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CIVIL PROCEDURE REVIEWER1

It is a remedy by which a party seeks


to establish a status, a right or a
CIVIL PROCEDURE REVIEWER
particular fact.

Based on Justice De Leon’s Outline, Civil


Procedure by Riano, San Beda Reviewer, and
GENERAL PROVISIONS (Rule 1)
1997 Rules of Court
Rule-making power of the Supreme Court
Digests (by Abdulwahid, Cabal, Comafay,
The Supreme Court has the constitutional
Fuster, Leynes, Mendame, Mendez, Paras &
power to promulgate rules concerning:
Regis) further summarized.
(1) Pleading,

BASIC PRINCIPLES
(2) Practice, and
(3) Procedure.
Difference between substantive and
remedial law Three (3) limitations on the SC’s rule-making
power:
SUBSTANTIVE LAW REMEDIAL LAW (1) The rules shall provide a simplified and
It creates, defines It prescribes the inexpensive procedure for the speedy
and regulates rights methods of disposition of cases;
and duties enforcing those (2) shall be uniform for courts of the same
concerning life, rights and grade; and
liberty or property, obligations created (3) shall not diminish, increase, or modify
which when violated by substantive law substantive rights.
gives rise to a cause by providing a
of action. procedural system Article 6, Sec. 30, Constitution—
for obtaining No law shall be passed increasing the
redress for the appellate jurisdiction of the Supreme Court as
invasion of rights provided in this Constitution without its advice
and violations of and concurrence.
duties and by
prescribing rules as Procedural and substantive rules
to how suits are Substantive law creates, defines, regulates,
filed, tried and and extinguishes rights and obligations, while
decided upon by the remedial or procedural law provides the
courts. procedure for the enforcement of rights and
obligations.
Civil actions, criminal actions, and special
proceedings Force and effect of Rules of Court
The Rules of Court have the force and effect of
(1) Civil actions— law, unless they happen to be inconsistent
with positive law.
It is one by which a party sues another
for the protection of a right or the
Power of Supreme Court to suspend the
prevention or redress of a wrong. Its
primary purpose is compensatory. Civil Rules of Court
Whenever demanded by justice, the Supreme
actions may be:
Court has the inherent power to
(a) Ordinary, or
(b) Special.
(a) suspend its own rules or
(b) exempt a particular case from the
Both are governed by rules for
ordinary civil actions, subject to operation of said rules.
specific rules prescribed for special
civil actions. May parties change the rules of
procedure?
(2) Criminal actions—
General rule: They may not. This is because
It is one by which the State prosecutes
these are matters of public interest.
a person for an act or omission
punishable by law. Its primary purpose
Exceptions:
is punishment.
Matters of procedure which may be
(3) Special proceedings—
 Agreed upon by the parties— Venue
may be changed by written agreement
of the parties (Rule 4, Sec. 4[b])

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER2

 Waived— Venue may be waived if not (2) the parties;


objected to in a motion to dismiss or in (3) the res if jurisdiction over the
the answer. (Rule 16, Sec. 6); defendant cannot be acquired;
judgment in default may be waived by (4) the issue of the case; and
failure to answer within 15 days. (5) Payment of docket fees.
 Fall within the discretion of the court—
The period to plead may be extended Jurisdiction over the subject matter is a matter
on motion of a party. (Rule 11, Sec. of substantive law.
11); rules of procedure may be relaxed Jurisdiction over the parties, the res
in the interest of justice. and the issues are matters of procedure.
Jurisdiction over the parties and the res are
JURISDICTION covered by the rule on summons, while
It is the power and authority of a court to hear, jurisdiction over the issues is subsumed under
try and decided a case. the rule on pleadings.

1. Generally (a) As to subject matter


 The statute in force at the time of the Jurisdiction over the subject matter is
commencement of the action conferred by the Constitution or by law.
determines the jurisdiction of the Therefore, jurisdiction over the subject
court. matter cannot be conferred by
 Before looking into other matters, it is
(1) Administrative policy of any
the duty of the court to consider the
court;
question of jurisdiction without waiting
(2) Court’s unilateral assumption
for it to be raised.
of jurisdiction;
• If court has jurisdiction, such (3) Erroneous belief by the court
must be exercised. Otherwise, that it has jurisdiction;
it may be enforced by a (4) By contract or by the parties;
mandamus proceeding.
(5) By agreement, or by any act or
• If court has no jurisdiction, the omission of the parties, nor by
court shall dismiss the claim acquiescence of the court; or
and can do so motu proprio. (6) By the parties’ silence,
 Doctrine of primary jurisdiction— acquiescence or consent
The courts will not resolve a
controversy involving a question which
 General Rule: It is determined by the
is within the jurisdiction of an
material allegations of the initiatory
administrative tribunal.
pleading (e.g., the complaint), not the
 Doctrine of continuing jurisdiction— answer of the defendant. Once acquired,
Once jurisdiction has attached to a jurisdiction is not lost because of the
court, it retains that jurisdiction until it defendant’s contrary allegation.
finally disposes of the case. Hence, it is Exception: In ejectment cases, where
not lost by tenancy is averred by way of defense and
• The passage of new laws is proved to be the real issue, the case
transferring the jurisdiction to should be dismissed for not being properly
another tribunal except when filed with the DARAB.
expressly provided by the
statute;  It is determined by the cause of action
• Subsequent filing of a notice of alleged, not by the amount substantiated
appeal; and awarded. Example: If a complaint
• The mere fact that a party who alleges a recoverable amount of P1M, RTC
is a public official ceased to be has jurisdiction even if evidence proves the
in office; or only P300k may be recovered.
• Finality of judgment (the court
still has jurisdiction to enforce Note: Jurisdiction over the subject matter
and execute it) CANNOT be waived, enlarged or diminished by
stipulation of the parties.
Elements of a valid exercise of
jurisdiction (b) As to res or property
(1) Jurisdiction over the subject matter or
nature of the case;
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER3

Jurisdiction over the res refers to the court’s from lack of jurisdiction over the
jurisdiction over the thing or the property person of the defendant shall not
which is the subject of the action. be deemed a voluntary
appearance. (Rule 14, Sec. 20)
Jurisdiction over the res is acquired by
(1) Custodia legis—placing the property or Examples:
thing under the court’s custody (e.g., When defendant files
attachment)  The necessary pleading;
(2) Statutory authority—statute conferring  A motion for reconsideration;
the court with power to deal with the  Petition to set aside judgment
property or thing within its territorial o f default;
jurisdiction  An answer;
(3) Summons by publication or other  Petition for certiorari without
modes of extraterritorial service (Rule questioning the court’s
14, Sec. 15) jurisdiction over his person; or
 When the parties jointly submit
(c) As to the issues a compromise agreement for
Issue— a disputed point or question to which approval
parties to an action have narrowed down their
several allegations and upon which they are BUT the filing of an answer should
desirous of obtaining a decision. Thus, where not be treated automatically as a
there is no disputed point, there is no issue. voluntary appearance when such
answer is precisely to object to the
Jurisdiction over the issue may be conferred or court’s jurisdiction over the
determined by defendant’s person.

(1) Examination of the pleadings— La Naval v. CA: A defendant should


Generally, jurisdiction over the issues be allowed to put up his own
is determined by the pleadings of the defenses alternatively or
parties. hypothetically. It should not be the
(2) Pre-trial— invocation of available additional
It may be conferred by stipulation of defenses that should be construed
the parties in the pre-trial, as when as a waiver of the defense of lack
they enter into stipulations of facts and of jurisdiction over the person, but
documents or enter into an agreement the failure to raise the defense.
simplifying the issues of the case (Rule
18, Sec. 2) Note: Jurisdiction over a non-resident
defendant cannot be acquired if the action
(3) Waiver—
is in personam.
Failure to object to presentation of
evidence on a matter not raised in the
2. Estoppel to deny jurisdiction
pleadings. Said issues tried shall be
treated as if they had been raised in
HEIRS OF BERTULDO HINOG v. MELICOR
the pleadings.
(455 SCRA 460, 2005)

(d) As to the parties


The court acquires jurisdiction over the Since the deceased defendant participated
in all stages of the case before the trial
court, he is estopped from denying the
 Plaintiff—
jurisdiction of the court. The petitioners
when he files his complaint
merely stepped into the shoes of their
predecessor and are effectively barred by
 Defendant— estoppel from challenging RTC’s
i. Valid service of summons upon jurisdiction.
him, or
ii. Voluntary appearance: FACTS: Bertuldo Hinog allegedly occupied and
“The defendant’s voluntary built a small house on a portion of a property
appearance in the action shall be owned by respondents Balane for 10 years at a
equivalent to service of summons. nominal annual rental. After 10 years, Bertuldo
The inclusion in a motion to refused to heed demands made by
dismiss of other grounds aside respondents to return said portion and to
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER4

remove the house constructed thereon. restaurant. Nevertheless, the two went out and
Respondents filed a complaint against him. were chased by the armed men. Vicente
Bertuldo filed his Answer, alleging ownership of successfully ran and hid behind a coconut tree
the disputed property by virtue of a Deed of while Ronie unfortunately went to the ricefield
Absolute Sale. Bertuldo died without and was shot to death there.
completing his evidence during the direct An Information alleging murder was
examination. Bertuldo’s original counsel was filed in the RTC against the 6 accused. RTC
replaced by Atty. Petalcorin who entered his convicted them of murder. On appeal, the
appearance as new counsel for the heirs of appellants questioned the jurisdiction of the
Bertuldo. RTC over the case, insisting that the
Atty. Petalcorin filed a motion to Sandiganbayan was the tribunal with
expunge the complaint from the record and jurisdiction since the accused were public
nullify all court proceedings on the ground officers at the time of the killing.
that private respondents failed to specify in
the complaint the amount of damages ISSUE: Whether the Sandiganbayan had
claimed so as to pay the correct docket fees; jurisdiction
and that under Manchester doctrine, non- NO. The jurisdiction of a court to try a
payment of the correct docket fee is criminal case is determined by the law in force
jurisdictional. at the time of the institution of the action.
Once the court acquires jurisdiction, it may not
ISSUE: Whether the petitioners are barred by be ousted from the case by any subsequent
estoppel from questioning the jurisdiction of events, such as a new legislation placing such
RTC proceedings under the jurisdiction of another
YES. The petitioners are barred from tribunal. Exceptions to this rule arise when: (1)
questioning jurisdiction of the trial court. there is an express provision in the statute, or
Although the issue of jurisdiction at any stage (2) the statute is clearly intended to apply to
of the proceedings as the same is conferred by actions pending before its enactment.
law, it is nonetheless settled that a party may Section 4-a-2 of PD 1606, as amended
be barred from raising it on the ground of by PD 1861 lists two requisites that must
estoppel. After the deceased Bertuldo concur before the Sandiganbayan may
participated in all stages of the case before the exercise exclusive and original jurisdiction over
trial court, the petitioners merely stepped into a case: (a) the offense was committed by the
the shoes of their predecessor and are accused public officer in relation to his office;
effectively barred by estoppel from challenging and (b) the penalty prescribed by law is higher
RTC’s jurisdiction. than prision correccional or imprisonment for
six (6) years, or higher than a fine of P6,000.
3. Jurisdiction at the time of filing of Sanchez vs. Demetriou clarified that
action murder or homicide may be committed both by
public officers and by private citizens, and that
PEOPLE v. CAWALING public office is not a constitutive element of
(293 SCRA 267, 1998) said crime. The relation between the crime and
the office contemplated should be direct and
The jurisdiction of a court to try a criminal not accidental.
case is determined by the law in force at The Information filed against the
the time of the institution of the action. appellants contains no allegation that
Once the court acquires jurisdiction, it may appellants were public officers who committed
not be ousted from the case by any the crime in relation to their office. The charge
subsequent events, such as a new was only for murder.
legislation placing such proceedings under In the absence of any allegation that
the jurisdiction of another tribunal. the offense was committed in relation to the
Exceptions to this rule arise when: (1) there office of appellants or was necessarily
is an express provision in the statute, or (2) connected with the discharge of their
the statute is clearly intended to apply to functions, the regional trial court, not the
Sandiganbayan, has jurisdiction to hear and
FACTS: Brothers Vicente and Ronie Elisan were decide the case.
drinking tuba at the kitchenette of one of the
accused, Fontamilla. When they were about to REGULAR COURTS (MTC, RTC, CA, SC)
leave, they were warned by Luz Venus that the (See San Beda Reviewer)
six (6) accused consisting of Mayor Cawaling,
four (4) policemen and a civilian, had been SPECIAL COURTS (Sandiganbayan)
watching and waiting for them outside the (See San Beda Reviewer)

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER5

ISSUE: Whether the law authorized an appeal


QUASI-JUDICIAL BODIES by the government from an adverse decision
of the MSBP
Securities and Exchange Commission NO. Under the Administrative Code of
(Sec. 5.2, RA 8799) 1987, decisions of the MPSB shall be final,
The Commission shall retain jurisdiction over except only “those involving dismissal or
separation from the service which may be
 Pending cases involving intra- appealed to the Commission”
corporate disputes submitted for final While it is true that the CSC does have
resolution which should be resolved the power to hear and decide administrative
within one (1) year from the enactment cases instituted by or brought before it directly
of this Code, and or on appeal, the exercise of the power is
qualified by and should be read together with
 Jurisdiction over pending suspension of
Sec. 49 of Executive Order 292, which
payments/rehabilitation cases filed as
prescribes, among others that “(a) the decision
of 30 June 2000 until finally disposed.
must be appealable.”
Under Section 47 of the Administrative
Civil Service Commission
Code, the CSC shall decide on appeal all
administrative disciplinary cases involving the
MAGPALE v. CSC (215 SCRA 398, 1992)
imposition of:
(a) a penalty of suspension for more than
Under Section 47 of the Administrative
30 days;
Code, the CSC shall decide on appeal all
administrative disciplinary cases involving (b) fine in an amount exceeding 30 days
the imposition of “… (d) removal or salary;
dismissal from office.” (c) demotion in rank or salary or transfer;
The MPSB decision did not involve or
dismissal or separation from office, rather, (d) removal or dismissal from office.
the decision exonerated petitioner and The MPSB decision did not involve dismissal or
ordered him reinstated to his former separation from office, rather, the decision
position. The MSPB decision was not a exonerated petitioner and ordered him
proper subject of appeal to the CSC. reinstated to his former position. The MSPB
decision was not a proper subject of appeal to
the CSC.
FACTS: Magpale, port manager of Philippine Settled is the rule that a tribunal,
Ports Authority-Port Management Unit (PPA- board, or officer exercising judicial functions
PMU) of Tacloban, was found by the Secretary acts without jurisdiction if no authority has
of DOTC guilty of Gross Negligence on two been conferred by law to hear and decide the
counts: (a) for his failure to account for the 44 case.
units of equipment and (b) for failing to render
the required liquidation of his cash advances Housing and Land Use Regulatory Board
amounting to P44,877.00 for a period of 4 yrs. (HLURB)
He was also found guilty of frequent and
unauthorized absences. He was meted the SANDOVAL v. CAÑEBA
penalty of dismissal from the service with the (190 SCRA 77, 1991)
corresponding accessory penalties.
He appealed to the Merit System and
Protection Board (MSPB) of the Civil Service It is not the ordinary courts but the
Commission (CSC). The MSPB reversed the National Housing Authority (NHA) which
decision. has exclusive jurisdiction to hear and
PPA filed an appeal with the Civil decide cases of (a) unsound real estate
Service Field Office-PPA, which indorsed the business practices; (b) claims involving
appeal to CSC. Magpale moved for the refund and any other claims filed by
implementation of the MSPB decision which subdivision lot or condominium unit buyer
was opposed by the PPA. MSPB ordered the against the project owner, developer,
immediate implementation of its decision, dealer, broker or salesman; and (c) cases
which became final and executory. involving specific performance of
Respondent CSC reversed MPSB’s contractual and statutory obligations filed
decision and held Magpale guilty. by buyers of subdivision lot or
condominium unit against the owner,

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER6

FACTS: Estate Developers and Investors The distinction between a real action and a
Corporation (Estate) filed a complaint against personal action is important for the purpose of
Nestor Sandoval (Sandoval) in the RTC for the determining the venue of the action.
collection of unpaid installments of a
subdivision lot, pursuant to a promissory note, (a) Personal
plus interest. Sandoval alleges that he Personal actions are those other than real
suspended payments thereof because of the actions. (Sec. 2, Rule 4)
failure of the developer to develop the
subdivision pursuant to their agreement. The Examples
RTC ruled in favor of Estate, and ordered  Action for specific performance
Sandoval to pay. A writ of execution was  Action for damages to real property
issued which thereafter became final and  Action for declaration of the nullity of
executory. marriage
Sandoval filed a motion to vacate  Action to compel mortgagee to accept
judgment and to dismiss the complaint on the payment of the mortgage debt and
ground that the RTC had no jurisdiction over release the mortgage
the subject matter. A motion for
reconsideration of the writ of execution was (b) Real
also filed by petitioner. Estate opposed both An action is real when it affects title to or
motions. RTC denied the motion to vacate for possession of real property, or an interest
the reason that it is now beyond the therein. (Sec. 1, Rule 4)
jurisdiction of the court to do so. A new writ of To be a real action, it is not enough
execution was issued. that it deals with real property. It is important
Sandoval filed a petition alleging that that the matter in litigation must also involve
the RTC committed grave abuse of discretion any of the following issues:
since the exclusive and original jurisdiction (a) Title;
over the subject-matter thereof is vested with (b) Ownership;
the Housing and Land Use Regulatory Board (c) Possession;
(HLURB) pursuant to PD 957. (d) Partition;
(e) Foreclosure of mortgage; or
ISSUE: Whether the ordinary courts have
(f) Any interest in real property
jurisdiction over the collection of unpaid
installments regarding a subdivision lot
Examples
NO. Under Section 1 of Presidential
 Action to recover possession of real
Decree No. 957 the National Housing Authority
property plus damages (damages is
(NHA) was given the exclusive jurisdiction to
merely incidental)
hear and decide certain cases of the following
nature:  Action to annul or rescind a sale of real
(a) Unsound real estate business property
practices:
(b) Claims involving refund and any other
claims filed by subdivision lot or
condominium unit buyer against the 2. As to object
project owner, developer, dealer, The distinctions are important
broker or salesman; and (a) to determine whether the jurisdiction
(c) Cases involving specific performance of the defendant is required, and
of contractual and statutory obligations (b) to determine the type of summons to
filed by buyers of subdivision lot or be employed
condominium unit against the owner,
developer, dealer, broker or salesman. (a) In rem
The exclusive jurisdiction over the case An action is in rem when it is directed against
between the petitioner and private respondent the whole world. It is for the determination of
is vested not on the RTC but on the NHA. The the state or condition of a thing.
NHA was re-named Human Settlements
Regulatory Commission and thereafter it was Examples
re-named as the Housing and Land Use  Probate proceeding
Regulatory Board (HLURB).  Cadastral proceeding

KINDS OF ACTION (b) In personam


A proceeding in personam is a proceeding to
1. As to cause or foundation enforce personal rights and obligations

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER7

brought against the person and is based on the for a motion to dismiss. (Sec. 1 [j], Rule
jurisdiction of the person. 16)
Its purpose is to impose some
responsibility or liability directly upon the Examples:
person of the defendant. In an action in  Tender of payment before consignation
personam, no one other than the defendant is  Exhaustion of administrative remedies
sought to be held liable.  Prior resort to barangay conciliation
proceedings
Examples  Earnest efforts towards a compromise
 Action for sum of money  Arbitration proceedings, when contract
 Action for damages so provides

(c) Quasi in rem Katarungang Pambarangay (RA 7160)


An action quasi in rem is one wherein an Purpose: To reduce the number of court
individual is named as defendant and the litigations and prevent the deterioration of the
purpose of the proceeding is to subject his quality of justice which has been brought by
interest therein to the obligation or lien the indiscriminate filing of cases in the courts.
burdening the property.
 Only individuals shall be parties to KB
Such action deals with the status,
proceedings, no juridical entities.
ownership or liability of a particular property,
but which are intended to operate on these  Parties must personally appear in all
questions only as between the particular KB proceedings and without assistance
parties to the proceedings, and not to of counsel or representatives, except
ascertain or cut-off the rights or interests of all for minors and incompetents who may
possible claimants. be assisted by their next-of-kin, not
lawyers.
NOTE: These rules are inapplicable in the  Conciliation proceedings required is
following cases: not a jurisdictional requirement.
(1) Election cases;  NOTE: Failure to undergo the barangay
(2) Land registration; conciliation proceedings is non-
(3) Cadastral; compliance of a condition precedent.
(4) Naturalization; Hence, a motion to dismiss a civil
(5) Insolvency proceedings; complaint may be filed. (Sec. 1 [j], Rule
(6) Other cases not herein provided for, 16).
except by analogy or in a suppletory  BUT the court may not motu proprio
character, and whenever practicable dismiss the case for failure to undergo
and convenient. conciliation.
(Sec. 4, Rule 1)
Initiation of proceedings
COMMENCEMENT OF ACTION (Sec. 5, Rule (1) Payment of appropriate filing fee
1)
(2) Oral or written complaint to the
A civil action is commenced
Punong Barangay (chairman of the
 by the filing of the original complaint in Lupon)
court, or (3) Chairman shall summon respondents
 on the date of the filing of the later to appear the next working day
pleading if an additional defendant is (4) Mediation proceedings for 15 days
impleaded irrespective of whether the (5) Should the chairman fail in his
motion for its admission, if necessary, mediation efforts within said period, he
is denied by the court. shall constitute the Pangkat
(with respect only to the defendant Tagapagkasundo,
later impleaded) (6) If no amicable settlement is reached,
the chairman shall issue a certification
1. Condition precedent to file action.
— matters which must be complied with before
a cause of action arises. All amicable settlements shall be
 When a claim is subject to a condition (1) In writing;
precedent, compliance must be (2) In a language or dialect known to the
alleged in the pleading. parties;
 Failure to comply with a condition (3) Signed by them; and
precedent is an independent ground

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER8

(4) Attested to by the lupon chairman or when the mandatory mediation and
the pangkat chairman, as the case conciliation in the barangay level had not been
may be. complied with, the court should dismiss the
case and not just remand the records to the
Effect court of origin so that the parties may go
The amiable settlement and arbitration award through the prerequisite proceedings.
shall have the effect of a final judgment of a
court upon expiration of 10 days from date ISSUE: Whether the CA properly dismissed
thereof, unless: complaint for failure of the parties to comply
(1) Repudiation of the settlement has with the mandatory mediation and conciliation
been made, or proceedings in the barangay level
(2) Petition to nullify the award has been NO. It should be noted that although
filed before the proper city or no pangkat was formed since no amicable
municipal ourt settlement was reached by the parties before
Execution shall issue upon expiration of 10 the Katarungang Pambarangay, there was
days from settlement. substantial compliance with Section 412(a) of
R.A. 7160.
LUMBUAN v. RONQUILLO While admittedly no pangkat was
(489 SCRA 650, 2006) constituted, the parties met at the office of the
Barangay Chairman for possible settlement.
Thereby, the act of petitioner Lumbuan in
While admittedly no pangkat was
raising the matter to the Katarungang
constituted, the parties met at the office of
Pambarangay and the subsequent
the Barangay Chairman for possible
confrontation of the lessee and lessor before
settlement. The act of Lumbuan in raising
the Lupon Chairman or the pangkat is
the matter to the Katarungang
sufficient compliance with the precondition for
Pambarangay and the subsequent
filing the case in court. This is true
confrontation of the lessee and lessor
notwithstanding the mandate of Section 410(b)
before the Lupon Chairman or the pangkat
of the same law that the Barangay Chairman
is sufficient compliance with the
shall constitute a pangkat if he fails in his
precondition for filing the case in court.
mediation efforts. Section 410(b) should be
construed together with Section 412, as well as
FACTS: Lumbuan (lessor) leased a lot to the circumstances obtaining in and peculiar to
respondent Ronquillo (lessee) for 3 years at a the case. On this score, it is significant that the
rental of P5000/month. They agreed that: (a) Barangay Chairman or Punong Barangay is
there will be an annual 10% increase in rent herself the Chairman of the Lupon under the
for the next 2 years; and (b) the leased Local Government Code.
premises shall be used only for lessee’s
fastfood business. Ronquillo failed to abide by 2. Payment of filing fee
the conditions, and refused to pay or vacate Payment of the prescribed docket fee vests a
the leased premises despite Lumbuan’s trial court with jurisdiction over the subject
repeated verbal demands. matter or nature of the action. The court
Lumbuan referred the matter to the acquires jurisdiction upon payment of the
Barangay Chairman’s Office but no amicable correct docket fees.
settlement was reached. The barangay  All complaints, petitions, answers, and
chairman issued a Certificate to File Action. similar pleadings must specify the
Lumbuan filed an action for Unlawful Detainer amount of damages being prayed for,
with MeTC of Manila which ordered respondent both in the body of the pleadings and
Ronquillo to vacate the leased premises and to in the assessment of the filing fees.
pay P46,000 as unpaid rentals.
RTC set aside the MeTC decision and
 Manchester v. CA: Any defect in the
original pleading resulting in
directed the parties to go back to the Lupon
underpayment of the docket fee
Chairman or Punong Barangay for further
cannot be cured by amendment, and
proceedings and to comply strictly with the
for all legal purposes, the court
condition that should the parties fail to reach
acquired no jurisdiction in such case.
an amicable settlement, the entire case will be
remanded to the MeTC for it to decide the case  BUT nonpayment of filing fees does
anew. not automatically cause the dismissal
The CA reversed the RTC and ordered of the case. The fee may be paid within
the dismissal of the ejectment case, ruling that the applicable prescriptive or
when a complaint is prematurely instituted, as reglementary period.

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER9

Where the filing of the initiatory pleading is


HEIRS OF BERTULDO HINOG v. MELICOR not accompanied by payment of the docket
(455 SCRA 460, 2005) fee, the court may allow payment of the fee
within a reasonable time but in no case
Non-payment at the time of filing does not beyond the applicable prescriptive or
automatically cause the dismissal of the reglementary period. Where the trial court
case, as long as the fee is paid within the acquires jurisdiction over a claim by the
applicable prescriptive or reglementary filing of the pleading and payment of
period, more so when the party involved prescribed filing fees but the judgment
demonstrates a willingness to abide by the awards a claim not specified in the
rules prescribing such payment. Thus, when pleading, or if specified the same has been
insufficient filing fees were initially paid by left for the court’s determination, the
the plaintiffs and there was no intention to additional filing fee shall constitute a lien
defraud the government, the Manchester on the judgment. It shall be the
rule does not apply. responsibility of the Clerk of Court or his
duly authorized deputy to enforce said lien
FACTS: Respondents filed a complaint against FACTS
Bertuldo for recovery of ownership of the Sun Insurance Office, Ltd. (SIOL) filed a
premises leased by the latter. Bertuldo alleged complaint against Uy for the consignation of a
ownership of the property by virtue of a Deed premium refund on a fire insurance policy with
of Absolute Sale. Bertuldo died without a prayer for the judicial declaration of its
completing his evidence during the direct nullity. Uy was declared in default for failure to
examination. Atty. Petalcorin replaced the file the required answer within the
original counsel and filed a motion to expunge reglementary period. Uy filed a complaint in
the complaint from the record and nullify all the RTC for the refund of premiums and the
court proceedings on the ground that private issuance of a writ of preliminary attachment
respondents failed to specify in the initially against petitioner SIOL, but thereafter
complaint the amount of damages claimed included Philipps and Warby as additional
as needed to pay the correct docket fees, and defendants. The complaint sought the
that under Manchester doctrine, non-payment payment of actual, compensatory, moral,
of the correct docket fee is jurisdictional. exemplary and liquidated damages, attorney's
fees, expenses of litigation and costs of the
ISSUE: Whether the nonpayment of the correct suit. Although the prayer in the complaint did
docket fee is jurisdictional in the present case not quantify the amount of damages sought
NO. While the payment of the said amount may be inferred from the body of
prescribed docket fee is a jurisdictional the complaint to be about P50,000,000.
requirement, even its non-payment at the time Uy paid only P210.00 as docket fee,
of filing does not automatically cause the which prompted petitioners' counsel to raise
dismissal of the case, as long as the fee is paid his objection for under-assessment of docket
within the applicable prescriptive or fees.
reglementary period, more so when the party Petitioners allege that while Uy had
involved demonstrates a willingness to abide paid P182,824.90 as docket fee, and
by the rules prescribing such payment. Thus, considering that the total amount sought in the
when insufficient filing fees were initially paid amended and supplemental complaint is
by the plaintiffs and there was no intention to P64,601,623.70, the docket fee that should be
defraud the government, the Manchester rule paid by private respondent is P257,810.49,
does not apply. more or less. Not having paid the same,
petitioners contend that the complaint should
SUN INSURANCE OFFICE v. ASUNCION be dismissed and all incidents arising
(170 SCRA 274, 1989) therefrom should be annulled.

ISSUE: Whether or not a court acquires


jurisdiction over case when the correct and
proper docket fee has not yet been paid
YES. Where the filing of the initiatory
pleading is not accompanied by payment of
the docket fee, the court may allow payment
of the fee within a reasonable time but in no
case beyond the applicable prescriptive or
reglementary period. Where the trial court

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER10

acquires jurisdiction over a claim by the filing into several parts or claims and bringing
of the appropriate pleading and payment of several actions thereon.
the prescribed filing fee but, subsequently, the  A party may not institute more than
judgment awards a claim not specified in the one suit for a single cause of action.
pleading, or if specified the same has been left (Sec. 3, Rule 2)
for determination by the court, the additional
 If two or more suits are instituted on
filing fee therefore shall constitute a lien on
the basis of the same cause of action,
the judgment. It shall be the responsibility of
the filing of one or a judgment upon
the Clerk of Court or his duly authorized
the merits in any one is available as a
deputy to enforce said lien and assess and
ground for the dismissal of the others.
collect the additional fee.
(Sec. 4, Rule 2)
The same rule applies to permissive
 Applies also to counterclaims and
counterclaims, third party claims and similar
cross-claims.
pleadings, which shall not be considered filed
until and unless the filing fee prescribed
Examples
therefore is paid.

Single cause of action (Cannot be filed


separately)
CAUSE OF ACTION (RULE 2)
 A suit for the recovery of land and a
separate suit to recover the fruits
Cause of Action
 Action to recover damages to person
A cause of action is the act or omission by
and action for damages to same
which a party violates the rights of another.
person’s car
(Sec. 2, Rule 2)
Every ordinary civil action must be  Action for recovery of taxes and action
based on a cause of action. (Sec. 1, Rule 2) to demand surcharges resulting from
delinquency in payment of said taxes
Elements:  Action to collect debt and to foreclose
mortgage
(1) A legal right in favor of the plaintiff;
 Action for partition and action for the
(2) A correlative obligation on the part of recovery of compensation on the
the named defendant to respect or to
improvements
not violate such right; and
 Action for annulment of sale and action
(3) Act or omission on the part of to recover dividends
defendant in violation of the right of
the plaintiff, or constituting a breach of Distinct causes of action (separate filing
the obligation of the defendant to the allowed)
plaintiff for which the latter may
 Action for reconveyance of title over
maintain an action for recovery of property and action for forcible entry
damages or other appropriate relief.
or unlawful detainer
 Action for damages to a car in a
Distinguished from right of action
vehicular accident, and another action
Cause of action is the reason for bringing an
for damages for injuries to a passenger
action, the formal statement of operative facts
other than the owner of the car
giving rise to a remedial right, and is governed
 Action to collect loan and action for
by procedural law. A right of action is the
rescission of mortgage
remedy for bringing an action and is solely
 Action based on breach of contract of
dependent on substantive law.
carriage and action based on quasi-
delict
Right of action, elements
(1) There must be a good cause;
(2) A compliance with all the conditions
precedent to the bringing of the action;
and JOSEPH v. BAUTISTA
(3) The action must be instituted by the (170 SCRA 540, 1989)
proper party.

Splitting a cause of action


Splitting of cause of action is the act of
dividing a single or indivisible cause of action

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER11

Where there is only one delict or wrong, action was involved although the bases of
there is but a single cause of action recovery invoked by petitioner against the
regardless of the number of rights that may defendants therein were not necessarily
have been violated belonging to one person. identical since the respondents were not
Nevertheless, if only one injury resulted identically circumstanced.
from several wrongful acts, only one cause
of action arises.

FACTS: Joseph, petitioner, boarded Perez’s DEL ROSARIO v. FEBTC


cargo truck with a load of livestock. At the (537 SCRA 571, 2007)
highway, the truck driver overtook a tricycle
but hit a mango tree when a pick-up truck tried
It is well established, however, that a party
to overtake him at the same time. This
cannot, by varying the form of action or
resulted to the bone fracture of the petitioner’s
adopting a different method of presenting
leg.
his case, or by pleading justifiable
Petitioner filed a complaint for
circumstances as herein petitioners are
damages against Perez, as owner, based on a
doing, escape the operation of the principle
breach of contract of carriage, and against
that one and the same cause of action shall
Sioson and Villanueva, the owner and driver of
not be twice litigated.
the pick-up truck, based on quasi-delict.
Petitioner impleaded Pagarigan and Vargas,
since he could not ascertain who the real FACTS: PDCP extended a P4.4 million loan to
owners of the pick-up truck and the cargo DATICOR, which that DATICOR shall pay: a
truck were. Perez filed a cross-claim against service fee of 1% per annum (later increased
the other respondents for indemnity, in the 6% per annum) on the outstanding balance;
event that she is ordered to pay. 12% per annum interest; and penalty charges
The other respondents paid petitioner's 2% per month in case of default. The loans
claim for injuries, so they were released from were secured by real estate mortgages over
liability. They also paid Perez for her claim of six (6) parcels of land and chattel mortgages
damages. They thereafter filed a Motion to over machinery and equipment.
Exonerate and Exclude themselves since DATICOR paid a total of P3 million to
they’ve already paid Joseph by way of PDCP, which the latter applied to interest,
amicable settlement and Perez’s claim for service fees and penalty charges. This left
damages. Perez filed an Opposition to the them with an outstanding balance of P10
motion since the release of claim executed by million according to PDCP’s computation.
petitioner in favor of the other respondents DATICOR filed a complaint against
allegedly inured to his benefit. RTC dismissed PDCP for violation of the Usury Law and
the case. annulment of contract and damages. The CFI
dismissed the complaint. The IAC set aside the
ISSUE: Whether the judgment on the dismissal and declared void and of no effect
compromise agreement under the cause of the stipulation of interest in the loan
action based on quasi-delict is a bar to the agreement. PDCP appealed the IAC's decision
cause of action for breach of contract of to SC.
carriage In the interim, PDCP assigned a portion
YES. A single act or omission can be of its receivables from DATICOR to FEBTC for
violative of various rights at the same time, as of P5.4 M. FEBTC and DATICOR, in a MOA,
when the act constitutes a juridical a violation agreed to P6.4 million as full settlement of the
of several separate and distinct legal receivables.
obligations. However, where there is only one SC affirmed in toto the decision of the
delict or wrong, there is but a single cause of IAC, nullifying the stipulation of interests.
action regardless of the number of rights that DATICOR thus filed a Complaint for
may have been violated belonging to one sum of money against PDCP and FEBTC to
person. Nevertheless, if only one injury recover the excess payment which they
resulted from several wrongful acts, only one computed to be P5.3 million. RTC ordered
cause of action arises. PDCP to pay petitioners P4.035 million, to bear
There is no question that petitioner interest at 12% per annum until fully paid; to
sustained a single injury on his person, which release or cancel the mortgages and to return
vested in him a single cause of action, albeit the corresponding titles to petitioners; and to
with the correlative rights of action against the pay the costs of the suit.
different respondents through the appropriate RTC dismissed the complaint against
remedies allowed by law. Only one cause of FEBTC for lack of cause of action since the

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER12

MOA between petitioners and FEBTC was not SC held that to allow the re-litigation of
subject to SC decision, FEBTC not being a party an issue that was finally settled as between
thereto. petitioners and FEBTC in the prior case is to
Petitioners and PDCP appealed to the allow the splitting of a cause of action, a
CA, which held that petitioners' outstanding ground for dismissal under Section 4 of Rule 2
obligation (determined to be only P1.4 million) of the Rules of Court.
could not be increased or decreased by any act This rule proscribes a party from
of the creditor PDCP, and held that when PDCP dividing a single or indivisible cause of action
assigned its receivables, the amount payable into several parts or claims and instituting two
to it by DATICOR was the same amount or more actions based on it. Because the
payable to assignee FEBTC, irrespective of any plaintiff cannot divide the grounds for
stipulation that PDCP and FEBTC might have recovery, he is mandated to set forth in his
provided in the Deed of Assignment, DATICOR first action every ground for relief which he
not having been a party thereto, hence, not claims to exist and upon which he relies; he
bound by its terms. cannot be permitted to rely upon them by
By the principle of solutio indebiti, the piecemeal in successive actions to recover for
CA held that FEBTC was bound to refund the same wrong or injury.
DATICOR the excess payment of P5 million it Both the rules on res judicata and
received; and that FEBTC could recover from splitting of causes of action are based on the
PDCP the P4.035 million for the overpayment salutary public policy against unnecessary
for the assigned receivables. But since multiplicity of suits—interest reipublicae ut sit
DATICOR claimed in its complaint only finis litium. Re-litigation of matters already
of P965,000 from FEBTC, the latter was settled by a court's final judgment merely
ordered to pay them only that amount. burdens the courts and the taxpayers, creates
Petitioners filed before the RTC uneasiness and confusion, and wastes valuable
another Complaint against FEBTC to recover time and energy that could be devoted to
the balance of the excess payment of P4.335 worthier cases.
million.
The trial court dismissed petitioners'
complaint on the ground of res judicata and
splitting of cause of action. It recalled that PROGRESSIVE DEVELOPMENT CORP. v. CA
petitioners had filed an action to recover the (301 SCRA 367, 1991)
alleged overpayment both from PDCP and
FEBTC and that the CA Decision, ordering PDCP When a single delict or wrong is committed
to release and cancel the mortgages and — like the unlawful taking or detention of
FEBTC to pay P965,000 with interest became the property of another — there is but one
final and executory. single cause of action regardless of the
number of rights that may have been
ISSUE: Whether FEBTC can be held liable for violated, and all such rights should be
the balance of the overpayment of P4.335 alleged in a single complaint as constituting
million plus interest which petitioners one single cause of action. In a forcible
previously claimed against PDCP in a entry case, the real issue is the physical
previously decided case possession of the real property. The
NO. A cause of action is the delict or question of damages is merely secondary or
the wrongful act or omission committed by the incidental, so much so that the amount
defendant in violation of the primary rights of thereof does not affect the jurisdiction of
the plaintiff. In the two cases, petitioners the court. In other words, the unlawful act of
imputed to FEBTC the same alleged wrongful a deforciant in taking possession of a piece
act of mistakenly receiving and refusing to of land by means of force and intimidation
return an amount in excess of what was due it against the rights of the party actually in
in violation of their right to a refund. The same possession thereof is a delict or wrong, or a
facts and evidence presented in the first case cause of action that gives rise to two (2)
were the very same facts and evidence that remedies, namely, the recovery of
petitioners presented in the second case. possession and recovery of damages arising
A party cannot, by varying the form of from the loss of possession, but only to
action or adopting a different method of one action. For obvious reasons, both
presenting his case, or by pleading justifiable remedies cannot be the subject of two
circumstances as herein petitioners are doing, (2) separate and independent actions,
escape the operation of the principle that one one for recovery of possession only, and the
and the same cause of action shall not be
twice litigated.

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER13

FACTS: PDC leased to Westin a parcel of land found therein, the RTC and not the MeTC had
with a commercial building for 9 years and 3 jurisdiction over the action of damages.
months, with a monthly rental of
approximately P600,000. Westin failed to pay ISSUE: Whether Westin may institute a
rentals despite several demands. The separate suit for damages with the RTC after
arrearages amounted to P8,6M. PDC having instituted an action for forcible entry
repossessed the leased premises, inventoried with damages with the MeTC
the movable properties found within and NO. Sec. 1 of Rule 70 of the Rules of
owned by Westin, and scheduled a public Court provides that all cases for forcible entry
auction for the sale of the movables, with or unlawful detainer shall be filed before the
notice to Westin. MTC which shall include not only the plea for
Westin filed a forcible entry case with restoration of possession but also all claims for
the MeTC against PDC for with damages and a damages and costs arising therefrom.
prayer for a temporary restraining order and/or Otherwise expressed, no claim for damages
writ of preliminary injunction. A TRO enjoined arising out of forcible entry or unlawful
PDC from selling Westin's properties. detainer may be filed separately and
At the continuation of the hearing, the independently of the claim for restoration of
parties agreed, among others, that Westin possession.
would deposit with the PCIB (Bank) P8M to Under Sec. 3 of Rule 2 of the Revised
guarantee payment of its back rentals. Westin Rules of Court, as amended, a party may not
did not comply with its undertaking, and institute more than one suit for a single cause
instead, with the forcible entry case still of action. Under Sec. 4 of the same Rule, if
pending, Westin instituted another action for two or more suits are instituted on the basis of
damages against PDC with the RTC. the same cause of action, the filing of one or a
The forcible entry case had as its judgment upon the merits in any one is
cause of action the alleged unlawful entry by available as a ground for the dismissal of the
PDC into the leased premises out of which other or others.
three (3) reliefs arose: (a) the restoration by Westin's cause of action in the forcible
PDC of possession of the leased premises to entry case and in the suit for damages is the
the lessee; (b) the claim for actual damages alleged illegal retaking of possession of the
due to losses suffered by Westin; and, (c) the leased premises by PDC from which all legal
claim for attorney’s fees and cost of suit. reliefs arise. Simply stated, the restoration of
On the other hand, the complaint for possession and demand for actual damages in
damages prays for a monetary award the case before the MeTC and the demand for
consisting of moral and exemplary damages; damages with the RTC both arise from the
actual damages and compensatory damages same cause of action, i.e., the forcible entry by
representing unrealized profits; and, attorney's PDC into the least premises. The other claims
fees and costs, all based on the alleged for moral and exemplary damages cannot
forcible takeover of the leased premises by succeed considering that these sprung from
PDC. the main incident being heard before the
PDC filed a motion to dismiss the MeTC. Jurisprudence says that when a single
damage suit on the ground of litis pendencia delict or wrong is committed — like the
and forum shopping. The RTC, instead of ruling unlawful taking or detention of the property of
on the motion, archived the case pending the the another — there is but one single cause of
outcome of the forcible entry case. action regardless of the number of rights that
Westin filed with the RTC an amended may have been violated, and all such rights
complaint for damages, which was granted. It should be alleged in a single complaint as
also filed an Urgent Ex-Parte Motion for the constituting one single cause of action. In a
Issuance of a TRO and Motion for the Grant of forcible entry case, the real issue is the
a Preliminary Prohibitory and Preliminary physical possession of the real property. The
Mandatory Injunction, which were all granted. question of damages is merely secondary or
PDC’s motion to dismiss was denied. incidental, so much so that the amount thereof
Thus, PDC filed with the CA a special does not affect the jurisdiction of the court. In
civil action for certiorari and prohibition. But other words, the unlawful act of a deforciant in
the CA dismissed the petition. It clarified that taking possession of a piece of land by means
since the damages prayed for in the amended of force and intimidation against the rights of
complaint with the RTC were those caused by the party actually in possession thereof is a
the alleged high-handed manner with which delict or wrong, or a cause of action that gives
PDC reacquired possession of the leased rise to two (2) remedies, namely, the recovery
premises and the sale of Westin's movables of possession and recovery of damages arising
from the loss of possession, but only to one

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER14

action. For obvious reasons, both remedies Chapel built by petitioner CGR Corporation and
cannot be the subject of two (2) separate and decapitated the heads of the religious figures.
independent actions, one for recovery of
possession only, and the other, for the ISSUE: Whether during the pendency of a
recovery of damages. That would inevitably separate complaint for Forcible Entry, the
lead to what is termed in law as splitting up a petitioner can independently institute and
cause of action. maintain an action for damages which they
What then is the effect of the dismissal claim arose from incidents occurring after the
of the other action? Since the rule is that all forcible entry of Treyes and his men
such rights should be alleged in a single YES. The only recoverable damages in
complaint, it goes without saying that those the forcible entry and detainer cases instituted
not therein included cannot be the subject of first by the petitioners with the MTC are the
subsequent complaints for they are barred “rents” or fair rental value of the property from
forever. If a suit is brought for a part of a the time of dispossession by the respondent.
claim, a judgment obtained in that action Hence, other damages being claimed by the
precludes the plaintiff from bringing a second petitioners must be claimed in another
action for the residue of the claim, ordinary civil action.
notwithstanding that the second form of action It is noteworthy that the second action
is not identical with the first or different instituted by the petitioners (complaint for
grounds for relief are set for the second suit. damages) have NO direct relation to their loss
This principle not only embraces what was of possession of the leased premises – which is
actually determined, but also extends to every the main issue in the first action they
matter which the parties might have litigated instituted. The second action for claim of
in the case. This is why the legal basis upon damages had to do with the harvesting and
which Westin anchored its second claim for carting away of milkfish and other marine
damages, i.e., Art. 1659 in relation to Art. 1654 products, as well as the ransacking of the
of the Civil Code, not otherwise raised and chapel built by CGR Corp. Clearly, the
cited by Westin in the forcible entry case, institution of the two cases is not a splitting of
cannot be used as justification for the second a cause of action, since both are concerned
suit for damages. with entirely different issues.

