remedial law} civil procedure} notes of rene callanta} made early part of 2000 (est)} 123 pages

8/13/2019 Remedial Law} Civil Procedure} Notes of Rene Callanta} Made Early Part of 2000 (Est)} 123 Pages

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CIVIL PROCEDURE

[LAGGUI REVIEWER]TRANSCRIBED GALLY NOTES WITH RENE NOTES

BY:RENE CALLANTA

RULE I

Q. When does an action deemed commenced?

A. An action is deemed commenced upon the filing of the complaint. This is the provision of the old rule. But thisold rule that an action is deemed commenced as of the date the complaint is filed has been amended to include aprovision which envisions a case when the action is already filed and is amended to include an additionaldefendant.

Example:The case was filed Dec.2, !!" by A against B only. #nder this rule, the action is

deemed commenced on Dec. 2, !!" in so far as only A and B are concerned. $n .Dec %,!!" A filed an amended complaint including now &.

Q. When is this action deemed commenced?A. 'nsofar as A and B are concerned, the action is deemed commenced on Dec. 2, !!". But insofar as it

concerns A and &, the action is deemed commenced on Dec. %, !!" (as to &).

*. Why do we distinguish the date of commencement of an action in this situation where the is an additionaldefendant?

A. Because we have the law on prescription.

At the time the case was filed on Dec. , !!", the action against B may not yet have prescribed. But whenthe complaint was amended on Dec. %, !!", the action of A against B and & may have already prescribed. Thatis why it is necessary to consider the situation li+e this when the action is being commenced with respect to anadditional defendant.

RENE NOTES:

1) An action is commenced by the filing of the complaint and the payment of the requisite docket fees within theprescriptive period, this notwithstanding that summons was served on the defendant after the prescriptive period.

2) An action can be commenced by filing the complaint by registered mail. It is the date of the mailing that is considered as

the date of filing, and not the date of the receipt thereof by the clerk of court.) !he amount of damages in the body of prayer of the pleading must enable the clerk of court to compute the docket fees

required.") !he court may allow the payment of the deficient docket fee within a reasonable period but not beyond the applicable

prescriptive period.

With respect to actions, we have retained the provisions of the old code. With respect to some subectmatter under the old rule, a party plaintiff can file only one complaint based on one single cause of action. -ecannot split its cause of action. And when he splits his cause of action, the subseuent actions maybe the subectof a motion to dismiss. This rule has been retained in the /ew 0ules in &ivil 1rocedure.

Example (3plitting of causes of action which have been retained)

/ote 3ame partiesA is a resident of 3ulu, B is of Batanes. There is a piece of land located in 3orsogon. The causes of action ofA against B are as follows

) sum of money involving 1244,444.442) reindivicacion over the lot valued at 154,444.44

Q. &an A file a complaint against B oining in one complaint the action for sum of money and the action forreinvidicacion (if it can, with what court and place)?A.

6et us vary the facts, the claim for money is 124,444.44. The value of the property is 1!,444.44

Q. &an A file only one complaint incorporating therein the sum of money of124,444.44 and reindivicacion of lot valued at 1!,444.44?

A. Sec. 5 Rule 2(rules on joinder of causes of action A party may in one pleading assert, in the alternatives or otherwise, as manycauses of action as he may have against an opposing party, subect to the followingconditions

a. the party joining the causes of action shall comply with the rules on joinder of parties;b. the joinder shall not include special civil action or actions governed by special rules;


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c. where the causes of action are between the same parties but pertain to different venue of jurisdictions,the joinder may be allowed in the RTC provided one of the cases of action falls within the jurisdiction ofsaid court and the venue lies herein; and

d. where the claims in all the causes of action are principally for recovery of money the aggregate amountclaimed shall be the test of jurisdiction.

The rule on oinder is as followsA party may oin two or more causes of action which he has in his favor in only one complaint. 3o if A has

4 causes of action against B, instead of A filing 4 separate action against B, he may be allowed to fileonly one complaint, and incorporating therein all the 4 causes of action.

Q. 3upposing his causes of action pertain to different venues or urisdiction where willA, the plaintiff, file his 4 causes of action embodied only one complaint?

A. The rule is, if these 4 causes of action pertain to different venues, the action maybe filed in the appropriate 0T& provided that the venue of the action lies therein.

'n the former e7ample, the first action was the sum of money involving 1244,444.44 only and the secondcause of action is reinvidicacion involving 154,444.44.

3ince A is not obliged to allege all causes of action in one complaint, he may elect to file two separateactions ) A vs. B for sum of money 2) A vs. B for reindivicacion.Q. 'f he were to file this action for sum of money only, in what court of what place

may A file the complaint?A. 8ou apply 0ule 9 venue

3ince this is a personal action for sum of money, the venue could be theresidence of plaintiff A, or the residence of the defendant B at the election of A.3o this case can be filed either in 3ulu or Batanes.

Q. 'n what court in 3ulu or in Batanes may this action of A be filed?A. &onsidering the amount which is only 1244,444.44, this is within the urisdiction of

:T&. 3o this case can be filed either in the :T& of 3ulu or in the :T& of Batanes.

Q. 'f A were to file an action for reindivicacion, over this lot located is 3orsogon, inwhat place should A file the case?

A. We apply again 0ule 9 ;enue and that would be 3orsogon.

Q. 'n what court in 3orsogon should the action be filed?A. &onsidering the value 154,444.44, this action should be filed only in 0T& of

3orsogon.

6et us assume however that A elected to file only one complaint involving these sum of money of1244,444.44 and this property involving 1544,444.44. The court that has the urisdiction over the sum of money of1244,444.44 is the :T&. The court that has the urisdiction over reindivicacion is the 0T& of 3orsogon.

Q. Where can these two actions be filed?A. $nly in the 0T& of 3orsogon. 't cannot be filed in 3ulu or Batanes. 't can be filed

only in 3orsogon.

6et us get the reverseamboanga. A loaned : to B, and the loan is evidenced bya promissory note which B signed. The promissory note matured without B paying the money notwithstanding. Ahas another cause of action against B and & for another : pesos, a promissory note was also e7ecuted andsigned by B and &. The promissory note also matured but they did not pay.

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Q. &an A file only one complaint against both B and & incorporating therein these twocauses of action? (The action against B for : pesos and another action against Band & for 1:)

A. /o, A cannot file only one complaint against B and &, otherwise, A will violate oneof the limitations (3ec. 5 (a)) provided for in oinder of &auses of Action under0ule 2 3ection 5.

'f A is permitted to do so, it will be a violation of the provision on 0ules on oinder of 1arties under 0ule %

3ec. @. & has nothing to do with the first promissory note e7ecuted by B. & has no interest on the first cause ofaction of A against B alone.

Example A has the following causes of action for recovery of money against B, all in the promissory notes thatmatured on

. an. 4, !! 1 24,444.44 2. an. 24, !! %4,444.44 %. an. %4, !! 94,444.44 9. =eb. 4, !! 54,444.44 5. =eb. 5, !! @4,444.44 @. =eb. 24, !! "4,444.44

12"4,444.44

A is a resident of 3ulu and B of Batanes. B did not pay on an. 4, B did not pay on each and everymaturity. But A waited for the maturity on this loan due on =eb. 24, !!. 3ince he was not paid on =eb. 24, !!,he now decided to file an action involving all these sum of money.

Q. 3hould he (A) decide to file a case on =eb. 25, !!, against B, in what courtshould the action be f iled?

A. 't should be filed in the 0T& of 3ulu or in Batanes.

Where all the causes of action are principally for money, the type of urisdiction is the totality of theamounts in all the cases. 'f you were A and you want to file only an action for the recovery of 124,444.44 you willfile this with the :T&. This is the same with respect to other causes of action. 'ndividually, they are triable by the:T&.

But if all these causes of action are oined in only one complaint, the totality or the language of the rule,Cthe aggregate, of the amount furnish the urisdictional test. 3o, since the amount is 12"4,444.44, this is anaction triable by the 0T&. 3o you file the action not in the :T& but in the 0T&.

RENE NOTES

1) In case the obligation is by installments, each installment constitute a cause of action #$%&'&(, if at the time of bringing of

the suit, several installments are already due, all must be included otherwise, others not included will be barred.

Before April , !, the urisdiction of the :T& was limited to 144,444.44 and the 0T&Es in the amountin e7cess of 144,444.44. 3o under the old rule, before April !, !!!, all claims (money claims) not e7ceeding144,444.44 was triable by the :T&. All claims e7ceeding 144,444.44 were triable by the 0T&. This is theprovinces.

#nder the old rules, where the claim was for the money and the parties thereto was the residents of :etro:anila, the urisdiction of the 0T&Es in :etro :anila was in e7cess of 1244,444.44.

