he cannot file an
intelligent answer, he may choose to file a
MOTION FOR A BILL OF PARTICULARS in
the meantime.
Q: when to file the Motion to Dismiss or Motion for a BIll of Particulars?
A: File them within the period to file the answer.
Q: what happens if the defendant files a motion to dismiss?
A: the filing of either motion interrupts the period for filing the answer.
WHAT HAPPENS WHEN THE DEFENDANT FILES A MOTION TO
DISMISS?
A: There will be a hearing on the motion.
After hearing, the motion to dismiss will be resolved by the court.
A motion to dismiss, as in any other motion, only has two ultimate
destinies:
1. either the motion is granted or
2. denied.
IF GRANTED, the defendant wins the case. He does not have to file any
responsive pleading. So he does not have to file his answer.
IF DENIED, he is still allowed by the Rules to file his answer.
IF THE MOTION TO DISMISS IS DENIED, WITHIN WHAT PERIOD
CAN THE DEFENDANT FILE HIS ANSWER?
As said,the defendant can file MTD within the period to file his answer.
If denied, he has the balance of the period within which to file the answer
to file the motion to dismiss.
Take note that, under Sec 4, Rule 16 (OLD RULES) it says if the motion
is denied the movant shall file his answer within the balance of the period
to which he is entitled at the time of his motion but not less than 5 days
in any event computed form the receipt of the notice of his denial.
Example;
The defendant has 30 days to file his answer. On the 26th day, he filed
a motion to dismiss and such interrupted the running of the period to file
an answer. SO even if it took the court months to resolve the motion to
dismiss, we are interrupted on the 26th day.
The court denied the motion to dismiss. How many days does the
defendant have to file his answer under the old rule?
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A: he has five days even if supposedly, 4 days na lang.
Q: How about under the amended rules?
A: There is no similar provision under the amended rules but I found a
similar rule under Rule 12, Sec 5 referring to a bill of particulars.
Why is there no similar provision for a motion to dismiss?
A: (I think ha) because, under the present rule a motion to dismiss as a
general rule is no longer allowed but once redrafted they forgot that there
are still ground within to file a motion to dismiss.
But by analogy if a motion for a bill of particulars can interrupt and the
defendant still has 5 days if denied, so it should also apply to a motion
to dismiss.
SEC. 2. Answer of a defendant foreign private juridical entity.—Where
the defendant is a FOREIGN PRIVATE JURIDICAL ENTITY and
service of summons is made on the government official designated by
law to receive the same, the answer shall be filed within sixty (60)
calendar days after receipt of summons by such entity. (2a)
Comment: if there Is a resident agent who received summons on behalf
of the corporation, the foreign corporation has 30 days within which to
file the answer.
The same period of 30 days applies WHEN SUMMONS IS SERVED
UPON ANY OF ITS OFFICERS OR AGENTS WITHIN THE
PHILIPPINES.
B. If the FOREIGN CORPORATION DOES NOT HAVE ANY
DESIGNATED RESIDENT AGENT in the Philippines
(generally, it cannot be issued a license and it can be sued) ,
it is not doing business in the Philippines but it transacted
business in the Philippines, if it is sued, on whom should
summons be served?
A: the summons shall be served to the government official designated
by law to receive the same who now has the duty to transmit it to the
head office abroad.
PROPER GOVERNMENT OFFICIAL
FOREIGN PRIVATE JURIDICAL ENTITY
Who is this government official?
The defendant here is a foreign private juridical entity or simply a foreign
corporation doing business in the Philippines.
NOTES:
FOREIGN CORPORATIONS AS PLAINTIFFS - they can sue in
Philippine Courts if
(a) they have a license to operate here (doing business in the
Philippines); or
(b) where the foreign corporation is without license but is suing for
an isolated transaction.
FOREIGN CORPORATIONS AS DEFENDANTS – can be sued if
(a) licensed to operate (doing business in the Philippines);
(b) without license but who transact business in the Philippines.
One CANNOT SUE A FOREIGN PRIVATE CORPORATION which is:
1. not doing business in the Philippines or
2. which did not transact business in the Phiippines
REASON: because there is no way that the court can acquire jurisdiction
over the person of such corporation.
WHAT IS THE PERIOD TO ANSWER WHEN THE DEFENDANT IS A
FOREIGN PRIVATE CORPORATION DOING BUSINESS IN THE
PHILIPPINES?
A. If the FOREIGN CORPORATION HAS A DESIGNATED
RESIDENT AGENT, the summons shall be served to the
resident agent.
In this case, the resident agent has 30 DAYS TO ANSWER, just like any
defendant in Section 1. This can be found under Section 144 of the
Revised Corporation Code.
Section 144. Who May be a Resident Agent. - A resident agent may be
either an individual residing in the Philippines or a domestic
corporation lawfully transacting business in the Philippines:
Provided, That an individual resident agent must be of good moral
character and of sound financial standing: Provided, further, That in case
of a domestic corporation who will act as a resident agent, it must be
likewise be of sound financial standing and must show proof that it is in
good standing as certified by the Commission.
Comment: in order for a Philippine corporation to do business in the
Philippines, it is required that he must nominate a resident agent upon
whom legal processes will be served.
It must be noted that under Section 145 of the Revised Corporation
Code, IT IS THE SECURITIES AND EXCHANGE COMMISSION (in
general) which is the proper government official upon whom summons
may be served in the case of corporations in general.
There are special types of foreign corporations where the law
designated specific officials to receive summons. Example:
SPECIAL TYPES OF FOREIGN CORPORATIONS:
FOREIGN BANKS UNDER RA 8179
Under Republic Act No. 8179, otherwise known as the General Banking
Law of 2000:
SECTION 76. Summons and Legal Process. — Summons and legal
process served upon the Philippine agent or head of any foreign bank
designated to accept service thereof shall give jurisdiction to the courts
over such bank, and service of notices on such agent or head shall be
as binding upon the bank which he represents as if made upon the bank
itself.
Should the authority of such agent or head to accept service of
summons and legal processes for the bank or notice to it be revoked, or
should such agent or head become mentally incompetent or otherwise
unable to accept service while exercising such authority, it shall be the
duty of the bank to name and designate promptly another agent or head
upon whom service of summons and processes in legal proceedings
against the bank and of notices affecting the bank may be made, and to
file with the Securities and Exchange Commission a duly authenticated
nomination of such agent.
In the absence of the agent or head or should there be no person
authorized by the bank upon whom service of summons, processes and
all legal notices may be made, service of summons, processes and legal
notices may be made upon the Bangko Sentral Deputy Governor InCharge of the supervising and examining departments and such service
shall be as effective as if made upon the bank or its duly authorized
agent or head.
SLIDES 15-27 by: Cristy Lee Go
haj INSURANCE COMPANIES
Then we also have for insurance companies. So who is authorize to
receive summons for insurance companies?
ACT NO. 2427
INSURANCE CODE OF THE PHILIPPINES
So we are referring to a foreign private corporation licensed to transact
business in the Philippines.
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SECTION 177. The Insurance Commissioner must require as a
condition precedent to the transaction of insurance business in
the Philippine Islands by any foreign insurance company, that
such company file in his office a written power of attorney
designating some person who shall be a resident of the
Philippine Islands, on whom any notice provided by law or by
any insurance policy, proof of loss, summons, and other
process may be served in all actions or other legal
proceedings against such company, and consenting that
service upon such agent shall be admitted and held as valid
as if served upon the foreign company at its home office. Any
such foreign company shall, as a further condition precedent to
the transaction of insurance business in the Philippine Islands,
make and file with the Insurance Commissioner an agreement or
stipulation, executed by the proper authorities of said company in
form and substance as follow:
"The (name of company) does hereby stipulate and agree in
consideration of the permission granted by the Insurance
Commissioner to it to transact business in the Philippine Islands,
that if at any time said company shall leave the Philippine Islands,
or cease to transact business therein, or shall be without an agent
in the Philippine Islands on whom any notice, proof of loss,
summons, or other legal process may be served, then in any
action or proceeding arising out of any business or transactions
which occurred in the Philippine Islands, service of any notice
provided by law, or insurance policy, proof of loss,
summons, or other legal process may be made upon the
Insurance Commissioner, and that such service upon the
Commissioner shall have the same force and effect as if
made upon the company."
Whenever such service of notice, proof of loss, summons, or other
legal process shall be made upon the Insurance Commissioner,
he must, within ten days thereafter, transmit by mail, postage paid,
a copy of such notice, proofs of loss, summons, or either legal
process to the company at its home or principal office. The
sending of such copy by the commissioner shall be a necessary
part of the service of the notice, proof of loss, or other legal
process.
TIME TO PLEAD WHEN SUMMONS IS SERVED ON GOVERNMENT
OFFICIAL
Please remember when the summon is received or served upon
government official authorized by law to receive the same, the answer
shall be filed within 60 days.
Q: Now, from what period do we count the 60 days?
A: it said after receipt of summons.
Q: Receipt of summons by who?
A: The Rule is very clear, “by such entity”. Meaning, the government
official authorized by law to receive the summons will have to transmit
the summons to the foreign private corporation. So the 60 days will b
counted from the time of the receipt of the foreign private corporation
and not by the government official authorized to receive summons.
Q: Why?
A: Because we know government officials are very busy they have a lot
of things to do so most probably the drafters anticipated that there will
be a delay of transmission of the summons to foreign private
corporation. So if that happens, there is delay, there is danger that the
foreign private corporation be declared in default just because of a delay
over which the foreign private corporation did not cause.
FOREIGN ENTITY WITH LICENSE BUT NO MORE AGENT IN THE
MEANTIME
Q: Now what if the foreign entity has a license but no more resident
agent in the meantime or no agent in the meantime? What is the rule
regarding the service of the summons?
A: Under the Rules, the corporation has to nominate another agent but
before the nomination is approved and there is no case(?) against the
corporation?
➔ As a general rule, it should be with the SEC which can
received summons.
Section 3.
Answer to amended complaint. — When the plaintiff files an
amended complaint as a matter of right, the defendant shall
answer the same within thirty (30) calendar days after being
served with a copy thereof.
Where its filing is not a matter of right, the defendant shall answer
the amended complaint within fifteen (15) calendar days from
notice of the order admitting the same. An answer earlier filed may
serve as the answer to the amended complaint if no new answer
is filed.
This Rule shall apply to the answer to an amended counterclaim,
amended crossclaim, amended third (fourth, etc.)-party
complaint, and amended complaint-in-intervention.
PERIOD TO ANSER AMENDED COMPLAINT
The period to which to file an answer would depend on whether the
amendment is matter of right or discretion.
Amended as a matter or right
You need to answer it for 30 days from the receipt of the
amended pleading.
Q: Why?
A: Because here the amended pleading supersedes the original
complaint therefore the amended pleading is now the new
complaint and the defendant is entitled to a fresh period within
which to answer that.
Amendment as matter of discretion (there is leave of court)
Here the defendant has already filed his responsive pleading, the
answer and now the plaintiff would want to amend then the
defendant if he would like to file his answer hi is given a period of
15 days from the receipt of the order admitting the amended
pleading.
Q:
Why?
1. Under Rule 15 Section 15 when you file a motion for leave to
file a pleading. That motion for leave is already accompanied by
pleading sought to be amended. So for example if you file a
motion for leave to file an amended complaint, that motion should
be accompanied by the amended complaint. So the amended
complaint is already attached to the motion for leave. So as soon
as the plaintiff files the motion for leave to file the attached
amended complaint, the defendant could already read the
contents of the amended complaint he can already study the
amended complaint but he is not yet required to answer the
amended complaint. Why? Because it needs leave of court, the
court may or may not grant the leave. So if the defendant will
already answer the amended complaint, for all we know the court
might not allow the filing of the amended complaint. So that is one
of the reasons but still the defendant can prepare in advance.
2. The defendant should not anticipate the filing of the new answer
since the court may or may not grant the leave. So what if the
court will deny the leave to file the amended complaint.
3. The defendant does not even have to file a new answer even if
there is an amended complaint since under the Rules an answer
earlier filed may serve as the answer to the amended complaint if
no new answer is filed.
Section 4.
Answer to counterclaim or cross-claim. — A counterclaim or
cross-claim must be answered within twenty (20) calendar days
from service.
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So just read the provision. So this is shorter than the period within which
to answer the original complaint.
Existing counterclaim or cross-claim. — A compulsory
counterclaim or a cross-claim that a defending party has at the
time he or she files his or her answer shall be contained therein.
Section 5.
Answer to third (fourth, etc.)-party complaint. — The time to
answer a third (fourth, etc.)-party complaint shall be governed by
the same rule as the answer to the complaint.
I think we mentioned this already before when we discussed amended
or supplemental pleading.
Section 6.
Reply. — A reply, if allowed under Section 10, Rule 6 hereof, may
be filed within fifteen (15) calendar days from service of the
pleading responded to.
For example, you are the defendant and you want to file a counterclaim
against the defendant or a cross claim against a co plaintiff. How do you
file it?
Section 5, it shall be governed by the same rule as the answer to the
complaint. Meaning, you have 30 days within which to answer to third,
fourth etc. party complaint.
Q: Why is it 30 days? Why is it that in case of a counter claim or a cross
claim you only have 20 days.
A: Well because in a third (fourth, etc.) party-complaint, you are
dragging a person who is not a party to the original case. Meaning he
was not a defendant, he was not a complainant. He is entirely unaware
of the case and now by filing a third (fourth, etc.) party complaint against
him then he is now made aware that there is case against him. So he
needs time to study the case. He is not familiar at all with the facts and
the issues then the laws involved that is why he has the same time within
which to answer just like the original complaint.
When you say counter claim or cross claim, actually the parties here will
answer the counter or cross claim are already parties to the original case
so more or less familiar already with the facts, the issue, and the law
and ill not take too much time to prepare an answer that is why they only
need 20 days.
Section 6, so we already discussed this under Section 10 of Rule 6 that
as a general rule reply is not allowed. But if it is allowed, then the
complainant may file it within 15 days from service of the of the pleading
to the respondent which is the answer.
Section 7.
Answer to supplemental complaint. — A supplemental
complaint may be answered within twenty (20) calendar days from
notice of the order admitting the same, unless a different period is
fixed by the court. The answer to the complaint shall serve as the
answer to the supplemental complaint if no new or supplemental
answer is filed.
So again you may asked the same question.
Q: Why is it counted from receipt of the order and not of the
supplemental pleading itself and why is it that the period is shorter?
1. The filing of a supplemental pleading is always a matter of
judicial discretion under Rule 10 of Section 6 so there is
always leave of court you must file a motion. And because of
that Rule 15 Section 10 also applies wherein we already
mentioned that the motion should be accompanied by the
pleadings. So the motion for leave to admit the supplemental
pleadings must already have that supplemental pleading
attached to the motion. So again, even before the motion for
leave is granted, that adverse party already knows what that
supplemental pleading already contains. Again, he can
prepare in advance.
2. The defendant does not have to refute all the allegations in
the supplemental complaint all over again. He simply has to
answer regarding the ne transaction or occurrence that took
placed after the filing of the complaint. He doesn’t have to
answer everything.
3. The answer to the complaint shall also serve as the answer to
the supplemental complaint of no new or supplemental
answer is filed. So if you don’t have the time, you can choose
not to file an answer.
SLIDES 28 - 40 by Evanne Maliones
For a compulsory counterclaim that has already matured at the time the
defendant is supposed to file his answer MUST BE CONTAINED IN THE
SAID ANSWER.
So you have answer with counterclaim or answer with cross claim basta,
you must file an answer.
IF you already have your grounds for cross claim or counterclaim at the
time of filing the answer, you should already embody your counterclaim
or cross claim in your answer.
THERE ARE 2 KINDS:
1. Compulsory and
2. Permissive.
1. IF COMPULSORY, if the grounds are already there at the time
when you file the answer, you must already allege them and
plead them in your answer. What happens if you fail?
GR: your counterclaim is already deemed barred. You cannot file
that separately.
2. If the counterclaim is PERMISSIVE and the defendant elects to
file it in the same case, he also sets it up in his answer. This
is true if the permissive counterclaim has already matured at
that time.
a)
If you fail, you are not barred from setting them up. You can
file a separate case.
RELATION OF COUNTERCLAIM WITH ANSWER
Remember that a counterclaim is not technically part of an answer even
if it is set up by then.
An answer is a pleading where you set forth your defenses. So a
counterclaim is a separate pleading.
Take note, however, that even if included in the answer, a counterclaim
is considered a separate pleading. Under the Rules, an answer per se
only sets forth defenses (Rule 6, Section 4).
It is not uncommon for lawyers to denominate these two pleadings as:
"ANSWER WITH A COUNTERCLAIM." We would learn, however, that
THERE ARE FORMAL REQUISITES RELATING TO PLEADINGS
THAT APPLY TO ANSWERS. They are all found in Rule 7, of the Rules
of Court.
What are those requirements under rule 7?
1. Caption
a)
Set forth name of court, title of action, docket number,
names of parties in the title, indicate who are the plaintiffs
and defendant.
2. Body of the pleading
3. Paragraphs
4. Headings
5. Relief
For example you merge counterclaim in the answer. Do you have a
separate caption for the answer and counterclaim? NO
Section 8.
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Q: Should all of the requirements under Rule 7 be separately followed
for the answer and for the counterclaim?
Ans: No. After all the allegations in the answer itself have been stated,
begin the integrated counterclaim by stating: “The defendant hereby
repleads all the allegations contained in the Answer and, by way of
counterclaim, further allege that…” This statement is sufficient to comply
with the applicable requirements under Rule 7.
Comment:
So you just have one title, caption
When you go to the portion where you interpose your counterclaim, you
just put the title - allegations in support of the counterclaim.
Then, “The defendant hereby repleads all the allegations contained in
the Answer and, by way of counterclaim, further allege that…”
Then you enumerate what are those facts related only to your
counterclaim.
SEC. 9. Counterclaim or cross-claim arising after answer.— A
counterclaim or a cross-claim which either matured or was acquired by
a party after serving his or her pleading may, with the permission of the
court, be presented as a counterclaim or cross-claim by supplemental
pleading before judgment. (9a)
Comment: Here, at the time when you filed an answer, you still have no
ground for a counterclaim or cross claim. But after you filed your
pleading, the cause of action for the counter claim matured. Can you still
interpose?
A: Yes with permission of the court.
A supplemental pleading (see Rule 10, Section 6) is required. In this
case, there are physically two separate pleadings filed by the defendant:
his answer and the supplemental pleading setting up his counterclaim.
b)
necessarily related to the original claim but there are certain
situations where the grounds arises after the filing of the
original pleading.
Example: atty’s fees incurred after the filing of the answer.
If the counterclaim is permissive the defendant who had already filed
and served his answer is given another option which is to prosecute his
claim in a separate action.
In cases where the counterclaim is compulsory, the defendant who had
already filed and served his answer may set up his counterclaim under
Rule 11, Section 9. (Eg. Attorney’s Fees incurred after the filing of the
answer).
MATURE COUNTERCLAIM OMITTED FROM DEFENDANT’S
ANSWER
What rule governs a situation where the defendant failed to set up a
mature counterclaim in his answer (when at the time he filed his answer
with counterclaim, he already had these ground) ? Is he already barred?
The answer can be found in Rule 11, Section 10.
SEC. 10. Omitted counterclaim or cross-claim.—When a pleader fails to
set up a counterclaim or a cross-claim through oversight, inadvertence,
or excusable neglect, or when justice requires, he or she may, by leave
of court, set up the counterclaim or cross-claim by amendment before
judgment. (10a)
So there is still a remedy whether it is compulsory, permissive or cross
claim as long as the reason of failure was because of oversight,
inadvertence, excusable neglect or when justice requires. How? BY
FILING AN AMENDED PLEADING.
NOTE: there should be leave of court.
THERE ARE TWO REQUISITES that must be complied with to avail of
Rule 11, Section 9, to wit:
1. There must be prior leave of court allowing the filing of the
counterclaim, upon motion by the defendant; and
2. The counterclaim to be set up by supplemental pleading must
have matured and be filed after serving answer but before
judgment.
Comment: there is not period of time within which to supplement this
pleading because we don’t know when exactly, after you filed an answer
when these additional grounds would arise. So it’s just, before judgment.
NOTE that, as worded, the provision seems to refer generally to
permissive counterclaims because, normally, a compulsory
counterclaim must arise out of or is connected with the same transaction
or occurrence which gave rise to the filing of the complaint.
When do you file? BEFORE JUDGEMENT.
CAN YOU FILE A MOTION TO DISMISS WITH COUNTERCLAIM?
As Riano observes, a "Motion To Dismiss With A Counterclaim" is not
an accepted way of pleading a counterclaim. It is sanctioned neither by
the Rules nor by common usage (Bar 1992; Bar 2008)
A compulsory counterclaim and a motion to dismiss are inherently
incompatible. A party who desires to plead a compulsory counterclaim
should not file a motion to dismiss. IF HE FILES A MOTION TO
DISMISS AND THE COMPLAINT IS DISMISSED THERE WILL BE NO
CHANCE TO INVOKE THE COUNTERCLAIM.
Comment: when you have a counterclaim, the grounds must be in
relation to the grounds pleaded by the complainant in his complaint. So
if the basis for your counterclaim is dismissed, there is no reason for you
to be given relief by way of counterclaim.
In compulsory, you get the grounds on the basis of the complaint which
is filed by the plaintiff.
COMMENT: and the grounds for the counterclaim arose after the
answer with counterclaim is filed, you have two options:
1. If the counterclaim is permissive - you can just file a separate
case or you can include that in the original action by filing a
supplemental pleading wherein you already interpose the
grounds for your permissive counterclaim
2. If compulsory , you cannot file a separate case, you have to
interpose the ground for your counterclaim in your answer
otherwise, the counterclaim is deemed barred.
a)
As a GR, if compulsory, the grounds would already occur at
the time when the defendant files his answer because it is
FINANCIAL BUILD-ING CORPORATION vs. FORBES PARK
ASSOCIATION
G.R. No. 133119, August 17, 2000
A compulsory counterclaim is auxiliary to the proceeding in the original
suit and derives its jurisdictional support therefrom. A counterclaim
presupposes the existence of a claim against the party filing the
counterclaim. Hence, where there is no claim against the
counterclaim-ant, the counterclaim is improper and it must dismissed,
more so where the complaint is dismissed at the instance of the
counterclaimant.
Comment: Just take note of the term counterclaim. So it is something
in opposition to the claim. IF you don’t have a claim in the first place
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From the lectures of Atty. Lielanie C. Yangyang-Espejo
because it is dismissed, there is no basis for the existence of a
counterclaim.
In other words, if the dismissal of the main action results in the dismissal
of the counterclaim already filed, it stands to reason that the filing of a
motion to dismiss the complaint is an implied waiver of the compulsory
counterclaim because the grant of the motion ultimately results in the
dismissal of the counter-claim.
Thus, the filing of a motion to dismiss and the setting up of a compulsory
counterclaim are incompatible remedies. In the event that a defending
party has a ground for dismissal and a compulsory counterclaim at the
same time, he must choose only one remedy. If he decides to file a
motion to dismiss, he will lose his compulsory counterclaim. But if he
opts to set up his compulsory counterclaim, he may still plead his ground
for dismissal as an affirmative defense in his answer.
Comment: What if you really like to interpose your counterclaim and
dismiss the case? What would you do?
Remember, there are only 4 grounds for a motion to dismiss under the
new rules and the others can be interposed as affirmative defenses in
the answer. So when you file an answer, you can set up your
counterclaim and it has the same effect. Depending on the kind of
affirmative defense, the court will conduct a hearing and if there is really
a ground, the court will also dismiss the case but you will still have your
counterclaim. So you file an answer with counterclaim.
SEC. 11. Extension of time to file an answer .—A defendant may, for
meritorious reasons, be granted an additional period of not more than
thirty (30) calendar days to file an answer. A defendant is only allowed
to file one (1) motion for extension of time to file an answer.
A motion for extension to file any pleading, other than an answer, is
prohibited and considered a mere scrap of paper. The court, however,
may allow any other pleading to be filed after the time fixed by these
Rules. (11a)
Examples:
1. Case if very complicated
2. There are several witnesses required and you have to include judicial
affidavits
3. Several evidence required
The court's discretion to grant a motion for extension is conditioned upon
such motion's timeliness, the passing of which renders the court
powerless to entertain or grant it. Since the motion for extension was
filed after the lapse of the prescribed period, there was no more period
to extend.
Example: you file your motion to extend on the 35th day, what is the
consequence? It will not be allowed. - The court's discretion to grant a
motion for extension is conditioned upon such motion's timeliness.
Q: what if 60 days is not enough to file?
PROPER REMEDY TO ADMIT ANSWER AFTER LAPSE OF
PERIOD
It depends. If there is still no declaration of default, the party-pleader
may file a motion to admit late answer to which, again according to Rule
15, Section 9, the belated answer should be attached.
Comment:
As a general rule, if there is an answer, the chances are, even if there is
a subsequent motion to declare in default, the rules on liberality can
apply as long as your case is meritorious.
But there are also cases where the defendant filed and answer and the
plaintiff filed to declare the defendant in default and to expunge the
answer because it was field beyond the reglamentary period, the court
denied the admission of the belated answer and declared the defendant
in default.
But even so, there are still remedies. He can still file a motion to set
aside the declaration of default. He can also file later on a motion for
new trial, petition for relief, motion to annul judgment or petition for
certiorari.
If there is a declaration of default, the party-pleader has no choice but to
file a motion to lift order of default and attach his affidavit of merits. If the
motion is granted, the defaulted party may be allowed to file his answer
as a consequence of setting aside the declaration of default.
TAN, GADOR, ADLAWAN
RULE 12
Note: the rule says, if you are a defendant you are only allowed to file
one motion for extension so all in all, 2 months to file your answer.
How about other pleadings? The rule only mentions answer. Refer to
the 2nd paragraph. It is prohibited.
So example, you want to file a reply, you cannot file a motion for
extension. But take note of the last paragraph. “The court, however, may
allow any other pleading to be filed after the time fixed by these Rules. “
So what if you really would like to file a reply but you don’t have the
luxury of time but you are not allowed a motion for extension. What do
you do?
File a motion to admit the attached reply - after the time when the reply
is supposed to be filed and cite the meritorious grounds why the court
should allow that pleading even after it is filed after the deadline.
In cases where a motion for extension for time is allowed, when do we
file?
PHILIPPINE NATIONAL BANK vs. DEANG MARKETING
CORPORATION
G.R. No. 177931, December 8, 2008
It is a basic rule of remedial law that a motion for extension of time to file
a pleading must be filed BEFORE THE EXPIRATION OF THE PERIOD
SOUGHT TO BE EXTENDED.
BILL OF PARTICULARS
Section 1. When applied for; purpose. — Before responding to a
pleading, a party may move for a definite statement or for a bill of
particulars of any matter which is not averted with sufficient
definiteness or particularity to enable him or her properly to prepare
his or her responsive pleading. If the pleading is a reply, the motion
must be filed within ten (10) calendar days from service thereof. Such
motion shall point out the defects complained of, the paragraphs
wherein they are contained, and the details desired.
PURPOSE
What is the purpose of a Bill of Particulars?
Republic v. Sandiganbayan
G.R. No. 115748, Aug. 7, 1996
A party’s right to move for a bill of particulars in accordance with Sec.
1 of Rule 12 when the allegations of the complaint are vague and
uncertain is intended to afford a party not only a chance to
properly prepare a responsive pleading but also an opportunity
to prepare an intelligent answer. This is to avert the danger where
the opposing party will find difficulty in squarely meeting the issues
raised against him and plead the corresponding defenses which if
not timely raised in the answer will be deemed waived.
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•
For example, a complaint is vague. Because of the
vagueness or uncertainty in the allegations, the defendant
missed certain facts which, had the defendant understood
or had facts in the complaint been clearer, the defendant
would be able to properly interpose the affirmative
defenses (e.g. statute of frauds, prescription, etc.)
Thus, it was pronounced in Virata v. Sandiganbayan that:
The proper preparation of an intelligent answer requires
information as to the precise nature, character, scope and
extent of the cause of action in order that the pleader may be
able to squarely meet the issues raised, thereby circumscribing
them within determined confines and preventing surprises
during the trial, and in order that he may set forth his defenses
which may not be so readily availed of if the allegations
controverted are vague, indefinite, uncertain or are mere
general conclusions. The latter task assumes added significance
because defenses not pleaded (save those excepted in Sec. 2, Rule
9 of the Revised Rules of Court and, whenever appropriate, the
defense of prescription) in a motion to dismiss or in the answer are
deemed waived…
•
The period to file the Motion for a Bill of Particulars refers to
the period for filing the responsive pleading in Rule 11.
o
For example, if a Motion for a Bill of Particulars is
directed to a complaint, when do you file the
motion?
▪
The motion should be filed within 30
days after service of summons,
because that is also the same period
within which to file your answer.
o
If the motion is directed to a counterclaim?
▪
The motion should be filed within 20
days from service of the counterclaim.
For example, it is a reply. The reply itself is vague.
•
In case of a reply, the Motion for a Bill of Particulars must be
filed within ten (10) calendar days of the service of said
reply (Sec. 1, Rule 12, Rules of Court).
Scenario: Suppose, in the Motion for a Bill of Particulars, the defendant,
for example, would like the plaintiff to clarify, to specify, what are those
facts that constitute malice, intent, knowledge, or condition of the mind.
Is it proper to do this under a Motion for a Bill of Particulars? NO
EFFECT
GENERAL VERSUS PARTICULAR AVERMENTS
What is the effect when the Motion for Bill of Particulars is filed?
It would likewise not be proper for a Motion for a Bill of Particulars to call
for the production of the particulars constituting malice, intent,
knowledge or condition of the mind which, under the Rules (Sec. 5, Rule
8, Rules of Court) may be averred generally.
Just like in a Motion to Dismiss, the immediate effect of the proper filing
of a Motion for Bill of Particulars is to interrupt the running of the period
within which to file a responsive pleading.
REASON WHY PERIOD TO FILE ANSWER IS INTERRUPTED
What is the reason why the period to file answer is interrupted
when you file a Motion for a Bill of Particulars?
Lucio Tan v. Sandiganbayan
G.R. No. 84195, Dec. 11, 1989
Pending the resolution of these questions, the issues of the case can
not be said to have been joined, and a party’s failure to attend
subsequent hearings does not amount to failure to prosecute.
•
For example, a complaint is filed, and it is so vague and
uncertain. Obviously, you cannot file an intelligent answer.
o
You should not be prejudiced by the very act of
the plaintiff. You should be given ample time to
ask the plaintiff, to clarify, what he really means
in his complaint.
•
Precisely, the period in which to file an answer is
interrupted. You cannot file an answer yet without
resolving the vagueness, the uncertainty, of the complaint.
WHEN TO FILE
When do you file a Motion for a Bill of Particulars?
The party-pleader can no longer file a Motion for a Bill of Particulars after
he has already filed his responsive pleading (Jose Baritua, et al., v.
Nimfa Divina Mercader, et al., G.R. No. 136048, Jan. 23, 2001).
In short:
•
A Motion for a Bill of Particulars is to be filed before, not after,
responding to a pleading.
o
For example, you already filed your answer. And
then now, you are filing for a Motion of a Bill of
Particulars. You cannot do that anymore.
▪
Why? In the first place, when you filed
your answer, it means you understood
the allegations in the complaint. There
was no uncertainty, no vagueness. That
means it is clear, and there is no need for
you to file a Motions for a Bill of
Particulars.
Basically, it is enough that you aver these generally.
•
Why? Because you cannot really tell what goes on in the mind
of the other person. It is not required that these be
particularized. It is not a proper ground to move in a Bill of
Particulars.
What if the allegations in the complaint are composed merely of
conclusions of law? What is the proper remedy on the part of the
defendant?
•
Is it a Motion to Dismiss? Because as what we have
discussed, as an affirmative defense in the answer, that if the
allegations do not make out a cause of action, it is failure to
cause of action, OR
•
Is it a Motion for a Bill of Particulars?