CGR CORP. V. TREYES ENRIQUEZ v. RAMOS


(522 SCRA 765, 2007) (7 SCRA 265, 1963)

Petitioners’ filing of an independent action An examination of the first complaint filed


for damages grounded on the alleged against appellant in CFI showed that it was
destruction of CGR’s property, other than based on appellants' having unlawfully
those sustained as a result of dispossession stopped payment of the check for
in the Forcible Entry case could not be P2,500.00 she had issued in favor of
considered as splitting of a cause of action. appellees; while the complaint in the
second and present action was for non-
FACTS: CGR Corporation, Herman Benedicto payment of the balance of P96,000.00
and Alberto Benedicto, petitioners, claim to guaranteed by the mortgage. The claim for
have occupied 37 ha. of public land in Negros P2,500.00 was, therefore, a distinct debt
Occidental, pursuant to a lease agreement not covered by the security. The two
granted to them by the Secretary of causes of action being different, section 4
Agriculture for a period of 25 years (to last of Rule 2 does not apply.
October 2000 to December 2024). On
November 2000, however, respondent Treyes FACTS: Rodrigo Enriquez and the Dizon
allegedly forcibly and unlawfully entered the spouses sold to Socorro Ramos 11 parcels of
leased premises and barricaded the entrance land for P101,000. Ramos paid P5,000
to the fishponds of the petitioners. Treyes and downpayment, P2,500 in cash, and with a
his men also harvested tons of milkfish and P2,500.00 check drawn against PNB, and
fingerlings from the petitioners’ ponds. agreed to satisfy the balance of P96,000.00
Petitioners then filed a complaint for within 90 days. To secure the said balance,
Forcible Entry with the MTC. Another complaint Ramos, in the same deed of sale, mortgaged
to claim for damages was also filed by the the 11 parcels in favor of the vendors. Ramos
petitioners against the same respondent mortgaged a lot on Malinta Estate as additional
Treyes grounded on the allegations that Treyes security, as attorney-in-fact of her four children
and his men also destroyed and ransacked the and as judicial guardian of her minor child.

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER15

Ramos failed to comply with the


conditions of the mortgage, so an action for (b) Answer alleging affirmative defense
foreclosure was filed by the vendors- (Sec. 6, Rule 16)—
mortgagees. Ramos moved to dismiss, alleging If no motion to dismiss has been filed,
that the plaintiffs previously had filed action any of the grounds for dismissal
against her in the CFI of Manila for the provided for in this Rule may be
recovery of P2,500.00 paid by check as part of pleaded as an affirmative defense in
the down payment on the price of the the answer and, in the discretion of the
mortgaged lands; that at the time this first suit court, a preliminary hearing may be
was filed, the mortgage debt was already had thereon as if a motion to dismiss
accrued and demandable; that plaintiffs were had been filed.
guilty of splitting a single cause of action, and
under section 4 of Rule 2 of the Rules of Court, NOTE: As to which action should be dismissed
the filing of the first action for P2,500.00 was a (the first or second one) would depend upon
defense that could be pleaded in abatement of judicial discretion and the prevailing
the second suit. circumstances of the case.
CFI of Quezon City denied the motion
to dismiss. Defendant Ramos re-pleaded the
averments as a special defense in her answer.
The CFI ruled against defendant Ramos;
ordered her to pay P96,000.00, with 12% Joinder of causes of action
interest, attorney's fees, and the costs of the Joinder of causes of action is the assertion of
suit; and further decreed the foreclosure sale as many causes of action as a party may have
of the mortgaged properties in case of non- against another in one pleading. It is the
payment within 90 days. Ramos appealed process of uniting two or more demands or
directly to SC, rights of action in one action.
 This is merely permissive, NOT
ISSUE: Whether there was splitting of cause of
compulsory, because of the use of the
action
word “may” in Sec. 5, Rule 2.
NO, there is no splitting of cause of
action in this case. An examination of the first
It is subject to the following conditions:
complaint filed against appellant in CFI showed
that it was based on appellants' having
(a) The party joining the causes of action
unlawfully stopped payment of the check for shall comply with the rules on joinder
P2,500.00 she had issued in favor of appellees, of parties;
while the complaint in the second and present i. The right to relief should arise
action was for non-payment of the balance of out of the same transaction or
P96,000.00 guaranteed by the mortgage. The series of transaction, and
claim for P2,500.00 was, therefore, a distinct ii. There exists a common
debt not covered by the security. The two question of law or fact. (Sec. 6,
causes of action being different, section 4 of Rule 3)
Rule 2 does not apply. (b) The joinder shall not include special
civil actions or actions governed by
Remedy against splitting a single cause special rules;
of action  Example: An action for claim of
money cannot be joined with
(a) Motion to dismiss (Sec 1 [e] or [f], Rule an action for ejectment, or with
16)— an action for foreclosure.
Within the time for but before filing the (c) Where the causes of action are
answer to the complaint or pleading between the same parties but pertain
asserting a claim, a motion to dismiss to different venues or jurisdictions, the
may be made on any of the following joinder may be allowed in the RTC
grounds: provided
xxx
i. one of the causes of action
(e) That there is another action
falls within the jurisdiction of
pending between the same parties for
said court, and
the same cause;
ii. the venue lies therein; and
(f) That the cause of action is barred
by a prior judgment or by the statute
(d) Where the claims in all the causes of
of limitations action are principally for recovery of
xxx money, the aggregate amount claimed

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER16

shall be the test of jurisdiction. (Sec. 5, arise out of the same transaction or series of
Rule 2) transactions and there should be a common
question of law or fact, as provided in Sec. 6 of
Misjoinder of causes of action Rule 3.
Misjoinder of causes of action is NOT a ground In cases of permissive joinder of
for dismissal of an action. A misjoined cause of parties, the total of all the claims shall be the
action may be severed and proceeded with first jurisdictional test. If instead of joining or
separately: being joined in one complaint, separate actions
(a) on motion of a party, or are filed by or against the parties, the amount
(b) on the initiative of the court. (Sec. 6, demanded in each complaint shall be the
Rule 2) second jurisdictional test.
In the case at bar, the lower court
correctly held that the jurisdictional test is
FLORES v. MALLARE-PHILLIPPS subject to the Rules on Joinder of Parties
(144 SCRA 277, 1986) pursuant to Sec. 5 of Rule 2 and Sec. 6 of Rule
3 of the Rules of Court. Moreover, after a
careful scrutiny of the complaint, It appears
Application of the Totality Rule under Sect.
that there is a misjoinder of parties for the
33(l) BP129 and Sect. 11 of the Interim
reason that the claims against Binongcal and
Rules is subject to the requirements for the
Calion are separate and distinct and neither of
Permissive Joinder of Parties under Sec. 6
which falls within its jurisdiction.
of Rule 3.
UNIWIDE HOLDINGS, INC. v. CRUZ
In cases of permissive joinder of
(529 SCRA 664, 2007)
parties, the total of all the claims shall be
the first jurisdictional test. If instead of a
joinder, separate actions are filed by or Exclusive venue stipulation embodied in a
against the parties, the amount demanded contract restricts or confines parties
thereto when the suit relates to breach of
FACTS: Binongcal and Calion, in separate said contract. But where the exclusivity
transactions, purchased truck tires on credit clause does not make it necessarily
from Flores. The two allegedly refused to pay encompassing, such that even those not
their debts, so Flores filed a complaint where related to the enforcement of the contract
the first cause of action was against Binongcal should be subject to the exclusive venue,
for P11, 643, and the second was against the stipulation designating exclusive
Calion for P10, 212. Binongcal filed a Motion to venues should be strictly confined to the
Dismiss on the ground of lack of jurisdiction
since under Sec. 19(8) of BP129 RTC shall FACTS: Uniwide Holdings, Inc. (UHI) granted
exercise exclusive original jurisdiction if the Cruz, a 5yr. franchise to adopt and use the
amount of the demand is more than P20, 000, "Uniwide Family Store System" for the
and that the claim against him is less than that establishment and operation of a "Uniwide
amount. He averred further that although Family Store" in Marikina. The agreement
Calion was also indebted to Flores, his obliged Cruz to pay UHI a P50,000 monthly
obligation was separate and distinct from the service fee or 3% of gross monthly purchases,
other, so the aggregate of the claims cannot whichever is higher, payable within 5 days
be the basis of jurisdiction. Calion joined in after the end of each month without need of
moving for the dismissal of the complaint formal billing or demand from UHI. In case of
during the hearing of the motion. Petitioner any delay in the payment of the monthly
opposed the Motion to Dismiss. RTC dismissed service fee, Cruz would be liable to pay an
the complaint for lack of jurisdiction. interest charge of 3% per month.
It appears that Cruz had purchased
ISSUE: Whether RTC has jurisdiction over the goods from UHI’s affiliated companies FPC and
case following the Totality Rule USWCI. FPC and USWCI assigned all their rights
YES. The Totality Rule (under Sec. 33 and interests over Cruz’s accounts to UHI. Cruz
of BP129 and Sec. 11 of the Interim Rules) had outstanding obligations with UHI, FPC, and
applies not only to cases where two or more USWCI in the total amount of P1,358,531.89,
plaintiffs having separate causes of action which remained unsettled despite the
against a defendant join in a single complaint, demands made.
but also to cases where a plaintiff has separate Thus UHI filed a complaint for
causes of action against two or more collection of sum of money before RTC of
defendants joined in a single complaint. Parañaque Cruz on the following causes of
However, the said causes of action should action: (1) P1,327,669.832 in actual damages

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER17

for failure to pay the monthly service fee; (2) the exclusive venue stipulation embodied in
P64,165.96 of actual damages for failure to the agreement.
pay receivables assigned by FPC to UHI; (3) Exclusive venue stipulation embodied
P1,579,061.36 of actual damages for failure to in a contract restricts or confines parties
pay the receivables assigned by USWCI to UHI; thereto when the suit relates to breach of said
(4) P250,000.00 of attorney’s fees. contract. But where the exclusivity clause does
Cruz filed a motion to dismiss on the not make it necessarily encompassing, such
ground of improper venue, invoking Article that even those not related to the enforcement
27.5 of the agreement which reads: of the contract should be subject to the
27.5 Venue Stipulation – The exclusive venue, the stipulation designating
Franchisee consents to the exclusive exclusive venues should be strictly confined to
jurisdiction of the courts of Quezon City, the the specific undertaking or agreement.
Franchisee waiving any other venue. Otherwise, the basic principles of freedom to
Parañaque RTC granted Cruz’s motion contract might work to the great disadvantage
to dismiss. Hence, the present petition. of a weak party-suitor who ought to be allowed
free access to courts of justice.
ISSUE: Whether a case based on several
causes of action is dismissible on the ground What is the totality rule?
of improper venue where only one of the Where the claims in all the causes of action are
causes of action arises from a contract with principally for recovery of money, the
exclusive venue stipulation aggregate amount claimed shall be the test of
NO. The general rule on venue of jurisdiction. (Sec. 5, Rule 2)
personal actions provides actions may be
commenced and tried where the plaintiff or
any of the principal plaintiffs resides, or where PARTIES TO CIVIL ACTIONS (RULE 3)
the defendant or any of the principal
defendants resides, or in the case of a Parties (Sec. 1, Rule 3)
nonresident defendant, where he may be
found, at the election of the plaintiff. The (1) Plaintiff—
parties may also validly agree in writing on an The plaintiff is the claiming party or the
exclusive venue. The forging of a written original claiming party and is the one who
agreement on an exclusive venue of an action files the complaint.
does not, however, preclude parties from  It may also apply to a
bringing a case to other venues. defendant who files a
Where there is a joinder of causes of counterclaim, a cross-claim or a
action between the same parties and one third party complaint.
action does not arise out of the contract where
the exclusive venue was stipulated upon, the (2) Defendant—
complaint, as in the one at bar, may be The defendant refers to the original
brought before other venues provided that defending party, and also the defendant in
such other cause of action falls within the a counterclaim, the cross-defendant, or the
jurisdiction of the court and the venue lies third party defendant.
therein.  If a counterclaim is filed
Based on the allegations in petitioner’s against the original plaintiff, the
complaint, the second and third causes of latter becomes the defendant.
action are based on the deeds of assignment
executed in its favor by FPC and USWCI. The Who may be parties? (Sec. 1, Rule 3)
deeds bear no exclusive venue stipulation with
respect to the causes of action thereunder. (1) Natural persons
Hence, the general rule on venue applies – that
the complaint may be filed in the place where (2) Juridical persons
the plaintiff or defendant resides. (a) The State and its political subdivisions;
It bears emphasis that the causes of
(b) Other corporations, institutions and
action on the assigned accounts are not based
entities for public interest or purpose,
on a breach of the agreement between UHI
created by law; and
and Cruz. They are based on separate, distinct
(c) Corporations, partnerships and
and independent contracts—deeds of
associations for private interest r
assignment in which UHI is the assignee of
purpose to which the law grants a
Cruz’s obligations to the assignors FPC and
juridical personality, separate and
USWCI. Thus, any action arising from the
distinct from each shareholder, partner
deeds of assignment cannot be subjected to
or member. (Art. 44, Civil Code)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER18

Lack of personality to sue


(3) Entities authorized by law, even if they lack
juridical personality EVANGELISTA v. SANTIAGO
(a) Corporation by estoppel (Sec. 21, (475 SCRA 744)
Corporation Code);
(b) Partnership having a capital of P3,000 The term "lack of capacity to sue" refers
or more but fails to comply with the to a plaintiff's general disability to sue,
registration requirements (Art. 1768, such as on account of minority, insanity,
Civil Code); incompetence, lack of juridical personality
(c) Estate of a deceased person or any other general disqualifications of a
(d) A legitimate labor organization (Art. party. "Lack of personality to sue” refers to
242 [e], Labor Code); the fact that the plaintiff is not the real
(e) The Ramon Catholic Church; party- in-interest. The first can be a ground
(f) A dissolved corporation may prosecute for a motion to dismiss based on the
and defend in suits which: ground of lack of legal capacity to sue;
a. Occur within 3 years after whereas the second can be used as a
dissolution; and ground for a motion to dismiss based on
b. Are connected with the the fact that the complaint, on the face
settlement and closure of its
FACTS: The Subject Property was part of a vast
affairs (Sec. 122, Corporation
tract of land called “Hacienda Quibiga” which
Code)
was awarded to Don Hermogenes Rodriguez by
the Queen of Spain and evidenced by a
CLASSIFICATION OF PARTIES
Spanish title. Don Ismael Favila, claiming to be
one of the heirs and successors-in-interest of
Real party-in-interest
Rodriguez, and pursuant to an SPA executed
A real party in interest is the party who stands
by his “mga kapatid,” assigned portions of the
to be benefited or injured by the judgment in
property to the petitioners in exchange for the
the suit, or the party entitled to the avails of
labor and work they and their predecessors
the suit.
have done on the property.
 Unless otherwise authorized by law or Petitioners were informed that
these Rules, every action must be Santiago was planning to evict them; two of
prosecuted or defended in the name of them received notices to vacate. Their
the real party in interest. (Sec. 2, Rule investigations revealed that the property was
3) included in TCTs which originated from OCT
 Real interest—a present substantial No. 670, and is now in the name of
interest as distinguished from a mere respondent.
expectancy or a future, contingent Petitioners filed an action for
subordinate or consequential interest. declaration of nullity of respondent’s
It is material and direct, as certificates of title on the basis that OCT No.
distinguished from a mere incidental 670 was fake and spurious.
interest. As an affirmative defense, respondent
 The owner of the right of violated is the claimed that the petitioners had no legal
real party in interest as plaintiff, and capacity to file the Complaint, and thus, the
the person responsible for the violation Complaint stated no cause of action. He
is the real party in interest as averred that since OCT No. 670 was genuine
defendant. and authentic on its face, then the OCT and all
land titles derived therefrom, are
Not real party in interest incontrovertible, indefeasible and conclusive
 A person who has not taken part in a against the petitioners and the whole world.
contract RTC dismissed the complaint on the
 Third party who has not taken part in a ground that the action filed was in effect an
compromise agreement action for reversion, and therefore should have
 Mere agent in a contract of sale been initiated by the OSG, not private
individuals. In the end, it concluded that the
petitioners were not the owners of the subject
property.
CA affirmed the RTC, and likewise
dismissed the complaint.

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER19

ISSUE: Whether the respondent’s action is Judicial power is the power to hear and
properly based on petitioners’ lack of legal decide cases pending between parties who
capacity to sue have the right to sue in courts of law and
NO. The term "lack of capacity to sue" equity. Corollary to this dictum is the
should not be confused with the term "lack of principle of locus standi of a litigant. He
personality to sue." The former refers to a who is directly affected and whose interest
plaintiff's general disability to sue, such as on is immediate and substantial has the
account of minority, insanity, incompetence, standing to sue. Thus, a party must show a
lack of juridical personality or any other personal stake in the outcome of the case
general disqualifications of a party, while the or an injury to himself that can be
latter refers to the fact that the plaintiff is not redressed by a favorable decision in order
the real party- in-interest. The first can be a to warrant an invocation of the court’s
ground for a motion to dismiss based on the jurisdiction and justify the exercise of
ground of lack of legal capacity to sue; judicial power on his behalf.
whereas the second can be used as a ground
for a motion to dismiss based on the fact that FACTS: Petitioners Domingo, Gangan and
the complaint, on the face thereof, evidently Banaria are retired Chairmen, while Ursal and
states no cause of action. In the present case, Cruz are retired Commissioners of COA
this Court may assume that the respondent is (Commission on Audit) and the other
raising the affirmative defense that the petitioners are incumbent officers or
Complaint filed by the petitioners before the employees of COA. All claim “to maintain a
trial court stated no cause of action because deep-seated abiding interest in the affairs of
the petitioners lacked the personality to sue, COA,” especially in its Organizational
not being the real party-in-interest. Restructuring Plan, as concerned taxpayers.
These petitioners claim that they
ISSUE: Whether the complaint stated no cause were divested of their designations/ranks upon
of action since petitioners had no personality implementation of the COA Organizational
to sue Restructuring Plan without just cause and
YES. Petitioners had no personality to without due process, in violation of Civil
file the said action, not being the parties-in- Service Law. Moreover, they were deprived of
interest, and their Complaint should be their respective Representation and
dismissed for not stating a cause of action. Transportation Allowances (RATA), thus
The action is really one for the removal causing them undue financial prejudice.
of a cloud on or quieting of title and according Petitioners now invoke this Court’s
to Article 477 of the Civil Code, the plaintiff in judicial power to strike down the COA
such an action must have legal or equitable Organizational Restructuring Plan for being
title to, or interest in, the real property which is unconstitutional or illegal.
the subject matter of the action. Petitioners Petitioners invoke Chavez v. Public
failed to establish any legal or equitable title Estates Authority, Agan, Jr. v. Philippine
to, or legitimate interest in, the Subject International Air Terminals Co., Inc. and
Property so as to justify their right to file an Information Technology Foundation of the
action to remove a cloud on or to quiet title. Philippines v. Commission on Elections where
Also, the title to and possession of the the court ruled that where the subject matter
Subject Property by petitioners’ predecessors- of a case is a matter of public concern and
in-interest could be traced only as far back as imbued with public interest, then this fact
the Spanish title of Rodriguez. Petitioners, alone gives them legal standing to institute the
having acquired portions of the Subject instant petition. Petitioners contend that the
Property by assignment, could acquire no COA Organizational Restructuring Plan is not
better title to the said portions than their just a mere reorganization but a revamp or
predecessors-in-interest. overhaul of the COA, which will have an impact
upon the rest of the government bodies
Standing to sue subject to its audit supervision, thus, should be
treated as a matter of transcendental
DOMINGO v. CARAGUE importance. Consequently, petitioners’ legal
(456 SCRA 744, 2005) standing should be recognized and upheld.
The respondents, through the OSG
assail the standing of the petitioners to file the
present case. Among others, they allege that
the petitioners: (1) have not shown "a personal
stake in the outcome of the case or an actual
or potential injury that can be redressed by a

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER20

favorable decision of the Court, (2) failed to recognized— (1) the award for the automation
show any "present substantial interest" in teh of the electoral process was a matter of public
outcome of the case, nor (3) may the concern, imbued with public interest, and (2)
petitioenrs claim that as taxpayers they have the individual petitioners, as taxpayers,
legal standing because nowhere in the petition asserted a material interest in seeing to it that
do they claim that public funds are spent in public funds are properly used.
violation of law.
Representative parties
ISSUE: Whether the petitioners have standing Where the action is allowed to be prosecuted
to sue or defended by a representative or someone
NO. The Petitioners have not shown acting in a fiduciary capacity, the beneficiary
any direct and personal interest in the COA shall be included in the title of the case and
Organizational Restructuring Plan. There is no shall be deemed to be the real party in
indication that they have sustained or are in interest.
imminent danger of sustaining some direct
injury as a result of its implementation. In fact, A representative may be
they admitted that “they do not seek any (1) a trustee of an express trust,
affirmative relief nor impute any improper or (2) a guardian,
improvident act against the respondents” and (3) an executor or administrator, or
“are not motivated by any desire to seek (4) a party authorized by law or these
affirmative relief from COA or from Rules.
respondents that would redound to their
personal benefit or gain.” Clearly, they do not An agent acting in his own name and for the
have any legal standing to file the instant suit. benefit of an undisclosed principal may sue or
Judicial power is the power to hear be sued without joining the principal except
and decide cases pending between parties who when the contract involves things belonging to
have the right to sue in courts of law and the principal. (Sec. 3, Rule 3)
equity. Corollary to this dictum is the principle
of locus standi of a litigant. He who is directly OPOSA v. FACTORAN
affected and whose interest is immediate and (224 SCRA 792, 1993)
substantial has the standing to sue. Thus, a
party must show a personal stake in the
Petitioners’ personality to sue in behalf of
outcome of the case or an injury to himself
the succeeding generations can only be
that can be redressed by a favorable decision
based on the concept of intergenerational
in order to warrant an invocation of the court’s
responsibility insofar as the right to a
jurisdiction and justify the exercise of judicial
balanced and healthful ecology is
power on his behalf.
concerned, since the subject matter of the
In Chavez V. PEA, the Court ruled
complaint is of common and general
that the petitioner has legal standing since he
interest to all citizens of the Philippines.
is a taxpayer and his purpose in filing the
petition is to compel the Public Estate
Authority (PEA) to perform its constitutional FACTS: The petitioners, all minors, sought the
duties with respect to: (a) the right of the help of the Supreme Court to order the
citizens to information on matters of public respondent, then Secretary of DENR, to cancel
concern; and (b) the application of a all existing Timber License Agreement (TLA) in
constitutional provision intended to insure the the country and to cease and desist from
equitable distribution of alienable lands of the receiving, accepting, processing, renewing or
public domain among Filipino citizens - such approving new TLAs. They alleged that the
were matters of transcendental importance. massive commercial logging in the country is
In Agan,Jr. V. PIATCO, the Court held causing vast abuses on rainforest.
that petitioners have legal standing as they They furthered the rights of their
have a direct and substantial interest to generation and the rights of the generations
protect. By the implementation of the PIATCO yet unborn to a balanced and healthful
contracts, they stand to lose their source of ecology.
livelihood, a property right zealously protected
by the Constitution and such financial ISSUE: Whether or not the petitioners have a
prejudice on their part is sufficient to confer locus standi
upon them the requisite locus standi. YES. Locus standi means the right of
In Information Technology the litigant to act or to be heard. Under
Foundation V. COMELEC, there were two Section 16, Article II of the 1987 constitution:
reasons why petitioners’ standing was “The state shall protect and advance the right

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER21

of the people to a balanced and healthful  It is when the order of the court to
ecology in accord with the rhythm and implead the indispensable party goes
harmony of nature.” unheeded may the case be dismissed.
Petitioners, minors assert that they
(4)Remedy: Parties may be dropped or
represent their generation as well as
added by the court on motion of any
generation yet unborn. We find no difficulty in
party, or on its own initiative at any
ruling that they can, for themselves, for others
stage of the action and on such terms
of their generation and for the succeeding
as are just. (Sec. 11, Rule 3)
generations, file a class suit. Their personality
to sue in behalf of the succeeding generations
DOMINGO v. SCHEER
can only be based on the concept of
(421 SCRA 792, 1993)
intergenerational responsibility insofar as the
right to a balanced and healthful ecology is
concerned. Such a right, as hereinafter The joinder of indispensable parties under
expounded considers the “rhythm and Sec 7, Rule 3 is mandatory. Without
harmony of nature”. Nature means the created presence of indispensable parties to the
world in its entirety. Such rhythm and harmony suit, the judgment of the court cannot attain
indispensably include, inter alia, the judicious real finality. Strangers to a case are not
disposition, utilization, management, renewal bound by the judgment rendered by the
and conservation of the country’s forest, court. The absence of an indispensable
mineral, land, waters fisheries, wildlife, off- party renders all subsequent actions of the
shore areas and other natural resources to the court null and void. There is a lack of
end that their exploration, development and authority to act not only as to the absent
utilization be equitably accessible to the party but also as to those present. The
present as well as future generations. responsibility of impleading all the
Needless to say, every generation has a indispensable parties rest on the
responsibility to the next to preserve that petitioner/plaintiff. However, the non-joinder
rhythm and harmony for the full enjoyment of
FACTS: Vice Consul Jutta Hippelein informed
a balanced and healthful ecology. Put a little
the Philippine Ambassador to Bonn, Germany
differently, the minor’s assertion of their right
that respondent Emil Scheer had police records
to a sound environment constitutes, at the
and financial liabilities in Germany. The Board
same time, the performance of their obligation
of Commissioners (BOC) therefore cancelled
to ensure the protection of that right for the
respondent’s permanent residence visa, and
generations to come.
ordered his summary deportation and
This landmark case has been ruled as a class
permanent exclusion from the Philippines and
suit because the subject matter of the
inclusion of his name on the Bureaus Blacklist.
complaint is of common and general interest,
Respondent filed an Urgent Motion for
not just for several but for all citizens of the
Reconsideration of the order, but the BOC did
Philippines.
not resolve the respondent’s motion. The
respondent was neither arrested nor deported.
Indispensable parties
An indispensable party is a party in interest Meanwhile, the District Court of
Straubing dismissed the criminal case against
without whom no final determination can be
had of an action. the respondent for physical injuries. The
German Embassy in Manila, thereafter, issued
(1)They shall be joined either as plaintiffs
a temporary passport to the respondent.
or defendants. (Sec. 7, Rule 3)
Respondent informed Commissioner
(2)The presence of all indispensable Verceles that his passport had been renewed
parties is a condition sine qua non for following the dismissal of the said criminal
the exercise of judicial power. case. He reiterated his request for the
(3)When an indispensable party is not cancellation of the Summary Deportation
before the court, the action should be Order and the restoration of his permanent
dismissed. resident status. The BOC still failed to resolve
the respondents Urgent Motion for
NOTE: The failure to join an indispensable Reconsideration.
party does not result in the outright dismissal In the meantime, petitioner
of the action. Non-joinder or misjoinder of Immigration Commissioner Andrea T. Domingo
parties is not a ground for dismissal of an assumed office, and inquired with German
action. Embassy if the respondent was wanted by the
German police. The German Embassy replied
in the negative.

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER22

At about midnight on June 6, 2002, on its own initiative at any stage of the action
Marine operatives and Bureau of Immigration and/or such times as are just. If the
and Deportation (BID) agents apprehended the petitioner/plaintiff refuses to implead an
respondent in his residence on orders of the indispensable party despite the order of the
petitioner and was held in custody in the BID court, the latter may dismiss the
Manila Office while awaiting his deportation. complaint/petition for the petitioner/plaintiffs
Respondent’s counsel filed with the failure to comply therefor. The remedy is to
BID a motion for bail to secure the respondents implead the non-party claimed to be
temporary liberty and filed with the Court of indispensable.
Appeals a petition for certiorari, prohibition The Court may be curing the defect in
and mandamus with a prayer for temporary this case by adding the BOC as party
restraining order and writ of preliminary petitioner. Indeed, it may no longer be
injunction, to enjoin the petitioner from necessary to do so taking into account the
proceeding with the respondent’s deportation. unique backdrop in this case, involving as it
The CA issued a TRO. Petitioner argues that does an issue of public interest. After all, the
the respondent’s petition with the CA should Office of the solicitor General has represented
have been dismissed for failure to implead the the petitioner in the instant proceedings, as
real party-in-interest, which is the BOC. well as the appellate court, and maintained the
validity of the deportation order and of the
ISSUE: Whether the BOC was an indispensable BOC’s Omnibus Resolution. It cannot, thus, be
party to the petition claimed by the State that the BOC was not
YES. The BOC was an indispensable afforded its day in court, simply because only
party to the petition, BUT the non-joinder of the petitioner, the chairperson of the BOC, was
indispensable parties is not a ground for the respondent in the CA, and the petitioner in
dismissal of the action. the instant recourse.
The respondent was arrested and
detained on the basis of the Summary UY v. CA
Deportation Order of the BOC. The petitioner (494 SCRA 535, 2006)
caused the arrest of the respondent in
obedience to the said Deportation Order. The An indispensable party is one whose
respondent, in his Memorandum, prayed that interest will be affected by the court's
the CA annul not only the Summary action in the litigation, and without whom
Deportation Order of the BOC but also the no final determination of the case can be
latter’s Omnibus Resolution, and order the had. The party's interest in the subject
respondent’s immediate release. matter of the suit and in the relief sought
The respondent also prayed that the are so inextricably intertwined with the
CA issue a writ of mandamus for the other parties' that his legal presence as a
immediate resolution of his Urgent Motion for party to the proceeding is an absolute
Reconsideration. The said motion had to be
resolved by the BOC as the order sought to be FACTS: The Heritage Memorial Park is a
resolved and reconsidered was issued by it and flagship project of the Bases Conversion
not by the petitioner alone. The powers and Development Authority (BCDA) in Fort
duties of the BOC may not be exercised by the Bonifacio. To implement the project, the BCDA
individual members of the Commission. entered into Pool Formation Trust Agreement
The joinder of indispensable parties is (PFTA) with the PNB and the PEA. BCDA was
mandatory. Without the presence of designated as Project Owner; PEA, the Project
indispensable parties to the suit, the judgment Manager; and PNB as the Trustee.
of the court cannot attain real finality. PEA, as project manager, is tasked to
Strangers to a case are not bound by the implement and complete the various
judgment rendered by the court. The absence engineering works and improvements of
of an indispensable party renders all Heritage Park.
subsequent actions of the court null and void. PEA and petitioner Uy, a single
Lack of authority to act not only of the absent proprietorship doing business under the name
party but also as to those present. The of Edison Development and Construction,
responsibility of impleading all the executed a Landscaping and Construction
indispensable parties rests on the Agreement whereby the petitioner undertook
petitioner/plaintiff. to do all the landscaping, including the
However, the non-joinder of construction of a terrasoleum of the Heritage
indispensable parties is not a ground for the Park.
dismissal of an action. Parties may be added Subsequently, the certificate holders of
by order of the court on motion of the party or the project organized themselves into a non-

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER23

stock, non-profit corporation, the Heritage Park can be had even when a necessary party is not
Management Corporation (HPMC), now the joined.
private respondent herein. BUT a necessary party ought to be
The Heritage Park Executive joined if complete relief is to be accorded to
Committee, however, terminated the those already parties. (Sec. 8, Rule 3)
construction contracts due to delays and
discrepancies. PEA then assumed the duties of Non-joinder of necessary party
the terminated party. Petitioner filed a Whenever in any pleading in which a claim is
complaint against the PEA before the asserted a necessary party is not joined, the
Construction Industry Arbitration Commission pleader shall set forth
(CIAC) where it sought to recover payment for (1) his name, if known, and
its progress billings on the said projects. CIAC (2) shall state why he is omitted.
ruled in favor of petitioner. Respondent
appealed to the CA on the ground that CIAC Should the court find the reason for the
had no jurisdiction over the subject matter omission unmeritorious, it may order the
since HPMC was not impleaded as a party, inclusion of the omitted necessary party if
thereby depriving it of its right to be heard. CA jurisdiction over his person may be obtained.
ruled in favor of respondent. Hence this (Sec. 9, Rule 3)
petition
LAPERAL DEV’T. CORP. v. CA
ISSUE: Whether HPMC is a real party in interest (223 SCRA 261, 1993)
or an indispensable party
YES. An indispensable party is one
A proper party is one which ought to be a
whose interest will be affected by the court's
party if complete relief is to be accorded as
action in the litigation, and without whom no
between those already parties. A party is
final determination of the case can be had. The
indispensable if no final determination can
party's interest in the subject matter of the suit
be had of an action unless it is joined either
and in the relief sought are so inextricably
as plaintiff or defendant.
intertwined with the other parties' that his
legal presence as a party to the proceeding is
FACTS: Atty. Banzon sought to recover
an absolute necessity.
attorney’s fees for professional services
Based on the Construction Agreement,
rendered in several pending and past cases
PEA entered into it in its capacity as Project
from Laperal, Laperal Dev’t Corp., and Imperial
Manager, pursuant to the PFTA. According to
Dev’t Corp., referring to Sunbeams Inc. only as
the provisions of the PFTA, upon the formation
“Mr. Laperal’s Corporation.” This particular
of the HPMC, the PEA would turn over to the
civil case was decided on the basis of a
HPMC all the contracts relating to the Heritage
Compromise Agreement where Banzon waived
Park. At the time of the filing of the CIAC Case,
all other money claims against the defendants.
PEA ceased to be the Project Manager.
Subsequently, Banzon filed a complaint against
Through a Deed of Assignment, PEA assigned
Laperal, Laperal Dev’t, Imperial Dev’t,
its interests in all the existing contracts it
Sunbeams Convenience Foods, Inc., and Acsay
entered into as the Project Manager for
for (1) annulment of a portion of the
Heritage Park to HPMC.
Compromise Agreement; (2) collection of
PEA officially turned over to HPMC all
attorney’s fees for services in the cases
the documents and equipment in its
rendered for Imperial, Sunbeams, and Laperal
possession related to the Heritage Park
Dev’t.; (3) recovery of P10k adjudged to be
Project, and petitioner was duly informed of
payable to him as attorney’s fees by Ascario
these incidents. Apparently, as of the date of
Tuason; and (4) payment to him of nominal
the filing of the CIAC Case, PEA is no longer a
damages and attorney’s fees.
party-in-interest. Instead, it is now private
RTC dismissed the case on the ground that it
respondent HPMC, as the assignee, who stands
had no jurisdiction to annul the Compromise
to be benefited or injured by the judgment in
Agreement, as approved by an equal and
the suit. In its absence, there cannot be a
coordinate court. It held that the issue was
resolution of the dispute of the parties before
cognizable by the CA. Moreover, it was held
the court which is effective, complete or
that the Compromise Agreement already
equitable.
covered the plaintiff’s professional services in
the questioned cases.
Necessary party or proper party
The CA affirmed the RTC on the issue
A necessary party is not indispensable to the
of jurisdiction, but held Atty. Banzon entitled to
action since a final determination of the case
attorney’s fees from Sunbeams Inc. since it
was not subject to the compromise agreement
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER24

which waived all money claims against connection with any proceedings in which he
defendants named therein, having been may have no interest. (Sec. 6, Rule 3)
referred to only as “Mr. Laperal’s corporation.”
Effects of misjoinder and non-joinder of
ISSUE: Whether Sunbeams Inc., is liable to pay parties
attorneys fees A party is misjoined when he is made a party
NO. Sunbeams Inc., which was to the action although he should not be
referred to in the complaint as “Mr. Laperal’s impleaded.
Corp.” was not named as a party defendant. A party is not joined when is supposed
The private respondent believed that Laperal, to be joined but is not impleaded in the
being the President of the said company, was actions.
directly obligated to him for attorney’s fees
due him for his handling of the case for Neither misjoinder nor non-joinder of parties is
Sunbeams. However, there is no evidence that a ground for dismissal. Parties may be dropped
Sunbeams and Laperal are one and the same or added
person. Sunbeams should have been joined as by order of the court
party defendant in order that the judgment of (1)on motion of any party or on its own
the lower court could legally affect it. But initiative
even if it was not impleaded, the court could (2)at any stage of the action and
still validly proceed with the case because
(3) on such terms as are just.
Sunbeams was not an indispensable party but
only a proper party. A proper party is one
Any claim against a misjoined party may be
which ought to be a party if complete relief is
severed and proceeded with separately. (Sec.
to be accorded as between those already
11, Rule 3)
parties. A party is indispensable if no final
determination can be had of an action unless it
NOTE: Failure to obey the order of the court to
is joined either as plaintiff or defendant.
drop or add a party is a ground for the
The Compromise Agreement upon
dismissal of the complaint. (Sec. 3, Rule 17)
which the decision of the court was based was
between plaintiff Atty. Banzon and the
Class suits
defendants represented by Laperal. Thus,
A class suit is an action where one or more
since Sunbeams was not a party to this
may sue for the benefit of all.
agreement, it could not be affected by it.
However, Banzon’s claim for attorney’s fees  An action does not become a class suit
pertaining to Sunbeams was waived by him merely because it is designated as
not by virtue of the Compromise Agreement, such in the pleadings. It depends upon
whereby Sunbeams was not a defendant. the attendant facts.
What militates against his claim is his own
judicial admission that he had waived his Requisites
attorney’s fees for the cases he had handled (1) The subject matter of the controversy
from 1974-1981 for Laperal and his is one of the common or general
corporations, including those not impleaded in interest to many persons
his complaint. (2) The persons are so numerous that it is
impracticable to join all as parties,
Permissive joinder of parties (3) The parties bringing the class suit are
Parties may be joined in as plaintiffs or sufficiently numerous and
defendants in a single complaint when representative as to fully protect the
(1) Any right to relief arises out of the interests of all concerned.
same transaction or series of (4) The representative sues or defends for
transactions; the benefit of all.
(2) There is a question of law or fact
common to all such plaintiffs or to all NOTE: Any party in interest shall have the right
such defendants; to intervene to protect his individual interest.
(3) Such joinder is not otherwise (Sec. 12, Rule 3)
proscribed by the Rules on jurisdiction
and venue. MATHAY v. CONSOLIDATED BANK
(58 SCRA 559, 1974)
BUT the court may make such orders as may
be just to prevent any plaintiff or defendant
from being embarrassed or put to expense in

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER25

Requirements of a class suit: 1. That the


subject matter of the controversy be one of ISSUE: Whether the instant action could be
common or general interest to many maintained as a class suit
persons, and 2. That such persons be so NO. An action does not become a class
numerous as to make it impracticable to suit merely because it is designated as such in
bring them all to the court. the pleadings. Whether the suit is or is not a
class quit depends upon the attending facts,
and the complaint, or other pleading initiating
FACTS: Mathay, Reyes and Dionisio, plaintiffs- the class action should allege the existence of
appellants and stockholders in the the necessary facts, to wit, the existence of a
Consolidated Mines, Inc. (CMI) alleged that the subject matter of common interest, and the
latter passed a resolution to organize existence of a class and the number of persons
Consolidated Bank & Trust Co. (CBTC), in the alleged class, in order that the court
providing that all CMI stockholders are entitled might be enabled to determine whether the
to subscribe to the capital stock of the members of the class are so numerous as to
proposed bank at par value, and to the same make it impracticable to bring them all before
extent and amount as their shareholdings in the court, to contrast the number appearing on
CMI. Circular letters with Pre-Incorporation the record with the number in the class and to
Agreements to subscribe were sent to CMI determine whether claimants on record
stockholders. Plaintiffs-apellants and other adequately represent the class and the subject
stockholders accomplished and filed their matter of general or common interest.
respective pre-incorporation agreements and The complaint in the instant case
paid the subscription. However, after some explicitly declared that the plaintiffs-
months, the Board of Organizers executed the appellants instituted the "present class suit
Articles of Incorporation of the CBTC which under Section 12, Rule 3, of the Rules of Court
reflected that only the six (6) individual in. behalf of CMI subscribing stockholders" but
defendants paid and subscribed to the initial did not state the number of said CMI
50,000 shares. When the paid-in capital stock subscribing stockholders so that the trial court
was increased, the plaintiff-appellants and could not infer, much less make sure as
other CMI stockholders were again excluded. explicitly required by the sufficiently numerous
The plaintiffs-appellants filed this complaint as and representative in order that all statutory
a class suit to annul and transfer the provision.
subscription and shareholdings of the The interest that ppellants, plaintiffs
defendants to them and other stockholders and intervenors, and the CMI stockholders had
who had been denied the right to subscribe. in the subject matter of this suit — the portion
They alleged as well that some of the of stocks offering of the Bank left unsubscribed
defendants falsely certified to the calling of a by CMI stockholders who failed to exercise
special stockholders' meeting, when plaintiffs- their right to subscribe on or before January
appellants and other CMI stockholders were 15, 1963 — was several, not common or
not notified thereof. Further, the defendants general in the sense required by the statute.
increased the number of Directors, illegally Each one of the appellants and the CMI
creating the Position of Director filled up by a stockholders had determinable interest; each
defendant, who was incompetent. one had a right, if any, only to his respective
Sevilla, one of the original plaintiffs, portion of the stocks. No one of them had any
withdrew. Four CMI stockholders filed a motion right to, or any interest in, the stock to which
to intervene, and to join the plaintiffs- another was entitled.
appellants on record, Defendants filed a Even if it be assumed, for the sake of
motion to dismiss on the ground that the argument, that the appellants and the CMI
plaintiffs had no legal standing or capacity to stockholders suffered wrongs that had been
institute the alleged class suit. committed by similar means and even
Some subscribers to the capital stock pursuant to a single plan of the Interim Board
of the Bank filed separate manifestations that of Organizers of the Bank, the wrong suffered
they were opposing and disauthorizing the suit by each of them would constitute a wrong
of plaintiffs-appellants. separate from those suffered by the other
The defendants-appellee filed a stockholders, and those wrongs alone would
supplemental ground for their motion to not create that common or general interest in
dismiss for the reason that the stockholders the subject matter of the controversy as would
who had abstained at their regular annual entitle any one of them to bring a class suit on
meeting unanimously ratified and confirmed all behalf of the others.
the actuations of the organizers. CFI granted The right to preemption, it has been
the motion to dismiss, hence the appeal. said, is personal to each stockholder. By

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER26

analogy, the right of each of the appellants to (2) whenever his whereabouts are
subscribe to the waived stocks was personal, unknown and cannot be ascertained by
and no one of them could maintain on behalf diligent inquiry. (Sec. 14, Rule 14)
of others similarly situated a representative
suit. (4) Entity without juridical personality as
defendant
When two or more persons not organized as an
entity with juridical personality enter into a
transaction, they may be sued under the name
by which they are generally or commonly
known.
Defendants In the answer of such defendant the
names and addresses of the persons
(1) Unwilling co-plaintiff composing said entity must all be revealed.
An unwilling co-plaintiff is a party who is (Sec. 15, Rule 3)
supposed to be a plaintiff but whose consent to
be joined as a plaintiff cannot be obtained, as
when he refuses to be a party to the action. In
that case,
(1) he may be made a defendant and
(2) the reason therefor shall be stated in Service upon entity without juridical
the complaint. (Sec. 10, Rule 3) personality.— Service may be effected upon all
the defendants by serving upon
(2) Alternative defendant (1) any one of them, or
Where the plaintiff is uncertain against who of (2) upon the person in charge of the office
several persons he is entitled to relief, he may or place of business maintained in such
join any or all of them as defendants in the name.
alternative, although a right to relief against
one may be inconsistent with a right of relief BUT such service shall not bind individually
against the other. (Sec. 13, Rule 3) any person whose connection with the entity
has, upon due notice, been severed before the
Example: action was brought. (Sec. 8, Rule 14)
A pedestrian injured in the collision of two
vehicles may sue the vehicle owners or drivers Death of party; duty of counsel
in the alternative if he is uncertain whose
vehicle caused the injury. (1) If plaintiff dies during pendency of the
case
(3) Unknown defendant Whenever a party to a pending action dies,
Whenever the identity or name of a defendant and the claim is not thereby extinguished, it
is unknown, he may be sued shall be the duty of his counsel
(1) as the unknown owner, heir, devisee, (1) to inform the court within thirty (30)
or days after such death of the fact
(2) by such other designation as the case thereof, and
may require; (2) to give the name and address of his
legal representative or
When his identity or true name is discovered, representatives.
the pleading must be amended accordingly.
(Sec. 14, Rule 3) NOTE: This duty is mandatory. Failure of
counsel to comply with this duty shall be a
Service upon defendant whose identity or ground for disciplinary action.
whereabouts are unknown.
Service may, by leave of court, be effected by Upon notice of death, action of court
publication in a newspaper of general Upon receipt of notice of death, the court shall
circulation and in such places and for such determine whether the claim is extinguished
time as the court may order in any action by the death. If the claim does not survive, the
where court shall dismiss the case.
(1) the defendant is designated as an
unknown owner, or the like, or If the claim survives, substitution
The court shall forthwith order said legal
representative or representatives to appear

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER27

and be substituted within a period of thirty


(30) days from notice. A favorable judgment obtained by the plaintiff
 The heirs of the deceased may be therein shall be enforced in the manner
allowed to be substituted for the especially provided in these Rules for
deceased, without requiring the prosecuting claims against the estate of a
appointment of an executor or deceased person. (Sec. 20, Rule 3)
administrator and the court may
appoint a guardian ad litem for the Effect of non-substitution of deceased
minor heirs. party
NOTE: The heirs do not need to first Non-compliance with the rules on substitution
secure the appointment of an of a deceased party renders the proceedings of
administrator. the trial court infirm because it acquired no
jurisdiction over the person of the legal
 The court may order the opposing
representative of heirs of the deceased.
party, within a specified time, to
procure the appointment of an  However, in an ejectment case, non-
executor or administrator for the substitution of the deceased does not
estate of the deceased if: deprive the court of jurisdiction
(Florendo Jr. v. Colona)
i. no legal representative is
named by the counsel for the
HEIRS OF BERTULDO HINOG v. MELICOR
deceased party or
(455 SCRA 460, 2005)
ii. if the one so named shall fail to
appear within the specified
period, Non-compliance with the rule on
The latter shall immediately appear for substitution would render the proceedings
and on behalf of the deceased. The and judgment of the trial court infirm
court charges in procuring such because the court acquires no jurisdiction
appointment, if defrayed by the over the persons of the legal
opposing party, may be recovered as representatives or of the heirs on whom the
costs. (Sec. 16, Rule 3) trial and the judgment would be binding.

