CIVIL PROCEDURE

Atty. Dela Pea

3. In the case of a NON-RESIDENT
defendant where he may be FOUND, at
the ELECTION of the plaintiff

RULE 04
*What is venue?

It is the place where the action must be

INSTITUTED and TRIED

*Venue of real actions

It shall be commenced and tried in the

proper court which has jurisdiction over the
area wherein the real property involved, or a
portion thereof, is SITUATED

Why does the law say tried in the proper

court?
It is because proper court will now be MTC or
RTC, depending on the assessed value of the
property. If the assessed value is 20,000 or
less, MTC. If it is over 20,000, it should be in
the RTC
* Subject matter of the action involves
various parcels of land situated in different
provinces

Where several or alternative reliefs are

sought in an action, and the reliefs prayed
for are REAL and PERSONAL, how is venue
determined?
Where several or alternative reliefs are
prayed for in the complaint, the NATURE of the
action as real or personal is determined by the
PRIMARY OBJECT of the suit or by the nature of
the PRINCIPAL CLAIM
THUS, where the purpose is to NULLIFY
the title to real property, the VENUE of the
action is in the PROVINCE where the
property
LIES,
notwithstanding
the
alternative relief sough, recovery for
damages, which is predicated upon a
declaration of nullity of the title
*Venue of actions against non-residents

The rule on venue under Sec 3, Rule 4

applies when:

The venue is determined by the SINGULARITY

or PLURALITY of the transactions involving
said parcels of land

1. Any of the defendants is a NONRESIDENT and, at the same time, NOT

FOUND in the PHIL

*Forcible entry and detainer actions

2. The action affects the PERSONAL STATUS

of the plaintiff

It shall be COMMENCED and TRIED in the MTC

of the municipality or city wherein the real
property involved, or a portion thereof, is
SITUATED

3. The action affects any property of the

non-resident located in the Phil

*Venue of personal actions

ALL other actions may be commenced and
tried:
1. Where the plaintiff or any of the
principal plaintiff RESIDES or
2. Where the defendants or any of the
principal defendants RESIDESS, OR

*What actions can be filed against a nonresident defendant who is not even found
here in the Phil?
1. Action that affects the PERSONAL STATUS
of the plaintiff
2. Action affects the PROPERTY or any
portion thereof of said defendants located
here in the Phil

1|MAGSINO, Charmaine B.

CIVIL PROCEDURE
Atty. Dela Pea
*Can you sue a person no longer residing in
the Phil and is NOT FOUND in the Phil?

*Means of waiving venue

1. FAILURE TO OBJECT via motion to dismiss

NO you CANNOT

2. AFFIRMATIVE RELIEF sought in the court

where the case is filed

Why?

3. Voluntary SUBMISSION to the court where

the case is filed

There is NO WAY for Phil Courts to

acquire
jurisdiction
over
his
person.
OTHERWISE, he will NOT be BOUND by the
decision

4. Laches
*Contract of adhesion

*What is the difference between the NONRESIDENT DEFENDANT in Sec 2 and the
NON-RESIDENT DEFENDANT in Sec 3?

Ambiguities therein are to be construed

against the party who caused it

Contract of adhesion ARE NOT PROHIBITED,

but the factual circumstances of each case
must be carefully scrutinized TO DETERMINE
the respective claims of the parties as to
their efficacy

In Sec 2, the non-resident defendant may be

found in the Phil. But in Sec 3, he DOES NOT
RESIDE and is NOT FOUND in the Phil

*NON-APPLICABILITY on the rule of venue

RULE 06

This rule shall NOT APPLY:

*Define Pleadings

1. In those cases where a specific rule of law

provides otherwise
2. Where the parties have VALIDLY agreed
in writing before the filing of the action on
the exclusive venue thereof

*Stipulations on venue

The parties may stipulate on the venue as

long as the agreement is:
a. In writing
b. Made before the filing of the action
c. Exclusive as to the venue