APPLICABILITY: ALLEGATIONS IN THE FORM OF CONCLUSIONS
Francisco S. Tantuico, Jr. v. Republic of the Philippines
G.R. No. 89114, Dec. 2, 1991
Where the complaint states ultimate facts that constitute the three (3)
essential elements of a cause of action, namely:
(1) The legal right of the plaintiff,
(2) The correlative obligation of the defendant, and
(3) The act or omission of the defendant in violation of said
legal right,
the complainant states a cause of action, otherwise, the complaint
must succumb to a motion to dismiss on that ground of failure to state
a cause of action. However, where the allegations of the
complaint are vague, indefinite, or in the form of conclusions,
the proper recourse would be, not a motion to dismiss, but a
Motion for a Bill of Particulars.
•
Take note also that under the amended rules, you cannot
make this as a ground for a Motion to Dismiss. Failure to
state a cause of action is no longer a ground for a Motion
to Dismiss.
o
If you want to allege that, allege that as an
affirmative defense in the answer.
In this case of Tantuico, the Court here gave us some examples of
allegations that are merely conclusions of law, inferences from facts not
alleged, or just opinions of the pleader.
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Example:
(a) the allegations that defendants-appellees were “actuated by
ulterior motives, contrary to law and morals, with abuse of
their advantageous position as employers, in gross and
evident bad faith and without giving plaintiff. . . his due, wilfully,
maliciously, unlawfully, and in summary and arbitrary
manner”;
(b) an allegation of duty in terms unaccompanied by a statement
of facts showing the existence of the duty;
(c) an averment . . . that an act was “unlawful” or “wrongful” is a
mere legal conclusion or opinion of the pleader;
(d) the allegation that there was a violation of trust was plainly a
conclusion of law;
•
You should specify what are these facts where you can
say that there is a violation of trust. Otherwise, it would
be a conclusion of law.
(e) an allegation that a contract is valid or void, is a mere
conclusion of law:
•
You have to lay down the facts wherein we can see what
makes that contract valid or void.
(f) the averment in the complaint that “defendant usurped the
office of Senator of the Philippines” is a conclusion of law—
not a statement of fact;
•
How did he usurp? If that is your mere allegation, then
that is a mere conclusion of law.
(g) inasmuch as the particular facts on which the alleged
usurpation is predicated are not set forth therein; and
(h) the averment that “with intent of circumventing the
constitutional prohibition that no officer or employee in the civil
service shall be removed or suspended except for cause as
provided by law’, respondents maliciously and illegally for the
purpose of political persecution and political vengeance,
reverted the fund of the salary item x x x and furthermore
eliminated or abolished the said position effective 1 July 1960"
is a mere conclusion of law.
APPLICABILITY: GENERAL ALLEGATION OF FRAUD
Santos v. Liwag
G.R. No. L-24238, Nov. 28, 1980
It was alleged in the complaint that documents subject of the
complaint should be annulled because they have been allegedly
executed by reason of deceit, machination, false pretenses,
misrepresentation, threats, and other fraudulent means.
According to the Court, when you say deceit, machination, false
pretenses, misrepresentation, and threats, they are largely
conclusions of law, and mere allegations thereof without a statement
of the facts to which such terms have reference are not sufficient.
The allegations must state the facts and circumstances from
which fraud, deceit, machination, false pretenses, misrepresentation,
and threats may be inferred as conclusions.
•
This is because, remember before, we discussed
allegations of facts in relation to fraud, you must specify
the particular facts which constitute the alleged fraud,
deceit, machination, or misrepresentation.
In his complaint, the appellant merely averred that all the documents
sought to be annulled were all executed through the use of deceits,
machination, false pretenses, misrepresentations, threats, and other
fraudulent means without the particular facts on which alleged fraud,
deceit, machination, or misrepresentations are predicated.
Hence the Supreme Court said that it was proper for the trial court to
grant the defendant’s motion for a bill of particulars, and when the
plaintiff failed to comply with the order, the trial court correctly
dismissed the complaint.
APPLICABILITY: CAPACITY TO SUE
How about the Capacity to Sue? What do we recall in this particular
allegation? Even under the new Rules:
Section 4. Capacity. - Facts showing the capacity of a party
to sue or be sued or the authority of a party to sue or be sued
in a representative capacity or the legal existence of an
organized association of persons that is made a party, must
be averred.
Rosita Zafra Bantillo v. Intermediate Appellate Court
G.R. No. 75311, Oct. 18, 1988
Here, the Supreme Court held that it is not enough for you to say
that you are the authorized representative. You should allege
facts showing that, indeed, you are the authorized
representative of the plaintiff.
The complainant actually failed to allege in her Complaint a factual
matter which, under the Rules, must be alleged or pleaded.
Knowledge of the identity or identities of the alleged co-heirs and coplaintiffs and, more importantly, of the basis of the complaint’s
claimed authority to represent the complainant, would obviously be
useful to the defendant in the preparation of a responsive pleading.
So, if you are alleging that you are instituting the action on behalf of
the principal, you have to allege the facts from where you derive your
basis in saying that you are the authorized representative.
•
For example: you should attach your special power of
attorney or, if you are representing a corporation, a board
resolution or a secretary’s certificate.
o
You have to allege those facts because one of
the possible grounds for the defendant to
contest the complaint would be the lack of legal
capacity to sue. How can he allege that if the
complaint is not clear on the capacity to sue?
The defendant should also be given sufficient opportunity intelligently
to contest these matters and possibly to raise the same as issues in
the Answer.
The Court, hence, believes that the “Motion for Bill of Particulars” was
proper. You want the plaintiff to allege with more particularity the facts
which are the basis in saying that the complainant is being
represented by a person who is authorized to do so.
TREATING A MOTION TO DISMISS AS A MOTION FOR BILL
For the amended Rules, the possible ground which, under the Rules,
could be a similar ground between a motion to dismiss and a motion for
a bill of particulars would be, in a motion to dismiss, failure to state a
cause of action.
As we have already discussed in the Complaint, you have to lay down
the facts which constitute your cause of action. Otherwise, the complaint
would be deficient, and it would be susceptible to dismissal on that
ground.
In a motion for a bill of particulars, it would also be possible that there
are certain facts which are not alleged or averred with particularity that
the defendant would like the plaintiff to clarify and he would do that by
filing a motion for a bill of particulars.
Now, under the present Rules, a motion to dismiss could no longer be
based on the ground that the complaint failed to state a cause of action.
Rather, the failure to state a cause of action could be interposed as an
affirmative defense in your answer.
It is also possible that the case of Salvador vs. Frio could happen.
Jose Maria Salvador, et al. v. Rosendo, Frio, et al.
G.R. No. L-25352, May 29, 1970
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Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
In this case, the allegation in the motion to dismiss was that the
complaint did not state with particularity the circumstances
constituting the fraud. A motion to dismiss on the ground that the
complaint failed to state a cause of action was raised because the
fraud was not averred with particularity.
However, the Supreme Court said:
Assuming that these allegations were not sufficiently particular
to satisfy the lower court, its proper course was not to dismiss
the complaint but to treat the motion as one for a bill of
particulars and require plaintiffs to submit a more definite
statement or bill of particulars in accordance with Rule 12, section
1 of the Rules of Court.
•
motion for a bill of particulars filed by the defendant refers
more to your allegations of fraud which are not so detailed and
there are other allegations in the complaint that are already
clear and detailed. So, you just clarify what are those facts
from where we can conclude that there is really fraud, in which
case, there is no need to file an amended complaint.
Or, maybe you want to file an amended complaint. In the
amended complaint, you already clarify the allegations of
fraud and all those other allegations. This is how you comply
with the order of the court.
Section 4. Effect of non-compliance. — If the order is not obeyed, or
in case of insufficient compliance therewith, the court may order the
striking out of the pleading or the portions thereof to which the order
was directed, or make such other order as it deems just.
I believe this ruling is still applicable under the amended Rules.
ACTION OF THE COURT: ALLOW BILL RATHER THAN DISMISS
Just remember the established principle under jurisprudence that:
As long as the allegations of a complaint make out a cause of action, the
ambiguity in some allegations of the complaint or the failure to
allege facts with sufficient particularity does not justify the filing of
a motion to dismiss. The proper remedy is to file a motion for bill of
particulars.
Where the allegations of the complaint are vague, indefinite, or in the
form of conclusions, the proper recourse would be, not a motion to
dismiss, but a motion for a bill of particulars.
And this also is more applicable under the amended Rules because,
again, a motion to dismiss on the ground that the complaint failed to
state a cause of action is no longer allowed.
Section 2. Action by the court. — Upon the filing of the motion, the
clerk of court must immediately bring it to the attention to the court,
which may either deny or grant it outright, or allow the parties the
opportunity to be heard.
Just take note what is the action of the court when a motion for a bill of
particulars is filed.
Section 3. Compliance with order. — If the motion is granted, either
in whole or in part, the compliance therewith must be effected within
ten (10) calendar days from notice of the order, unless a different
period is fixed by the court. The bill of particulars or a more definite
statement ordered by the court may be filed either in a separate or in
an amended pleading, serving a copy thereof on the adverse party.
If the motion is granted, either in whole or in part,
•
It could be in whole or in part because there might be some
other relief that you pray in your motion which will not be
granted but some are granted.
the compliance therewith must be affected within ten (10) calendar
days from notice of the order,
•
We are referring here to the movant: within 10 days from the
time he receives the order granting the motion for a bill of
particulars. He has 10 days to comply.
unless a different period is fixed by the court.
•
How do you file a bill of particulars or a more definite
statement?
The bill of particulars or a more definite statement ordered by the
court may be filed either in a separate or in an amended pleading,
serving a copy thereof on the adverse party.
•
Meaning, you can file a separate pleading. You just clarify
there what are those matters which, for example, the
defendant would like to be clarified on. For example, the
What is the effect of non-compliance? Please take note if the order is
not obeyed.
For example, the court already granted the motion for a bill of particulars.
It ordered the plaintiff to clarify what are those matters which constitute
fraud, what are the factual allegations which would make out a case of
fraud.
If the order is not obeyed, or insufficiently complied, 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.
Can the Court dismiss the plaintiff’s claim for non-compliance
under section 4?
General Rule: If the Court should be careful in dismissing the case
where the allegations are vague but instead allow the filing of a motion
for bill of particulars. Di ba we said na in a motion to dismiss and a motion
for bill of particulars, if there is a way from which the court can treat a
motion as a motion for bill of particulars it will treat the motion as a motion
for bill of particulars.
Are there instances where non-compliance by the plaintiff can lead
to the dismissal of his claim?
If you read section 4, it only provides for the striking out of the pleading
and to make such other order as it deems just.
In the case of Lirag vs Galano, the court actually said Yes, failure to
comply under section 4 can lead to dismissal
On what basis? (referring to the cited case)
it falls under the term “such other order as it deems just.”
In the case of Bautista vs Teodoro the SC said na with reference to
rule 17 section 3, the same question of whether or not the
complaint may be dismissed? (On the ground of non-compliance
under section 4)
Ans: Rule 17 Section 3 which is similar actually to the amended rules.
(The case was based from the old rule but the case discussed can be
applied to this amended rule) Section 3- Dismissal due to fault of
plaintiff- if, for no justifiable cause, the plaintiff fails to appear on the date
of the presentation of his evidence in chief on the complaint, or to
prosecute his action for an unreasonable length of time, or to comply
with these Rules or any order of the court, the complaint may be
dismissed upon motion of the defendant or upon the court’s own motion,
without prejudice to the right of the defendant to prosecute his
counterclaim in the same or in a separate action.
Take note: Dismissal due to the fault of the plaintiff, one of the grounds
is that for any justifiable cause, the plaintiff fails to comply with any order
of the court. If that order, would be to tell the plaintiff na, you provide for
a clearer version of your complaint, comply with the motion for bill of
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From the lectures of Atty. Lielanie C. Yangyang-Espejo
particulars, you provide the particulars of the complaint and if he does
not comply with that, that is a ground for dismissal.
SEC.5 Stay of period to file responsive pleading- After service of the bill
of particulars or of a more definite pleading, or after notice of denial of
his or her motion, the moving party may file his or her responsive
pleading within the period to which he or she was entitled at the time of
filing his or her motion, which shall not be less than 5 calendar days in
any event
The filing of a motion to dismiss or the filing of a motion for bill of
particulars interrupts the running of the period within which to file an
answer.
Example: If defendant file a motion on the 25th day he has still a balance
to file an answer or if he file a motion on the 26th day. What is the
remaining period? The law says not less than 5 days but technically 4
days na lang unta pero the rule says he has at least 5 calendar days to
file the responsive pleading.
Are there instances na even if you file a motion for bill of particulars
the period within which to file an answer is not deemed
uninterrupted?
Ans: Yes, as discussed in the case National Waterworks et al vs NWSA
Consolidated et al. Where the filing of the motion for bill of particulars
was done for delay and was done without entirely merit.
Klaro na jud kayo ang complaint, ikaw na lang ang wala ka klaro pero
sa tanan klaro sya and then you file this motion. The court will interpret
it as manifestly for delay and it will not interrupt the running of the period
within which to file the answer.
Another example would be the case of Filipinas Fabricators vs
Magsino
here the motion for bill of particulars was not in compliance with the
rules on motion. In this case the Supreme Court said na a motion to be
given merit must be sufficient in form and substance. It should comply
with the general requirements on motions under Section 4 and 5. (this
case is based on the previous rules)
What are these requirements?
When you file a motion it shall be accompanied by a notice for hearing.
A litigious motion shall be set for hearing. It should be furnished to the
adverse party at least 3 days before the hearing and state in the notice
of hearing the exact time and place of hearing.
The court said; The petitioner’s motion for bill of particulars did not
contain the notice of hearing and proof of service required by the rules.
This kind of motion is nothing but a mere scrap of paper. It presents no
question which merits the attention and consideration of the court. In
fact, it is not even considered a motion. A defective motion of this kind
does not interrupt the running of the period within which to file answer.
SEC 6. Bill a part of pleading- A bill of particulars become part of the
pleading for which it is intended
APOSTOL, FERNANDEZ, ROJO
RULE 13
FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER
PAPERS
So we are referring here to the papers coming from the parties and
from the Court.
Section 1. Coverage. – This Rule shall govern the filing of all
pleadings, motions, and other court submissions, as well as their
service, except those for which a different mode of service is
prescribed.
As a general rule, service of all pleadings is governed by Rule 13. So,
this rule governs pleadings “except those for which a different mode of
service is prescribed.” What are those cases in which a different mode
of service is prescribed, na dili mag-govern ang Rule 13? An example
of the exception is the service of complaint which is governed by Rule
14. Aside from that Rule 13 applies to all pleadings except a complaint,
because it’s a different mode when the complaint is served.
Section 2. Filing and Service, defined. — Filing is the act of
submitting the pleading or other paper to the court.
Service is the act of providing a party with a copy of the pleading
or any other court submission. If a party has appeared by counsel,
service upon such party shall be made upon his or her counsel,
unless service upon the party and the party’s counsel is ordered
by the court. Where one counsel appears for several parties, such
counsel shall only be entitled to one copy of any paper served by
the opposite side.
Where several counsels appear for one party, such party shall be
entitled to only one copy of any pleading or paper to be served
upon the lead counsel if one is designated, or upon any one of them
if there is no designation of a lead counsel.
What is important here is the definition of filing and the definition of
service. And then to whom service shall be made when a party is
represented by counsel and when not represented by counsel.
FILING AND SERVICE
•
•
Filing is the act of submitting the pleading or other papers to
the clerk of court (Sec. 2, Rule 13, Rules of Court).
Service is the act of providing a party with a copy of the
pleading or paper concerned (Sec. 2, Rule 13, Rules of
Court).
So when you say Filing, that is you are submitting that to the Court.
When you say Service, you are giving a copy of that to the other party.
How does the plaintiff comply with the order granting the motion
for bill of particulars of the defendant?
1. He could file a separate bill
2. He could file an amended pleading (if a plaintiff)
We go to Service, as we said when it is Service meaning we are
furnishing a copy of that to the other party.
What if he files separate bills?
The bill of particulars becomes part of the complaint for which it is
intended.
Situations:
1. Party without counsel
UPON WHOM SERVICE IS MADE:
If a party has not appeared by counsel, then common reason
suggests that service must be made upon him (the party).
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
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Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
2.
Party with counsel
The rule is that when a party is represented by counsel in an
action in court, notices of all kinds, including motions,
pleadings, and orders must be served on said counsel and
notice to him is notice to the client (PEOPLE vs. GABRIEL,
G.R. No. 147482, December 6, 2006).
or the party himself if he does not intend to hire a lawyer (DE LOS
SANTOS vs. ELIZALDE, G.R. Nos. 141810 & 141812, February 2,
2007).
Remember ha, notice to the client is not notice at all if the party is
represented by counsel. But notice to counsel is notice to the party.
IMPORTANCE OF THE RULE
Actually this has been the standing rule even before the
amendment. Jurisprudence also has been consistent in
saying that the service should be made to the counsel.
Section 2, Rule 13 of the Rules of Court provides that:
If a party has appeared by counsel, service upon such party shall be
made upon his or her counsel, unless service upon the party and the
party’s counsel is ordered by the court.
What if the party was actually notified even if you did not serve the
pleading to the counsel, but we cannot deny that the party himself
received a copy of the pleading?
Even if a party, represented by counsel, has been actually notified, the
notice to the party is not considered notice in law.
Why is it that when a party is represented by counsel, the notice should
be served to the counsel and notice to the party is not equivalent to
notice?
There are several cases which give us the reason where the Supreme
Court explained what is the reason one of which is BRIBONERIA vs.
COURT OF APPEALS (216 SCRA 616). And then we have this case
of FORTUNATA N. DUQUE vs. COURT OF APPEALS, ET AL. (G.R.
No. 125383, July 2, 2002)
The general rule as provided for under Section 2 of Rule 27 (now Section
2, Rule 13) of the Rules of Court is that all notices must be served upon
counsel and not upon the party. This is so because the attorney of a
party is the agent of the party and is the one responsible for the conduct
of the case in all its procedural aspects; hence, notice to counsel is
notice to party. The purpose of the rule is obviously to maintain a
uniform procedure calculated to place in competent hands the
orderly prosecution of a party’s case (Chainani vs. Judge Tancinco,
G.R. No. L-4782, Feb. 29, 1952; Capili v. Badelles, G.R. No. L-17786,
Sept. 29, 1962). However, the general rule cannot apply where the law
expressly provides that notice must be served upon a definite person. In
such cases, service must be made directly upon the person mentioned
in the law and upon no other in order that the notice be valid.
Ofcourse, the client does not know the Rule on reglementary periods so
if he receives something from the Court or the other party, that client
would not know what to do with the pleading, so siguro taguan lang na
niya or kalimtan sa because he does not know about the reglementary
period.
It has been held that notice or service made upon a party who, is
represented by counsel is a nullity. As a rule, notice to the "client and
not to his counsel of record is not notice in law unless for instance when
the court or tribunal orders service upon the party or when the technical
defect in the manner of notice is waived (HEIRS OF BENJAMIN
MENDOZA vs. COURT OF APPEALS, G.R. No. 170247, September
17, 2008).
Service upon the parties' counsels of record is tantamount to
service upon the parties themselves, but service upon the parties
themselves is not considered service upon their lawyers. The
reason is simple - the parties, generally, have no formal education or
knowledge of the rules of procedure, specifically, the mechanics of an
appeal or availment of legal remedies; thus, they may also be unaware
of the rights and duties of a litigant relative to the receipt of a decision.
More importantly, it is best for the courts to deal only with one person in
the interest of orderly procedure - either the lawyer retained by the party
MIGUEL SORIANO, JR., ET AL. vs. ANTERO SORIANO, ET AL. (G.R.
No. 130348, September 3, 2007)
As mentioned above, the general rule is, where a party appears by
attorney in an action or proceeding in a court of record, all notices
required to be given therein must be given to the attorney of record; and
service of the court's order upon any person other than the counsel
of record is not legally effective and binding upon the party, nor
may it start the corresponding reglementary period for the
subsequent procedural steps that may be taken by the attorney.
Notice should be made upon the counsel of record at his exact given
address, to which notice of all kinds emanating from the court should be
sent in the absence of a proper and adequate notice to the court of a
change of address.
Said differently, when a party is represented by counsel of record,
service of orders and notices must be made upon said attorney; and
notice to the client and to any other lawyer, not the counsel of record, is
not notice in law
Meaning, if the party is represented by counsel, the notices must be
served upon the lawyer himself. So what if the notice is not served upon
the lawyer but another person, not necessarily the client or the party, but
upon another person. For example, the lawyer holds office in a
compound and instead of going directly to the office of the lawyer, the
pleading was just served with the security guard, will it be a proper
service? Again it must be made to the counsel, we will discuss several
cases in relation to that.
What if a party is represented by several counsels?
RULE IN CASE THERE ARE SEVERAL COUNSELS
The rule says that you should give one copy to the lead counsel or if
there is no lead counsel, upon any one counsel.
You do not have the obligation to provide all of the lawyers separate
copies.
PHILIPPINE PORTS AUTHORITY vs. SARGASSO CONSTRUCTION
& DEV’T CORP., ET AL.
G.R. No. 146478, July 30, 2004
With regard to their first assignment of error, petitioners are on extremely
shaky grounds when they argue that counsel on record are entitled to
separate notices of the court’s decision. This argument is obviously
inconsistent with Sec. 2, Rule 13 of the Rules of Court which explicitly
provides that if a party has appeared by counsel, "service upon him shall
be made upon his counsel or one of them" (italics supplied). Clearly,
notice to any one of the several counsel on record is equivalent to
notice to all and such notice starts the time running for appeal
notwithstanding that the other counsel on record has not received
a copy of the decision.
Swerte lang ka kung ang counsel nakareceive kanang abtik, na he
would already file the necessary pleading, kanang uban diha,
makalimot. Malas nimo. But again notice to any one of the counsel is
notice to the party.
How about if these lawyers belong to different law firms or offices, would
the rule still apply? This was answered in the case of:
NATIONAL POWER CORPORATION vs. SPOUSES LAOHOO
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
110
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
G.R. No. 151973, July 23, 2009
The rules provide that if a party is appearing by counsel, service upon
him shall be made upon his counsel or one of them unless service upon
the party himself is ordered by the court. In Ortega v. Pacho, this Court
ruled that service to one of plaintiff’s several counsels is sufficient. It was
further held that when the rule employs the words "his attorneys or one
of them," it can only refer to those employed regardless of whether they
belong to the same law firm or office, otherwise that meaning would have
been expressed therein. The reason for the rule undoubtedly is that,
when more than one attorney appears for a party, notice to one would
suffice upon the theory that he would notify or relay the notice to his
colleagues in the case. This is a rational and logical interpretation, and
we find no plausible reason to rule otherwise. Accordingly, service of a
copy of the decision or orders of the court on Atty. Cinco is deemed
service upon the petitioner. The failure of Atty. Cinco to file the
necessary notice of appeal on time binds the petitioner.
The rule also provides an exception na even if a party is represented by
counsel, but notice or service must be made upon the party himself.
EXCEPTION
The exception to this rule is when the court directs service upon the party
himself.
In the case of Retoni vs CA the Supreme Court gave us 3 instances
wherein even if the party is represented by counsel, the service to the
party himself is required and it is enough.
RETONI, JR. vs. COURT OF APPEALS
218 SCRA 468 [1993]
Usually, service is ordered upon the party himself, instead of upon
his attorney,
1) when it is doubtful who the attorney for such party is, or
2) when he(the counsel) cannot be located or
3) when the party is directed to do something personally, as
when he is ordered to show cause
Now again,
•
If the party is represented by counsel, service must be made
to the counsel not to the party.
•
Service to the counsel is legally service to the party.
•
But if you serve the pleading upon the party, that service is a
nullity, it is not proper because the party is represented by
counsel.
One unfortunate and sad consequence of this is what if service was
made upon counsel and then the counsel through negligence or mistake
failed to act appropriately. Like he failed to file a timely appeal, can the
party claim na, I am not bound by the negligence or recklessness of my
counsel. You know the rule that the client is bound by the acts, even
mistakes, of his counsel in the realm of procedural technique. But there
is an exception to this rule, when the negligence of counsel is so gross,
reckless and inexcusable that the client is deprived of his day in court.
For example, you receive summons, so you hired a lawyer immediately
to represent you in the case. But the lawyer through his gross
negligence, failed to file the necessary pleading like the answer, and you
were really deprived of your day in court, that could be a ground na the
gross recklessness and inexcusable neglect of the lawyer would excuse
the client. But in general, failure of a party’s counsel to notify him on time
of the adverse judgment to enable him to appeal therefrom is
negligence, which is not excusable. Notice sent to counsel of record is
binding upon the client, and the neglect or failure of counsel to inform
him of an adverse judgment resulting in the loss of his right to appeal is
not a ground for setting aside a judgment valid and regular on its face.
As discussed in the case of:
NATIONAL POWER CORPORATION vs. SPOUSES LAOHOO (G.R.
No. 151973, July 23, 2009)
The general rule is that a client is bound by the acts, even mistakes, of
his counsel in the realm of procedural technique. The exception to this
rule is when the negligence of counsel is so gross, reckless and
inexcusable that the client is deprived of his day in court. The failure of
a party’s counsel to notify him on time of the adverse judgment to enable
him to appeal therefrom is negligence, which is not excusable. Notice
sent to counsel of record is binding upon the client, and the neglect or
failure of counsel to inform him of an adverse judgment resulting in the
loss of his right to appeal is not a ground for setting aside a judgment
valid and regular on its face.
The essence of due process is to be found in the reasonable opportunity
to be heard and submit any evidence one may have in support of ones
defense. To be heard does not mean only verbal argument in court; one
may be heard also through pleadings. Where opportunity to be heard,
either through oral arguments or pleadings, is accorded, there is no
denial of due process (Producers Bank of the Philippines vs. CA (G.R.
No. 126620, April 17, 2002).
You have to remember that in this kind of case, it is only the right to
appeal which is being questioned here, because according to the party
his lawyer committed negligence which deprived him of his day in court,
specifically to file the appeal. But you know when that is the case the
Supreme Court also in this case of (Producers Bank of the Philippines
vs. CA (G.R. No. 126620, April 17, 2002). [Refer to the case above]
So for example you were already given the chance to present you
arguments in court, you filed your pleadings but it was only the appeal
which was lost because of the negligence of your counsel, so general
rule, the court says na the negligence of the counsel binds the client.
Situation: The original counsel resigned but he did not file a notice of
withdrawal in court. (Supposedly if you're the counsel and you have
resigned, you file a notice of withdrawal and then, that's the time when
the new lawyer will enter his appearance.) However, for example, wala
nagfile ug notice of withdrawal ang old lawyer who already resigned, it’s
also possible that the new lawyer mag-enter gihapon ug appearance.
So based on the court records, there are now two lawyers. The one who
previously entered his appearance and the new lawyer. Now because
the old lawyer did not file a notice of withdrawal, when the court gives
out notices, didto nila ginahatag sa old lawyer. Wala nila tagai ug new
lawyer.
Q: What if the original counsel resigned but he did not file a notice
of withdrawal in court? Then a new lawyer entered his appearance.
Then the court issued judgment furnishing copy only to the old
counsel. Is the notice binding upon the client?
A: Yes. The notice sent to the old lawyer is still binding because he
did not file a withdrawal. It is not up to the courts to ask the parties
whether the counsel have withdrawn. It is up to the party to notify.
For example, wala nagnotify si old lawyer na wala niya giwithdraw iyang
entry of appearance, it is incumbent upon the client to notify the court.
Service must be made at the exact given address.
Philippine Long Distance Telephone Co. vs. NLRC
G.R. NO. L-60050, March 26, 1984
Facts: The bailiff, instead of serving the notice of the decision at the
lawyer on the ninth floor as is clearly indicated in the notice of decision,
left the notice at the ground floor of the Prudential Bank's main building.
Issue: Is the bailiff's service of the notice on the ground floor considered
a valid service?
Ruling: We have held time and against that notices to counsel should
properly be sent to the address of record in the absence of due notice
to the court of change of address. Hence, practical considerations and
the realities of the situation dictate that the service made by the bailiff on
March 23, 1981 at the ground floor of the Prudential Bank's building, and
not at the address of record of Prudential Bank's counsel on record at
the 9th floor of the PLDT building cannot be considered a valid service.
It was only when the Legal Services Division actually received a copy of
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
111
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
the decision on March 26, 1981 that a proper and valid service may be
deemed to have been made.
In modern multi-storied buildings, there may be several hundred rooms
with hundreds of different employees discharging different functions. A
receiving clerk in a given mailing section may not know the difference
between a notice to a lawyer and the thousands of other
communications received by her either by mail or through personal or
commercial messengers and may not act accordingly. Service upon a
lawyer must be effected at the exact given address of the lawyer and not
in the vicinity or at a general receiving section for an entire multi-storied
building with many offices.
Paz Reyes Aguam vs. Court of Appeals, et. al
Notice was sent by registered mail. It was received by an employee of
the realty firm with which the counsel was sharing an office. She was not
an employee of the counsel because the lawyer here is a solo
practitioner.
Q: Is that valid?
A: The SC said no. The mail matter must be received by the addressee
or his duly authorized representative. Service of papers which includes
every written notice on a person who was a clerk, employee or one in
charge of the attorney's office, is invalid. Here, the notice was received
by an employee of a realty firm with which counsel was sharing office.
She was not an employee of petitioner's counsel. He was a solo
practitioner.
Here, the SC said, in the higher interest of justice, considering that the
delay in filing a motion for extension to file appellant's brief was only for
nine (9) days and normally, the Court of Appeals would routinely grant
such extension, and the appellant's brief was actually filed within the
period sought, the better course of action for the Court of Appeals was
to admit appellant's brief.
Take note of this case of Philippine Commercial and Industrial Bank vs.
Ortiz.
Philippine Commercial and Industrial Bank vs. Ortiz
Here the lawyer had a different address. He indicated a different address
in his pleadings. But in practice, he agreed that all services to him either
by the court or by the adverse party may be made three floors down from
his address.
The Court here said that counsel is entirely at liberty to change his
address, for purposes of service, or expressly or impliedly adopt one
different from that initially entered in the record. When he does this, he
cannot afterwards complain that the person who received the notice,
pleading, motion or paper at such new address did not promptly deliver
the same to him or bring it to his attention. This is what happened in this
case.
PCIB's attorneys’ had acquiesced to and impliedly adopted a different
address for service of notices to them. They had accepted service at this
place, three floors down from the address originally given by them,
without objection of any sort. They cannot now disown this adopted
address to relieve them from the effects of their negligence,
complacency, or inattention. Service, therefore, on July 15, 1978 of the
notice of judgment at the Ground Floor, LRT Building, should be deemed
as effective service on PCIB's attorneys. The failure of the receiving
clerk to deliver the notice to them on the same day, and what is worse,
the lawyers omission to inquire of said receiving clerk exactly when the
notice was received, and their blithe assumption that service was
effected on July 17, 1978 since this was the day that the notice was
handed over to them, warrant imprudence and cannot in any sense be
deemed to constitute excusable negligence as would warrant
reconsideration under Section 1(a), Rule 37 of the Rules of Court.
So, we already know the definition of filing in service. Let's go to filing
under Section 3.
Section 3. Manner of filing.- The filing of pleadings and other
court submissions shall be made by:
a.
b.
c.
d.
Submitting personally the original thereof, plainly
indicated as such, to the court;
Sending them by registered mail;
Sending them by accredited courier; or
Transmitting them by electronic mail or other
electronic means as may be authorized by the Court in
places where the court is electronically equipped.
In the first case, the clerk of court shall endorse on the pleading
the date and hour of filing. In the second and third cases, the
date of the mailing of motions, pleadings, and other court
submissions, and payments or deposits, as shown by the post
office stamp on the envelope or the registry receipt, shall be
considered as the date of their filing, payment, or deposit in
court. The envelope shall be attached to the record of the case.
