8/12/2019 Lecture Rule 7

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Rule 7

RULE 7

PARTS OF A PLEADING

- body of rules and principles in accordance the pleadingas formal allegation of parties are drafted. 41 amjur

Section 1. Caption. (header)

The caption sets forth the name of the court, the title ofthe action, and the docket number if assigned.

the caption:

1. name of court2. title of actionnames of the parties3. docket no.

Party:

The title of the action indicates the names of the

parties. They shall all be named in the original

complaint or petition (basta orig andun lahat); but in

subsequent pleadings, it shall be sufficient if the name

of the first party on each side be stated with anappropriate indication when there are other parties. (eg

etc., et al.alterius)

Their respective participation in the case shall be

indicated.

- include everyone only in the original pleading.- Class suit- enough, sufficiently numerous and are

representatives

if name of defendants unknown- Rule 3 sec

Rule 3 Sec. 14. Unknown identity or name of defendant.

Whenever the identity or name of a defendant isunknown, he may be sued as the unknown owner, heir,

devisee, or by such other designation as the case may

require; when his identity or true name is discovered,

the pleading must be amended accord

if defendant- common name- sec 15 Rule 3

Sec. 15. 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.

action against public officials in official capacity-

sufficient to designate their official position (eg Sec of

Labor, Exe Sec)

Sec. 2. The body.

The body of the pleading sets forth its designation, the

allegations of the party's claims or defenses, the relief

prayed for, and the date of the pleading.

3 things:

1. its designation- petition, answer, reply2. allegation of parties claims or defenses3. relief prayed for and date(a) Paragraphs. - The allegations in the body of a pleading

shall be divided into paragraphs so numbered as to be

readily identified, each of which shall contain a

statement of a single set of circumstances so far as thatcan be done with convenience. A paragraph may be

referred to by its number in all succeeding pleadings.

-one par must state only 1 idea as far as practicable-

right,obli, delict

(b) Headings. - When two or more causes of action are

joined, the statement of the first shall be prefaced by

the words "first cause of action," of the second by

"second cause of action," and so on for the others.

When one or more paragraphs in the answer are

addressed to one of several causes of action in the

complaint, they shall be prefaced by the words "answerto the first cause of action" or "answer to the second

cause of action" and so on; and when one or more

paragraphs of the answer are addressed to several

causes of action, they shall be prefaced by words to that

effect.

- allegations common to all causes of action

(c) Relief. - The pleading shall specify the relief sought,

but it may add a general prayer for such further or other

relief as may be deemed just or equitable.

- relief does not determine the nature of action but the

allegations in the complaint. However, it is sometimesaid in determining the nature of action

(d) Date. - Every pleading shall be dated.

Sec. 3. Signature and address.

Every pleading must be signed by the party or counsel

representing him, stating in either case his address

which should not be a post office box.

- kaya mo nilagay address mo, to be served to theprocesses of the court thus post office box not allowed

- every pleading must be signed.- why? below

Significance of attys signature

The signature of counsel constitutes a certificate by him

that he has read the pleading; that to the best of his

knowledge, information, and belief there is good

ground to support it; and that it is not interposed for

delay.

An unsigned pleading produces no legal effect (mere

scrap of paper).However, the court may, in its

discretion, allow such deficiency to be remedied if it

shall appear that the same was due to mere

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inadvertence and not intended for delay. Counsel who

deliberately files an unsigned pleading, or signs a

pleading in violation of this Rule, or alleges scandalous

or indecent matter therein, or fails to promptly report

to the court a change of his address, shall be subject to

appropriate disciplinary action.

Sec. 4. Verification.

is it necessary that verification is made? no, bec

Signature of counselsec 3

Except when otherwise specifically required by law or

rule, pleadings need not be under oath, verified or

accompanied by affidavit.

summary procedures- must all be verified, as provided

by law on summary procedures

- how verified?A pleading is verified by an affidavit that the affiant has

a) read the pleading and that the b)allegations therein

are true and correct of his personal knowledge and

c)based on authentic record.

A pleading required to be verified which contains a

verification based on "information and belief," or upon

"knowledge, information and belief," or lacks a proper

verification, shall be treated as an unsigned pleading.

why? when you say I have read the allegations

and they are true and correct based on info and belief?

bec it is considered hearsay- chismis

must be based on personal knowledge or based

on authentic record

what is the purpose? to ensure good faith in the

averment in the pleading- under oathperjury

absence- mere formal defect and will not dismiss the

case

Sec. 5. Certification against forum shopping.

The plaintiff or principal party shall certify under oath in

the complaint or other initiatory pleading asserting a

claim for relief, or in a sworn certification annexed

thereto and simultaneously filed therewith:

(a) that he has not heretofore commenced any action or

filed any claim involving the same issues in any court,

tribunal or quasi-judicial agency and, to the best of his

knowledge, no such other action or claim is pending

therein; (what shld you certify?)

(b) if there is such other pending action or claim, a

complete statement of the present status thereof; and

(c) if he should thereafter learn that the same or similar

action or claim has been filed or is pending, he shall

report that fact within five (5) days therefrom to the

court wherein his aforesaid complaint or initiatory

pleading has been filed.

when is cert against forum shopping reqd? only in

Initiatory Pleading- ung una, ung original

In an answer and reply- merely raising a defense

initiatory pleading:- you initiate a claim

1. complaint,2. cross claim,3. compulsory counter claim( sometimes yes or no, UST v

Surla)

4. 3rdparty complaintcomplaint.5. permissive counterclaim

how abt counterclaim?