Can a person file a case in court orally or

verbally?
NO because the plaintiff must submit a
pleading and all pleadings must be in WRITING

The parties may AGREE on a specific venue

which could be in a place where NEITHER of
the resides
In REAL ACTIONS, like unlawful detainer, the
parties may STIPULATE on a venue other
than the place where the real property is
situated

Are WRITTEN STATEMENTS of the respective

claims and defenses of the parties submitted
to the court for APPROPRIATE JUDGMENT

MOREOVER, a pleading is clearly

described as a written statements, wherein it
contains the claims and defenses of the parties

What is the importance of pleadings?

To confer jurisdiction on a court, that the subj
matter be presented for its consideration in a
mode sanctioned by law and this is done by the
filing of a complaint or other pleadings
*If you are the claimant or the plaintiff, in
what pleading do you assert your claim?

2|MAGSINO, Charmaine B.

CIVIL PROCEDURE
Atty. Dela Pea
1. Complaint

stated, or incorrect interferences

conclusions from facts stated

2. Reply

3. Details of probative matters or particulars

of
evidence,
statements
of
law,
interferences and arguments

3. Counterclaim
4. Cross-claim

4. An allegation that a contract is valid or

void is a mere conclusion of law

5. 3rd- party complaint or 4th-part complaint etc

If you are party sued, what are
pleading or defenses do you assert?

*What is an answer?

1. Answer
2. Counterclaim
3. Cross-claim

It is a pleading in which a defending parts

sets forth his defenses

It is called a RESPONSIVE PLEADING

*What is a complaint?

Why is it called Responsive Pleading?

It is the pleading ALLEGING the plaintiffs

cause or causes of action. The names and
residences of the plaintiff and defendant
must be stated in the complaint

LAKAS
It is the pleading where the plaintiff will
allege his cause or causes of action. It is a
concise statement of ULTIMATE FACTS
constituting the plaintiffs cause or causes
of action, with a specification off thee relief
sought, but it may add a general prayer
for such further relief as may be deemed
just or equitable

Because it is the pleading which is

filed in RESPONSE to the complaint. It
is where you respond to the cause of
action. That is where you state your
defenses
*Defenses

Ultimate facts
Rule: It must contain ULTIMATE FACTS or
ESSENTIAL FACTS constituting plaintiffs
cause of action

The ff are NOT ultimate facts

1. Evidentiary or immaterial facts
2. Legal
conclusions,
conclusions
interferences of facts from facts

or
not

either

be

NEGATIVE

or

What are NEGATIVE DEFENSES?

It may also be GENERAL

Defenses may
AFFIRMATIVE

It is the SPECIFIC DENIAL of the material

fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action

It is the pleading that INITIATES

the civil action

or

What are AFFIRMATIVE DEFENSES?

It is an allegation off a new matter which,
while HYPOTHETICALLY admitting the material
allegations in the pleading of the claimant, would
NEVERTHELESS prevent or bar recovery by him
I admit what you are saying in the
complaint BUTT still you are NOT ENTITLED to
recover from me
*What is counterclaim?

3|MAGSINO, Charmaine B.

CIVIL PROCEDURE
Atty. Dela Pea

It is any claim which a defending party may

have against an opposing party

nature thereof, EXCEPT than in an

original action before the RTC, the
counterclaim may be considered
compulsory regardless of the amt

Why it is that law allows the defendant to

countersue by way of counterclaim the
plaintiff?

e. The
defending
party
has
a
counterclaim at the time he files the
answer

The purpose there is apparently TO AVOID

MULTIPLICITY OF SUITS. If you have a cause of
action against me, I will sue you, in the future it
will also lead to another case where you will also
sue me

What happens if
requisites is missing?