In the fourth case, the date of electronic transmission shall be
considered as the date of filing.
If you examine, under the amended rules, there are now four manners
of filing. Prior to the amendment, there are only two modes of filing:
personal and registered mail.
What is important here is the date, the effective dates of filing.
Why? To know kung within the period pa ba ang imong pag-file.
Situation: For example, if you're the defendant, you have thirty days
within which you can file your answer. You file by registered mail on the
30th day itself but it was received 7 days after you filed it.
Q: Was it filed on time?
A: Yes. It is still on time because the date of mailing will be
considered as the date of filing.
Effective Dates of Filing
1. Personal Filing- Upon date of receipt as stamped.
So adto ka sa court, gidala nimo didto ang Answer. I-stamped na siya
sa didto sa tig-stamp ang date. So that is the date of filing.
Take note: All pleadings before you file it, you have to serve it first to
the adverse party. The court will not receive your pleading if makita nila
didto sa "copy furnished to" na portion na wala diay nimo gi-serve ang
adverse party. So serve first then you file with proof of service.
2.
Registered mail and accredited courier- the date of the
mailing as shown by the post office stamp on the
envelope or the registry receipt.
So, sa example ganiha na you filed it on the 30th day and na-receive
siya after 7 days, it is still on time because the date of mailing will be
considered as the date of filing.
Take note: Under the amended rules, apil na ang accredited courier.
Before wala pa nay labot. Pero under the amended rules, apil na sila.
Sa una, kung nag-LBC ka, the date of filing is the date when the court
received your document.
3.
Electronic mail or other electronic means- the date of
electronic transmission
What is the rule if instead of the registered service of the Post
Office, you availed the private messengerial service or by ordinary
mail?
Industrial Timber Corp. vs. NLRC
Where a pleading is filed by ordinary mail or by private messengerial
service, it is deemed filed on the day it is actually received by the court,
not on the day it was mailed or delivered to the messengerial service.
This case is still applicable because under the amended rules wala pa
man na apil ang ordinary mail or private messengerial service sa
kadtong mga 'manner.' Actually, ma-consider ni siya na personal service
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
112
Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
kay didto siya ma-consider filed upon the date na na-receive sila. It's not
the date of the mailing.
How about filing by fax (facsimile), is it allowed? It is not mentioned
under section 3. As mentioned in Garvida vs Sales, Jr., the Supreme
Court said:
GARVIDA VS SALES, JR.
April 18, 1997
Filing a pleading by facsimile transmission is NOT sanctioned by the
Rules of Court. It is not a genuine and authentic pleading. It is, at its
best, an exact copy preserving all the marks of an original. Without
the original, there is no way of determining on its face whether the
facsimile pleading is genuine and authentic and was originally signed
by the party and his counsel. It may, in fact, be a sham pleading.
Take note of this case of :
CUEVAS VS. MUNOZ.
It was also a facsimile transmission of a warrant of arrest. And the
copy was the basis of the issuance of an order of arrest that led to
the respondent’s apprehension. So it was questioned (by the
respondent) because the facsimile copy was not authenticated.
According to the respondent, it was insufficient to form a basis for
an issuance of the order of arrest citing the case of Garvida vs
Sales, Jr.
The Supreme Court said here that the reliance on the case of
Garvida vs Sales, Jr. was misplaced. The prescription against the
admission of a pleading that has been transmitted by a facsimile
machine has no application in this case. Why?
1.This case does not involve a pleading. It is a warrant of arrest.
2.
Unlike the COMELEC Rules of Procedure which do not
sanction the filing of a pleading by means of facsimile machine (also
in the Rules of Court), P.D. No. 1069 and the RP-HK Extradition
Agreement do not prohibit the transmission of a request for
provisional arrest by means of a fax machine.
Also, for the purpose of expediency, because the Supreme Court
said in the advent of modern technology, the telegraph or cable have
been conveniently replaced by the facsimile machine. The
transmission by the Hong Kong DOJ of the request for the
respondent’s provisional arrest and the accompanying documents
which were the warrant of arrest, summary of the facts of the case,
the particulars of his birth and address, the statement of his intention
to request his provisional arrest and the reason therefor, by fax
machine, more than serve the purpose of expediency.
CUEVAS VS JUAN ANTONIO MUNOZ
G.R. No. 140520, December 18, 2000
FACTS: On August 23, 1997, the Hong Kong Magistrate’s Court at
Eastern Magistracy issued a warrant for the arrest of Munoz.
Pursuant t its treaty of extradition with the Philippines, HK sought the
assistance of the Department of Justice by faxing a copy of the
warrant to the NBI. The facsimile was the basis for the issuance of
an order of arrest that led to the respondent’s apprehension.
The respondent questioned the same and averred that the request
for provisional arrest and the accompanying warrant of arrest and
summary of facts faxed by HK were unauthenticated and mere
facsimile copies which are insufficient to form a basis for the issuance
of the Order of Arrest. Garvida vs Sales was cited.
RULING: In the advent of modern technology, the telegraph or cable
have been conveniently replaced by the facsimile machine.
Therefore, the transmission by the Hong Kong DOJ of the request for
respondent’s provisional arrest and the accompanying documents,
namely, a copy of the warrant of arrest against respondent, a
summary of the facts of the case against him, particulars of his birth
and address, a statement of the intention to request his provisional
arrest and the reason therefor, by fax machine, more than serves this
purpose of expediency.
Respondent’s reliance on Garvida v. Sales, Jr. is misplaced. The
proscription against the admission of a pleading that has been
transmitted by facsimile machine has no application in the case at
bar for obvious reasons. First, the instant case does not involve a
pleading; and second, unlike the COMELEC Rules of Procedure
which do not sanction the filing of a pleading by means of a facsimile
machine, P.D. No. 1069 and the RP Hong Kong Extradition
Agreement do not prohibit the transmission of a request for
provisional arrest by means of a fax machine.
Section 4. Papers required to be filed and served. — Every
judgment, resolution, order, pleading subsequent to the
complaint, written motion, notice, appearance, demand, offer of
judgment or similar papers shall be filed with the court, and
served upon the parties affected.
Let us go to Section 4. It mentions about papers required to be filed and
served. Take note that Section 4 talks of “filed and served”. We already
know that there is a difference between filing and service. When you file,
you file to the court. When you serve, you serve upon the other
party/parties.
Comment: Actually, when it comes to the parties (note that all pleadings
are after the complaint) what you do is you serve first a copy of your
pleading, motion, and other paper upon the adverse party before you file
them with the court. Regarding the court, of course the court should first
file their own judgment, resolution, and then serve a copy of these
judgments, resolutions, notices to the parties. That is the order.
Based on Section 4, what are the papers to be filed and served? We
have:
1.
Judgments;
2.
Resolutions;
3.
Orders;
4.
Pleadings subsequent to the complaint;
5.
Written motions;
6.
Notices;
7.
Appearances;
8.
Demands;
9.
Offers of judgment; or
10.
Similar papers (Sec. 4, Rule 13, Rules of Court)
ON PLEADINGS SUBSEQUENT TO THE COMPLAINT
Comment: Now again, take note of pleadings subsequent to the
complaint. All of these must be served upon the adverse party and then
filed to the court. As to the complaint, you do not need to serve a copy
of your complaint to the adverse party. You just file the complaint in court
and then it is now the court through the process server which will notify
the defendant of the existence of a case against him. So the court will
actually issue summons and the copy of the complaint will be attached
to the summons. So the summons will tell the defendant to serve and
file his answer within 30 days, and it will inform the defendant about the
existence of the complaint. So you do not serve a copy of your complaint
to the adverse party. Although there are some like for example in my
practice, naay uban na “Atty., pwede tagaan pud nato’g copy si
defendant sa akong complaint?” Why? Kay gusto lang gyud niya na dili
magka-peace of mind si defendant kay dugay daw muabot ang copy sa
complaint. Dugay ma-summon. So in the meantime, gusto niya
makabalo si defendant na naa na’y kaso. That is the reason. Pero
legally, we (lawyers) are not required to serve a copy of your complaint
to the defendant.
ON JUDGMENTS
Now, regarding judgments, judgments must be filed and served. Who
files the judgment? It is the judge who will file his judgment before the
court. S this will show us that there is really a distinction between a court
and a judge. Rule 36 is instructive here. What does it provide?
Rule 36, Section 1. Rendition of judgments and final orders. — A
judgment or final order determining the merits of the case shall be in
writing personally and directly prepared by the judge, stating clearly
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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and distinctly the facts and the law on which it is based, signed by
him, and filed with the clerk of the court. (1a)
counsel's residence, if known, with a person of sufficient age and
discretion residing therein.
So filed with the clerk of court. The judge has to file his own decision to
make it official.
For example nagkita mo sa koret, can you also give a copy of the
pleading or motion to the adverse party or to the counsel? There is no
prohibition. You can also serve there as long as he is the proper person.
Again if the party is represented by counsel, service must be made to
the counsel.
PLEADINGS SUBSEQUENT TO THE COMPLAINT
Note that when the plaintiff files his complaint, he does not serve a copy
to the defendant. It is the duty of the court sheriff to serve summons to
the defendant together with a copy of the complaint.
We also discussed noh na pleadings subsequent to the complaint, these
are the pleadings which need to be served upon the adverse party and
filed with the court. Note that when the plaintiff files his complaint it has
not served copy to the defendant.
Q: Why?
A: Because the courts still has no jurisdiction over the person of the
defendant.
Q: When is jurisdiction acquired?
A: The jurisdiction over the person of the defendant is acquired by
proper service of summons or by his voluntary appearance.
So, prior to that, if you are the plaintiff you don’t have to serve a copy of
complaint to the defendant. It is the duty of the court sheriff or the
process server to serve summons to the defendant together with the
copy of the complaint.
Section 5. Modes of Service – Pleadings, motions, notices,
orders, judgments, and other court submissions shall be served
personally or by registered mail, accredited courier, electric
mail, facsimile transmission, other electronic means as may be
authorized by the Court, or as provided for in international
conventions to which the Philippines is a party. (5a)
Let us now go to Section 5. Modes of Service. We discussed before
filing, so karun service na pud. Please read Section 5.
MODES OF SERVICE
There are now six modes of service of pleadings, motions, notices,
orders, judgments and other papers.
Before there were only two modes: (a) personally (Sec. 6, Rule 13) or
by (b) mail (Sec. 7, Rule 13).
Section 6. Personal Service. — Court submissions may be
served by personal delivery of a copy to the party or to the
party’s counsel, or to their authorized representative named in
the appropriate pleading or motion, or by leaving it in his or her
office with his or her clerk, or with a person having charge
thereof. If no person is found in his or her office, or his or her
office is not known, or he or she has no office, then by leaving
the copy, between the hours of eight in the morning and six in
the evening, at the party's or counsel's residence, if known, with
a person of sufficient age and discretion residing therein. (6a)
We will now discuss the different kinds of service.
The first is Personal Service which is defined in Section 6. Take note
under Personal Service to whom service shall be made and where shall
service be made.
To whom:
1. Party;
2. Party’s counsel; or
3. Authorized representative named in the appropriate pleading
or motion; or
4. To the clerk; or
5. With a person having charge thereof
If no person is found in his or her office, or his or her office is not known,
or he or she has no office, then by leaving the copy at the party's or
PERSONAL SERVICE
Under the previous rule, personal service under Sec. 6 of Rule 13 is the
preferred mode of service (Sec. 11, Rule 13, Rules of Court, UY vs
MEDINA, 342 SCRA 393). If another mode of service is used other than
personal service, the service must be accompanied by a written
explanation why the service of filing was not done personally. It was
provided under the previous rule that:
Section 11. Priorities in modes of service and filing. —
Whenever practicable, the service and filing of pleadings
and other papers shall be done personally. Except with
respect to papers emanating from the court, a resort to
other modes must be accompanied by a written
explanation why the service or filing was not done
personally. A violation of this Rule may be cause to
consider the paper as not filed. (n)
Note: The afore-cited rule is no longer found under the amended rules.
Take not that under the previous rule personal service under Sec. 6 of
Rule 13 is the preferred mode of service. If another mode of service is
used like registered mail, the service must be accompanied by a written
explanation why the service of filing was not done personally. There has
to be an additional phrase in your pleading for explanation that due to
time and distance constrains service of this motion upon the adverse
party or upon Atty. ABC were made under registered mail. That is also
provided in Section 11 although this is no longer found in the amended
rules saying that as much as possible you have to serve the pleading or
other paper personally and there must be a written explanation why the
service was not done and a violation of this rule may consider the paper
not filed. Take note this rule is no longer found in the amended rule.
What is the consequence? I believe there is no longer need to explain
why you resort to registered mail. You don’t have to explain why you
resorted to registered mail because there is no longer that requirement
in the amended rules.
There are now six modes of service of pleadings, motions, notices,
orders, judgments and other papers under section 5.
1. Personal
2. Registered mail
3. Accredited courier
4. Electronic mail
5. Facsimile transmission
6. Other electronic means as may be authorized by the
court, or as provided for in international conventions to
which the Philippines is a party.
Take note that we are talking here of service not filing. We discussed
before manner of filing under Section 3, there are 4.
Take note also that when it comes to service, facsimile transmission is
allowed as a mode of service, but it is not allowed as a mode of filing
under Section 3.
Before the amendment, there were also 2 modes of service.
1. Personal
2. Mail
That would be Section 6 of Rule 13 and Section 7 of Rule 13.
Section 7. Service by Mail – Service by registers mail shall be
made by depositing the copy in the post office, in a sealed
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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envelope, plainly addressed to the party or to the party’s
counsel at his or her office, if known, otherwise at his or her
residence, if known, with postage fully pre-paid, and with
instructions to the postmaster to return the mail to the sender
after 10 calendar days if undelivered. If no registry service is
available in the locality of either the sender or the addressee,
service may be done by ordinary mail. (7a)
Again, take note of the rule that if a party is represented by counsel,
service shall be made to the counsel. Service to the party who is
represented by a counsel is a nullity, it will not bind the party. So, this is
how you effect service.
This both applies to registered mail and service by accredited courier.
Take note of the manner by which the service must be done.
Unsa pa man ang other possible ways? Email, pwede pud siguro, viber,
messenger, as long as the other party consents to such mode of service.
You know how to mail, diba, registered mail. Take note also, that there
is a requirement na, there should be an instruction to the postmaster to
return the mail to the sender after 10 calendar days if undelivered.
Q: How about by fax?
A: The rule says, it shall be made by sending a facsimile copy to the
party’s or counsel’s given facsimile number. So, kung unsa iyang
number, didto nimo i’send.
Meaning, dapat naay return card because it is in return card wherein you
make that instruction. If no registry service is available, either in locality
of the sender or addressee, service may be done by ordinary mail.
But again, if it is by ordinary mail, the date of filing is the date when the
pleading, paper or other motion, is actually received by the adverse
party.
Section 8. Substituted service. – if service of pleadings, motions,
notices, resolutions, orders and other papers cannot be made under
the two preceding sections, the office and place of residence of the
party or his or her counsel being unknown, service may be made by
delivering the copy to the clerk of court with proof of failure of both
personal service and service by mail. The service is complete at the
time of such delivery. (8a)
Q: What is substituted service?
A: it is under Section 8
Or through other electronic means of transmission as the parties may
agree on, or upon direction of the court.
Section 10. Presumptive service. – There shall be presumptive
notice to a party of a court setting if such notice appears on the
records to have been mailed at least twenty (20) calendar days
prior to the scheduled date of hearing and if the addressee is
from within the same judicial region of the court where the case
is pending, or at least thirty (30) calendar days if the addressee
is from outside the judicial region. (n)
This is a new rule, which says na, There shall be presumptive notice to
a party of a court setting if such notice appears on the records to have
been mailed at least twenty (20) calendar days prior to the scheduled
date of hearing and if the addressee is from within the same judicial
region.
For example, kita, we are within the eleventh judicial region. So, within
Davao city, Digos, I think Tagum also. So, same judicial region: 20 days
gikan sa, for example naay notice ang court based didto sa ilang record.
Take note that, this is only resorted to if personal service or service by
mail cannot be done under the reasons given.
Let us say, January 4 siya g’mail. 20 days from that, 24. Ang hearing
ninyo for example is January 25, so makita didto na 20 days na. so,
presumed na nadawat and wala ka ni appear.
Q: Why?
A: Because the office and place of residence of the party or his or her
counsel is unknown.
Or if the addressee is from outside of judicial region. For example,
Davao, unya sa Gensan different judicial region, so 30 calendar days.
So, you don’t know asa i’serve, whether personally or by mail.
Q: How do make the substituted service?
A: the rule says, you deliver a copy to the clerk of court. Didto na ka
diretso sa court.
But you have to prove why you failed to effect personal service and
service my mail. So, the service is complete at the time of such delivery
to the clerk of court.
Section 9. Service by electronic means and facsimile. – Service
by electronic means and facsimile shall be made if the party
concerned consents to such modes of service.
Service by electronic means shall be made by sending an e-mail
to the party’s or counsel’s electronic mail address, or through
other electronic means of transmission as the parties may agree
on, or upon direction of the court.
Service by facsimile shall be made by sending a facsimile copy
to the party’s or counsel’s given facsimile number. (n)
Section 9 talks about service by electronic means and facsimile. Pwede
lang na siya if the party concerned consents to such mode of service.
So, dili pwede na ikaw mag buot-buot, na okay i’email na lang nako,
i’fax. There has to be consent by the other party.
Q: How do you effect service by electronic means?
A: By sending an email to the party or counsel’s electronic mail address.
Q: What kind of presumption is this?
I personally experienced this, Digos lang gani to na court and then
nakadawat ko ug notice of hearing “on the day” na siya. So, when mi
nag open ug office, 8 am. Then ang time sa hearing is 8:30. Nadawat sa
secretary sa akong office ang notice na naay “today,” 8 am. Unsaon
man? Dili ko pwede mulupad from Davao to Digos para maka arrive on
time. Then, worse pa ana is ma receive nako ang notice the next day na
or pila pa ka days after.
So, this presumption is actually disputable, kay dili man pud na sala sa
lawyer kung ang post office dugay kaayo gpa’dala sa lawyer ang notice.
Although, for example, hearing noh pretrial. So ang defendant wala
didto, ang presumptive notice na nag apply kay 20 days after na pagka
mail nahitabo ang hearing, so wala naa appear si defendant.
Q: Unsa ang rule ana?
A: It is possible na the defendant would be deprived the right to present
evidence, si plaintiff karun can present evidence ex parte. But defendant
can actually file motion for reconsideration, explaining na wala siya naka
receive ug notice na there is a pretrial on this particular date. So, that’s
just a disputable or rebuttable presumption.
Section 11. Change of electronic mail address or facsimile
number. – A party who changes his or her electronic mail or
facsimile number while the action is pending must promptly file,
within five (5) calendar days from such change, a notice of
change of e-mail address or facsimile number with the court and
serve the notice on all other parties.
Service through the electronic mail address or facsimile number
of a party shall be presumed valid unless such party notifies the
court of any change, as aforementioned. (n)
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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For example, the lawyer changes his email address or facsimile number,
that would be governed by Section 11. Actually, for example you change
your office address – you are required under the rules to notify the court
(notice of change of address). Kay kung wala ka nag notify sa court
about your change of address, and then nagpa dayon ang court ug
padala ug notices to you in that particular address, and then naay nag
receive didto. So, you cannot fault the court for sending those notices.
You cannot also use that as an excuse for not filing the proper pleading
within the reglementary period.
Kana siya, dili man pud mag change every day or every month ang
office, but kaning email dali lang man gud siya i’change. This is the rule,
you should notify the court of the change of your electronic mail address
or facsimile number within 5 calendar days from such change.
Q: How do you do that?
A: File a notice, “notice of change of electronic mail address.” i’butang
didto sa paper imong new email address. You serve that to the party
and then you file that to the court.
Service through the electronic mail address or facsimile number of a
party shall be presumed valid unless such party notifies the court of any
change, as aforementioned… I already explained that.
Section 12. Electronic mail and facsimile subject and title of
pleadings and other documents. – The subject of the electronic
mail and facsimile must follow the prescribed format: case
number, case title and the pleading, order or document title. The
title of each electronically-filed or served pleading or other
document, and each submission served by facsimile shall
contain sufficient information to enable the court to ascertain
from the title: (a) the party or parties filing or serving the paper,
(b) nature of the paper, (c) the party or parties against whom
relief, if any, is sought, and (d) the nature of the relief sought.
(n)
For example, mag file ka by way of electronic mail or facsimile.
Q: How do you do that?
A: You should know unsa iyang email address. Then, didto sa iyang
subject naay format under this section. You should indicate:
1. Case number
2. Case title
3. What kind of pleading (i.e. Answer), order or document title
Then, didto sa body niya, you would also indicate kung unsa to na mga
pleadings na imong gpang serve, the title of each pleading or
submission.
So, this is how you file by electronic mail.
This is an example on how you file by means of electronic mail under
Section 12:
Sa “To:” the addressee. Then sa “Subject” the contents of your email.
DE CASTRO, ABERILLO
Section 13. Service of Judgments, Final Orders or Resolutions.
—Judgments, final orders, or resolutions shall be served either
personally or by registered mail. Upon ex parte motion of any
party in the case, a copy of the judgment, final order, or
resolution may be delivered by accredited courier at the
expense of such party. When a party summoned by publication
has failed to appear in the action, judgments, final orders or
resolutions against him or her shall be served upon him or her
also by means of publication at the expense of the prevailing
party. (9a)
Now in Sec. 13, we are referring here to judgments, orders, or
resolutions. Those which dispose of the case already. So how are they
served? So example the court wanted to serve them, there are only two
modes. Either by personal service, or by registered mail.
Now, how about accredited courier? Pwede ba? Now the rule says ex
parte motion by any party. Now what do you mean by that? You submit
a motion, and you don’t need to serve a copy to the other party. Just file
it to the court. Captioned lang “ex parte motion to send by accredited
courier or service”. Who shoulders the expense? The expense of the
party, who made the motion or request.
Now what if the defendant was summoned by publication in the case.
There was already a judgment on the case? How shall the judgment be
served? The rule says “The judgment, final orders or resolutions against
him or her shall be served upon him or her also by means of publication
at the expense of the prevailing party”. Because you cannot expect the
other party to be served personally with the judgment. Mao gani served
by publication sa summons diba? So by publication gihapon ang service
of the judgment, final order, or resolution against him or her at the
expense of the party who won the case.
Section 14. Conventional service or filing of orders, pleadings
and other documents. – Notwithstanding the foregoing, the
following orders, pleadings, and other documents must be
served or filed personally or by registered mail when allowed,
and shall not be served or filed electronically, unless express
permission is granted by the Court:
(a)
Initiatory pleadings and initial responsive pleadings,
such as an answer;
(b) Subpoenae, protection orders, and writs;
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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(c)
Appendices and exhibits to motions, or other
documents that are not readily amenable to electronic
scanning may, at the option of the party filing such, be
filed and served conventionally; and
(d) Sealed and confidential documents or records. (n)
Section 14. Now we mentioned before the service of motions, pleadings,
and other documents, but there are certain order pleadings and
documents which can only be served or filed personally or when allowed
and dili pwede ang email, unless there is permission before the court.
So you first file a motion for filing or service order or documents.
So what are these?
a) initatory pleadings and initial responsive pleadings, such as an
answer;
What are initiatory pleadings? Complaint, and counterclaim. Actually,
under the Rules, ang only responsive pleadings kay reply. However,
when it is an answer, it must be served personally.
b) subpoenae, protection orders, and writs;
c) Appendices and exhibits to motions, or other documents that are not
readily amenable to electronic scanning may, at the option of the party
filing such, be filed and served conventionally; and
Kapoy bya mag scan. Minsan it’s better to serve it personally, at the
option of the party filing, and serve it conventionally.
d) Sealed and confidential documents or records.
So dapat by personal service, or when allowed, email. So this is a new
rule. Before kay sa prior rule kay ang mode of service kay priority jud na
personal service. And if you cannot resort to personal service. And if you
cannot do it by personal service, dapat by registered mail, pero with
explanation why mail was resorted to.
Section 15. Completeness of service. — Personal service is
complete upon actual delivery. Service by ordinary mail is
complete upon the expiration of ten (10) calendar days after
mailing, unless the court otherwise provides. Service by
registered mail is complete upon actual receipt by the
addressee, or after five (5) calendar days from the date he or she
received the first notice of the postmaster, whichever date is
earlier. Service by accredited courier is complete upon actual
receipt by the addressee, or after at least two (2) attempts to
deliver by the courier service, or upon the expiration of five (5)
calendar days after the first attempt to deliver, whichever is
earlier.
Electronic service is complete at the time of the electronic
transmission of the document, or when available, at the time
that the electronic notification of service of the document is
sent. Electronic service is not effective or complete if the party
serving the document learns that it did not reach the addressee
or person to be served.
Service by facsimile transmission is complete upon receipt by
the other party, as indicated in the facsimile transmission
printout. (10a)
When is their complete service? It depends on the mode of service
employed.
When it comes to personal service, the Rule it is upon delivery.
When it is by ordinary mail it is upon expiration of 10 calendar days after
filing, unless court orders otherwise.
Registered mail upon actual receipt by the addressee, or after five (5)
calendar days from the date he or she received the first notice of the
postmaster, whichever date is earlier.
How about service by accredited courier? It is complete upon actual
receipt by the addressee, or after at least two (2) attempts to deliver by
the courier service, or upon the expiration of five (5) calendar days after
the first attempt to deliver, whichever is earlier.
How about electronic service? It is complete at the time of the electronic
transmission of the document, or when available, at the time that the
electronic notification of service of the document is sent. Electronic
service is not effective or complete if the party serving the document
learns that it did not reach the addressee or person to be served. Diba
naa man usahay na it will notify if nasend na ba. Naa gani uban it will
register if nabasa na ba sa pikas.
Now what taga bukid ang defendant. What if wala internet connection,
or worse walay kuryente sa ila? The rule says “Electronic service is not
effective or complete if the party serving the document learns that it did
not reach the addressee or person to be served.
Service by accredited courier is complete upon actual receipt by the
addressee, or after at least two (2) attempts to deliver by courier service,
or upon the expiration of five (5) calendar days after the first attempt to
deliver, whichever is earlier.
How about service by facsimile transmission? It is complete upon receipt
by the other party, as indicated in the facsimile transmission printout.
Now please do not confuse this with the effective date of filing. For
example, again deadline nimo is 30 days. You served by registered mail
on rthe 28th day. And the rule says it is served upon receipt or after five
(5) calendar days from the date he or she received the first notice of the
postmaster, whichever date is earlier. 28th pa man nimo giserve, then 2
days na lang gani expire na ka. So when is the service? It is different
from the date you mailed it.
JOHNSON AND JOHNSON PHILS. Vs. CA
201 SCRA 768 [1991]
FACTS: The Court of Appeals sent Johnson and Johnson
Philippines a decision in an envelope by registered mail. After a
while, the same envelope was returned to the CA. On the face of the
envelope, it was written, “Return to Sender, Unclaimed.”. On the back
of the envelope, there is annotation “Return to CA”. With that, the CA
applied the rule on constructive service- considered the decision as
already served. Johnson and Johnson Philippines questioned it. It
never received any notice from the post office. But according to the
CA, it is very obvious. It is there in the envelope still sealed.
ISSUE: Is there a proper application of the rules on constructive
service?
HELD: There is NO. constructive service because there is no
certification by the postmaster that is claimed. This is what the law
requires not just a one sentence statement. One cannot even
ascertain who wrote the statement. Certification should include the
details of every and not just state the notice was issued.
A certification from the postmaster would be the best evidence to
prove that the notice has been validly sent.1 The mailman may also
testify that the notice was actually delivered. The postmaster should
certify not only that the notice was issued or sent but also as to how,
when and to whom the delivery thereof was made.
There is nothing in the records of the present case showing how,
when and to whom the delivery of the registry notices of the subject
registered mail of petitioner was made and whether said notices were
received by the petitioner. The envelope containing the unclaimed
mail merely bore the notation "RETURN TO SENDER: UNCLAIMED"
on the face thereof and "Return to: Court of Appeals" at the back.
The respondent court should not have relied on these notations to
support the presumption of constructive service.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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In this case of Johnson vs Court of Appeals. They sent here a decision
to Johnson by registered mail. The envelope was returned to the CA and
it was unopened. Written on the envelope were the words “RETURN TO
SENDER, UNCLAIMED”.
requirements of equity and justice. It was incumbent upon the post
office to further certify that said notices were reportedly received.
So with that, the CA applied the rule on constructive notice. It is
considered served. Meaning, the reglementary period of the party
served, dira na mag start ang reglementary period on w hen it was
served. So Johnson and Johnson questioned. According to them, they
never received. But CA says “klaro kaayo diri oh, nakasulat. And the
envelope was sealed.
On June 15, the decision of the CA was send by registered mail to
Santos’ counsel, Atty. Magno. On the same day, the corresponding
notice of registered mail was sent to him. The mail remained unclaimed
and consequently was returned to the sender. After 3 notices, the
decision was returned to the sender for the same reason.
On Sept 27, 1995, Atty. Magno filed a notice of change of name and
address of law firm was sent by Atty. Magno to the CA. On March 28
1996, the same decision was sent anew by registered mail to Atty.
Magno at his present address which he finally received on April 3, 1996.
On April 17 1996, Magno withdrew his appearance as counsel.
So is there application on constructive notice? NO, because there was
no certification by the postmaster that it was claimed. This is what the
law requires not just a sentence statement. One cannot even ascertain
who wrote the statement. Certification should include the details of
delivery and not just state that notice was issued.
A certification from the postmaster would be the best evidence to prove
that the notice has been validly sent. The mailman may also testify that
the notice was actually delivered. The postmaster should certifiy not only
that the notice was issued or sent but also as to how, when and to whom
the delivery thereof was made.
There is nothing in the records of the present case showing how, when
and to whom the delivery of the registry notices of the subject registered
mail of petitioner was made and whether said notices were received by
the Johnson. So it is not enough na naka-stamp “RETURN TO
SENDER, UNCLAIMED”.
On April 18 1996 Santos’ new counsel, Atty. Lemuel Santos, entered his
appearance and moved for reconsideration of CA’s decision of June 6,
1995. The opposing counsel Yapchiongco opposed the motion on the
ground that the priod of filing already expired.
When do we consider the decision being served to Santos? If we are to
count from April 3 1996, the date when Atty
Magno
already
received the order of the CA, that would still be timely because the 15
days would be on April 18, 1996. But if we consider the other notices
sent to Atty. Magno, diba 1995 pa jud to? Would it be considered
served? If we count from that course nagplapse na ang period to file a
motion for reconsideration.
So in this case, the court ruled that the motion was still timely filed.
SANTOS vs CA
293 SCRA 147, September 3, 1998
FACTS: Jesus Santos was sued for damages on by Omar
Yapchiongco before the CFI. CFI dismissed the complaint for lack of
merit. CA reversed and declared Santos liable for damages. On June
15 1995, the decision of the CA was sent by registered mail to
Santos' counsel, Atty. Magno. On the same day, the corresponding
notice of registered mail was sent to him. The mail remained
unclaimed and consequently returned to the sender. After 3 notices,
the decision was returned to the sender for the same reason.
The rule on service by registered mail contemplates 2 situations: (1)
Actual service - the completeness of which is determined upon receipt
by the addressee of the registered mail, or, (2) Constructive service ,
kanang maski wala natatakan, the completeness of which is determined
upon the expiration of 5 days from the date of first notice of the
postmaster without the addressee having claimed the registered mail.
On September 25, 1995, a notice of change of name and address of
law firm was sent by Atty. Magno to CA. On 28 March 1996, the same
decision of CA was sent anew by registered mail to Att. Magno at his
present address which he finally received on 3 April 1996. On 17 April
1996, Magno withdrew his appearance as counsel for Santos.
In this case, there was no service on the former services to Atty. Magno.