Beginning, however April , !,the urisdiction of the :T& were e7panded as follows 'n areas outside:etro :anila, the urisdiction of the :T&Es e7tended up to 1244,444.44. But in :etro :anila, Beginning April !,!!!, the urisdiction of the :T&Es was 1944,444.44 3o, as of now the urisdiction of the :etro :anila :T&Es is1944,444.44. But in areas outside :etro :anila, the urisdiction of the :T&Es is up to 1244,444.44 only. This nowthe new rule which implemented 3ec. 5 of 0A "@!. 0A "@! e7panded the urisdiction of the :T&Es.

Q.state therule on permissive joinder of parties

A. Sec. ! Rule "All persons in whom or against whom any right to relief in respect to or arising out of the same

transactions is alleged to e"ist, whether jointly, severally, or in the alternative, may e"cept as otherwise providedin these Rules, join as plaintiffs or be joined as defendants in one complaint, where any #uestion of law or fact

common to all such plaintiffs or to all such defendants may arise in the action; but the court may ma$e suchorders as may be just to prevent any plaintiff or defendant from being embarrassed or put to e"pense inconnections with any proceedings in which he may have no interest.

The rule contemplates a situation where there are two or more persons in whom a right to relief e7ist or againstwhom a right to relief e7ist. These two or more persons can oin in one complaint or can be oined as defendantsin one complaint provided that there e7ist between them a uestion of law common to both of them. As the termsuggests, joinder is not mandatory. 't may be availed of by parties as plaintiffs if they want to. 'f they do not wantto oin as parties, they cannot be compelled.

Example:


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A, B and & are owners of adoining houses. F is a driver of a gasoline tan+er. Because of the manner Fdrove the tan+er, the driver struc+ a :eralco 1ost. As a result, the tan+er turned turtle (naging pagong angtan+er


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udgment.

Example:3o, if A, a tenant of B sues to recover his land from &.

Q. 's A the real party in interest?A. /o. -e is not, because whatever udgment that he may be rendered in this case will not at all affect the realowner. A is not a real party in interest.

3upposing A is claiming ownership of a lot and he sues &, the tenant of B, to recover the ownership of thelot.

Q. 's & the real party in interest?A. /o, because whatever udgment that may be rendered in favor of A cannot

bind the owner B. & is not the real party in interest.

Q. 's it enough that a party be a natural or udicial and a real party in interest to beentitled to sue or be sued?

A. /o. The party must li+ewise have the legal capacity to sue. :eaning, he has the representation that he claimsto have.

3o if the person does not have the capacity which he alleges he has, he cannot sue or he cannot be

sued.

These are therequirements for suing or being sued&. /atural person or udicial personH2. Intity authoriGed by law to sue and be suedH%. :ust be the real party in interestH and9. :ust have the capacity to sue or be sued.

Q. What are the classes of parties to a suit?A. We have the

. 'ndispensable 1artiesH2. /ecessary 1arties.

Q. What is the distinction between the two?A. 'n the case of an indispensable party, he must always be impleaded because

without his being impleaded as a party, whether a plaintiff or defendant, thesubect matter of the suit cannot be terminated. -e must always be there becausewithout him, whatever udgment rendered do not terminate the subect matter ofthe suit.

Example: (Indispensa$le #art%) Testator F was survived by three (%) children A, B and &. A sued B alone for a partition of alleging in fact thecourt declared A, B and & the owners of the estate and ordered the estate to be divided into three eual parts. 3o

A and B agreed on how the estate be divided. They agreed that the estate shall be divided into three eual partsas follows

A B &

Q. 's the udgment in the partition case binding on &?A. /o, it is not binding.

When A and B showed & the J% portion allotted to him, & said C' do not li+e that, ' li+e this part. C/o, thisis mine.

Q. What can & now do?A. & can file a case for the partition of the same estate as+ing that this be divided into

three (%) eual parts.

But A and B said, C't is pointless, there is already a declaration that this property be divided into % and itwas already divided into three (%). What else do you li+e?

Q. 's the reasoning of A and B correct?A. /o, it is not correct. 't is true that there was a division. But & does not li+e his

part.

Q. &an & be compelled to accept his part?A. /o, because he was not a party to the case. -e is not bound by the udgment.

Why? Because he has a right to be heard when A and B divided this property in themanner they want.

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As a coKowner he has the right to be heard on how the division should be made. 3ince, he was not heard,he can file a case.

This is what we meant when we say that Can indispensable party ought to be impleaded either as aplaintiff or defendant in order to terminate the subject of the case.'

3o, you see here, the first case did not terminate the uestion. 't is only when all the parties A, B and &have been impleaded in the case may it terminate.

3o, when an indispensable party is not impleaded, in violation of that order of the court, the complaintmay be dismissed.

Q. Who is the necessar% part%?A. A necessary party is one who ought to be impleaded in order to accord complete

relief to all the parties or in order that the claim respecting the subect matter ofthe case can be fully adudicated, nevertheless, his absence from the court as aplaintiff or a defendant does not prevent the case from being settled insofar as theparties thereto are concerned.

'f a case is filed and the necessary party is omitted, the case filed can beterminated. But only partially. But if this omitted party could have beenimpleaded, the subect matter of the case would be fully adudicated.

E&A'#LE: A is the creditor of B and & based in the promissory note signed by B and & for 1:. The liability of B and &are merely oint not solidary. A sued B only. -e did not sue & because at that time when the case was filed & wasno longer in the 1hilippines. -e for left abroad.

Q. &an this case between A and B be finally settled?A. 8es. Iven without &. But you will +now that the better udgment will be rendered in favor of A will cover onlythe part of B in the 1:. 3o the court will decide the case awarding A only 1544,444. The claim of A against &remain pending, so that where & is already within the urisdiction of the court, A can file a case against him torecover from him his share in the 1:.

& here is merely a necessary party because even without him, this claim of A against B can be settled.'n order, however, to settle the entire 1:, if & was with the urisdiction of the court at the time when the

complaint was filed, A should have filed a complaint against both B and &.

Q. What will be the effect of filing by A of his claim against B and & at the same time?A. -is claim of 1: will be entirely settled in only one procedure. Whereas, in

alternative form, the case will be settled insofar as the parties are concerned.That is why, when a party is a necessary party, but he is not impleaded, the reason why he is not

impleaded should be stated in the complaint.

Q. What for is the need to state why & was not impleaded?A. 3o that the court could determine whether the reason for the nonKinclusion of & is valid or not. 3hould the court find the reason why & was not impleaded to benefit the merit, the courtwill now order A to amend his complaint and implead &.

3hould A fail to comply in the order of the court.

Q. What is the effect of such nonKcompliance on the right of A to recover from theclaim filed?

A. 3uch failure on the part of A to comply operates as a waiver of his claim against &, so that should Aeventually file a case against &, & can file a motion to dismiss the complaint on the ground of Cwaiver ofthe claim of A against & on the failure of A to implead & in violation of the order of the court.

Rene Notes:

,- spouses *s p*!t$es

G.R.

spouses sued ointlyE/+ept$ons*

1) Abandons or fails to comply with marital obligations

2) 0pouse disposes eclusive property

) (egime of complete separation of property

2- +*ss su$t

Re'u$s$tes o( * +*ss0!ep!esent*t$&e su$t

1) subect matter of the controversy is one of the common or general interest to many persons2) persons affected are so numerous that it is impracticable to bring them all before the court) parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of the

concerned.

oncept of Alternati)e *efendants

Q. When may a party plaintiff sue defendants in the alternative?A. The rule is this


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A plaintiff may have the right but he is not certain or sure against whom that right should be asserted. -e+nows he has the right. There are two or more persons who may be liable to him in connection with his right. Buthe does not +now who of them is liable under this rule, he is entitled to sue all these persons in the alternative.Example

A bought a machine from #3. The carrier F brought this machine to the 1hils. for delivery to A. thismachine did not reach A. -e does not +now who has custody of this machine at the time it was lost. The fact is,there was supposed to be an arrastre operator who should have ta+en upon its being unloaded in the port of:anila. Was it lost while this machine was in the custody of the arrestre? -e does not +now, but he has the right

to recover the value of the machine. But who of them is responsible, he does not +now.

Q. What can A do?A. A can sue F and 8 (arrestre) at the same time. 'f it is not F who is liable, it must be 8. 'f 8 is not liable, it mustbe F.

This is the concept of alternative defendants.