DOES NOT arise out of nor is it necessarily

connected with the subj matter of the opposing
party partys claim

2. It could acquire jurisdiction over 3 rd

parties whose presence is essential
for its adjudication

One which arises out of or is necessarily

connected with the transaction or occurrence
that is the subj matter of the opposing
partys claim
REQUISITES:
a. It is COGNIZABLE by the regular
courts of justice
b. It arises out of or it is connected with
a
transaction
or
occurrence
constituting a subj matter of the
opposing partys claim
c. It DOES NOT require for its
adjudication the presence of 3 rd
parties of whom the court cannot
acquire jurisdiction
d. It must be WITHIN the jurisdiction of
the court, both as to the amt and

these

2. Permissive

1. Court should have JURISDICTION

over the subj matter of the
counterclaim

1. Compulsory

of

If one of the five requisites is

MISSINNG, the counterclaim is PERMISSSIVE
in nature

LIMITATIONS:

*Classifications of Counterclaims

one

There is NO CHOICE to raise it as a

counterclaim or as a separate case

What is the importance in determining

whether the claim is compulsory or
permissive?
A compulsory counterclaim must be
invoked in the same action. It CANNOT be the
subj matter of a SEPARATE ACTION. UNLIIKE in
permissive where you have the choice of invoking
it in the same case, or in a separate action,
COMPULSORY counterclaim must be invoked in
the SAME ACTION otherwise it will be BARRED
*What is a cross-claim?

It is ANY claim by one party against a coparty out of the transaction or occurrence
that is the subj matter either of the original
action or of a counterclaim therein

*Distinguish Counterclaim from Cross-Claim

1. COUNTER
is
a
complaint
by
DEFENDANT against the PLAINTIFF

the

4|MAGSINO, Charmaine B.

CIVIL PROCEDURE
Atty. Dela Pea
CROSS is a claim by a DEFENDANT agains
a CO-DEFENDANT

If
the
party
desires to file a reply,
he must nevertheless
do so WITHIN 10
DAYS from service of
the
pleading
responded to

2. The life of the CROSS depends on the life

of the main action. The CROSS is merely a
consequence of the case filed by the
plaintiff against the defendants. NO MAIN
ACTION NO CROSS
EXCEPTION

COUNTER, you can KILL the main action,

still the COUNTER survives

Where
the
answer
alleges the defense of
usury in which case a
reply under oath is
REQUIRED,
otherwise
the allegations of usury
are deemed ADMITTED

Where the answer is

based
on
an
ACTIONABLE DOCUMENT
in which case a verified
reply
is
NECESSARY,
otherwise
the
genuineness and due
execution
of
said
actionable document are
generally
deemed
admitted

3. COUNTER may be asserted W/N it arises

out of the same transaction or occurrence
that is the subj matter of the action
CROSS must ALWAYS arise out of the
same transaction or occurrence that is the
subj matter of the action
*To
whom
Counter-counterclaim
and
Counter-Cross-Claims may be asserted?

COUNTERCLAIM and CROSS-CLAIM may be

asserted against an ORIGINAL COUNTERCLAIMANT

*What is a reply?

It is a pleading, the office or function

which is to DENY, or ALLEGE facts in denial
avoidance of new matters alleged by way
defense in the answer and thereby join
make issues to such new matter

of
or
of
or

What is the primary purpose of reply?

To JOIN issues with NEW matters
raised in the answer and thereby
authorize the pleader of thee reply to
introduce evidence on said new
issues
Is the filing of reply optional?
YES as the new matter raised in
the answer are deemed controverted
even without a reply

*What is a 3rd (etc) complaint?

It 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 (etc)
party defendant, for contribution, indemnity,
subrogation or any other relief, in respect of
his opponents claim

It is the procedure for bringing into a case a

THIRD PERSON who is NOT a party to the
case
Defendant BELIEVES that a stranger or
somebody else should be brought into the
case and therefore files a motion in court

5|MAGSINO, Charmaine B.