Kaya gani, gipang-uli sila. Can we apply there the rules on service? But
the SC ruled there must be proof that Atty. Magno was duly notified or
had actually received the notice of the postmaster or the decision.
Meaning, maski wala nila nareceive tong copy sa decision, but they
were notified by the post office “naay mail diri, kuhaa ninyo”. And it’s not
too much to expect that the post office will make a certification regarding
delivery of mail,
On 18 April 1996, Santos' new counsel, Atty. Lemuel Santos, entered
his appearance and moved for reconsideration of CA's decision of 6
June 1995. Yapchiongco opposed the motion on the ground that
period for its filing has already expired.
For completeness of constructive service, there must be conclusive
proof that Santos’ former counsel or somebody acting on his behalf was
duly notified or had actually received the notice, referring to the
postmaster's certification to that effect.
HELD: The rule on service by registered mail contemplates two (2)
situations: first, actual service the completeness of which is
determined upon receipt by the addressee of the registered mail and,
second, constructive service the completeness of which is
determined upon the expiration of five (5) days from the date of first
notice of the postmaster without the addressee having claimed the
registered mail.
Consequently, it cannot be too much to expect that when the post office
makes a certification regarding delivery of registered mail, such
certification should include the data not only as to whether or not the
corresponding notices were issued or sent but also as to how, when and
to whom the delivery thereof was made. Accordingly, the certification in
the case at bar that the first and second notices addressed to Atty.
Magno had been "issued" can hardly suffice the requirements of equity
and justice. It was incumbent upon the post office to further certify that
said notices were reportedly received.
For completeness of constructive service there must be conclusive
proof that petitioner's former counsel or somebody acting on his
behalf was duly notified or had actually received the notice, referring
to the postmaster's certification to that effect.
Consequently, it cannot be too much to expect that when the post
office makes a certification regarding delivery of registered mail, such
certification should include the data not only as to whether or not the
corresponding notices were issued or sent but also as to how, when
and to whom the delivery thereof was made. Accordingly, the
certification in the case at bar that the first and second notices
addressed to Atty. Magno had been "issued" can hardly suffice the
Section 16. Proof of filing. — The filing of a pleading or any other
court submission shall be proved by its existence in the record
of the case.
(a)
If the pleading or any other court submission is not in
the record, but is claimed to have been filed
personally, the filing shall be proven by the written or
stamped acknowledgment of its filing by the clerk of
court on a copy of the pleading or court submission;
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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(b) If the pleading or any other court submission was filed
by registered mail, the filing shall be proven by the
registry receipt and by the affidavit of the person who
mailed it, containing a full statement of the date and
place of deposit of the mail in the post office in a
sealed envelope addressed to the court, with postage
fully prepaid, and with instructions to the postmaster
to return the mail to the sender after ten (10) calendar
days if not delivered.
(c)
If the pleading or any other court submission was filed
through an accredited courier service, the filing shall
be proven by an affidavit of service of the person who
brought the pleading or other document to the service
provider, together with the courier’s official receipt
and document tracking number.
(d) If the pleading or any other court submission was filed
by electronic mail, the same shall be proven by an
affidavit of electronic filing of the filing party
accompanied by a paper copy of the pleading or other
document transmitted or a written or stamped
acknowledgment of its filing by the clerk of court. If
the paper copy sent by electronic mail was filed by
registered mail, paragraph (b) of this Section applies.
(e)
If the pleading or any other court submission was filed
through other authorized electronic means, the same
shall be proven by an affidavit of electronic filing of
the filing party accompanied by a copy of the
electronic acknowledgment of its filing by the court.
(12a)
Section 16. Proof of filing. — The filing of a pleading or any other court
submission shall be proved by its existence in the record of the case.
a)
If the pleading or any other court submission is not in the
record, but is claimed to have been filed personally, the filing shall be
proven by the written or stamped acknowledgment of its filing by the
clerk of court on a copy of the pleading or court submission;
Diba, when you file it, you need two copies to be submitted to the court.
Actually 4, if naa kay kalaban. One copy for your opponent, and two for
court, one for you. When you file to the court you will show the three
copies, because one has already been given to the opposing party. The
court will stamp the date and hour received on its copy. One copy will
be taken by the court as its copy and one will be for your own file.
So for example, nawala ang copy sa court. Bring your own copy, which
has the stamp that it was received. So that’s how you prove.
b)
If the pleading or any other court submission was filed by
registered mail, the filing shall be proven by the registry receipt and by
the affidavit of the person who mailed it, containing a full statement of
the date and place of deposit of the mail in the post office in a sealed
envelope addressed to the court, with postage fully prepaid, and with
instructions to the postmaster to return the mail to the sender after ten
(10) calendar days if not delivered.
c)
If the pleading or any other court submission was filed through
an accredited courier service, the filing shall be proven by an affidavit of
service of the person who brought the pleading or other document to the
service provider, together with the courier’s official receipt and document
tracking number.
d)
If the pleading or any other court submission was filed by
electronic mail, the same shall be proven by an affidavit of electronic
filing of the filing party accompanied by a paper copy of the pleading or
other document transmitted or a written or stamped acknowledgment of
its filing by the clerk of court. If the paper copy sent by electronic mail
was filed by registered mail, paragraph (b) of this Section applies.
e)
If the pleading or any other court submission was filed through
other authorized electronic means, the same shall be proven by an
affidavit of electronic filing of the filing party accompanied by a copy of
the electronic acknowledgment of its filing by the court.
Usually after you file by electronic submission, diba mureply ang pikas
ug acknowledgment receipt of your pleading.
Section 17. Proof of service. –— Proof of personal service shall
consist of a written admission of the party served, or the official
return of the server, or the affidavit of the party serving,
containing a statement of the date, place, and manner of
service.
If the service is made by:
(a)
Ordinary mail. – Proof shall consist of an affidavit of
the person mailing stating the facts showing
compliance with Section 7 of this Rule.
(b) Registered mail. – Proof shall be made by the affidavit
mentioned above and the registry receipt issued by
the mailing office. The registry return card shall be
filed immediately upon its receipt by the sender, or in
lieu thereof, the unclaimed letter together with the
certified or sworn copy of the notice given by the
postmaster to the addressee.
(c)
Accredited courier service. – Proof shall be made by
an affidavit of service executed by the person who
brought the pleading or paper to the service provider,
together with the courier’s official receipt or document
tracking number.
(d) Electronic mail, facsimile, or other authorized
electronic means of transmission. – Proof shall be
made by an affidavit of service executed by the person
who sent the e-mail, facsimile, or other electronic
transmission, together with a printed proof of
transmittal. (13a)
Now let’s go to Section 17, Proof of Service. So just read section 17,now
it will also depend on the kind of service ang proof but usually, in all
these cases, there’s an affidavit of service. If you notice the affidavit that
I’ve shown to you before, it’s entitled “Affidavit of Service” but actually
it’s also a compliance of Section 16 because it explains how you serve
and how you filed so murag in-ana ang ginabuhat nga affidavit. It’s not
only of service but the fact that you filed so that’s the format that we
used. So if it’s an ordinary mail affidavit of the person mailing. Registered
mail, affidavit of the person mailing and then you will also indicate the
registry receipt. And then if it is an accredited courier service, the same
affidavit of service together with the official receipt and tracking number.
If it is by e-mail, facsimile or other authorized electronic means, affidavit
of service gihapon together with a printed proof of transmittal.
Section 18. Court-issued orders and other documents. — The
court may electronically serve orders and other documents to
all the parties in the case which shall have the same effect and
validity as provided herein. A paper copy of the order or other
document electronically served shall be retained and attached
to the record of the case. (n)
So Section 18. Just read. The court can also serve electronically orders
and other documents. And then it shall have the same effect and validity
as the other modes of service.
Section 19. Notice of lis pendens. –— In an action affecting the
title or the right of possession of real property, the plaintiff and
the defendant, when affirmative relief is claimed in his or her
answer, may record in the office of the registry of deeds of the
province in which the property is situated a notice of the
pendency of the action. Said notice shall contain the names of
the parties and the object of the action or defense, and a
description of the property in that province affected thereby.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
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Only from the time of filing such notice for record shall a
purchaser, or encumbrancer of the property affected thereby,
be deemed to have constructive notice of the pendency of the
action, and only of its pendency against the parties designated
by their real names.
The notice of lis pendens hereinabove mentioned may be
cancelled only upon order of the court, after proper showing
that the notice is for the purpose of molesting the adverse party,
or that it is not necessary to protect the rights of the party who
caused it to be recorded. (14a)
Let us go to Section 19. Notice of lis pendens. Actually, ang amended
Rules more or less the same lang gihapon ni siya sa prior rule. Ang
nadugang ra diri tong his or her answer and other. Please read Section
19.
WHAT IS A NOTICE OF LIS PENDENS?
NOTICE OF LIS PENDENS means notice of pending action or
litigation. A notice of lis pendens is simply a notice that a suit has
been filed which has an interest in the land on which the notice has
been filed.
This is part of the Property Registration Law. The essence of notice
of lis pendens is a notice against the whole world against the sale
or mortgage of the property under litigation. And whoever deals
with it is accepting the risk. Anybody who buys it is gambling at
the outcome of the case. He cannot claim he is the morgagee or the
buyer in good faith because there is a notice.
DISCUSSION: What is a notice of lis pendens? Well it simply means
that it is a notice of pending action or litigation. Lis pendens, pending
action or litigation. Now if you remember your land registration, what is
the essence of a notice of lis pendens? Di ba you have here the mirror
doctrine in land registration na anyone who deals with registered land is
only charged with notice of those encumbrances or liens which appear
on the title. So, kung wala naka annotate diha na nay mortgage for
example, anyone who deals with that is not bound by the fact nan aka
mortgage diay ang land. So, for example, you’re the buyer of the land
no and then you go to the Register of Deeds and checked kung naa bay
encumbrances, liens na naka attached or naka annotate. Pag tan aw
nimo didto wala man but in fact naa diay kaso ni nga case so later on
you bought the land no. And then later on nahibal an nimo na napildi
diay tong tag iya, katong seller and now the seller is charged or ordered
by the court to deliver the land to the plaintiff. Unya ikaw nan aka bought
sa land, you did not know about the case. So bound ba ka sa decision
of the court? Do you have to deliver the land to the plaintiff to return the
land?No, because you are an innocent purchaser for value. You’re not
aware that there is any problem relating to the land. Ok again, pagtan
aw nimo sa titulo wala may nakabutang, walay lis pendens. Ok so what
if nay notice of lis pendens, what is the consequence of that. So the
essense of the notice of lis pendens is a notice to the whole world
against sale or mortgage of the property under litigation. So meaning if
there’s a notice of lis pendens and your still proceeded to buy the land,
that is a warning to you na in case the plaintiff in the particular case wins,
then you’re bound by the decision of the court. You are accepting the
risk involved. Anybody who buys the land is gambling on the outcome
of the case. You cannot claim that you’re a mortgagee or buyer in good
faith because of a notice of lis pendens.
LIS PENDENS BY BOTH PLAINTIFF AND DEFENDANT
As a general rule , the one who registers a notice of lis pendens is
the plaintiff. Under Section 14, can the defendant may register a
notice of lis pendens?
A; YES. The law states that “ The plaintiff and the defendant may
register when the affirmative relief is claimed in this answer.”. In
such case, a defendant may register and normally it is done when
there is counterclaim.
DISCUSSION: Now who can register a notice of lis pendens, usually it
is the plaintiff. For example, the plaintiff files a case against the
defendant for recovery of possession or maybe an action reinvidicatoria,
recovery of ownership. So, in that case, usually si plaintiff mag pa
annotate na sya og notice of lis pendens. Why? Kay malay mo during
the pendency of the case si defendant kay naa man sa iyang name ang
title over the land, he can always sell that to a third party. So kung walay
notice of lis pendens, again as we said, any third party who deals with
that land and who is not aware of any pending litigation because there’s
no notice of lis pendens can be considered as an innocent purchaser for
value. So kung walay notice of lis pendens og gibaligya na niya and then
na ikaw plaintiff nakadaug og kaso but then later on it is discovered na
nabaligya na, you cannot recover the land anymore from the innocent
purchaser for value. Although you can recover for damages ok against
the defendant. So usually plaintiff annotates a notice of lis pendens.
How about the defendant? Well in that kind of case I
mentioned it would be foolish for the defendant to annotate a notice of
lis pendens kay ngano man kay naa na diay sa iyaha ang pangalan sa
titulo butangan pa jud niya og notice of lis pendens kung ibaligya niya
katong gibaligyaan niya magback out kay naa man diay ni kaso ngano
paliton man nako ni. So ordinarily, if you’re the defendant, you would not
register a notice of lis pendens. But there are certain cases when a
defendant can also and should also register a notice of lis pendens. That
would be when the defendant has a counterclaim. Like for example the
case is for annulment of mortgage filed by the plaintiff against the
defendant. Now the defendant filed his answer with counterclaim. Now
what is the counterclaim of the defendant, counterclaim for reformation
and delivery of possession. Why? Kay according to the defendant, the
contract was not really even a mortgage. There was a contract, it was a
sale with pacto de retro and then the plaintiff failed to redeem within a
period agreed upon in the pacto de retro so ownership is now and should
now be consolidated to the part of the defendant. And diba pag
mortgage, usually, number one dili man jud required na the mortgagor
has to deliver the land to the mortgagee, so in that case, the defendant
in his counterclaim also claims for the delivery of possession from the
plaintiff to the defendant and another possible remedy of the defendant
is to register a notice of lis pendens. Why would the defendant do it?
Because if ang stance sa defendant is siya na diay ang tag iya ato na
property because it was a pacto de retro sale. So the defendant would
want to be protected kay iyaha na gud tong property. Because even if it
was the contention of the plaintiff na na mortgage lang niya and then
mortgage is null and void, that is why he is claiming to annul the
mortgage. But you know, even if you mortgage your property assuming
na gi mortgage jud nimo, you can still sell that property. Do you
remember the concept of pactum denan alienando, did you discuss that,
did you learn that in your obligations and contract? It means na, that is
actuall a void or a prohibited stipulation na you are in the contract of
mortgage. The mortgagor is prohibited from alienating or disposing of
the property mortgaged. That is void because even if you mortgaged,
you do not lose ownership over the property. You still retain ownership
over the property. So going back to our discussion, if you’re the
defendant it is to your interest to register a notice of lis pendens because
if the plaintiff wants to sell the property, because again it is still in his
name. Anyone who deals with that property would know na it is a subject
of of a pending litigation. So that is an example when a defendant
registers a notice of lis pendens.
HOW IS NOTICE OF LIS PENDENS CANCELLED?
As as GENERAL RULE: The notice of lis pendens under the rules
cannot be removed without the order from the court and generally
the court cannot issue the order until the case is finished or until
the final issue of the case is determined.
BY WAY OF EXCEPTION, A trial court has the inherent power to
cancel a notice of lis pendens, under the express provisions of the
law. As provided for by Sec. 19, Rule 13 of the 1997 Rules of Civil
Procedure, a notice of lis pendens may be cancelled on two
grounds:
1.
If the annotation is for the purpose of molesting the title of
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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2.
the adverse party; or
When the annotation is not necessary to protect the title of
the party who caused it to be recorded ( ST. MARY OF THE
WOODS SCHOOL, INC. and MARCIAL P. SORIANO vs.
OFFICE OF THE REGISTRY OF DEEDS OF MAKATI CITY GR.
174290.)
DISCUSSION: So the notice of lis pendens under the rules cannot be
removed without the order from the court and generally the court cannot
issue the order until the case is finished or until the final issue of the
case is determined. So usually ana you will required,okay for example
you want to cancel a notice of lis pendens annotated in the ROD, the
ROD will require you to present a Certificate of Finality, to certify that the
judgement is final and executory. Now, by way of exception, even if the
case is still ongoing or not yet finally decided, the trial court a inherent
power to cancel the notice of lis pendens. As provided in the Section 19
of the rules there are two specific grounds:
⚫
⚫
If the annotation is for the purpose of molesting the title of the
adverse party; or
When the annotation is not necessary to protect the title of the
party who caused it to be recorded.
In relation to that please read the case of ST. MARY OF THE WOODS
SCHOOL, INC. and MARCIAL P. SORIANO vs. OFFICE OF THE
REGISTRY OF DEEDS OF MAKATI CITY GR. 174290.)
cancellation of lis pendens and quieting of title in Civil Case No. 10658
When the respondents filed their motion to admit their amended and
supplemental petition before RTC- Br. 57, the decision in LRC Case
No. M-5469 rendered by the RTC Br 138 had likewise attained
finality. The RTC- Branch 57 cannot definitely after final and
executory decision of a co-equal court by such a move. To do so
would certainly defeat the clear purpose of amendments provided by
the rules and amount to a grave abuse of discretion.
But even so, the petition could no longer be expected to pursue
before the proper forum in as much as the decision rendered in the
annulment case has already attained finality before both the Court of
Appeals and the Supreme Court on the appellate level , unless of
course there exists substantial and genuine claims against the
parties relative to the main case subject to the notice of lis pendens.
There is none in this case. It is thus well to note that the precautionary
notice that has been registered relative to the annulment case then
pending before the RTC of Makati City Branch 62 has served its
purpose. With the finality of the decision therein on appeal, the notice
has already been rendered functus officio. The rights of the parties,
as well as of theri successors in interest, petitioner included in
relation to the subject property are hence to be decided according to
the said final judgement.
REYES DM, REYES RA, SAMBRANO
REPUBLIC V. HEIRS OF SPOUSES MOLINYAWE
FACTS: A decision was rendered by the CFI- Pasig City on
September 22, 1979 in the forfeiture case (Civil Case No. 6379)
declaring null and void the sale of the subject properties to the
Spouses Miranda , Spouses Padilla and Leus at the same time
ordering said properties forfeited in favor to the Republic.
The decision of the CFI-Pasig , in Civil Case No. 6379 became final
and executory on August 23, 1974.
In February 1975, the CFI-Pasig issued a writ of execution in Civil
Case No. 6379.
In July 2010 respondents filed Civil Case No. 10-658 for the the
cancellation of the lis pendens annotated on the back of the TCT Nos.
75239, 76129, and 77577 and for quieting of said titles before the
RTC- Branch 57.
ISSUE: Would that be proper to file a case for the cancellation
of the notice of lis pendens in another court, even if the notice
of lis pendens was annotated or registered in a prior that is final
and executory?
Consequence of registering a notice of lis pendens: A necessary
incident of regitering a notice of lis pendens is that the property
covered thereby is effectively placed, until the litigation attains
finality, under the power and control of the court having juridiction
over the case to which the notice relates. In this sense, parties
stealing with the given property are charged with the knowledge of
the existence of the action and are deemed to take the property
subject to the outcome of the litigation. It is also in this sense that the
power possessed by a trial court to cancel the notice of lis pendens
is said to be inherent.
Thus in the case of Vda. De Kilayko vs Judge Tengco, the
cancellation of such a precautionary notice, being a mere incident in
an action, may be ordered by the court having jurisdiction over it at
any given time. 48 Under Sec. 24, Rule 14 of the Rules of Court, a
notice of lis pendens may be cancelled "after proper showing that the
notice is for the purpose of molesting the adverse party, or that it is
not necessary to protect the rights of the party who caused it to be
recorded".
Considering that a judgement in Civil Case No. 6379 had been
rendered in favor of the Republic and said judgment already attained
finality, the RTC- Branch 57could no longer claim and exercise
jurisdiction over the respondents, original complaint/petition for the
RULE 14
SUMMONS
Section 1. Clerk to issue summons. — Unless the complaint is
on its face dismissible under Section 1, Rule 9, the court shall,
within five (5) calendar days from receipt of the initiatory
pleading and proof of payment of the requisite legal fees, direct
the clerk of court to issue the corresponding summons to the
defendants. (1a)
What do we mean by summons?
So first, it is the singular; the plural is summonses.
Summons is a document or writ notifying the defendant that a civil action
has begun and that defendant is required to appear and answer the
complaint.
Summons is a writ or process issued and served upon a defendant in a
civil action for the purpose of securing his appearance therein.
(Ballentine’s
Law
Dict.,
2nd
Ed.,
p.
1250)
Summons is the writ by which the defendant is notified of the action
brought against him (CANO-GUTIERREZ vs. GUTIERREZ, 341 SCRA
670; GUANZON vs. ARRADAZA, 510 SCRA 309).
Nature of Summons:
A writ of right
Francisco Garcia vs. John Sweeney (G.R. No. 1693)
RULING:
A writ of right is a writ to which the parties are entitled upon filing a
petition in proper form, which then issues as a matter of course upon
the mere application (oral or written) therefor. An ordinary summons
is a writ of right. In other words, by filing the petition in an ordinary
civil action in the Courts of First Instance of these Islands, the party
filing the same is entitled to a summons directing the other party to
appear and demur or answer within a definite period. Any person
filing the ordinary petition is entitled to this writ as of right.
But we will discuss that it is somehow modified by Section 1 Rule
14.
Because based on Section 1 it appears that summons is NOT actually
mandatory unlike before when the complaint is filed and upon payment
of the requisite legal fees, the court shall issue summons. So, the term
“shall” leaves no doubt that it is mandatory.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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But under the present amended rule, unless the complaint is dismissible
upon its face under Section 1 Rule 9. Meaning the grounds provided for
under Section 1 of Rule 9 are present… What are those grounds? The
4 grounds by which we can still file a motion to dismiss:
1. Lack of jurisdiction over the subject matter
2. Res judicata
3. Litis pendencia
4. And prescription
So when those grounds are present the court can choose not to issue
summons. It would just dismiss the complaint immediately.
But of course when the complaint is not dismissible on its face, so those
grounds are not present… then the issuance of summons becomes
ministerial.
Issuance and Service of Summons are Ministerial Duties
What are the ministerial act?
A ministerial act has been defined as one that a public officer is required
to perform under a given state of facts, in a prescribed manner, in
obedience to the mandate of legal authority. Basically, if all discretionary
precursors to an official act have been completed, and all that remains
to be done is the act itself, courts may compel a public official to perform
such action.
Now in other actions, we discussed before for example in actions in rem
and the defendant is outside of the Philippines… do you still need
summons? Can we not acquire jurisdiction merely on the res?
Actually there is still a need to serve summons in that case but of course
it is not to acquire jurisdiction because in the first place you cannot
acquire jurisdiction over a person who is outside of the Philippines. He
is beyond the court processes. But still summons would be acquired for
the purpose of due process.
When we discussed jurisdiction we also discussed its elements and how
it is acquired. As you know it would matter what kind of jurisdiction:
plaintiff, defendant, subject matter, res, and issues.
Effect of Lack of Summons:
B.d. Long Span Builders, Inc. vs. R.S. Ampeloquio Realty
Development, Inc. (G.R. No. 169919)
RULING:
Courts acquire jurisdiction over the plaintiffs upon the filing of the
complaint. On the other hand, jurisdiction over the defendants in a
civil case is acquired either through the service of summons upon
them or through voluntary appearance in court and their submission
to its authority. The service of summons is a vital and indispensable
ingredient of due process.
Service of summons is a requirement because it is the means by which
a court acquires jurisdiction over the person of the defendant.
It can actually compel by a writ of mandamus.
So for example, despite the fact that the complaint is not dismissible on
its face and the court refuses to issue a summon to the defendant and
you are the plaintiff… What are your remedies?
REMEDIES:
If the court refuses to issue and serve summons upon the defendant
even if the plaintiff has paid the proper fees, what are the remedies of
the plaintiff?
1. Mandamus under Rule 65;
2. Administrative action against the judge and the officer at fault
(Office of the Court Administrator vs. Jesus M. Barroso, Jr.,
et.al. A.M. No. RTJ-04-1874, October 18, 2004);
3. Invoke the court’s power of administrative control over its
officers under Rule 135, Section 5 of the Rules of Court;
(note: we have already mentioned that before I think under
inherent powers of courts where it says that every court shall
have the power under letter d to control in furtherance of
justice the conduct of its ministerial officers and of all other
persons in any manner connec
ted with a case before it in every manner appertaining thereto)
Purpose of Summons:
Arnel Sagana vs. Richard A. Francisco (G.R. No. 161952)
RULING:
The purpose of summons is two-fold: to acquire jurisdiction over the
person of the defendant and to notify the defendant that an action
has been commenced so that he may be given an opportunity to be
heard on the claim against him.
With respect to the first we have already discussed how do we acquire
jurisdiction over the person of the defendant:
1. Issuance of summons
2. Voluntary appearance
And with respect to the second purpose, because it would be odd that if
you are made the defendant of the case and you don’t know that there
is an ongoing case against you. The court does not take steps to notify
you of the case so you are not able to present evidence on your behalf…
that would violate your right to due process.
In Actions in Personam:
The purpose of summons is not only to notify the defendant of the action
against him but also to acquire jurisdiction over his person (UMANDAP
vs. SABIO, Jr., 339 SCRA 243).
Now what happens if the court proceeds with the case without first
having acquired jurisdiction over the person of the defendant?
We have already learned that the proceedings in that case would be null
and void. And any judgment rendered against that defendant over
whose person jurisdiction was not acquired is also a nullity.
How about if the defendant knew that there was a pending case
against him but was not served summons. Would it cure the
defect?
Service of summons is required even if the defendant is aware of the
filing of the action against him. His knowledge of the existence of a case
is not one of the modes by which a court acquires jurisdiction over the
person of the defendant (Habana vs. Vamenta, 33 SCRA 569).
Now in relation also to the acquisition of jurisdiction and service of
summons… we have this case of
Biaco vs. Philippine Countryside Rural Bank (G.R. No. 161417)
FACTS:
Ernesto Biaco is the husband of petitioner Ma. Teresa Chaves Biaco.
While employed in the Philippine Countryside Rural Bank (PCRB) as
branch manager, Ernesto obtained several loans from the
respondent bank.
As a security for the payment of the said loans, Ernesto executed a
real estate mortgage in favor of the bank covering the parcel of land
described in OCT No. P-14423. The real estate mortgages bore the
signatures of the spouses Biaco.
On February 22, 2000, respondent bank filed a complaint for
foreclosure of mortgage against the spouses Ernesto and Teresa
Biaco before the RTC of Misamis Oriental. Summons was served to
the spouses through Ernesto at his office (Export and Industry Bank)
located at Jofelmor Bldg., Mortola Street, Cagayan de Oro City.
Ernesto received the summons but for uknown reasons, he failed to
file an answer. Hence, the spouses Biaco were declared in default
upon motion of the respondent bank. The respondent bank was
allowed to present its evidence ex parte before the Brank Clerk of
Court who was then appointed by the court as Commissioner.
Judgment was rendered authorizing the foreclosure. A deficiency
judgment was also rendered by the court.
(note: by the way what do we mean by a deficiency judgment? It is
when after the foreclosure proceedings and then the proceeds
thereof are not sufficient to pay the entire loan. So there is a
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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deficiency. So here the mortgagor-debtors will be directed to pay the
deficiency.)
Now one of the issues here is the validity of the service of summons.
According to the wife she was not issued summons because the
summons was coursed through the husband.
Here, the CA ruled that judicial foreclosure proceedings are actions
quasi in rem. As such, jurisdiction over the person of the defendant
is not essential as long as the court acquires jurisdiction over the res.
Noting that the spouses Biaco were not opposing parties in the case,
the CA further ruled that the fraud committed by one against the other
cannot be considered extrinsic fraud.
RULING:
Whether the trial court has jurisdiction depends on the nature of the
action, i.e., whether the action is in personam, in rem, or quasi in rem.
The rules on service of summons under Rule 14 of the Rules of Court
likewise apply according to the nature of the action.
An action in personam is an action against a person on the basis of
his personal liability. An action in rem is an action against the thing
itself instead of against the person. An action quasi in rem is one
wherein an individual is named as defendant and the purpose of the
proceeding is to subject his interest therein to the obligation or lien
burdening the property.
In an action in personam, jurisdiction over the person of the
defendant is necessary for the court to validly try and decide the
case. In a proceeding in rem or quasi in rem, jurisdiction over the
person of the defendant is not a prerequisite to confer jurisdiction on
the court provided that the court acquires jurisdiction over the res.
Jurisdiction over the res is acquired either (1) by the seizure of the
property under legal process, whereby it is brought into actual
custody of the law; or (2) as a result of the institution of legal
proceedings, in which the power of the court is recognized and made
effective.
Nonetheless, summons must be served upon the defendant not for
the purpose of vesting the court with jurisdiction but merely for
satisfying the due process requirements.
Was there proper service of summons here?
A resident defendant who does not voluntarily appear in court, such
as petitioner in this case, must be personally served with summons
as provided under Section 6, Rule 14 of the Rules of Court. If she
cannot be personally served with summons within a reasonable time,
substituted service may be effected:
1.
2.
By leaving copies of the summons at the defendant’s
residence with some person of suitable age and discretion
then residing therein, or
By leaving the copies at the defendants office or regular
place of business with some competent person in charge
thereof in accordance with Sec. 7, Rule 14 of the Rules of
Court.
So the SC said here that in this case, the judicial foreclosure
proceeding instituted by respondent PCRB undoubtedly vested the
trial court with jurisdiction over the rest. A judicial foreclosure
proceeding is an action quasi in rem. As such, jurisdiction over the
person of petitioner is not required, it being sufficient that the trial
court is vested with jurisdiction over the subject matter.
HOWEVER TAKE NOTE of this particular pronouncement of the SC,
while the trial court acquired jurisdiction over the res, its jurisdiction
is limited to a rendition of judgment on the res. It cannot extend its
jurisdiction beyond the res and issue a judgment enforcing
petitioner’s personal liability. In doing so, without first having acquired
jurisdiction over the person of petitioner, as it did, the trial court
violated her constitutional right to due process, warranting the
annulment of the judgment rendered in the case.
The summons issued by the court which was served upon the
defendant’s husband was binding only against the husband and not
the wife. However, in so far as foreclosure proceeding was
concerned, there was jurisdiction acquired over the res. The plaintiff
actually could validly foreclose on the mortgage properties.
But in so far as the deficiency judgement is concerned can that
be enforced against the wife who was not served with
summons?
NO. Because that is already a judgement in personam. It requires the
fulfillment of a personal liability on the part of the defendant. In this
case, requiring the defendant to pay the balance. So for that you have
to acquire jurisdiction over the person of the defendant.
So although again the court by the institution of the foreclosure
proceedings acquired jurisdiction over the res, and so foreclosure
can be had as a consequence, but in so far as judgment enforcing
personal liability that cannot be enforced if there is no proper service
of summons upon the defendant.
Section 2. Contents. — The summons shall be directed to the
defendant, signed by the clerk of court under seal, and contain:
(a)
The name of the court and the names of the parties to
the action;
(b) When authorized by the court upon ex parte motion,
an authorization for the plaintiff to serve summons to
the defendant;
(c) A direction that the defendant answer within the time
fixed by these Rules; and
(d) A notice that unless the defendant so answers,
plaintiff will take judgment by default and may be
granted the relief applied for.
A copy of the complaint and order for appointment of guardian
ad litem, if any, shall be attached to the original and each copy
of the summons. (2a)
Section 2 talks about the content of summons. Take note of to whom
shall the contents be directed? It is directed to the defendant.
How does a summon look like? If you remember our discussion before
on caption sa cases, it is similar. It should state the name of the court
and the names of the parties to the action and then it should state if it is
authorized by the court upon ex parte motion so there is authorization to
the plaintiff to serve summons to the defendant. Then there is a directive
to the defendant that he should answer within the time fixed by these
rules. It could be 30 days, 60 days. Depending on what we discussed
before. Then there should be notice in the summons telling the
defendant that unless he answers, the plaintiff will take judgement by
default and may be granted the relief applied for.
SERVICE OF SUMMONS WITHOUT COPY OF THE COMPLAINT
Is the defendant bound to comply with the summons where service was
made without attaching a copy of the complaint?
Now take note oft the last paragraph of Section 2 Rule 14 which states
that “A copy of the complaint and order for appointment of guardian ad
litem, if any, shall be attached to the original and each copy of the
summons.”