Rene notes:

Un1no2n I%ent$t" o! N*me o( De(en%*nt

3 0ervice of summons is by publicationRe'u$s$tes*

1) there is a defendant

2) his identity or name is unknown) fictitious name may be used because of ignorance of defendant3s true name and such ignorance is alleged in the complaint

") identifying description may be used* sued as unknown owner, heir, devisee, or other designation/) amendment to a pleading when identity or true name is discovered) defendant is the defendant being sued, not a mere additional defendant

De*t4 o( * P*!t"

Dut" o( +ounse5 inform court within 4 days+ !he death of a client will require his substitution by his legal representative to be ordered by the court wherein the case is pending, oreven the appointment of an eecutor or administrator, but this time, by a court of probate urisdiction.

In the case of incapacity or incompetency of the party, this fact will merely entail the appointment of a guardian ad litem by thecourt trying the case upon being informed thereof by counsel of the parties, the parties themselves, or other reliable sources.

+ -o summons is required to be served on the substituted defendants. Instead, the order of substitution shall be served upon the parties

substituted in the action, otherwise, the court does not acquire urisdiction over the substitute party.

+ !he continuance of a proceeding when a party dies without a valid substitution amounted to lack of urisdiction and that the need of

substitution is base on the right of a party to due process. #$%&'&(, if there is no notice of death of party and the court has noknowledge thereof, the proceedings are not set aside.

+ If there is failure to notify the fact of death* the case may continue and the proceedings will be held valid, and udgment will bind thesuccessors in interest.

+ !he court cannot compel the lawyer to continue with the trial after the lawyer has notified the court of the death of his client. $therwise,

the entire proceeding is null and void the court would have no urisdiction over the estate, the heirs and the eecutors or administrators.

T!*ns(e! o( Inte!est

+ 0ubstitution of parties is not mandatory. 5nless the substitution by or the oinder of the transferee is required by the court, failure to do so

does not w arrant the dismissal of the case.

+ A transferee pendente lite is a proper and not an indispensable party.

Sec. 2+ Rule "

%hen the action is for recovery of money arising from contract, e"press or implied, and the defendantdies before entry of final judgment in the court in which the action was pending at the time of such death, it shallnot be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgmentobtained by the plaintiff therein shall be enforced in the manner especially provided in these rules for prosecutingclaims against the estate of the deceased person.

This is a situation where a contract involving money was entered into This contract gave rise to the filingof a complaint against the debtor. When the case is pending against the debtor, the debtor dies.

Q. What now will be the status of this case filed upon the death of the debtor, the case not having beendetermined with finality? &an it continue or must be dismissed?

A: ExampleA the creditor sued B to recover the loan, he e7tended. While this case was pending, B died.(nder the old rule, upon the death of B, this case will be dismissed. -ow could A protect his right over his

claim, if it was already dismissed in this case? -e can now file his claim as an ordinary creditor in the proceeding,(estate or intestate proceeding) for the settlement of estate of B. This rule presuppose that the estate of B is underadministration either in a testate proceeding or intestate proceeding. 3o under 0A @ A should file his claim in thisproceeding. 3o if there was a special proceeding under L31 %9 for the settlement of estate, then A must file hisclaim in this case.

Q. 's that so now?

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A. /o. The death of the debtor B does not e7tinguish the action. This will continue. $f course with propersubstitution of B by the administrator or e7ecutor if there is any. 'f there is none, by his heirs. This case willcontinue litigation until finality.

'n the event A wins the case and the udgment becomes final

Q. -ow will A enforce his right as adudged by the court?A. -e will file the case where the settlement of BEs estate is pending, his claim based on this udgment.

Q. &an the administrator or e7ecutor contest in that special proceeding this claim now of A?A. /o, because it has already been settled by final udgment in that civil case. This is the innovation under thenew rules.

RENE NOTES:

A+t$on on Cont!*+tu* 6one" C*$ms

Re'u$s$tes:

1) !he action must primarily be for recovery of money, debt, or interest thereon, and not where the money sought therein is merelyincidental thereto.

2) !he claim subect of the action, arose from a contract, epress or implied, entered into by the decedent in his lifetime or the

liability for which had been assumed by or is imputable to him.

+ If the defendant dies before entering a final udgment in the court where it was pending at that time, the action shall not be dismissed butshall be allowed to continue until entry of final udgment thereon.

+ $nce a final udgment is entered against the estate of the deceased it shall be enforced as a money claim without the need of proving the

same.

In%$7ent P*!t"

+ !he amount of docket and other lawful fees shall be a lien on any favorable udgment upon the indigent party.

Rule ,: -enue of Actions

The rules on venue are now simplified. Why? Because the rules in venue li+ewise involve inferior court

and under the 0T&. =or purposes of venue, actions may either be real or personal.

Q. What are the rules on venue involving real property?A. When a suit involves title to, possession of or interest in real property, the venue of the action lie in the propercourt of the place where the real or a part of the real property is located. This is true in cases involving title to,possession of or interest in, real property.

)n forcible entry cases, however, the venue of the action is the inferior court of the place where realproperty or part of the real property is located. (:T&)

Ta+e note that when it comes to the venue of the property suits involving title to, possession of or interestin, real property, the venue is the proper court of the place where the real property is located.

But when it comes to forcible entry, the court where the action must be filed is specified and that is theinferior court. 't does not say proper court.

Q. Why the difference in the case involving title to, possession of or interest in real property, venue is the propercourt?A. Because under the new law, even the inferior court have urisdiction cases depending on the value of theproperty.

Where the value of the property involved in the reindivicacion cases does not e7ceed 124,444.44, inareas outside *etro *anila, that action for reindivicacion is tried by the inferior (:T&) not the regional trial court.

Where the value of the property e7ceeds 124,444.44, the action for reindivicacion lands with the 0T&.)n *etro *anilawhere the action is for reindivicacion for instance, and the value of the property does not

e7ceed 154,444.44, the venue is the inferior court.

This is the reason why the law does not specify what particular court the case must filed when it involvestitle to, possession of or interest in real properties. But when it comes to forcible entry, the rule is specific, Conly on:T& of the place where the property or any part of the property is located.

In case of personal actions, the venue is the residence of the plaintiff or any of the principal plaintiffs or theresidence of the defendant or any of the residence of the principal defendants at the option of the plaintiff.+owever, where the defendant is a nonKresident, the venue may also be the place where he can be found.

'n this last case, the venue could not be the residence of the nonKresident defendant for a simple reason that,a nonKresident defendant does not reside in the 1hils. (as the term suggested, CnonKresident). That is why youcannot sue him in a place where he is not a resident, but he may be found in the 1hils. 3o, it is that place wherehe may be found, that may be one of the venue.

Example'f A file a complaint against B, for recovery of money and A is a resident of 3ulu and B is from Batanes.

Whether the case is tried by the inferior court or by 0T&, A can file action either in 3ulu or Batanes at his option.

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Q. But if B is not a resident of the 1hilippines, but came to the 1hilippines for a vacation and could be found inBulan, 3orsogon, where may A, who is a resident of 3ulu file the case?A. -e may file the case in 3ulu or in Bulan, 3orsogon.

%here real property is located partly in one place and partly in another, whether the action involves forcibleentry or detainer, or an action for reindivicacion its venue should be any of these places where property is located.

Example:A vs. B for forcible entry or reindivicacion, the property was located in :anila in part, &aloocan in part,*.&. in part. 3o A can file the case in :anila, &aloocan, in *.&.

ExampleA vs. B, an action for declaration of nullity of the marraige of A and B. B the husband is a nonKresident

defendant of the 1hilippines whose permanent address is #.3.A., on the other hand, the wife is a resident of:anila.

Q. What will be the venue of this action?A. :anila.

Example:The action between A and B involved let us say, the recovery of a lot which A claims as his but which B

claims is his. This lot is partly located in 1ampanga, Bataan or Batangas. While A is a resident of :anila. The

value of this property is 1!,!!!.!!.

Q. What court has urisdiction and a court of what place will be the venue?A. :T& of 1ampanga, or of Batanes or of Bataan.

ExampleA sued B, a nonKresident of the 1hilippines. But at the time the action was filed, B was found in TawiK

Tawi. A is a resident of Batanes. B is a permanent resident #.3.

Q. 'f this action is filed, what will be the venue?A. The venue is Batanes, or TawiKTawi at the election of the plaintiff.

%here the action involves title to, possession of or interest in real property, the action may be filed in theappropriate or proper court of the place where the property or part of the property is located, e7cept where the

action is one for forcible entry, in which case, the action may be filed in the :T& of the place where the propertyor part of the property is located.

)f the action is personal, the venue of the action may be the residence of the plaintiff or it there are two ormore plaintiffs, the residence of the plaintiff or the residence of the defendant or in case there are two or moredefendants, the residence of the principal defendant, at the option of the plaintiff.

%here the defendant is a nonresident defendant, but is found in the -hilippines, and the action is personal,the venue of the action may either be the residence of the plaintiff or the place where the defendant is found.