FACTS: Respondents filed a complaint against


Bertuldo for recovery of ownership of the
premises leased by the latter. Bertuldo alleged
Examples of actions which survive the party’s
ownership of the property by virtue of a Deed
death
of Absolute Sale. Bertuldo died without
 Actions arising from delict completing his evidence during the direct
 Actions based on tortuous conduct of examination. Atty. Petalcorin replaced the
the defendant original counsel and filed a motion to expunge
 Actions to recover real and personal the complaint from the record and nullify all
property court proceedings on the ground that private
 Actions to enforce a lien on property respondents failed to specify in the
 Actions to quieting of title with complaint the amount of damages claimed
damages as needed to pay the correct docket fees, and
 Ejectment case that under Manchester doctrine, non-payment
 Actions for recovery of money of the correct docket fee is jurisdictional.

(2) If defendant dies, effect of his death ISSUE: Whether the proceedings in the trial
depends upon the nature of the pending court are infirm
action YES. No formal substitution of the
parties was effected within thirty (30) days
When action will not be dismissed from date of death of Bertuldo, as required by
The action will be allowed to continue until Sec. 16, Rule 3 of the Rules of Court. Needless
entry of final judgment when: to stress, the purpose behind the rule on
i. the action is for recovery of money substitution is the protection of the right of
every party to due process. It is to ensure that
arising from contract, express or
the deceased would continue to be properly
implied, and
represented in the suit through the duly
ii. the defendant dies before entry of final
appointed legal representative of his estate.
judgment in the court in which the
Non-compliance with the rule on substitution
action was pending at the time of such
would render the proceedings and judgment of
death
the trial court infirm because the court

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER28

acquires no jurisdiction over the persons of the party must prove that there was an undeniable
legal representatives or of the heirs on whom violation of due process.
the trial and the judgment would be binding. The records of the present case
contain a Motion for Substitution of Party
DE LA CRUZ v. JOAQUIN Plaintiff filed before the CA. It was deemed
(464 SCRA 576, 2005) granted and the heirs, to have substituted for
the deceased, Pedro Joaquin. There being no
violation of due process, the issue of
When due process is not violated, as when
substitution cannot be held as a ground of
the right of the representative or heir is
nullify the court’s decision.
recognized and protected, noncompliance
or belated formal compliance with the Rules
LIMBAUAN v. ACOSTA
cannot affect the validity of a promulgated
(2006)
decision. Mere failure to substitute for a
deceased plaintiff is not a sufficient ground
to nullify a trial court's decision. The The instant action for unlawful detainer,
alleging party must prove that there was an like any action for recovery of real
undeniable violation of due process. property, is a real action and as such
FACTS: Pedro Joaquin alleged that he had
survives the death of Faustino Acosta.
obtained a P9,000 loan, payable after five (5)
years, from petitioners, the spouses De la FACTS: Faustino Acosta took possession of a
Cruz. To secure the payment of the obligation, parcel of government land which was originally
he executed a Deed of Sale for a parcel of land intended to be used as a site for a leprosarium.
in favor of petitioners. The parties also He subsequently registered the land and built
executed another document entitled a fence around it.
Kasunduan which allegedly showed the Deed Paulino Calanday intruded upon
of Sale to be actually an equitable mortgage. Acosta’s land without the former’s permission
Spouses De la Cruz contended that this and built a beerhouse on it. Acosta
document was merely an accommodation to remonstrated so Calanday filed a criminal case
allow the repurchase of the property, a right for Unjust Vexation and Malicious Mischief; it
that he failed to exercise. was however, dismissed.
The RTC issued a Decision in Joaquin’s Calanday then conveyed the
favor, declaring that the parties had entered beerhouse to Juanita Roces who agreed to pay
into a sale with a right of repurchase. It held a P60 monthly rental to Acosta. She then
that respondent had made a valid tender of conveyed the premises to Charles Limbauan,
payment on two separate occasions to petitioner in the present case. A few months
exercise his right of repurchase. Accordingly, later, petitioner stopped paying rentals so
petitioners were required to reconvey the respondent filed a case for unlawful detainer
property upon his payment. CA sustained the against respondent. Petitioner reasoned that
ruling of the trial court, and denied since the land belonged to the government,
reconsideration. It further ordered the respondent had no right to collect rentals
substitution by legal representatives, in view of therefrom. Hence the suit was never
Joaquin’s death. Petitioner’s assert the RTC continued.
lacked jurisdiction since the respondent died Eight years later, the government
during the pendency of the case and no converted the parcel of land in which the
substitution was made. premises in dispute are included into
residential land. Respondent then revived his
previous suit of unlawful detainer against
petitioner. Unfortunately, Acosta died while the
ISSUES: Whether the trial court lost jurisdiction case was still on appeal to the CA. Petitioner
over the case upon the death of Pedro Joaquin avers that the case has become moot and
NO. Strictly speaking, the rule on the academic since he was not informed of the
substitution by heirs is not a matter of death of respondent and no proper substitution
jurisdiction, but a requirement of due process. of parties was instituted.
Thus, when due process is not violated, as
when the right of the representative or heir is
recognized and protected, noncompliance or
belated formal compliance with the Rules ISSUE: Whether the case has become moot
cannot affect the validity of a promulgated and academic due to the death of respondent
decision. Mere failure to substitute for a and the failure to substitute his heirs as parties
deceased plaintiff is not a sufficient ground to to the case
nullify a trial court's decision. The alleging

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER29

NO. It is well settled that the failure of Indigent party


counsel to comply with his duty under Section A party may be authorized to litigate his
16 to inform the court of the death of his client action, claim or defense as an indigent if the
and no substitution of such party is effected, court,
will not invalidate the proceedings and the  upon an ex parte application
judgment thereon if the action survives the  and hearing,
death of such party. Moreover, the decision is satisfied that the party is one who has no
rendered shall bind his successor-in-interest.
money or property sufficient and available for
The instant action for unlawful detainer, like food, shelter and basic necessities for himself
any action for recovery of real property, is a
and his family.
real action and as such survives the death of
Faustino Acosta. His heirs have taken his place
Such authority shall include
and now represent his interests in the instant (1) an exemption from payment of docket
petition. Hence, the present case cannot be
and other lawful fees, and
rendered moot despite the death of (2) of transcripts of stenographic notes
respondent.
which the court may order to be
furnished him.
Death or separation of party who is a
The amount of the docket and other lawful fees
public officer which the indigent was exempted from paying
An action may be continued by or against the
shall be a lien on any judgment rendered in the
successor of the deceased public officer when case favorable to the indigent, unless the court
(1) a public officer is a party in an action in
otherwise provides.
his official capacity and
(2) dies, resigns, or otherwise ceases to Any adverse party may contest the grant of
hold office during its pendency, such authority at any time before judgment is
(3) it is shown within thirty (30) days after rendered by the trial court.
the successor takes office or such time
as the court may grant, that there is a If the court should determine after hearing that
substantial need for continuing or the party declared as an indigent is in fact a
maintaining the action, and that person with sufficient income or property, the
(4) the successor adopts or continues or proper docket and other lawful fees shall be
threatens to adopt or continue the assessed and collected by the clerk of court. If
action of his predecessor. the payment is not made within the time fixed
(5) the party or officer to be affected, by the court, execution shall issue or the
unless expressly assenting thereto, has payment thereof, without prejudice to such
been given reasonable notice of the other sanctions as the court may impose. (Sec.
application therefor and accorded an 21, Rule 3)
opportunity to be heard. (Sec. 17, Rule
3) Notice to Solicitor General
The court, in its discretion, may require the
Incompetency or incapacity appearance of the Solicitor General in any
If a party becomes incompetent or action involving the validity of any
incapacitated, the court, (1) treaty,
(2) law,
 upon motion
(3) ordinance,
 with notice,
(4) executive order,
may allow the action to be continued by or
(5) presidential decree,
against the incompetent or incapacitated
(6) rules
person assisted by his legal guardian or
(7) or regulations,
guardian ad litem. (Sec. 18, Rule 3)
He may be heard in person or through a
representative duly designated by him. (Sec.
Transfer of interest
22, Rule 3)
In case of any transfer of interest, the action
may be continued by or against the original
NOTE: Actions filed in the name of the Republic
party, unless the court upon motion directs the
or its agencies and instrumentalities, if not
person to whom the interest is transferred
initiated by the Solicitor General shall be
(1) to be substituted in the action or summarily dismissed.
(2) joined with the original party. (Sec. 19,
Rule 3)

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER30

VENUE OF ACTIONS (RULE 4) found, at the election of the plaintiff. (Sec. 2,


Rule 4)
Venue defined
Venue is the place or the geographical area Venue of actions against non-residents
where an action is to be filed and tried. It If any of the defendants
relates only to the place of the suit and not to (1) does not reside and is not found in the
the jurisdiction of the court. Philippines, and
 Venue becomes jurisdiction only in a (2) the action affects the personal status
criminal case. of the plaintiff, or any property of said
 The parties can waive the venue of a defendant located in the Philippines,
case. 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.
Distinguished from jurisdiction
Quasi in rem
VENUE JURISDICTION Actions which affect the personal status of the
The place where the The authority to
plaintiff are to be filed at the residence of the
case is to be heard hear and determine
plaintiff.
or tried a case
A matter of Matter of
In rem
procedural law substantive law
Establishes a relation Actions affecting the property of the defendant
Establishes a in the Philippines shall be filed where the
between plaintiff and
relation between the property is located.
defendant, or
court and the
petitioner and
subject matter When rule not applicable
respondent
Fixed by law and This Rule shall not apply—
May be conferred by (a) In those cases where a specific rule or
cannot be conferred
the act or agreement law provides otherwise; or
by agreement of the
of the parties
parties (b) Where the parties have validly agreed
Lack of jurisdiction in writing before the filing of the action
Not a ground for
over the subject on the exclusive venue thereof. (Sec.
motu proprio
matter is a ground 4, Rule 4)
dismissal, except in
for a motu proprio
summary procedure
dismissal (a) Where a specific rule or law provides
otherwise
Venue of real actions
Real action—action affecting title to or DIAZ v. ADIONG
possession of real property, or interest therein. (219 SCRA 631, 1993)
Real actions shall be commenced and
tried in the proper court which has jurisdiction
An offended party who is at the same time
over the area wherein the real property
a public official can only institute an action
involved, or a portion thereof, is situated.
arising from libel in 2 venues: (1) the place
where he holds office; or (2) the place
Forcible entry and detainer actions shall be
where the alleged libelous articles were
commenced and tried in the municipal trial
printed and first published
court of the municipality or city wherein the
Venue in an action arising from libel
real property involved, or a portion thereof, is
is only mandatory if it is not waived by
situated. (Sec. 1, Rule 4)
defendant. Thus, objections to venue in
civil actions arising from libel may be
Venue of personal actions
waived; it does not, after all, involve a
Personal actions may be commenced and tried
where the plaintiff or any of the principal FACTS: The Mindanao Kris, a newspaper of
plaintiffs, or where the defendant or any of the general circulation in Cotabato City, published
principal defendants resides, at the election of in its front page the news article captioned “6-
the plaintiff. Point Complaint Filed vs. Macumbal,” and in its
Publisher’s Notes the editorial, “Toll of
In the case of a non-resident defendant it may Corruption,” which exposed alleged anomalies
be commenced and tried where he may be by key officials in the Regional Office of the

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER31

DENR. Subsequently, the public officers than the subject matter. Venue relates to trial
alluded to instituted separate criminal and civil and not jurisdiction.
complaints in the City Prosecutor’s Office and Furthermore, Rule 16, Sec. 1, provides
RTC in Marawi City. Diaz, publisher-editor, and that objections to improper venue must be
Pagandaman, who executed a sworn made in a motion to dismiss before any
statement attesting the alleged corruption responsive pleading is filed. Responsive
were named respondents. The City pleadings are those which seek affirmative
Prosecutor’s Office dismissed the criminal relief and set up defenses. Having already
case. submitted his person to the jurisdiction of the
Thereafter, a civil complaint for court, petitioner may no longer object to the
damages was filed. Diaz filed an answer, then venue which, although mandatory in the
later moved for the dismissal of the action for instant case, is nevertheless waivable. As
damages on the ground that the trial court did such, improper venue must be seasonably
not have jurisdiction over the subject matter. raised. Otherwise, it may be deemed waived.
He vehemently argued that the complaint
should have been filed in Cotabato City and (b) Where parties have validly agreed in
not in Marawi City. The respondent judge writing on the exclusive venue thereof
denied petitioner’s Motion to Dismiss for lack before the filing of the action
of merit. The parties may agree on a specific venue
which could be in a place where neither of
ISSUE: Whether the venue was improperly laid them resides, as long as the agreement is:
NO, petitioner is not correct. Petition (1) In writing;
is dismissed for lack of merit. The case is (2) Made before the filing of the action;
remanded to the court of origin for further and
proceedings. (3) Exclusive as to the venue.
Not one of the respondents held office
in Cotabato City nor they held their principal
LEGASPI v. REPUBLIC
office in that province. It is clear that an
(559 SCRA 410, 2008)
offended party who is at the same time a
public official can only institute an action
arising from libel in 2 venues: (1) the place It must be shown that such stipulation as to
where he holds office; or (2) the place where venue is exclusive. In the absence of
the alleged libelous articles were printed and qualifying or restrictive words, such as
first published. (Art. 360, RPC) "exclusively," "waiving for this purpose any
Venue was indeed improperly laid. other venue," "shall only" preceding the
However, unless and until the defendant designation of venue, "to the exclusion of
objects to the venue in a motion to dismiss the other courts," or words of similar
prior to a responsive pleading, the venue in a import, the stipulation should be deemed as
motion to dismiss cannot truly be said to have merely an agreement on an additional
been improperly laid since, for all practical forum, not as limiting venue to the specified
intents and purposes, the venue though
technically wrong may yet be considered FACTS: Jesusito D. Legaspi, as owner and
acceptable to the parties for whose manager of petitioner J.D. Legaspi
convenience the rules on venue had been Construction, entered into a Construction
devised. Diaz, then, as defendant should have Agreement with respondent Social Security
timely challenged the venue laid in Marawi City System (SSS) for the construction of a four-
in a motion to dismiss, pursuant to Rule 4, Sec. storey building in Baguio City which will serve
4, of the Rules of Court. Unfortunately, he had as respondent's branch office.
already submitted himself to the jurisdiction of The Philippine peso collapsed as
trial court when he filed his Answer. Well- against the U.S. Dollar in 1997, thus the cost of
settled is the rule that improper venue may be imported materials which petitioner contracted
waived and such waiver may occur by laches. to use and install on the project shot up, and
Moreover, venue in an action arising from libel petitioner incurred expenses more than the
is only mandatory if it is not waived by original contract price. Petitioner had several
defendant. Thus, objections to venue in civil meetings with respondent's representatives
actions arising from libel may be waived; it during which he informed them of his difficulty
does not, after all, involve a question of in meeting his obligations under the contract
jurisdiction. The laying of venue is procedural due to the peso devaluation. After several
rather than substantive, relating as it does to failed meetings, petitioner sent a letter to
jurisdiction of the court over the person rather respondent requesting an adjustment in the
contract price, which was denied by

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER32

respondent. Hence, petitioner filed a civil (195 SCRA 641, 1993)


action with the RTC. Instead of filing an
answer, respondent, represented by the OSG, Where defendant fails to challenge timely
filed a Motion to Dismiss on the grounds that the venue in a motion to dismiss as
venue was improperly laid and petitioner had provided by Section 4 of Rule 4 of the
no cause of action. It was respondent's Rules of Court, and allows the trial to be
argument that the Construction Agreement held and a decision to be rendered, he
provided that all actions may be brought cannot on appeal or in a special action be
before the proper court in Quezon City and permitted to challenge belatedly the wrong
that petitioner waived any other venue. The venue, which is deemed waived.
RTC denied respondent's Motion to Dismiss.
Respondent moved to reconsider the Order but FACTS: Petitioner Jesus Dacoycoy, filed before
this was denied by the RTC. The petition for the RTC, Antipolo, Rizal, a complaint against
certiorari with the Court of Appeals was private respondent Rufino de Guzman for the
granted. Hence, the present petition for review annulment of two deeds of sale involving a
on certiorari under Rule 45 of the Rules of parcel of riceland situated in Barrio Estanza,
Court. Lingayen, Pangasinan, the surrender of the
produce thereof, and damages due to private
ISSUE: Whether the stipulation as to venue in respondent's refusal to have said deeds of sale
this case is controlling set aside upon petitioner's demand.
YES. As regards restrictive stipulations Before summons could be served on
on venue, jurisprudence instructs that it must private respondent as defendant therein, the
be shown that such stipulation is exclusive. In RTC issued an order requiring counsel for
the absence of qualifying or restrictive words, petitioner to confer with respondent trial judge
such as "exclusively," "waiving for this purpose on the matter of venue.
any other venue," "shall only" preceding the After said conference, the trial court
designation of venue, "to the exclusion of the dismissed the complaint on the ground of
other courts," or words of similar import, the improper venue. It found, based on the
stipulation should be deemed as merely an allegations of the complaint, that petitioner's
agreement on an additional forum, not as action is a real action as it sought not only the
limiting venue to the specified place. annulment of the deeds of sale but also the
In the Construction Agreement, recovery of ownership of the subject parcel of
petitioner agreed to file any action in Quezon riceland located in Estanza, Lingayen,
City “expressly waiving any other venue.” This Pangasinan, which is outside the territorial
connotes exclusivity of the designated venue. jurisdiction of the trial court.
The terms clearly stipulate exclusively the Petitioner appealed to the Intermediate
venue where actions arising from the Appellate Court, now Court of Appeals, which
Construction Agreement should be filed. in its decision of April 11, 1986, affirmed the
Petitioner, however, contends that the order of dismissal of his complaint.
case does not arise from the Construction
Agreement; hence, it may be filed in Makati ISSUE: Whether or not the trial court can pre-
City, which is his place of residence. Contrary empt the defendant’s prerogative to object to
to petitioner's contention, the allegations in his improper venue by motu propio dismissing the
complaint indubitably show that his cause of case
action arose from the Construction Agreement. NO. The motu proprio dismissal of
petitioner's complaint by respondent trial court
on the ground of improper venue is plain error,
obviously attributable to its inability to
distinguish between jurisdiction and venue.
Venue is procedural rather than
Waiver of improper venue substantive. It relates to the jurisdiction of the
court over the person rather than the subject
(1) Express waiver matter. Provisions relating to venue establish a
Made through written agreement relation between the plaintiff and the
defendant and not between the court and the
(2) Implied waiver subject matter. Venue relates to trial not to
Made through failure to seasonably jurisdiction, touches more of the convenience
object to improper venue in a motion of the parties rather than the substance of the
to dismiss or in the answer case. Jurisdiction treats of the power of the
court to decide a case on the merits; while
DACOYCOY v. IAC

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER33

venue deals on the locality, the place where accordance with its substance, not its
the suit may be had. form.
Dismissing the complaint on the  Parties are strictly by the allegations,
ground of improper venue is certainly not the statements or admissions made in his
appropriate course of action at this stage of pleadings and cannot be permitted to
the proceeding, particularly as venue, in take a contradictory position.
inferior courts as well as in the courts of first
instance (now RTC), may be waived expressly Distinguished from motion
or impliedly. Where defendant fails to A motion is an application for relief other than
challenge timely the venue in a motion to by a pleading. (Sec. 1, Rule 15)
dismiss as provided by Section 4 of Rule 4 of
the Rules of Court, and allows the trial to be What allowed
held and a decision to be rendered, he cannot The claims of a party are asserted in a
on appeal or in a special action be permitted to (1) complaint,
challenge belatedly the wrong venue, which is (2) counterclaim,
deemed waived. (3) cross-claim,
Indeed, it was grossly erroneous for
(4) third (fourth, etc.)—party complaint, or
the trial court to have taken a procedural
(5) complaint-in-intervention.
short-cut by dismissing motu proprio the
complaint on the ground of improper venue
The defenses of a party are alleged in the
without first allowing the procedure outlined in
answer to the pleading asserting a claim
the Rules of Court to take its proper course.
against him.

How to question improper venue


An answer may be responded to by a reply.
(Sec.2, Rule 6)
(1) Motion to dismiss—
By filing a motion to dismiss before a
Pleadings allowed under Summary Procedure
responsive pleading (answer) on the ground of
The only pleadings under the Rules on
improper venue (Sec. 1[c], Rule 16)
Summary Procedure are:
(1) complaint;
(2) Affirmative defense in answer—
(2) compulsory counterclaim;
By impleading improper venue as an
affirmative defense in the answer (Sec. 6, Rule (3) cross-claim pleaded in the answer; and
16) (4) answers.

Pleadings not allowed in a petition for writ of


PLEADINGS amparo or habeas data
(Substantial Requirements) The following are prohibited motions in the
mentioned petitions:
In general (1) counterclaim;
(2) cross-claim;
Pleadings defined (3) third-party complaint;
Pleadings are the written statements of the (4) reply; and
respective claims and defenses of the parties (5) pleadings in intervention
submitted to the court for appropriate
judgment. (Sec. 1, Rule 6) Parts of a pleading
 Pleadings are not supposed to allege
conclusions. It must only aver ultimate (1) Caption—
facts, or the facts essential to a party’s The caption sets forth
cause of action or defense. (1) The name of the court;
 Evidentiary matters are to be (2) The title of the action;
The title of the action indicates the
presented during the trial of the case,
names of the parties. They shall all be
not in the pleadings. These and
named in the original complaint or
conclusions may be subject of a motion
petition; but in subsequent pleadings,
to strike.
it shall be sufficient if the name of the
 All pleadings shall be liberally
first party on each side be stated with
construed.
an appropriate indication when there
 The intention of the pleader is the are other parties.
controlling factor in construing a Their respective participation
pleading and should be read in in the case shall be indicated.

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER34

(3) The docket number if assigned. Every pleading must be


(1) signed by the party or counsel
NOTE: It is NOT the caption, but the allegations representing him, and
which determine the nature of the action. (2) state in either case his address which
should not be a post office box.
(2) The Body—
The body of the pleading sets forth The signature of counsel constitutes a
(1) its designation, certification
(2) the allegations of the party’s claims or (1) that he has read the pleading;
defenses, (2) that to the best of his knowledge,
(3) the relief prayed for, and information, and belief there is good
(4) the date of the pleading. ground to support it; and
(3) that it is not interposed for delay.
(a) Paragraphs.—The allegations in the
body of a pleading shall be An unsigned pleading produces NO legal
i. divided into paragraphs so effect.
numbered as to be readily  However, the court may, in its
identified, discretion, allow such deficiency to be
ii. each of which shall contain a remedied if
statement of a single set of
• it shall appear that the same
circumstances so far as that can
was due to mere inadvertence
be done with convenience.
and
A paragraph may be referred to by its
• not intended for delay.
number in all succeeding pleadings.

Counsel shall be subject to appropriate


(b) Headings—
disciplinary action if:
For joined actions: The statement of the
first shall be prefaced by the words “first (1) he deliberately files an unsigned
cause of action,” of the second by “second pleading,
cause of action,” and so on for the others. (2) signs a pleading in violation of this
Rule,
Paragraphs in the answer addressed to one (3) alleges scandalous or indecent matter
of several causes of action in the complaint therein, or
shall be prefaced by the words (4) fails to promptly report to the court a
 “answer to the first cause of change of his address. (Sec 3, Rule 7)
action” or “answer to the second
cause of action” and so on; NOTE: Counsel’s authority and duty to sign a
pleading are personal to him. Hence, he MAY
Paragraphs of the answer addressed to NOT delegate it to just any person. A blanket
several causes of action, they shall be authority entrusted to just anyone is void since
prefaced by words to that effect. it will amount to signing by unqualified
persons.
(c) Relief.—The pleading shall specify the
relief sought, BUT it may add a general (4) Verification—
prayer for such further or other relief as General Rule: Pleadings NEED NOT be under
may be deemed just or equitable. oath, verified or accompanied by affidavit.
• The relief or prayer does not Exception: when otherwise specifically
constitute a part of the required by law or rule. The follow pleadings
statement of the cause of must be verified:
action.  Petition to take deposition before
action;
• The court may grant a relief
not prayed for as long as the  Petition for relief from judgment;
relief is warranted by the  Appeal by Certiorari from CA to SC;
allegations of the complaint  Application for Preliminary Injunction
and the proof. or Temporary Restraining Order;
 Application for Appointment of a
(d) Date.—Every pleading shall be dated. Receiver;
(Sec. 2, Rule 7)
 Petition for Certiorari, Prohibition, or
Mandamus;
(3) Signature and address—

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER35

 All pleadings of forcible entry and (3) lacks a proper verification


unlawful detainer;
 Petition for appointment of general Remedies
guardian;  The court may order the correction of
 Petition of guardian for leave to sell or the pleading if lacking verification
encumber property of estate;  The court may also acct on the
 Petition to declare competency of pleading despite failure to properly
ward; verify if under the circumstances, strict
 Application for Writ of habeas corpus; compliance with the rules may be
 Petition for change of name; dispensed with
 Petition for voluntary dissolution of  The absence of verification may be
corporation; corrected by requiring an oath.
 Petition to correct entries in civil
(5) Certification against forum shopping—
registry;
Forum shopping is the filing of multiple suits in
 Pleadings in Summary Procedure.
different courts, either simultaneously or
successively, involving the same parties, to
The following need not be verified but must be
ask the courts to rule on the same or related
under oath:
causes and/or to grant the same or
 Denial of genuineness and dues
substantially the same relief.
execution of actionable document;
 It is an act of malpractice
 Denial of allegations of usury;
 The same shall constitute direct
 Motion to set aside order of default;
contempt, a cause for administrative
 Answer to written interrogatories; sanctions, as well as a ground for the
 Answer to request for admission. summary dismissal of the case with
prejudice.
Affidavit of merit or supporting affidavit is
required in the following: The certification against forum shopping is a
 Motion for summary judgment or sworn statement by the plaintiff or principal
opposition thereto; party certifying in an initiatory pleading:
 Motion for new trial; (a) that he has not commenced any action
 Affidavit of third-party claim on levied or filed any claim involving the same
property; issues in any court, tribunal or quasi-
 Proof required of redemptioner; judicial agency and, to the best of his
 Complaint with prayer for preliminary knowledge, no such other action or
attachment; claim is pending therein;
 Affidavit of third-party claim on (b) if there is such other pending action or
attached property; claim, a complete statement of the
 Motion to dissolve preliminary present status thereof; and
injunction on ground of irreparable (c) if he should thereafter learn that the
damage to movant while adverse party same or similar action or claim has
can be fully compensated been filed or is pending, he shall report
 Complaint for replevin: that fact within five (5) days therefrom
 Claim against estate of decedent. to the court wherein his aforesaid
complaint or initiatory pleading has
How pleading is verified been filed.
A pleading is verified by an affidavit
(1) that the affiant has read the pleading NOTE: The certification must be executed by
and the party NOT the counsel, unless the latter is
(2) that the allegations therein are true authorized specifically to do so. A certification
and correct of his personal knowledge signed by the counsel is a defective
or based on authentic records. certification and is a valid cause for dismissal.
BUT This rule must be liberally interpreted:
NOTE: A pleading required to be verified shall  Failure of parties to sign because they
be treated as an unsigned pleading if it were abroad may be a reasonable
contains a verification cause to exempt the parties from
(1) based on “information and belief,” compliance with the requirement
(2) upon “knowledge, information and  Signing by one of the petitioners was
belief,” or held to be substantial compliance

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER36

 When plaintiff is a juridical person— In general


this may be signed by the properly Every pleading shall contain in a methodical
authorized persons. and logical form, a plain, concise and direct
statement of the ultimate facts on which the
This requirement is mandatory in the filing of a party pleading relies for his claim or defense,
complaint and other initiatory pleading, but it as the case may be, omitting the statement of
is NOT jurisdictional. The rule applies also to mere evidentiary facts.
special civil actions.
If a defense relief on is based on law,
Initiatory pleadings include  the pertinent provisions thereof and
(1) Original complaint;  their applicability to him shall be
(2) Permissive counterclaim; clearly and concisely stated. (Sec. 1,
(3) Cross-claim; Rule 8)
(4) Third (fourth, etc.)-party complaint;
(5) Complaint in intervention; and Ultimate facts are those which directly form
(6) Petition or application wherein the the basis of the right sought to be enforced, or
party asserts his claim or relief. the defense relied upon. They are the very
facts without which, for example, the cause of
NOTE: No certification required for a action stated in a complaint would be
compulsory counterclaim since it is NOT an insufficient.
initiatory pleading.  Test of sufficiency—
If from the facts alleged, a valid
Effect of failure to comply judgment may be rendered for the
(1) It shall NOT be curable by mere plaintiff, the complaint is prima facie
amendment of the complaint or other sufficient.
initiatory pleading.
(2) BUT it shall be cause for the dismissal No need to allege the following in the
of the case without prejudice, unless pleadings:
otherwise provided, upon motion and (1) evidentiary or probative facts
after hearing. (2) those presumed by law
(3) facts of judicial notice
Effect of the submission of a false certification (4) inferences, arguments and conclusions
or non-compliance with any of the of law derived or inferred from the
undertakings therein: stated ultimate facts
(1) Indirect contempt;
(2) Administrative and criminal actions. Capacity
Effect of willful and deliberate forum shopping The following must be averred:
by the party or his counsel: (1) Facts showing the capacity of a party
(1) ground for summary dismissal with to sue or be sued:
prejudice (2) The authority of a party to sue or be
(2) direct contempt, and sued in a representative capacity; or
(3) a cause for administrative sanctions. (3) The legal existence of an organized
(Sec. 5, Rule 7) association of persons that is made a
party.
How to determine existence of forum shopping
The most important question is whether the Contesting the capacity of a party
elements of litis pendentia are present OR A party desiring to raise an issue as to the
whether a final judgment in one case will result legal existence of any party or the capacity of
to res judicata. any party to sue or be sued in a representative
The TEST is whether in the two or more capacity, shall do so by specific denial, which
cases pending, there is: shall include such supporting particulars as are
(a) identity of parties; peculiarly within the pleader’s knowledge.
(Sec. 4, Rule 8)
(b) identity of rights or causes of action,
and
Specific denial
(c) identity of reliefs sought.
How to make a specific denial:
(1) Absolute denial—specify each
HOW ALLEGATIONS MADE material allegation of fact the truth of
which he does not admit and,
whenever practicable, set forth the
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER37

substance of the matters upon which NOTE: If the above rule is not complied with,
he relies to support his denial.  the complaint may be dismissed, or
(2) Partial denial—where only a
 the answer may be stricken off the
part of an averment is denied, he records and he will be declared in
specify so much of it as is true and default.
material and deny only the remainder.
(3) Denial by disavowal of The following may be averred generally:
knowledge—where defendant is (1) malice,
without knowledge or information
(2) intent,
sufficient to form a belief as to the
(3) knowledge or
truth of a material averment in the
complaint, he shall so state, and this (4) other condition of the mind of a
shall have the effect of a denial. (Sec. person.
10, Rule 8) (Sec. 5, Rule 8)

NOTE: Allegations not specifically denied are Judgments


deemed admitted. Exception: In pleading a judgment or decision of a
 amount of unliquidated damages, domestic or foreign court, judicial or quasi-
which must always be proved; judicial tribunal, or of a board or officer, it is
sufficient
 allegations of usury in a complaint to
recover usurious interest are admitted  to aver the judgment or decision
if not denied under oath. (Sec. 11, Rule without setting forth matter showing
8) jurisdiction to render it. (Sec. 6, Rule 8)

Alternative claims and defenses Official documents


A party may set forth two or more statements In pleading an official document or official act,
of a claim or defense alternatively or it is sufficient to aver:
hypothetically, either  that the document was issued or the
 in one cause of action or defense or act done in compliance with law. (Sec.
9, Rule 8)
 in separate causes of action or
defenses.
Need to bring in new parties
When the presence of parties other than those
When two or more statements are made in the
to the original action is required for the
alternative and one of them if made
granting of complete relief in the
independently would be sufficient, the
determination of a counterclaim or cross-claim,
pleading is NOT made insufficient by the
the court shall ORDER them to be brought in as
insufficiency of one or more of the alternative
defendants, if jurisdiction over them can be
statements. (Sec. 2, Rule 8)
obtained. (Sec. 12, Rule 6)
Examples
Alternative cause of action: Breach of
COMPLAINT
contract of carriage or tort
Alternative defense: Payment; even if
Defined and in general
not paid, action has prescribed
The complaint is the pleading alleging the
plaintiff’s cause or causes of action. The
Conditions precedent
names and residences of the plaintiff and
In any pleading a general averment of the
defendant must be stated in the complaint.
performance or occurrence of all conditions
(Sec. 3, Rule 6)
precedent shall be sufficient. (Sec. 3, Rule 8)
 It is the first pleading a party filed in
Example: Exhaustion of administrative court.
remedies.  It must be in writing.

Fraud and mistake, condition of mind Allegations


In all averments, the circumstances
constituting the following must be stated with In general
particularity: Every pleading shall contain in a methodical
(1) fraud or and logical form, a plain, concise and direct
(2) mistake statement of the ultimate facts on which the
party pleading relies for his claim or defense,

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER38

as the case may be, omitting the statement of The RTC was later conferred with
mere evidentiary facts. jurisdiction over the matter due to a
presidential declaration confirming the former
If a defense relief on is based on law, as a special commercial court. Oscar filed a
 the pertinent provisions thereof and Motion to Declare Complaint as Nuisance or
their applicability to him shall be clearly and Harassment Suit. The RTC denied the motion
concisely stated. and the CA affirmed. Hence this petition

ISSUE: Whether the allegations against Oscar


were sufficient to hold him guilty of fraud
NO. The rule is that a complaint must
contain a plain, concise, and direct statement
of the ultimate facts constituting the plaintiff's
cause of action and must specify the relief
REYES v. RTC MAKATI sought. Section 5, Rule 8 of the Revised Rules
(2008) of Court provides that in all averments of fraud
or mistake, the circumstances constituting
fraud or mistake must be stated with
Allegations of deceit, machination, false particularity. These rules find specific
pretenses, misrepresentation, and threats application to Section 5(a) of P.D. No. 902-A
are largely conclusions of law that, without which speaks of corporate devices or schemes
supporting statements of the facts to that amount to fraud or misrepresentation
which the allegations of fraud refer, do not detrimental to the public and/or to the
sufficiently state an effective cause of stockholders.
action. Allegations of deceit, machination,
FACTS: Pedro and Anastacia Reyes, along with false pretenses, misrepresentation, and threats
their two children Oscar, Rodrigo, owned are largely conclusions of law that, without
shares of stock in Zenith Insurance Corporation supporting statements of the facts to which the
(Zenith). When Pedro and Anastacia died, allegations of fraud refer, do not sufficiently
Rodrigo owned 4,250 shares while Oscar state an effective cause of action. Fraud and
owned 8,715,637 shares. Pedro’s estate was mistake are required to be averred with
properly partitioned in the 70’s but Anastacia’s particularity to enable the opposing party to
estate was not partitioned (which includes her controvert the particular facts allegedly
shares in Zenith). constituting such fraud or mistake.
Zenith and Rodrigo filed a complaint The charges of fraud against Oscar
designated as a derivative suit with the SEC were not properly supported by the required
against Oscar to obtain an accounting of the factual allegations. While the complaint
funds and assets of Zenith which are now or contained allegations of fraud purportedly
formerly in the control, custody, and/or committed by him, these allegations are not
possession of petitioner Oscar and to particular enough to bring the controversy
determine the shares of stock of deceased within the special commercial court's
Reyes spouses that were “arbitrarily and jurisdiction; they are not statements of
fraudulently” appropriated by Oscar for himself ultimate facts, but are mere conclusions of
and which were not collated and taken into law: how and why the alleged appropriation of
account in the partition, distribution, and/or shares can be characterized as "illegal and
settlement of the estate of the deceased fraudulent" were not explained nor elaborated
spouses. The complaint prayed that Oscar be on.
ordered to account for all the income from the
time he took these shares, and deliver to his Capacity of parties
brothers and sisters their just and respective The following must be averred:
shares. (1) Facts showing the capacity of a party
In his Answer with Counterclaim, Oscar to sue or be sued:
denied the charge that he illegally acquired (2) The authority of a party to sue or be
the shares of Anastacia, asserting that he sued in a representative capacity; or
purchased the shares with his own funds from (3) The legal existence of an organized
Zenith’s unissued stocks, and that the suit is association of persons that is made a
not a bona fide derivative suit because the party.
requisites have not been complied with. He
questioned the SEC's jurisdiction to entertain Contesting the capacity of a party
the complaint because it pertains to the
settlement of the estate of Anastacia Reyes.

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER39

A party desiring to raise an issue as to the unrelated to the genuineness and due
legal existence of any party or the capacity of execution of the document:
any party to sue or be sued in a representative (1) Payment;
capacity, shall do so by specific denial, which (2) Want of consideration;
shall include such supporting particulars as are (3) Illegality of consideration;
peculiarly within the pleader’s knowledge. (4) Usury;
(Sec. 4, Rule 8) (5) Fraud;
(6) Prescription,
Actions based upon a document (7) Release;
Whenever an action or defense is based upon (8) Waiver;
a written instrument or document, the party (9) Statute of frauds;
shall: (10) Estoppel;
(1) set forth in the pleading the substance (11) Former recovery or
of such instrument or document , and discharge in bankruptcy, etc.
(2) attach the original or a copy thereof an
exhibit, which shall be deemed to be a When an oath is not required
part of the pleading, or A specific denial under oath will not apply in
(3) set forth said copy be in the pleading the following cases:
with like effect. (Sec. 7, Rule 8) (1) When the adverse party does not
appear to be a party to the document,
Actionable document is one which is the basis or
of the claim or defense. Examples: (2) When compliance with an order for an
 promissory note inspection of the original instrument is
 deed of sale refused. (Sec. 8, Rule 8)
 contract
ANSWER
NOTE: Letters by parties regarding the
actionable document are not actionable Defined and in general
documents, but mere evidence of the An answer is a pleading in which a defending
existence of the actionable document. party sets forth his defenses. (Sec. 4, Rule 6)
 This pleading may be an answer to the
complaint, to a counterclaim, or an
To contest an actionable document answer to a cross-claim.
The party must  There is NO answer to a reply.
(1) specifically deny the genuineness and  There may be an answer to a third-
due execution of the document under party complaint or complaint-in-
oath; and intervention.
(2) set forth what he claims to be the
facts.

NOTE: A mere specific denial is insufficient. Types of defenses


The denial must be coupled with an oath; the
denial must be verified. Negative
 Absence of an oath will be deemed an A negative defense is the specific denial of the
implied admission of the due execution material fact or facts alleged in the pleading of
and genuineness of the document. the claimant essential to his cause or causes of
 When a party is deemed to have action. (Sec. 5[a], Rule 6)
admitted genuineness and due A defense is negative when the
execution of an actionable document, material averments alleged in the pleading of
defenses implied from said admission the claimant are specifically denied. (Sec. 5,
are waived (forgery, lack of authority Rule 3)
to execute the document, no capacity
to sign, non-delivery of the document, How alleged, generally
defense that the document was not in It is alleged in the form of a specific
words and figures as set out in the denial.
pleadings)  If the denial is not
under Sec. 10, Rule 8, it is
 The following are NOT cut-off by the
deemed a general denial.
implied admission since they are
 A general denial is an
admission.