Now what if summon has been served to the defendant but it is without
an attached copy of the complaint, so what will the defendant do? How
do you answer the complaint if you don’t have a copy of the complaint?
As a defendant, are you bound by the summons where the service was
made without attaching a copy of the complaint? This same situation
happened in the case of PAGALARAN vs BAL-LATAN
PAGALARAN vs BAL-LATAN
G.R. No. 4119 March 11, 1909, 13 Phil. 135
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FACTS: The defendant, a certain Maria Bidayanes, was personally
served with summons. She was notified of the order to appear before
the court and to file her answer and was given a duplicate copy of
the order, the receipt of which she acknowledged. The summons
however, was not accompanied by a copy of the complaint. The
defendant did not appear and file her answer as ordered. The trial
court then issued an order declaring her in default.
ISSUE: Whether or not the proceedings in the trial court should be
annulled on the ground that the defendant had never been
summoned pursuant to the Rules because she was not served a
copy of the complaint.
RULING: Even if there had been no complaint or formal summons,
no law or reason whatever justifies the nonappearance of the
defendant after having been summoned, inasmuch as even if it were
for the purpose of challenging the jurisdiction of the court, or of
alleging the nullity of the summons, she ought to have appeared and
not have abandoned the action, filing then the motion which she did
not make until after judgment in default had been rendered.
It is one filed directly to the court without notifying or serving first a copy
to the adverse party.
Relate this to Section 3.
Section 3. By whom served. — The summons may be served by
the sheriff, his or her deputy, or other proper court officer, and
in case of failure of service of summons by them, the court may
authorize the plaintiff - to serve the summons - together with the
sheriff.
In cases where summons is to be served outside the judicial
region of the court where the case is pending, the plaintiff shall
be authorized to cause the service of summons.
If the plaintiff is a juridical entity, it shall notify the court, in
writing, and name its authorized representative therein,
attaching a board resolution or secretary’s certificate thereto,
as the case may be, stating that such representative is duly
authorized to serve the summons on behalf of the plaintiff.
And in the third place, after judgment in default had been entered,
the remedy open to the appellant was that authorized by section 55
of the Code of Civil Procedure, to wit, to ask that the judgment be
vacated and that she be heard. She should have appeared and
stated that her nonappearance in the action, which gave rise to the
judgment in default, was due to fraud, accident, or mistake. This the
appellant did not do. She merely claimed that the said judgment
should be annulled on the ground of lack of summons, which is
without foundation, and because of the absence of a new complaint,
which she might have pleaded upon appearing in answer to the
summons alleged to have been defective because it was not
accompanied by a copy of the new complaint.
If the plaintiff misrepresents that the defendant was served
summons, and it is later proved that no summons was served,
the case shall be dismissed with prejudice, the proceedings
shall be nullified, and the plaintiff shall be meted appropriate
sanctions.
So here Bidayanes was served a copy of the summons. She was given
summons but then the summons was not accompanied with a copy of
the complaint so she did not answer. She did not appear in court and
consequently the trial court issued an order declaring her on default.
Now she wants to annul the proceedings in the trial court because
according to her she had never been summoned because she was not
served with a copy of the complaint along with the summons. So
meaning even if summons were served upon her but it did not come with
an attached complaint so she was not validly served summons. That
was her contention.
WHO SERVES SUMMONS
The summons may be served:
a. By the sheriff;
b. His or her deputy;
c. Or other proper court officer; and
d. In case of failure of service of summons by them, the ourt may
authorize the plaintiff- to serve the summons. [in relation to
Section 2]
The Supreme Court said even if there had been no complaint or formal
summons, no law or reason whatever justifies the nonappearance of the
defendant after having been summoned, inasmuch as even if it were for
the purpose of challenging the jurisdiction of the court, or of alleging the
nullity of the summons, she ought to have appeared and not have
abandoned the action. So even if the summons did not come with a copy
of the complaint, she should not have ignored it. She should have filed,
at that time, a motion to dismiss on the ground that there was improper
service of summons so there was no jurisdiction acquired by her person
or she could question the nullity of the summons. She has to do
something. Even here, she was served summons so she should be
aware that there is a case filed against her and she is directed to file an
answer. She could maybe ask for the photocopy of the complaint from
the court. Or when then was an order declaring her on default, she could
file a motion to set aside the order of default. And when there is a
judgement against her, she could file a petition for relief or motion for a
new trial. She had several remedies. So she cannot just ignore the
summons.
Take note of the amendment “When authorized by the court upon ex
parte motion, an authorization for the plaintiff to serve summons to the
defendant”
Here we now have a case where it is the plaintiff who will serve
summons to the defendant. Before this was not allowed. Before you can
be authorized to do that, there is a aneed to file an ex parte motion.
What is an ex-parte motion?
If summons is returned without being served on any or all the
defendants, the court shall order the plaintiff to cause the
service of summons by other means available under the Rules.
Failure to comply with the order shall cause the dismissal of the
initiatory pleading without prejudice. (3a)
So under the present rules, clearly, the plaintiff is now authorized to
serve summons. There are two instances.
AUTHORITY OF PLAINTIFF TO SERVE SUMMONS:
1. Discretionary- summons served within the judicial region,
and in case of failure of service of summons by court
personnel, the court may authorize the plaintiff – to serve the
summons – together with the sheriff.
Discussion: Here, in general, the priority is the service of the
summons by the sheriff, his or her deputy or any other court
personnel. Now in case of failure of service by these persons,
here the court may authorize the plaintiff to serve summons.
Take not that, here, this applies to that case where the
defendant to be served summons is just located in the same
judicial region as to the court which issues summons. Under
this situation, it is not the plaintiff alone who serves summons,
he serves it together with the sheriff.
2.
Mandatory- In cases where summons is to be served outside
the judicial region of the court where the case is pending, the
plaintiff shall be authorized to cause the service of summons.
Discussion: So not the same judicial region as to the court
which issues summons. So for example, the defendant is in
General Santos City. It is located in the 12th judicial region.
Davao is in the 11th judicial region. So ang imong kalaban sa
case taga GenSan, here you shall be authorized by the court
to cause the service of the summons unlike sa katong isa na
“may” authorize the plaintiff to serve the summons kung within
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the judicial region lang. In this particular situation, aside from
the use of the word “shall” be authorized there is no mention
here that the summons to that defendant located outside the
judicial region of the court which issues summons na he
should serve it together with the sheriff. There’s no provision
here. Why? Because the sheriff’s authority to serve summons,
for example taga Davao City, is only within the 11th judicial
region. So even now sa present procedure for example in
Cebu, so summons issued to the defendant who is a resident
of Cebu, and the case is filed and pending here in Davao City
ang sheriff diri sa Davao City dili na siy muadot sa Cebu para
i-serve ang summons to that defendant in Cebu. What they do
is mag issue sila ug authority or order sa RTC in Cebu,
example Lapu-Lapus City, and then ang sheriff ang mag serve
ug summons. So in this particular case the plaintiff here if he
will serve the summons outside of the judicial region of the
court which issues the summons, he can also ask assistance
from the sheriff of that judicial region where the defendant is
located. So that will be the difference.
WHEN SHOULD SUMMONS BE SERVED?
SPOUSES LAUS vs COURT OF APPEALS
GR. No. 101256, March 8, 1993
Service of summons may be made at night as well as
during the day or even on a Sunday or holiday because of
its ministerial character.
This is one of the distinctions between personal service of
pleadings and personal service of summons. In Section 6
Rule 13, there is a time limitation, to wit: by leaving the
copy, between the hours of eight in the morning and six in
the evening, at the party’s or counsel’s residence.
How about despite the fact that the court ordered the plaintiff to cause
the service of summons, let’s say by publication, and then the plaintiff
did not comply with the order. What is the consequence? The rule says
it shall cause the dismissal of the initiatory pleading without prejudice.
So here the case can be refiled even if it is dismissed by the court. That’s
the difference.
If there is misrepresentation na naserve ang summons, the dismissal is
with prejudice. But if wala naserve ang summons kay wala ni comply si
plaintiff to the order of the court to serve the summons, still the same
that the case will be dismissed but without prejudice.
Section 4. Validity of summons and issuance of alias summons
— Summons shall remain valid until duly, unless it is recalled
by the court. In case of loss or served destruction of summons,
the court may, upon motion, issue an alias summons.
There is failure of service after unsuccessful attempts to
personally serve the summons on the defendant in his or her
address indicated in the complaint. Substituted service should
be in the manner provided under Section 6 of this Rule. (5a)
SOME DEFINITIONS:
➢ ALIAS WRIT. A writ issued to take the place of a similar writ which
has been lost or returned or for some other reason has not taken
effect or has become functus officio.
➢ ALIAS SUMMONS. A new summons issued in the same form and
to serve the same purpose as one previously issued, and usually
issued where the original summons has been returned, and hence
has become functus officio, without having been served on any or
all of the defendants. (This is the one mentioned in Section 4)
Is there a particular time of the day? For example under Section 6 of
Rule 13 na there is a time limitation between the hours of eight in the
morning and six in the evening.
So when we say ALIAS (writ, summons), it is a new one issued to take
place of one which was lost or destroyed but it still has the same
features, the same effect. It continues the old one.
How about summons? Dapat ba mag observe ta ug the same time
limitation? In this case of SPOUSES LAUS vs COURT OF APPEALS,
the Supreme Court clarified that service of summons may be made at
night as well as during the day or even on a Sunday or holiday because
of its ministerial character.
Now take note that under Section 4, the summons remain valid until duly
served so it has an indefinite life unless it is recalled by the court.
MISREPRESENTATION BY THE PLAINTIFF:
If the plaintiff misrepresents that the defendant was served
summons, and it is later proved that no summons was served, the
case shall be dismissed with prejudice, the proceedings shall be
nullified, and the plaintiff shall be meted appropriate sanctions.
TWO SITUATIONS ALLOWING ISSUANCE OF ALIAS SUMMONS:
1. The summons is destroyed; and
2. The summons has been lost.
Discussion: Now what if the defendant misrepresented that he already
served the summons in those instances when the court authorized the
plaintiff to serve summons? What is the consequence of that? It is very
clear that the case shall be dismissed with prejudice, the proceedings
shall be nullified, and the plaintiff shall be meted appropriate sanctions.
So take note that dismissal here is with prejudice so you cannot refile
the same case.
DUTY OF PLAINTIF WHEN SUMMONS CANNOT BE SERVED
If summons is returned without being served on any or all the
defendants, the court shall order the plaintiff to cause the service
of summons by other means available under the Rules.
Failure to comply with the order shall cause the dismissal of the
initiatory pleading without prejudice.
Discussion: Now the provision which is very important. For example,
the summons is being returned without being served on any or all of the
defendants. So wala na serve by personal service or by substituted
service. The rule says the court shall order the plaintiff to cause the
service of summons by other means available under the Rules. So ikaw
na plaintiff ang mangitag paagi to serve the summons.
What are the other available means? By publication for example.
How about an Alias Summon? When can the court issue Alias
Summons? There are 2 situations mentioned in Section 4.
Under the old rules, alias summons can also be issued in case of failure
of service but now it doesn’t seem to appear in the amended rules. In
case of failure of service, resort to other modes shall be made by the
plaintiff.
Section 5. Service in person on defendant. — Whenever
practicable, the summons shall be served by handing a copy
thereof to the defendant in person and informing the defendant
that he or she is being served, or, if he or she refuses to receive
and sign for it, by leaving the summons within the view and in
the presence of the defendant. (6a)
IN GENERAL, HOW IS SUMMONS SERVED?
There are three (3) modes of service of summons on an ordinary
defendant:
1. Section 5 - Service in person on defendant;
2. Section 6 – Substituted service; and
3. Section 16, 17, 18 – Service by publication
WHAT MODE SHOULD BE EMPLOYED BY THE SERVER?
It would depend on the circumstances of the defendant and the nature
of the of action.
Example:
NATIURE OF
SITUS OF
ADDRESS
MODE OF
THE ACTION
THE
SERVICE
DEFENDANT
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Action In
Personam
In the
Philippines
Address or
whereabouts
is known
Either service
in person or
substituted
service
PASCUAL vs PASCUAL
GR. No. 171916, December 4, 2009
In a case where the action is in personam and the defendant is in the
Philippines, the service of summons may be done by personal or
substituted service as laid out in Sections 6 and 7 of Rule 14 of the
Revised Rules of Court. The provisions state:
Section 6. Service in person on defendant. - Whenever practicable,
the summons shall be served by handing a copy thereof to the
defendant in person, or, if he refuses to receive and sign for it, by
tendering it to him.
Section 7. Substituted service. - If, for justifiable causes, the
defendant cannot be served within a reasonable time as provided in
the preceding section, service may be effected (a) by leaving copies
of the summons at the defendant's residence with some person of
suitable age and discretion then residing therein, or (b) by leaving the
copies at defendant's office or regular place of business with some
competent person in charge thereof.
A plain and simple reading of the above provisions indicates that
personal service of summons should and always be the first option,
and it is only when the said summons cannot be served within a
reasonable time can the process server resort to substituted service.
So take note of this principle which has been reiterated in many
jurisprudence and one of which is PASCUAL vs PASCUAL. It tells us
that personal service of summons should and always be the first option
and it only when the said summons cannot be served within a
reasonable time can the process server resort to substituted service of
summons. So personal service or service in person ang priority. That is
the requirement.
So how do you effect personal service or service in person?
SERVICE IN PERSON ON THE DEFENDANT
In an action strictly in personam, service in person on the defendant is
the preferred mode of service (Hamilton vs Leuy, 344 SCRA 821). This
is done by handing a copy thereof to the defendant in person
Discussion: Under Section 5 it says you hand a copy to the defendant
in person. So meaning tagaan nimo siya’g copy sa summons with the
attached complaint and this is a new one added by the rules: informing
the defendant that he or she is being served. So dili ng iatag lang nimo
na wala kabalo si defendant. Wala siya kabalo kung love letter ba na
siya or demand letter. You should clarify that it is summons.
TENDER OF SUMMONS
If he refuses to receive and sign, what do you do? What is our remedy
in that case? By leaving the summons within the view and in the
presence of the defendant. So dapat makita niya. This is what we call
in the previous rule TENDER OF SUMMONS. You tender to him. If he
refuses to receive the copy, you gleave the copy within the view and in
the presence of the defendant. This is also called service in person.
SANSIO PHILIPPINES, INC. vs SPOUSES MOGOL, JR.
GR. No. 177007, July 14, 2009
The instruction of the counsel for respondent spouses not to obtain
a copy of the summons and the copy of the complaint, under the lame
excuse that the same must be served only in the address stated
therein, was a gross mistake. Section 6, Rule 14 of the Rules of Court
does not require that the service of summons on the defendant in
person must be effected only at the latter’s residence as stated in the
summons. On the contrary, said provision is crystal clear that,
whenever practicable, summons shall be served by handing a copy
thereof to the defendant; or if he refuses to receive and sign for it, by
tendering it to him. Nothing more is required. As correctly held by the
RTC of Manila, Branch 50, the service of the copy of the summons
and the complaint inside the courtroom of the MeTC of Manila,
Branch 24 was the most practicable act under the circumstances,
and the process server need not wait for respondent spouses Mogol
to reach their given address, i.e., at 1218 Daisy St., Employee
Village, Lucena City, before he could serve on the latter the summons
and the copy of the complaint. Due to the distance of the said
address, service therein would have been more costly and would
have entailed a longer delay on the part of the process server in
effecting the service of the summons.
Now in this case of SANSIO PHILIPPINES, INC. vs SPOUSES MOGOL,
JR., was there a proper service of summons? What happened here?
In the summons, the court will indicate the address where the defendant
should be served summons. Now here there were two cases involving
the same defendants. In one case, the summons were served to the
spouses. In that case during the hearing, didto gi-serve sa sheriff sa mga
defendants ang summons. The defendants were instructed by their
lawyer in that case that they should not receive the summons kay lahi
ang address na nakabutang sa summons so they should only be served
summons in that address indicated by the court. So the spouses refused
to receive the summons and then the sheriff left the summons within the
view of the defendant.
Was there proper service of summons? The Supreme court said YES.
First, even if the summons indicates where the defendant shall be
served summons, it does not mean they can only be served summons
in that particular address. If they are found in the court or any place na
nakitan na sila sa sheriff, they can be served anywhere. Here the
spouses refused to receive the summons so the sheriff left within their
view a copy of the summons. That’s what we call tender of summons
and again it is also equivalent to service in person. It was a valid service
of summons.
WHEN PERSONAL SERVICE FAILS
If the defendant cannot be served in person within a reasonable time,
only then may substituted service under Section 6 of Rule 14 be availed
of. The sheriff or server must first exert all efforts to serve the defendant
in person. If this effort fails then substituted service can be made. This
effort must be stated in the proof of service. This is required because
substituted service is in derogation of the usual mode of service (Laus
vs. Court of Appeals, 219 SCRA 688; Umandap vs. Sabio, Jr., 339
SCRA 243; Samartino vs Raon, 383 SCRA 66; Hamilton vs Leuy, 344
SCRA 821).
Now what if personal service fails or is not possible? Then that’s the time
when substituted service may be resorted to and there are several
requirements on that particular service which we will discuss in section
6. There are several cases here which discuss the priority in personal
service and when you resort to substituted service you must comply with
specific requirements. We have a clearer guidelines in the amended
rules.
Section 6. Substituted service. — If, for justifiable causes, the
defendant cannot be served personally after at least three (3)
attempts on two (2) different dates, service may be effected:
(a) By leaving copies of the summons at the defendant's
residence to a person at least eighteen (18) years of age and of
sufficient discretion residing therein;
(b) By leaving copies of the summons at the defendant's office
or regular place of business with some competent person in
charge thereof. A competent person includes, but is not limited
to, one who customarily receives correspondences for the
defendant;
(c) By leaving copies of the summons, if refused entry upon
making his or her authority and purpose known, with any of the
officers of the homeowners’ association or condominium
corporation, or its chief security officer in charge of the
community or the building where the defendant may be found;
and
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(d) By sending an electronic mail to the defendant’s electronic
mail address, if allowed by the court. (7a)
Be very careful. This is a very important provision
What if personal service fails or not possible, then that’s the time
substituted service can be resorted to and there are several
requirements on that or there are particular modes of service. This will
be discussed in Section 6
There are several cases here which discusses the priority of personal
service and when you resort to substituted service, you must comply
with the requirements.
But we have clearer guidelines under the amended rules.
WHEN PERSONAL SERVICE FAILS
If the defendant cannot be served in person within a reasonable time,
only then may substituted service under Section 6 of Rule 14 be availed
of. The sheriff or server must first exert all efforts to serve the defendant
in person. If this effort fails then substituted service can be made. This
effort must be stated in the proof of service. This is required because
substituted service is in derogation of the usual mode of service (Laus
vs CA; Umandap vs Sabio, Jr.; Samartino vs Raon; Hamilton vs
Leuy)
SUBSTITUTED SERVICE OF SUMMONS
MIRANDA VS CA
326 SCRA 278
Only if service in person cannot be made promptly can the process
server resort to substituted service. Moreover, the proof of service of
summons must:
a) INDICATE the impossibility of sevice of summons within a
reasonable time;
b) SPECIFY the efforts exerted to locate the defendant; and
c) STATE that the summons was served upon a person of
sufficient age and discretion who is residing in the address,
or who is in charge of the office or regular place of business
of the defendant. It is likewise required that the pertinent
facts proving these circumstances be stated in the proof of
service or in the officer’s return.
The failure to comply faithfully, strictly and fully with all the foregoing
requirements of substituted service renders the service of summons
ineffective.
Take note that these requirements are now incorporated in Section 20,
Rule 14 of the amended rules.
The rule is very clear, what are the conditions for substituted service?
“if, for justifiable causes, the defendant cannot be served
personally after at least 3 attempts on 2 different dates.”
This is actually the application of the SC in one of its cases Manotoc vs
CA as reiterated in several cases. Because before what is written in the
rules is “several attempts” so the SC interpreted that in the case of
manotoc and Has now incorporated that under the rules.
MANOTOC VS CA
499 SCRA 21
“Since the defendant is expected to try to avoid and evade service of
summons, the sheriff must be resourceful, persevering, canny and
diligent in serving the process on the defendant.” For substituted
service to be available, there must be several attempts by the sheriff
to personally serve the summons within a reasonable period of one
month which eventually resulted in failure to prove impossibility of
prompt service. “Several attempts” means at least 3 tries, preferably
on at least 2 different dates. In addition, the sheriff must cite why such
efforts where unsuccessful. It is only then that impossibility of service
can be confirmed or accepted.”
A) By leaving copies of the summons at the defendant’s residence
to a person at least 18 years of age and of sufficient discretion
residing therein.
CARSON REALTY & MANGEMENT CORPORATION VS RED
ROBIN SECURITY
GR NO 225035
A person of suitable age and discretion is one who has attained the
age of full legal capacity or 18 years old and is considered to have
enough discernment to understand the impostance of a summon.
“Discretion”is defined as the ability to make decisions which
represent a responsible choice and for which an understanding of
what is lawful, right or wise may be presupposed.” Thus, to be of
sufficient discretion such person must know how to read and
understand English to comprehend the import of the summons, and
fully realize the need to deliver the summons and complaint to the
defendant at the earliest possible time for the person to take
appropriate action. Why? Because the reglementary period for the fili
ng of the answers starts from the time the substituted service was
effected so even if it was not the defendant himself but another
person who received the summonds, that should be counted as a
receipt by him and therefore, the reglementary period will start.
Thus, the person must have the relation of confidence to the
defendant, ensuring that the latter would receive or at least be
notified of the receipt of the summons. The sheriff must therefore
determine if the person found in the alleged dwelling or residence of
defendant is of legal age, what the recipient’s relationship with the
defendant is, and whether said person comprehends the significance
of the receipt of the summons and his duty to immediately deliver it
to the defendant or at least notify the defendant of said receipt of
summons.
This is one of the rulings incorporated by the SC which was cited in the
case of manotoc and this case of carson realty.
So here, it was clearly defined what is a person of suitable age and
discretion.
Suitable age-one who has attained the age pf full legal capacity (18
years old) because that age, you are considered and presumed to have
enough discernment
Discretion- it is the ability to make decisions which represent a
responsible choice and for which to have an understanding of what is
lawful right or wise may be presupposed.
B) By leaving copies of the summons at the defendant’s office or
regular place of business with some competent person in charge
thereof. A competent person includes, but is not limited to, one
who customarily receives correspondences for the defendant;
A Competent Person.
CARSON REALTY & MANGEMENT CORPORATION VS RED
ROBIN SECURITY
GR NO 225035
If the substituted service will be done at defendant’s office or regular
place of business, then it should be served on a competent person
in charge of the place. Thus, the person on whom the substituted
service will be made must be the one managing the officer or
business of defendant, such as the president or manager; and such
individual must have sufficient knowledge to understand the
obligation of the defendant in the summons. Again, these details
must be contained in the Return
GUANZON VS ARRADAZA
510 SCRA 309
It is not necessary that the person in charge of the defendant’s
regular place of business be specifically authorized to receive the
summons. It is enough that he appears to be in charge.
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Now what happens if the defendant lives in a condominium or
subdivision? And strict kaayo ang security so dili pasudluon si sheriff,
now how shall summons be served?
C) By leaving copies of the summons, if refused entry upon making
his or her authority and purpose known, with any of the officers of
the homeowner’s association or condominium corporation, or its
chief security officer in charge of the community or the building
where the defendant may be found; and
So, if wala sya gisugtan, he shall leave a copy of the summons sa any
officer or chief security basta he should make his authority and purpose
known.
Actually, this is incorporated in the rules. And as ruled in the case of
Robinson vs Miralles
ROBINSON VS MILLARES
GR No. 163584
Complaint for a sum of money against the defendant. Summons was
served on the defendant at her given address but per return of
service of the sheriff it was learned that the defendant no longer
resided at such address. Later, the trial court issued an alias
summons to be served at the defendant’s new address. Again, the
summons could not be served on the defendant.
The sheriff explained:
“The Security Guard assigned at the gate of Alabang Hills refused to
let me go inside the subdivision so that I could effect the service of
the summons to the defendant in this case. The security guard
alleged that the defendant had given them instructions not to let
anybody proceed to her house if she is not around. I explained to the
Security Guard that I am a sheriff serving summons to the defendant,
and if the defendant is not around, summons can be received by any
person of suitable age and discretion living in the same house.
Despite of all the explanation, the security guard by the name of A.H.
Geroche still refused to let me go inside the subdivision and served
(sic) the summons to the defendant. The same thing happened when
I attempted to serve the summons previously.”
“Therefore, the summonses served by leaving a copy thereof
together with the copy of the complaint to the security guard by the
name of A.H. Geroche, who refused to affix his signature on the
original copy thereof, so he will be the one to give the same to the
defendant"
ISSUE: Whether or not there was proper substituted service of
summons.
RULING: We have ruled that the statutory requirements of the
substituted service must be followed strictly, faithfully, and fully and
any substituted service other than that authorised by the Rules is
considered ineffective (Paluwagan ng Bayan Savings Bank vs
King, G.R. No. 78252, April 12,1989, 172 SCRA 60). However, we
frown upon an overly strict application of the Rules. It is the spirit,
rather than the letter of the procedural rules that governs.
In his return, the sheriff declared that he was refused entry by the
security guard in the subdivision. The latter informed him that the
petitioner prohibits him from allowing anybody to proceed to his
residence whenever she is out. Obviously, it was impossible for the
sheriff to effect personal or substituted service of summons upon
petitioner. We note that she failed to controvert the sheriff's
declaration. Nor did she deny having received the summons through
the security guard.
Considering her strict instruction to the security guard, she must bear
its consequences. Thus, we agree with the trial court that summons
has been properly served upon petitioner and that it has acquired
jurisdiction over her.
The summons was therefore, properly served.
Can you serve summons by electronic mail as a substituted
service? Yes.
D) By sending an electronic mail to the defendnat’s electronic mail
address, id allowed by the court.
Again, remember that this is only when personal service cannot be done.
So, by substituted service, you can do so by sending an electronic mail
to the email address of the defendant.
Under this mode also, you need to file a motion in court for leave of court
to allow you to serve by substituted service through electronic mail. And
you have to prove that this is actually the email of the defendant and it
was actually received by the defendant.
SANDOVAL VS HRET
GR No. 149380
Substituted service derogates the regular method of personal
service. It is an extraordinary method since it seeks to bind the
respondent or the defendant to the consequences of a suit even
though notice of such action is served not upon him but upon another
to whom the law could only presume would notify him of the pending
proceedings. As safeguard measured for this drastic manner of
bringing in a person to answer for a claim, it is required that statutory
restrictions for substituted service must be strictly, faithfully and fully
observed.
What if in the service of summons by substituted service, the
defendant did not actually receive the summons? What it the
effect?
MONTALBAN VS MAXIMO
22 SCRA 1070
Where the substituted service has been validly served, its validity is
not affected by the defendant’s failure to actually receive the
summons from the person with whom the summons has been left. It
is immaterial that the defendant does not in fact receive actual notice.
The rule does not require the sheriff or any authorized server to verify
that the summons left in the defendant’s residence or office was
actually delivered to the defendant.
What is important here is that the sheriff strictly complied with the
conditions for substituted service.
Section 7. Service upon entity without juridical personality. –
When the persons associated in an entity without juridical
personality are sued under the name by which they are
generally or commonly known, service may be effected upon all
the defendants by serving upon any one of them, or upon the
person in charge of the office or place of business maintained
in such name. But such service shall not bind individually any
person whose connection with the entity has, upon due notice,
been severed before the action was filed.
Do you remember Section 15 of Rule 3? When 2 or more persons not
organized as an entity with juridical personality enter into a transaction.
Diba they may be sued under the name to which they are generally or
commonly known.
For example: A, B and C entered into transaction under the name ABC
corporation an entity which has actually no juridical personality. A, B and
C may be sued under the name of ABC corporation.
Now regarding the summons, how will the summons be served in a nonexisting corporation or upon those who compose the corporation?
Under Section 7 of Rule 14, service may be effected upon all the
defendants by serving summons upon (a) anyone of them, or (b) upon
the person in charge of the office or of the place of business maintained
in such name. This service shall not bind the individual, whose
connection with the entity, upon due notice, has been severed before
the action was filed.
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Civil Procedure Second Exam
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So, bisag kinsa kay A, B or C or bisag kinsa and in-charge sa ilahang
office or business.
house counsel of the corporation wherever they may be found, or
in their absence or unavailability, on their secretaries.
But again, remember that any person ceased to be connected with the
entity and it was known, the last paragraph of section 7 applies.
If such service cannot be made upon any of the foregoing persons,
it shall be made upon the person who customarily receives the
correspondence for the defendant at its principal office.
For example: B already resigned in the corporation, he is no longer part
of such entity. As such, when there is a case against ABC corporation,
wala nay labot si B but he was served with summons, it would not be
binding to him.
In case the domestic juridical entity is under receivership or
liquidation, service of summons shall be made on the receiver or
liquidator, as the case may be.
Section 8. Service upon prisoners. – When the defendant is a
prisoner confined in a jail or institution, service shall be effected
upon him or her. The jail warden shall file a return within five (5)
calendar days from service of summons to the defendant.
Should there be a refusal on the part of the persons abovementioned to receive summons despite at least three (3) attempts
on two (2) different dates, service may be made electronically, if
allowed by the court, as provided under Section 6 of this Rule. (11a)
To whom: prisoner confined in a jail or institution
By whom: by the officer having the management of such jail or institution
who deemed as a special sheriff for said purpose
Under Section 12, please remember that the defendant here is a private
domestic juridical entity, meaning a domestic corporation, one which is
organized and registered under the laws of the Philippines. Corporations
do not have a physical existence. To whom shall service be made?
So lahi and procedure ha? Siya ang mag serve and because it’s not the
sheriff himself, so the jail warden shall file a return.
Section 9. Service consistent with international conventions. –
Service may be made through methods which are consistent
with established international conventions to which Philippines
is a party.
This is a new rule. So according to this section, we are not limited to the
methods under our rules such as personal service of summons,
substituted service and publication. If there are other methods
consistent with the international convention, that can also be followed.
This is an application of doctrine of incorporation under article II section
2 of the constitution wherein the philippines adopts the generally
accepted principles of international law or international jurisprudence as
part of the land.
Si here, they are also part of the ROC. Just remember that the
Philippines must be a signatory of that convention.
Section 10. Service upon minors and incompetents. – When the
defendant is a minor, insane or otherwise an incompetent
person, service of summons shall be made upon him or her
personally and on his or her legal guardian if he or she has one,
or if none, upon his or her guardian ad litem whose appointment
shall be applied for by the plaintiff. In the case of a minor,
service shall be made on his or her parent or guardian.
Service may be made on:
1. President
2. Managing Partner
3. General Partner
4. Corporate Secretary
5. Treasurer or
6. In-house counsel
Wherever they may be found, meaning, not necessarily on its principal
place of business.
Or, in their absence or unavailability, on their secretaries. Take note, this
is not present under the previous rule, before, it’s just the corporate
secretaries.
If such service cannot be made upon any of the foregoing persons, it
shall be made upon the person who customarily receives the
correspondence for the defendant at its principal office.
In case the domestic juridical entity is under receivership, service of
summons shall be made on the receiver or liquidator. Remember, dili na
pwede sa president, managing partner, etc.
Why? Because when a corporation is under receivership or liquidation
mawala na ang authority to manage on the part of the officers of the
corporation. The Corporate affairs shall be under the
administration of the receiver.
What is guardian ad litem?
For example, there is a minor who does not have a guardian, and you
want to sue such minor. So, in your complaint, you made there an
application for the appointment of guardian ad litem, when it is granted
and guardian ad litem has been apointed, the summons will be served
upon the latter.
Even in obligations and contracts if there is a debt and then you are
going to pay to the corporation that is under receivership. You don’t pay
to the officers of the corporation; you pay to the receiver or the liquidator.