'n our e7ample, the action was one for money, against the defendant B who is a resident of #.3. But at thetime the action was filed, he was found in TawiKTawi, the action by A can be filed in Batanes, AEs residence or inTawiKTawi at the option of A.

Q. Where the subect matter of a case is real property, is the rule that the venue of the action involving it shouldbe the place where the property is located or where any part of the property is located absolute? 3o that in allcases, this rule must be followed?A. 't is not absolute.

Q. The action involves possession of, interest or in title to real property but the action is not forcible entry. :ustthe venue of this action be the place where the property is located or where any part thereof is located or maythere be a case where what is located or may there be a case where what is involved in a suit is a real propertyand yet the venue need not necessarily be the place where that property is found or where any part thereof isfound.

Example:A and B are litigating who has the better right to timber concession located in &otabato. A is a resident of

:anila and B of Batangas.The action by A against B was filed with the 3ecretary of DI/0. The 3ecretary awarded the right to the

timber land to A. B now contested the action of the 3ecretary in awarding the right to A. B sued as well as the3ecretary of DI/0.

This action was filed by B in his residence which is Batangas 0T&. The 3ecretary now files a motion todismiss on the ground that the venue is improperly laid. The venue should be &otabato.

'f you are the udge, what will your correct ruling on the motion to dismiss filed by the 3ecretary of DI/0?Issue:What is involved here is a motion to dismiss filed by the 3ecretary, he said Cany action contesting mydecision should be filed in the court of the place where the property is located. C3ince the property is located in&otabato, the venue should be &otabato, not the residence of B in Batangas.

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ExampleThe 1--& awarded the lot in *.&. to a resident of Bacolod &ity. After A paid so many installments on

their lot, the 1--& unilaterally cancelled this award and awarded the same lot to B. To annul that order of 1--&canceling the award to A, A now sued 1--& which has its office in *.&. and B, a resident of :anila in the 0T& ofBacolod &ity.

The prayer of A is for the cancellation of the resolution of 1--& canceling the prior award to A and

awarding the same lot to B.

1--& and B now file a motion to dismiss on the ground of improper venue. They contended that the propervenue of the action is *.&., the location of the property, not Bacolod &ity, the resident of plaintiff A. you are the

udge, what will be your correct resolution to the motion?

Example:A and B agreed in !!4 that any action between them involving this lot in TawiKTawi, be filed in Batanes.

A being a resident of :anila and B of Bulan, 3orsogon. The agreement was oral.=or a violation of =orcible Intry, A now sued B in Batanes although, we say, that the lot is in TawiKTawi. B

now filed a motion to dismiss, on the ground of improper venue. -e said that the action should be filed in theinferior court of TawiKTawi, not in Batanes.Q. 8ou are the udge, what will be the correct ruling on the motion to dismiss?A. Deny the motion to dismiss under 3ec. 9 (b) 0ule 9, the rule on venue shall not apply where parties have not

validly agreed in writing before the filing of the action on the e7clusive venue thereof.'n the above case, the agreement of A and B was an oral agreement. Therefore the agreement is not

enforceable.

. The agreement between A and B is Cthat any action arising from this lot located in TawiKTawi must be filed onlyin :T& of Batanes. A now sued B in Batanes. B now filed a motion to dismiss on the ground of improper venuebeing the property located in TawiKTawi and therefore TawiKTawi should be the venue.

0ule on themotion to dismiss filed by B.

2. Agreement in writing between A and B provided as follows CAny action arising from this land in TawMTawi,may be filed in Batanes. &ontrary to this writing, A filed the action in TawaKTawi. B now filed a motion to dismisson the ground that the venue is improperly laid because the agreement called for the venue to be in Batanes.0ule on the motion.

A. Deny the motion to dismiss because the agreement used the word Cmay. #nder the rule, the agreement tobe valid must be one which is in writing and the agreement on the venue must be Ce7clusive venue.

Where the action involving real property concerns the title to the property, or possession of real propertyor interest in real property, the venue is the place where the property is located or where a part of the property islocated.

Therefore where the action involving real property does not concern title to the property or it does notconcern the possession of real property or does not concern an interest in real property, the rule that the actionshould be filed in the place where the property is located does not apply. There are, therefore, cases when what isinvolve is real property and yet the venue of the action need not be the place where the property or a part of theproperty is located.Example:

The action is filed by B against A and 3ecretary of DI/0. The action filed by B here is an action forcertiorari against the 3ecretary of DI/0 and A. The subect matter although involving real property is actually theudgment of the 3ecretary. This is not an action involving title to, possession or interest in real property. Theaction in effect is a personal action. 3o venue would be the residence of plaintiff B or the residence of the3ecretary, not &otabato, the place where the lot is located.

'n the case of the annulment of the award made by the 1--&, the venue need not necessarily be *.&.where the property is located. 3ince the action was filed in *.&. where the defendant 1--& reside. 3o the motionto dismiss filed in Bacolod &ity is not proper because Bacolod &ity could be a venue.

#nli+e urisdiction which cannot be the subect of stipulation, venue can be the subect of stipulation andtherefore the parties can agree that the venue of a particular action as filed and provided the agreement providesfor an e7clusive venue.

3o if the property is located in TwiKTawi, but A and B agreed before any suit is filed that the venue of the actionarising therefrom be in Batanes and this agreement was in writing before the action was filed, the action can befiled where the property is located or in Batanes. Why? Because the wording of the agreement, Batanes wouldmerely be an additional venue, the venue agreement controls.

3o in our e7ample, A and B agreed in writing before any suit arise, that any action involving this propertylocated in TawiKTawi can be filed Conly in Batanes. 'n violation of that written agreement, A filed suit in TawiKTawiwhere the property is located. B now files a motion to dismiss for improper venue. 's the motion to dismissproper? 8es, because although the property is located in TawiKTawi, the agreement called for an e7clusive venue,i.e.only Batanes. The motion to dismiss of B here should be granted.

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The rules on venue mentioned in 0ule 9 do not apply in certain cases, in addition to these cases that i.e. anagreement in writing.

Q. 's there another situation when the rule on venue does not apply other than the ground that there is anagreement is writing providing for a particular venue?

The 0ules on venue do not apply when there is an agreement in writing providing for an e7clusive venue.'n addition to this, is there another situation where the rules on venue mentioned in 0ule 9 does apply because inthis case, we do not file the action, for instance, in the place where the property or a part of the property is located

or in the place where the plaintiff or the defendant is residing at the option of the plaintiff.'s there such a situation?Example:

A published a libel in :anila. B is a resident of 'locos /orte. -owever, A was a resident of :anila. 1eoplevs. A filed in :anila. B, subseuently filed in the 0T& of 'locos /orte, his residence, an action for damagesagainst A in manila. A now filed a motion to dismiss this action in 'locos /orte. -is ground is that the venue of theaction should not be in 'locos /orte, it should be in :anila where the libel cases is filed but B countered thisargument, the recovery of damages is a personal action, therefore, under 0ule 9, sec 2 (B) has the option to fileany action either in my residence or the residence of the defendant A at my (B) option. :y option is to file myaction in 'locos /orte.

3o, the motion to dismiss is not proper 0ule on the merits of the motion to dismissAns.

The rules on venue found in Rule do not apply in two cases&. When the parties agreed in writing before any action is filed the venue of the action be in a particular

place. :eaning, when the agreement calls for an e7clusive venue2. where the law provides for a specific venue.

'n the first case, where the agreement in writing does not provide for an e7clusive venue, but merely anadditional venue, the action may be filed in the proper venue according to 0ule 9, or in the venue stated in theagreement. 'f the written agreement on venue provides for a specific and e7clusive venue, only the venuespecified in the agreement can be the venue.

'n the second case, the law itself provides, for a specific venue, then it should be that venue provided for bylaw.

The libel law provides that where a criminal action is filed in a particular venue, the civil action for damagesarising form that libel should li+ewise be filed in the same court where the criminal case is pending.

'n our e7ample, the libel case was filed in :anila. Any action for damages arising form the libel filed must befiled in the place where the libel case was filed. Although B, in this case, is a resident of 'locos /orte, he cannot

file the action in 'locos /orte because the criminal case was filed in :anila.

RENE NOTES:

Venue o( A+t$ons

Re* *+t$ons

place where real property located

Pe!son* *+t$ons

1) residence of the plaintiff2) residence of the defendant

+ 9hoice of the plaintiff

Re* *+t$ons

1) action for the annulment or recision of a sale and the return of realty

2) to compel the vendor to accept payment of the purchased piece of land) to compel the vendor to deliver the certificate of title of the land

Pe!son* *+t$ons

1) action to recover the purchased price of the land2) an action to compel the mortgagee to accept payment and for the consequent cancellation of a real estate mortgage) action to annul the cancellation of award of land in favor of the plaintiff

Re'u$s$tes (o! &enue to 8e e/+us$&e:

1) A valid written agreement2) &ecuted by the parties before the filing of the action and) Agreement to the eclusive nature of the venue.