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER40

(3) set forth said copy be


Specific denial in the pleading with like effect.
How to make a specific denial: (Sec. 7, Rule 8)
(1) Absolute denial—specify each
material allegation of fact the truth Actionable document is one which is
of which he does not admit and, the basis of the claim or defense.
whenever practicable, set forth the Examples:
substance of the matters upon  promissory note
which he relies to support his  deed of sale
denial.  contract
(2) Partial denial—where only a part of
an averment is denied, he specify NOTE: Letters by parties regarding the
so much of it as is true and actionable document are not
material and deny only the actionable documents, but mere
remainder. evidence of the existence of the
(3) Denial by disavowal of knowledge actionable document.
—where defendant is without
knowledge or information sufficient To contest an actionable document
to form a belief as to the truth of a The party must
material averment in the (1) specifically deny the
complaint, he shall so state, and genuineness and due
this shall have the effect of a execution of the document
denial. (Sec. 10, Rule 8) under oath; and
(2) set forth what he
Capacity of parties claims to be the facts.
The following must be averred:
(1) Facts showing the NOTE: A mere specific denial is
capacity of a party to sue or be insufficient. The denial must be
sued: coupled with an oath; the denial must
(2) The authority of a be verified.
party to sue or be sued in a  Absence of an oath will
representative capacity; or be deemed an implied
(3) The legal existence of admission of the due execution
an organized association of and genuineness of the
persons that is made a party. document.
 When a party is
Contesting the capacity of a party deemed to have admitted
A party desiring to raise an issue as to genuineness and due
the legal existence of any party or the execution of an actionable
capacity of any party to sue or be sued document, defenses implied
in a representative capacity, shall do from said admission are
so by specific denial, which shall waived (forgery, lack of
include such supporting particulars as authority to execute the
are peculiarly within the pleader’s document, no capacity to sign,
knowledge. (Sec. 4, Rule 8) non-delivery of the document,
defense that the document
Genuineness of documents was not in words and figures as
Whenever an action or defense is set out in the pleadings)
based upon a written instrument or  The following are NOT
document, the party shall: cut-off by the implied
(1) set forth in the admission since they are
pleading the substance of such unrelated to the genuineness
instrument or document , and and due execution of the
document:
(2) attach the original or a
(1) Payment;
copy thereof an exhibit, which
(2) Want of
shall be deemed to be a part of
consideration;
the pleading, or
(3) Illegality of
consideration;
(4) Usury;

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER41

(5) Fraud; and discrepancies; and (3) possible


(6) Prescription, manipulation of delivery receipts. He made a
(7) Release; counterclaim and asked for P300,000 in actual
(8) Waiver; damages for the seizure of two of his vehicles;
(9) Statute of P500,000 as moral damages; at least P200,000
frauds; as exemplary damages; and P150,000 as
(10) Estoppel; attorney’s fees.
(11) Former The RTC ruled that Masongsong was
recovery or discharge entitled to the reliefs prayed for. However,
in bankruptcy, etc. Memita filed a notice of appeal with the trial
court. In his brief, Memita averred that the trial
When an oath is not required court erroneously admitted as evidence the
A specific denial under oath will not machine copies of the seventy-two (72) sales
apply in the following cases: invoices despite the patent lack of proof of due
(3) When the adverse execution and authenticity; and in holding that
party does not appear to be a Memita acknowledged receipt of the deliveries
party to the document, or made by Masongsong.
(4) When compliance with The appellate court upheld the trial
an order for an inspection of court’s decision. They said Memita failed to
the original instrument is explicitly deny or contest the genuineness and
refused. (Sec. 8, Rule 8) due execution of the receipts or any signatures
on the receipts.
MEMITA v. MASONGSONG
(2007) ISSUES: Whether Memita was able to contest
the genuineness and due execution of the 72
sales invoices
The genuineness and due execution of the
NO. Without specifying the date of
instrument shall be deemed admitted
purchase or the receipt number, Memita
unless the adverse party, under oath,
denied the quantities and value of his
specifically denies them, and sets forth
purchases. He alleged that there were
what he claims to be the facts. A defendant
questionable deliveries and questionable
must specify each material allegation of
number of kilos per crate, and concluded that
fact the truth of which he does not admit
Masongsong might have manipulated the
and, whenever practicable, shall set forth
delivery receipts. However, he failed to point
the substance of the matters upon which he
out any particular Sales Invoice which
relies to support his denial.
substantiates his claim of short deliveries or
FACTS: Masongsong, under the business name questionable deliveries. The appellate court
of RM Integrated Services, was the distributor reiterated the trial court’s position and stated
of San Miguel Foods, Inc.’s Magnolia chicken that Memita’s The Answer failed to explicitly
products. He supplied said products on a 25- deny or contest the genuineness and due
day payment credit to Memita’s Vicor Store. execution of any of the receipts nor any of his
Masongsong filed a complaint before signatures or that of his authorized
the RTC, alleging that Memita’s P603,520.50 representative appearing therein.
credit on goods purchased remain unpaid Section 8 of Rule 8 provides that the
despite his several demands. He also prayed genuineness and due execution of the
for the issuance of a writ of attachment against instrument shall be deemed admitted unless
Memita. the adverse party, under oath, specifically
Thereafter, the RTC ordered the denies them, and sets forth what he claims to
issuance of a writ of attachment against be the facts.
Memita, taking into account: (1) the allegations Memita, in alleging "questionable" and
of the verified complaint; (2) the testimonies of "short" deliveries, in effect alleges that
Masongsong and Joel Go, his sales person; and Masongsong committed fraud. Whoever
(3) Masongsong’s bond. According to the alleges fraud or mistake affecting a transaction
sheriff’s return of service, the Provincial Sheriff must substantiate his allegation, since it is
issued a notice of levy on attachment to the presumed that a person takes ordinary care of
Registrar of the TO and a notice of embargo to his concerns and private concerns have been
the Register of Deeds of Bacolod City. fair and regular. Memita chose to present
Memita did not deny that he purchased evidence which did not "set forth the facts" nor
goods on credit from Masongsong, but based the "substance of the matters upon which he
his refusal to pay on the following grounds: (1) relies to support his denial.”
questionable deliveries; (2) short deliveries

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER42

Negative pregnant condition, leaving a balance of 1,080 bags.


Denial in the form of a negative Defendants were sued for such losses.
pregnant— Before trial, a compromise agreement
It is a denial which at the same time was entered into between petitioners, as
involves an affirmative implication plaintiffs, and defendants S.C.I. Line and F.E.
favorable to the opposing party, and is Zuellig. The trial court granted petitioners
thus an admission of an averment to motion to dismiss on the ground of said
which it is directed. It is a literal denial amicable settlement and the case as to S.C.I.
pregnant with admission. Line and F.E. Zuellig was consequently
 It does not qualify as a specific dismissed. CA reversed the RTC on supposed
denial. It is conceded to be ground of prescription when SLI failed to
actually an admission. adduce any evidence in support thereof and
 It is a negative implying also that the bills of lading said to contain the
an affirmative and which shortened periods for filing a claim and for
although stated in a negative instituting a court action against the carrier
form really admits the were never offered in evidence.
allegations to which it relates.
ISSUE: Whether the non-inclusion of the
controverted bills of lading in the formal offer
of evidence would bar respondent from raising
the defense of prescription
NO. In the case at bar, prescription as
PHILIPPINE AMERICAN GENERAL an affirmative defense was seasonably raised
INSURANCE CO., INC. v. SWEET LINES by SLI in its answer, except that the bills of
(212 SCRA 194, 1993) lading embodying the same were not formally
offered in evidence.
As petitioners are suing upon SLI's
Even granting that petitioner’s averment in contractual obligation under the contract of
their reply amounts to a denial, it has the
carriage as contained in the bills of lading,
procedural earmarks a negative pregnant,
that is, a denial pregnant with the such bills of lading can be categorized as
admission of the substantial facts in the actionable documents which under the Rules
pleadings responded to which are not must be properly pleaded either as causes of
squarely denied. While the petitioners action or defenses, and the genuineness and
objected to the validity of such agreement due execution of which are deemed admitted
for being contrary to public policy, the unless specifically denied under oath by the
existence of the bills of lading and said
adverse party.
stipulations were impliedly admitted by
them Petitioners failed to controvert the
existence of the bills of lading; hence, they
impliedly admitted the same when they merely
FACTS: In March 1977, the vessel SS "VISHVA assailed the validity of subject stipulations.
YASH" a foreign common carrier, took on board Petitioners' failure to specifically deny the
at Baton Rouge, LA, two (2) consignments of existence, much less the genuineness and due
cargoes for shipment to Manila and later for execution, of the instruments in question
transshipment to Davao City, consisting of amounts to an admission. Judicial admissions,
bags of Low Density Polyethylene both verbal or written, made by the parties in the
consigned to the order of FEBTC Manila, with pleadings or in the course of the trial or other
arrival notice to TPI in Davao City. The said proceedings in the same case are conclusive,
vessel arrived at Manila and discharged its no evidence being required to prove the same,
cargoes in the Port of Manila. For and cannot be contradicted unless shown to
transshipment to Davao, the carrier awaited have been made through palpable mistake or
and made use of the services of M/V "Sweet that no such admission was made. Moreover,
Love" owned and operated by SLI interisland when the due execution and genuineness of an
carrier. instrument are deemed admitted because of
Subject cargoes were loaded and were the adverse party's failure to make a specific
commingled with similar cargoes belonging o verified denial thereof, the instrument need
other two other companies. The shipments not be presented formally in evidence for it
were discharged from the interisland carrier may be considered an admitted fact.
into the custody of the consignee. However, of Petitioners failed to touch on the
the 7,000 bags originally contained in 175 matter of the non-presentation of the bills of
pallets, only a total of 5,820 bags were lading in their brief and earlier on in the
delivered to the consignee in good order appellate proceedings in this case. Petitioners

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER43

acknowledged the existence of said bills of Answer to the complaint—


lading. By having the cargo shipped on Within 15 days after service of summons,
respondent carrier's vessel and later making a unless a different period is fixed by the court
claim for loss on the basis of the bills of lading, (Sec. 1, Rule 11)
petitioners for all intents and purposes
accepted said bills. Answer of a defendant foreign private juridical
entity.— Within 30 days after receipt of
Affirmative summons where the defendant is
An affirmative defense is an allegation of a (1) a foreign private juridical entity and
new matter which, while hypothetically (2) service of summons is made on the
admitting the material allegations in the
government official designated by law
pleading of the claimant would nevertheless
to receive the same. (Sec. 2, Rule 11)
prevent or bar recovery by him.
 It is not a denial of an essential Answer to amended complaint:
ingredient in the plaintiff’s cause of
action, but one which, if established, Filed as a matter of right—
will be a good defense, an avoidance Within 15 days after being served with a copy
of the claim. of the amended complaint.
 It must be of such nature as to bar the
plaintiff from claiming on his cause of Not a matter of right—
action. Within 10 days from notice of the Order
 The plaintiff may deny or controvert it admitting the same
by filing a reply. If no reply is,  An answer earlier filed may serve as
affirmative defenses are deemed the answer to the amended complaint,
controverted except those which are if no new answer is filed.
required to be under oath.
NOTE: This Rule applies to answers to
The affirmative defenses include (1) an amended counterclaim,
(1) fraud, (2) amended cross-claim,
(2) statute of limitations, (3) amended third (fourth, etc.)— party
(3) release, complaint, and
(4) payment, (4) amended complaint-in-intervention.
(5) illegality, (Sec. 3, Rule 11)
(6) statute of frauds,
(7) estoppel, Waiver of defenses
(8) former recovery, A compulsory counterclaim, or a cross-claim,
(9) discharge in bankruptcy, and not set up shall be barred. (Sec. 2, Rule 9)
(10) any other matter by way of
confession and avoidance COUNTERCLAIMS

Defined and in general


A counterclaim is any claim which a defending
party may have against an opposing party.
Implied admissions (Sec. 6, Rule 6)
General rule: Defenses and objections not  It partakes of a complaint by the
pleaded either in a motion to dismiss or in the defendant against the plaintiff
answer are deemed waived.  “claim” may refer to a claim for
(a) Money; or
Exception: The grounds of (b) Some other relief against an
(1) Lack of jurisdiction over the subject opposing party
matter;  Upon filing of the counterclaim, the
(2) Litis pendentia (that there is another defendant becomes the plaintiff, while
action pending between the same the original plaintiff becomes the
parties for the same cause); defendant.
(3) Res judicata (that the action is barred  It gives rise to two complaints: the
by a prior judgment), and original complaint and the
(4) Prescription counterclaim.

Periods to plead How raised

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER44

Included in answer Compulsory counterclaim, being ancillary


A counterclaim may be asserted against an to the principal controversy, cannot
original counter-claimant. (Sec. 9, Rule 6) "remain pending for independent
adjudication by the court." Dismissal of the
A compulsory, counterclaim or a cross-claim complaint carries with it the dismissal of
that a defending party has at the time he files the compulsory counterclaim.
his answer shall be contained therein. (Sec. 8,
Rule 11) FACTS: BA Finance brought an action recover a
sum of money from a credit accommodation in
After answer the form of a discounting line which it granted
A counterclaim may be asserted against an to Rufino Co, and from certain suretyship
original counter-claimant. (Sec. 9, Rule 6) agreements executed in its favor by his co-
respondents. As their counterclaim,
A counterclaim or a cross-claim which either respondents alleged overpayments and
(1) matured or damages. They asserted that they are no
(2) was acquired by a party after serving longer indebted to petitioner and are in fact
his pleading entitled to reimbursement for overpayments.
may, with the permission of the court, be They asked for damages for expenses incurred
presented as a counterclaim or a cross-claim and inconveniences suffered by them as a
by supplemental pleading before judgment. result of the filing of the present action.
(Sec. 9, Rule 11) After respondents' Amended Answer to
Complaint with Compulsory Counterclaim was
Kinds of counterclaims admitted, the case was set for Pre-Trial
Conference. The conference was repeatedly
Compulsory reset. Counsel for BA Finance failed to attend
A compulsory counterclaim is one which, being the Pre-Trial Conference. Consequently, Co
cognizable by the regular courts of justice, moved for dismissal of the case without
(1) Arises out of or is connected with the prejudice. The motion was granted.
transaction or occurrence constituting Respondents moved to set the
the subject matter of the opposing reception of their evidence in support of their
party’s claim and counterclaim. Trial court denied the motion. CA
reversed the lower court’s order and directed it
(2) Does not require for its adjudication
to set the reception of their evidence on their
the presence of third parties of whom
counterclaim. Motion for reconsideration was
the court cannot acquire jurisdiction.
denied, hence the instant petition alleging that
(3) Such a counterclaim must be within the dismissal of the complaint carried with it
the jurisdiction of the court both as to the dismissal of respondent’s counterclaim.
the amount and the nature thereof,
except that in an original action before ISSUE: Whether the dismissal of the complaint
the RTC, the counterclaim may be carries with it the dismissal of the
considered compulsory regardless of counterclaim
the amount. (Sec. 7, Rule 6) YES. A compulsory counterclaim
cannot "remain pending for independent
NOTE: A compulsory counterclaim, or a cross- adjudication by the court." This is because it is
claim, not set up shall be barred. (Sec. 2, Rule auxiliary to the proceeding in the original suit
9) and merely derives its jurisdictional support
therefrom. Thus, if the trial court no longer
possesses jurisdiction to entertain the main
action of the case, an when it dismisses the
same, then the compulsory counterclaim being
ancillary to the principal controversy, must
likewise be similarly dismissed since no
jurisdiction remains for the grant of any relief
under the counterclaim.
In the case at bar, the same evidence
needed to sustain the counterclaim of
-It cannot be independently adjudicated respondents would also refute the cause of
action in petitioner's complaint. If private
BA FINANCE CORP v. CO respondents could successfully show that they
(224 SCRA 163, 1993) actually made overpayments on the credit
accommodations extended by petitioner, then

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER45

the complaint must fail. Therefore the to him by the company. Another ejectment suit
counterclaim is compulsory. However, with the was filed against him in the MTC.
dismissal of the complaint on defendant's own In his answer to the complaint, Maceda
motion, it likewise dismissed the counterclaim set up a P240,000 counterclaim, the alleged
questioning the complaint. value of his improvements. The MTC ordered
What the defendants could have done him to vacate the premises and pay Cement
instead of moving for dismissal was to ask the Center rent. The latter was ordered to
trial court to declare petitioners to be "non- reimburse him for the improvements.
suited" on their complaint so that the latter The RTC set aside the decision and
can no longer present his evidence thereon, ordered Cement Center to pay Maceda
and simultaneously move that he be declared P182,000 as necessary and useful
as in default on the compulsory counterclaim, improvements.
and reserve the right to present evidence ex The CA reversed the decision because
parte on his counterclaim. This will enable of MTC’s lack of jurisdiction, and, in
defendant who was unjustly haled to court to consequence the RTC decision’s lack of legal
prove his compulsory counterclaim, which is basis.
intertwined with the complaint, because the
trial court retains jurisdiction over the ISSUE: Whether the MTC had jurisdiction over
complaint and of the whole case. The non- an ejectment case where the lessee's
dismissal of the complaint, the non-suit counterclaim exceeds the court's jurisdictional
notwithstanding, provides the basis for the limit
compulsory counterclaim to remain active and NO. The MTC did not have original
subsisting. jurisdiction over his counterclaim as it exceeds
P20,000. Correspondingly, the RTC did not
-Jurisdiction (both as to amount and have appellate jurisdiction over the claim. The
nature; exception) decision of the MTC awarding Maceda
P158,000 on his counterclaim, and that of the
MACEDA v. CA RTC raising the award to P182,200, were
(1989) invalid for lack of jurisdiction. The jurisdiction
of the MTC in a civil action for sum of money is
The MTC does not have original jurisdiction limited to a demand that "does not exceed
over the counterclaim as it exceeds P20,000 exclusive of interest and costs but
P20,000, hence the RTC did not have inclusive of damages of whatever kind." (Sec.
appellate jurisdiction over the claim. 33, subpar. 1, B.P. Blg. 129.) A counterclaim in
the municipal or city court beyond that
jurisdictional limit may be pleaded only by way
FACTS: Spouses Arturo and Maxima emigrated of defense to weaken the plaintiffs claim, but
to the U.S. and leased their house and lot to not to obtain affirmative relief.
their nephew, Maceda, for P200 per month.
With the spouses’ permission, petitioner -Filing fees and non-forum certification
repaired and renovated the house subject to not required
reimbursement for expenses. The remodeling
job cost P40,000. The spouses made plans to Permissive
reimburse him. Maceda introduced more A permissive counterclaim is one which does
improvements. not arise out of the opposing party’s claim or
When Arturo passed away in the US, necessarily connected with the transaction or
his attorney-in-fact promised to sell to Maceda occurrence constituting the subject matter of
the property for P125,000 after the transfer of the opposing party’s claim.
title to his widowed aunt. However, it was later  It is not connected with the plaintiff’s
sold by the aunt to Mr. Gomez, and the latter cause of action.
to Pablo Zubiri. Ejectment cases were filed
against Maceda, but all were dismissed.
 It is NOT barred even if not pleaded in
the answer.
Maxima died in the US.
Zubiri sold the property to Cement  It may be filed as an independent
Center, Inc., who asked petitioner to vacate action by the defendant as plaintiff.
because of a housing project it had for its
employees. Maceda insisted on being Examples
reimbursed for his improvements as the  Counterclaim for damages based on
original owners had promised to do. Formal culpa aquiliana in a complaint for
demands to vacate and for payment of P4,000 collection of a loan
monthly rental from April 15, 1982 were sent

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER46

 Counterclaim for damages based on FACTS: PHDI and Magno et al, filed a complaint
quasi-delict in the RTC against Aum, a Korean National and
 Counterclaim for the payment of the president of PHDI, and the Korea Exchange
price of a car in an action to recover a Bank (KEB). They alleged that through the
piece of land machination of Aum, KEB granted a
$500,000.00 loan to the PHDI with the
Distinctions between compulsory and condition that the said loan be deposited with
permissive counterclaim the KEB in the name of PHDI. Thereafter, the
plaintiffs executed a real estate mortgage over
PERMISSIVE COMPULSORY their properties as security for the said loan.
May be set up as an Under PHDI’s board resolution, only
Must be contained
independent action Aum and Mendoza were authorized signatories
in the answer; if it is
and will not be to all applications for withdrawals from the said
not set up, it shall
barred if not in the accounts. Aum withdrew $160,000.00 from the
be barred
answer account by forging Mendoza’s signature. He
Not an initiatory was made another withdrawal, leaving a
An initiatory pleading
pleading balance of $163,000.00. Aum allegedly could
Should be not have withdrawn said deposits without the
accompanied by a KEB’s connivance. Aum's failure to heed
certification against demands for an accounting of the said
forum shopping and withdrawals and for the restitution of the said
Does not require
when legally amounts constituted large scale estafa for
certifications
required, a which they are liable for exemplary and moral
certificate to file damages. The KEB filed a Motion to Dismiss
action by the Lupong the complaint, which the trial court denied. The
Tagapamayapa KEB filed a petition for certiorari and
Failure to answer prohibition with the CA for the nullification of
this is NOT a cause the orders of the RTC.
for a default Meanwhile, in another case, KEB filed a
Must be answered by
declaration. Complaint against Magno et al and PHDI before
the party against
Compulsory the RTC for sum of money and reformation of
whom it is
counterclaims the real estate mortgage executed by PHDI.
interposed,
merely reiterating PHDI and Magno, et al. filed a motion to
otherwise, he may be
special defenses are dismiss on the ground of forum shopping,
declared in default
deemed asserting that the KEB should have filed its
controverted even counterclaim for collection and the reformation
without a reply of the mortgage in the first civil case. They
No need to pay averred that the essential elements of litis
docket fees pendentia were present. However, the RTC
denied the motion to dismiss.
Docket and other BUT NOTE: AM 4-2- PHDI and Magno, et al. therefore filed
lawful fees should be 04 now requires their answer with counterclaims in the second
paid payment of fees for case where they denied indebtedness to the
compulsory KEB, alleging the same facts in their complaint
counterclaims in the first civil case. KEB filed a motion to
(Riano) dismiss these counterclaims, alleging that the
causes of action for PHDI’s complaint for
KOREA EXCHANGE BANK v. GONZALES collection of $160,000.00 and damages, and
(456 SCRA 224, 2005) for the counterclaims in this second case for
the set-off of the said amount against its claim
Forum shopping is a ground for summary of $500,000.00 were identical; hence, their
dismissal of both initiatory pleadings counterclaims should be dismissed for forum
without prejudice to the taking of shopping.
appropriate action against the counsel or PHDI, et al. opposed the motion to
party concerned. dismiss the complaint, alleging that KEB failed
The counterclaims of the PHDI, et to include forum shopping as a ground in its
al., for moral and exemplary damages were motion to dismiss their complaint in the first
merely permissive; hence, they were case; hence, it is bound by the omnibus motion
mandated to append thereto a certification rule. PHDI, et al. also opposed the motion to
of non-forum shopping. dismiss their counterclaims on the ground that
the causes of action in the two cases were

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER47

unrelated. They asserted that the subject Remedies


matter, causes of action and the issues in the
two cases were different. The RTC denied For failure to raise compulsory
KEB's motion to dismiss the complaint and counterclaim
motion to dismiss the counterclaims.KEB filed A compulsory counterclaim, or a cross-claim,
its answer to the counterclaims of the PHDI, et not set up shall be barred. (Sec. 2, Rule 9)
al., in the second case.  This refers to a counterclaim defendant
CA, in a joint decision, affirmed the has at the time of filing of the answer
RTC with respect to the first case, but
dismissed respondents’ counterclaims in the Oversight, inadvertence, excusable
second case for forum-shopping. The CA neglect
declared that the counterclaims of the PHDI, et When a pleader fails to set up a counterclaim
al., for moral and exemplary damages were or a cross-claim through
merely permissive; hence, they were (1) oversight,
mandated to append thereto a certification of (2) inadvertence,
non-forum shopping. (3) excusable neglect, or
(4) when justice requires,
ISSUE: Whether the counterclaim in the second
case should be dismissed for the absence of a He may, by leave of court, set up the
certificate of non-forum shopping, and whether counterclaim or cross-claim by amendment
the first case should be dismissed for forum before judgment. (Sec. 10, Rule 11)
shopping
YES. In interposing their counterclaim ANSWER TO COUNTERCLAIM
for set-off of the $160,000.00 against their
loan of $500,000.00 in the second case, as well In general
as the counterclaims for moral damages, and An answer is a pleading in which a defending
exemplary damages, the respondents thereby party sets forth his defenses. (Sec. 4, Rule 6)
engaged in forum shopping.
The general rule is that compliance Period to plead
with the certificate of forum shopping is A counterclaim or cross-claim must be
separate from and independent of the answered within 10 days from service. (Sec. 4,
avoidance of the act of forum shopping itself. Rule 11)
Forum shopping is a ground for summary
dismissal of both initiatory pleadings without REPLY
prejudice to the taking of appropriate action
against the counsel or party concerned. Defined and in general
There is forum shopping when, A reply is a pleading, the office or function of
between an action pending before the court which is to deny, or allege facts in denial or
and another one, there exist:(a) identity of avoidance of new matters alleged by way of
parties, or at least such parties as represent defense in the answer and thereby join or
the same interests in both actions; (b) identity make issue as to such new matters.
of rights asserted and relief prayed for, the  A reply is the responsive pleading to
relief being founded on the same facts; and (c) an answer, not to counterclaim or
the identity of the two preceding particulars is cross-claim.
such that any judgment rendered in the other
action will, regardless of which party is
 Not mandatory—If a party does not file
such reply, all the new matters alleged
successful, amount to res judicata in the action
in the answer are deemed
under consideration.
controverted.
There is forum shopping where a
litigant sues the same party against whom  If the plaintiff wishes to interpose any
another action or actions for the alleged claims arising out of the new matters
violation of the same right and the so alleged such claims shall be set
enforcement of the same relief is/are still forth in an amended or supplemental
pending. The defense of litis pendentia in one complaint. (Sec. 10, Rule 6)
case is a bar to the other/others; and, a final
judgment is one that would constitute res When required
judicata and thus would cause the dismissal of
the rest. Absolute identity of parties is not Challenge due to authenticity of
required. It is enough that there is substantial documents
identity of parties. When an action or defense is founded upon a
written instrument, copied in or attached to

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER48

the corresponding pleading, the genuineness provided in the preceding section, the
and due execution of the instrument shall be genuineness and due execution of the
deemed admitted unless the adverse party instrument shall be deemed admitted unless
(1) specifically denies them, and the adverse party, under oath, specifically
(2) sets forth what he claims to be the denies them, and sets forth, what he claims to
facts; be the facts; but the requirement of an oath
(3) under oath. does not apply when the adverse party does
not appear to be a party to the instrument or
BUT the requirement of an oath does not apply when compliance with an order for an
when inspection of the original instrument is refused.
Since respondent failed to file a Reply,
(1) the adverse party does not appear to
in effect, respondent admitted the
be a party to the instrument or
genuineness and due execution of said
(2) when compliance with an order for an documents. This judicial admission should
inspection of the original instrument is
have been considered by the appellate court in
refused. (Sec. 8, Rule 8)
resolving the demurrer to evidence.
Rule 8, Section 8 specifically applies to
CASENT REALTY DEV’T CORP v.
actions or defenses founded upon a written
PHILBANKING CORPORATION
instrument, and provide the manner of
(2007)
denying it. It is more controlling than Rule 6,
Section 10 which merely provides the effect of
When the defense in the answer is based failure to file a Reply. Thus, where the defense
on an actionable document, a Reply in the Answer is based on an actionable
specifically denying it under oath must be document, a Reply specifically denying it under
made; otherwise the genuineness and due oath must be made; otherwise, the
execution of the document will be deemed genuineness and due execution of the
admitted. document will be deemed admitted. Since
FACTS: Philbanking Corporation (PhilBanking) respondent failed to deny the genuineness and
filed a complaint against Casent Realty due execution of the Dacion and Confirmation
Corporation (Casent) before the RTC for Statement under oath, then these are deemed
collection on two promissory notes assigned by admitted and must be considered by the court
Rare Realty Corporation. In its Answer, Casent in resolving the demurrer to evidence.
raised, among others, as defenses the Dacion It must be noted, however, that admission
en Pago (Dacion) executed between petitioner of the genuineness and due execution of the
and respondent, and the Confirmation Dacion and Confirmation Statement does not
Statement issued by respondent stating that prevent the introduction of evidence showing
petitioner had no loans with the bank as of that the Dacion excludes the promissory notes.
December 31, 1988. Petitioner then filed a Petitioner, by way of defense, should have
Motion for Judgment on Demurrer to the presented evidence to show that the Dacion
Evidence, pointing out that the PhilBanking’s includes the promissory notes.
failure to file a Reply to the Answer constituted
an admission of the genuineness and THIRD/FOURTH-PARTY COMPLAINT
execution of said documents; and that since
the Dacion obliterated petitioner’s obligation Defined
covered by the promissory notes, the bank had A third (fourth, etc.)-party complaint is a claim
no right to collect anymore. that a defending party may, with leave of
The RTC ruled in favor of Casent and court, file against a person not a party to the
dismissed the complaint. action, called the third (fourth, etc.)—party
On appeal, the CA found that under the defendant, for
Deed of Assignment, respondent PhilBanking (1) contribution,
clearly had the right to proceed against the (2) indemnity,
promissory notes assigned by Rare Realty. (3) subrogation or
(4) any other relief, in respect of his
ISSUE: Whether respondent’s failure to file a opponent’s claim. (Sec. 11, Rule 6)
Reply and deny the Dacion and Confirmation
Statement under oath constituted a judicial NOTE: It is NOT proper to file a third-party
admission of the genuineness and due complaint against one who is already a party
execution of these documents to the action, such as against a plaintiff or a
YES. When an action or defense is co-defendant. But a cross-claim may be filed
founded upon a written instrument, copied in against them.
or attached to the corresponding pleading as

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER49

Remedies when denied Exception: when otherwise specifically


When a complaint is dismissed, the third-party required by law or rule. The follow pleadings
complaint is also dismissed. But if the plaintiff must be verified:
appeals the dismissal, the defendant-third-  Petition to take deposition before
party plaintiff must also appeal to obtain action;
affirmative relief.  Petition for relief from judgment;
 Appeal by Certiorari from CA to SC;
ANSWER TO THIRD/FOURTH-PARTY
COMPLAINT  Application for Preliminary Injunction
or Temporary Restraining Order;
In general  Application for Appointment of a
A third (fourth, etc.)—party defendant may Receiver;
allege in his answer  Petition for Certiorari, Prohibition, or
(1) his defenses, Mandamus;
(2) counterclaims,  All pleadings of forcible entry and
(3) cross-claims, unlawful detainer;
 Petition for appointment of general
(4) defenses that the third (fourth, etc.)—
guardian;
party plaintiff may have against the
 Petition of guardian for leave to sell or
original plaintiff’s claim, or
encumber property of estate;
(5) a counterclaim against the original
 Petition to declare competency of
plaintiff in respect of the latter’s claim
ward;
against the third-party plaintiff, in
proper cases.  Application for Writ of habeas corpus;
(Sec. 13, Rule 6)  Petition for change of name;
 Petition for voluntary dissolution of
Time to plead corporation;
The same period as the answer to the  Petition to correct entries in civil
complaint (Sec. 5, Rule 11): within 15 days registry;
from service of summons.  Pleadings in Summary Procedure.

The following need not be verified but must be


EXTENSION OF TIME TO PLEAD under oath:
The court may extend the time to plead  Denial of genuineness and dues
provided in these Rules: execution of actionable document;
(1) Upon motion and  Denial of allegations of usury;
(2) on such terms as may be just.  Motion to set aside order of default;
 Answer to written interrogatories;
Motion to extend period to plead  Answer to request for admission.
 Must be in writing, and before filed
before the lapse of period Affidavit of merit or supporting affidavit is
 Time to plead can only be extended, required in the following:
no shortened  Motion for summary judgment or
opposition thereto;
The court may also, upon like terms, allow an  Motion for new trial;
answer or other pleading to be filed after the  Affidavit of third-party claim on levied
time fixed by these Rules. (Sec. 11, Rule 11) property;
 An order allowing the filing of a late  Proof required of redemptioner;
answer or other pleading is  Complaint with prayer for preliminary
interlocutory, and therefore, attachment;
unappealable.  Affidavit of third-party claim on
attached property;
(Formal Requirements)  Motion to dissolve preliminary
FILING AND SERVICE OF PLEADINGS, injunction on ground of irreparable
MOTIONS AND ORDERS damage to movant while adverse party
can be fully compensated
Verification  Complaint for replevin:
General Rule: Pleadings NEED NOT be under
 Claim against estate of decedent.
oath, verified or accompanied by affidavit.
How pleading is verified

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER50

A pleading is verified by an affidavit NOTE: The certification must be executed by


(3) that the affiant has read the pleading the party NOT the counsel, unless the latter is
and authorized specifically to do so. A certification
(4) that the allegations therein are true signed by the counsel is a defective
and correct of his personal knowledge certification and is a valid cause for dismissal.
or based on authentic records. BUT This rule must be liberally interpreted:
 Failure of parties to sign because they
NOTE: A pleading required to be verified shall were abroad may be a reasonable
be treated as an unsigned pleading if it cause to exempt the parties from
contains a verification compliance with the requirement
(4) based on “information and belief,”  Signing by one of the petitioners was
(5) upon “knowledge, information and held to be substantial compliance
belief,” or
This requirement is mandatory in the filing of a
(6) lacks a proper verification
complaint and other initiatory pleading, but it
is NOT jurisdictional. The rule applies also to
Remedies
special civil actions.
 The court may order the correction of
the pleading if lacking verification
Initiatory pleadings include
 The court may also acct on the
(7) Original complaint;
pleading despite failure to properly
(8) Permissive counterclaim;
verify if under the circumstances, strict
(9) Cross-claim;
compliance with the rules may be
(10) Third (fourth, etc.)-party
dispensed with
complaint;
 The absence of verification may be
(11) Complaint in intervention; and
corrected by requiring an oath.
(12) Petition or application wherein
the party asserts his claim or relief.
Certification against forum shopping
Forum shopping is the filing of multiple suits in
NOTE: No certification required for a
different courts, either simultaneously or
compulsory counterclaim since it is NOT an
successively, involving the same parties, to
initiatory pleading.
ask the courts to rule on the same or related
causes and/or to grant the same or
Effect of failure to comply
substantially the same relief.
 It is an act of malpractice
(1) It shall NOT be curable by mere
amendment of the complaint or other
 The same shall constitute direct
initiatory pleading.
contempt, a cause for administrative
sanctions, as well as a ground for the (2) BUT it shall be cause for the dismissal
summary dismissal of the case with of the case without prejudice, unless
prejudice. otherwise provided, upon motion and
after hearing.
The certification against forum shopping is a
sworn statement by the plaintiff or principal Effect of the submission of a false certification
party certifying in an initiatory pleading: or non-compliance with any of the
undertakings therein:
(d) that he has not commenced any action
(1) Indirect contempt;
or filed any claim involving the same
(2) Administrative and criminal actions.
issues in any court, tribunal or quasi-
judicial agency and, to the best of his
Effect of willful and deliberate forum shopping
knowledge, no such other action or
by the party or his counsel:
claim is pending therein;
(1) ground for summary dismissal with
(e) if there is such other pending action or prejudice
claim, a complete statement of the
(2) direct contempt, and
present status thereof; and
(3) a cause for administrative sanctions.
(f) if he should thereafter learn that the
(Sec. 5, Rule 7)
same or similar action or claim has
been filed or is pending, he shall report
How to determine existence of forum shopping
that fact within five (5) days therefrom
The most important question is whether the
to the court wherein his aforesaid
elements of litis pendentia are present OR
complaint or initiatory pleading has
whether a final judgment in one case will result
been filed.
to res judicata.

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER51

The TEST is whether in the two or more board resolutions passed by the LCP board
cases pending, there is: void ab initio.
(d) identity of parties; The CA, however, ruled that the Ao-As
(e) identity of rights or causes of action, group were guilty of forum shopping.
and
(f) identity of reliefs sought. ISSUE: Whether the Ao-As group is guilty of
forum shopping
AO-AS v. CA NO. The six grounds originally relied
(491 SCRA 353, 2006) upon by the Ao-As group in SEC Case 3587 are
entirely different from the causes of action in
the NRLC, Civil, and the two other SEC cases. It
If the forum shopping is not considered
is true that the causes of action in the latter
willful and deliberate, the subsequent cases
cases were included as additional grounds in
shall be dismissed without prejudice on one
Case 3587 for the appointment of properties
of the two grounds mentioned above.
and assets of LCP which may have come into
However, if the forum shopping is willful
their possession during their incumbency as
and deliberate, both (or all, if there are
officers and/or directors of LCP. However, the
more than two) actions shall be dismissed
creation of a management committee and the
with prejudice.
prayer for accounting could not have been
asked for in the labor and forcible entry cases.
FACTS: The Lutheran Church in the Philippines As regards the other SEC Cases,
(LCP) has local Lutheran congregations in three though, the Ao-As group could have indeed
districts, managed by seven directors—two for prayed for the creation of the management
each district, and one as the national committee and the accounting of the funds of
president. Three districts were added, thus a the LCP. In fact, the petitioner in SEC-SICD
total of eleven (11) directors managed the LCP. Case No. 3556 had prayed for the appointment
Controversies arose when the board of of a management committee in a motion which
directors terminated the services of Eclesio was subsequent to the filing of SEC-SICD Case
Hipe, business mana45ger and corporate No. 3857. SEC dismissed Case No. 3556
secretary. considering that it was one of the incidents of
The Ao-As group, former LCP directors Case No. 3857. In effect, it was denied on the
and officers, filed SEC-SICD Case No. 3587 ground of litis pendentia.
against the Batong group, the LCP directors at However, this is not a case of willful
that time. The case sought accounting and and deliberate forum shopping and, hence, the
damages, and appointment of a management Case No. 3857 should not be dismissed. The
committee. Its causes of action are: (a) non- reason for this is the strict evidentiary
liquidation and/or non-accounting of the requirement needed to grant a prayer to
P64,000 proceeds of the La Trinidad land create a management committee. The SEC has
transaction; (b) on-liquidation and/or the power to create a management committee
unaccounting of P323,750 worth of cash when there is “imminent danger of dissipation,
advances; (c) dissipation of the P4.8M general loss, wastage or destruction of assets or other
fund; (d) non-registration of LCP’s land in properties or paralization of business
Leyte; (e) severance of church-partnership operations” It should be difficult to deduce the
with Lutheran Church-Missouri Synod; and (f) "imminent danger of dissipation, loss, wastage
transfer of corporate books. or destruction of assets or other properties"
Several other cases were also from an allegation of a single act of previous
instituted against the Batong group. An NLRC misappropriation or dissipation on the part of
case questioned the board resolutions which the Batong group. It is often only when the
terminated employees, a Civil Case questioned previous misappropriations and dissipations
another board resolution authorizing the have become extensive and out of control that
transfer of corporate records, and another SEC- it can be candidly said that there is an
SICD Case (No. 3524) questioned the legality imminent danger of further dissipation. The
of the 11 members of the LCP Board. Also, in Ao-As group cannot be faulted therefore for
another SEC Case (No. 3556), a motion was not praying for the creation of a management
made to appoint a management committee. committee in the first couple of cases it filed
This motion was denied since the same is an with the SEC, and neither can they be faulted
incident of SEC Case 3587. for using the causes of action in previously
After hearing in SEC Case 3587, the filed cases to prove their allegation of
SEC-SICD ordered the creation of a imminent dissipation. We cannot rule out the
management committee and declared all possibility that the danger of imminent
dissipation of the corporate assets became

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER52

apparent only in the acts of the respondents and Asst. VP Cabin Services of PAL,
subsequent to the filing of the first two SEC respectively, who are not parties to the case.
cases. The certification was without proof that the two
As the present jurisprudence now affiants had authority to sign in behalf of
stands, forum shopping can be committed in petitioners. The CA dismissed the case for
three ways: (1) filing multiple cases based on failure to show the affiants’ authority to sign
the same cause of action and with the same for PAL and for failure of the other petitioners
prayer, the previous case not having been to join in the execution of the certification. A
resolved yet (litis pendentia); (2) filing multiple motion for reconsideration was filed with a
cases based on the same cause of action and Secretary’s Certificate attached evidencing
the same prayer, the previous case having that affiants Lamberte and Del Carmen have
been finally resolved (res judicata); and (3) been authorized by board resolution to initiate
filing multiple cases based on the same cause and/or cause to be filed on behalf of PAL
of action but with different prayers (splitting of petitions and pleadings in all labor-related
causes of action, where the ground for cases.
dismissal is also either litis pendentia or res A perusal of the Secretary’s Certificate
judicata). If the forum shopping is not submitted reveals that the authority to cause
considered willful and deliberate, the the filing of the petition was granted on
subsequent cases shall be dismissed without February 15, 2000. The petition, on the other
prejudice on one of the two grounds hand, was filed on January 24, 2000 and was
mentioned above. However, if the forum dismissed by the CA on January 31, 2000.
shopping is willful and deliberate, both (or all, As to the other petitioners, it was
if there are more than two) actions shall be argued that they are mere nominal parties so
dismissed with prejudice. that their failure to execute the certification
does not justify dismissal of the petition. CA
Forum shopping certificate for a denied the motion.
corporation
When plaintiff is a juridical person—this may ISSUE: Whether the certification of non-forum
be signed by the properly authorized persons. shopping was properly executed
NO. The certification of non-forum
PAL v. FASAP shopping attached was without proof of
(479 SCRA 605, 2006) authority to sign. When a motion for
reconsideration was filed, a Secretary’s
Only individuals vested with authority by a Certificate was submitted as proof that the
valid board resolution may sign the board of directors of PAL had authorized the
certificate of non-forum shopping in behalf two to execute the certificate. Nonetheless,
of a corporation. In addition, proof of said the Court finds that this belated submission is
authority must be attached. Failure to an insufficient compliance with the certification
provide a certificate of non-forum shopping requirement.
is sufficient ground to dismiss the petition. The required certification must be valid
Likewise, the petition is subject to dismissal at the time of filing of the petition. An invalid
if a certification was submitted certificate cannot be remedied by the
unaccompanied by proof of the signatory’s subsequent submission of a Secretary’s
authority. Certificate that vests authority only after the
petition had been filed. At the time the
certification was signed, Lamberte and Del
FACTS: Flight Attendants and Stewards Carmen were not duly authorized and,
Association of the Philippines (FASAP) and consequently, their signing and attestations
Bhagwani filed a complaint for unfair labor were not in representation of PAL. This
practice, illegal suspension and illegal effectively translates to a petition that was
dismissal against PAL and some of its officers filed without a certification at all as none was
before the NLRC Labor Arbiter The Labor issued by PAL, the principal party to the case.
Arbiter upheld FASAP and Bhagwani and, Rule 65, Section 1, in relation to Rule
ordered PAL to pay them damages. The NLRC 46, Section 3 of the Rules of Court requires the
modified the decision, setting aside the finding certification of non-forum shopping to be
that PAL was guilty of unfair labor practice, but executed by the corresponding petitioner or
affirming the rest of the decision. petitioners. As no distinction is made as to
PAL filed a petition for certiorari with which party must execute the certificate, this
the CA, accompanied by a Certification of Non- requirement is made to apply to both natural
Forum Shopping executed by Cesar Lamberte and juridical entities. When the petitioner is a
and Susan Del Carmen, VP Human Resources corporation, the certification should be

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER53

executed by a natural person. Furthermore, (10) similar papers shall be filed


not just any person can be called upon to with the court, and served upon the
execute the certification, although such a parties affected
person may have personal knowledge of the (Sec. 4, Rule 13)
facts to be attested to.
The power of a corporation to sue in Modes of service
any court is generally lodged with the board of There are two modes of service of pleadings,
directors, who can delegate the physical acts motions, orders, judgments and other papers:
needed to sue, which may be performed only (1) personally, or
by natural persons, to its attorneys-in-fact by a (2) by mail
board resolution, if not already authorized
under the corporate by-laws. Thus, only In general, filing
individuals vested with authority by a valid The filing of pleadings, appearances, motions,
board resolution may sign the certificate of notices, orders, judgments and all other papers
non-forum shopping in behalf of a corporation. shall be made
In addition, proof of said authority must be (1) Personally—
attached. Failure to provide a certificate of By presenting the original copies
non-forum shopping is sufficient ground to thereof, plainly indicated as such,
dismiss the petition. Likewise, the petition is personally to the clerk of court
subject to dismissal if a certification was • the clerk of court shall endorse
submitted unaccompanied by proof of the on the pleading the date and
signatory’s authority. hour of filing.
(2) By mail—
Filing and service defined By sending them by registered mail.
Filing—the act of presenting the pleading or
• The date of the mailing of
other paper to the clerk of court
motions, pleadings, or any
other papers or payments or
Service—the act of providing a party with a
deposits, as shown by the post
copy of the pleading or paper concerned.
office stamp on the envelope
 If any party has appeared by counsel, or the registry receipt, shall be
service upon him shall be made upon considered as the date of their
his counsel or one of them, unless filing, payment, or deposit in
service upon the party himself is court. The envelope shall be
ordered by the court. attached to the record of the
 Where one counsel appears for several case. (Sec. 3, Rule 13)
parties, he shall only be entitled to one
copy of any paper served upon him by In general, service
the opposite side. (Sec. 2, Rule 3) Service of pleadings, motions, notices, orders,
judgments and other papers shall be made
Coverage either
This Rule governs (1) personally or
(1) the filing of all pleadings and other (2) by mail. (Sec. 5, Rule 13)
papers, and
(2) the service thereof Service of judgments, final orders, or
EXCEPT those for which a different mode of resolutions.—Judgments, final orders or
service is prescribed (Sec. 1, Rule 13) resolutions shall be served
(1) personally
Papers required to be filed and served— (2) by registered mail, or
(1) judgments, (3) by publication, at the expense of the
(2) resolutions, prevailing party, in cases where a
(3) orders, party was
(4) pleading subsequent to the complaint, a. summoned by publication, and
(5) written motions, b. has failed to appear in the
(6) notices, action. (Sec. 9, Rule 13)
(7) appearances,
Personal
(8) demands, Personal service of the papers may be made
(9) offers of judgment, or (1) by delivering personally a copy to the
party or his counsel,

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER54

(2) by leaving it in his office with his clerk  A violation of this Rule may be cause
or with a person having charge to consider the paper as not filed. (Sec.
thereof, or 11, Rule 13)
(3) by leaving the copy, between 8am and
6pm, at the party’s or counsel’s Upon party in default (Sec. 3, Rule 9)
residence, if known, with a person of A defending party shall be declared in default
sufficient age and discretion then when
residing therein, in cases where (1) Ground: He fails to answer within the
a. no person is found in his office, time allowed therefor, the court shall,
b. his office is not known, or (2) The claiming party files a motion to
c. he has no office, then. (Sec. 6, declare the defending party in default,
Rule 13) furnishing proof of failure to answer
(3) Said party gives notice of such motion
Mail to the defending party,
Service by registered mail shall be made
(1) by depositing the copy in the office, The court shall proceed to render judgment
(2) in a sealed envelope, granting the claimant such relief as his
(3) plainly addressed to the party or his pleading may warrant,
counsel at his office, if known,  unless the court in its discretion
otherwise at his residence, if known, requires the claimant to submit
(4) with postage fully prepaid, and evidence.
(5) with instructions to the postmaster to  Such reception of evidence may be
return the mail to the sender after ten delegated to the clerk of court. (1a,
(10) days if undelivered. R18)

Service by ordinary mail may be done if no (a) Effect of order of default.—A party in
registry service is available in the locality of default shall be entitled to notice of
either the sender or the addressee (Sec. 7, subsequent proceedings but NOT to take part
Rule 13) in the trial.