Because the authority of the officers of the corporation already ceases.
Payment made to the officers of the corporation under receivership is
not valid payment.
-Guardian pending the litigation. So, when the litigation is done, the
authority of such guardian ad litem also ceases.
Should there be refusal on these persons mentioned to receive
summons despite at least 3 attempts on 2 different dates, it can then
be served electronically but you have to ask permission from the Court.
You have to file a Motion for Leave in order to file it electronically --- this
is how you do it.
Section 11. Service upon spouses. - When the spouses are sued
jointly, service of summons should be made to each spouse
individually.
Do we need to serve summons to each spouse? Yes. The rule is clear.
ESCOBIOD, MADUM, VILLAVICENCIO
Section 12. Service upon domestic private juridical entity. — When
the defendant is a corporation, partnership or association
organized under the laws of the Philippines with a juridical
personality, service may be made on the president, managing
partner, general manager, corporate secretary, treasurer, or in-
Is the enumerationn exclusive? YES
EB Villarosa vs Benito GR No. 134602
Facts:
Petitioner EB Villarosawith principal office address at 102 Juan Luna
St.., Davao City and with branches at 2492 Bay View Drive, Tambo,
Paranaue, Metro Manila and Kolambog, Lapasan, Cagayan de Oro City,
entered into a sale with development agreement with private respondent
Imperial Development Corporation. As Villarosa failed to comply with its
contractual obligation, private respondent initiated a suit for breach of
contract and damages at the Regional Trial Court of Makati. Summons,
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Civil Procedure Second Exam
From the lectures of Atty. Lielanie C. Yangyang-Espejo
together with the complaint, was served upon Villarosa through its
baranch manager at Kolambog, Lapasan, Cagayan de Oro City.
Villarosa filed a Special Appearance with Motion to Dismiss on the
ground of improper service of summons and lack of jurisdiction. The trial
court denied the motion and ruled that there was substantial compliance
with the rule, thus, it acquired jurisdiction over Villarosa. The latter
questioned the denial before the Supreme Court it its petition for
certiorari.
RULING: The enumeration of persons to whom summons may be
served is “restricted, limited, and exclusive” following the rule on
statutory construction expression unius est exclusion alterius and that if
the Rules of Court Revision Committee intended to liberalize the rule on
service of summons, it could have easily done so by clear and concise
language. It further ruled that “Notably, under the new Rules, service of
summons upon an agent of the corporation is no longer authorized.”
The designation of persons or officers who are authorized to accept
summons for a domestic corporation or partnership is now limited and
more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil
Procedure.
Can substituted service of summons be employed under Section 12?
No. Why? Because the provision imply service in person upon any of
the officers enumerated. You know it’s different if it is a natural person
and a juridical person. Pag natural person ofcourse you can only serve
in person upon him, so, kung lisud jud mag serve sa iyaha then
substituted service is allowed. But here, in case of domestic corporation
under the rules, daghan sila, so if dili pwede kay president pwede kay
general manager, etc.
Actually, wala sya sa rules but it is implied na dili pwede ang substituted
service sa domestic corporation. If the sheriff cannot serve summons sa
President pwede na sa others, pwede na gani sa secretary etc. at the
principal address of the corporation.
GV Florida Transport vs Tiara Commercial Corporation (GR NO.
201378)
The bus company Victory Liner, Inc. (VLI) filed an action for damages
against GV Florida and its bus driver Arnold Vizquera before the RTC.
This action arose out of a vehicle collision between the buses of VLI and
GV Florida along Cordon, Isabela on May 1, 200z. In its complaint, VLI
claimed that Vizquera’s negligence was the proximate cause of the
collision and GV Florida failed to exercise due diligence in supervising
its employee.
In its Answer, GV Florida alleged that the Michelin tires of its bus had
factory and mechanical defects which caused a tire blow-out. This, it
claimed, was the proximate cause of the vehicle collision.
The RTC ordered the service of summons on TCC. In the return of
summons, it appears that the sheriff served the summons to a certain
Gino-gino who represented herself as an accounting manager
authorized by TCC to receive summons on its behalf.
TCC filed a Special Entry of Appearance with an Ex-Parte Motion for
Extension of Time to File Responsive Pleading and/or Motion to
Dismiss. Therein, it stated that the summons was received by Gino-gino,
its financial supervisor.
TCC eventually filed a motion to dismiss GV Florida’s third-party
complaint. First it argued that the RTC never acquired jurisdiction over
it due to improper service of summons. Under Section 11, Rule 14, there
is an eclusive list of the persons upon whom service of summons on
domestic juridical entities may be made. As the summons in this case
was not served on any of the persons listed in Section 11, Rule 14, there
was no proper service of summons on TCC that would vest the RTC
with jurisdiction over it.
GV Florida argues that the RTC acquired jurisdiction over TCC. While it
agrees tha the enumeration in Section 11 of Rule 14 of the Rules of
Court is exclusive, GV Florida argues that service of summons is not the
only means through which a court acquires jurisdiction over a party.
Under Section 20 of Rule 14, voluntary appearance of a defendant is
equivalent to service of summons, which then gives a court jurisdiction
over such defendant. In this case, GV Florida claims that TCC
Voluntarily appeared and submitted to the jurisdiction of the RTC when
it filed motions and pleadings seeking affirmative relief from said court.
It adds that Section 11 of Rule 14 is only a general rule which allows for
substantial compliance when there is clear proof that the domestic
juridical entity in fact received the summons. Moreover, GV Florida
argues that improper service of summons is not a ground for dismissal
of the third-party complaint since the RTC has the authority to issue alias
summons.
RULING: We agree that there was improper service of summons on
TCC. We, however, apply jurisprudence and rule that in cases of
improper service of summons, courts should not automatically
dismissthe complaint by reason of lack of jurisdiction over the person of
the defendant. The remedy is to issue alias summons and ensure that it
is properly served.
Service of summons is the main mode through which a court acquires
jurisdiction over the person of the defendant in a civil case. Through it,
the defendant is informed of the action against him or her and he or she
is able to adequately prepare his or her cause of action. Rules governing
the proper service of summons are not mere matters of procedure. They
go into a defendant’s right to due process. Thus, strict compliance with
the rules on service of summons is mandatory.
CCC Insurance Corporation vs Kawasaki, Manacop Construction
and Florante Manacop (GR No. June 22, 2015)
Kawasaki filed with the RTC a complaint against CCCIC to collect on
Surety Bond No. B-88/11191 and Performance Bond No. B-88/11193.
Service of Summons on FFMCCI at its principal address in Quezon City
failed because FFMCCI already vacated said premises without notifying
anyone as to where it transferred. For this reason, the RTC upon the
motion of CCCIC, issued an order directing the issuance and service of
Alias Summons to the individual directors of FFMCCI. Eventually, the
Alias Summons was personally served upon FFMCCI director Vicente
Concepcion on September 25, 1991.
Issue: Was there a valid service of summons if it was done upon
one of the officers mentioned but not at the principal address of
the corporation?
RULING: “The regular mode, in other words, of serving summons upon
a private Philippine Corporation is by personal service upon one of the
officers of such corporation identified in Section 13. Ordinarily, such
personal service may be expected to be made at the principal office of
corporation. Section 13 does not, however, impose such requirement,
and so personal service upon the corporation may be effected through
service upon, for instance, the president of the corporation at his office
or residential address.
Section 13. Duty of counsel of record. — Where the summons is
improperly served and a lawyer makes a special appearance on
behalf of the defendant to, among others, question the validity of
service of summons, the counsel shall be deputized by the court
to serve summons on his or her client. (n)
Because of this rule, if you are the lawyer for the defendant, it would be
difficult for you to set forth as an affirmative defense improper service of
summons for lack of jurisdiction over the person of the defendant.
Because:
1. Di na ni sya ground for a motion to dismiss
2. The court will not dismiss the case but it would deputize(?) you to
serve the summons to your client.
Section 14. Service upon foreign private juridical entities. — When
the defendant is a foreign private juridical entity which has
transacted or is doing business in the Philippines, as defined by
law, service may be made on its resident agent designated in
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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accordance with law for that purpose, or, if there be no such agent,
on the government official designated by law to that effect, or on
any of its officers, agents, directors or trustees within the
Philippines.
If the foreign private juridical entity is not registered in the
Philippines, or has no resident agent but has transacted or is doing
business in it, as defined by law, such service may, with leave of
court, be effected outside of the Philippines through any of the
following means:
(a) By personal service coursed through the appropriate court in
the foreign country with the assistance of the department of foreign
affairs;
(b) By publication once in a newspaper of general circulation in the
country where the defendant may be found and by serving a copy
of the summons and the court order by registered mail at the last
known address of the defendant;
(c) By facsimile;
(d) By electronic means with the prescribed proof of service; or
(e) By such other means as the court, in its discretion, may direct.
(12a)
FOREIGN PRIVATE JURIDICAL ENTITY
The defendant here is a foreign private juridical entity or simply a
foreign corporation doing business in the Philippines.
NOTES:
Foreign corporations as plaintiffs – they can sue in the Philippine
courts if:
a. they have a license to operate here (doing business in the
Philippines); or
b.
where the foreign corporation is without license but is suing
for an isolated transaction.
Foreign corporations as defendants – can be sued if:
a. licensed to operate (doing business in the Philippines)
b. without license but who transact business in the Philippines.
One cannot sue a foreign private corporation which is not doing business
in the Philippines or which did not transact business in the Philippines
because there is no way that the court can acquire jurisdiction over the
person of such corporation.
SERVICE UPON A FOREIGN PRIVATE JURIDICAL ENTITY
If may designated person to receive summons ang FPC, naa bay option
na i-serve sa designated government official instead? NO.
We are talking here of foreign private corporations.
Upon whom shall service of summons be made?
Take note there is a distinction if it is a foreign private corporation which
is licensed to do business in the Philippines, we have the first
paragraph. If it is foreign private corporation who is not licensed to do
business in the Philippines but has transacted in the Philippines, we
have the 2nd paragraph.
Let’s go first to the first paragraph, di ba I already explained before in
Rule 11 the distinction between a foreign private corporation licensed to
do business in the Philippines and foreign private corporation not
licensed to do business in the Philippines but transacted business in the
Philippines. Kung katong licensed to conduct business ang defendants,
as aman nimu i-serve ang summons?
Sa resident agent or if there is no such agent, on the government official
designated by law to that effect, or on any of its officers, agents, directors
or trustees within the Philippines.
Please recall, for example, if a service of summons is served to the
resident agent, pila gani ka days to file an answer?
30 days, same sa ordinary defendant. Pero if didto sa designated
government official --- 60 days but the 60 day period will not start from
the receipt of the summons by the government official but from the time
the government official turned over the summons with the copy of the
complaint to the corporation.
Paragraph 2 if the Foreign Private Corporation (FPC) is not licensed to
do business in the Philippines but transacted business in the Philippines,
how would you serve summons?
a. By personal service coursed through the appropriate court in
the foreign country with the assistance of the DFA
b. By publication once in a newspaper of general circulation in
the country where the defendant may be found and by serving
a copy of the summons and the court order by registered mail
at the last known address of the defendant.
c. By facsimile
d. By electronic means with the prescribed proof of service
Gi-discuss na nato before no unsaon pag prove na nagsend ka through
electronic means, you take a picture of, for example, in the sent items.’
e.
By such other means, as the court in its discretion may direct.
Take note ha nga kaning mode of service in Section 14 adopted AM
11-3-6-SC.
It has been held that when a foreign corporation has designated a
person to receive summons on its behalf pursuant to the corporation
code, that designation is exclusive and service of summons on any other
is inefficacious (HB Zachry Co. Intl vs CA, 231 SCRA 329)
Northwest Orient Airlines Inc vs CA (GR No. 112573)
Section 14, Rule 14 of the Rules of Court provides that if the defendant
is a foreign corporation doing business in the Philippines, service
may be made:
1. On its resident agent designated in accordance with the law for that
purpose, or
2. If there is no such resident agent, on the government official
designated by law to that effect, or
3. on any of its officers or agents within the Philippines
If the foreign corporation has designated an agent to receive summons,
the designation is EXCLUSIVE, and service of summons is without
force and gives the court no jurisdiction unless made upon him.
In other words, the designation of three parties on whom summons may
be served is not alternative because the resident agent excludes the
others.
Luzon Iron Development Group Corporation and Consolidated
Iron Sands, Ltd vs Bridestone Mining and Development
Corporation and Anaconda Mining and Development Corporation
GR No. 220546 December 7, 2016
Facts: Bridestone and Anaconda Mining filed separate complaints
before the RTC for rescission of contract and damages against Luzon
Iron and Consolidated Iron.
Thereafter, Luzon Iron and Consolidated Iron filed their Special
Appearance with MTD separately against Bridestone’s complaint and
Anaconda’s complaint. Both motion contended that the RTC could not
acquire jurisdiction over Consolidated Iron because it was a foreign
corporation that has never transacted business in the Philippines,
among others.
They argue that there could be no means by which the trial court could
acquire jurisdiction over the person of Consolidated Iron under the mode
of service of summons. The petitioners claim that the service of
summons to Consolidated Iron was defective because the mere fact that
Luzon Iron was a wholly-owned subsidiary of Consolidated Iron did not
establish that Luzon Iron was the agent of Consolidated Iron and Luzon
Iron are two distinct and separate entities.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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RTC, in its order denied the motions to dismiss, as well as the
supplemental motion to dismiss, finding that Consolidated Iron was
doing business in the Philippines,with Luzon Irorn as its resident agent.
ISSUE: Was there a valid service of summons which was coursed
through Luzon Iron ?
HELD: There was NO valid service of summons.
Consolidated Iron transacted business in the Philippines as a signatory
in the TPAA that was executed in Makati. Hence, it may be served with
the summons in accordance with the modes provided under Section 12,
Rule 14.
It is undisputed that Luzon Iron was never registered before the
SEC as Consolidated Iron’s resident agent. Thus, the service of
summons to Consolidated Iron through Luzon Iron cannot be deemed a
service to a resident agent under the first mode of service.
(So, Consolidated Iron was a corporation not licensed to do business in
the Philippines but transacted business in the Philippines. what governs
here is the second paragraph)
(Plaintiff invoked the doctrine of piercing the veil of corporate fiction.
Because according to the Plaintiff even if Luzon Iron was not registered
these two are just actually one and the same entity- that Luzon Iron is a
mere conduit of Consolidated Iron. So, service upon Luzon Iron would
be binding against Consolidated Iron under this premise.)
Supreme Court said:
The allegation in the complaint must clearly show a connection between
the principal foreign corporation and its alleged agent corporation with
respect to the transaction in question as a general allegations of the
complaint taken as whole should be able to convey that the subsidiary
is but a business conduit of the principal or that by reason of fraud, their
separate and distinct personality should be disregarded. A whollyowned subsidiary is a distinct and separate entity from its mother
corporation and the aftc that the latter exercises control over the former
does not justify disregarding their separate personality. It is true that
under the TPAA, Consolidated Iron wielded great control over the
actions of Luzon Iron under the said agreement. This, nonetheless, does
not warrant the conclusion that Luzon Iron was a mere conduit of
Consolidated Iron.
Albeit the RTC bore emphasis on the alleged control exercised by Export
Bank upon its subsidiary E-Securities, “control, by itself, does not mean
that the controlled corporation is a mere instrumentality or a business
conduit of the mother company. Even control over the financial and
operational concerns of a subsidiary company does not by itself
call for disregarding its corporate fiction. There must be a
perpetuation of fraud behind the control in order to justify piercing the
veil of corporate fiction. Such fraudulent intent is lacking in this case.
In the case at bench, the complaint merely contained a general
statement that Luzon Iron was the resident agent of Consolidated Iron,
and that it was a wholly-owned subsidiary of the latter. There was no
allegation showing that Luzon Iron was merely a business conduit of
Consolidated Iron, or that the latter exercised control over the former to
the extent that their separate and distinct personalities should be set
aside. Thus, Luzon Iron cannot be deemed as an agent of Consolidated
Iron in connection with the third mode of service of summons.
Section 15. Service upon public corporations.- When the defendant
is the Republic of the Philippines, service may be effected on the
Solicitor General; in case of a province, city or municipality, or like
public corporations, service may be effected on its executive head,
or on such other officer or officers as the law or the court may
direct. (13a)
SERVICE UPON A PUBLIC CORPORATION
1. When the defendant is the Republic of the PhilippinesSolicitor General
2. When the defendant is a province- Governor
3. City- Mayor
4.
5.
Municipality- Mayor
Barangay- Mayor
Can substituted service of summons be employed under Section
15?
Note: the corporations mentioned under section 15 are instrumentalities
of the government that operate under a system of bureaucracy. So,
when the law, for example, talks about the Solicitor General, does not
refer to him in his personal capacity. Rather, it refers to the office of the
Solicitor General.
Service of Summons not to the SolGen himself but to his office.
Section 16. Service upon defendant whose identitu or whereabouts
are unknown.- in any action where the defendant is designated as
an unknown owner, or the like, or whenever his or her whereabouts
are unknown and cannot be ascertained by diligent inquiry, within
ninety (90) calendar days from the commencement of the action,
service may, by leave of court, be effected upon him or her by
publication in a newspaper of general circulation and in such
places and for such time as the court may order.
Any order granting such leave shall specify a reasonable time,
which shall not be less than sixty (60) calendar days after notice,
within which the defendant must answer. (14a)
To what kind of actions will Section 16 apply?
It is very clear under the rule “in any action” it could be an action in
personam, in rem, or quasi in rem. But the conditions here must be
complied with for you to effect service by publication under Section 16
“If the defendant is an unknown owner, or the like or whenever his or her
whereabouts are unknown and cannot be ascertained by diligent inquiry,
within 90 calendar days from the commencement of the action”- take
note of the time element
For example, 10 days pa lang, you should still look for that defendant
Take note again “with leave of court” meaning you have to file a motion
in court to allow you to effect service of summons by publication
Where should the service of summons be published? The rule says “in
a newspaper of general circulation and in such places and for such time
as the court may order.”
Wala giingon asa specifically, basta depende sa court.
In the order the court shall also specify as to within what period the
defendant shall answer but the rule says “which shall not be less than
60 calendar days after notice” so, it could be more than 60 days.
SERVICE UPON A DEFENDANT
WHEREABOUTS ARE UNKNOWN
WHOSE
IDENTITY
OR
General Rule: service of summons upon an individual defendant
must be made either by personal or substituted service, especially
where the action against him is an action in personam. Thus, summons
by publication cannot be effected upon the defendant in such action
EXPN: Section 16
Under previous rulings: Jurisdiction over the defendant in an action in
personam cannot be acquired by summons by publication
Santos vs PNOC
GR No 170943, September 23, 2008
Facts: Respondent PNOC filed a complaint for a sum of money against
Petitioner Santos Jr. in the RTC of Pasig branch 167. Personal service
of summons to petitioner failed because he could not be located in his
last known address despite earnest efforts to do so. Subsequently, on
respondent’s motion, the trial court allowed service of summons by
publication. (an action in personam.)
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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So, petitioner was served with summons by publication.
ISSUE: WON defendant can be served with summons by
publication where the action is in personam
RULING: Petitioner invokes the distinction between an action in rem and
action in personam and claims that substituted service may be availed
of only in an action in rem.
PETITIONER IS WRONG.
The in rem/ in personam distinction was significant under the old rule
(1969 rules) because it was silent as to the kind of action to which the
rule was applicable. Because of this silence, the Court limited the
application of the old rule to in rem actions only.
This has been changed. The present rule expressly states that it applies
“in any action where the defendant is designated as an unknown owner,
or the like, or whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry.” Thus, it now applies to any action,
whether in personam, in rem or quasi in rem.
Section 17. Extraterritorial service.- When the defendant does not
reside and is not found in the Philippines, and the action affects
the personal status of the plaintiff or relates to, or the subject of
which is, property within the Philippines, in which the defendant
has or claims a lien or interest, actual or contingent, or in which the
relief demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of the
defendant has been attached within the Philippines, service may,
by leave of court, be effected out of the Philippines by personal
service as under Section 6; or as provided for in international
conventions to which the Philippines is a party; or by publication
in a newspaper of general circulation in such places and for such
time as the court may order, in which case a copy of the summons
and order of the court shall be sent by registered mail to the last
known address of the defendant, or in any other manner the court
may deem sufficient. Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty (60) calendar
days after notice, within which the defendant must answer.
Defendant under Section 17: A NON RESIDENT DEFENDANT as
compared to the defendant under Section 16 who is a resident of the
Philippines whose identity is unknown or his whereabouts are unknown
EXTRATERRITORIAL SERVICE OF SUMMONS
The following requisites must be present:
a. The defendant is a non-resident
b. He is not found in the Philippines
c. The action against him is either in rem or quasi in rem (Jose
vs Boyon)
TAKE NOTE: Extraterritorial Service of Summons
•
does not apply to a defendant who is a resident of the
Philippines
•
Idoes not apply to an action in personam
EXPN: Section 18, Rule 14 (Residents temporarily out of the
Philippines) where service may, by leave of court, be effected out of the
Philippines as under the preceding section.” The preceding section is
Section 17 of Rule 14. Note also that Section 18 of Rule 14 refers to
“any action”, hence, either in rem or personam or quasi in rem
I have to reiterate ha, extra territorial service under section 17 of rule 14
does not apply in action in personam. It only applies in action in rem or
action quasi in rem, and provided again that the defendant is a nonresident. So here what are the specific actions na pwede ang extra
territorial service? These are actually specified under section 17.
The specific actions that will justify the application of extraterritorial
service of summons in actions involving a nonresident are:
2.
Actions which relate to, or the subject matter of which is
property within the Philippines, in which the defendant claims a lien or
interest, actual or contingent;
Example: Foreclosure of mortgage
3.
Actions in which the relief demanded consists, wholly or in
part, in excluding the defen-dant from an interest in property located in
the Phil-ippines; and
*Again here, we are talking of the property itself.
4.
When the defendant's property has been attached in the
Philippines.
What is attachment?
Attachment it’s a provisional remedy. Example: You are a creditor and
then you have a debtor and he is already absconding from the
Philippines. He is a non-resident, a resident abroad. Although wala sya
diri sa Philippines but he has several properties in the Philippines na
pwede nimo iattached. So what is the purpose of attachment. So that
when you eventually win in the litigation you can use those properties in
payment of the debt. Ireserve sila para sa imo so that in the case that
favorable ang decision sa imo sa court, dito nlang ka mokuha. Because
if the defendant is a non resident, you cannot compel him to pay the
debt. Compelling him to pay the debt is an action in personam. Na you’re
seeking to enforce personal liability against him, so dili na sya pwede.
Pero kung nay properties in the Philippines na naattach pwede na sya
because the judgment should be limited to the res.
Q: So what is common among these actions?
A: you don’t need to seek or enforce personal liability upon the
defendant because again the action is not an action in personam. The
actions mention here are action in rem and action quasi in rem. We
discuss before that in these kinds of actions it is enough that the court
obtain jurisdiction over the res.
Why is there a need to effect extra territorial service?
Actually the purpose of extra territorial service is not for the purpose of
obtaining jurisdiction over the person of the defendant because again
our court processes are limited only within the jurisdiction of the
Philippines. You cannot acquire jurisdiction over him even though
padalhan na sya ng summons, even if my publication etc. dili gud na sya
maka acquire jurisdiction but that is a requirement for the purpose of
complying with DUE PROCESS.
How does the court acquire jurisdiction over the res?
By the fact of filing of the complaint and when the property itself is
placed under the custody of the court or under the legal process of the
court, the court already acquires jurisdiction over the res. So here any
decision will be limited to the res.
So can you file an action in personam against a non-resident
defendant?
Of course not. Maybe you can file but eventually it will be dismissed
because you cannot validly acquire jurisdiction over the person of that
non-resident defendant. This was clarified already by the supreme court
in these cases.
KAWASAKI PORT SERVICE CORPORATION vs. AMORES,
199 SCRA 230
If the action is in personam, this mode of service will not be available.
There is no extraterritorial service of summons in an action in personam.
Hence, extraterritorial service upon a nonresident in an action for
injunction which is in personam is not proper
BANCO DO BRASIL vs. COURT OF APPEALS
333 SCRA 545 (2000)
Where the action is in personam, one brought against a person on the
basis of his personal liability, jurisdiction over the person of the
defendant is necessary for the court to validly try and decide a case.
However, when the defendant is a nonresident, personal service of
summons in the state is essential to the acquisition of jurisdiction over
him.
1.
Actions that affect the personal status of the plain-tiff;
Example: Action for declaration of nullity of marriage, action for adoption.
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*So sorry nlang ka if collection imong ifile then wla syang properties in
the Philippines and in the first place he is not a resident but resident
abroad you cannot effect extra territorial service of summon upon him.
EXCEPTION:
ASIAVEST LIMITED vs. COURT OF APPEALS
G.R. No. 128803, September 25, 1998
(Ma’am YY: This involves an action in personam. A non-resident was
served with summon through his wife. The wife here is a resident of the
Philippines. The wife here was a representative of the defendant or his
attorney-in-fact in a prior civil case filed in the court and the second case
were the service of summon was made was merely an offshoot of the
1st case. In this case, the SC allowed the extra territorial service even if
It was an action in personam. The service was made upon the wife.)
However, in an action in personam wherein the defendant is a nonresident who does not voluntarily submit himself to the authority of the
court, personal service of summons within the state is essential to the
acquisition of jurisdiction over her person. This method of service is
possible if such defendant is physically present in the country. If he is
not found therein, the court cannot acquire jurisdiction over his person
and therefore cannot validly try and decide the case against him. An
exception was laid down in Gemperle v. Schenker 19 SCRA 45 [1967].
wherein a non-resident was served with summons through his wife, who
was a resident of the Philippines and who was his representatives and
attorney-in-fact in a prior civil case filed by him; moreover, the second
case was a mere offshoot of the first case.
(Ma’am YY: To simplify this particular case. There were two cases here.
First case was an action for collection filed in Hongkong against Heras.
(Action in personam) It that particular case in Hong Kong how was
summon served to the defendant Heras? It was served to him following
the rules in extra territorial service under section 17. So it was served to
him in the Philippines at his QC residence in the Philippines. Pursuant
to that service of summon, the Hong Kong Court considered that it
acquired jurisdiction over the person of Heras. It proceeded with the
case, tried and a judgement was rendered against Heras. Of course si
Heras naa nman sya sa Philippines at the time. So how can you enforce
that judgment in Hong Kong?
Now there is the second case filed in the Philippines. For the
enforcement of foreign judgment. Meaning we’re referring to the
judgment in HK.)
We note that the residence of HERAS insofar as the action for the
enforcement of the Hong Kong court judgment is concerned, was never
in issue. He never challenged the service of summons on him through a
security guard in his Quezon City residence and through a lawyer in his
office in that city. In his Motion to Dismiss, he did not question the
jurisdiction of the Philippine court over his person on the ground of
invalid service of summons. What was in issue was his residence as far
as the Hong Kong suit was concerned. We therefore conclude that the
stipulated fact that HERAS is a resident of New Manila, Quezon City,
Philippines refers to his residence at the time jurisdiction over his person
was being sought by the Hong Kong court. With that stipulation of fact,
ASIAVEST cannot now claim that HERAS was a resident of Hong Kong
at the time.
(Ma’am YY: now diri sa case that was filed in the Philippines for the
enforcement of that foreign judgment, diri na gi raise ang validity ng HK
judgment. WHY? Because here it was contended by Heras that the
judgment of the HK court is not valid, there was no jurisdiction over his
person because there was no valid service of summon. So being a void
judgment it cannot enforce here in the Philippines. That was his
contention.)
Accordingly, since HERAS was not a resident of Hong Kong and the
action against him was, indisputably, one in personam, summons should
have been personally served on him in Hong Kong. The extraterritorial
service in the Philippines was therefore invalid and did not confer on the
Hong Kong court jurisdiction over his person. It follows that the Hong
Kong court judgment cannot be given force and effect here in the
Philippines for having been rendered without jurisdiction.
(Ma’am YY: Now ngano wla man jurisdiction over his person despite na
HK court followed the rules on extra territorial service of summon.
Pursuant to that service in person was made upon Heras in his QC
residence. Dili ba to sya valid? Well according to the SC, number 1 we
have to consider that the action filed in HK court was in personam. So
being an action in personam even if assuming that Heras was a nonresident of HK for that purpose. That extra territorial service will be valid
only if the action is in rem or quasi in rem. So it could not be applied in
an action in personam.)
Even assuming that HERAS was formerly a resident of Hong Kong, he
was no longer so in November 1984 when the extraterritorial service of
summons was attempted to be made on him. As declared by his
secretary, which statement was not disputed by ASIAVEST, HERAS left
Hong Kong in October 1984 for good. His absence in Hong Kong must
have been the reason why summons was not served on him therein;
thus, ASIAVEST was constrained to apply for leave to effect service in
the Philippines, and upon obtaining a favorable action on the matter, it
commissioned the Sycip Salazar Hernandez & Gatmaitan law firm to
serve the summons here in the Philippines.
(Maam YY: Now can we not also apply that rule under section 18 when
the resident is temporarily outside the Philippines? Di ba pwede na si
Heras was considered as a resident of HK who was temporarily absent
from HK because at that time he was in the Philippines. So service upon
him can also be made under the modes of extra territorial service . So
possible ba? The SC said, NO! because at that time also, Heras could
no longer be considered as a resident of HK who was temporarily absent
from HK. Why? Because at that time, although he was previously a
resident of HK but he had already establish his resident in the Ph. So he
was no longer considered a resident of HK who was temporarily outside
of HK. So you cannot effect upon him service of summon provided under
section 18 and under section 17. So dili valid ang summon kay Heras.)
In Brown v. Brown, the defendant was previously a resident of the
Philippines. Several days after a criminal action for concubinage was
filed against him, he abandoned the Philippines. Later, a proceeding
quasi in rem was instituted against him. Summons in the latter case was
served on the defendants attorney-in-fact at the latters address. The
Court held that under the facts of the case, it could not be said that the
defendant was still a resident of the Philippines because he ha[d]
escaped to his country and [was] therefore an absentee in the
Philippines. As such, he should have been summoned in the same
manner as one who does not reside and is not found in the Philippines.
(Ma’am YY: Pwede unta si Heras under section 17 rule 14 if he is to be
considered a non-resident who is out of HK but under this section ang
allowed lang is action in rem and quasi in rem but katong gifile against
Heras was in personam. So dili gihapon magamit ang extra territorial
service. Now sa section 18 considered gihapon ang mode ng extra
territorial service, pwede sya if you are resident of HK but you are
temprorily outside like in this case sa Philippines sya. However in this
case, there is this undisputed fact na Heras left HK not only temporarily
but for good. Thus section 18 cannot be applied here.)
Similarly, HERAS, who was also an absentee, should have been served
with summons in the same manner as a non-resident not found in Hong
Kong. Section 17, Rule 14 of the Rules of Court providing for
extraterritorial service will not apply because the suit against him was in
personam. Neither can we apply Section 18, which allows extraterritorial
service on a resident defendant who is temporarily absent from the
country, because even if HERAS be considered as a resident of Hong
Kong, the undisputed fact remains that he left Hong Kong not only
temporarily but for good.
MODES OF EXTRATERRITORIAL SERVICE
When the conditions for the applicability of extra-territorial service of
summons are complied with, the follow¬ing are the alternative modes of
extraterritorial service, all of which require a prior leave of court:
1. By personal service as provided for in Sec. 5 of Rule 14
governing service in person on defendant;
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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2.
3.
4.
As provided for in international conventions to which the
Philippines is a party;
By publication in a newspaper of general circulation in such
places and for such time as the court may order, in which case
a copy of the summons and the order of the court shall be sent
by registered mail to the last known address of the defendant;
or
In any manner the court may deem sufficient.
A. PERSONAL SERVICE
*As we said it is done abroad. Like for example nasa US ang defendant,
iserve sya personally abroad. So usually it is the sheriff, deputy sheriff,
officer of the court or other persons authorize by the court who has a
valid order who will serve the summon.