+ In the absence of qualifying or restrictive words, venue stipulation is merely permissive meaning that the stipulated venue is in addition

to the venue provided for in the rule.

W4en !ues on &enue NOT *pp$+*8e

1) when parties agreed in writing for an eclusive venue before any action is filed2) where the law provides for eclusive venuee. :ibel

Libel Law

where a criminal action is filed in a particular venue, the civil action for damages arising from that libel should likewise be filed in the0A;& 9$5(! where the criminal case is pending.

6e*ns o( W*$&$n7 &enue: [9O AR VS L]

1) failure to obect by means of motion to dismiss2) affirmative relief sought in the court where the case is filed

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) voluntary submission to the court where the case is filed") laches

I9 PROPERTY IS LOCATED AT THE BOUNDARIES O9 TWO PLACES* file one case in either place at the option of the plaintiff

I9 CASE INVOLVES TWO PROPERTIES LOCATED IN TWO DI99ERENT PLACES:

a) if the properties are the obect of the same transaction, file in any of the two places.b) if they are the subects of two distinct transactions, separate actions should be filed in each place.

WHEN ALTERNATIVE RELIE9 IS SOUGHT< venue would depend on the primary obect of the action.

VENUE #URISDICTION

1. place where the action is instituted 1. power of the court to hear and decide a case

2. may be waived 2. urisdiction over the subect matter and over the nature of theaction is conferred by law and cannot be waived

. procedural . substantive

". may be changed by the written agreement of the parties ". cannot be the subect of the agreement of the parties

Rule !: #leadins

Q. What are pleadings? What are the +inds of pleadings?A. Sec./ Rule !

-leadings are written statements of the respective claims and defenses of the parties submitted to the courtfor appropriate judgment.

Sec.2 Rule ! (#leadins Allo0ed). complaint

The claims of a party are asserted in a2. counterclaim

%. crossKclaim9. third (fourth, etc.) party complaint, or5. complaintKinKintervention

The defenses of a party are alleged in the answer to the pleading asserting a claim against him. An answermay be responded to by a reply.

RENE NOTES*

; 1$n%s o( %e(enses t4*t m*" 8e set (o!t4 $n t4e *ns2e!

A. -&=A!I'& >&?&-0&0a. 0pecific denials

b. Insufficient denial or denial amounting to admissions

1) =eneral2) >enial in the form of a negative pregnant

@. Affirmative >efenses in the -ature of 9onfession or Avoidance

+ 5nlike the 9omplaint which alleges only ultimate facts, the Answer may cite legal provisions relied upon for defense

Q. What is the compulsory counterclaim?A. Sec. 1 Rule !

A compulsory counterclaim is one which, being cogni/able by the regular courts of justice,arises out or is connected with the transaction or occurrence constituting the subject matter of the opposing

party0s claim and does not re#uire for its adjudication, the presence of third parties of whom the court cannotac#uire jurisdiction. 1uch a counterclaim must be with jurisdiction of the court both as to the amount and thenature thereof, e"cept that in an original action before the Regional Trial Court the counterclaim may be

considered compulsory regardless of the amount.

Q. What is a counterclaim?A. Sec. ! Rule !

A counterclaim is any claim which a defending party may have against an opposing party.

Example:'f A filed a case against B. Any claim by B against A is a counterclaim. 't is a claim by a party defending

himself against a party who files a case against him.

0o 3I4*S of counterclaims. &ompulsory &ounterclaim

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2. 1ermissive &ounterclaim

These two are different for in their component elements and the effect of their not being pleaded.

'n the language of the rule, a counterclaim is compulsor%when it is one which is cogniGable by the courtand arises out or is connected with the transaction or series of transactions which constitutes the basis of theaction against him and does not reuire for its adudication the presence of the third person over whom the courtcannot acuire urisdiction. -owever, where the counterclaim is a money claim and the court in which the case is

pending is the 0egional Trial &ourt, the money claim irrespective of the amount is a compulsory counterclaim.

$n the other hand, a permissi)e counterclaimis one which does not arise out of or is connected with thetransaction which is the basis of the subect of the action.

Example:A files an action against B for collection for sum of money. B, however, has an action against A for recovery of

lot. This action of B against A for recovery of a lot is a permissive counterclaim. Why? Because it is not in any wayrelated.

Q. Why is this permissive?A. Because if B wants to he can file his counterclaim against A in the same action. 'f he does not file it as aclaim, this case filed against him.

Q. &an he file it separately, so that if he can file it separately there are now two cases, A vs. B for recovery of lot.A. 8es.

Q. 3upposing he (B) does not file his counterclaim in this case against him, and subseuently, B files a separateaction, can A now file an action to dismiss a second action on the ground that this action of B against A should notbe pleaded as a claim counter in nature in the civil case?A. /o, because this is a permissive counterclaim. B can file if he wants in to this main action, he may not file ifhe does not want to file.

Q. 6en is counterclaim compulsor%7A. ) A compulsory counterclaim is one which is cogniGable by the court of ustice.

2) A counterclaim should be connected with the transaction which constitutes the basis of the action of theplaintiff against the defendant.

%) This counterclaim does not reuire for its adudication the presence of a third person over whom thecourt does not reuire urisdiction.

9) This counterclaim is within the urisdiction of the court e7cept that where the counterclaim is a moneyclaim and the action is filed in the 0T& irrespective of the amount whether within or not within the

urisdiction of the court, the counterclaim is compulsory.

Example:This is an action of A against B for the recovery of a lot. The counterclaim of B against A is for the recovery

of money which represents the unpaid wages of B payable by A and the wages being the result of a contract ofemployerKemployee relationship.

Q. 's this money claim of B arising from the employerKemployee relationship is not cogniGable by the court?A. /o, because the money claimed arising from the employerKemployee relationship is not cogniGable by the

courts of ustice. This is cogni/able by the 2345 4abor Arbiter or the 64RC.3o, if A files his complaint and B pleads his money claim arising from the employerKemployeerelationship, that counterclaim is not a compulsory counterclaim. 't cannot be filed in this case.

The counterclaim must be one which arises from the transaction which is the basis of the action of theplaintiff against the defendant.

Example:The action of B is for recovery of lot. The claim of B is for money arising from a contract of loan being B

the lender and A the borrower. 3hould B interpose as a counterclaim this action for recovery of money here.

Q. &an that be validly done?A. $n the assumption that all the other elements are present, this is allowed.

3upposing, this is the :T&, the action is for reindivicacion because the value of the property is only 1244,444.This an action filed outside :anila.

Q. 's this counterclaim here allowed to be filed by B as a counterclaim in this case?A. 8es, because this is a claim that is compulsory.

But supposing B does not file a separate case against A for a recovery of money such that if this is done,there will be now two (2) actions

Q. &an A validly file a motion to dismiss this complaint on the ground that since this is a counterclaim, that shouldhave been impleaded by B in the main case?

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A. /o, because this amount does not arise from the transaction constituting the claim by A against B, this is arecovery of money. This is a permissive counterclaim the fact that it is not pleaded in the answer in the main case,is not a ground to dismiss it.

'n this case, BEs counterclaim is not compulsory, but merely permissive.

Example:The counterclaim of B consists of 1244,444.44 but the counterclaim of B is against A and & over this

amount is solidary. B does not plead in his answer in the main case claim and after B files his separate actionagainst A and & to recover his 1244,444.44. A filed motion to dismiss on the ground that this should have beenimpleaded in the main case because it arose from this main case.

Q. 's the motion to dismiss proper?A. /o, because the presence of & is reuired in their litigation on this 1244,444.44 and & is in #.3. and the &ourtdoes not acuire urisdiction over him.

3o, this counterclaim although arising from that action is merely a permissive counterclaim not compulsorycounterclaim because it reuires for its adudication the presence of a third person over whom the court does notacuire urisdiction.

This is an action in the :T&. The counterclaim of B arising from this, letEs say, the value of theimprovements which B introduced in this lot is 124,444.44. -e does not plead his counterclaim in this action.

'nstead, he files a separate action on the recovery of 124,444.44. /ow he files a motion to dismiss on theground that this counterclaim being connected in the claim of A against B should be pleaded.

Q. 's the motion to dismiss proper?A. /o, because the amount claimed though arising from the action e7ceeds the urisdiction of the :T&. The

urisdiction being only up to 1244,444.44. 3o, it is not.