CIVIL PROCEDURE
Atty. Dela Pea
that he be allowed to file
complaint against such person

3 rd-party

What is the purpose of 3 rd-party

complaint?

For
CONTRIBUTION,
INDEMNITY,
SUBROGATION, and other relief in respect to
his opponents claim

How do you determine whether a 3 rd-party

complaint is proper or improper?

RULE 07

1. 3 -party complaint is PROPER if it arises

out of the SAME TRANSACTION on which
plaintiffs cause of action is based

*What contains the caption?

2. 3rd-party complaint is PROPER if the 3 rdpary, complaint, although arising out of

ANOTHER TRANSACTION, is CONNECTED
with the plaintiffs action

2. Title of the action

rd

1. Name of the court

3. Docket number, if assigned

Title of the action

3. 3 party defendant would be LIABLE to the

ORIGINAL
PLAINTIFFS
CLAIMANT.
Although the 3rd-party defendants liability
arises out of another transaction
rd

It contains the name of the parties

whose participation in the case shall be
indicated
Parties shall be indicated
as
either
PLAINTIFF
or
DEFENDANT

4. The 3rdpary defendant may assert any

defense which the 3rd party plaintiff has or
may have against plaintiffs claim

They shall ALL be named in the

ORIGINAL COMPLAINT or PETITION;
but in subsequent pleadings, it shall be
SUFFICIENT if the name of the 1 st party
on each side be stated with an
appropriate indication whether there are
other parties

*Bringing new parties

3rd-party defendant may allege in his

ANSWER his defenses, counterclaims, or
cross-claims, including such defenses that
the 3rd party plaintiff may have against the
original plaintiff. In proper cases, he may also
assert a counterclaim against the original
plaintiff in respect of the latters claim against
the 3rd-party plaintiff

GENERAL RULE
Defendant CANNOT by a counterclaim
bring into the action any claim against
persons other than the plaintiff
EXCEPTION

When presence of other parties or

persons is REQUIRED for the granting
of complete relief in the determination
of a counterclaim or cross-claim, the
court shall ORDER them to be
BROUUGHT in as defendants, if
jurisdiction
over
them
can
be
OBTAINED
*Answer to 3rd (etc) party complaint

Suppose there are 20 plaintiffs and 20

defendants in the concept of permissive
joinder of parties. Now is it necessary that
they shall be named
In the complaint YES. They shall be named.
It is possible that the title alone will reach 3 or
more pages.
BUT in subsequent pleadings, it is
NOT NECESSSARY to write the name of

6|MAGSINO, Charmaine B.

CIVIL PROCEDURE
Atty. Dela Pea
everybody. What the law requires is to
write the name of the 1st plaintiff followed
by the term ET AL
What are the instances where the law
does not require the name of the parties
to be stated even in the complaint?
1. Subsequent Pleadings

*Relief

2. Class suit
3. When the identity or name of the
defendant is UNKNOWN

NO, it is not part of the complaint or

answer BUT it may indicate what is the
nature of the cause of action.

5. If a party is sued in his official capacity.

Official designation is SUFFICIENT

Prayer is NOT PART of the action BUT

*Body

It sets forth its designation, the allegations of

the partys claims or defenses, the relief
prayed for and the date of the pleading
The allegation in the body of the pleading
shall be DIVIDED into paragraphs and shall
be so NUMBERED for ready IDENTIFICATION.
This numbering scheme
is
SIGNIFICANT because in subsequent
pleadings, a paragraph may be
referred to only by its number
without need for repeating the entire
allegations in the paragraph
-

*Headings

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
Is the prayer or relief part of the main
action?