Substituted service (b) Relief from order of default.—A party


Substituted service is made if service of declared in default may at any time after
pleadings, motions, notices, resolutions, orders notice thereof and before judgment file a
and other papers cannot be made under the motion under oath to set aside the order of
two preceding sections, the office and place of default upon proper showing that his failure to
residence of the party or his counsel being answer was due to fraud, accident, mistake or
unknown. excusable negligence and that he has a
meritorious defense. In such case, the order of
Substituted service is done default may be set aside on such terms and
(1) by delivering the copy to the clerk of conditions as the judge may impose in the
court, with proof of failure of both interest of justice.
personal service and
(2) service by mail. (c) Effect of partial default.—When a pleading
asserting a claim states a common cause of
The service is complete at the time of such action against several defending parties, some
delivery. (Sec. 8, Rule 13) of whom answer and the others fail to do so,
the court shall try the case against all upon the
Priority answers thus filed and render judgment upon
Whenever practicable, the service and filing of the evidence presented.
pleadings and other papers shall be done (d) Extent of relief to be awarded.—A judgment
personally. rendered against a party in default shall not
 A resort to other modes must be exceed the amount or be different in kind from
accompanied by a written explanation that prayed for nor award unliquidated
why the service or filing was not done damages.
personally.
(e) Where no defaults allowed.—If the
 Exception: Papers emanating from the
defending party in an action for annulment or
court.
declaration of nullity of marriage or for legal
separation fails to answer, the court shall order
the prosecuting attorney to investigate

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER55

whether or not a collusion between the parties (3) the affidavit of the party serving,
exists, and if there is no collusion, to intervene containing a full statement of the date,
for the State in order to see to it that the place and manner of service.
evidence submitted is not fabricated. (Sec. 3,
Rule 9) Ordinary mail
(1) affidavit of the person mailing of facts
Completion of service showing compliance with section 7 of
Personal service— this Rule.
 upon actual delivery • Service by ordinary mail may
be done if no registry service is
Service by ordinary mail— available in the locality of
 upon the expiration of ten (10) days either the sender or the
after mailing, unless the court addressee (Sec. 7, Rule 13)
otherwise provides.
Registered Mail—
Service by registered mail— (1) such affidavit and
 upon actual receipt by the addressee, (2) the registry receipt issued by the
or mailing office.

 after five (5) days from the date he


received the first notice of the  NOTE: The registry return card shall be
postmaster, whichever date is earlier. filed immediately upon its receipt by
(Sec. 10, Rule 13) the sender, or in lieu thereof of the
unclaimed letter together with the
Proof of filing and service certified or sworn copy of the notice
The filing of a pleading or paper shall be given by the postmaster to the
proved by addressee. (Sec. 13, Rule 13)

Personal service Lis pendens


A notice of lis pendens may be recorded in the
(1) its existence in the record of the case;
office of the registry of deeds of the province
(2) the written or stamped in which the property is situated
acknowledgment of its filing by the
(1) by the plaintiff and the defendant;
clerk of court on a copy of the same, if
it is not in the record, but is claimed to (2) in an action affecting the title or the
have been filed personally; right of possession of real property,
(3) when affirmative relief is claimed in
Registered mail the answer,
(1) by the registry receipt and
(2) by the affidavit of the person who did Said notice shall contain
the mailing, containing (1) the names of the parties
a. a full statement of the date (2) the object of the action or defense, and
and place of depositing the (3) a description of the property in that
mail in the post office in a province affected thereby.
sealed envelope addressed to
the court, Effects

b. with postage fully prepaid, and (1) Constructive notice to a purchaser or


encumbrancer from the time of filing
c. with instructions to the
such notice for record.
postmaster to return the mail
to the sender after ten (10)
(2) Is notice only against the parties
designated by their real names.
days if not delivered. (Sec. 12,
Rule 13)
Cancellation
The notice of lis pendens hereinabove
The service of a pleading or paper shall be
mentioned may be cancelled
proved by
(1) only upon order of the court,
(2) after proper showing that
Personal service
(1) written admission of the party served, a. the notice is for the purpose of
(2) the official return of the server, or molesting the adverse party,
or

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER56

b. that it is not necessary to support a legal and valid acceptable


protect the rights of the party arrangement for the release of such mortgage.
who caused it to be recorded. Thereafter, the PSB granted Reginas loan,
(Sec. 14, Rule 13) which again subjected aforesaid properties to a
mortgage. PSB now promises to pay directly
to BPI from the proceeds of the loan and pay
the sellers the purchase price. The latter
conformed to the arrangement.
Given the prior assurance of a
workable arrangement regarding the Central
AMENDED AND SUPPLEMENTAL Bank mortgage, the buyers now manifested its
PLEADINGS willingness to pay P2M ahead of the proceeds
for the PSB loan. Notwithstanding such
Amendments negotiations however, the sellers here are in
In general gross and evident bad faith and malicious
Pleadings may be amended breach of contract for they have failed to
(1) by adding or striking out an allegation comply with the obligation to release the
second mortgage. BPI further averred that the
or the name of any party, or
sellers actually disauthorized them to
(2) by correcting a mistake in the name of
consummate the transaction despite previous
a party or a mistaken or inadequate
arrangements.
allegation or description in any other
Reginas and Zaragoza filed a
respect
complaint for specific performance and
damages against Barfel and the Spouses
Purpose: So that the actual merits of the
Barrios. Pre-trial was conducted and both
controversy may speedily be determined,
parties presented evidence.
without regard to technicalities, and in the
During Barfel’s presentation, Reginas
most expeditious and inexpensive manner.
filed a motion for leave to file an amended
complaint and motion to admit the same. The
Liberality
amendment sought to implead PISO bank as
additional party defendant and compel it to
BARFEL DEV’T. CORP v. CA
accept payment of the existing second
(223 SCRA 268)
mortgage from Reginas, since no complete
relief can be had unless the second mortgage
As a general policy, liberality in allowing is released.
amendments is greatest in the early stages Barfel opposed. The RTC admitted the
of a law suit, decreases as it progresses amended complaint. The CA sustained the
and changes at times to a strictness lower court’s order saying that the amendment
amounting to a prohibition. This is further was made without intent to delay the action.
restricted by the condition that the The essence of liberal construction was
amendment should not prejudice the accorded by the courts.
adverse party or place him at a
disadvantage. ISSUE: Whether the amended complaint
should be allowed
FACTS: Barfel sold to Reginas two parcels of NO. The amendment was made with
land with two houses erected thereon in Ayala intent to delay the action and substantially
Alabang, stipulating that the Barfel will apply alters the cause of action of Reginas and the
the payment of the cash portion of the defense of Barfel. After the case is set for
purchase price to the removal of any and all hearing, substantial amendments may be
liens on the properties. The contract stated made only upon leave of court. Such leave
that apart from a BPI mortgage and the Deed may be refused if it appears that the motion
of Restrictions annotated at the back of the was made with intent to delay the action or
title, the subject property was free from all that the cause of action or defense is
liens. Reginas made the downpayment upon substantially altered. (Sec. 3, Rule 10)
signing the agreement. The amendment sought by private
It was later discovered that there was respondents, which is to include a new party
apparently a second mortgage with the defendant at a late stage in the proceeding, is
PISO/Central Bank. Upon this information, not a formal but a substantial one. Private
Victor Barrios assured the buyer that the respondents will have to present additional
second mortgage has been reduced and that evidence on the PISO second mortgage. The
he will submit the necessary documents to effect would be to start trial anew with the

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER57

parties recasting their theories of the case. The Except as provided in the next preceding
correct amount of the second mortgage owed section, Substantial amendments may be
by petitioners to PISO bank (apparently a made only upon leave of court.
controverted point), would have to be litigated  But such leave may be refused if it
and this could be time consuming. appears to the court that the motion
As a general policy, liberality in was made with intent to delay.
allowing amendments is greatest in the early  Substantial amendments may be made
stages of a law suit, decreases as it progresses only
and changes at times to a strictness (1) upon motion filed in court, and
amounting to a prohibition. This is further
(2) after notice to the adverse
restricted by the condition that the
party, and an opportunity to be
amendment should not prejudice the adverse
heard. (Sec. 3, Rule 10)
party or place him at a disadvantage.

To conform to evidence
Form
Amendment to conform to evidence
When any pleading is amended, the following
Issues not raised by pleadings may be deemed
shall be filed:
as if they were raised:
(1) a new copy of the entire pleading,
(1) When issues are not raised by the
(2) incorporating the amendments, which
pleadings, and
shall be indicated by appropriate
marks,. (Sec. 7, Rule 13) (2) They are tried with the express or
implied consent of the parties
Effect
An amended pleading supersedes the pleading Such amendment of the pleadings as may be
it amends. necessary

 However, admissions in superseded  to cause them to conform to the


pleadings may be received in evidence evidence and
against the pleader; and  to raise these issues
may be made
 Claims or defenses alleged therein not
incorporated in the amended pleading (1) upon motion of any party
shall be deemed waived. (Sec. 8, Rule (2) at any time, even after judgment;
10)
Failure to amend
Kinds Failure to amend does not affect the result of
the trial of these issues.
Formal amendment
A defect in the designation of the parties and Amendment to authorize presentation of
other clearly clerical or typographical errors evidence
may be summarily corrected by the court at This amendment may be made
any stage of the action,  if evidence is objected to at the trial on
 at its initiative or on motion, the ground that it is not within the
 provided so no prejudice is caused issues made by the pleadings,
thereby to the adverse party. (Sec. 4,  the court may allow the pleadings to
Rule 10) be amended and shall do so with
liberality if the presentation of the
Substantial amendments merits of the action and the ends of
substantial justice will be served
Matter of right thereby. The court may grant a
A party may amend his pleading once as a continuance to enable the amendment
matter of right to be made. (Sec. 5, Rule 10)

 at any time before a responsive


SWAGMAN HOTELS & TRAVEL, INC. v. CA
pleading is served or,
(2008)
 in the case of a reply, at any time
within ten (10) days after it is served.
(Sec. 2, Rule 10)

Matter of discretion

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER58

The curing effect under Section 5 of Rule 10 complaint is defective for failure to allege the
of the 1997 Rules of Civil Procedure is essential facts.
applicable only if a cause of action exists at It thus follows that a complaint whose
the time the complaint is filed, but the cause of action has not yet accrued cannot be
complaint is defective for failure to allege cured or remedied by an amended or
the essential facts. A complaint whose supplemental pleading alleging the existence
cause of action has not yet accrued cannot or accrual of a cause of action while the case is
be cured or remedied by an amended or pending. Such an action is prematurely
supplemental pleading alleging the brought and is, therefore, a groundless suit,
existence or accrual of a cause of action which should be dismissed by the court upon
while the case is pending. proper motion seasonably filed by the
defendant. The underlying reason for this rule
is that a person should not be summoned
FACTS: Swagman Hotels and Travel, Inc., before the public tribunals to answer for
obtained from respondent Neal B. Christian complaints which are immature.
loans evidenced by three promissory notes
dated 1997, each in the amount of $50,000 Remedies
payable after three years (200) from its date
with a 15% interest per annum payable every Periods to answer
three months. Later on, Christian informed the
Swagman that he was terminating the loans Amendments
and demanded from the latter payment in the Amendment as a matter of right—
total amount of $150,000 plus the unpaid The defendant shall answer the same within
interests of $13,500. fifteen (15) days after being served with a
In 1999, Christian filed a complaint for copy thereof.
the unpaid loans, alleging that petitioner,
instead of paying the 15% monthly interest, Amendment not a matter of right—
started paying only 6%. Swagman filed an The defendant shall answer within ten (10)
Answer, raising as defense the lack of cause of days from notice of the Order admitting the
action of the principal obligations because the same.
three promissory notes were not yet due and  An answer earlier filed may serve as
demandable. the answer to the amended complaint,
The trial court ruled that the first two if no new answer is filed.
promissory notes were already due and
demandable and ordered Swagman to pay the Applicability
amount of the checks plus 6% interest. It ruled This Rule shall apply to the answer to
that although at the time of the complaint, the
(1) an amended counterclaim,
notes were not yet due and demandable, it
(2) amended cross-claim,
was cured when they became due during the
trial. (3) amended third (fourth, etc.)— party
complaint, and
ISSUE: Whether or not lack of cause of action (4) amended complaint-in-intervention.
may be cured by evidence presented during (Sec. 3, Rule 11)
the trial and amendments to conform to the
evidence Supplemental complaint
NO. Amendments of pleadings are This may be answered within ten (10) days
allowed under Rule 10 in order that the actual from notice of the order admitting the same,
merits of a case may be determined in the unless a different period is fixed by the court.
most expeditious and inexpensive manner  If no new or supplemental answer is
without regard to technicalities, and that all filed—
other matters included in the case may be The answer to the complaint shall
determined in a single proceeding, thereby serve as the answer to the
avoiding multiplicity of suits. Section 5 thereof supplemental complaint. (Sec. 7, Rule
applies to situations wherein evidence not 11)
within the issues raised in the pleadings is
presented by the parties during the trial, and Supplemental pleadings
to conform to such evidence the pleadings are A supplemental pleading setting forth
subsequently amended on motion of a party. transactions, occurrences or events which
The curing effect under Section 5 is have happened since the date of the pleading
applicable only if a cause of action in fact sought to be supplemented may be permitted
exists at the time the complaint is filed, but the (1) upon motion of a party
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER59

(2) reasonable notice and ISSUE: Whether the subsequently amended


(3) upon such terms as are just complaint in the case at bar renders the
original complaint abandoned or inexistent
Period to answer NO. Petitioner's recovery is not limited
The adverse party may plead thereto within by the amount of P45,142.00 prayed for in the
ten (10) days from notice of the order supplemental complaint as increased rental.
admitting the supplemental pleading. (Sec. 6, This is not a case of a complaint subsequently
Rule 11) amended, the effect of which is to render the
original complaint abandoned or inexistent and
Distinguished from amended pleadings let the amendment take form as the sole
substitute upon which the case stands for trial.
SHOEMART, INC. v. CA A supplemental complaint or pleading
(190 SCRA 189, 1990) supplies deficiencies in aid of an original
pleading, not to entirely substitute the latter. A
perusal of the original complaint shows that it
A supplemental pleading supplies
prayed, among others, that the private
deficiencies in aid of an original pleading
respondent be ordered to pay petitioner
not to entirely substitute the latter.
P34,622.00 and all other rentals and charges
that may be due until respondent vacates the
FACTS: Anson Emporium Corp. (Anson) leased premises. Petitioner, therefore, did not
from Shoemart portion of a building for two foreclose its right to demand increased rentals
years. The lease stipulated that if after that may be recovered expressed in terms of
termination of the lease, Shoemart permits the fair rental value or the reasonable
Anson to remain, the lease shall be understood compensation for the use and occupation of
to be on a month to month basis in the the real property. Unlike in an amended
absence of a contrary written agreement. complaint, the original complaint exists side by
Anson remained in possession after the side with the supplemental complaint.
two-year period but on an increased rental. The supplemental pleading merely
Four years later, Shoemart terminated the served to aver supervening facts which were
lease and gave notice to Anson to vacate, then not ripe for judicial relief when the
which the latter refused. A complaint for original pleading was filed. Supplemental
ejectment was filed against him with the MTC. pleadings are meant to supply deficiencies in
Shoemart asked for, and was granted, leave to aid of the original pleading and not to dispense
file supplemental complaint which alleged that with the latter.
the rental of all tenants of the premises had The failure of petitioner to amend its
been increased to P45,142.00, which Anson complaint or file additional supplemental
refused to pay. Anson alleged that Shoemart’s pleadings to allege subsequent rental
claim for increased rentals has been barred. increases is of no moment.
MTC ruled for Anson. In view of the failure of private
The RTC reversed the judgment and respondent to object to the presentation of
ordered Anson to vacate the premises and to evidence showing that there were four (4)
pay P34,622 and P45,142 respectively for the rental increases on the subject premises
two lease agreements, with 1% interest from although three (3) of said increases are not
October 1977. Shoemart filed a motion for alleged in the pleadings, judgment may be
reconsideration of the award of damages, rendered validly as regards the said increases
saying it is less than what is really due. RTC or issues which shall be considered as if they
granted this motion. have been raised in the pleadings. As found by
CA affirmed the ejectment of the RTC, private respondent did not controvert
respondent but reduced the damages awarded the evidence submitted by petitioner in
by stating that the 1% interest will start to run determining the fair rental value of the
from October 1987. Private respondent sought premises including those imposed on all other
the correction of the clerical error regarding tenants of petitioner occupying the Makati
date of the effectivity of the payment for Arcade. If, indeed, the rental increases were
damages. Said motion was granted unconscionable, respondent should have at
Petitioner's motion for reconsideration least presented evidence to substantiate its
seeking the reinstatement of the RTC’s claim. The burden of proof to show that the
decision was denied. CA ruled that petitioner’s rental demanded is unconscionable or
claim for damages is limited to the P45,142 exorbitant rests upon private respondent as
alleged in the supplemental complaint. the lessee.
Private respondent failed to discharge
its burden when it omitted to present any

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER60

evidence at all on what it considers is the fair Object and purpose of a Bill of particular:
rental value other than what were submitted (1) Amplify or limit a pleading
by petitioner. As a matter of fact, all the other (2) Specify more minutely and
tenants did not question the reasonableness of particularly a claim or defense set
the rental increases up and pleaded in general terms
(3) Give information, not contained in
BILL OF PARTICULARS/INTERVENTION the pleading, to the opposite party
and the court as to the precise
Bill of particulars nature, character, scope, and
Also called bill of definite statement extent of the cause of action or
 It is a motion that applies to any defense relied on by the pleader
pleading which in the perception of the (4) Apprise the opposite party of the
movant contains ambiguous allegations case which he has to meet
(Riano) (5) Define, clarify, particularize, and
 If a complaint makes out a cause of limit or circumscribe the issues in
action, the ambiguity in some allegations the case
or failure to allege facts with sufficient (6) Expedite the trial, and assist the
particularity does not justify the filing of a court
motion to dismiss. The proper remedy is to (7) Prevent injustice or do justice in
file a motion for bill of particulars. the case when that cannot be
accomplished without the aid of
Office and Purpose such a bill.
 To seek an order from court directing (8) Proper preparation of a responsive
the pleader to submit a bill of pleading
particulars which avers matters with (9) Proper preparation of an intelligent
“sufficient definiteness or particularity” answer.
to enable the movant to file his
responsive pleading. (Sec. 1, Rule 12) FACTS: Cesar Virata was among the forty-four
 “The proper preparation of an co-defendants of Benjamin (Kokoy) Romualdez
intelligent answer requires information in a complaint filed by the Sandiganbayan. The
as to the precise nature, character, complaint was amended thrice, the last
scope and extent of the cause of action amendment thereto is denominated as Second
in order that the pleader may be able Amended Complaint. The plaintiff alleged four
to squarely meet the issues raised, actionable wrongs against petitioner: (1) his
thereby circumscribing them within participation in the reduction of the electric
determined confines and preventing franchise tax and the tariff duty of fuel oil
surprises during trial, and in order that imports by all public utilities (2) his
he may set forth his defenses which participation in the the approval of the '3-Year
may not be so readily availed of if the Program for the Extension of MERALCO's
allegation controverted are vague, Services to Areas’ (3) his participation in the
indefinite, uncertain or are mere formation of Erectors Holdings, Inc. and (4) his
general conclusions” (Virata v. acting as a dummy of corporations controlled
Sandiganbayan) by Romualdez and Marcos.
 “The proper office of a bill of Petitioner moved to dismiss the case
particulars is to inform the opposite on various grounds including the failure of the
party and the court of the precise expanded Second Amended Complaint to state
nature and character of the ccause of a cause of action. The motion was denied by
action.” (Tan v. Sandiganbayan) Sandiganbayan. SC affirmed the
Sandiganbayan, and advised petitioner that if
he perceive some ambiguity or vagueness
VIRATA v. SANDIGANBAYAN therein, the remedy is not a motion to dismiss,
(221 SCRA 52, 1993) but rather for a bill of particulars.
Petitioner filed a motion for bill of
particulars, claiming that the general and
sweeping allegations of the Second Amended
Complaint and the purported illegal acts
imputed to them as well as the alleged causes
of actions are vague and ambiguous. They are
not averred with sufficient definiteness or
particularity as would enable defendant Virata

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER61

to properly prepare his answer or responsive party may be aided in framing his answering
pleading. Sandiganbayan partially granted the pleading and preparing for trial. It has also
motion; of the four actionable wrongs, it been stated that it is the function or purpose of
granted the motion with respect only to the a bill of particulars to (5) define, clarify,
fourth, since the other three actionable wrongs particularize, and limit or circumscribe the
are not squarely under the Tantuico case. issues in the case, to (6) expedite the trial, and
Not satisfied with the partial grant of assist the court. A general function or purpose
the motion, petitioner filed the instant petition of a bill of particulars is to (7) prevent injustice
under Rule 65 of the Revised Rules of Court. or do justice in the case when that cannot be
accomplished without the aid of such a bill.
ISSUE: Whether the Motion for Bill of Moreover, the phrase "to enable him
Particulars should be granted totally properly to prepare his responsive
YES. It was grave error for the pleading . . ." in Section 1 of Rule 12 implies
Sandiganbayan to state that "[a]lleging the not just the opportunity to (8) properly prepare
specific nature, character, time and extent of a responsive pleading but also to (9) prepare
the phrase 'active collaboration' would be a an intelligent answer. The proper preparation
mere surplus age and would not serve any of an intelligent answer requires information as
useful purpose" for precisely, without any to the precise nature, character, scope and
amplification or particularization thereof, the extent of the cause of action in order that the
petitioner would be hard put in meeting the pleader may be able to squarely meet the
charges squarely and in pleading appropriate issues raised, thereby circumscribing them
defenses. Nor can We accept the public within determined confines and, preventing
respondent's postulation that "any question as surprises during the trial, and in order that he
to the validity or legality of the transactions may set forth his defenses which may not be
involved in the charges against defendant- so readily availed of if the allegations
movant is irrelevant and immaterial in the controverted are vague, indefinite, uncertain
resolution of the instant incident, inasmuch as or are mere general conclusions.
the same is a matter of defense which shall
have its proper place during the trial on the What is beyond its scope
merits, and on the determination of the liability  “The complaint for which a bill for a
of defendant-movant after the trial proper." more definite statement is sought
This is absurd, for how may the petitioner set need only inform the defendant of the
up a defense at the time of trial if in his own essential (or ultimate) facts to enable
answer he was not able to plead such a him, the defendant, to prepare his
defense precisely because of the vagueness or answer… Any more ‘particulars’ in that
indefiniteness of the allegations in the event would be evidentiary in
complaint? Unless he pleads the defense in his character, which must be adduced at
answer, he may be deprived of the right to the trial proper.” (Tan v.
present the same during the trial because of Sandiganbayan)
his waiver thereof.
Since the issues have not as yet been Notes:
joined and no evidence has so far been • If the purpose is for
adduced by the parties the Sandiganbayan preparation for trial, the
was in no position to conclude that the matters appropriate remedy is to avail
which the. petitioner seeks are "within his discovery procedures or pre-
intimate or personal knowledge." trial.
It is the office or function, as well as
• It is erroneous to require
object or purpose, of a bill of particulars to (1)
disclosure of evidence relied
amplify or limit a pleading, (2) specify more
upon by the adverse party in a
minutely and particularly a claim or defense
motion for bill of particulars.
set up and pleaded in general terms, (3) give
• A motion for bill of particulars
information, not contained in the pleading, to
to require a pleader to set forth
the opposite party and the court as to the
matters showing jurisdiction of
precise nature, character, scope, and extent of
a court to render its judgment
the cause of action or defense relied on by the
is not proper.
pleader, and (4) apprise the opposite party of
the case which he has to meet, (a) to the end
 To clarify allegations in the pleading
that the proof at the trial may be limited to the
matters specified, and (b) in order that
TAN v. SANDIGANBAYAN
surprise at, and needless preparation for, the
(180 SCRA 34, 1989)
trial may be avoided, and (c) that the opposite

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER62

for a complaint. The PCGG's


The complaint for which a bill for a more Complaint/Expanded Complaint is garbled in
definite statement is sought, need only many respects, but this is no excuse for sloth
inform the defendant of the essential (or on the part of the petitioners. The
ultimate) facts to enable the defendant to Complaint/Expanded Complaint is complete
prepare an intelligent answer. enough to perish fears of the PCGG pulling a
surprise subsequently.
It is not the office of a bill of particulars
FACTS: The PCGG filed a complaint against the to supply material allegations necessary to the
twenty-two petitioners, together with the late validity of a pleading, or to change a cause of
Ferdinand Marcos, Mrs. Imelda Marcos, Don action or defense stated in the pleading, or to
Ferry, and Federico Moreno, praying, among state a cause of action or defense other than
others, for the return and reconveyance of all the one stated. Also it is not the office or
funds and other property impressed with function, or a proper object, of a bill of
constructive trust in favor of PCGG and the particulars to set forth the pleader's theory of
Filipino people, as well as funds and other his cause of action or a rule of evidence on
property acquired by Defendants by abuse of which he intends to rely, or to furnish
right and power and through unjust evidential information whether such
enrichment. information consists of evidence which the
Subsequently, the PCGG filed an pleader proposes to introduce or of facts which
Expanded Complaint. In essence, these are constitute a defense or offset for the other
what the PCGG says: party or which will enable the opposite party to
1. The petitioner Lucio Tan was Mr. establish an affirmative defense not yet
Marcos' business partner; pleaded. The PCGG's complaint (as amended)
2. Through undue influence, coercion, does set out allegations, however confusingly
and abuse of light they acquired put in print, which, interrelated to one another,
shareholdings from various firms, and are enough to support a formal civil charge. If
built a business empire therefrom; the petitioners are not aware of the PCGG's
3. The remaining petitioners acted as asseverations, the remedy is to deny the same
their "dummies, nominees, or agents"; in their answer for lack of "knowledge or
4. Together with the Marcoses, they information sufficient to form a belief as to the
maneuvered their way into these firms truth of the said averments. They cannot,
and acquired control thereof; however, demand for any more particulars
5. The same were accomplished through without actually making the PCGG expose its
unacceptable machinations such as evidence unnecessarily before the trial stage.
insider trading and similar acts, in
violation of existing laws; When to file
6. They also unjustly enriched the It should be filed before a responsive pleading.
petitioners at the expense of the  If directed to a complaint, 15 days
Republic of the Philippines and the after service of summons
Filipino people.
 If directed to a counterclaim, 10 days
Notwithstanding this, the twenty-two
from service of the counterclaim
petitioners moved for a bill of particulars.The
 If directed to a reply, 10 days from the
respondent Court denied the petitioners'
service of said reply
motion, and denied reconsideration. The
petitioners submit that the PCGG's averments
Requisites
are made up of bare generalizations,
The motion shall point out
presumptuous conclusions of fact and law, and
(a) defects complained of;
plain speculations, for which a motion for a
more definite statement or for a bill of (b) paragraphs wherein they are
particulars allegedly lies. contained; and
The Sandiganbayan's decided that (c) the details desired.
Paragraphs 14 to 15, inclusive of the Expanded
Complaint, had already supplied or provided Action of the court (Sec. 2, Rule 12)
the specifications and particulars theretofore Upon receipt of the motion, which the clerk
lacking in the original Complaint. must immediately bring to the court’s
attention, the court may
ISSUE: Whether the Motion for Bill of (a) deny the motion outright;
Particulars should be granted (b) grant the motion outright; or
NO. The foregoing allegations of the (c) hold a hearing on the motion.
PCGG are actionable wrongs that are proper

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER63

Compliance with order (Sec. 3, Rule 12) rights of the original parties and that
If the motion is granted, in whole or in part, the intervenor’s rights may not be fully
 within 10 days from notice of the protected in a separate proceeding.
order, (Sec. 1, Rule 19)
 unless court fixes a different period
He may, with leave of court, be allowed to
If order is not obeyed, or in case of insufficient intervene in the action.
compliance, the court may
(a) order the striking out of The court shall consider

a. the pleading, or (1) whether or not the intervention will


unduly delay or prejudice the
b. portions thereof, or adjudication of the rights of the
(b) make such orders as it deems just
original parties, and
(2) whether or not the intervenor’s rights
may be fully protected in a separate
INTERVENTION
proceeding. (Sec. 1, Rule 19)
Intervention is the legal proceeding by which a
person who is not a party to the action is
Time to intervene—
permitted by the court to become a party by
The motion to intervene may be filed at any
intervening in a pending action after meeting
time before rendition of judgment by the trial
the conditions and requirements set by the
court.
Rules of Court.
 It is a remedy by which a third party  A copy of the pleading-in-intervention
becomes a litigant therein to enable shall be attached to the motion and
him to protect or preserve a right or served on the original parties. (Sec. 2,
interest which may be affected by such Rule 19)
proceeding.
Pleadings-in-intervention—
 It is never and independent
The intervenor shall file a complaint-in-
proceeding, but is ancillary and
intervention if he asserts a claim against either
supplemental to an existing litigation.
or all of the original parties.
 It cannot alter the nature of the action He shall file an answer-in-intervention
and the issues already joined. if he unites with the defending party in
 It is neither compulsory nor mandatory resisting a claim against the latter. (Sec. 3,
but only optional and permissive Rule 19)

Legal interest— Answer to complaint-in-intervention—


One that is actual and material, direct and of The answer to the complaint-in-intervention
an immediate character, not merely contingent shall be filed within fifteen (15) days from
or expectant so that the intervenor will either notice of the order admitting the same, unless
gain or lose by the direct legal operation of the a different period is fixed by the court. (Sec. 4,
judgment Rule 19)

Requisites; Who may intervene—


(1) There must be a motion for Ancillary to pending action
intervention filed before rendition of
judgment by the trial court; and SAW v. CA
(2) The movant must be a person who has (195 SCRA 740)
a legal interest
a. in the matter in litigation,
b. in the success of either of the
parties, or an interest against
both, or
c. is so situated as to be
adversely affected by a
distribution or other disposition
of property in the custody of
the court or of an officer
thereof.
(3) The intervention must not unduly delay
or prejudice the adjudication of the
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER64

Intervention is "an act or proceeding by or whether the intervenor's rights may be


which a third person is permitted to protected in a separate proceeding or not.
become a party to an action or proceeding Both requirements must concur as the first is
between other persons, and which results not more important than the second.
merely in the addition of a new party or The interest which entitles a person to
parties to an original action, for the intervene in a suit between other parties must
purpose of hearing and determining at the be in the matter in litigation and of such direct
same time all conflicting claims which may and immediate character that the intervenor
be made to the subject matter in litigation. will either gain or lose by the direct legal
It is not an independent proceeding, but an operation and effect of the judgment. Here, the
ancillary and supplemental one which, in interest, if it exists at all, of petitioners-
the nature of things, unless otherwise movants is indirect, contingent, remote,
provided for by the statute or Rules of conjectural, consequential and collateral. While
Court, must be in subordination to the a share of stock represents a proportionate or
main proceeding. It may be laid down as a aliquot interest in the property of the
general rule that an intervenor is limited to corporation, it does not vest the owner thereof
the field of litigation open to the original with any legal right or title to any of the
parties. property, his interest in the corporate property
being equitable or beneficial in nature.
Shareholders are in no legal sense the owners
FACTS: Equitable Banking Corporation of corporate property, which is owned by the
(Equitable) filed a collection suit with corporation as a distinct legal person.
preliminary attachment against Freeman, Inc. Intervention is "an act or proceeding
(Freeman) and Saw Chiao Lian, its President by which a third person is permitted to become
and General Manager. The petitioners (Ruben a party to an action or proceeding between
Saw, et al.) moved to intervene, alleging that other persons, and which results merely in the
(1) the loan transactions between Chiao Lian addition of a new party or parties to an original
and Equitable were not approved by the action, for the purpose of hearing and
stockholders representing at least 2/3 of determining at the same time all conflicting
corporate capital; (2) Chiao Lian had no claims which may be made to the subject
authority to contract such loans; and (3) there matter in litigation. It is not an independent
was collusion between the officials of Freeman proceeding, but an ancillary and supplemental
and Equitable in securing the loans. The one which, in the nature of things, unless
motion to intervene was denied, and the otherwise provided for by the statute or Rules
petitioners appealed to the Court of Appeals. of Court, must be in subordination to the main
Meanwhile, Equitable and Chiao Lian proceeding. It may be laid down as a general
entered into a compromise agreement which rule that an intervenor is limited to the field of
was approved by the lower court. However, it litigation open to the original parties.
was not complied with, so Equitable secured a In the case at bar, there is no more
writ of execution, and two lots owned by principal action to be resolved as a writ of
Freeman, Inc. were levied upon and sold at execution had already been issued by the
public auction. lower court and the claim of Equitable had
The CA sustained the denial of the already been satisfied. The decision of the
motion for intervention, holding that the lower court had already become final and in
compromise agreement will not necessarily fact had already been enforced. There is
prejudice petitioners whose rights to corporate therefore no more principal proceeding in
assets are at most inchoate, prior to the which the petitioners may intervene.
dissolution of Freeman, and that intervention
under Sec. 2, Rule 12 of the Revised Rules of Exception
Court is proper only when one's right is actual,
material, direct and immediate and not simply METROPOLITAN BANK & TRUST CO. v.
contingent or expectant. PRESIDING JUDGE
(182 SCRA 820, 1990)
ISSUE: Whether petitioners may be allowed to
intervene in the action
NO. To allow intervention, [a] it must The intervenor in a pending case is entitled
be shown that the movant has legal interest in to be heard like any other party. An
the matter in litigation, or otherwise qualified; intervenor’s petition showing it to be
and [b] consideration must be given as to entitled to affirmative relief will be
whether the adjudication of the rights of the preserved and heard regardless of the
original parties may be delayed or prejudiced, disposition of the principal action.

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CIVIL PROCEDURE REVIEWER65

FACTS: Metrobank loaned Good Earth established by the pleadings determined in


Emporium (GEE) P4.9M, and the latter such action. The trial court's dismissal of
mortgaged its air conditioning units as plaintiff’s action does not require dismissal of
security. Said units were purchased from the action of the intervenor.
Raycor Air Control systems. However, Raycor The intervenor in a pending case is
was not completely paid by GEE on the entitled to be heard like any other party. A
installation costs to the extent of P150,000. claim-in-intervention that seeks affirmative
When GEE was foreclosed by BPI relief prevents a plaintiff from taking a
Consortium, Metrobank filed a complaint for voluntary dismissal of the main action. Where
replevin to recover the units. The defendants a complaint in intervention was filed before
consortium filed their answer. Subsequently, plaintiff's action had been expressly dismissed,
Raycor filed a motion for leave to intervene, the intervenor's complaint was not subject to
which was granted. dismissal on the ground that no action was
The complaint was later dismissed with pending, since dismissal of plaintiffs action did
prejudice when the parties agreed to a not affect the rights of the intervenor or affect
compromise settlement, without informing the the dismissal of intervenor's complaint. An
intervenor Raycor. intervenor's petition showing it to be entitled
to affirmative relief will be preserved and
ISSUE: Whether or not the intervenor in a heard regardless of the disposition of the
pending case is entitled to be heard like any principal action.
other party
YES. There is here no final dismissal of
the main case. The aforementioned order of SUMMONS (RULE 14)
the lower court has the effect not only of
allowing the intervention suit to proceed but Definition and purpose
also of vacating its previous order of dismissal. Summons is the writ by which the defendant is
The reinstatement of the case in order to try notified of the action brought against him.
and determine the claims and rights of the  The issuance of summons is
intervenor is proper. The joint motion of mandatory on the part of the court.
therein plaintiff and the original defendants to
dismiss the case, without notice to and  In an action in personam, the purpose
consent of the intervenor, has the effect of of summons is not only to notify the
defendant of the action, but also to
putting to rest only the respective claims of
the said original parties inter se but the same acquire jurisdiction over his person.
cannot in any way affect the claim of private  Service of summons is required even if
respondent which was allowed by the court to the defendant is aware of the filing of
intervene without opposition from the original the action against him.
parties.  In an action in rem or quasi in rem, the
After the intervenor has appeared in purpose of summons is mainly to
the action, the plaintiff has no absolute right to satisfy the constitutional requirements
put the intervenor out of court by the dismissal of due process.
of the action. The parties to the original suit
have no power to waive or otherwise annul the Duty to issue
substantial rights of the intervenor. When an The clerk of court shall issue the corresponding
intervening petition has been filed, a plaintiff summons to the defendants
may not dismiss the action in any respect to (1) upon the filing of the complaint and
the prejudice of the intervenor.
(2) payment of the requisite legal fees.
It has even been held that the simple
(Sec. 1, Rule 14)
fact that the trial court properly dismissed
plaintiff s action does not require dismissal of
Issuance of alias summons—
the action of the intervenor. An intervenor has
If a summons is returned without being served
the right to claim the benefit of the original
on any or all of the defendants, the server:
suit and to prosecute it to judgment. The right
(1) shall also serve a copy of the return on
cannot be defeated by dismissal of the suit by
the plaintiff’s counsel,
the plaintiff after the filing of the petition and
(2) stating the reasons for the failure of
notice thereof to the other parties. A person
service,
who has an interest in the subject matter of
the action has the right, on his own motion, to (3) within five (5) days from such failure.
intervene and become a party to the suit, and
even after the complaint has been dismissed, The clerk may issue an alias summons
may proceed to have any actual controversy (1) on demand of the plaintiff,

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER66

(2) if the summons has been lost, or (2) by tendering it to him, if he refuses to
(3) if the summons has been returned receive and sign for it. (Sec. 6, Rule
without being served (Sec. 5, Rule 14) 14)

Form Entity without juridical personality


When persons associated in an entity without
Content juridical personality are sued under the name
The summons shall be by which they are generally or commonly
(1) directed to the defendant, known, service may be effected
(2) signed by the clerk of court, and (1) upon all the defendants by serving
upon any one of them, or
(3) under seal.
(2) upon the person in charge of the office
or place of business maintained in such
The summons shall contain:
name.
(a) the name of the court and the names
of the parties to the action;
BUT such service shall not bind individually
(b) a direction that the defendant answer any person whose connection with the entity
within the time fixed by these Rules; has, upon due notice, been severed before the
and action was brought. (Sec. 8, Rule 14)
(c) a notice that unless the defendant so
answers, plaintiff will take judgment by Associations
default and may be granted the relief
applied for. Domestic
Service upon domestic private juridical entity—
A copy of the complaint and order for Service may be made on
appointment of guardian ad litem, if any, shall (1) the president,
be attached to the original and each copy of (2) managing partner,
the summons. (3a) (3) general manager,
(4) corporate secretary,
If with leave of court (5) treasurer, or
It shall be made
(6) in-house counsel. (Sec. 11, Rule 14)
(1) by motion,
(2) in writing, List exclusive
(3) supported by affidavit of the plaintiff or
some person on his behalf, and E.B. VILLAROSA & PARTNER CO., LTD. V.
(4) setting forth the grounds for the BENITO
application. (Sec. 17, Rule 14) (312 SCRA 65, 1999)

Who serves The liberal construction rule cannot be


The summons may be served by invoked and utilized as a substitute for the
(1) the sheriff, plain legal requirements as to the manner
(2) his deputy, in which summons should be served on a
(3) other proper court officer, or domestic corporation. The officer upon
(4) any suitable person authorized by the whom service is made must be the one
court issuing the summons, for stated in the statute otherwise the service
justifiable reasons. (Sec. 3, Rule 14) is insufficient.
FACTS: Petitioner E.B. Villarosa, a limited
On whom partnership, and private respondent Benita
executed a deed of sale with development
In general agreement wherein Villarosa agreed to
The clerk of court shall issue the corresponding develop certain parcels of land belonging to
summons to the defendants. (Sec. 1, Rule 14) Benito into a housing subdivision for the
construction of low cost housing units. They
Service in person on defendant— further agreed that in case of litigation arising
Whenever practicable, the summons shall be from any dispute, the venue shall be in the
served proper courts of Makati.
(1) by handing a copy thereof to the The private respondent subsequently
defendant in person, or filed a Complaint for Breach of Contract and
Damages against the petitioner before the

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CIVIL PROCEDURE REVIEWER67

Trial Court of Makati for lack of developments (3) on his father or mother, In the case of
within the aforesaid properties. The Service of a minor, service may also be made.
Summons as well as the complaint was served (Sec. 10, Rule 14)
upon the branch manager in Cagayan de Oro.
Plaintiff filed a Special Motion to Dismiss Insane, incompetents
alleging that the summons was improperly When the defendant is insane or otherwise an
served and for lack of jurisdiction over the incompetent, service shall be made
person of the defendant. Respondent says that (1) upon him personally and
the Service was improperly served since it was
given to an employee in its branch office and
(2) on his legal guardian if he has one, or
if none, upon his guardian ad litem
not to one of the persons enunciated in Rule
whose appointment shall be applied for
14 section 11 of the ROC.
by the plaintiff. (Sec. 10, Rule 14)
The trial court ruled in favor of
respondent hence this petition.
Prisoners
When the defendant is a prisoner confined in a
ISSUE: Whether the service of summons on the
jail or institution, service shall be effected
branch manager was proper
upon him
NO. Section 11, Rule 14 allows service
to the general manager, not the branch  by the officer having the management
manager. The maxim expression unios est of such jail or institution who is
exclusion alterius applies in this case. The deemed deputized as a special sheriff
enumeration of persons whom summons may for said purpose. (Sec. 9, Rule 14)
be served is restricted, limited and exclusive.
The new rule specifically changed the proper Unknown defendant or whereabouts
recipient of a service from a mere manager to unknown
a general manager in order to prevent Where the defendant is
ambiguous and illogical interpretations in the (1) designated as an unknown owner, or
future. The court therefore acquires no the like, or
jurisdiction over the person of the defendant. (2) whenever his whereabouts are
In the case at bar, since the service unknown and cannot be ascertained by
was given to a mere branch manager in one of diligent inquiry,
petitioner’s branches instead of the general
manager in its main office in Davao, such Service may, by leave of court, be effected
service is deemed insufficient. The courts upon him by
therefore did not acquire jurisdiction over the
(1) publication in a newspaper of general
person of the petitioner.
circulation and

Public corporation
(2) in such places and for such time as the
court may order. (Sec. 14, Rule 14)
When the defendant is the Republic of the
Philippines, service may be effected on the
Whether in rem, quasi in rem or personal
Solicitor General.