3upposing, however, that this case is filed in the 0T&. And on the assumption that the counterclaim of Bagainst A arises out of this action of A against B, and the counterclaim is only 154,444.44

Q. 's this counterclaim compulsory or permissive?A. &ompulsory. 'n the 0T&, as long as the counterclaim is money, irrespective of the amount, it is alwayscompulsory.

6et us now ta+e a case where the counterclaim is compulsory.

Example: ompulsor% ounterclaim

This is an action for the recovery of a lot. The counterclaim of B is for recovery of the value of the propertyimprovements which B introduced.

Q. 's it money claim by nature cogniGable by a court whether :T& or 0T&?A. 8es.

Q. 's it connected with the case filed by A against B for recovery of the land?

A. 8es, because the amount being claimed represents the value of the improvements introduced by B in this lot,which is the subect of the main case. 3o, it is connected.

Q. Does this action for recovery reuires the presence of &, a third person over whom the court cannot acuireurisdiction?A. /o.

Q. 's an action for recovery of a 124,444.44 one with the urisdiction of the 0T&?A. 8es.

3o, in all these cases therefore, the elements of a compulsory counterclaim are present.

Q. What is the rule?A. %hen a counterclaim is compulsory it must be pleaded in the answer, otherwise, that counterclaim is barred.

Example:'n the e7ample that B sues to recover 124,444.44 representing the value of improvements introduced on

the lot which is the subect matter of the complaint of A. What B did was to institute separate action against A forrecovery of the improvements. -e did not plead this as a counterclaim in the action of A.

A now files a motion to dismiss on the ground that, the counterclaim is a compulsory counterclaim, thefact that it not was pleaded in the main case, is a ground to dismiss it.

Q. 8ou are the udge, what will be your correct ruling on this motion of A to dismiss the case?A. Nrant the motion, bec. a compulsory counterclaim not pleaded in the answer is considered barred.

RENE NOTES:

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Rues on Counte!+*$m

1) A counterclaim before the ;!9 must be within the urisdiction of said court, both as to the amount and nature thereof.2) In an original action before the (!9, a counterclaim may be considered compulsory regardless of the amount.

) If a counterclaim if filed in the ;!9 in ecess of its urisdictional amount, the ecess is considered waived.") !he remedy where a counterclaim is beyond the urisdiction of the ;!9 is to set of the claims and file a separate action to collect

the balance.

CO6PULSORY COUNTERCLAI6 PER6ISSIVE COUNTERCLAI6

1) one of which arises out of or is necessarily connected withthe transaction or occurrence that is the subect matter of theopposing party3s claim.

1) It does not arise out of nor is it necessarily connected withthe subect matter of the opposing party3s claim.

2) It does not require for its adudication the presence of thirdparties of whom the court cannot acquire urisdiction.

2) It may require for its adudication the presence of thirdparties over whom the court cannot acquire urisdiction.

) It is barred if not set up in the action. ) It is -$! barred even if not set up in the action.

") -eed not be answered no default. ") ;ust be answered, otherwise, the defendant can be

declared in default.

C!oss5+*$m

+ filed against a coparty

+ always arises out of the transaction or occurrence that is the subect matter either of the original action or of a counterclaim therein.+ If it is not set up in the action, it is barred, ecept when it is outside the urisdiction of the court or if the court cannot acquire urisdiction

over third parties whose presence is necessary for the adudication of said crossclaim.+ !he dismissal of the complaint carries with it the dismissal of a crossclaim which is purely defensive, but not a crossclaim seeking

affirmative relief.

Rep"

E((e+t o( 9*$u!e to Rep": new facts that were alleged in the answers are deemed converted. #ence, the filing of the reply is optionalecept for the denial of the genuineness and due eecution of an actionable document used as defense in the answer.

T4$!% s +*$m*

a) %here it arises out of the same transaction on which the plaintiff3s claim is based, or although arising out of another or differenttransaction, is connected with the plaintiff3s claimb) %hether the thirdparty defendant would be liable to the plaintiff or to the defendant for all or party of the plaintiff3s claim against theoriginal defendant and

c) %hether the thirdparty defendant may assert any defenses which the thirdparty plaintiff has or may have to the plaintiff3s claim.

Rule in non89RU' S;##I4< ( #nderSE. 5 RULE 1 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 anne"ed thereto and simultaneously file therewith&a7 That he has not thereto commenced any action or filed any claim involving the same issues in any court,

tribunal or #uasijudicial agency and to the best of his $nowledge, no such other action or claim ispending therein;

b7 )f there is such other pending action or claim, a complete statement of the present status thereof; andc7 )f he should thereafter learn the same or similar action or claim has been filed or is pending, he shall

report the fact within five 897 days therefrom in the court wherein his aforesaid complaint or initiatorypleading has been filed

:ailure to comply with the foregoing re#uirements shall not be curable by mere amendment of the complaintor other initiatory pleading but shall cause for the dismissal of the case without prejudice, unless otherwise

provided, upon motion andafter hearing. The submission of a false certification or noncompliance with any of theunderta$ings therein shall constitute indirect contempt of court, without prejudice to the correspondingadministrative and criminal actions. )f the acts of the party or his counsel clearly constitute willful and deliberateforum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct

contempt, as well as a cause for administrative sanctions.

Example:A filed an action against B for forcible entry of a particular lot. While this case was pending, A filed against

B for reindivicacion involving the same lot.

Q. 's there a forum shopping on the part of A?A. /o, the two cases are different. $ne is for forcible entry and the other for reindivicacion.

Example

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A filed an action against B in the 0T& for reindivicacion. Branch 0T& of :anila. 'n their action, A filed apetition for receivership. 'n Branch '' of :anila, A filed another action against B also for reindivicacion, forissuance of an inunction.

Q. 's there forum shopping on the part of A?A. /o, there is none because the two cases involves different issues.

Q. What is forum shopping?

A. 9orum s6oppin ta=es t0o forms) Where a party files the same action involving the same issues either simultaneously or successively inmore than one court.

2) Where a party files two or more actions in different courts, the other action filed in another court not beingthe result of an appeal or a petition for certiorari.

=orum shopping is not allowed because this would be constituting to the udicial process ma+ing moc+ery outof the rules. This is the reason why whenever the party files a complaint or an initiatory pleading, he is reuired toaccompany that complaint or initiatory pleading with a certificate. We call the certificate the certificate of nonforum shopping.

The certificate is signed by the plaintiffand if there are two or more plaintiffs and one is a principal plaintiff andthe other is not, the certificate must be signed by the principal plaintiff. The contents of the certificate, the plaintiffor in the proper case, the principal plaintiffs, certifies the following

a) That he has not previously filed in another court, tribunal, uasiKudicial body or any other agency, thesame action involving the same issues.

b) That there is no pending action in any other court, tribunal, uasiKudicial body or any other agencyinvolving the same issues,and if there is pending action in any other court, the status of this actionpending in the other tribunal agency or uasiKudicial agaencyH

c) 3hould at the time he filed the pleading, he did not +now of the e7istence of pending of another actioninvolving the same issues in another tribunal court, agency or uasiKudicial body, but that hesubseuently learns that there is such a pending action involving the same issues, he underta+es tonotify the court of that fact that there is a pending action, within five (5) days from his receipt oracuisition of +nowledge of the pendency of that action.

These are the three (%) matters certified by the plaintiff or the principal plaintiff.

Q. What are the sanctions against violations of this certificate?A. ;iolations rule may consist of the following

) =ailure to attach to the initiatory pleading in the complaint the reuired certificate of nonKforum shoppingH2) 3tatement in that certificate of nonKforum shopping of a false certificate.

These are the forms of violation, either you do not accompany or you accompanied the pleading but thecertificate contains a falsehood.

%) The violation consists in the failure of the party to comply with his underta+ing thereafter.

Q. What is the underta+ing there?A. To notify the court to the fact that another action is pending in another court.

Therefore, the violations consists of three (%), i.e. nonKsubmission, submitting a false certificate and failure tocomply with the underta+ing to inform the court of the pending case in another court.

Q. What are the sanctions?A. The failure to accompany the pleading with a certificate results in a dismissal without preudice of thecomplaint or initiatory pleading upon a prior motion and a prior hearing. 'n other words, where the pleading reuirea certificate is not attached at, the court may not motu proprio dismiss the complaint. There should first be ahearing either a motion of the defendant. 'n this case, the court may dismiss it without preudice.

Q. 's this all the sanction?A. /o,The counsel or the defendant may be held in contempt. And in the case of the lawyer, he may beadministratively proceeded against

When there is a false certification, for instance, the certification stated that there was no pending caseinvolving the same issue in another court, when the truth is there is.

Q. What is the sanction?A. /ot only the pleading be dismissed, not only may the lawyer be proceeded against administratively, he maybe proceeded against criminally.