4. When you sue an entity without juridical

personality

When 2 or more causes of actions are joined,

the 1st cause of action shall be prefaced with
the words 1ST CAUSE OF ACTION, or the 2nd
cause of action by the words 2 ND CAUSE OF
ACTION, and so on for the other

Each paragraph shall

contain a statement of a
single
set
of
circumstances so far as
that can be done with
convenience

it is important because it might

ENLIGHTEN the nature of the cause of
action
*Signature and address

Every pleading must be signed by the

PLAINTIFF or COUNSEL representing him
stating in either case his address which
should NOT BE a post office box

In the ABSENCE of a proper notice to the

court of a CHANGE OF ADDRRESS, service
upon the parties must be made at the last
address of their counsel of record

Why should it be NOT a post office box?

Because one difficulty is that that
exact date when you claim your mail
CANNOT BE DETERMINED if it is P.O.
Box. BUT if it is served to his office, the
exact date can EASILY be DETERMINED

When a lawyer signs a pleading, what is

he certifying?

7|MAGSINO, Charmaine B.

CIVIL PROCEDURE
Atty. Dela Pea
That he has READ the pleading that to
the BEST of his knowledge, information and
belief, there is a good ground to support it
and it is NOT INTERPOSED for delay

UNLESS
1. There is a WRITTEN REQUEST
for such substitution

2. Filed
with
the
WRITTEN
CONSENT of the client

It means that when a lawyer signs a

pleading he is certifying that he has read it,
to the best of his knowledge, information,
and belief there is a good ground to
support it, and it is not interposed for delay

3. With the WRITTEN CONSENT of

the attorney to be substituted,
or with proof of service of notice
of said motion to the attorney
to be substituted

What is
Pleading?

Implied

Certification

in

What is the effect of unsigned pleading?

The signature in a pleading is IMPOTANT
for it to have a legal effect.

*What is verification in a pleading?

An UNSIGNED pleading produces

NO LEGAL EFFECT
The court however, is AUTHORIZED to
allow the pleader to correct the deficiency if
the pleader shows the satisfaction of the
court, that the FAILURE to sign the pleading
was due to MERE INADVERTENCE and NOT
to delay the proceedings

What
is
verification?

A counsel shall be subj to disciplinary

action in the ff cases:
filing

of

SCANDALOUS

UNSIGNED

or

4. Failing to report change of address

NO

of

That will be a GROUND for the

PROSECUTION for the crime of PERJURY,
because
perjury
requires
a
SWORN
STATEMENT by the accused

INDECENT

*Is substitution of attorneys allowed?

significance

What do you think will happen if a

pleading is verified by a party and it
turns out that the allegations are false?
And
he
deliberately
made
those
allegations false and under oath?

2. Signing in violation of the rules

3. Alleging
matters

the

Verification requirement is significant, as

it is intended to secure ASSURANCE that
the allegation in a pleading are TRUE and
CORRECT and NOT the product of the
IMAGINATION
of
a
MATTER
of
SPECULATION, and that the pleading is filed
in GOOD FAITH

When counsel is subj to disciplinary action

in connection with pleadings

1. Deliberate
PLEADINGS

It
means
there
is
an
AFFIDAVIT
accompanying the pleading that the pleader
will CERTIFY that he prepared the pleading,
that ALL allegations therein are TRUE and
CORRECT

*How is pleading verified?

A pleading is verified by an AFFIDAVIT, that

the affiant has read the pleading and that the

8|MAGSINO, Charmaine B.

CIVIL PROCEDURE
Atty. Dela Pea
allegations therein are TRUE and CORRECT
OF his personal knowledge or based on
authentic records

2. That if there is such other pending

action or claim, a COMPLETE statement
of the present status thereof

What happens if a pleading is NOT

verified when the law requires it to be
verified? Is that a fatal defect?