Upon motion and with leave of court, the court may allow summons to
be served outside the Philippines by personal service by sending the
sheriff to America. But it will be impractical and expensive.
*As we already discuss na even if summons was effected by service in
person abroad, still this will not have the effect of acquiring jurisdiction
over the person of the defendant. Again, our court processes are only
effective within the territorial jurisdiction of the Philippines. But that is a
requirement in order comply with the requirements of due process,
However, some decided cases state that the personal service will not
have the effect of acquiring jurisdiction over the nonresident defendant
even if the summons and the copy of the complaint are personally
received by him in the country where he may be found. This is because
of the rule that a nonresident defendant who refuses to come to the
country voluntarily remains beyond the personal processes of the court
which therefore, cannot acquire jurisdiction over him (Banco EspanolFilipino vs. Palanca, 37 Phil. 921; Perkins vs. Dizon, 69 Phil. 186).
Besides, in a proceeding in rem or quasi in rem, jurisdiction over the
person of the defendant is not a prerequisite to confer jurisdiction on the
court provided that the court acquires jurisdiction over the res.
Nevertheless, summons is served upon the defendant not for the
purpose of vesting the court with jurisdiction over the person of the
defendant but merely for satisfying the due process requirement
(Asiavest Limited vs. Court of Appeals, 296 SCRA 539).
B. COMPLIANCE WITH DUE PROCESS IS ACTUALLY THE
UNDERLYING PURPOSE OF ALL MODES OF EXTRATERRITORIAL
SERVICE.
*Actually just remember that, in all modes of extra territorial service of
summon. The purpose is not to acquire jurisdiction over the person of
the defendant but for compliance of due process.
C. AS PROVIDED FOR IN INTERNATIONAL CONVENTIONS TO
WHICH THE PHILIPPINES IS A PARTY
*This is a new provision.
D. BY PUBLICATION
(Requires: publication+registered mail)
The second manner is by publication which is similar to Section 16. The
court will order the summons and complaint to be published in a
newspaper of general circulation in such places and for such time as the
court may order. In which case a copy of the summons and order of the
court shall be sent by registered mail to the last known address of the
defendant. So, aside from publication, another copy will be sent by
registered mail to his last known address.
SAHAGUN vs. COURT OF APPEALS
198 SCRA 44
FACTS: Defendant is residing permanently in LA, this is an action in
rem. By leave of court, summons was served through publication by
ordering to be published for 3 weeks in the Philippine Daily Inquirer.
Another copy will be sent to his last address. Here defendant questioned
the publication. According to him, publication should be in a newspaper
in LA, not the Philippines.
ISSUE: Is the contention of the defendant correct?
HELD: NO, he is wrong because nothing in the law requires the
publication to be in a foreign newspaper. What is says is a newspaper
of general circulation in such places and for such time as the court may
order.
In fine, while there is no prohibition against availing of a foreign
newspaper in extraterritorial service of summons, neither should such
publication in a local newspaper of general circulation be altogether
interdicted since, after all, the rule specifically authorizes the same to be
made in such places and for such time as the court concerned may
order. If the trial court should be required to resort to publication in a
foreign newspaper it must have at hand not only the name and
availability of such newspaper or periodical. we can very well anticipate
the plethora of problems that would arise if the same question on
nonresident defendants is replicated in the other countries of the world.
Service of summons on a nonresident defendant who is not found in the
country is required, not for purposes of physically acquiring jurisdiction
over his person but simply in pursuance of the requirements of fair play,
so that he may be informed of the pendency of the action against him
and the possibility that property in the Philippines belonging to him or in
which he has an interest may be subjected to a judgment in favor of a
resident, and that he may thereby be accorded an opportunity to defend
in the action, if he be so minded. The only relief that may be granted in
such an action against such a nonresident defendant, who does not
choose to submit himself to the jurisdiction of the Philippine court, is
limited to the res
YU vs. LIM YU
(G.R. NO. 200072, June 20, 2016)
FACTS:
*This is the case involving declaration of nullity of marriage. The
defendant here was a non-resident, she was a resident of US, although
she was formerly in the Philippines but already transferred to the US. If
you notice in the action for nullity of marriage, it involves the personal
status of the plaintiff. So possible diri ang extra territorial service. So
here there was a publication. Philip, he plaintiff comply with the
requirement of publication. Ang question nlang diri was, diba in
publication, there should be an accompanying registered mail
addressed to the last known address of the defendant. However,
according to the defendant, there is no proper service of summon
because ang place were the order and copy of the summon were not
her last known address. It was sent to their conjugal home which is not
her last known address.
Claiming to be completely unaware of the proceedings before the RTC
of Balayan, Batangas, nullifying her marriage with Philip on the ground
of her psychological incapacity, Viveca filed a Petition for Annulment of
Judgment before the CA seeking to annul the Decision dated August 20,
2008 of said court. According to Viveca, jurisdiction over her person did
not properly vest since she was not duly served with Summons. She
alleged that she was deprived of her right to due process when Philip
fraudulently declared that her address upon which she may be duly
summoned was still at their conjugal home, when he clearly knew that
she had long left said address for the United States of America. Viveca
likewise maintained that had Philip complied with the legal requirements
for an effective service of summons by publication, she would have been
able to rightly participate in the proceedings before the Batangas court.
According to Philip, as far as he was concerned, Viveca's last known
address was their conjugal home. This is because the addresses
supplied in the proceedings of the Legal Separation case before the
RTC of Pasig City were merely temporary in nature. Philip recalled that
when Viveca left their conjugal abode on August 24, 1993, she
temporarily stayed at her parents' house in Greenhills, Mandaluyong, for
less than two months then, thereafter, stayed at her temporary residence
at Domingo Street, Cubao, Quezon City, in October 1993. Considering
that said addresses were merely temporary, Philip claims that he should
not be faulted for using their conjugal abode as Viveca's "last known
address." According to him, what is mandated by the rules as the
defendant's "last known address" is his or her last known permanent
address, and certainly not one of temporary nature.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
Maliones, Nono, Reyes DM, Reyes RA, Rojo, Sambrano, Tan, Verana, Villavicencio || Recordings from Lexa Gador
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Philip fervently asserts the propriety of their conjugal home address as
Viveca's "last known address," well within the true meaning and intent
of the rules.
HELD:
But as borne by the records of the instant case, not only is he mistaken,
factual considerations herein belie his claims of good faith. First and
foremost, it is undisputed that the parties herein are also parties in a
Legal Separation case, previously filed by Viveca way back in 1994.
There was, in said case, a disclosure of their basic personal information,
which customarily includes their respective local addresses, wherein
they may be served with court papers. In fact, as pointed out by the
appellate court, Philip knew that Viveca had already left their conjugal
home and moved to a different local address for purposes of the
pendency of the Legal Separation case, as shown by his stipulation in
his Amended Answer with Counterclaim that "after abandoning the
conjugal abode on 24 August 1993, petitioner resided at her parent's
house in Richbelt Condominium, Annapolis Street, Greenhills,
Mandaluyong, Metro Manila, until she moved to her present address in
October 1993."
On the other hand, Abelardo argues that jurisdiction over the person
of a non-resident defendant in an action in rem or quasi in rem is not
necessary. The trial and appellate courts made a clear factual finding
that there was proper summons by publication effected through the
Department of Foreign Affairs as directed by the trial court. Thus, the
trial court acquired jurisdiction to render the decision declaring the
marriage a nullity.
The Supreme Court reiterated that at the time Abelardo filed the
PETITION FOR NULLITY OF THE MARRIAGE in 1991, Margarita
was residing in the United States. She left the Philippines in 1982
together with her two children. The trial court considered Margarita a
non-resident defendant who is not found in the Philippines. Since the
petition affects the personal status of the plaintiff, the trial court
authorized extraterritorial service of summons under Section 15,
Rule 14 of the Rules of Court. The term "personal status" includes
family relations, particularly the relations between husband and wife.
COMMENT: So, extraterritorial service of summons would be
allowed in here. But again, the question here is was there proper
service of summons? Katong mode of service ba was one of the
allowed modes for an extraterritorial service?
Ballos
RULING: Yes.
Thus, Philip cannot be allowed to feign ignorance to the fact that Viveca
had already intentionally abandoned their conjugal abode and that of all
the addresses that Viveca resided at, their conjugal home in Horizon
Condominium is her least recent address. In fact, it may very well be
considered as the address she is least likely to be found considering the
circumstances in which she left the same. Note that from the very
beginning of the Legal Separation case in 1994, all the way up until the
promulgation by the Pasig RTC of its decision thereon in 2009, there is
no showing that Viveca had ever received any document in relation to
said case, nor is there any proof that Philip had ever sent any pertinent
file to Viveca, at the conjugal address. There is, therefore, no reason for
Philip to assume, in good faith, that said address is in truth and in fact
Viveca's "last known address" at which she may receive summons. His
contention that the rules require the defendant's "last known address" to
be of a permanent, and not of a temporary nature, has no basis in law
or jurisprudence.
COMMENT: So, the SC said that Philip cannot be allowed to feign
ignorance to the fact that Viveca had already intentionally abandoned
their conjugal abode and it is, in fact, very unlikely that Viveca would still
be residing in that place. It’s the last place on earth where she would be
residing.
So, naturally, di gyud to niya ma-receive ang notices, ang order of the
court, the summons sent by registered mail to that address where the
conjugal abode was located.
She actually did not receive any pertinent file in relation to this case for
declaration of nullity. So, there is no reason for Philip to assume in good
faith that said address is in truth and in fact Viveca’s last known address.
His contention that the rules require the defendant's "last known
address" to be of a permanent, and not of a temporary nature, has no
basis in law or jurisprudence.
3RD MODE OF EXTRATERRITORIAL SERVICE – ANY OTHER
MANNER THE COURT MAY DEEM SUFFICIENT
ROMUALDEZ-LICAROS v. LICAROS
G.R. No. 150656. April 29, 2003.
Margarita insists that the trial court never acquired jurisdiction over
her person in the petition for declaration of nullity of marriage since
she was never validly served with summons. Neither did she appear
in court to submit voluntarily to its jurisdiction.
COMMENT: Here, the defendant was concededly a non-resident of
the Philippines. So, extraterritorial service was resorted but what
mode?
In these instances, extraterritorial service of summons may be
effected under any of three modes:
(1) by personal service out of the country, with leave of court;
(2) by publication and sending a copy of the summons and order of
the court by registered mail to the defendant’s last known address,
also with leave of court; or
(3) by any other means the judge may consider sufficient.
The Process Server’s Return of 15 July 1991 shows that the
summons addressed to Margarita together with the complaint and its
annexes were sent by mail to the Department of Foreign Affairs with
acknowledgment of receipt. The Process Server’s certificate of
service of summons is prima facie evidence of the facts as set out in
the certificate. Before proceeding to declare the marriage between
Margarita and Abelardo null and void, the trial court stated in its
Decision dated 8 November 1991 that "compliance with the
jurisdictional requirements have been duly established." We hold
that delivery to the Department of Foreign Affairs was sufficient
compliance with the rule. After all, this is exactly what the trial court
required and considered as sufficient to effect service of summons
under the third mode of extraterritorial service pursuant to Section 15
of Rule 14.
COMMENT: So, what is important here is you just follow exactly what
was the manner mentioned in the order of the court as to how service
of summons should be served.
CARIAGA v. MALAYA
G.R. No. L-48375. August 13, 1986.
FACTS: Ana Almonte Cariaga Soon filed in her behalf and in behalf
of her minor daughter Carolina, an action for (1) Annulment of a Deed
of Extra-Judicial Partition of Real Property, (2) Cancellation of
Transfer Certificate of Title (TCT), (3) Recovery of Real Property with
damages. All defendants in said action filed their answer with
counterclaim with the exception of defendants (petitioners herein)
Jose C. Cariaga Jr. and Marieta Cariaga-Celis who were both
residing abroad and were not served with summons. The lower court
upon motion of plaintiffs granted them leave to effect extra-territorial
service of summons upon said defendants pursuant to Secs. 7, 17
and 18 of Rule 14 of the New Rules of Court. Accordingly,
summonses with copies of the complaint were served to the
defendants by registered mail abroad (Guam and U.S.A.) by the
Clerk of Court at the instance of plaintiffs.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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Civil Procedure Second Exam
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On August 30, 1977, defendants, who are residents of the Philippines
filed a motion to set aside the said summons and to declare the
service of summons abroad by registered mail as null and void, it
being allegedly irregular and unauthorized under the provisions of
Rule 14 of the Rules of Court (Annex D ") to which motion plaintiffs
filed their opposition. On March 31, 1978, defendants (petitioner
herein), residing abroad, by special appearance and thru counsel
filed their motion to consider the service of summons upon, them by
registered mail as null and void.
ISSUE: Whether the service of summons by registered mail upon
defendants in the case at bar is one which is contemplated within the
principles laid down in the provisions of the Rules of Court.
RULING: In any of such four cases, the service of summons may,
with leave of court, be effected out of the Philippines in three ways:
(1) by personal service; (2) by publication in a newspaper of general
circulation in such places and for such time as the court may order,
in which case a copy of the summons and order of the court should
be sent by registered mail to the last known address of the defendant;
and (3) in any other manner which the court may deem sufficient.
The third mode of extraterritorial service of summons was
substantially complied with in this case. (De Midgely v.
Fernandos).
There is no question that the requirement of due process has been
met as shown by the fact that defendants actually received the
summonses and copies of the complaint and as evidenced by the
Registry Return Cards marked as Annex A-1 (page 56-Record) and
Annex B-1. Whatever defect there may have been in the service of
summons was aptly corrected by the court a quo in its assailed order
dated January 16, 1978, which gave said defendants ninety (90)
days from receipt of order within which to file their responsive
pleadings. Defendants have no reason to complain that they were
unaware of the action filed against them or claim that they were
denied due process.
Even if it was by registered mail, it falls under the mode “in any other
manner which the court may deem sufficient.”
Section 18. Residents temporarily out of the Philippines. —
When any action is commenced against a defendant who
ordinarily resides within the Philippines, but who is temporarily
out of it, service may, by leave of court, be also effected out of
the Philippines, as under the preceding Section.
Under Section 18, we have here a defendant who is a resident of the
Philippines. However, he is temporarily out of the Philippines, but he has
not abandoned his residence in the Philippines.
Q: So, how is service of summons effective upon these defendants?
A: Under Section 18, it says “in the same manner as under the
preceding section (Sec. 17).”
Take note, under Section 18, it says “when any action.” So, it could be
an action in rem, action in personam, or action quasi in rem.
MODES
This means that the service of summons may be any of the following
modes:
a) By personal service as provided for in Sec. 5 of Rule 14
governing service in person on defendant;
b)
As provided for in international conventions to which the
Philippines is a party;
c)
By publication in a newspaper of general circulation in such
places and for such time as the court may order, in which case
a copy of the summons and order of the court shall be sent by
registered mail to the last known address of the defendant; or
d)
In any other manner the court may deem sufficient.
Take note that under Sec. 18, we are talking of a resident defendant.
So, he is a resident of the Philippines but temporarily, for example, nag
vacation lang siya abroad. So, he is temporarily out of the Philippines.
Again, Section 18 says na extraterritorial service – the 4 modes of
service under Sec. 17 can also be used.
We discussed before in Sec. 5 na as a priority, it should be service in
person. But substituted service may also be done.
Q: For example, on 3 different occasions or attempts, wala. Wala naserve maybe because he went abroad. Nagvacation, so substituted
service. Can we do that in case of a resident defendant who is
temporarily out of the Philippines?
A: Yes, it does not preclude substituted service.
SUBSTITUTED SERVICE
A resident defendant temporarily outside of the Philippines may still be
served through the substituted service under Sec. 7 (now Sec. 6) of Rule
14. This is because even if he is abroad, he has a residence in the
Philippines or a place of business and because certainly, he cannot be
served within a reasonable time because of his absence in the
Philippines, this absence would now trigger the application of the rule on
substituted service of summons (Montalban vs. Maximo, 22 SCRA
1070).
In a suit in personam, against a resident of the Philippines temporarily
absent from the country, the defendant may be served by substituted
service because a man temporarily out of the country leaves a definite
place of residence or a dwelling where he is bound to return. He also
leaves his affairs to someone who protects his interests and
communicates with him on matters affecting his affairs or business
(Montalban vs. Maximo, 22 SCRA 1070; Valmonte vs. Court of Appeals,
252 SCRA 92).
If the defendant is out of the country, he cannot be expectedly served
within a reasonable time. The fact that "for justifiable causes, the
defendant cannot be served within a reasonable time," constitutes the
operative fact that triggers the application of substituted service.
COMMENT: So, the SC also clarified that substituted service, in case of
a resident temporarily absent from the country, it is in addition to the
service of summons authorized by Sec. 17 of Rule 14.
PAVLOW vs. MENDENILLA
G.R. No. 181489, April 19, 2017
Section 1 of A.M. No. 04-10-11-SC expressly states that while it
governs petitions for the issuance of protection orders under the AntiVAWC Law, "[t]he Rules of Court shall apply suppletorily." In the
silence of A.M. No. 04-10-11-SC, service of summons - the means
established by the 1997 Rules of Civil Procedure for informing
defendants and/or respondents of the filing of adverse actions, and
for the acquisition of jurisdiction over their persons - remains
efficacious.
Petitioner, though an American citizen, was admittedly a resident of
the Philippines as of September 7, 2005, the date when Deputy
Sheriff Velasco attempted to personally serve summons on him. On
September 7, 2005, however, he was not in the Philippines. It was
this circumstance which, according to the Sheriff's Report, impelled
substituted service of summons through Tolentino.
COMMENT: So, the defendant here was an American citizen but he
was a resident of the Philippines at the time when summons was
served to him. Here, as of the time when the sheriff tried or attempted
to personally serve summons upon the defendant, the defendant was
not in the Philippines. So, it was this circumstance which compelled
the sheriff to serve by substituted service through a person named
Tolentino.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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Civil Procedure Second Exam
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Rule 14, Section 6 (now section 5) of the 1997 Rules of Civil
Procedure clearly articulates a preference for personal service of
summons.
Rule 14, Section 6 recognizes two (2) alternative ways through which
personal service may be effected: first, by actually handing summons
to the defendant, which presupposes the defendant’s willingness to
accept the summons; and second, by mere tender, if the defendant
refuses to accept.
If personal service is impracticable within a reasonable time,
substituted service may be resorted to in lieu of personal service.
Rule 14, Section 7 states:
Section 7. Substituted service. – If, for justifiable causes,
the defendant cannot be served within a reasonable time
as provided in the preceding section, service may be
effected (a) by leaving copies of the summons at the
defendant’s residence with some person of suitable age
and discretion then residing therein, or (b) by leaving the
copies at defendant’s office or regular place of business
with some competent person in charge thereof.
In the case of residents who are temporarily not in the Philippines,
another alternative means for serving summons is through
extraterritorial service.
Section 15. Extraterritorial service. — When the defendant
does not reside and is not found in the Philippines, and the
action affects the personal status of the plaintiff or relates
to, or the subject of which is, property within the
Philippines, in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of the
defendant has been attached within the Philippines,
service may, by leave of court, be effected out of the
Philippines by personal service as under Section 6; or by
publication in a newspaper of general circulation in such
places and for such time as the court may order, in which
case a copy of the summons and order of the court shall
be sent by registered mail to the last known address of the
defendant, or in any other manner the court may deem
sufficient. Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty (60)
days after notice, within which the defendant must answer.
COMMENT: Under the amended rules, this would be under Section
18 of Rule 14 in reference to Section 17 of Rule 14.
Jurisprudence has long settled that, with respect to residents
temporarily out of the Philippines, the availability of extraterritorial
services does not preclude substituted service. Resort to substituted
service has long been held to be fair, reasonable and just. This Court
has noted that a contrary, restrictive view is that which defeats the
ends of justice. It has been emphasized that residents who
temporarily leave their residence are responsible for ensuring that
their affairs are in order, and that, upon their return, they shall attend
to exigencies that may have arisen.
COMMENT: So, in addition to extraterritorial service, you can
actually effect also substituted service. Of course, service in person
would be impossible in this case because we’re talking of a
defendant who is out of the Philippines in the meantime.
Q: When you file a case, are you required to know kung asa gyud
exactly ang defendant at the time when you are filing the suit?
A: The burden on a plaintiff is not to be enlarged with a restrictive
construction as desired by defendant here. Under the rules, a
plaintiff, in the initial stage of suit, is merely required to know the
defendant's "dwelling house or residence" or his "office or regular
place of business" — and no more. He is not asked to investigate
where a resident defendant actually is, at the precise moment of filing
suit. Once defendant's dwelling house or residence or office or
regular place of business is known, he can expect valid service of
summons to be made on "some person of suitable age and discretion
then residing" in defendant's dwelling house or residence, or on
"some competent person in charge" of his office or regular place of
business. By the terms of the law, plaintiff is not even duty-bound to
see to it that the person upon whom service was actually made
delivers the summons to defendant or informs him about it. The law
presumes that for him.
It is immaterial then that defendant does not in fact receive actual
notice. This will not affect the validity of the service. Accordingly, the
defendant may be charged by a judgment in personam as a result of
legal proceedings upon a method of service which is not personal,
"which in fact may not become actual notice to him," and which may
be accomplished in his lawful absence from the country. For, the
rules do not require that papers be served on defendant personally
or a showing that the papers were delivered to defendant by the
person with whom they were left.
COMMENT: As long as the conditions for substituted service were
complied with, di na nato na problema kung katong gibilinan didto,
wala diay niya gihatag sa defendant.
Aranjuez
Reasons for the views just expressed are not wanting. A man
temporarily absent from this country leaves a definite place of residence,
a dwelling where he lives, a local base, so to speak, to which any inquiry
about him may be directed and where he is bound to return. Where one
temporarily absents himself, he leaves his affairs in the hands of one
who may be reasonably expected to act in his place and stead; to do all
that is necessary to protect his interests; and to communicate with him
from time to time any incident of importance that may affect him or his
business or his affairs. It is usual for such a man to leave at his home or
with his business associates information as to where he may be
contacted in the event a question that affects him crops up. If he does
not do what is expected of him, and a case comes up in court against
him, he cannot in justice raise his voice and say that he is not subject to
the processes of our courts. He cannot stop a suit from, being file against
him upon a claim that he cannot be summoned at his dwelling house or
residence or his office or regular place of business.
Comment: The law presumes that when you temporarily absent yourself
from your residence, you will leave your affairs to someone who is
expected to act in your place and who will protect your interest. You
cannot stop a suit from being filed for the reason that you did not leave
someone who is responsible enough to receive communications on your
behalf.
Section 19. Leave of court. — Any application to the court under
this Rule for leave to effect service in any manner for which leave
of court is necessary shall be made by motion in writing, supported
by affidavit of the plaintiff or some person on his behalf, setting
forth the grounds for the application. (17a)
Comment: The motion should be in writing not oral, and supported by
an affidavit.
Section 20. Return. — Within thirty (30) calendar days from
issuance of summons by the clerk of court and receipt thereof, the
sheriff or process server, or person authorized by the court, shall
complete its service. Within five (5) calendar days from service of
summons, the server shall file with the court and serve a copy of
the return to the plaintiff’s counsel, personally, by registered mail,
or by electronic means authorized by the Rules. Should substituted
service have been effected, the return shall state the following:
(1)The impossibility of prompt personal service within a period of
thirty (30) calendar days from issue and receipt of summons;
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(2)The date and time of the three (3) attempts on at least (2) two
different dates to cause personal service and the details of the
inquiries made to locate the defendant residing thereat; and
(3)The name of the person at least eighteen (18) years of age and
of sufficient discretion residing thereat, name of competent
person in charge of the defendant’s office or regular place of
business, or name of the officer of the homeowners’ association or
condominium corporation or its chief security officer in charge of
the community or building where the defendant may be found. (4a)
Comment: Please remember within what period should the sheriff,
process server or person authorized by the court shall complete its
service.
Once the summons has been served, the server shall file with the court
and serve a copy of the return to the counsel.
The SC said that based on Return which detailed the circumstances
surrounding the service of summons, it showed that the requirements
for a valid substituted service of summons were substantially complied
with.
The pertinent portion of the Return states:
Substituted service of summons was resorted to by leaving the copy of
the Alias Summons at the company’s office through its employee, Ms.
Lorie Fernandez, however she refused to acknowledge receipt of the
process.
Based on the facts, there was a deliberate plan of Carson’s for its
officers not to receive the Summons. It is a legal maneuver that is in
derogation of the Rules on Summons. We cannot Tolerate that.
This is now incorporated in Section 20 (3)
Why do you need to serve a copy of return to the plaintiff’s counsel? So
that the plaintiff’s counsel would actually know when the defendant
actually received the summons, and from that time the plaintiff’s counsel
would know if the defendant filed the answer within the reglementary
period.
Examples: If the sheriff was able to serve a copy of the summons, he
may state in the return:
“Respectfully returned to the court with the information that defendant
was personally served with summons on this date and on this time as
shown by his signature on the face of this original copy”
If the sheriff was not able to serve a copy of the summons, he may state
in the return:
“Respectfully returned to the court with the information that defendant
cannot be served with the summons because the defendant had already
moved from the address indicated in the complaint and therefore he
cannot be located.”
Comment: After this, you will still give a copy to the court and the
plaintiff’s counsel. So that the plaintiff’s counsel can make the necessary
remedy like motion for leave to instead effect service by publication
because we now have a case where the whereabout of the defendant is
now unknown.
Purpoose of Return – There must be a return because that will
determine when the period to file an answer will start to run.
A mere general claim or statement in the Sheriff’s Return that the server
had made “several attempts” to serve the summons, without making
reference to the details of facts and circumstances surrounding such
attempts, does not comply with the rules on substituted service
(MANOTOC vs. COURT OF APPEALS, 499 SCRA 21) A return which
merely states the alleged whereabouts of the defendants without
indicating that such information was verified and without specifying the
efforts exerted to serve the summons is not enough for compliance. So
is a mere general statement that such efforts were made (JOSE vs.
BOYON, 414 SCRA 216)
Comment: Section 20 of Rule 14 now incorporate the rulings of some
Landmark cases like the case of Manotoc v CA. You should specify that
you made at least 3 attempts.
Carson Realty vs. Red Robin Security
G.R. No. 225035, February 8, 2017
Monina C. Santos filed a complaint for Sum of Money and Damages
against Carson. As per the Officer’s Return dated April 12, 2007 of
Process Server Jechonias F. Pajila, Jr. a Copy of the summons dated
April 11, 2007, together with the complaint and its annexes, was served
upon Carson at its business address at Unit 601 Prestige Tower
Condominium, Emerald Avenue, Ortigas Center, Pasig City, through its
“corporate secretary,” Precilla S. Serrano.
The sheriff must describe in the Return of Summons the facts and
circumstances surrounding the attempted personal service. The efforts
made to find the defendant and the reasons behind the failure must be
clearly narrated in detail in the Return. The date and time of the attempts
on personal service, the inquiries made to locate the defendant, the
name/s of the occupants of the alleged residence or house of defendant
and all other acts done, though futile, to serve the summons must be
specified in the Return to justify substituted service.
The form on Sheriffs Return of Summons on Substituted Service
prescribed in the Handbook for Sheriffs published by the Philippine
Judicial Academy requires a narration of the efforts made to find the
defendant personally and the fact of failure. Supreme Court
Administrative Circular No.5 dated November 9, 1989 requires that
“impossibility of prompt service should be shown by stating the efforts
made to find the defendant personally and the failure of such efforts,”
which should be made in the proof of service.
Indeed, the Return established the impossibility of personal service to
Carson’s officers, as shown by the efforts made by Pajila to serve the
September 8, 2008 alias summons on Carson’s President/General
Manager.
In fact several attempts were made on October 2, October 16, October
27 and October 28, 2008, but to no avail.
On his fourth and final attempt, Pajila served the summons on
Fernandez, Carson’s receptionist, due to the unavailability and difficulty
to locate the company’s corporate officers.
The facts now show that the responsible officers did not intend to receive
the alias Summons through the substituted service. The summons is
considered validly served.
De Pedro vs. Romasan Development Corp.
G.R. No. 194751, November 26, 2014
Regardless of the type of action – whether it is in personam, in rem or
quasi in rem – the preferred mode of service of summons is personal
service. To avail themselves of the substituted service, courts must rely
on a detailed enumeration of the sheriff’s actions and a showing that the
defendant cannot be served despite diligent and reasonable efforts. The
presumption of regularity, and on this basis, the court may allow
substituted service. Should the sheriff’s return be wanting of these
details, substituted service will be irregular if no other evidence of the
efforts to serve summons was presented. Failure to serve summons will
mean that the court failed to acquire jurisdiction over the person of the
defendant.
This case originated from separate complaints for nullification of free
patent and original certificates of title, filed against several defendants.
One of the defendants is Aurora De Pedro. The complaints were filed by
respondent Romasan Development Corp. before the RTC of Antipolo
City on July 7, 1998.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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Petitioner argued that the trial court did not acquire jurisdiction over her
person because she was not properly served with summons. After the
summons had returned unserved to petitioner because “ there was no
person in the said given address.” The trial court allowed the publication
of the summons to petitioner.
The action involved here is an action for annulment of certificate of title
which is quasi in rem. It is not an action “against a person on the basis
of his personal liability,” but an action that subjects a person’s interest
over a property to a burden. Petitioner is entitled to due process with
respect to that interest. The court does not have competence or authority
to proceed with an action for annulment of certificate of title without
giving the person, in whose name the certificate was issued all the
opportunities to be heard.
Hence, regardless of the nature of the action, proper service of
summons is imperative. A decision rendered without proper service of
summons suffers a defect in jurisdiction. Respondent’s institution of a
proceeding for annulment of petitioner’s certificate of title is sufficient to
vest the court with jurisdiction over the res, but it is not sufficient for the
court to proceed with the case with authority and competence.
Other modes of serving summons may be done when justified. Service
of Summons through other modes will not be effective without showing
serious attempts to serve summons through personal service. Thus, the
rules allow summons to be served by substituted service only for
justifiable causes and if the defendant or respondent cannot be served
within reasonable. Substituted service is effected “ (a) by leaving copies
of the summons at the defendant’s residence with some person of
suitable age and discretion then residing therein, or (b) by leaving the
copies at the defendant’s office or regular place of business with some
competent person in charge thereof.
under the circumstances or that service could no longer be made within
reasonable time.
The lack of any demonstration of effort on the part of the sheriff to serve
the summons personally upon petitioner is a deviation from this court’s
previous rulings that personal service is the preferred mode of service,
and that the sheriff must narrate in his or her return the efforts made to
effect personal service. Thus, the sheriff’s return in this case was
defective. No substituted service or service by publication will be
allowed based on such defective return.
The issuance of a judgment without proper service of summons is
a violation of due process rights. The judgment, therefore, suffers a
jurisdictional defect. The case would have been dismissible had the
petitioner learned about the case while trial was pending. At the time, a
motion to dismiss would have been proper. After the trial, the case would
have been the proper subject of an action for annulment of judgment.
Comment: So, this return according to Supreme Court was actually
defective. Hence, no substituted service or service by publication will be
allowed based on such defective return. The issuance of a judgment
without proper service of summons is also a violation of due process
rights. So, it would be proper to annul the judgment in that case.
Section 21. Proof of service.-The proof of service of a summons
shall be made in writing by the server and shall set forth the
manner, place, and date of service; shall specify any papers
which have been served with the process and the name of the
person who received the same; and shall be sworn to when
made by a person other than a sheriff or his or her deputy.
If summons was served by electronic mail, a printout of said email, with a copy of the summons as served, and the affidavit of
the person mailing, shall constitute as proof of service. (18a)
Service of summons by publication in a newspaper of general circulation
is allowed when the defendant or respondent is allowed when the
defendant or respondent is designated as an unknown owner or if his or
her whereabouts are “unknown and cannot be ascertained by diligent
inquiry.” It may only be effected after unsuccessful attempts to serve the
summons personally, and after diligent inquiry as to the defendant’s or
respondent’s whereabouts.