Where the forumKshopping is deliberate.

Q. What are the sanctions?A. The pleading will be dismissed with preudice and the offending lawyer may be held in direct contempt withoutpreudice to administrative proceeding against.

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Ta+e note that the party on whom the sanctions may be enforced is one who does not comply with thiscertificate of nonKforum shopping, only in a case where the pleading which is not accompanied with the certificateis a complaint or an initiatory pleading.

%here the pleading is other than the complaint, or an initiatory pleading, the rule does not reuire that thepleading be accompanied by a certificate of nonKforum shopping. &onseuently, where the counterclaim iscompulsory, it does not have to be accompanied by a certificate of nonKforum shopping. Where the counterclaim

however, is permissive than the pleading must be accompanied by a certificate of nonKforum shopping.'n the case of (1T vs. ula ?!@ August !?, !@ 8> 1 @). C$nly a complaint or an initiatorypleading. A compulsory counterclaim is not an initiatory pleading. Why?

Q. When is a pleading initiatory?A. As the term suggests, it is one, which is filed for the first time. Where a counterclaim is compulsory it is not aninitiatory pleading. Why? Because, you cannot file a compulsory counterclaim unless there is a first complaint.That is why a counterclaim is a reaction to the complaint. 3o, it is all again initiatory, because you cannot file anindependent action involving a compulsory counterclaim.

Where a counterclaim is compulsory, it must be pleaded in the answer, otherwise, it is barred if it is filed in aseparate action. But when it comes to a permissive counterclaim, this is an initiatory pleading because it can befiled even without a prior complaint having been filed against a permissive counter claimant.

3o, in our e7ample for instance, if A filed a complaint against B for recovery of a lot B files a counterclaimfor the value of the improvements over the land. 3o you call this a compulsory counterclaim.

Q. Do you have to accompany this compulsory counterclaim of B with a certificate of B with a certificate of nonKforum shopping?A. /o, because this compulsory counterclaim is not an initiatory pleading. 't is a reaction. Without this complaintof A, there is no compulsory.

But supposing this were a counterclaim for recovery of money which B loaned to A and B pleaded thisclaim of money as a counterclaim, you call this permissive counterclaim.

Q. Do you have to accompany this permissive counterclaim with a certificate of nonKforum shopping?A. (#.3.T. vs. >ula.) 8es.

Q. 3tate the rule on Alternati)e causes of action or defenses.A. Rule > Sec. 2

A party may set forth two or more statements of a claim or defense alternatively or hypothetically, eitherin one cause of action or defense or in separate causes of action or defenses. %hen two or more statements aremade in the alternative and one of them if made independently would be sufficient, the pleading is not madeinsufficient by the insufficiency of one or more of the alternative statements.

) Where a person has one claim or one defense he can state that one claim or one defense in two or morestatements either hypothetically or in the alternative.

2) Where two or more statements of a claim or a defense are made and one is made independently of theother which is sufficient, the pleading is not made insufficient by the insufficiency of the other statement ofthe claim or the other defense.

Example:A vs. B, this is an action for recovery of a piece of land. The defense of B is that he (B) is the owner,because

) he bought the land from AH2) he inherited the land from &H%) this lot was donated to him by DH9) he acuired this by prescription.

Q. &ould this be validly alleged as BEs defense?A. Analysis The defenses are inconsistent with each other.

B can allege these as his defenses in his answer. The statement of BEs defense that he is the owner ismade up of 9 inconsistent statements.

The rule says that if the statement of the claim or defense is sufficient in itself, if made independently ofthe other, the pleading is not made insufficient by the insufficiency of the statement.

RENE NOTES:

9*+ts t4*t m*" 8e *&e!!e% 7ene!*":

a) conditions precedent @5! there must still be an allegation that the specific condition precedent has been complied with, otherwise, itwill be dismissed for failure to state cause of actionb) malice, intent, knowledge, or other condition of the mindc) udgment of foreign courts, tribunals, boards, or officers no need to show urisdiction)

9*+ts t4*t must 8e *&e!!e% p*!t$+u*!":

a) circumstances showing fraud or mistake in all averments of fraud or mistakeb) capacity

* Two permissible ways of pleading an actionable document*

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a) @y setting forth the substance of such document in the pleading and attaching said thereto as an anneb) @y setting forth said document verbatim in the pleading

* Where the actionable document is properly alleged, the failure to deny under oath the same results in:

1) !he implied admission of the genuineness and due eecution of said document ecept*a) when the adverse party was not a party to the instrument and

b) when an order for the inspection of the document was not complied with.2) !he document need not be formally offered in evidence.

* Defenses that the opposing party may set up even after failure to deny under oath:a) mistakeb) fraudc) compromised) payment

e) prescriptionf) want or illegality of consideration org) estoppel.

* BUT the following defenses are waived:

a) forgery in the signatureb) want of authority of an agent or corporationc) want of delivery or

d) the party charged signed the instrument in some other capacity.

SPECI9IC DENIAL

THREE WAYS O9 6A?ING A SPECI9IC DENIAL:

a) @B specifically denying each material allegation of the party and of the other party and whenever possible, setting forth the substance

of the matters relied upon for such denial

b) past admissions or past denial

c) @y an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party3spleading.

+ A denial cannot be general, a general denial is regarded as admission on the facts stated in the complaint.

+ A negative defense must be a specific denial. $therwise, the denial will be deemed as an admission and entitles plaintiff to a udgment onthe pleadings

A&e!ments $n t4e +omp*$nt NOT %eeme% *%m$tte% e&en $( NOT spe+$($+*" %en$e%:a) Allegations as to the amount of damages unliquidated)b) Immaterial allegationsc) Incorrect conclusions of fact and

A&e!ments %eeme% *%m$tte% $( not spe+$($+*" %en$e% un%e! o*t4:

a) Allegations as to usury in the complaint

b) !he authenticity and due eecution of actionable documents thereto.

Rule ?: Effect of 9ailure to #lead


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$r where the evidence shows, if proceeded to trial, lac+ of urisdiction or where the evidence shows resudicata already, or where the evidence shows that the action has already prescribed or the evidence shows thatthere is lis pendencia, then the court can dismiss the action.

*efault.Default #sed to be covered by 0ule . 0ule was limited to default, but 0ule now which covered

default, there is another subect of 0ule !.

Q. What is the rule of default?A. Default here means, the failure of the defendant who was validly served a summons to file the answer withinthe reglamentary period.

3o, if for instance, A vs. B was summoned on Dec. 4, !!!. -e has only a period until Dec. 25, !!! orDec. 2@, !!! assuming that Dec. 2@, !!! is a wor+ing day within which to file the answer or only appropriatepleading. 'f B was validly served under 0ule 9, and fails to file the answer within that period or fails to file anyappropriate pleading within that period, we may say that B has already incurred in default.

ALER4AI-E A4* SUESSI-E RE'E*IES 9 A #R@ *ELARE* I4 *E9AULa) file a verified motion in set aside the order of default of any time after discovery of the =A:I and

before udgmentb) if he did not file one or the same was denied, he would file a motion for a new trial at any time after

service of udgment by default and within %4 days therefromc) if he fail to file said motion or the same was denied, he could perfect his appeal from and on merits of

said udgment by default within the balance of said %4Kday periodd) if he failed to ta+e any of said steps, he could file a petition from relief of udgment within @4 days from

notice of the udgment but within @ months from entry thereof.

Where the defendant has not been validly summoned, under 0ule 9, he cannot be declared in default.

Q. -ow will A here secure the default of B?A. -e must file a motion in court.

Q. &an the court moto proprio declare B in default?A. /o. Iven if B has not filed an answer, the court cannot moto proprio declare the defendant in default. A mustfile a motion.

Q. 's B, under the new rules, entitled to a notice of the hearing of the motion to declare in default?

A. 8es. This is now the amendment to the old 0ule .#nder the old 0ule , the urisprudence thereunder, a motion to declare a defendant in default could be

validly heard without notice to the defendant. -e was not under the same rules and urisprudence entitled to anotice of the hearing on the motion. 't means therefore, that a default motion, under the old rule, will be held e7parte.

This is not now the rule. A here, the plaintiff, must file a motion, furnish B with a copy of the motion andfurnish B with a notice of hearing on the motion.

0uling of the court on the motion&> C:&A>I-= 05CC:&;&-!A: C:&A>I-=

+ refers to facts eisting at the time of the commencement of

the action.

+ refers to facts arising after the filing of the original pleading.

+ take the place of the original pleading + taken together with the original pleading.

+ can be made as a matter of right as when no responsivepleading has yet been filed

+ always with leave of court

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E((e+ts o( Amen%ment Pe*%$n7

a) Admissions in the superseded pleading can still be received in evidence against the pleader

b) 9laims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived.