Residents temporarily out


In case of a province, city or municipality, or
When any action is commenced against a
like public corporations, service may be
defendant who ordinarily resides within the
effected on
Philippines, but who is temporarily out of it,
(1) its executive head, or
service may, by leave of court, be also effected
(2) on such other officer or officers as the out of the Philippines by extraterritorial
law or the court may direct. (Sec. 13, service. (Sec. 16, Rule 14)
Rule 14)
MONTEFALCON v. VASQUEZ
Minors (554 SCRA 513, 2008)
When the defendant is a minor, service shall
be made
(1) upon him personally and
(2) on his legal guardian if he has one, or
if none, upon his guardian ad litem
whose appointment shall be applied for
by the plaintiff, or

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CIVIL PROCEDURE REVIEWER68

The normal method of service of summons seafarer when the sheriff served the summons
on one temporarily absent is by substituted in Taguig. The appellate court, however,
service because personal service abroad denied the motion.
and service by publication are not ordinary
means of summoning defendants. ISSUE: Whether there was a valid substituted
Summons in a suit in personam against a service of summons
temporarily absent resident may be by YES. To acquire jurisdiction over the
substituted service as domiciliaries of a person of a defendant, service of summons
State are always amenable to suits in must be personal, or if this is not feasible
personam therein. within a reasonable time, then by substituted
service. It is of judicial notice that overseas
Filipino seafarers are contractual employees.
FACTS: Dolores P. Montefalcon filed a As an overseas seafarer, Vasquez was a
Complaint for acknowledgment and support Filipino resident temporarily out of the country.
against Ronnie S. Vasquez before the RTC, Hence, service of summons on him is governed
alleging that her son Laurence Montefalcon is by Rule 14, Section 16, which referred to
the illegitimate child of Vasquez. She prayed extraterritorial service. Because Section 16 of
that Vasquez be obliged to give support to Rule 14 uses the words "may" and "also," it is
Laurence, whose certificate of live birth he not mandatory. Other methods of service of
signed as father. summons allowed under the Rules may also be
A sheriff tried to serve the summons availed of by the serving officer on a
and complaint on Vasquez in Aro-aldao, Nabua, defendant-seaman.
Camarines Sur. Vasquez's grandfather Obviously, personal service of
received them as Vasquez was in Manila. summons was not practicable since the
Vasquez's mother returned the documents to defendant was temporarily out of the country.
the clerk of court, who informed the court of To proceed with personal service of summons
the non-service of summons. Petitioners then on a defendant-seaman who went on overseas
filed a motion to declare Vasquez in default, contract work would not only be impractical
which was denied for lack of proper service of and futile, it would also be absurd.
summons. The substituted service in Taguig was
The court issued an alias summons on valid and justified because previous attempts
Vasquez at Taguigupon petitioners' motion. A were made by the sheriffs to serve the
Taguig deputy sheriff served it by substituted summons, but to no avail. Also, the caretaker
service on Vasquez's caretaker. Another alias who received the alias summons was of
summons was issued, also received by the suitable age and discretion, then residing at
caretaker. Vasquez's dwelling. There is no quarrel that it
On petitioners' motion, the trial court was really Vasquez's residence, as evidenced
declared Vasquez in default for failure to file by his employment contract, executed under
an answer despite the substituted service of the supervision and authority of the POEA. It
summons. Vasquez was furnished with court can be presumed that the caretaker must have
orders and notices of the proceedings at his informed him one way or another of the suit
last known address, but these were returned upon his return after finishing his nine-month
as he had allegedly moved to another place contract with Fathom Ship Management.
and left no new address. In Montalban v. Maximo, we held that
In 2001, the court granted petitioners' the normal method of service of summons on
prayers. The court added that Vasquez one temporarily absent is by substituted
admitted the truth of the allegations by his service because personal service abroad and
silence. service by publication are not ordinary means
In the same year, Vasquez surfaced of summoning defendants. Summons in a suit
and filed a notice of appeal which petitioners in personam against a temporarily absent
opposed. Appeal was granted. Before the resident may be by substituted service as
appellate court, he argued that the trial court domiciliaries of a State are always amenable to
never acquired jurisdiction over his person. suits in personam therein.
The appellate court noted that the service of More importantly, the absence in the
summons on Vasquez was "defective" as there final sheriff's return of a statement about the
was no explanation of impossibility of personal impossibility of personal service does not
service and an attempt to effect personal conclusively prove that the service is invalid.
service. Such failure should not unduly prejudice
Petitioners argued that any attempt at petitioners if what was undisclosed was in fact
personal service of summons was needless as done. The sheriff's certificate of service of
Vasquez already left for abroad as an overseas summons is prima facie evidence of the facts

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER69

set out in it. Only clear and convincing FACTS: PNOC Exploration Corp. (respondent)
evidence may overcome its presumption of filed a complaint for a sum of money against
regularity. Given the circumstances in the Pedro T. Santos, Jr. (petitioner), seeking to
present case, we agree that the presumption collect the P698,502.10 unpaid balance of the
of regularity in the performance of duty on the car loan advanced to Santos when he was still
part of the sheriff stands. member of the board of directors.
Personal service of summons to Santos
Non-resident failed because he could not be located in his
When the defendant last known address despite earnest efforts to
(1) does not reside and is not found in the do so. On PNOC’s motion, the trial court
Philippines, and allowed service of summons by publication.
(2) the action affects PNOC then caused the publication of the
a. the personal status of the summons in Remate, a newspaper of general
circulation in the Philippines. Thereafter, PNOC
plaintiff or
submitted the affidavit of publication of the
b. relates to, or the subject of
advertising manager of Remate and an
which is, property within the
affidavit of service of the PNOC’s employee to
Philippines, in which the
the effect that he sent a copy of the summons
defendant has or claims a lien
by registered mail to Santos’ last known
or interest, actual or
address.
contingent; or
When Santos failed to file his answer,
c. in which the relief demanded PNOC moved the case be set for the reception
consists, wholly or in part, in of its evidence ex parte. The trial court granted
excluding the defendant from the motion. An omnibus motion for
any interest therein, or reconsideration was then sought by Santos,
d. the property of the defendant alleging that the affidavit of service submitted
has been attached within the by PNOC failed to comply with Sec. 19, Rule
Philippines, 14, as it was not executed by the Clerk of
Court. He also claimed denial of due process
Service may, by leave of court, be effected out for he was not notified of the trial court’s
of the Philippines order. PNOC opposed the motion and insisted
(1) by personal service as under section 6; that it complied with the rules on service by
or publication. The trial court denied Santos’
(2) by publication in a newspaper of motion.
general circulation in such places and
for such time as the court may order, ISSUE: Whether there is improper service of
• in which case a copy of the summons because summons by publication
summons and order of the only applies to actions in rem, and not in
court shall be sent by personam
registered mail to the last NO. Since petitioner could not be
known address of the personally served with summons despite
defendant, diligent efforts to locate his whereabouts,
(3) or in any other manner the court may respondent sought and was granted leave of
deem sufficient. court to effect service of summons upon him
by publication in a newspaper of general
Any order granting such leave shall specify a circulation. Thus, petitioner was properly
reasonable time, which shall not be less than served with summons by publication.
sixty (60) days after notice, within which the The in rem/in personam distinction was
defendant must answer. (Sec. 15, Rule 14) significant under the old rule because it was
silent as to the kind of action to which the rule
in rem, quasi in rem was applicable. Because of this silence, the
Court limited the application of the old rule to
SANTOS v. PNOC in rem actions only. This has been changed.
(556 SCRA 272, 2008) The present rule expressly states that it
applies "[i]n any action where the defendant is
Where the defendant could not be designated as an unknown owner, or the like,
personally served with summons despite or whenever his whereabouts are unknown and
diligent efforts to locate his whereabouts, cannot be ascertained by diligent inquiry."
he may properly be served with summons Thus, it now applies to any action, whether in
of publication. personam, in rem or quasi in rem.

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CIVIL PROCEDURE REVIEWER70

Service of summons by publication is Under our procedural rules, personal


proved by the affidavit of the printer, his service is generally preferred over
foreman or principal clerk, or of the editor, substituted service, the latter mode of
business or advertising manager of the service being a method extraordinary in
newspaper which published the summons. The character. For substituted service to be
service of summons by publication is justified, the following circumstances must
complemented by service of summons by be clearly established:
registered mail to the defendant's last known (a) personal service of summons within
address. This complementary service is a reasonable time was impossible;
evidenced by an affidavit "showing the deposit
(b) efforts were exerted to locate the
of a copy of the summons and order for
party; and
publication in the post office, postage prepaid,
(c) the summons was served upon a
directed to the defendant by registered mail to
person of sufficient age and
his last known address." The rules, however,
discretion residing at the party’s
do not require that the affidavit of
residence or upon a competent
complementary service be executed by the
person in charge of the party’s
clerk of court. While the trial court ordinarily
office or place of business.
does the mailing of copies of its orders and
Failure to do so would invalidate all
processes, the duty to make the
complementary service by registered mail is FACTS: Respondent Celita Miralles filed a
imposed on the party who resorts to service by complaint for collection of sum of money
publication. against petitioner Remelita Robinson, alleging
The trial court acquired jurisdiction that $20,054 was borrowed by Robinson, as
over the person of petitioner by his own shown in the MOA they both executed.
voluntary appearance in the action against Summons was served on Robinson at
him. This was equivalent to service of her given address. However, per return of
summons and vested the trial court with service of the Sheriif, petitioner no longer
jurisdiction over the person of petitioner. resides there. Thus, the trial court issued an
alias summons to be served at Muntinlupa
Modes of service City, petitioner’s new address.
Again, the Sheriff reported twice
Personal thereafter that the summons could not be
Whenever practicable, the summons shall be served on petitioner. Sheriff Pontente, who was
served to serve the summons interposed that he was
(1) by handing a copy thereof to the stopped by the Security Guard of Alabang Hills
defendant in person, or Village because they were allegedly told by
(2) by tendering it to him, if he refuses to Robinson not to let anyone proceed to her
receive and sign for it. (Sec. 6, Rule house if she is not around. Despite the
14) explanations of the Sheriff, the guards didn’t
let him in. Thereafter, the Sheriff just left a
Substituted copy of the complaint to a guard, who refused
If, for justifiable causes, the defendant cannot to affix his signature on the original copy, so
be served within a reasonable time as provided he will be the one to give the summons to
in the preceding section, service may be petitioner Robinson.
effected Eventually, petitioner Robinson was
(a) by leaving copies of the summons at declared in default for her failure to file an
the defendant’s residence with some answer seasonably despite service of
person of suitable age and discretion summons. The trial court rendered its decision
then residing therein, or in favor of Miralles ordering Robinson to pay
her obligations plus cost of damages. A copy of
(b) by leaving the copies at defendant’s
the court Order was sent to petitioner by
office or regular place of business with
registered mail at her new address and a writ
some competent person in charge
of execution was also issued.
thereof. (Sec. 7, Rule 14)
Robinson filed a petition for relief from
the judgment by default. She claimed that
ROBINSON v. MIRALLES
summons was improperly served upon her,
(510 SCRA 678, 2006)
thus, the trial court never acquired jurisdiction
over her and that all its proceedings are void.
Petitioner Robinson contends that the service
of the summons upon the subdivision guard is
not in compliance with Section 7, Rule 14 since

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER71

he is not related to her or staying at her (2) in such places and for such time as the
residence, as required by the rule. court may order. (Sec. 14, Rule 14)

ISSUE: Whether the substituted service of Extraterritorial


summons effected is valid When the defendant
YES. Although the SC have ruled that (1) does not reside and is not found in the
the statutory requirements of substituted
Philippines, and
service must be followed strictly, faithfully, and
(2) the action affects
fully and any substituted service other than
a. the personal status of the
that authorized by the Rules is considered
plaintiff or
ineffective, the Court frowns upon an overly
strict application of the Rules. It is the spirit, b. relates to, or the subject of
rather than the letter of the procedural rules, which is, property within the
that governs. Philippines, in which the
Obviously, it was impossible for the defendant has or claims a lien
sheriff to effect personal or substituted service or interest, actual or
of summons upon petitioner. We note that she contingent; or
failed to controvert the sheriff’s declaration. c. in which the relief demanded
Nor did she deny having received the consists, wholly or in part, in
summons through the security guard. excluding the defendant from
Considering her strict instruction to the any interest therein, or
security guard, she must bear its d. the property of the defendant
consequences. Thus, we agree with the trial has been attached within the
court that summons has been properly served Philippines,
upon petitioner and that it has acquired
jurisdiction over her. Service may, by leave of court, be effected out
Where the action is in personam and of the Philippines
the defendant is in the Philippines, the service (4) by personal service as under section 6;
of summons may be made through personal or or
substituted service in the manner provided for (5) by publication in a newspaper of
in Sections 6 and 7, Rule 14 of the 1997 Rules general circulation in such places and
of Procedure, as amended. for such time as the court may order,
Under our procedural rules, personal • in which case a copy of the
service is generally preferred over substituted summons and order of the
service, the latter mode of service being a court shall be sent by
method extraordinary in character. For registered mail to the last
substituted service to be justified, the following known address of the
circumstances must be clearly established: (a) defendant,
personal service of summons within a (6) or in any other manner the court may
reasonable time was impossible; (b) efforts deem sufficient.
were exerted to locate the party; and (c) the
summons was served upon a person of Any order granting such leave shall specify a
sufficient age and discretion residing at the reasonable time, which shall not be less than
party’s residence or upon a competent person sixty (60) days after notice, within which the
in charge of the party’s office or place of defendant must answer. (Sec. 15, Rule 14)
business. Failure to do so would invalidate all
subsequent proceedings on jurisdictional Residents temporarily out of the Philippines.
grounds. When any action is commenced against a
Publication defendant who ordinarily resides within the
Where the defendant is Philippines, but who is temporarily out of it,
(1) designated as an unknown owner, or service may, by leave of court, be also effected
the like, or out of the Philippines by extraterritorial
(2) whenever his whereabouts are service. (Sec. 16, Rule 14)
unknown and cannot be ascertained by
diligent inquiry, VALMONTE v. CA
(252 SCRA 92, 1996)
Service may, by leave of court, be effected
upon him by
(1) publication in a newspaper of general
circulation and

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER72

As petitioner Lourdes Valmonte is a PERKIN ELMER SINGAPORE v. DAKILA


nonresident who is not found in the TRADING
Philippines, service of summons on her (530 SCRA 170)
must be in accordance with Rule 14, §17.
Such service, to be effective outside the Extraterritorial service of summons applies
Philippines, must be made either (1) by only where the action is in rem or quasi in
personal service; (2) by publication in a rem, but not if an action is in personam.
newspaper of general circulation in such FACTS: Dakila Trading Corp (Dakila) entered
places and for such time as the court may into a Distribution Agreement with Perkin-
order, in which case a copy of the Elmer Singapore Pte. Ltd. (PES) which
summons and order of the court should be appointed Dakila as sole distributor of its
sent by registered mail to the last known products in the Philippines. PES was obligated
address of the defendant; or (3) in any to give Dakila a commission for the sale of its
FACTS: Rosita Dimalanta, sister of petitioner
Lourdes Valmonte, filed a complaint for products in the Philippines. Dakila was granted
partition of real property and accounting of the right to purchase and sell the products of
rentals against petitioners Valmonte spouses. PES. The agreement further stipulated that
Lourdes Valmonte is a foreign resident. The Dakila shall order the products of PES, which it
RTC denied private respondent's motion to shall sell in the Philippines, either from PES
declare petitioner Lourdes A. Valmonte in itself or from PEIP.
default. A motion for reconsideration was However, PES unilaterally terminated
similarly denied. Private respondent filed a the Distribution Agreement, prompting Dakila
petition for certiorari, prohibition to file before the RTC a Complaint for
and mandamus with the Court of Appeals. The Collection of Sum of Money and Damages with
Court of Appeals rendered a decision granting Prayer for Issuance of a Writ of Attachment
the petition and declaring Lourdes in default. A against PES and its affiliate, Perkin-Elmer
copy of the appellate court's decision was Instruments Philippines Corporation (PEIP). RTC
received by petitioner Lourdes’ husband at his denied respondent’s prayer.
Manila law office and in Seattle, Washington. Dakila filed Ex-Parte Motions for
Issuance of Summons and for Leave of Court to
ISSUE: Whether in an action for partition filed Deputize Dakila’s General Manager (DGM) to
against her and her husband, who is also her Serve Summons Outside of the Philippines.
attorney, summons intended for her may be RTC granted this motion. Thus, an Alias
served on her husband, who has a law office in Summons was issued by the RTC to PES. But
the Philippines the said Alias Summons was served and
NO. Private respondent's action, which received by Perkin-Elmer Asia (PEA), a
is for partition and accounting under Rule 69, corporation allegedly unrelated to PES. PEIP
is in the nature of an action quasi in rem. Such moved to dismiss the Complaint filed by
an action is essentially for the purpose of Dakila. PEA, on the other hand, sent letters to
affecting the defendant's interest in a specific Dakila and RTC to inform them of the wrongful
property and not to render a judgment against service of summons.
him. As petitioner Lourdes Valmonte is a Accordingly, Dakila filed an Ex-Parte
nonresident who is not found in the Philippines, Motion to Admit Amended Complaint, together
service of summons on her must be in with the Amended Complaint claiming that (1)
accordance with Rule 14, §17. Such service, to PEA had become a sole proprietorship owned
be effective outside the Philippines, must be by the PES, (2) PES changed its name to PEA,
made either (1) by personal service; (2) by (3) such changes did not avoid its due and
publication in a newspaper of general outstanding obligations to Dakila, and (4) the
circulation in such places and for such time as name of PES in the complaint should be
the court may order, in which case a copy of changed to PEA. RTC admitted the Amended
the summons and order of the court should be Complaint.
sent by registered mail to the last known Dakila filed another Motion for the
address of the defendant; or (3) in any other Issuance of Summons and for Leave of Court to
manner which the court may deem sufficient. Deputize DGM to serve summons outside the
Philippines. RTC granted the motion. RTC thus
issued summons and the DGM went to
Singapore and served summons on PES.
Meanwhile, RTC denied the Motion to
Dismiss filed by PEIP, compelling the latter to
file its Answer to the Amended Complaint.

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER73

PES filed with the RTC a Special Neither does the allegation that PES
Appearance and Motion to Dismiss the had personal property within the Philippines in
Amended Complaint, which were denied. It the form of shares of stock in PEIP convert the
held that even though the Amended Complaint case from an action in personam to one quasi
is primarily for damages, it does relate to a in rem, so as to qualify said case under the 4th
property of PES, to which the latter has a claim instance of extra-territorial service. What is
interest, or an actual or contingent lien, which required is not a mere allegation of the
will make it fall under one of the requisites for existence of personal property belonging to
extraterritorial service. PES filed a Petition for the non-resident defendant within the
Certiorari under Rule 65 with application for Philippines but that the non-resident
temporary restraining order and/or preliminary defendant’s personal property located within
injunction before the CA. The CA affirmed the the Philippines must have been actually
RTC Orders. attached. Evidently, PES’s personal property
within the Philippines, in the form of shares of
ISSUE: Whether summons were properly stock in PEIP, had not been attached; hence,
served under the 2nd or 4th instance of extra- the case for collection of sum of money and
territorial service damages remains an action in personam.
NO. Extraterritorial service of In the case at bar, there can never be
summons applies only where the action is in a valid extraterritorial service of summons
rem or quasi in rem, but not if an action is in upon it, because the case involving collection
personam. In the case at bar, there can never of a sum of money and damages is an action in
be a valid extraterritorial service of summons personam, as it deals with the personal liability
upon it, because the case involving collection of PES by reason of the alleged unilateral
of a sum of money and damages is an action in termination of the Distribution Agreement. The
personam, as it deals with the personal liability objective sought in Dakila’s Complaint was to
of PES by reason of the alleged unilateral establish a claim against PES. Moreover, The
termination of the Distribution Agreement. The action instituted by Dakila affects the parties
objective sought in Dakila’s Complaint was to alone, not the whole world.
establish a claim against PES. Moreover, The Thus, being an action in personam,
action instituted by Dakila affects the parties personal service of summons within the
alone, not the whole world. Philippines is necessary in order for the RTC to
Thus, being an action in personam, validly acquire jurisdiction over the person of
personal service of summons within the PES, and this is not possible in the present
Philippines is necessary in order for the RTC to case because the PES is a non-resident and is
validly acquire jurisdiction over the person of not found within the Philippines. Dakila’s
PES, and this is not possible in the present allegation in its Amended Complaint that PES
case because the PES is a non-resident and is had personal property within the Philippines in
not found within the Philippines. Dakila’s the form of shares of stock in PEIP did not
allegation in its Amended Complaint that PES make the case fall under any of the four
had personal property within the Philippines in instances mentioned in Section 15, Rule 14 of
the form of shares of stock in PEIP did not the Rules of Court, as to convert the action in
make the case fall under any of the four personam to an action in rem or quasi in rem
instances mentioned in Section 15, Rule 14 of and, subsequently, make the extraterritorial
the Rules of Court, as to convert the action in service of summons upon the petitioner valid.
personam to an action in rem or quasi in rem
and, subsequently, make the extraterritorial Registered mail invalid service of
service of summons upon the petitioner valid. summons
The 2nd instance for extra-territorial
service has no application in the case. The Voluntary appearance
action for collection of a sum of money and The defendant’s voluntary appearance in the
damages was purely based on the personal action shall be equivalent to service of
liability of the PES. For the action to be one summons.
falling under the 2nd instance, the main subject The inclusion in a motion to dismiss of
matter of the action must be the property itself other grounds aside from lack of jurisdiction
of the PES in the Philippines and in such over the person of the defendant shall not be
instance, judgment will be limited to the res. deemed a voluntary appearance. (Sec. 20,
However, the allegations made by the Rule 14)
respondent that the petitioner has property
within the Philippines in support of its CEZAR v. RICAFORT-BAUTISTA
application for the issuance of a writ of (506 SCRA 322, 2006)
attachment was actually denied by the RTC.

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER74

The SC still holds that jurisdiction was NO. The person who allegedly received
validly acquired by the trial court. the summons was identified in the sheriff’s
Although the substituted service upon him return as Arsenio Robles, was not petitioner’s
of summons was defective, said defect was employee, was a native of Batangas and was
cured by his voluntary appearance. merely peddling mango seedlings within the
vicinity of his office when the summons was
FACTS: Private respondent Specified Materials served.
Corporation filed a Complaint for collection of In the event that summons cannot be
sum of money against petitioner Cezar due to served within a reasonable time, the Rules
the latter’s failure to pay the construction permit that substituted service may be
materials it purportedly purchased under a resorted to. In this case, the sheriff employed
credit line extended by private respondent. the substituted service of summons. The
At the time of the institution of the action, defect, however, in the manner in which he
petitioner’s obligation stood at P1,860,000.00, implemented this mode of service of summons
and under the terms of the credit is readily apparent on the face of the return. It
arrangement, materials sold to petitioner were must be emphasized that laws providing for
supposed to be paid within 30 days from date modes other than the personal service of
of delivery, subject to a 3% interest per month summons must be strictly followed in order for
for delayed payments. the court to acquire jurisdiction over the
After the filing of the complaint, person of respondent or defendant. As the
summons was issued, and this was received by sheriff’s return in the present case does not
a certain Robles. As petitioner failed to file his contain any statement with regard to the
answer to the complaint, private respondent impossibility of personal service the same is
moved that he be declared in default. This patently defective and so the presumption of
motion was granted. regularity in the performance of official
Private respondent filed a Motion to functions will not lie.
Admit Amended Complaint alleging that it
erroneously computed petitioner’s obligation ISSUE: Whether petitioner’s voluntary
to be P1,860,000.00, when it should have appearance cured the defect in service of
amounted to P2,005,000.00. A copy of the summons.
motion and the Amended Complaint were YES. In Flores v. Zurbito, we held that
personally received by petitioner as evidenced an appearance in whatever form without
by his signatures thereon. The Amended expressly objecting to the jurisdiction of the
Complaint was ordered admitted. The court court over the person, is a submission to the
ruled in favor of plaintiff. jurisdiction of the court over the person of the
Petitioner, by way of special appearance, defendant or respondent, thus:
argued that the trial court did not acquire He may appear without such formal
jurisdiction over his person. This motion was appearance and thus submit himself to the
denied. Petitioner filed before the CA a Petition jurisdiction of the court. He may appear by
for Annulment of Judgment, Preliminary presenting a motion, for example, and unless
Injunction with Prayer for Temporary by such appearance he specifically objects to
Restraining Order. This petition was dismissed the jurisdiction of the court, he thereby gives
for “failure to attach an affidavit of merit his assent to the jurisdiction of the court over
alleging the facts supporting the good and his person.
substantial defense, as well as the affidavits of Hence, in this case, petitioner’s filing of
witnesses or document supporting the a Motion for Re-setting of the Hearing
defense.” effectively cured the defect of the substituted
Petitioner filed a motion for service of summons. Petitioner’s insistence of
reconsideration but this was denied. Following lack of jurisdiction over his person is utterly
this set-back, petitioner filed before this Court lacking in any legal basis.
a Petition for Review on Certiorari of the
resolutions of the CA, which was also denied LHUILLER v. BRITISH AIRWAYS
for failure to comply with procedural (615 SCRA 380, 2010)
requirements. Our resolution became final and
executory. Private respondent filed a Motion
for Execution before the trial court. A defendant who files a motion to dismiss,
assailing the jurisdiction of the court over
ISSUE: Whether the court acquired jurisdiction his person, together with other grounds
over the person of the petitioner by virtue of raised therein, is not deemed to have
the substituted service of summons effected appeared voluntarily before the court
by the sheriff

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER75

FACTS: Lhuillier took respondent British Urgent Ex-Parte Motion to Admit Formal
Airway’s flight 548 from London, United Amendment to the Complaint and Issuance of
Kingdom to Rome, Italy. Once on board, she Alias Summons. Petitioner alleged that upon
allegedly requested Halliday, one of the verification with the SEC, she found out that
respondent’s flight attendants, to assist her in the resident agent of respondent in the
placing her hand-carried luggage in the Philippines is Alonzo Q. Ancheta. Subsequently,
overhead bin. However, Halliday allegedly petitioner filed a Motion to Resolve Pending
refused to help and assist her, and even Incident and Opposition to Motion to Dismiss.
sarcastically remarked that "If I were to help all
300 passengers in this flight, I would have a ISSUE: Whether British Airways, in filing its
broken back!" motion to dismiss may be deemed as having in
Petitioner further alleged that when fact and in law submitted itself to the
the plane was about to land in Rome, Italy, jurisdiction of the lower court, NO. The
another flight attendant, Kerrigan, singled her Warsaw Convention has the force and effect of
out from among all the passengers in the law in this country. The Warsaw Convention
business class section to lecture on plane applies because the air travel, where the
safety. Allegedly, Kerrigan made her appear to alleged tortious conduct occurred, was
the other passengers to be ignorant, between the United Kingdom and Italy, which
uneducated, stupid, and in need of lecturing on are both signatories to the Warsaw
the safety rules and regulations of the plane. Convention. Since the Warsaw Convention
Affronted, petitioner assured Kerrigan that she applies in the instant case, then the jurisdiction
knew the plane’s safety regulations being a over the subject matter of the action is
frequent traveler. Thereupon, Kerrigan governed by the provisions of the Warsaw
allegedly thrust his face a mere few Convention.
centimeters away from that of the petitioner Respondent, in seeking remedies from
and menacingly told her that "We don’t like the trial court through special appearance of
your attitude." counsel, is not deemed to have voluntarily
Upon arrival in Rome, petitioner submitted itself to the jurisdiction of the trial
complained to respondent’s ground manager court. Thus, a defendant who files a motion to
and demanded an apology. However, the latter dismiss, assailing the jurisdiction of the court
declared that the flight stewards were "only over his person, together with other grounds
doing their job." raised therein, is not deemed to have
Thus, petitioner filed the complaint for appeared voluntarily before the court. What
damages. Summons, together with a copy of the rule on voluntary appearance means is
the complaint, was served on the respondent that the voluntary appearance of the
through Echevarria, General Manager of Euro- defendant in court is without qualification, in
Philippine Airline Services, Inc. which case he is deemed to have waived his
Respondent, by way of special defense of lack of jurisdiction over his person
appearance through counsel, filed a Motion to due to improper service of summons.
Dismiss on grounds of lack of jurisdiction over A special appearance before the
the case and over the person of the court––challenging its jurisdiction over the
respondent. Respondent alleged that only the person through a motion to dismiss even if the
courts of London, United Kingdom or Rome, movant invokes other grounds––is not
Italy, have jurisdiction over the complaint for tantamount to estoppel or a waiver by the
damages pursuant to the Warsaw Convention. movant of his objection to jurisdiction over his
Thus, since respondent is domiciled in London; person; and such is not constitutive of a
respondent’s principal place of business is in voluntary submission to the jurisdiction of the
London; petitioner bought her ticket in Italy court.
(through Jeepney Travel S.A.S, in Rome); and In this case, the special appearance of
Rome, Italy is petitioner’s place of destination, the counsel of respondent in filing the Motion
then it follows that the complaint should only to Dismiss and other pleadings before the trial
be filed in the proper courts of London, United court cannot be deemed to be voluntary
Kingdom or Rome, Italy. Likewise, it was submission to the jurisdiction of the said trial
alleged that the case must be dismissed for court.
lack of jurisdiction over the person of the
respondent because the summons was Return of service
erroneously served on Euro-Philippine Airline When the service has been completed, the
Services, Inc. which is not its resident agent in server shall,
the Philippines. (1) within five (5) days therefrom,
Instead of filing a
Comment/Opposition, petitioner filed an

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER76

(2) serve a copy of the return, personally


or by registered mail, to the plaintiff’s May be oral
counsel, and General rule: All motions shall be in writing.
(3) shall return the summons to the clerk Exception Motions made in open court
who issued it, or in the course of a hearing or trial. (Sec. 2,
(4) accompanied by proof of service. (Sec. Rule 15)
4, Rule 14)

Proof of service
The proof of service of a summons shall be
Motion for leave
(1) made in writing by the server and
A motion for leave to file a pleading or motion
(2) shall set forth the manner, place, and
shall be accompanied by the pleading or
date of service;
motion sought to be admitted. (Sec. 9, Rule
(3) shall specify any papers which have
15)
been served with the process and
(4) the name of the person who received
Prohibited motion
the same; and
The following pleadings and motions are
(5) shall be sworn to when made by a
prohibited in a summary procedure:
person other than a sheriff or his
(1) Motion to dismiss except on the
deputy. (Sec. 18, Rule 14)
ground of lack of jurisdiction over
subject matter and failure to comply
Publication
with barangay conciliation
If the service has been made by publication,
proceedings;
service may be proved by
(2) Motion for new trial, or for
(1) the affidavit of the printer, his foreman reconsideration of a judgment, or for
or principal clerk, or of the editor, reopening of trial;
business or advertising manager, (3) Petition for relief from judgment;
(2) an attached copy of the publication, (4) Motion for extension of time to file
and pleadings, affidavits and other papers;
(3) an affidavit showing the deposit of a (5) Memoranda;
copy of the summons and order for (6) Petition for certiorari, and mandamus
publication in the post office, postage or prohibition against an interlocutory
prepaid, directed to the defendant by order of the court;
registered mail to his last known (7) Motion to declare the defendant in
address. (Sec. 19, Rule 14) default;
(8) Dilatory motions for postponement
(9) Reply;
MOTIONS (RULE 15) (10) Third-party complaints;
(11) Interventions.
In general
A motion is an application for relief other than The following are prohibited in Small Claims
by a pleading. (Sec. 1, Rule 15) Cases:
(1) Motion to dismiss the complaint,
Form except on ground of lack of
General rule: All motions shall be in writing. jurisdiction’
(2) Motion for bill of particulars;
Exceptions: (3) Motion for new trial, or for
(1) Motions made in open court or reconsideration of a judgment, or for
reopening of trial;
(2) Motions made in the course of a
(4) Petition for relief from judgment;
hearing or trial. (Sec. 2, Rule 15)
(5) Motion for extension of time to file
pleadings, affidavits and other papers;
Generally
(6) Memoranda;
The Rules applicable to pleadings shall apply
to written motions so far as concerns (7) Petition for certiorari, and mandamus
(1) caption, or prohibition against an interlocutory
(2) designation, order of the court;
(8) Motion to declare the defendant in
(3) signature, and
default;
(4) other matters of form. (Sec. 10, Rule (9) Dilatory motions for postponement
15) (10) Reply;
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER77

(11) Third-party complaints; (2) shall specify the time and date of the
(12) Interventions. hearing which must not be later than
ten (10) days after the filing of the
Contents motion. (Sec. 5, Rule 15)
A motion shall
(1) state the relief sought to be obtained General rule: without compliance — scrap
(2) the grounds upon which it is based, of paper
and A motion which does not meet the
(3) shall be accompanied by supporting requirements of Sections 4 and 5 of Rule 15 is
affidavits and other papers, if required a mere scrap of paper which the clerk of court
by these Rules or necessary to prove has not right to receive and the trial court has
facts alleged therein. (Sec. 3, Rule 15) no authority to act upon.

Omnibus motion rule Defective notice of hearing


A motion attacking a pleading, order,
judgment, or proceeding shall include all VICTORY LINER, INC. v. MALINIAS
objections then available, and all objections (2007)
not so included shall be deemed waived. (Sec.
8, Rule 15) Under Sections 5 and 6 of Rule 15, the
notice of hearing shall be addressed to the
parties concerned and shall specify the
Exceptions time and date of the hearing of the motion;
The court shall dismiss the claim when no motion shall be acted upon by the court
it appears from the pleadings or the without proof of service of the notice
evidence on record that thereof, except when the court is satisfied
(1) the court has no that the rights of the adverse party are not
jurisdiction over the subject affected.
matter,
FACTS: A vehicular collision happened between
(2) there is another action
petitioner Victory Liner, Inc. (VLI) and an Isuzu
pending between the same
Truck used by respondent Michael Malinias. No
parties for the same cause, or
one died, but both vehicles were damaged.
that
Malinias filed a complaint for damages against
(3) the action is barred by
petitioner and the bus driver, Leoncio Bulaong
a prior judgment or
with the MTC, alleging pecuniary damage to
(4) barred by the statute the truck worth P47,180 representing lost
of limitations. (Sec. 1, Rule 9) income for the non-use of the truck. After pre-
trial, the bus driver was dropped as defendant
Notice of hearing in the case.
General Rule: Every written motion shall be set During trial, respondent finished
for hearing by the applicant. presenting his evidence and rested his case.
Counsel for petitioner VLI filed a motion to
Exception: Motions which the court may act withdraw as counsel, but the same was denied.
upon without prejudicing the rights of the When the case was called for reception of
adverse party. petitioner’s evidence, no appearance was
(Sec. 4, Rule 15) made for the bus company. Respondent thus
moved that petitioner be declared to have
NOTE: Every written motion required to be waived its right to adduce evidence in its favor.
heard and the notice of the hearing thereof The case was deemed submitted for judgment
shall be served and the MTC ruled in favor of respondent
(1) in such a manner as to ensure its Malinias, ordering VLI to pay him.
receipt by the other party VLI’s new counsel filed a Motion for
(2) at least three (3) days before the date Reconsideration. The Notice of Hearing therein
of hearing, unless the court for good stated: "Please submit the foregoing Motion for
cause sets the hearing on shorter Reconsideration for hearing before the CA at a
notice. schedule and time convenient to the Court and
the parties.” The MTC ruled that the notice did
Notice of hearing— not conform with the mandatory requirements
The notice of hearing shall be of Section 5, Rule 15, and that the motion was
(1) addressed to all parties concerned, thus a mere scrap of paper which did not
and suspend the period to appeal.

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER78

Petitioner VLI thereafter filed a Notice order is rendered by any court in a case, and a
of Appeal and a motion for the inhibition by the party thereto, by fraud, accident, mistake, or
MTC, which was granted. The case was excusable negligence, has been prevented
assigned to a new MTC judge, who was tasked from taking an appeal, he may file a petition
to rule on the Notice of Appeal. The MTC ruled [for relief from denial of appeal] in such court
that it had been filed beyond the reglementary and in the same case praying that the appeal
period. Again, the MTC reiterated its initial be given due course."36 Such petition should be
judgment in favor of Malinias since the fatally filed within sixty (60) days after the petitioner
defective MR did not toll the reglementary learns of the judgment or final order, and not
period for appeal. more than six (6) months after such judgment
The RTC affirmed the judgment of the or final order was entered. The facts of this
MTC and held the decision final and executory. case indicate that petitioner could have timely
resorted to this remedy.
ISSUE: Whether the Notice of Hearing filed was
defective Exceptions
YES. The most crucial failure on the Motions which may be granted ex parte
part of petitioner was to file a Motion for An ex parte motion does not require that
Reconsideration of the MTC Judgment which parties be hard. An example is a motion to set
contained a defective Notice of Hearing, failing the case for pre-trial.
as it did to set a date for hearing. Under
Sections 5 and 6 of Rule 15, the notice of NOTE: A motion to dismiss, a motion for
hearing shall be addressed to the parties judgment on the pleadings, and a summary
concerned and shall specify the time and date judgment are litigated motions.
of the hearing of the motion; no motion shall
be acted upon by the court without proof of Where adverse party had opportunity to
service of the notice thereof, except when the oppose
court is satisfied that the rights of the adverse
party are not affected. Unless the movant sets LANTO v. DIMAPORO
the time and place of hearing, the court will be (16 SCRA 599, 1966)
unable to determine whether the adverse
party agrees or objects to the motion, and if he Existence of a cause of action or lack of it
objects, to hear him on his objection, since the is determined by a reference to the facts
rules themselves do not fix any period within averred in the challenged pleading. The
which he may file his reply or opposition. question raised in the motion is purely one
Not only did the defect render the of law. In this posture, oral arguments on
motion for reconsideration itself unworthy of the motion are reduced to an unnecessary
consideration, it more crucially failed to toll the ceremony and should be overlooked.
period to appeal. A motion without a notice of
hearing is pro forma, a mere scrap of paper FACTS: Resolution No. 7, adopted by the
that does not toll the period to appeal, and Provincial Board of Lanao del Norte, reverted a
upon the expiration of the 15-day period, the previous salary appropriation for the position
questioned order or decision becomes final of Assistant Provincial Assessor to the general
and executory. fund. In effect, that position then held by
That did not mean that petitioner was petitioner was then abolished. He sought relief
left bereft of further remedies under our Rules. to various government officials, including the
For one, petitioner could have assailed the President but was disappointed. He then went
MTC’s denial of the Motion for Reconsideration to the court seeking mandamus praying for
through a special civil action for certiorari annulment of the resolution, payment of
under Rule 65 alleging grave abuse of backwages, restatement of salary
discretion amounting to lack of jurisdiction on appropriations as well as reinstatement.
the part of the MTC in denying the motion. If Respondents moved to dismiss stating
that remedy were successful, the effect would lack of cause of action. Petitioner’s counsel
have been to void the MTC’s denial of the moved to postpone the hearing, but failed to
Motion for Reconsideration, thus allowing appear. The court below granted such motion
petitioner to again pursue such motion as a and dismissed said petition. Hence this appeal.
means towards the filing of a timely appeal.
Another remedy for the petitioner is ISSUE: Whether the dismissal order issued
found under Rule 38, which governs petitions without any hearing on the motion to dismiss
for relief from judgment. Indeed, Section 2, is void
Rule 38 finds specific application in this case, NO. Petitioner was given the chance to
as it provides that "[w]hen a judgment or final adduce his case, yet it is because of his

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER79

constant absences that he was unable to following were declared by RTC in default: the
present his arguments. One good reason for Singkong Trading Co., Commissioner Mison,
the statutory requirement of hearing on a M/V Star Ace and Omega. Duraproof filed an
motion is to enable the suitors to adduce ex parte Motion to present evidence against
evidence to support their claims. But here the the defaulting respondents, which was
Motion to Dismiss is grounded on the lack of granted.
cause of action. Existence of a cause of action Duraproof alleged that Vlason
or lack of it is determined by a reference to the Enterprises, through constant intimidation and
facts averred in the challenged pleading. The harassment in utilizing the PPA Management of
question raised in the motion is purely one of La Union, caused Duraproof to incur heavy
law. In this posture, oral arguments on the overhead expenses, causing irreparable
motion are reduced to an unnecessary damages of about P3 Million worth of ship
ceremony and should be overlooked. The tackles, rigs, and appurtenances including
hearing for the Motion to Dismiss was set, yet radar antennas and apparatuses, which were
the petitioner failed to appear (only his counsel taken surreptitiously by persons working for
showed up). Moreover, without any clear Vlason Enterprises or its agents.
showing to the contrary, there is a The RTC ruled that in favor of
presumption of regularity within the actions of Duraproof and ordered Vlason to pay P3 Million
the court with regard to entertaining motions. worth of damages. Duraproof and the other
In the case at bar, petitioner failed to show companies entered into a compromise
irregularity within the courts. agreement, except Vlason. Duraproof moved
for the execution of judgment. The Motion was
VLASON ENTERPRISES CORP v. CA granted and a Writ of Execution was issued.
(330 SCRA 26, 1999) Vlason Enterprises filed a Motion for
Reconsideration addressed to Duraproof’s
(1) Where the counsel failed object on the counsel, Atty. Concepcion, on the ground that
ground of lack of notice to a Motion it was allegedly not impleaded as a defendant,
addressed to a former counsel, and was served summons or declared in default, and
granted by the trial court 30 days to file his hence Duraproof may not present evidence
opposition to it, the circumstances clearly against it in default. Duraproof opposed the
justify a departure from the literal Motion, arguing that it was a mere scrap of
application of the notice of hearing rule. paper due to its defective notice of hearing.
RTC reversed its Decision, finding that
(2) The issuance of an order of default is a there never was issued an order of default
condition sine qua non in order that a against Vlason Enterprises, so there could not
judgment by default be clothed with have been any valid default-judgment
validity. rendered against it.
Furthermore, it is a legal The CA ruled that there was no need to
impossibility to declare a party-defendant serve summons anew on Vlason Enterprises,
to be in default before it was validly served since it had been served summons when the
summons. second amended petition was filed; and that
Vlason Enterprisess Motion for Reconsideration
was defective and void, because it contained
FACTS: Duraproof sought to enforce its no notice of hearing addressed to the counsel
preferred salvors lien by filing with the RTC a of Duraproof in violation of Rule 16, Section 4
petition for certiorari, prohibition and of the Rules of Court.
mandamus assailing the actions of the
Customs Officers in forfeiting the vessel and ISSUE: Whether the motion for reconsideration
cargo owned by Omega, which Duraproof filed by Vlason was void for not containing a
contracted to repair. It impleaded PPA and Med notice of hearing to Duraproof’s counsel
Line Philippines, Inc. as respondents. NO. The Motion contained a notice of
Duraproof amended its petition to hearing sent to Atty. Concepcion who had
include the former District Collector, and other already died and had since been substituted
companies involved, including Vlason by Duraproof’s new counsel, Atty. Desierto.
Enterprises. In both Petitions, Duraproof failed Although Rule 15 of the Rules of Court requires
to allege anything pertaining to Vlason Vlason Enterprises to address and to serve on
Enterprises, or any prayer for relief against it. the counsel of Duraproof the notice of hearing
Summonses for the amended Petition of the Motion for Reconsideration, the case at
were served. Duraproof moved several times bar, however, is far from ideal. First, Vlason
to declare the respondents it impleaded in Enterprises was not validly summoned and it
default. Out of those respondents, only the did not participate in the trial of the case in the

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER80

lower court; thus, it was understandable that No written motion set for hearing shall be
Vlason Enterprises would not be familiar with acted upon by the court without proof of
the parties and their counsels. Second, Atty. service thereof. (Sec. 6, Rule 15)
Desierto entered his appearance only as
collaborating counsel, who is normally not Hearing of motion
entitled to notices even from this Court. Third, General rule: All motions shall be scheduled for
Duraproof made no manifestation on record hearing on Friday afternoons, or if Friday is a
that Atty. Concepcion was already dead. non-working day, in the afternoon of the next
Besides, it was Atty. Concepcion who signed working day
the Amended Petition, wherein Vlason
Enterprises was first impleaded as respondent Exception: Motions requiring immediate action.
and served a copy thereof. Naturally, Vlason (Sec. 7, Rule 15)
Enterprisess attention was focused on this
pleading, and it was within its rights to assume
that the signatory to such pleading was the
counsel for Duraproof. MOTION TO DISMISS (RULE 16)
The Court has consistently held that a
motion which does not meet the requirements Four general types of motion to dismiss
of Sections 4 and 5 of Rule 15 of the Rules of under the Rules
Court is considered a worthless piece of paper, (1) Motion to dismiss before answer
which the clerk of court has no right to receive (Rule 16)
and the trial court has no authority to act (2) Motion to dismiss by plaintiff (Rule
upon. However, there are exceptions to the 17)
strict application of this rule. These exceptions (3) Motion to dismiss on demurrer to
include: “(1) where a rigid application will evidence after plaintiff has rested
result in a manifest failure or miscarriage of his case (Rule 33)
justice; especially if a party successfully shows (4) Motion to dismiss appeal either in
that the alleged defect in the questioned final RTC (Sec. 31, Rule 41), CA (Sec. 1,
and executory judgment is not apparent on its Rule 50) or SC (Sec. 5, Rule 56)
face or from the recitals contained therein.”
The present case falls under such exception Grounds
since Vlason Enterprises was not informed of A motion to dismiss may be made on any of
any cause of action or claim against it. All of a the following grounds:
sudden, the vessels which Vlason Enterprises (a) That the court has no jurisdiction over
used in its salvaging business were levied the person of the defending party;
upon and sold in execution to satisfy a (b) That the court has no jurisdiction over
supposed judgment against it. To allow this to the subject matter of the claim;
happen simply because of a lapse in fulfilling (c) That venue is improperly laid;
the notice requirement which, as already said, (d) That the plaintiff has no legal capacity
was satisfactorily explained would be a to sue;
manifest failure or miscarriage of justice. (e) That there is another action pending
Circumstances in the case at bar show between the same parties for the same
that Duraproof was not denied procedural due cause;
process, and that the very purpose of a notice (f) That the cause of action is barred by a
of hearing had been served. On the day of the prior judgment or by the statute of
hearing, Atty. Desierto did not object to the limitations;
said Motion for lack of notice to him; in fact, he (g) That the pleading asserting the claim
was furnished in open court with a copy of the states no cause of action;
motion and was granted by the trial court (h) That the claim or demand set forth in
thirty days to file his opposition to it. These the plaintiff’s pleading has been paid,
circumstances clearly justify a departure from waived, abandoned, or otherwise
the literal application of the notice of hearing extinguished;
rule. In other cases, after the trial court learns (i) That the claim on which the action is
that a motion lacks such notice, the prompt founded is unenforceable under the
resetting of the hearing with due notice to all provisions of the statute of frauds; and
the parties is held to have cured the defect.
(j) That a condition precedent for filing
the claim has not been complied with.