After the completion of the service, a proof of service is required to be
filed by the server of the summons. The proof of service of summons
shall be made in writing by the server and shall set forth the manner,
place, and date of service; shall specify any papers which have been
served with the process and the name of the person who received the
same; and shall be sworn to when made by a person other than a sheriff
or his deputy.
Service of summons by extra territorial service is allowed after leave of
court when the defendant or respondent does not reside or is not found
in the country or is temporarily out of the country.
Comment: So, aside from return ha, there’s also what we call proof of
service. It is to be filed by the server of the summons. It shall be made
in writing by the server and shall set forth the manner, place, and date
of service. It shall specify any papers which have been served with the
process and the name of the person who received the same; and shall
be sworn to when made by a person other than a sheriff or his or her
deputy. In other words, where the server is not the sheriff or the deputy
sheriff, an affidavit is required. Why? Because for servers other than
two mentioned, there is NO PRESUMPTION OF REGULARITY. So,
there must be a sworn statement under the pain of perjury.
In this case, summons was served by publication. A look into the content
of the sheriff’s return will determine if the circumstances warranted the
deviation from the rule preferring personal service of summons over
other modes of service. The sheriff’s return must contain a narration of
the circumstances showing efforts to personally serve summons to the
defendants or respondents and the impossibility of personal service of
summons.
Officer’s Return
I HEREBY CERTIFY that on the 15th and 18th day of February, 1999, I
have served a copy of the summons with complaint and annexes dated
January 29,1999 issued by the RTC, Fourth Judicial Region, Branch
74, Antipolo City upon defendants in the above-entitled case on the
following, to wit;
1. AURORA N. DE PEDRO – Unserved for the reason that according
to the messenger of Post Office of Pasig there is no person in the said
address.
Bejano
This return shows no detail of the sheriff’s effort to serve the summons
personally upon petitioner. The summons was unserved only because
the post office messenger stated that there was no “Aurora N. De Pedro”
in the service address. The return did not show that the sheriff attempted
to locate the petitioner's whereabouts. Moreover, it cannot be concluded
based on the return that personal service was rendered impossible
When is an affidavit required?
Section 22. Proof of service by publication. - If the service has
been made by publication, service may be proved by the
affidavit of the publisher, editor, business or advertising
manager, to which affidavit a copy of the publication shall be
attached and by an affidavit showing the deposit of a copy of
the summons and order for publication in the post office,
postage prepaid, directed to the defendant by registered mail to
his or her last known address. (19a)
Comment: Now if the service is made by publication, so there’s still a
need for proof of service also by publication. We have section 22. There
is a need for an affidavit of the publisher, editor, business, or advertising
manager. Then, a copy of the publication also shall be attached. So
katong specific newspaper for example, the entire newspaper of course
containing that page where the summons by publication was made. And
also an affidavit showing the deposit of a copy of the summons and order
for publication in the post office directed to the defendant by registered
mail. So, duwa ka affidavits here:
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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Civil Procedure Second Exam
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1.)
Affidavit of the publisher as to the publication; and
2.)
Affidavit showing that you really deposited a copy of the
summons and the order of publication in the post office
(affidavit of mailing, affidavit of service).
Let’s go to section 23. This is very important also because this is a
HUGE departure from the previous rule. The effect of voluntary
appearance.
Section 23. Voluntary appearance.- The defendant’s voluntary
appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss on other
grounds aside from lack of jurisdiction over the person of the
defendant shall be deemed a voluntary appearance. (20a)
Comment: Please remember that there are two ways by which the court
acquires jurisdiction over the defendant:
1.)
2.)
Valid service of summons upon the defendant; and
Even if the service of summons is defective, but there was
Voluntary Appearance by the defendant and because of that
the defendant is deemed to have voluntarily subjected himself
or herself to the jurisdiction of the court.
Voluntary appearance is to appear gratis or to enter an appearance in
an action without requiring or awaiting the service of summons or other
process.
service of summons which the defendant could have raised as an
affirmative defense in the answer?
A: Of course, if you are the defendant you can specify that your
appearance is a SPECIAL APPEARANCE or a CONDITIONAL
APPEARANCE na you still reserve the right to raise the question of lack
of jurisdiction over the person of the defendant in your answer. Please
remember that before, lack of jurisdiction over the person of the
defendant, as discussed, was a ground for a motion to dismiss. So even
before you file the answer, you file a motion to dismiss containing for
example lack of jurisdiction over the person of the defendant. But, under
the amended rules, wala naman na siya. Lack of jurisdiction over the
person of the defendant is not a ground for a motion to dismiss but it can
be raised as an affirmative defense in the answer.
Now, as discussed in the case of Philippine Commercial
International Bank vs. Spouses Dy, G.R. No. 171137, June 5,
2009.
Insofar as voluntary appearance is concerned, the Supreme Court
said:
Preliminarily, jurisdiction over the defendant in a civil case is acquired
either by the coercive power of legal processes exerted over his
person, or his voluntary appearance in court. As a general
proposition, one who seeks an affirmative relief is deemed to
have submitted to the jurisdiction of the court.
Voluntary appearance is not necessarily an answer. You don’t make a
voluntary appearance just by FILING AN ANSWER.
Q: So what are those instances when the defendant is deemed to have
sought affirmative relief and therefore have submitted to the
jurisdiction of the court?
You can also be considered to have voluntarily appeared by filing
motions like a motion for an extension of time to file an answer, or a
motion for bill of particulars - that is asking a relief from the court,
indicative of submission to the jurisdiction of the court.
In the case of Rapid City Realty and Development Corporation
vs. Villa. G.R. No. 184197, February 11, 2010 the Court said:
What constitutes voluntary appearance?
So, by the voluntary appearance of the defendant, the defects actually
of for example the summons or the lack of jurisdiction over the person
of the defendant, is already considered waived. Now, there are
instances when, even if the defendant appeared in court through his
lawyer, he will not be considered to have submitted to the jurisdiction of
the court.
That is why we said, lack of jurisdiction over the person of the defendant
because of absence of service of summons or improper service of
summons, can be waived by voluntary appearance. That is the second
mode.
Now, of course, when a defendant files a motion to dismiss on the
ground that the court has not acquired any jurisdiction over his person,
that is not a voluntary appearance. That is a SPECIAL APPEARANCE
precisely to question the jurisdiction of the court over his person. A
special appearance is not indicative of the intention to submit to the
jurisdiction of the court.
When will that happen?
Example: There is a case filed by the defendant. In that case, there’s
actually an application for a temporary restraining order with prayer for
issuance of writ of preliminary injunction. Of course, in that particular
case, the defendant HAS to answer the complaint. But, for example the
TRO is already issued, even before the defendant (there are cases
where the issuance of the TRO can be done ex parte, i.e extreme
urgency), the defendant has not yet filed his answer but of course he
cannot just ignore the presence of the TRO and the hearing on the
extension, for example, of the TRO. So, he has to appear in court. Wala
pa siyay answer again ha, i have to emphasize.
Q: Now, is the appearance of the defendant in court in order to assail
the issuance of the TRO considered his voluntary submission the the
jurisdiction of the court? So, waived natong any possible defect on the
Filing of motions:
1. To admit answer,
2. For additional time to file an answer or Motion for extension to file
an answer;
3. For reconsideration of a default judgment, and
4.To lift order of default with motion for reconsideration.
Again, as we have discussed this is tempered by the concept of
conditional appearance, such that a party who makes a special
appearance to challenge, among others, the court’s jurisdiction
over his person cannot be considered to have submitted to its
authority. But again, we mentioned before, when your lawyer goes
to court and manifests that he is entering his appearance on your
behalf but says that his appearance is conditional or special because
he intends to question the improper service of summons or lack of
jurisdiction over the person of the defendant. But again, diba under
the rules, in that case the lawyer shall be deputized to serve the
summons to the defendant. So, wala gihapon, whatever defect that
you intend to raise in your answer will already be cured by the service
of summons to be made by the counsel.
Of course, when you file an answer that is already a submission to the
jurisdiction of the court as discussed in this case:
People’s General Insurance Corporation vs. Edgardo Guansing
and Eduardo Lizaso, G.R. No. 204759, November 14, 2018
In Navale et al. v. Court of Appeals et. al.:
Defects of summons are cured by voluntary appearance and by the
filing of an answer to the complaint. (because) A defendant [cannot]
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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be permitted to speculate upon the judgment of the court by objecting
to the court’s jurisdiction over its person if the judgment is adverse to
it, and acceding to jurisdiction over its person if and when the
judgment sustains its defense as set forth in the answer.
Any form of appearance in court by the defendant, his authorized
agent or attorney, is a equivalent to service except where such
appearance is precisely to object to the jurisdiction of the court over
his person.
Comment: Let’s discuss this. Aside from what we have mentioned, how
do you appear to object to the jurisdiction of the court to your person
under the previous rule, you can file a motion to dismiss. And in your
motion to dismiss you can set forth as a ground lack of jurisdiction over
the person of the defendant, the reason is there was an improper service
of summons. The court will not take it as a submission to its jurisdiction.
What if you added some other grounds? Because diba under the
omnibus motion rule, which is the same rule as before, objections and
defenses not pleaded in the motion to dismiss or in the answer are
deemed barred. So, obviously, if you are filing a motion to dismiss you
should already include all your grounds. So, in addition to your lack of
jurisdiction over the person of the defendant, you have other grounds
(like prescription, res judicata, litis pendencia) those other grounds
mentioned (failure to state a cause of action or Lack of legal capacity to
sue) under the previous rules even if you include it in a motion to dismiss,
those other grounds are also called affirmative defenses if they are set
forth in the answer. But again, if you include them in your motion to
dismiss, you are not deemed to have submitted to the jurisdiction of the
court. But that is now a different rule.
Now, Respondent Guansing, who actively participated in the
proceedings, cannot impugn the court’s jurisdiction. To reiterate, a
long line of cases has established that the filing of an answer, among
other pleadings, is considered voluntary appearance and vests the court
with jurisdiction over the person. The rules are clear: the filing of an
answer and other pleadings is considered voluntary appearance.
Respondent Guansing’s actions lead to no other conclusion other than
he voluntarily appeared and submitted himself to the court’s jurisdiction.
EFFECT OF CITING GROUNDS OTHER THAN LACK
JURISDICTION OVER THE PERSON OF THE DEFENDANT
OF
We already discussed this under rule 8. But let’s just discuss this again.
As we mentioned before, there’s a significant difference between
voluntary appearance (the effect of it) under the 1997 rules and the 2019
amended rules.
1997 Rules
2019 Amended Rules
Section
20.
Voluntary
Appearance.-The defendant’s
voluntary appearance in the
action shall be equivalent to
service of summons. The
inclusion in a motion to dismiss
of other grounds aside from
lack of jurisdiction over the
person of the defendant shall
not be deemed a voluntary
appearance. (23a)
Section
23.
Voluntary
appearance.- The defendant’s
voluntary appearance in the action
shall be equivalent to service of
summons. The inclusion in the
motion to dismiss of other grounds
aside from lack of jurisdiction over
the person of the defendant shall
be
deemed
a
voluntary
appearance. (20a)
Now first, lack of jurisdiction over the person of the defendant. Before,
under the 1997 rules, it can be raised as a ground under a motion to
dismiss, under rule 16 or it can also be raised as an affirmative defense
in the answer. Under the present rules, lack of jurisdiction over the
person of the defendant is no longer allowed as a ground for a motion
to dismiss. There are only 4 grounds allowed:
1.)
2.)
Lack of jurisdiction over the subject matter;
Litis pendencia;
3.)
4.)
Res Judicata; and
Prescription
EFFECT OF THE AMENDMENT:
The defense of lack of jurisdiction over the person of the defendant
becomes useless.
Why?
Firstly, because you cannot even raise this in a motion to dismiss (only
4 grounds nalang). What will happen if you invoke this in your motion to
dismiss?
If invoked alone as a ground, the court will not accept it.
If invoked together with any of the 4 grounds, and if we follow the
literal meaning of section 23, it means na you are also waiving the
defense of lack of jurisdiction because you invoked other grounds. So,
you are waiving the defect of the example improper service of summons
because you have voluntarily submitted to the jurisdiction of the court.
Now, if you file instead an answer because under the amended rules,
lack of jurisdiction over the person of the defendant is an affirmative
defense. What is the effect? Jurisprudence provides that if you file an
answer, you have submitted to the jurisdiction of the court. So it’s really
the intention of the Supreme court under the present rules saying na
kanang mga ing ana na grounds, dili na kaayo nato ientertain because
again, kung muadto gihapon si lawyer mag appear in court, enter a
special appearance to question the improper service of summons, but
again the lawyer now deputized to serve the summons to the defendant.
So, that is the effect of the present rules.
So, it appears also that the decision in various cases such as in the
case of Nation Petroleum Gas, Incorporated, Et. Al. vs. Rizal
Commercial Banking Corporation (G.R. No. 183370, August 17,
2015), has been rendered modified or superseded by the rules
because under these cases, the Supreme Court said that even if you
include affirmative defenses in your motion to dismiss other than lack
of jurisdiction over the person of the defendant, this shall not be
considered voluntary appearance.
“Despite improper service of summons upon their persons, the
individual petitioners are deemed to have submitted to the jurisdiction
of the court through their voluntary appearance. The second
sentence of Section 20, Rule 14 of the Rules that “the inclusion in a
motion to dismiss of other grounds aside from lack of jurisdiction over
the person of the defendant shall not be deemed a voluntary
appearance” clearly refers to affirmative defenses (i.e litis
pendencia, prescription, fraud, failure to state cause of action),
not affirmative reliefs.”
But, if you ask for affirmative reliefs, what is the effect?:
In the present case, the individual petitioners prayed, among others,
for the following:
1.)
2.)
3.)
4.)
Discharge of the writ of attachment on their properties;
Denial of the motion to declare them in default;
Admission of the Comment/Opposition (to the motion to
declare them in default) filed on December 19, 2006; and
Denial of respondent’s motion to strike off from the records
(their opposition to the motion to declare them in default).
By seeking affirmative reliefs from the trial court, the individual
petitioners are deemed to have voluntarily submitted to the
jurisdiction of said court. A party cannot invoke the jurisdiction of
a court to secure affirmative relief against his opponent and after
obtaining or failing to obtain such relief, repudiate or question that
same jurisdiction. Therefore, the CA cannot be considered to have
erred in affirming the trial court’s denial of the Special Appearance
with Motion to Dismiss for alleged improper service of summons.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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From the lectures of Atty. Lielanie C. Yangyang-Espejo
RULE 15
Motions
You cannot at the same time ask for relief from the court and at the
same time repudiate the jurisdiction. You cannot have an inconsistent
position.
Section 1. Motion defined. —A motion is an application for relief
other than by a pleading. (1)
CASES NO LONGER APPLICABLE:
So with these amendments, it is safe to say that those cases decided by
the Supreme Court before like
A motion is not a pleading.
Pleadings are the written statements of the respective claims and
defenses of the parties submitted to the court for appropriate judgment.
Millenium Industrial Commercial Corporation vs. Jackson Tan,
G.R. No. 131724, February 28, 2000 that the inclusion of other
grounds in a motion to dismiss like here:
This includes complaint, answer, reply, counterclaim, cross-claim, third
(fourth, etc.)-party complaint
“We now turn to the issue of jurisdiction by estoppel. Both the trial
court and the Court of Appeals held that by raising the affirmative
defense of payment (Aside from the ground of lack of
jurisdiction over the person of the defendant) and by praying for
other reliefs in its Motion to Dismiss, petitioner in effect waived its
objection to the trial court’s jurisdiction over it. We think this is error.”
(Meaning, there was no waiver. No voluntary submission. Based to
sa old rule)
Q: What makes a motion different from a pleading?
While both the motion and pleading pray for relief, the relief prayed for
in a pleading relates to a final judgment by the court.
For example, a complaint. It asserts a claim and that judgment is
rendered granting the relief prayed for in the complaint.
On the other hand, an answer, which is also a pleading, sets for the
defendant’s defenses and prays that judgment be rendered dismissing
the case.
The Court cited here the La Naval Doctrine (Doctrine which states
that the inclusion of other grounds in a motion to dismiss other than
lack of jurisdiction over the person of the defendant is NOT
considered voluntary appearance.)
A motion also prays for a relief but not the type of relief that renders
final judgment.
“Our decision in La Naval Drug Corporation v. Court of
Appeals settled this question. The rule prior to La Naval
was that if a defendant, in a motion to dismiss, alleges
grounds for dismissing the action other than lack of
jurisdiction, he would be deemed to have submitted
himself to the jurisdiction of the court. This rule no longer
holds true. Noting that the doctrine of estoppel by
jurisdiction must be unequivocal and intentional, we ruled
in La Naval:
So in the middle of a case, there are several kinds of relief, you may
want to ask from the court, not a final judgment on the case. That is
why a motion is defined as an application for relief, other than by a
pleading.
Otherwise stated, a motion is an application for relief without praying
for the rendition of judgment
Jurisdiction over the person must be seasonably raised,
i.e., that it is pleaded in a motion to dismiss or by way of
an affirmative defense. Voluntary appearance shall be
deemed a waiver of this defense. The assertion, however,
of affirmative defenses shall not be construed as an
estoppel or as a waiver of such defense.
Third, Finally, we turn to the effect of petitioner’s prayer for
“other reliefs” in its Motion to dismiss. In De Midgely v.
Fernandos, it was held that, in a motion to dismiss, the
allegation of grounds other than lack of jurisdiction over the
person of the defendant, including a prayer “for such other
reliefs as may be deemed ‘appropriate and proper’
amounted to voluntary appearance. This, however, must
be deemed superseded by the ruling in La Naval that
estoppel by jurisdiction must be unequivocal and
intentional. It would be absurd to hold that petitioner
unequivocally and intentionally submitted itself to the
jurisdiction of the court by seeking other reliefs to which it
might be entitled when the only relief that it can properly as
from the trial court is the dismissal of the complaint against
it.”
Hence, with the amended rules, the LA NAVAL DOCTRINE NO
LONGER HOLDS TRUE.
So with that, we will just have to wait for a ruling by the Supreme Court
based on Section 23 of Rule 14 of the Rules of Court which is the total
opposite of the La Naval Doctrine.
MAGLINTE, DAHILIG
Are there exceptions to the general rule that a motion prays for relief
other than by a final judgment?
Of course, this is only the general rule.
There are exceptions to the Rule that pray for final judgment, to wit:
1)
Motion to Dismiss (Rule 16);
On the grounds of lack of jurisdiction over the subject matter, litis
pendentia, res judicata and prescription
2)
Motion to Dismiss on the ground that upon the facts and the
law the plaintiff has shown no right to relief (Demurrer under
Rule 33);
Demurrer to evidence is also a ground for a motion to dismiss on
the ground that upon the facts of the law, the plaintiff has no right
to relief
We discussed before how to distinguish failure to state cause of
action from lack of cause of action.
Failure to state cause of action is actually an affirmative defense,
meaning there may be a cause of action but the complaint is
written in such a way that that it does not recite all the essential
elements of a cause of action, so it is incomplete, while there may
be in reality a cause of action.
What if there is no really cause of action because the plaintiff has
not completed (like there are no damages suffered, there is no
obligation on the part of the defendant or there is no right on the
part of the plaintiff), but as drafted, the complaint is well-written.
II-Manresa 2019 || Aberillo, Adlawan, Apostol, Aranjuez, Ballos, Bejano, Caramugan, Dahilig, De Castro, Dingal, Escobido, Fernandez, Furia, Gado r, Go, Madum, Maglinte,
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So it does not show there is really no cause of action but during
the trial upon the presentation of evidence, it is proved that there
is no really cause of action. If that is the case, if you are the
defendant, you don’t have to present your evidence. Kapuy kapuy
ka lang present ug evidence when in fact based on the
presentation of evidence for the complainant, there was no cause
of action. So what you do is, you file, demurrer to evidence.
So you file MTD on the ground that based on the facts or the law,
the plaintiff has shown no right to relief.
3)
Motion for Judgment on the Pleadings (Rule 34); and
What is a motion for judgment on a pleading and a motion for
summary judgment?
In a motion for judgment on a pleading under Rule 34, there is an
answer filed by the defendant but the answer fails to tender an
issue or it otherwise admits the material allegations of the
complaint. So, na-admit na man diay, there is no contested fact
anymore. What the court can do is render a judgment based on
the pleadings.
4)
Motion for Summary Judgment (Rule 35).
When an answer tenders an issue but it is not a real issue or it is
sham. This will be discussed in Rule 35.
MOTION DISTINGUISHED FROM PLEADINGS
PLEADINGS
States the respective claims
and defenses of the parties.
Prays for judgment on the
merits.
The relief that is sought is one
that is threshed out after trial
and hearing.
Written.
There is a limited number of
pleadings allowed by the Rules.
MOTION
Application for relief which may
not at all relate to the claim or
defense.
May or not pray for judgment.
The relief sought is one that is
more immediate or accelerated,
although motions as a general
rule require hearing.
May be oral or written.
The number of motions that can
be filed is virtually unlimited,
subject only to the limitations of
propriety and judicial efficiency.
First, pleadings states the respective claims and defenses of the
parties, whereas a motion is an application for relief which may not at
all relate to the claim or defense.
An example of a motion that relate to the claim is a motion for a
summary judgment and a motion that relates to the defense is a
motion to dismiss or a demurrer. An example of a motion that does not
relate to the claim or a defense is a motion for extension.
Second, a pleading prays for judgment on the merits, whereas a
motion may or not pray for judgment.
What is an example of a motion that prays for judgment? Example is a
demurrer to evidence is a MTD because based on the facts and the
law, the plaintiff is not entitled to relief.
A motion that does not pray for judgment includes a motion for a bill of
particulars
Third, the relief that is sought in a pleading is one that is threshed out
after trial and hearing. In a motion, the relief sought is one that is more
immediate or accelerated, although motions as a general rule require
hearing, if these motions are litigious.
Fourth, pleadings are written. There is no such thing as an oral
pleading, whereas a motion may be oral or written.
Fifth, in pleadings, the Rules specify what are the pleadings. There is
a limited number of pleadings allowed by the Rules. Whereas, in
motion, the number of motions that can be filed is virtually unlimited,
subject only to the limitations of propriety and judicial efficiency.
Although when we go over the rule, there are prohibited motions, so
you cannot file these motions.
SEC. 2. Motions must be in writing.— All motions shall be in
writing except those made in open court or in the course of a
hearing or trial.
A motion made in open court or in the course of a hearing or trial
should immediately be resolved in open court, after the adverse
party is given the opportunity to argue his or her opposition
thereto.
When a motion is based on facts not appearing on record, the
court may hear the matter on affidavits or depositions presented
by the respective parties, but the court may direct that the matter
be heard wholly or partly on oral testimony or depositions. (2a)
Example, there is a motion, but the facts upon which a motion is based
upon do not appear on the record. How will the movant establish that
these facts exist and how will the court be satisfied that these facts
really exist?
The court will hear or may hear the matters on affidavits. When you
say affidavits that would be a judicial affidavit or depositions presented
by the respective parties. When you say depositions, it’s also like a
testimony and it is not made before the judge. Although we use the
Judicial Affidavit, since we use the Judicial Affidavit Rule, it is
presented in court and your witness will be presented in court but the
judicial affidavit will be the direct testimony of the witness in open court
in the presence of the judge. The witness will be asked to identify his
judicial affidavit and attest that the statements mentioned on his judicial
affidavit are true and correct.
The court may also direct that the matter be heard wholly or partly on
oral testimony. So meaning, pwede na dili judicial affidavit, diretso na
in court, the lawyer will present the witness and ask him orally. There is
no identification of judicial affidavit. That’s what happens when you are
going to hear a motion, when you determine facts not appearing on
record.
TYPES OF MOTIONS
1)
As to form, a motion can either be ORAL or WRITTEN;
2)
As to nature, a motion can either be litigious or non-litigious
Litigious motions generally require a hearing. The court will hear the
motion at its discretion. Although there are motions also mandatorily
the court shall hear.
Non-litigious motions are those that the court will not hear anymore.
Although whether the motion is litigious or non-litigious, if you file a
motion, you have to furnish the adverse party a copy of your motion.
SEC. 3. Contents.— A motion shall state the relief sought to be
obtained and the grounds upon which it is based, and if required
by these Rules or necessary to prove facts alleged therein, shall
be accompanied by supporting affidavits and other papers. (3)
[SEC. 4. Hearing of motion.— Deleted]
Before we discuss section 3, if you notice, section 4 has already been
deleted because under the present rules, the rule already mentions
what are those motions which the court, in its discretion may hear or
what are those motions which the court mandatorily has to hear.
Under the previous rule, when you file a motion, a movant is required
to set the motion for hearing. There should be a notice of hearing
which is addressed to the adverse party to give him an opportunity to
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appear on that hearing. On the previous rule, the date of the hearing
which is scheduled in your motion should be within 10 days from the
time that you filed your motion.
For example, you filed your motion on April 20, the date of the notice of
your hearing will specify a date which is 10 days from April 20. So the
latest would be April 30, or within that period.
But it is also stated under the previous rules that you should notify the
adverse party of that motion, and you should serve that adverse party
with a copy of your motion, at least 3 days or not later than 3 days
before the scheduled date of the hearing.
For example, if the date of hearing scheduled in your notice of hearing
is April 30, he must receive at most on the 27th the copy of your motion.
Dili ka mulampas ug 3 days before kay kung 2 or 1 day/s before,
gamay na alng kayo ang window of opportunity for your opponent to
study the motion. It would be disadvantageous to him. That is the 3day Prior Notice Rule under the old Rules.
But remember under the present rules, the rule that your motion should
contain a notice of hearing is no longer applicable, because it is not for
the movant anymore to decide whether or not the court should hear the
motion. It is upon the court to decide and to notify the date of the
hearing
EFFECT OF FAILURE TO STATE THE RELIEF SOUGHT
MARCIAL vs. HI-CEMENT
G.R. No. 144900, November 18, 2005
However, the first motion for extension is fatally defective for failure to
include a prayer or relief; no period for extension was sought in the
motion. Under Section 3, Rule 15 of the Rules of Court, a motion shall
state the relief sought to be obtained. As a result, it is pro forma or a
mere scrap of paper and of no legal effect which the CA may ignore.
SUPPORTING AFFIDAVITS: WHEN REQUIRED
If required by these Rules or necessary to prove facts alleged therein,
the motion shall be accompanied by supporting affidavits and other
papers. What are these specific instances when the Rules require
supporting affidavits?
A good example is Rule 37, Section 2, to wit:
Section 2. Contents of motion for new trial or reconsideration and
notice thereof. — The motion shall be made in writing stating the
ground or grounds therefor, a written notice of which shall be served by
the movant on the adverse party.
A motion for new trial shall be proved in the manner provided for proof
of motion. A motion for the cause mentioned in paragraph (a) of the
preceding section shall be supported by affidavits of merits which may
be rebutted by affidavits. A motion for the cause mentioned in
paragraph (b) shall be supported by affidavits of the witnesses by
whom such evidence is expected to be given, or by duly authenticated
documents which are proposed to be introduced in evidence.
Under paragraph A, the merits include fraud, accident, mistake or
excusable negligence as ground for MNT which shall be rebutted by
affidavits.
Under paragraph B, this is a MNT based on a newly discovered
evidence, so supporting affidavits is still needed.
Another example is Rule 14, Section 19 which provides that:
Section 19. Leave of court. — Any application to the court under this
Rule for leave to effect service in any manner for which leave of court
is necessary shall be made by motion in writing, supported by affidavit
of the plaintiff or some person on his behalf, setting forth the grounds
for the application. (19)
The affidavit of the plaintiff will detail what are the reasons why service
in person was not resorted to. For example, explain that you are you
filing a motion for leave to serve summons by publication because the
defendant’s whereabout are unknown, which would justify the
summons by publication.
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Section 4. non-litigious motions. – Motions which the court
may act upon without prejudicing the rights of adverse parties
are non-litigious motions. These motions include:
a.
b.
c.
d.
e.
f.
g.
h.
Motion for the issuance of an alias summons;
Motion for extension to file answer;
Motion for postponement;
Motion for the issuance of a writ of execution;
Motion for the issuance of an alias writ of execution;
Motion for the issuance of a writ of possession;
Motion for the issuance of an order directing the
sheriff to execute the final certificate of sale; and
Other similar motions.
These motions shall not be set for hearing and shall be
resolved by the court within five (5) calendar days from receipt
thereof. (n)
thereof. No other submissions shall be considered by the court
in the resolution of the motion.
The motion shall be resolved by the court within fifteen (15)
calendar days from its receipt of the opposition thereto, or
upon expiration of the period to file such opposition. (n)
There motions require hearing, but hearing is discretionary.
1.
2.
3.
4.
5.
There is no need for the motion to be set for hearing. Memorize what
are those non-litigious motion.
a.
Motion for the issuance of an alias summons;
Rule 14, section 4
b.
Motion for extension to file answer;
Rule 11, section 11
c.
Motion for postponement;
To reset or postpone hearing
d.
Motion for the issuance of a writ of execution;
This is found Section 5 of Rule 15 because the judgment has
become final and executory. Execution is a matter of right.
6.
7.
8.
e.
Motion for the issuance of an alias writ of execution;
Rule 39. Alias writ is issued in lieu of the original one because
it was lost or destroyed.
f.
Motion for the issuance of a writ of possession;
Rule 39. When you want to be placed in possession of the
property.
g.
Motion for the issuance of an order directing the sheriff to
execute the final certificate of sale; and
h.
Other similar motions.
SEC. 5. Litigious motions.— (a) Litigious motions include:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Motion for bill of particulars;
Motion to dismiss;
Motion for new trial;
Motion for reconsideration;
Motion for execution pending appeal;
Motion to amend after a responsive pleading has been
filed;
Motion to cancel statutory lien;
Motion for an order to break in or for a writ of
demolition;
Motion for intervention;
Motion for judgment on the pleadings;
Motion for summary judgment;
Demurrer to evidence;
Motion to declare defendant in default; and
Other similar motions.
(b) All motions shall be served by personal service, accredited
private courier or registered mail, or electronic means so as to
ensure their receipt by the other party.
(c) The opposing party shall file his or her opposition to a
litigious motion within five (5) calendar days from receipt
9.
10.
11.
12.
13.
14.
Motion for bill of particulars; Rule 12
Motion to dismiss; Under Rule 15, MTD is a prohibited
pleading but under section 12, there is an exception. You can
still file an MTD on the grounds of lack of jurisdiction over the
subject matter, res judicata, litis pendentia and prescription.
Motion for new trial;
Motion for reconsideration;
Motion for execution pending appeal;
Meaning the case is not final and executory that’s why it is a
litigious motion because for all we know after you executed
and implemented the decision, on appeal the decision will be
reversed. If is a motion for execution of a final and executory
decision, under the Doctrine of Immutability of Judgment,
once the judgment has become final and executory the it can
no longer be modified.
Motion to amend after a responsive pleading has been filed;
Rule 10, sec. 3
Motion to cancel statutory lien; Statutory lien is that lien or
encumbrance which is imposed by law. For example, you
want to cancel a public right of way or easement
Motion for an order to break in or for a writ of demolition; Rule
39
Motion for intervention; Rule 19
Motion for judgment on the pleadings; Rule 34
Motion for summary judgment; Rule 35
Demurrer to evidence; Rule 33
Motion to declare defendant in default; Rule 9, sec. 3
Other similar motions.
Under B, all motions shall be served to the adverse party. If you file a
motion without proof of service, it is defective, is considered a mere
scrap of paper, and deemed to not have been filed. You can serve it
through a personal service, accredited private courier or registered
mail or electronic means, to ensure they are received by the other
party.
Under C, no more submissions are considered in the resolution of
motion such as comment in the opposition or rejoinder to the comment
to the opposition. The 5 days is to ex