3. That if he should therefore learn that

the same or similar action or claim has
been filed or is pending, he shall report
that fact within 5 days therefrom to the
court wherein his aforesaid complaint or
initiatory pleading has been filed

The pleading is DEFECTIVE but it is only

a FORMAL DEFECT. The court will still have
jurisdiction over the case. If the defect is
FORMAL, it can be cured by AMENDING the
pleading and verifying
Does the law require every pleading
to be verified?
NO
The GENERAL RULE is, pleadings
need not be under oath EXCEPT
when otherwise specifically required
by law or this rule.
When the law or rules require a
pleading to be verified, then it must
verified, otherwise it is FORMALLY
DEFECTIVE
If the law is SILENT, verification is
NOT NECESSARY and the pleading is
filed PROPERLY
*Certification of Forum Shopping

It is a SWORN STATEMENT in which the

plaintiff or principal party CERTFIES in a
complaint or initiatory pleading to the ff
matter:
1. That he has NOT COMMENCED any
action or filed any claim involving the
same issues in any court, tribunal, or
quasi-judicial agency and, to the best of
his knowledge, NO such other action or
claim is PENDING therein

*Existence of Forum shopping?

There is forum shopping where there exist:

1. Identity of parties, or at least
such parties as represent the
same interests in both actions
2. Identity of rights asserted and
relief prayed for, the relief being
founded on the same facts
3. Identity of the 2 preceding
particulars is such that any
judgment rendered in the pending
cases, regardless of which party
is successful would amt to res
judicata

*Ways of committing forum shopping

1. Filing MULTIPLE CASES based on the
SAME CAUSE OF ACTION and with the
SAME PRAYER, the previous case NOT
having been resolved yet (Litis pendentia)
2. Filing MULTIPLE CASES based on the
SAME CAUSE OF ACTION and the SAME
PRAYER, the previous case having ben
finally resolved (Res Judicata)
3. Filing MULTIPLE CASES based on the
SAME CAUSE OF ACTION, but with
DIFFERENT PRAYERS
*Rationale against Forum shopping
1. A party should NOT be ALLOWED to pursue
simultaneous remedies in 2 different fora

9|MAGSINO, Charmaine B.

CIVIL PROCEDURE
Atty. Dela Pea
Filing multiple petitions or complaints
constitutes ABUSE of COURT PROCESSES,
which
tends
to
DEGRADE
the
administration of justice, WREAKS havoc
upon orderly judicial procedure, and ADSS
to the CONGESTION of the heavily
burdened dockets of the courts
2. It is an act of MALPRACTICE, as the litigants
trifle with the courts and abuse their processes

3. Criminal liability
If
shopping

RULE 08
*Manner of making allegations

Certification must be executed by the

PARTY, NOT by the attorney
-

It is the petitioner and

NOT the counsel who is
in the BEST POSITION to
know whether he or it
actually filed or caused
the filing of a petition

*Sanctions for absence of certification

Forum is inconvenient

practice of global forum shopping, that is,

to prevent nonresident litigants from
choosing the forum or place to bring their
suit for malicious reasons, to secure
procedural advantages, or to select more
friendly venue

against

It is the PLAINTIFF or PRINCIPAL PARTY who

executes the certification UNDER OATH

forum-

Emerged in private intl law to deter the

Ground by itself for an AUTOMATIC

DISMISSAL of the complaint

deliberate

*Forum non conveniens

*What is the effect if a complaint or a thirdparty complaint is filed in court without

certification on non-forum shopping?

certification

is

1. Summary dismissal with prejudice

2. Direct contempt

It
is
IMPROPER
conduct
and
DEGRADES the administration of JUSTICE

*Who executes the

forum shopping?

there

The plaintiff asserting the claim or the cause

of action must contain only the ULTIMATE
FACTS
These facts must be stated in a PLAIN,
CONCISE, METHODICAL and LOGICAL
form

*What are ultimate facts?

Those which are essential to ones cause of

action or defense

DISMISSAL without prejudice

*Sanction for false certification or noncompliance with undertaking

1. Indirect contempt
2. Administrative liability

10 | M A G S I N O , C h a r m a i n e B .

CIVIL PROCEDURE
Atty. Dela Pea

11 | M A G S I N O , C h a r m a i n e B .