SANTO TOMAS UNIVERSITY HOSPITAL, petitioner, vs.

CESAR ANTONIO Y. SURLA and EVANGELINE SURLA,

Issue: WON there shld be cert of forum shopping

P- bec of the negligence of D, their child fell.

- child incurred damages, pain- P- fright, fearmoral damages

Counterclaim: of D

1. not yet paid- hospital billscompulsoryarose

of tran of the subj matter of complaint- hospitalization-

certification of non-forum- it is an initiatory pleading,

cant be said that it was initiated by the plaintiff

2. suit is maliciousdestroyed reputation of hospitalcompulsory counterclaim

harassment, to destroy reputation of the hospital.

- no need for cert bec it was the plaintiff who initiated it (thus no longer initiatory)

- it is just an effect of the harassment suit- it is notinitiatory, bec the one who initiated is the complaint

itself w/c is alleged as harassment suit.

Vitug- technically the 2nd

is not initiatory, 1st

dapat

meron, wala kasi yan sa complaint- sagutin mo yan-

compulsory- arose out of the same tran- paghospital ng

bata

Gen Ruleeven compulsory claim must be answered

bec it is considered as a complaint of the defendant

except when the answer is just to complete what was

alleged in the orig complaint

Who shld verify?

1. plaintiff2. orig parties

exceptions: H and W- they exercise joint admin of the

comm. property

corp- not a real being- officers will sign, must be

supported of an AUTHORITY FR THE BOARD OF

DIRECTORS, get from the Corporate Secretary a Sec

Cert- certifying under oath that the resolution that

officer is authorized to represent, sign cert of non-

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forum shopping, power to enter into settlement,

compromise,etcpre-trial

substantial compliance- govt officer who signed

labor cases- recruiters solidarily liable w/ the principal.

The recruiter can certify, wala ung principal and jtly and

severally liable.

Chaves v SB- you can only file a counterclaim in the SAME CAPACITY

he sues

- if the plaintiff sued in a representative capacity, youcannot sue him in another capacity. Sue him in a

separate case if you think he sued just to harass you.

ACTIONS; FILING OF ORDINARY CIVIL ACTION FOR

DAMAGES AGAINST A LAWYER, PROPER FOR ALLEGED

HARASSMENT FALLING UNDER ARTICLE 32 OF THE CIVIL

CODE; IT DOES NOT CONSTITUTE A COMPULSORY

COUNTERCLAIM. The charges pressed by respondent

Enrile for damages under Article 32 of the Civil Code

arising from the filing of an alleged harassment suit withmalice and evident bad faith do not constitute a

compulsory counterclaim. To vindicate his rights, Senator

Enrile has to file a separate and distinct civil action for

damages against the Solicitor General. To allow a

counterclaim against a lawyer who files a complaint for

his clients, who is merely their representative in court

and not a plaintiff or complainant in the case would

lead to mischievous consequences. A lawyer owes his

client entire devotion to his genuine interest, warm zeal

in the maintenance and defense of his rights and the

exertion of his utmost learning and ability.A lawyer

cannot properly attend to his duties towards his client

if, in the same case, he is kept busy defending himself.

-Failure to comply with the foregoing requirements shall

not be curable by mere amendment of the complaint or

other initiatory pleading but shall be cause for the

dismissal of the case without prejudice, unless

otherwise provided, upon motion and after hearing.

The submission of a false certification or non-

compliance with any of the undertakings therein shall

constitute indirect contempt of court, without prejudice

to the corresponding administrative and criminal

actions. If the acts of the party or his counsel clearlyconstitute willful and deliberate forum shopping, the

same shall be ground for summary dismissal with

prejudice and shall constitute direct contempt, as well

as a cause for administrative sanctions.

HEIRS OF FABIO MASANGYA and JOSE ABAYON,

petitioners, vs. DIOSDADO MASANGYA,

- what we have in the rules is when the party dies, counselmust inform the court abt the death, court order rep

w/in 30 days

- if it is not done, is the judgment become final andexecutory by mere sending of notice?- no bec upon

death of the party, lawyer-cl rel is terminated.

- upon the death of the client the only authority of counseis to inform the court.

- the rules does not speak if it is the counsel who dies-the client shld inform the court, look for another lawyer

(w/o counsel- violation of right of counsel- no due

process)

Well-settled is the rule that a notice of judgment

rendered in the case served on counsel of record is, for

all legal purposes, notice to the client, the date of

receipt of which is considered the starting point from

which the period for appeal prescribed by law shall begin

to run. 7 And where counsel is already dead before

rendition of judgment, the court may order that notice

of decision be sent to the proper party, otherwise, a

final and executory judgment may be set aside for lack

of due process of law. 8 However, in the case at bar, it is

crystal clear that petitioners had all the opportunity to

file a motion for reconsideration in the Court of Appeals

or an appeal to this Court in view of having actually

received the notice of judgment of the Court of Appeals

but failed to do so.The subsequent entry of judgment on

October 21, 1987 of the December 9, 1986 decision was

valid. Their plea, therefore, that they were not accorded

the right to procedural due process cannot elicit either

approval or sympathy. The denial of their motion for the

recall of the writ of execution cannot be stigmatized as

contrary to law.

How do you substitute counsel?

when counsel wants to be relieved of his duties-

1. notice to the court that he is withdrawing provided w/consent of party- no longer by leave of court, mere

notice of withdrawal is sufficient.

2. if no consent- motion to withdraw-

***check provision of actionable doc****