Proof of service
Lack of jurisdiction

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER81

BOTICANO v. CHU stages of the proceedings, in the case at bar,


(148 SCRA 541, 1987) defendant-appellant could have questioned the
jurisdiction of the lower court. But he did not.
Defect in service of summons cannot be Chu here had voluntarily submitted himself to
raised for the first time on appeal. Defects the court’s jurisdiction. Thus, jurisdiction was
in jurisdiction arising from irregularities in properly acquired by the trial court over the
the commencement of the proceedings, person of respondent thru both service of
defective process or even absence of summons and voluntary appearance in court;
process may be waived by a failure to he was properly declared in default for not
make seasonable objections. having filed any answer; despite respondent’s
failure to file a motion to set aside the
FACTS: While loaded with logs, and properly declaration of default, he has the right to
parked by its driver Maximo Dalangin at the appeal the default of judgment but in the
shoulder of the national highway in Nueva appeal only the evidence of the petitioner may
Ecija, Boticano’s Bedford truck was hit and be considered, respondent not having adduced
bumped at the rear by another Bedford truck any defense evidence.
owned by private respondent Chu, Jr. and
driven by Sigua, the former’s co-defendant in Res judicata
the case. Chu agreed to shoulder the
expenses of the repair of the damaged truck of DEL ROSARIO v. FEBTC
the latter, but he failed to pay the same. (537 SCRA 571, 2007)
Summons was issued but was returned
unserved because Sigua was no longer
Res judicata “bar by prior judgment,” as a
connected with San Pedro Saw Mill, while Chu
ground to dismiss the case has four
was properly served through the receipt by his
essential requisites:
wife of such summons.
a) finality of the former judgment;
Boticano moved to dismiss the case
b) the court which rendered it had
against Sigua and to declare Chu in default for
jurisdiction over the subject matter
failure to file responsive pleadings within the
and the parties;
reglementary period. The motion was granted
c) it must be a judgment on the
by the lower court allowing petitioner to
merits; and
adduce his evidence ex parte. The RTC found
d) there must be, between the first
Chu responsible for the fault of his driver.
and second actions, identity of
Chu filed a notice of appeal and a
parties, subject matter and causes
motion to extend to file his record on appeal.
of action.
Boticano motioned to dismiss the appeal,
which Chu’s counsel opposed. In the end,
Chu’s record on appeal was approved. The FACTS: PDCP extended a P4.4 million loan to
case was brought to the CA, which set aside DATICOR, which stipulated that DATICOR shall
the RTC and remanded the case to the court of pay: a service fee of 1% per annum (later
origin for summons to be properly served on increased 6% per annum) on the outstanding
Chu and for proceedings to be taken. On balance; 12% per annum interest; and penalty
appeal, Boticano questioned the CA’s ruling charges 2% per month in case of default. The
that jurisdiction over Chu’s person was not loans were secured by real estate mortgages
acquired. over six (6) parcels of land and chattel
mortgages over machinery and equipment.
ISSUE: Whether the question of jurisdiction DATICOR paid a total of P3 million to
over the person of the defendant can be raised PDCP, which the latter applied to interest,
for the first time on appeal service fees and penalty charges. This left
NO. However, one of the them with an outstanding balance of P10
circumstances considered by the Court as million, according to PDCP’s computation.
indicative of waiver by defendant-appellant of DATICOR filed a complaint against
any alleged defect if jurisdiction over his PDCP for violation of the Usury Law and
person arising from defective or even want of annulment of contract and damages. The CFI
process, is his failure to raise the question of dismissed the complaint. The IAC set aside the
jurisdiction in the CFI and at the first dismissal and declared void and of no effect
opportunity. Defects in jurisdiction arising the stipulation of interest in the loan
from irregularities in the commencement of agreement. PDCP appealed the IAC's decision
the proceedings, defective process or even to SC.
absence of process may be waived by a failure In the interim, PDCP assigned a portion
to make seasonable objections. During the of its receivables from DATICOR to FEBTC for

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CIVIL PROCEDURE REVIEWER82

of P5.4 M. FEBTC and DATICOR, in a MOA, denial of FEBTC’s motion for reconsideration
agreed to P6.4 million as full settlement of the and appeal. In fact, authorities tend to widen
receivables. rather than restrict the doctrine of res judicata
SC affirmed in toto the decision of the on the ground that public as well as private
IAC, nullifying the stipulation of interests. interest demands the ending of suits by
DATICOR thus filed a Complaint for requiring the parties to sue once and for all in
sum of money against PDCP and FEBTC to the same case all the special proceedings and
recover the excess payment which they remedies to which they are entitled.
computed to be P5.3 million. RTC ordered Section 47 of Rule 39 lays down two
PDCP to pay petitioners P4.035 million, to bear main rules. Section 49(b) enunciates the first
interest at 12% per annum until fully paid; to rule of res judicata known as “bar by prior
release or cancel the mortgages and to return judgment” or “estoppel by judgment,” which
the corresponding titles to petitioners; and to states that the judgment or decree of a court
pay the costs of the suit. of competent jurisdiction on the merits
RTC dismissed the complaint against concludes the parties and their privies to the
FEBTC for lack of cause of action since the litigation and constitutes a bar to a new action
MOA between petitioners and FEBTC was not or suit involving the same cause of action
subject to SC decision, FEBTC not being a party either before the same or any other tribunal.
thereto. Stated otherwise, “bar by former
Petitioners and PDCP appealed to the judgment” makes the judgment rendered in
CA, which held that petitioners' outstanding the first case an absolute bar to the
obligation (determined to be only P1.4 million) subsequent action since that judgment is
could not be increased or decreased by any act conclusive not only as to the matters offered
of the creditor PDCP, and held that when PDCP and received to sustain it but also as to any
assigned its receivables, the amount payable other matter which might have been offered
to it by DATICOR was the same amount for that purpose and which could have been
payable to assignee FEBTC, irrespective of any adjudged therein. It is in this concept that the
stipulation that PDCP and FEBTC might have term res judicata is more commonly and
provided in the Deed of Assignment, DATICOR generally used as a ground for a motion to
not having been a party thereto, hence, not dismiss in civil cases.
bound by its terms. The second rule of res judicata
By the principle of solutio indebiti, the embodied in Section 47(c), Rule 39 is
CA held that FEBTC was bound to refund “conclusiveness of judgment.” This rule
DATICOR the excess payment of P5 million it provides that any right, fact, or matter in issue
received; and that FEBTC could recover from directly adjudicated or necessarily involved in
PDCP the P4.035 million for the overpayment the determination of an action before a
for the assigned receivables. But since competent court in which a judgment or
DATICOR claimed in its complaint only decree is rendered on the merits is
of P965,000 from FEBTC, the latter was conclusively settled by the judgment therein
ordered to pay them only that amount. and cannot again be litigated between the
Petitioners filed before the RTC parties and their privies whether or not the
another Complaint against FEBTC to recover claim or demand, purpose, or subject matter of
the balance of the excess payment of P4.335 the two suits is the same. It refers to a
million. situation where the judgment in the prior
The trial court dismissed petitioners' action operates as an estoppel only as to the
complaint on the ground of res judicata and matters actually determined or which were
splitting of cause of action. It recalled that necessarily included therein.
petitioners had filed an action to recover the The case at bar satisfies the four
alleged overpayment both from PDCP and essential requisites of “bar by prior judgment,”
FEBTC and that the CA Decision, ordering PDCP viz:
to release and cancel the mortgages and a) finality of the former judgment;
FEBTC to pay P965,000 with interest became b) the court which rendered it had
final and executory. jurisdiction over the subject matter and
the parties;
ISSUE: Whether the action should be dismissed c) it must be a judgment on the merits;
on the ground of res judicata and
YES. There is no doubt that the d) there must be, between the first and
judgment on appeal relative to the first civil second actions, identity of parties,
case was a final judgment. Not only did it subject matter and causes of action.
dispose of the case on the merits, it also
became executory as a consequence of the

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER83

Failure to state a cause of action state a cause of action. This rule does not
apply to other grounds for dismissal. In such
HALIMAO v. VILLANUEVA cases, the hypothetical admission is limited to
(253 SCRA 1, 1996) the facts alleged in the complaint which relate
to and are necessary for the resolution of
The rule that a motion to dismiss is to be these grounds as preliminary matters involving
considered as a hypothetical admission of substantive or procedural laws, but not to the
the facts alleged in the complaint applies other facts of the case.
more particularly to cases in which the Two motions for reconsideration of this
ground for dismissal is the failure of the resolution were filed by the complainant
complaint to state a cause of action. therein, both of which were denied. While the
complainant (Danilo Hernandez) in
Administrative Case No. 3835 is different from
FACTS: Reynaldo Halimao wrote a letter to the the complainant in the present case, the fact is
Chief Justice, alleging that respondents, that they have an identity of interest, as the
without lawful authority and armed with Investigating Commissioner ruled. Both
armalites and handguns, forcibly entered the complainants were employed at the Oo Kian
Oo Kian Tiok Compound in Cainta, Rizal, of Tiok Compound at the time of the alleged
which complainant was caretaker. Complainant incident. Both complain of the same act
prayed that an investigation be conducted and allegedly committed by respondents. The
that respondents be disbarred. resolution of this Court in Administrative Case
Respondents Villanueva et. al. filed a No. 3835 is thus conclusive in this case, it
comment, claiming that the complaint is a appearing that the complaint in this case is
mere duplication of the complaint filed by nothing but a duplication of the complaint of
Danilo Hernandez in Administrative Case No. Danilo Hernandez in the prior case.
3835, which this Court had already dismissed
for lack of merit. They pointed out that both TAN v. CA
complaints arose from the same incident and (295 SCRA 247, 1998)
the same acts complained of and that Danilo
Hernandez, who filed the prior case, is the
same person whose affidavit is attached to the General rule: Averments in the complaint
complaint in this case. are deemed hypothetically admitted upon
Co-respondent Ferrer claimed that the filing of a Motion to Dismiss grounded on
two complaints were filed for the purpose of failure to state a cause of action
harassing him because he was the principal
lawyer of Atty. Daniel Villanueva in two cases Exceptions: Motion to Dismiss does not
before the SEC. admit the following:
This case was referred to the IBP, 1) Epithets of fraud
whose Board of Governors dismissed the case. 2) Allegations of legal conclusions
The Investigating Commissioner found that the 3) Erroneous statements of law
complaint is barred by the decision in 4) Inferences or conclusions from facts
Administrative Case No. 3835 which involved not stated
the same incident. The complaints in the two 5) Conclusions of law
cases were similarly worded. 6) Allegations of fact, falsity of which
Complainant filed a motion for is subject to judicial notice
reconsideration of the resolution of the IBP 7) Matters of evidence
Board of Governors, alleging that the 8) Surplusage and irrelevant matter
commissioner erroneously dismissed the 9) Scandalous or insulting matter
complaint since the respondents are deemed 10) Legally impossible facts
to have admitted the allegations of the 11) Unfounded facts by record
complaint against them by filing a motion to incorporated in pleading or
dismiss document

ISSUE: Whether the respondents General averments contradicted


hypothetically admitted petitioner’s allegations
by filing a motion to dismiss FACTS: Tan Keh sold two parcels of land to Tan
NO. The rule that a motion to dismiss Kiat, but failed to effect the immediate transfer
is to be considered as a hypothetical admission of the properties since Tan Kiat was still a
of the facts alleged in the complaint applies foreign national at the time of the sale.
more particularly to cases in which the ground Nevertheless Tan Keh secured the sale by
for dismissal is the failure of the complaint to

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER84

executing a lease contract of 40 years in favor Under Article 1403, the contracts concerned
of Tan Kiat. are simply "unenforceable" and the
Four years later, Tan Keh sold the requirement that they—or some note or
properties to his brother, Tan. Tan knowingly memorandum thereof — be in writing refers
held the property in trust for Tan Kiat until the only to the manner they are to be proved. It
latter acquires Filipino citizenship. The new goes without saying then, that the statute
TCTs were issued in the name of Tan as will apply only to executory rather than
trustee of Tan Kiat. Tank Keh and Tan executed contracts. Partial execution is
executed another lease contract to secure the even enough to bar the application of the
conveyance of the property to Tan Kiat. Tan statute.
Kiat never paid rental and no demand for
rentals was made on him.
Tan Died. Tan Kiat thereafter FACTS: Respondents Hua and Dy, owners of a
demanded for the conveyance of the property building constructed on a lot leased from Lucio
as he was finally a naturalized Filipino. San Andres and located in Bulacan, sold the
Petitioners failed to convey them. building to the petitioners for P170,000.00,
Tan Kiat filed a complaint for recovery with the assurance that respondents will also
of property. Petitioners moved for its dismissal assign to them the contract of lease over the
based, among others, on failure to state a land. The above agreement and promise were
cause of action. RTC dismissed complaint not reduced to writing.
acceding to all grounds set forth by the Private respondents undertook to
petitioners. CA reversed and ordered that case deliver the deed of conveyance over the
be remanded for further proceedings. building and the deed of assignment of the
contract of lease within sixty (60) days upon
ISSUE: Whether the complaint stated no cause the P20,000 downpayment. The balance was
of action to be paid in monthly installments. Petitioners
YES. Averments in the complaint are paid the downpayment and issued eight (8)
deemed hypothetically admitted upon filing of postdated checks for the payment of the eight
a Motion to Dismiss grounded on failure to (8) monthly installments.
state a cause of action. But there are also Petitioners constructed a weaving
limitations to such rule. factory on the leased lot. Unfortunately,
In the case at bar, the “trust theory” private respondents, despite extensions
claimed by Tan Kiat does not hold water. The granted, failed to comply with their
lease contract as evidenced by document undertaking to execute the deed of sale and to
attached with the Motion to Dismiss and assign the contract despite the fact that they
admitted by Tan Kiat already belies the latter’s were able to encash the checks in the total
claim of ownership. There is an apparent amount of P30,000. Worse, the lot owner made
lessor-lessee relationship. Ownership of Tan is it plain to petitioners that he was unwilling to
further supported by the annotated mortgage give consent to the assignment of the lease
on the back of the TCT which Tan executed in unless petitioners agreed to certain onerous
favor of a bank so as to secure a loan. In truth, terms, such as an increase in rental, or the
By the very nature of a mortgage contract, Tan purchase of the land at a very unconscionable
could not have mortgage the property if he price.
was not the real owner. Petitioners removed all their property,
Having failed to prove the trust machinery and equipment from the building,
relationship, it may be gleaned from the vacated the same and returned its possession
allegations that the transaction was a double to private respondents. They demanded from
sale instead. Since Tan had the TCT in his the latter the return of their partial payment
name, he is presumed to have the better right. for the purchase price of the building in the
total sum of P50,000, which respondents
Statute of Frauds refused to return. Petitioner filed a complaint
for recovery and of actual, moral and
ASIA PRODUCTION CO., INC. v. PANO exemplary damages and attorney's fees with
(205 SCRA 458, 1992) the CFI.
Hua was declared in default. Dy filed a
motion to dismiss the complaint on the ground
that the claim on which the action is based —
an alleged purchase of a building which is not
evidenced by any writing — cannot be proved
by parol evidence since Article 1356 in relation
to Article 1358 of the Civil Code requires that it

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER85

should be in writing. The RTC granted the FACTS: Sunville Timber Products (Sunville) was
motion to dismiss on the ground that the granted a Timber License Agreement (TLA),
complaint is barred by the Statute of Frauds. authorizing it to cut, remove and utilize timber
Their motion for reconsideration was denied within the concession area covering 29,500
for the reason that the oral contract in this hectares of forest land in Zamboanga del Sur,
case was not removed from the operation of for a period of 10 years.
the Statute of Frauds because there was no full The respondents filed a petition with
or complete performance by the petitioners of the DENR for the cancellation of the TLA and
the contract as required by Jurisprudence. with the RTC for injunction in a civil case, both
on the ground of serious violations of its
ISSUE: Whether petitioner’s action is barred by conditions and the provisions of forestry laws.
the Statute of Frauds Sunville moved to dismiss this case on
NO. Article 1403 of the Civil Code the ground that the plaintiffs had not yet
declares the following contracts, among exhausted administrative remedies, among
others, as unenforceable, unless they are others.
ratified: The purpose of the statute is to The motion to dismiss and the motion
prevent fraud and perjury in the enforcement for reconsideration were denied. The CA
of obligations depending for their evidence on sustained the RTC’s decision. CA held that the
the unassisted memory of witnesses by doctrine of exhaustion of administrative
requiring certain enumerated contracts and remedies was not without exception and
transactions to be evidenced by a writing pointed to the several instances approved by
signed by the party to be charged. It was not this Court where it could be dispensed with.
designed to further or perpetuate fraud. The applicable exception was the urgent need
Under Article 1403, the contracts for judicial intervention because City Council of
concerned are simply "unenforceable" and the Pagadian requested the Bureau of Forest
requirement that they—or some note or Development to reserve 1,000 hectares in
memorandum thereof — be in writing refers Lison Valley. This request remained unacted
only to the manner they are to be proved. It upon. Instead a TLA covering 29,500 hectares,
goes without saying then, that the statute will including the area requested, was given to
apply only to executory rather than executed petitioner Sunville. Due to the erosion caused
contracts. Partial execution is even enough to by Sunville’s logging operations heavy floods
bar the application of the statute. have occurred in areas adjoining the logging
The instant case is not for specific concessions. Thus, it is urgent that
performance of the agreement to sell the indiscriminate logging be stopped.
building and to assign the leasehold right, but Sunville contends that the doctrine of
to recover the partial payment for the agreed exhaustion of administrative remedies was not
purchase price of the building. By their motion correctly applied
to dismiss, private respondents theoretically or
hypothetically admitted the truth of the ISSUE: Whether the application of the doctrine
allegations of fact in the complaint. The action of exhaustion of administrative remedies is
is definitely not one for specific performance; correct
hence the Statute of Frauds does not apply. NO. The doctrine of exhaustion of
And even if it were for specific performance, administrative remedies calls for resort first to
partial execution thereof by petitioners the appropriate administrative authorities in
effectively bars the private respondents from the resolution of a controversy falling under
invoking it. their jurisdiction before the same may be
elevated to the courts of justice for review.
Condition precedent There is the explicit language of
pertinent laws vesting in the DENR the power
SUNVILLE TIMBER PRODUCTS, INC. v. and function "to regulate the development,
ABAD disposition, extraction, exploration and use of
(206 SCRA 482, 1992) the country's forests" and "to exercise
exclusive jurisdiction" in the "management and
The doctrine of exhaustion of disposition of all lands of the public domain,"
administrative remedies calls for resort first and in the Forest Management Bureau the
to the appropriate administrative responsibility for the enforcement of the
authorities in the resolution of a forestry laws aid regulations here claimed to
controversy falling under their jurisdiction have been violated. This comprehensive
before the same may be elevated to the conferment clearly implies at the very least
courts of justice for review. that the DENR should be allowed to rule in the
first instance on any controversy coming under

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER86

its express powers before the courts of justice


may intervene.
The charge involves factual issues
calling for the presentation of supporting
evidence. Such evidence is best evaluated first
by the administrative authorities, employing
their specialized knowledge of the agreement MUNICIPALITY OF BINAN v. CA
and the rules allegedly violated, before the (219 SCRA 69, 1993)
courts may step in to exercise their powers of
review.
Preliminary Hearing under Sec 5, Rule 16 is
Who files not mandatory even when the same is
How pleaded prayed for, It rests largely on the sound
Period discretion of the trial court.
A motion to dismiss may be filed within the A preliminary hearing on an
time for but before filing the answer to the affirmative defense for failure to state a
complaint or pleading asserting a claim. (Sec. cause of action is not necessary.
1, Rule 16)
FACTS: Petitioner Municipality of Binan filed for
unlawful detainer against private respondent
As affirmative defense
Garcia, stating that it was no longer amenable
If no motion to dismiss has been filed,
to the renewal of its 25-year lease contract
(1) any of the grounds for dismissal with private respondent over the premises
provided for in this Rule may be involved because of its pressing need to use
pleaded as an affirmative defense in the same for national and provincial offices.
the answer, and Garcia filed his answer to the
(2) a preliminary hearing may be had complaint saying that the contract of lease had
thereon as if a motion to dismiss had not yet expired and, assuming that it had
been filed, in the discretion of the expired, he has exercised his option to stay in
court, (Sec. 6, Rule 16) the premises for another 25 years as expressly
provided in the said contract.
-counterclaim which may be prosecuted Petitioner filed its reply. Subsequently
in same or separate action refers to private respondent filed a "Motion for
permissive counterclaim Preliminary Hearing as if a Motion to Dismiss
Has Been Filed" on the ground that the
Hearing and resolution complaint states no cause of action, reiterating
Hearing his previous argument.
At the hearing of the motion, the parties shall The MTC ordered private respondent to
submit vacate the premises. Private respondent filed a
(1) their arguments on the questions of "Manifestation/Motion" in the nature of a
law and motion to dismiss, praying that the same be
(2) their evidence on the questions of fact first resolved instead of rendering judgment on
the pleadings. Also, private respondent filed a
involved except those not available at
notice of appeal to the RTC.
that time.
Petitioner filed a motion for
discretionary execution, which was granted. A
NOTE: Should the case go to trial, the evidence
writ of execution was issued directing the
presented during the hearing shall
deputy sheriff to enforce the terms.
automatically be part of the evidence of the
Private respondent filed with the CA
party presenting the same. (Sec. 2, Rule 16)
an appeal on the ground that the lower court
failed to conduct a preliminary hearing as
Resolution of motion
prayed by his previous motion. CA granted
After the hearing, the court may
private respondent’s appeal
(1) dismiss the action or claim,
(2) deny the motion, or
ISSUE: Whether or not a preliminary hearing
(3) order the amendment of the pleading.
for a Motion to Dismiss is mandatory
The court shall not defer the resolution of the
NO. It cannot be said that the lower
motion for the reason that the ground relied
court committed a grave abuse of discretion or
upon is not indubitable.
exceeded its jurisdiction when it failed to
In every case, the resolution shall state
conduct a preliminary hearing, as prayed for in
clearly and distinctly the reasons therefor.
private respondent's "Motion for Preliminary
(Sec. 3, Rule 6)
Hearing as if a Motion to Dismiss Has Been
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER87

Filed," before rendering judgment on the (3) That the claim on which the action is
merits of the case. The motion of private founded is unenforceable under the
respondent is anchored on the ground that the provisions of the statute of frauds; and
complaint states no cause of action since the
original term of 25 years stipulated in the NOTE: They are still subject to the right of
contract of lease had not yet expired and appeal
assuming that it had expired, private . (Sec. 5, Rule 16)
respondent had made known to petitioner his
exclusive option to renew it for another 25 -appealable; refiling barred if motion
years. based on Sec. 1 (f), (h), and (i)
Section 5, Rule 16 allows the grounds
for a motion to dismiss to be set up as On periods for pleading
affirmative defenses in the answer if no motion
to dismiss has been filed. However, contrary to If the motion is denied—
the claim of private respondent, the the movant shall file his answer within the
preliminary hearing permitted under the said balance of the period prescribed by Rule 11 to
provision is not mandatory even when the which he was entitled at the time of serving his
same is prayed for. It rests largely on the motion, BUT not less than five (5) days in any
discretion of the trial court. The use of the event, from his receipt of the notice of the
word "may" in said provision shows that such a denial.
hearing is not a matter of right demandable
from the trial court. Where the provision reads If the pleading is ordered to be amended—
"may," this word shows that it is not He shall file his answer within the period
mandatory but discretional. It is an auxiliary prescribed by Rule 11 counted from service of
verb indicating liberty, opportunity, permission the amended pleading, unless the court
and possibility. provides a longer period. (Sec. 4, Rule 16)
Moreover, a preliminary hearing on an
affirmative defense for failure to state a cause On other grounds and omnibus motion
of action is not necessary. It is a well-settled rule
rule that in a motion to dismiss based on the A motion attacking a pleading, order,
ground that the complaint fails to state a cause judgment, or proceeding shall include all
of action, the question submitted to the court objections then available, and all objections
for determination is the sufficiency of the not so included shall be deemed waived. (Sec.
allegations in the complaint itself. Whether 8, Rule 15)
those allegations are true or not is beside the
point, for their truth is hypothetically admitted Exceptions
by the motion. In other words, to determine The court shall dismiss the claim when it
sufficiency of the cause of action, only the appears from the pleadings or the evidence on
facts alleged in the complaint, and no other record that
should be considered. (1) the court has no jurisdiction over the
subject matter,
- preliminary hearing not mandatory (2) there is another action pending
between the same parties for the same
- preliminary hearing on an affirmative cause, or that
defense or failure to state a cause of (3) the action is barred by a prior
action not necessary judgment or
(4) barred by the statute of limitations.
Effects (Sec. 1, Rule 9)

Of dismissal Remedies
An order granting a motion to dismiss based If motion granted – appeal or refile
on the following shall bar the refiling of the complaint
same action or claim:
(1) That the cause of action is barred by a If motion denied – file answer, unless
prior judgment or by the statute of without jurisdiction, in which case, Rule
limitations; 65 petition
(2) That the claim or demand set forth in
the plaintiff’s pleading has been paid, NPC v. CA
waived, abandoned, or otherwise (185 SCRA 169, 1990)
extinguished;

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CIVIL PROCEDURE REVIEWER88

As a general rule, whenever a motion is leaving no root or branch to bear the seeds of
denied, the petitioner should file an answer, future litigation.
go to trial and if the decision is adverse,
reiterate the issue on appeal. However, if
the court who denies the motion acts DISMISSAL OF ACTIONS (RULE 17)
without or in excess of jurisdiction or with
grave abuse of discretion the proper move Upon notice by plaintiff—before answer
is to proceed to a higher court for relief. A complaint may be dismissed by the plaintiff
(1) by filing a notice of dismissal

FACTS: FINE Chemicals, a company engaged in


(2)at any time before service of the
answer or of a motion for summary
the manufacturing of plastics applied with the
judgment.
NPC for direct power connection. Meralco
assured that it had the capabilities to serve
Upon such notice being filed, the court shall
FINE but that to allow direct connections will
issue an order confirming the dismissal.
be detrimental to other consumers since they’ll
shoulder the additional subsidy burden.  The court does not have to approve
However, NPC went on with the plan the dismissal because it has no
anyway and provided its services with FINE. discretion on the matter.
Because of this, Meralco filed a petition for  Before an answer or motion for
Prohibition, Mandamus and Damages with summary judgment has been served
Preliminary Injunction with the RTC. FINE upon plaintiff, dismissal by the plaintiff
countered saying that Injuction would be moot is a matter of right.
since the service has already been  It occurs as of the filing of the notice,
consummated and the facilities have been not upon court’s confirmation.
installed and are functional. Meralco
amended its petition by incorporating an General rule: The dismissal made by filing a
application for a writ of preliminary mandatory notice of dismissal is without prejudice.
injunction. FINE moved to dismiss the
amended petition on the ground of Exceptions:
insufficiency of the allegations in the petition (1)The notice otherwise states; and
to plead a cause of action. The trial judge (2)When filed by a plaintiff who has once
allowed Meralco to adduce evidence over dismissed in a competent court an
FINE’s objection. FINE then filed a action based on or including the same
manifestation adopting its Motion to Dismiss claim, in which case the notice
but was denied. operates as an adjudication upon the
Undaunted, FINE proceeded directly to merits. (Sec. 1, Rule 17)
the CA and filed a petition for Certiorari,
Prohibition and Mandamus. CA dismissed.
Hence this petition.

ISSUE: Whether Meralco’s petition in the lower


court should be dismissed
YES. As a general rule, whenever a O.B. JOVENIR v. MACAMIR REALTY
motion is denied, the petitioner should file an (2006)
answer, go to trial and if the decision is
adverse, reiterate the issue on appeal.
The trial court has no discretion or option to
However, if the court who denies the motion
deny the motion, since dismissal by the
acts without or in excess of jurisdiction or with
plaintiff under Section 1, Rule 17 is
grave abuse of discretion the proper move is
guaranteed as a matter of right to the
to proceed to a higher court for relief. It would
plaintiffs. Even if the motion cites the most
be unfair to require the defendant to undergo
ridiculous of grounds for dismissal, the trial
the ordeal and expense of trial under such
court has no choice but to consider the
circumstances as the remedy of appeal would
complaint as dismissed, since the plaintiff
not be plain and adequate.
may opt for such dismissal as a matter of
More importantly, petitioner’s motion
right, regardless of ground.
to dismiss is based on the ground that the
complaint states no cause of action, so that
there is no need for a full blown trial. It is also FACTS: Macamir Realty and the Miranda
important to note that the courts will strive to Spouses (principal stockholders) filed a
settle the controversy in a single proceeding complaint against Jovenir Construction,

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CIVIL PROCEDURE REVIEWER89

seeking the annulment of the construction NO. Section 1, Rule 17 of the 1964
project entered into by private respondents Rules of Civil Procedure stated:
with Jovenir, as well as for damages. Jovenir n
allegedly misrepresented itself as a legitimate Dismissal by the plaintiff — An action
contractor. may be dismissed by the plaintiff
Madeja and Mangrobang, Jr., the without order of court by filing a
impleaded defendants, filed their respective notice of dismissal at any time
motions to dismiss. Madeja alleged that while before service of the answer or of
the spouses Miranda had initiated the a motion for summary judgment.
complaint on behalf of Macamir Realty, the Unless otherwise stated in the
real party-in-interest, they failed to attach any notice, the dismissal is without
Board Resolution authorizing them to file suit prejudice, except that a notice
on behalf of the corporation. Madeja, a operates as an adjudication upon the
member of the Board of Directors of Macamir merits when filed by a plaintiff who has
Realty, averred as a fact that said Board had once dismissed in a competent court
not authorized the spouses Miranda to initiate an action based on or including the
the complaint against Jovenir Realty. same claim. A class suit shall not be
Ten (10) days after the filing of the dismissed or compromised without the
complaint, private respondents filed a Motion approval of the court.
to Withdraw Complaint, alleging that during
the initial hearing on the prayer for preliminary Indubitably, the provision ordained the
injunction their counsel discovered a supposed dismissal of the complaint by the plaintiff as a
technical defect in the complaint that may be a matter of right at any time before service of
ground for the dismissal of this case. Thus, the answer. The plaintiff was accorded the
they prayed to be allowed to withdraw the right to dismiss the complaint without the
complaint without prejudice. Jovenir necessity of alleging in the notice of dismissal
Construction filed an opposition. any ground nor of making any reservation.
However, just one day earlier, private Evidently, respondents had the right to
respondents filed another complaint against dismiss their complaint by mere notice when
the same defendants save for Madeja, and Jovenir had not yet served their answer on
seeking the same reliefs as the first complaint. respondents. The Motion to Withdraw
This time, a Board Resolution authorizing the Complaint makes clear respondents’ "desire to
spouses to file the Complaint on behalf of withdraw the complaint without prejudice."
Macamir Realty was attached to the complaint. That respondents resorted to a motion to
This second complaint was also filed with the effect what they could have instead by mere
Makati RTC. The Verification and Certification notice may be indicative of a certain degree of
of Non-Forum Shopping in the second ignorance of procedural rules on the part of
complaint was accomplished by Rosauro respondents’ counsel. Yet such "error," if it
Miranda. could be called as such, should hardly be of
Eleven (11) days after the filing of the fatal consequence. Petitioners posit that the
Motion to Withdraw Complaint and seven (7) "remedy" of filing a notice of dismissal is not
days after the filing of the second Complaint, exclusive, respondents having the "option" of
the Makati RTC granted the Motion to securing the court’s approval to the dismissal.
Withdraw Complaint. The RTC noted an action On the contrary, the trial court has no
may be dismissed by the plaintiffs even discretion or option to deny the motion, since
without Order of the Court by filing a notice of dismissal by the plaintiff under Section 1, Rule
dismissal at anytime before the service of the 17 is guaranteed as a matter of right to the
answer under Rule 17, Section 1 of the Rules plaintiffs. Even if the motion cites the most
of Court, and accordingly considered the ridiculous of grounds for dismissal, the trial
complaint withdrawn without prejudice. court has no choice but to consider the
Jovenir filed a Motion to Dismiss the complaint as dismissed, since the plaintiff may
second complaint on the ground of forum- opt for such dismissal as a matter of right,
shopping. They pointed out that at the time of regardless of ground.
the filing of the second complaint, the first While the Motion to Withdraw
complaint was still pending. The Makati RTC Complaint is styled as a "motion" and contains
denied the Motion to Dismiss. This Order was a "prayer", these are innocuous errors and
affirmed by the CA superfluities that do not detract from its being
a notice of dismissal made under said Section
ISSUE: Whether the dismissal was improper 1 of Rule 17 and which ipso facto dismissed
since Macamir filed a Motion for Withdrawal the case. It is a hornbook rule that it is not the
instead of the required Notice of Dismissal

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER90

caption of a pleading but the allegations action. This dismissal shall have the effect of
thereat that determines its nature. an adjudication upon the merits, unless
Thus, the complaint could be properly otherwise declared by the court. (3a)
considered as having been dismissed or
withdrawn as of the filing of the Motion to CRUZ v. CA
Withdraw Complaint. Accordingly, when (2006)
respondents filed their new complaint relating
to the same cause of action on, the old Rule 17, Sec. 3 enumerates the instances
complaint was no longer pending. where the complaint may be dismissed
As noted at the onset, the 1997 Rules due to plaintiff's fault: (1) if he fails to
of Civil Procedure now requires that upon the appear on the date for the presentation of
filing of such notice, the court issue an order his evidence in chief; (2) if he fails to
confirming the dismissal. The new requirement prosecute his action for an unreasonable
is intended to qualify the right of a party to length of time; or (3) if he fails to comply
dismiss the action before the adverse party with the rules or any order of the court.
files an answer or asks for summary judgment. Once a case is dismissed for failure to
Still, there is no cause to apply the 1997 Rules prosecute, this has the effect of an
retroactively to this case. A plaintiff’s right to adjudication on the merits and is
cause the dismissal of his complaint under the understood to be with prejudice to the
1964 rules was unqualified. Procedural rules filing of another action unless otherwise
may not be given retroactive effect if vested provided in the order of dismissal. In
rights would be disturbed, or if their other words, unless there be a
application would not be feasible or would qualification in the order of dismissal that
work injustice. it is without prejudice, the dismissal

Upon motion of plaintiff—after answer FACTS: There are 4 cases involved in this
SEC. 2. Dismissal upon motion of plaintiff.— controversy.
Except as provided in the preceding section, a 1st case: Unlawful Detainer before the
complaint shall not be dismissed at the MTC of Gapan, Nueva Ecija, decided in 1998 in
plaintiff’s instance save upon approval of the favor of petitioner Cruz and Concepcion.
court and upon such terms and conditions as 2nd case: Quieting of Title before the
the court deems proper. If a counterclaim has RTC of Gapan, Nueva Ecija which was
been pleaded by a defendant prior to the dismissed for failure to prosecute as
service upon him of the plaintiff’s motion for evidenced by the RTC in 2000. (Civil Case
dismissal, the dismissal shall be limited to the 1600)
complaint. The dismissal shall be without 3rd case: Suit for Injunction filed before
prejudice to the right of the defendant to the RTC of Gapan City, which was dismissed
prosecute his counterclaim in a separate on ground of res judicata – because there
action unless within fifteen (15) days from was substantial identity of parties with the 2nd
notice of the motion he manifests his case.
preference to have his counterclaim resolved 4th case: Annulment of Title With
in the same action. Unless otherwise specified Damages filed with RTC of Gapan City, where
in the order, a dismissal under this paragraph petitioners interposed a Motion for Outright
shall be without prejudice. A class suit shall not Dismissal of Civil Case, where the court
be dismissed or compromised without the granted the Motion for Outright dismissal on g
approval of the court. (2a) reasoned that:ounds of res judicata and accion
pendente lite, after finding that – (1) the 3rd
Effect of counterclaim case involve the same parties, subject matter
and issue as that in the 1st case and 2nd case;
Due to fault of plaintiff (2) in all 3 cases, Mariano Bunag was included
SEC. 3. Dismissal due to fault of plaintiff.—If, as party-plaintiff and Ernestina Concepcion as
for no justifiable cause, the plaintiff fails to party-defendant; (3) the subject matter is a
appear on the date of the presentation of his 1,160 sq.m parcel of land in San Nicolas,
evidence in chief on the complaint, or to Gapan City;l (4) and the issue is who between
prosecute his action for an unreasonable the 2 parties has the lawful title over the
length of time, or to comply with these Rules same.
or any order of the court, the complaint may The court hereby sentenced guilty of indirect
be dismissed upon motion of the defendant or Contempt of Court by reason of non-disclosure
upon the court’s own motion, without prejudice of Cases 1 and 2 in the Certificate/Verification
to the right of the defendant to prosecute his of their complaint – as required by Section 5,
counterclaim in the same or in a separate Rule 7 of the ROC.

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CIVIL PROCEDURE REVIEWER91

The respondents filed a MFR which the trial. In fact, there was no pre-trial conference
Court granted by setting aside the order which and that after four years of court
granted the defendant’s Motion for the inactivity, the case was dismissed for
Outright Dismissal and the order citing the failure to prosecute.
plaintiffs and counsel guilty for contempt of The SC ruled that the argument raised
court. The court thereby ordered the by the respondents is UNTENABLE. Section 3
defendants to file their answer/responsive of Rule 17 of the ROC provides:
pleading within 15 days from receipt of the Section 3. Dismissal due to fault of
Court order. plaintiff. – If, for no justifiable cause,
Petitioners then appealed in the CA the plaintiff fails to appear on the date
and the CA dismissed the petition for lack of of the presentation of his evidence in
merit, reasoning that there is no identity of chief on the complaint, or to prosecute
parties between Case 1 and the instant case his action for an unreasonable length
for the simple reason that plaintiffs in the case of time, or to comply with these Rules
at bar were not parties in Case 1. Also, the or any order of the court, the
plaintiffs and their counsel can not be said to complaint may be dismissed upon
have violated the rule against forum shopping. motion of the defendant or upon the
Plaintiffs and their counsel did not file Case 1 court's own motion, without prejudice
and therefore they are not obligated to inform to the right of the defendant to
this Court that they have filed a similar action prosecute his counterclaim in the
involving the same issue with other court. same or in a separate action. This
In their comment, respondents Bunag dismissal shall have the effect of an
and Vda. de Bunag maintain that the CA did adjudication upon the merits, unless
not err when it held that there was no res otherwise declared by the court.
judicata in the case at bar. The rule enumerates the instances
Petitioners claim that res judicata where the complaint may be dismissed
applies in this case because all the elements due to plaintiff's fault: (1) if he fails to
thereof are present, which are - (1) there must appear on the date for the presentation of his
be a final judgment or order; (2) said judgment evidence in chief; (2) if he fails to prosecute his
or order must be on the merits; (3) the Court action for an unreasonable length of time; or
rendering the same must have jurisdiction on (3) if he fails to comply with the rules or any
the subject matter and the parties; and (4) order of the court. Once a case is dismissed
there must be between the two cases identity for failure to prosecute, this has the effect of
of parties, identity of subject matter, and an adjudication on the merits and is
identity of causes of action. understood to be with prejudice to the filing of
On the other hand, private respondents argue another action unless otherwise provided in
the contrary alleging that the 2nd and 4th the order of dismissal. In other words, unless
elements are lacking. there be a qualification in the order of
dismissal that it is without prejudice, the
ISSUE: Whether there was a proper dismissal dismissal should be regarded as an
of the Civil Case 1600 (a case prior to the case adjudication on the merits and is with
at bar) - which is a necessary element for res prejudice.
judicata to attach. In the case at bar, the order dismissing
YES. Under the rule of res judicata, Case 2 / Civil Case No. 1600 is based on the
also known as “bar by prior judgment,” a final failure of the plaintiffs as well as counsel to
judgment rendered by a Court having appear on several settings despite due notices,
jurisdiction of the subject matter and of the precisely for the reception of plaintiffs’
parties, is conclusive in a subsequent case evidence, upon motion of the defendant
between the same parties and their successor- through Atty. Mark Arcilla, this case is
in-interest, litigating for the same thing and dismissed for failure to prosecute.
under the same title and in the same capacity. It is clear from the afore-
On the 2nd element of res judicata – mentioned order that said case was
that (2) said judgment or order must be dismissed, upon petitioners’ motion, for
on the merits, the private respondents argue failure of private respondents and their
that the dismissal of CASE 2 (Quieting of Title) counsel to attend several scheduled
was not a dismissal on the merits. The hearings for the presentation of their
dismissal of this case, they claim, will not bar evidence. Since the order did not contain a
the filing of the instant case, Case 4 (for qualification whether same is with or without
Annulment of Title) because there was neither prejudice, following Section 3, it is deemed to
litigious consideration of the evidence nor any be with prejudice and shall have the effect of
stipulations submitted by the parties at the an adjudication on the merits. A ruling based

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CIVIL PROCEDURE REVIEWER92

on a motion to dismiss, without any trial on the was obvious that respondents had failed to
merits or formal presentation of evidence, can prosecute the case for an unreasonable length
still be a judgment on the merits. of time, in fact not having presented their
evidence yet. On that ground, the complaint
Effect on counterclaim was dismissed. At the same time, the RTC
allowed defendants "to present their evidence
PINGA v. SANTIAGO ex-parte."
(2006) Respondents filed a Motion for
Reconsideration. RTC granted respondents’
Under Section 3, Rule 17 of the 1997 Rules Motion for Reconsideration and dismissing the
of Civil Procedure, the dismissal of the counterclaim. Petitioner Pinga filed a Motion
complaint due to the fault of plaintiff does for Reconsideration, but the same was denied
not necessarily carry with it the dismissal of by the RTC. Respondents filed an Opposition to
the counterclaim, compulsory or otherwise. Defendants’ Urgent Motion for
In fact, the dismissal of the complaint is Reconsideration, wherein they argued that that
without prejudice to the right of defendants "compulsory counterclaims cannot be
to prosecute the counterclaim. adjudicated independently of plaintiff’s cause
of action," and "a conversu, the dismissal of
the complaint carries with it the dismissal of
FACTS: Petitioner Eduardo Pinga was named as the compulsory counterclaims."1
one of two defendants in a complaint for The matter was elevated to this Court directly
injunction filed in RTC Zamboanga del Sur, by by way of a Petition for Review under Rule 45
respondent Heirs of German Santiago, on a pure question of law
represented by Fernando Santiago. The
Complaint alleged in essence that petitioner ISSUE: Whether the dismissal of the complaint
Pinga and co-defendant Saavedra had been necessarily carries the dismissal of the
unlawfully entering the coco lands of the compulsory counterclaim
respondent, cutting wood and bamboos and NO. Under Section 3, Rule 17 of the
harvesting the fruits of the coconut trees 1997 Rules of Civil Procedure, the dismissal of
therein. the complaint due to the fault of plaintiff does
Respondents prayed that petitioner not necessarily carry with it the dismissal of
Pinga and Saavedra be enjoined from the counterclaim, compulsory or otherwise. In
committing "acts of depredation" on their fact, the dismissal of the complaint is without
properties, and ordered to pay damages. prejudice to the right of defendants to
In their Amended Answer with prosecute the counterclaim.
Counterclaim, petitioner and his co-defendant On a prefatory note, the RTC, in
disputed respondents’ ownership of the dismissing the counterclaim, did not expressly
properties in question, asserting that adopt respondents’ argument that the
petitioner’s father, Edmundo, from whom dismissal of their complaint extended as well
defendants derived their interest in the to the counterclaim. Instead, the RTC justified
properties, had been in possession thereof the dismissal of the counterclaim on the
since the 1930s. ground that "there is no opposition to
By July of 2005, the trial of the case [plaintiff’s] Motion for Reconsideration [seeking
had not yet been completed. Moreover, the dismissal of the counterclaim]." This
respondents, as plaintiffs, had failed to present explanation is hollow, considering that there is
their evidence. It appears that the RTC already no mandatory rule requiring that an opposition
ordered the dismissal of the complaint after be filed to a motion for reconsideration without
respondents’ counsel had sought the need for a court order to that effect; and, as
postponement of the hearing scheduled posited by petitioner, the "failure to file an
then. However, the order of dismissal was opposition to the Plaintiff’s Motion for
subsequently reconsidered by the RTC in an Reconsideration is definitely not one among
Order dated 9 June 2005, which took into the established grounds for dismissal [of the
account the assurance of respondents’ counsel counterclaim]." Still, the dismissal of the
that he would give priority to that case. counterclaim by the RTC betrays at very least
At the hearing, plaintiffs’ counsel on a tacit recognition of respondents’ argument
record failed to appear, sending in his stead a that the counterclaim did not survive the
representative who sought the postponement dismissal of the complaint. At most, the
of the hearing. Counsel for defendants (who dismissal of the counterclaim over the
include herein petitioner) opposed the move objection of the defendant (herein petitioner)
for postponement and moved instead for the on grounds other than the merits of the
dismissal of the case. The RTC noted that it counterclaim, despite the provisions under

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CIVIL PROCEDURE REVIEWER93

Rule 17 of the 1997 Rules of Civil Procedure, Dakila filed Ex-Parte Motions for
constitutes a debatable question of law, Issuance of Summons and for Leave of Court to
presently meriting justiciability through the Deputize Dakila’s General Manager (DGM) to
instant action. Serve Summons Outside of the Philippines.
The doctrine that the complaint RTC granted this motion. Thus, an Alias
may not be dismissed if the counterclaim Summons was issued by the RTC to PES. But
cannot be independently adjudicated is the said Alias Summons was served and
not available to, and was not intended for received by Perkin-Elmer Asia (PEA), a
the benefit of, a plaintiff who prevents or corporation allegedly unrelated to PES. PEIP
delays the prosecution of his own moved to dismiss the Complaint filed by
complaint. Otherwise, the trial of Dakila. PEA, on the other hand, sent letters to
counterclaims would be made to depend upon Dakila and RTC to inform them of the wrongful
the maneuvers of the plaintiff, and the rule service of summons.
would offer a premium to vexing or delaying Accordingly, Dakila filed an Ex-Parte
tactics to the prejudice of the Motion to Admit Amended Complaint, together
counterclaimants. It is in the same spirit that with the Amended Complaint claiming that (1)
we have ruled that a complaint may not be PEA had become a sole proprietorship owned
withdrawn over the opposition of the by the PES, (2) PES changed its name to PEA,
defendant where the counterclaim is one that (3) such changes did not avoid its due and
arises from, or is necessarily connected with, outstanding obligations to Dakila, and (4) the
the plaintiff’s action and cannot remain name of PES in the complaint should be
pending for independent adjudication. changed to PEA. RTC admitted the Amended
Accordingly, the RTC clearly erred Complaint.
when it ordered the dismissal of the Dakila filed another Motion for the
counterclaim, since Section 3, Rule 17 Issuance of Summons and for Leave of Court to
mandates that the dismissal of the complaint Deputize DGM to serve summons outside the
is without prejudice to the right of the Philippines. RTC granted the motion. RTC thus
defendant to prosecute the counterclaim in the issued summons and the DGM went to
same or separate action. If the RTC were to Singapore and served summons on PES.
dismiss the counterclaim, it should be on the Meanwhile, RTC denied the Motion to
merits of such counterclaim. Reversal of the Dismiss filed by PEIP, compelling the latter to
RTC is in order, and a remand is necessary for file its Answer to the Amended Complaint.
trial on the merits of the counterclaim. PES filed with the RTC a Special
Appearance and Motion to Dismiss the
PERKIN ELMER v. DAKILA TRADING Amended Complaint, which were denied. It
(2007) held that even though the Amended Complaint
is primarily for damages, it does relate to a
Extraterritorial service of summons applies property of PES, to which the latter has a claim
only where the action is in rem or quasi in interest, or an actual or contingent lien, which
rem, but not if an action is in personam. will make it fall under one of the requisites for
extraterritorial service. PES filed a Petition for
FACTS: Dakila Trading Corp (Dakila) entered Certiorari under Rule 65 with application for
into a Distribution Agreement with Perkin- temporary restraining order and/or preliminary
Elmer Singapore Pte. Ltd. (PES) which injunction before the CA. The CA affirmed the
appointed Dakila as sole distributor of its RTC Orders.
products in the Philippines. PES was obligated
to give Dakila a commission for the sale of its ISSUE: Whether summons were properly
products in the Philippines. Dakila was granted served under the 2nd or 4th instance of extra-
the right to purchase and sell the products of territorial service
PES. The agreement further stipulated that NO. Extraterritorial service of
Dakila shall order the products of PES, which it summons applies only where the action is in
shall sell in the Philippines, either from PES rem or quasi in rem, but not if an action is in
itself or from PEIP. personam. In the case at bar, there can never
However, PES unilaterally terminated be a valid extraterritorial service of summons
the Distribution Agreement, prompting Dakila upon it, because the case involving collection
to file before the RTC a Complaint for of a sum of money and damages is an action in
Collection of Sum of Money and Damages with personam, as it deals with the personal liability
Prayer for Issuance of a Writ of Attachment of PES by reason of the alleged unilateral
against PES and its affiliate, Perkin-Elmer termination of the Distribution Agreement. The
Instruments Philippines Corporation (PEIP). RTC objective sought in Dakila’s Complaint was to
denied respondent’s prayer. establish a claim against PES. Moreover, The

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CIVIL PROCEDURE REVIEWER94

action instituted by Dakila affects the parties Thus, being an action in personam,
alone, not the whole world. personal service of summons within the
Thus, being an action in personam, Philippines is necessary in order for the RTC to
personal service of summons within the validly acquire jurisdiction over the person of
Philippines is necessary in order for the RTC to PES, and this is not possible in the present
validly acquire jurisdiction over the person of case because the PES is a non-resident and is
PES, and this is not possible in the present not found within the Philippines. Dakila’s
case because the PES is a non-resident and is allegation in its Amended Complaint that PES
not found within the Philippines. Dakila’s had personal property within the Philippines in
allegation in its Amended Complaint that PES the form of shares of stock in PEIP did not
had personal property within the Philippines in make the case fall under any of the four
the form of shares of stock in PEIP did not instances mentioned in Section 15, Rule 14 of
make the case fall under any of the four the Rules of Court, as to convert the action in
instances mentioned in Section 15, Rule 14 of personam to an action in rem or quasi in rem
the Rules of Court, as to convert the action in and, subsequently, make the extraterritorial
personam to an action in rem or quasi in rem service of summons upon the petitioner valid.
and, subsequently, make the extraterritorial
service of summons upon the petitioner valid. Remedy of plaintiff
The 2nd instance for extra-territorial
service has no application in the case. The KO v. PNB
action for collection of a sum of money and (419 SCRA 298, 2006)
damages was purely based on the personal
liability of the PES. For the action to be one Considering that an order of dismissal for
falling under the 2nd instance, the main subject failure to prosecute has the effect of an
matter of the action must be the property itself adjudication on the merits, petitioners’
of the PES in the Philippines and in such counsel should have filed a notice of appeal
instance, judgment will be limited to the res. with the appellate court within the
However, the allegations made by the reglementary period. Instead of filing a
respondent that the petitioner has property petition under Rule 45 of the Rules of Court,
within the Philippines in support of its the proper recourse was an ordinary appeal
application for the issuance of a writ of with the Court of Appeals under Rule 41.
attachment was actually denied by the RTC.
Neither does the allegation that PES
had personal property within the Philippines in FACTS: This is a petition for review on
the form of shares of stock in PEIP convert the certiorari assailing the Order of the Regional
case from an action in personam to one quasi Trial Court of Laoag City.The case stemmed
in rem, so as to qualify said case under the 4th from an action filed by petitioners in the trial
instance of extra-territorial service. What is court for Annulment of Mortgage, Extra-judicial
required is not a mere allegation of the Foreclosure Sale, Annulment of Transfer
existence of personal property belonging to Certificate and Deed of Sale with a Prayer for
the non-resident defendant within the Preliminary Injunction and Restraining Order.
Philippines but that the non-resident The complaint alleged that the assailed
defendant’s personal property located within mortgage and the foreclosure proceedings
the Philippines must have been actually were null and void since the written consent of
attached. Evidently, PES’s personal property petitioners, as beneficiaries of the mortgaged
within the Philippines, in the form of shares of property, were not secured. Respondent bank
stock in PEIP, had not been attached; hence, denied the claim and alleged that in the
the case for collection of sum of money and execution of the mortgage, petitioners in fact
damages remains an action in personam. gave their consent.
In the case at bar, there can never be During the course of the
a valid extraterritorial service of summons proceedings, petitioners and their
upon it, because the case involving collection counsel failed to attend a scheduled trial.
of a sum of money and damages is an action in Upon motion of respondent bank, the
personam, as it deals with the personal liability complaint was dismissed. When the case was
of PES by reason of the alleged unilateral called, Atty. Lorenzo Castillo, counsel for the
termination of the Distribution Agreement. The plaintiffs did not appear despite proper notice.
objective sought in Dakila’s Complaint was to No plaintiff appeared. Atty. Eduardo Alcantara,
establish a claim against PES. Moreover, The counsel for defendant bank appeared.
action instituted by Dakila affects the parties Atty. Alcantara manifested that there were
alone, not the whole world. numerous occasions in the past when plaintiffs
and counsel did not attend. He pointed out

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER95

that there is an apparent lack of interest on mere expedience of invoking "substantial


the part of plaintiff to prosecute the action. He justice."
moved to dismiss the case on that legal Procedural law has its own
ground. rationale in the orderly administration of
Petitioners filed a motion for reconsideration justice, namely, to ensure the effective
claiming that they have been continuously enforcement of substantive rights by
pursuing negotiations with respondent bank to providing for a system that obviates
purchase back the property and have gained arbitrariness, caprice, despotism or
positive results. Respondent bank countered whimsicality in the settlement of
that from the time the complaint was filed, a disputes. The enforcement of procedural
period of three years had elapsed but rules is not antithetical to the
petitioners failed to prosecute their case, substantive rights of the litigants.
showing lack of interest in the early resolution The expeditious disposition of cases is as much
thereof. The trial court denied the motion for the duty of the plaintiff as the court. It must be
reconsideration. remembered that a defendant in a case
likewise has the right to the speedy disposition
ISSUE: Whether the petitioners, who failed to of the action filed against him7 considering that
attend a scheduled trial and dismissed by the any delay in the proceedings entail prolonged
court, may file a petition for review on anxiety and valuable time wasted.
certiorari under Rule 45 In the case at bar, three years have
NO. On the procedural aspect, we find since lapsed from the filing of the complaint on
that petitioners erred in filing a petition for May 3, 2002 and the order of dismissal on April
review on certiorari under Rule 45 of the Rules 27, 2005. Petitioners’ failure to prosecute their
of Court instead of filing an appeal with the case and proceed with the trial during the span
Court of Appeals. Section 3, Rule 17 of the of three years leads to no other conclusion
Rules of Court provides: than that petitioners have no interest in seeing
their case terminated at the earliest possible
SEC. 3. Dismissal due to fault of time; or that petitioners’ case is unmeritorious
plaintiff.—If, for no justifiable cause, from inception. Whichever the case may be,
the plaintiff fails to appear on the date the dismissal order of the trial court stand and
of the presentation of his evidence in is now immutable.
chief on the complaint, or to prosecute Petitioners cannot claim that they were
his action for an unreasonable length deprived of due process. True, the right to due
of time, or to comply with these Rules process safeguards the opportunity to be
or any order of the court, the heard and to submit any evidence one may
complaint may be dismissed upon the have in support of his claim or defense.
motion of the defendant or upon the Nonetheless, we have time and again held that
court’s own motion, without prejudice where the opportunity to be heard, either
to the right of the defendant to through verbal arguments or pleadings, is
prosecute his counterclaim in the same accorded, and the party can "present its side"
or in a separate action. This or defend its "interest in due course," there is
dismissal shall have the effect of no denial of due process. What the law
an adjudication upon the merits, proscribes is the lack of opportunity to be
unless otherwise declared by the heard. Petitioners had the opportunity to
court. present their case and claim the relief they
seek. But their inadvertence and lack of
Upon the order of dismissal, circumspect renders the trial court’s order
petitioners’ counsel filed a timely motion for dismissing their case final and executory.
reconsideration which was denied by the trial
court. Dismissal of counterclaim
The rule is clear. In order to perfect an SEC. 4. Dismissal of counterclaim, cross-claim,
appeal all that is required is a pro forma notice or third-party complaint.—The provisions of
of appeal. Perhaps due to failure to file a notice this Rule shall apply. to the dismissal of any
of appeal within the remaining two days of the counterclaim, cross-claim, or third-party
appeal period, petitioners’ counsel instead complaint. A voluntary dismissal by the
filed the instant petition. The rules of claimant by notice as in section 1 of this Rule,
procedure, however, do not exist for the shall be made before a responsive pleading or
convenience of the litigants. These rules are a motion for summary judgment is served or, if
established to provide order to and enhance there is none, before the introduction of
the efficiency of our judicial system. They are evidence at the trial or hearing. (4n)
not to be trifled with lightly or overlooked by

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER96

exists, and if there is no collusion, to intervene


DEFAULT (Rule 9, Sec. 3) for the State in order to see to it that the
evidence submitted is not fabricated. (Sec. 3,
Nature in general Rule 9)
A defending party shall be declared in default
when When may a defendant be declared in
(1) Ground: He fails to answer within the default?
time allowed therefor, the court shall, (1) Failure to file answer
(2) The claiming party files a motion to (2) Failure to furnish copy of answer
(3) Failure to appear at pre-trial
declare the defending party in default,
(4) Failure to comply with modes of
furnishing proof of failure to answer
discovery
(3) Said party gives notice of such motion
to the defending party,
When allowed

The court shall proceed to render judgment


Effect
granting the claimant such relief as his
pleading may warrant,
GAJUDO v. TRB
 unless the court in its discretion (2006)
requires the claimant to submit
evidence.
No incompatibility bet. Section 3, Rule 9 of
 Such reception of evidence may be
the 1997 Rules of Civil Procedure and the
delegated to the clerk of court. (1a,
rule on preponderance of evidence under
R18)
Section 1, Rule 133 of the Rules of Court

(a) Effect of order of default.—A party in


default shall be entitled to notice of FACTS: Ps filed a complaint before RTC of QC
subsequent proceedings but NOT to take part against R seeking for annulment of the extra-
in the trial. judicial foreclosure and auction sale made by
city sheriff of parcel of land covered by TCT
(b) Relief from order of default.—A party No. 16711 of the RD of QC the conventional
declared in default may at any time after redemption thereof, and prayed for damages
notice thereof and before judgment file a and the issuance of a writ of preliminary
motion under oath to set aside the order of injunction.
default upon proper showing that his failure to Complaint alleged that: P Chua
answer was due to fraud, accident, mistake or obtained a loan from R bank in the amount of
excusable negligence and that he has a P75k secured by a real estate mortgage over a
meritorious defense. In such case, the order of parcel of land, and owned in common by Ps.
default may be set aside on such terms and the loan was not paid, R commenced extra-
conditions as the judge may impose in the judicial foreclosure, property was sold in the
interest of justice. auction sale to R for the sum of P24.9k Such
sale was tainted with irregularity because, the
(c) Effect of partial default.—When a pleading bid price was shockingly or unconscionably,
asserting a claim states a common cause of low; that the other Ps (Gajudos) failed to
action against several defending parties, some redeem the property due to their lack of
of whom answer and the others fail to do so, knowledge of their right of redemption, and
the court shall try the case against all upon the want of sufficient education; that Chua offered
answers thus filed and render judgment upon to buy back, and R also agreed to sell back,
the evidence presented. the foreclosed property, on the understanding
(d) Extent of relief to be awarded.—A judgment that Chua would pay Rthe amount of P40k, the
rendered against a party in default shall not sum that the bank paid at the auction sale,
exceed the amount or be different in kind from plus interest; that Chua made an initial
that prayed for nor award unliquidated payment P4k,; that, in a sudden change of
damages. position, R wrote Chua asking that he could
repurchase the property, but based on the
(e) Where no defaults allowed.—If the current market value thereof; R wrote Chua
defending party in an action for annulment or requiring him to tender a new offer.
declaration of nullity of marriage or for legal R filed its answer with counterclaim,
separation fails to answer, the court shall order asserting that the foreclosure sale of the
the prosecuting attorney to investigate mortgaged property was done in accordance
whether or not a collusion between the parties with law; and that the bid price was neither

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER97

unconscionable, nor shockingly low; that Ps proceed to render judgment granting the
slept on their rights when they failed to claimant such relief as his pleading may
redeem the property within the one year warrant," subject to the court’s discretion on
statutory period. whether to require the presentation of
"Pre-trial having been concluded, the evidence ex parte. The same provision also
parties entered upon trial, a big conflagration sets down guidelines on the nature and extent
hit the City Hall of QC (amazing!) which of the relief that may be granted. In particular,
destroyedthe records of the case. After the the court’s judgment "shall not exceed the
records were reconstituted, the foreclosed amount or be different in kind from that
property was sold by R to the Ceroferr Realty prayed for nor award unliquidated damages."
Corporation, and that the notice of lis pendens parties must rely on the strength of
annotated on the certificate of title had already their own evidence, not upon the weakness of
been cancelled. P with leave of court, amended the defense offered by their opponent. This
their complaint, but the Trial Court dismissed principle holds true, especially when the latter
the case ‘without prejudice’ due to P’s failure has had no opportunity to present evidence
to pay additional filing fees. because of a default order.
P re-filed the complaint with the same A defaulted defendant is not actually
Court, impleading as additional defendants the thrown out of court. While in a sense it may be
Ceroferr Realty Corporation and additional said that by defaulting he leaves himself at the
cause of action, that new defendants conspired mercy of the court, the rules see to it that any
with R in canceling the notice of lis pendens. judgment against him must be in accordance
Summons was served on R,P filed a with law. The evidence to support the
motion to set case for pre-trial, which motion plaintiff’s cause is, of course, presented in his
was denied by the TC in its Order of on the absence, but the court is not supposed to
ground that R bank has not yet filed its admit that which is basically incompetent.
answer. P filed a motion to declare R in default, Although the defendant would not be in a
alleging that no answer has been filed despite position to object, elementary justice requires
the service of summons. TC declared the that only legal evidence should be considered
motion submitted for resolution upon against him. If the evidence presented should
submission by Ps of proof of service of the not be sufficient to justify a judgment for the
motion on R. Upon giving proof, R was plaintiff, the complaint must be dismissed. And
declared in default. P were allowed by the if an unfavorable judgment should be
Court allowed to present evidence ex parte. A justifiable, it cannot exceed in amount or be
partial decision was made. different in kind from what is prayed for in the
R filed a motion to set aside partial complaint.
decision by default and admit that their In sum, while petitioners were allowed
Answer with counterclaim: averred that the to present evidence ex parte under Section 3
erroneous filing of said answer was due to an of Rule 9, they were not excused from
honest mistake of the typist and inadvertence establishing their claims for damages by the
of its counsel.Motion was denied. required quantum of proof under Section 1 of
Respondent bank appealed the Partial Rule 133. Stated differently, any advantage
Decision to the CA which ruled in favor of R. they may have gained from the ex parte
presentation of evidence does not lower the
ISSUE: Whether CA erred in failing to apply the degree of proof required. Clearly then, there is
provisions of Section 3, Rule 9 of the 1997 no incompatibility between the two rules.
Rules of Civil Procedure and in applying
instead the rule on preponderance of evidence VLASON ENTERPRISES v. CA
under Section 1, Rule 133 of the Rules of (310 SCRA 26, 1999)
Court.
NO. The Petition has no merit.
Ps argue that the quantum of evidence
for judgments flowing from a default order
under Section 3 of Rule 9 is not the same as
that provided for in Section 1 of Rule 133.
Between the two rules, there is no
incompatibility that would preclude the
application of either one of them. To begin
with, Section 3 of Rule 9 governs the
procedure which the trial court is directed to
take when a defendant fails to file an answer.
According to this provision, the court "shall

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER98

(1) Where the counsel failed object on the The RTC ruled that in favor of
ground of lack of notice to a Motion Duraproof and ordered Vlason to pay P3 Million
addressed to a former counsel, and was worth of damages. Duraproof and the other
granted by the trial court 30 days to file his companies entered into a compromise
opposition to it, the circumstances clearly agreement, except Vlason.
justify a departure from the literal application Duraproof moved for the execution of
of the notice of hearing rule. judgment. The Motion was granted and a Writ
of Execution was issued.
(2) The issuance of an order of default is a Vlason Enterprises filed a Motion for
condition sine qua non in order that a Reconsideration addressed to Duraproof’s
judgment by default be clothed with validity. counsel, Atty. Concepcion, on the ground that
Furthermore, it is a legal impossibility it was allegedly not impleaded as a defendant,
to declare a party-defendant to be in default served summons or declared in default, and
before it was validly served summons. hence Duraproof may not present evidence
against it in default. Duraproof opposed the
Motion, arguing that it was a mere scrap of
FACTS: Seizure proceedings were held over the paper due to its defective notice of hearing.
cargo of Omega’s vessel, M/V Star Ace, while it Despite this Motion, the auction sale
was docked in the PPA compound at La Union. was conducted. The trial court ordered the
La Union was hit by 3 typhoons, which deputy sheriffs to cease and desist from
damaged the vessel. Because of this, Omega implementing the Writ of Execution and from
entered into a salvage agreement with levying on the personal property of the
Duraproof Services to secure and repair the defendants. The order was unheeded.
vessel for $1 million and fifty percent (50%) of Duraproof filed with the CA a Petition
the cargo after all expenses, cost and taxes. for Certiorari and Prohibition to nullify the
The District Collector of Customs lifted cease and desist orders of the trial court. CA
the warrant of seizure, but the Customs issued a TRO against the RTC order. Vlason
Commissioner declined to issue a clearance; received from a notice to pay Duraproof P3
instead, he forfeited the vessel and its cargo. million. Not having any knowledge of the CA
This prompted Duraproof to enforce its case to which it was not impleaded, Vlason
preferred salvors lien by filing with the RTC a filed with the RTC a Motion to Dismiss.
petition for certiorari, prohibition and The sheriff levied Vlason Enterprises’
mandamus assailing the actions of the properties, so the latter filed a special
Customs Officers, and impleading PPA and Med appearance before the CA, praying for the
Line Philippines, Inc. as respondents. lifting of the levy on its properties or,
Duraproof amended its petition to alternatively, for a temporary restraining order
include the former District Collector, and other against their auction until its Motion for
companies involved, including Vlason Reconsideration was resolved by the trial
Enterprises. In both Petitions, Duraproof failed court.
to allege anything pertaining to Vlason RTC reversed its Decision, finding that
Enterprises, or any prayer for relief against it. there never was issued an order of default
Summonses for the amended Petition against Vlason Enterprises, so there could not
were served. Duraproof moved several times have been any valid default-judgment
to declare the respondents it impleaded in rendered against it.
default. Out of those respondents, only the The CA allowed Duraproof to implead
following were declared by RTC in default: the Vlason in the CA case. Thereafter, the CA
Singkong Trading Co., Commissioner Mison, rendered the assailed Decision, stating that
M/V Star Ace and Omega. Duraproof filed an the decision of the RTC had become final and
ex parte Motion to present evidence against executory, never having been disputed or
the defaulting respondents, which was appealed to a higher court, and that the lower
granted. court may now take appropriate action on the
Duraproof alleged that Vlason urgent ex-parte motion for issuance of a writ of
Enterprises, through constant intimidation and execution. The CA clarified that there was no
harassment in utilizing the PPA Management of need to serve summons anew on Vlason
La Union, caused Duraproof to incur heavy Enterprises, since it had been served summons
overhead expenses, causing irreparable when the second amended petition was filed;
damages of about P3 Million worth of ship and that Vlason Enterprisess Motion for
tackles, rigs, and appurtenances including Reconsideration was defective and void,
radar antennas and apparatuses, which were because it contained no notice of hearing
taken surreptitiously by persons working for addressed to the counsel of Duraproof in
Vlason Enterprises or its agents.

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER99

violation of Rule 16, Section 4 of the Rules of FACTS: The Dizons filed a case for a sum of
Court. money against the Ramnanis’ failure to remit
Vlason Enterprises filed (1) a Motion for the value of jewelry that the latter received
Clarification, praying for a declaration that the from the former on a consignment basis.
trial court Decision against it was not valid; Josephine Ramnani submitted an
and (2) a partial Motion for Reconsideration, answer with counterclaim stating the fact that
seeking to set aside the assailed Decision it was the Dizons who owed them money.
insofar as the latter affected it. Pre-Trial was set but the Ramnanis did
The RTC issued a Writ of Possession by not show up hence they were declared in
virtue of which Duraproof took possession of default. The court later received the evidence
Vlason’s barge Lawin. of the Dizons ex parte due to the Ramnanis
Hence, this Petition. status of default. Lower court ruled in favor of
the Dizons.
ISSUE: Whether the RTC default judgment was Ramnanis stated a meritorious defense
binding on Vlason as an excuse to set aside their order of default.
NO. Vlason was never declared in They stated that the obligation was entered
default. The trial court denied Motion of into by Mrs Dizon without Mr. Dizon’s consent
Duraproof to declare all the defendants in ergo void. It was, however, denied.
default, but it never acted on the latters A Petition for Certiorari was filed with
subsequent Motion to declare Vlason the CA imputing error despite their meritorious
Enterprises likewise.The RTC declared in defense. Denied since the CA ruled that
default only Atty. Eddie Tamondong, as well as certiorari is a remedy only for errors of
the other defendants Hon. Salvador Mison, M/V jurisdiction, not errors in judgement.
Star Ace, Omega Sea Transport Co., Inc. of
Panama and Sinkong Trading Co., but despite ISSUE: Whether the order of default against
due notice to them, they failed to appear. Even the petitioners should be set aside
Duraproof cannot pinpoint which trial court NO. Remedies for a party held in
order held petitioner in default. default:
More important, the trial court 1.) Anytime after discovery thereof & before
admitted that it never declared petitioner in judgement: FAME +meritorious defense
default. There could not have been any valid 2.) If judgment already rendered upon
default-judgment rendered against it. The discovery but before it becomes final and
issuance of an order of default is a condition executory: motion for new trial.
sine qua non in order that a judgment by 3.) After it becomes final and executory:
default be clothed with validity. petition for relief under Section 2 of rule 8
Furthermore, it is a legal impossibility 4.) Appeal from judgment as contrary to the
to declare a party-defendant to be in default evidence or to the law.
before it was validly served summons. In the case at bar, the petitioner failed
to prove that they were unable to attend the
Order of default pre-trial hearing due to FAME.
When some answer and others default
Extent of relief to be awarded
Where not allowed Remedies from judgment by default
Before finally
Procedure after order of default Motion for reconsideration or new trial
-render judgment Appeal
-hearing ex parte
MARTINEZ v. REPUBLIC
Remedy from order of default (2006)
Motion to set aside
A defendant party declared in default
RAMNANI v. CA retains the right to appeal from the
(221 SCRA 582, 1993) judgment by default on the ground that
the plaintiff failed to prove the material
A satisfactory showing by the movant of allegations of the complaint, or that the
the existence of fraud, accident, mistake or decision is contrary to law, even without
excusable neglect is an indispensable need of the prior filing of a motion to set
requirement for the setting aside of a aside the order of default.
judgment of default or order of default.

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER100

FACTS: Jose R. Martinez filed a petition for the decision is contrary to law, even without need
registration in his name of three (3) parcels of of the prior filing of a motion to set aside the
land he allegedly purchased from his uncle. He order of default.
claimed continuous possession of the lots; that By 1997, the doctrinal rule concerning
the lots had remained unencumbered; and that the remedies of a party declared in default had
they became private property through evolved into a fairly comprehensive
prescription pursuant to Section 48(b) of CA restatement as offered in Lina v. Court of
No. 141. Appeals:
The OSG was furnished a copy of the a) The defendant in default may, at
petition. The trial court set the case for hearing any time after discovery thereof and
and directed the publication of the before judgment, file a motion, under
corresponding Notice of Hearing in the Official oath, to set aside the order of default
Gazette. The OSG, in behalf of the Republic of on the ground that his failure to
the Philippines, opposed the petition. answer was due to fraud, accident,
Despite the opposition filed by the mistake or excusable neglect, and that
OSG, the RTC issued an order of general he has meritorious defenses; (Sec 3,
default, even against the Republic of the Rule 18)
Philippines. This ensued when during the b) If the judgment has already been
hearing of even date, no party appeared rendered when the defendant
before the Court to oppose Martinez’s petition. discovered the default, but before the
RTC received Martinez’s oral and same has become final and executory,
documentary evidence and concluded that he may file a motion for new trial
Martinez and his predecessors-in-interest had under Section 1(a) of Rule 37;
been for over 100 years in possession c) If the defendant discovered the
characterized as continuous, open, public, and default after the judgment has become
in the concept of an owner. The RTC thus final and executory, he may file a
decreed the registration of the three (3) lots in petition for relief under Section 2 of
the name of Martinez. Rule 38; and
From this Decision, the OSG filed a d) He may also appeal from the
Notice of Appeal, which was approved by the judgment rendered against him as
RTC. However, after the records had been contrary to the evidence or to the law,
transmitted to the CA, the RTC received a even if no petition to set aside the
letter from the LRA stating that only two of the order of default has been presented by
lots sought to be registered were referred to in him. (Sec. 2, Rule 41)
the Notice of Hearing published in the Official The fourth remedy, that of appeal, is anchored
Gazette, and that the third lot was omitted due on Section 2, Rule 41 of the 1964 Rules. Yet
to the lack of an approved survey plan for that even after that provision’s deletion under the
property. LRA manifested that this lot should 1997 Rules, the Court did not hesitate to
not have been adjudicated to Martinez for lack expressly rely again on the Lina doctrine,
of jurisdiction. This letter was referred by the including the pronouncement that a defaulted
RTC to the Court of Appeals for appropriate defendant may appeal from the judgment
action. rendered against him.
The CA reversed the RTC and ordered Yet even if it were to assume the
the dismissal of the petition for registration. It doubtful proposition that this contested right of
found the evidence presented by Martinez as appeal finds no anchor in the 1997 Rules, the
insufficient to support the registration of the doctrine still exists, applying the principle of
subject lots. stare decisis. Jurisprudence applying the 1997
Martinez directly assailed the CA Rules has continued to acknowledge the Lina
decision before the SC, claiming that the OSG doctrine which embodies this right to appeal as
no longer had personality to oppose the among the remedies of a defendant, and no
petition, or appeal its allowance by the RTC, argument in this petition persuades the Court
following the order of general default. to rule otherwise.

ISSUE: Whether an order of general default NOTE: The RTC appears to have issued the
bars the Republic from interposing an appeal order of general default simply on the premise
from the trial court’s subsequent decision that no oppositor appeared before it on the
NO. We hold that a defendant party hearing. But it cannot be denied that the OSG
declared in default retains the right to appeal had already duly filed its Opposition to
from the judgment by default on the ground Martinez’s petition long before the said
that the plaintiff failed to prove the material hearing. It was improper to declare the
allegations of the complaint, or that the oppositor in default simply because he failed to

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER101

appear on the day set for the initial healing. counter that such non-service was due to
Strangely, the OSG did not challenge the petitioner's fault in not furnishing the trial
propriety of the default order. It would thus be court with its "forwarding address" after its
improper for the Court to make a counsel withdrew his appearance. This Court is
pronouncement on the validity of the default not in a position to settle this issue of fact — as
order since the same has not been put into indeed the Supreme Court does not decide
issue. such questions.
But it is not disputed that after receipt
of the decision, petitioner filed a motion for
After finality reconsideration. Thus, whatever defects — if
Petition for relief from judgment indeed there was any — may have been
Annulment of judgment committed by the trial court in failing to give
constructive notice of its erroneous default
Is certiorari a proper remedy? order was cured by petitioner's voluntary filing
of the said motion for reconsideration. Upon
JAO v. CA denial thereof, petitioner should have
(251 SCRA 391, 1995) appealed. But instead of doing that, it opted
for the wrong remedy of certior
The proper remedy of a party wrongly
declared in default is either to appeal from
the judgment by default or to file a petition INDIANA AEROSPACE UNIVERSITY v. CHED
for relief from judgment, and not certiorari. (356 SCRA 367, 2001)

FACTS: Due to the non-appearance of the


petitioner Jao & Company, Inc., during the The remedies available to a defendant
hearing on the merits, the Regional Trial Court VALIDLY declared in default are as follows:
of Manila, Branch 51 — upon motion of herein (1) a motion to set aside the order of
private respondent Top Service, Inc. — issued default under Section 3(b), Rule 9 of the
an order dated April 14, 1989 declaring said Rules of Court, if the default was discovered
petitioner in default and allowed evidence to before judgment could be rendered; (2) a
be presented ex-parte. The petitioner however motion for new trial under Section 1(a) of
filed an answer. On May 26, 1989, the trial Rule 37, if the default was discovered after
court rendered a decision ordering Jao to pay judgment but while appeal is still available;
Top Service the agreed rentals with 12% (3) a petition for relief under Rule 38, if
interest. A writ of preliminary injunction was judgment has become final and executory;
issued by the RTC. By virtue of such decision, and (4) an appeal from the judgment under
Top Service stated that Jao’s counsel had Section 1, Rule 41, even if no petition to set
withdrawn his appearance in the trial court and aside the order of default has been resorted
left no forwarding address. No notice of the to.
said order of default and the decision could be
given it. The former contends that the latter’s FACTS: In 1996, the Chairman of the Technical
remedy was timely appeal, which the latter Panel for Engineering, Architecture, and
failed to perfect. Maritime Education (TPRAM) of CHED, received
a letter from Douglas Macias –Chairman of the
ISSUE: Whether the decision of the trial court, Board of Aeronautical Engineering, PRC
promulgated on May 26, 1989, became final inquiring whether petitioner Indiana Aerospace
YES. Under ordinary University had already acquired university
circumstances, the proper remedy of a status in view of their representation in the
party wrongly declared in default is advertisement in the Manila Bulletin.
either to appeal from the judgment by After investigation, it was found that
default or to file a petition for relief from there was a violation committed by the IAU
judgment, and not certiorari. A default when it used the term “university” when it had
judgment is an adjudication on the merits and not yet complied with the basic requirement of
is, thus, appealable. Since appeal is the proper being a university as prescribed in CHED
remedy, the extraordinary writ of certiorari will Memoradum. Respondent CHED inquired from
not lie. the SEC as to the status of the registered
Petitioner contends that it could not be name of petitioner and it was affirmed that IAU
bound by the questioned Order of April 14, (registered as Indiana School of Aeronautics,
1989 declaring it in default and the Inc.) had not amended its Articles of
subsequent Decision of May 20, 1989 because Incorporation to change its name to a
it did not receive copies thereof. Respondents “university.” CHED ordered IAU to desist from

MENDEZ, IVAN VIKTOR (2D, ’13)


CIVIL PROCEDURE REVIEWER102

using the word “university.” IAU through its to set aside the order of default under Section
chairman and founder appealed to the Order of 3(b), Rule 9 of the Rules of Court, if the default
CHED averring that the school will encounter was discovered before judgment could be
difficulties and suffer damages if it will not be rendered; (2) a motion for new trial under
allowed to use the word “university” in its Section 1(a) of Rule 37, if the default was
school name. discovered after judgment but while appeal is
Prior to the court decision granting the still available; (3) a petition for relief under
Cease and Desist Order filed by CHED, Rule 38, if judgment has become final and
petitioner IAU filed Complaint for Damages executory; and (4) an appeal from the
before the Court. Respondent CHED then filed judgment under Section 1, Rule 41, even if no
a Special Appearance with Motion to Dismiss petition to set aside the order of default has
the Complaint for damages. Petitioner IAU filed been resorted to.
Opposition to the Motion to Dismiss. The TC These remedies, however, are
Judge denied respondent CHED’s motion to available only to a defendant who has been
dismiss and issued a writ of preliminary validly declared in default. Such defendant
injunction in favor of IAU. irreparably loses the right to participate in the
The TC Judge also directed CHED to file its trial. On the other hand, a defendant
Answer to the decision within 15 days from the improvidently declared in default may retain
receipt of the Court Order – which was August and exercise such right after the order of
15, 1998. On September 22, 1998, petitioner default and the subsequent judgment by
IAU filed Motion to Declare Respondent in default are annulled, and the case remanded
Default pursuant to Section 9, Section 3 of to the court of origin. The former is limited to
RROC. On the same day, respondent CHED the remedy set forth in section 2, paragraph 3
filed for Motion for Extension of Time to File its of Rule 41 of the pre 1997 Rules of Court, and
Answer until November 18, 1998, but CHED can therefore contest only the judgment by
submitted its Answer however on November default on the designated ground that it is
17, 1998. On November 11, petitioner IAU filed contrary to evidence or law. The latter,
its Opposition to the Motion for Extension of however, has the following options: to resort
Time to File respondent’s Answer. Trial Judge to this same remedy; to interpose a petition for
rendered its Decision and granted petitioner’s certiorari seeking the nullification of the order
motion to declare respondent CHED in Default. of default, even before the promulgation of a
Respondent CHED consequently filed judgment by default; or in the event that
with the CA a petition for certiorari arguing judgment has been rendered, to have such
that the RTC had committed grave abuse of order and judgment declared void.
discretion in declaring respondent CHED in In prohibiting appeals from
default despite its Filing of an Answer. interlocutory orders, the law does not
The CA ruled that respondent CHED intend to accord executory force to such
should NOT have been declared in default, writs, particularly when the effect would
because its answer had been filed long before be to cause irreparable damage. If in the
the RTC ruled upon petitioner’s Motion to course of trial, a judge proceeds without
declare respondent in default. Thus, or in excess of jurisdiction, this rule
respondent had not obstinately refused to file prohibiting an appeal does not leave the
an Answer; on the contrary, its failure to do so aggrieved party without any remedy. In a
on time was due to excusable negligence. (an case like this, a special civil action of
express exception to being declared in default certiorari is the plain, speedy and
under Rule 9, SecTion 3). adequate remedy. (as such as what CHED
Thus, IAU instituted case at bar to appeal the had done).
CA decision. Herein respondent CHED
controverts the judgment by default, not
ISSUE: Whether respondent CHED should be on the ground that it is unsubstantiated
declared in default despite its filing of an by evidence or that it is contrary to law,
answer, and whether its failure to file answer but on the ground that it is intrinsically
on time be excused on ground that it was due void for having been rendered pursuant
to excusable negligence to a patently invalid order of default.
NO. The SC agreed with respondent
CHED that certiorari was the only plain, speedy
and adequate remedy in the ordinary course of
law, because the default Order had
improvidently been issued.
The remedies available to a defendant
declared in default are as follows: (1) a motion

MENDEZ, IVAN VIKTOR (2D, ’13)