RULE //:;E4 9ILE RES#4SI-E #LEA*I4


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&omplaint in intervention must be answered within fifteen (5) days from receipt by the defendants inintervention of the order admitting the complaintKin intervention.

'n a case of a complaint which was the subect of a motion to dismiss which was denied. The defendanthas a period representing the balance of the original period he has.But in no event should the period be less thanfive (5) days.

'n the case of a bill of particulars, the defendant whose motion for bill of particulars, is denied or where the

bill of particulars was granted, the period within which the defendant must file the answer would be the balance ofthe 5Kdays period within which he should have filed the answer but in no event less than five (5) days.

'n the case of the supplemental pleading, the answer must be filed within ten (4) days from service of thenotice admitting the supplemental pleading.

1leadings to be amended shall do so with liberality if the presentation of the merits of the action and theends of substantial ustice will be subserved thereby. The court may grant the continuance to enable theamendments to be made.

RENE NOTES:

+ !he granting of additional time to the defendant to file an answer is a matter largely addressed to the sound discretion of the court. !heymay etend the time to file the pleadings but may not shorten them.

+ If the filing of an amended complaint is a matter of right, the 1/day period to answer is counted from the service of the amended

complaint.

+ If the filing of an amended complaint is not a matter of right, then leave of court is required, hence, the 14day period to answer runs fromnotice of the court order granting the same.

+If no new answer is filed by the defendant in case an amendment has been made after he has filed his answer, the original answer of the

defendant may serve as the answer to the amended complaint and hence, cannot be declared in default.

Rule /2: ill of #articulars

Q. What is the concept of Bill of 1articulars?A. The complaint or a pleading may be vague or ambiguous. This being so, the defendant may not possibly be

in a position to file an answer. Before he files the answer, he has a remedy to secure from the plaintiff a clearallegation of the facts, the defendant considers as vague.

Example:This is an action filed by A against B for recovery of a lot. The allegation in the complaint alleges

that A is the owner of the lot in *&. Which he has always been in possession of, for a number of years until Beected him (A) therfrom.

Q. 8ou are B, do you +now what is this lot in *&?A. 'n an action for recovery, the identity of the property must be stated. 3o the owner itself reuires that theidentity by its boundaries (technical description). A should have described in his complaint the boundaries, areaetc. of the lot in uestion.

'f you were B, unless you +now the description of this lot A is tal+ing about.

Q. 3o what are you allowed to do before you file the answer?A. 8ou want that land to be identified, so you file a motion to reuire A to submit a bill of particulars.

Q. What is the purpose in as+ing the court to order A to submit a bill of particulars?A. 8our purpose is to allow you to properly file your answer, because unless you +now the lot A tal+ing about,you cannot possibly file an intelligent answer. 3o the purpose therefore is to clarify an ambiguity in order toanswer the complaint intelligently.

Q. When may a motion for Bill of 1articulars be filed?A. At any time within the period for the filing of the answer. 'n this e7ample, within the period of the filing of thepleading, B can file a motion to reuire A to submit a Bill of 1articulars.

Q. What is the effect of the filing of the motion for Bill of 1articulars on the running of the period of the filing of the

answer?A. When a motion for Bill of 1articulars is filed, the period for the filing of the answer is suspended.

Q. What does it starts to run again?A. 't starts to run again when a motion for Bill of 1articulars is denied and the defendant received a copy of theorder of denial or it starts to run again when, after the motion has been granted, the plaintiff has filed a motion forBill of 1articulars and the defendant receives a copy of the Bill of 1articulars.

Within what period should an answer be filed following the denial of the motion or following the receipt of the Billof 1articulars?

The rule says that

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The defendant is entitled to the balance of the period he was entitled to, at the time he filed themotion, but in no event should the period be less than five (5) days.

3o, if for instance, A filed the action against B. B received the summons on an. 2, !!!. -e filed a motion for aBill of 1articulars on an. !, !!!, so that when he filed the motion for a bill of particulars, he already consumedseven (") days of the original 5Kday period. 3o, therefore he has eight () days. 'f B received on an. 4, !!!the order denying the motion or he received on this day a copy of a bill of particulars submitted by A. B haseight() days counted from an. 4, !!!. Therefore, his last day for the filing of the answer would be on an. ,

!!!. $n the other hand, if B filed a motion for a bill of particulars on an. 5, !!! and therefore he hasalready consumed thirteen days of the original 5 days period, conseuently he has only two (2) receiving days.When he received the order of denial on an. 4, !!!, he received on this day a copy of a bill of particulars, hehas still five (5) day period until an. 5, !!! within which to file the answer.

Q. Why not an. 2, !!!, because that is the balance to which he is entitled to at that time?A. Because the rule says, Cin no event shall the period be less than five (5) days.

Q. What are the sanctions against the failure of the plaintiff to comply with the order of the court directing him tofile a bill of particulars?A. 3hould A be directed by the court to file a bill of particulars, he must do so within the period fi7ed in the order,but in no event should the period be less than ten (4) days.

3o, if the court does not fi7 the period within which A must file the bill, it is understood that he has a 4Kday period. That period cannot be shortened, it can be e7tended, but never shortened.

The sanctions against the failure of a party plaintiff to file the bill of particulars when ordered by the court,is, the court may order the stric+ing out of the pleading to which the motion for bill of particulars refers. $r thecourt under 3ec. % 0ule " may dismiss the action for failure to comply with an order.

#nder the old rules, a motion for a bill of particular was a litigated motion because thereunder, the courtmust set for hearing a motion for bill of particulars.

This is no longer the case. #nder the new rules, the court can resolve the motion for a bill of particulars e7parte or with notice to the adverse party. This is why we have a provision that upon the filing of a motion for bill ofparticulars, the cler+ of court should refer the motion immediately to the court, unless the court desires that thatmotion be heard with due notice with the adverse party.

RENE NOTES:

+ If the defendant files an answer but fails to obey an order relating to a bill of particulars or in case of insufficient compliance thereof, theanswer may be stricken off the records and the defendant be declared in default upon the motion of the plaintiff.

Rule /": Ser)ice and 9ilin of #leadins

*. Nive the desticntions between 3ervice and =iling.A. Sec. 2 Rule /"

Filingis the act of presenting the pleading or other paper to the cler+ of court.

Serviceis the act of providing a party with a copy of the pleading or paper concerned. 'f any party hasappeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the

party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled toone copy of any paper served upon him by the opposite side.

9ilin ('anner) personally to cler+ of court2) registered mail, not ordinary mail

Example:3uppose a pleading is filed by 03 I7press or 6B&

an. , !!4 R the pleading was delivered to 03 I7pressan. 5, !!4 R 03 I7press delivered it to the court

The date it is considered filed is on an. 5, which is the date it is delivered and received by the cler+ ofcourt and not on the date of deposit to 03 I7press.

Example:A vs. B ) A resides in 3ulu, B in Batanes. 'n 3ulu, there is no registered mail service, then a copy of the

pleading can be served only by ordinary mail.2) There is a registered service in 3ulu, but there is none in Batanes. 3ervice can be effected by ordinary

mail.%) There is a registered service in 3ulu, and there is also a registered mail service in Batanes, service can

be done only by registered mail

Q. +ow about final order, judgment, resolution, how can they be served?) $nly by personal service and2) By registered mail.'t can never be done by ordinary mail.

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Reason There is such a thing as a period of appeal or for the performance of some legal acts. There must bea definite starting point

Where the service is by ordinary mail, there will be no definite starting point for the period to appeal or to thatother legal acts. Why? There is no record.

But when it is a registered mail, there is a record or whether it is a personal service, there is a record.But in the case of ordinary mail, there is none.

Q. Where a party wants to serve a copy of his pleading or other papers, either by personal service or byregistered mail for that matter, how can such pleading or other papers be served? (8ou cannot serve it personallybecause, let us say, the office the adverse party is not +nown, his residence is not +nown, he cannot be served byregistered mail or by ordinary mail, for the simple reason that, you do not +now where he is. -ow can he beserved?

The party serving must serve his pleading or other papers on the cler+ of court by proving to the cler+ ofcourt, Cfailure to serve personally or by mail.

Example:B files a motion (this is litigated). 3o he has to notify A of the motion, because a litigated motion cannot be

resolved by the court unless there is proof of service of a copy thereof to the adverse party. B cannot serve a copyof the motion to A because the office of A is not +nown. -is residence is not +nown also. -e cannot be furnishedby mail (registered or ordinary). The hearing is set on Dec. 4, !!. 3o, if B cannot prove that he served a copy

of his motion to A, the hearing on Dec. 4, !! cannot proceed because this is a litigated motion.

Q. What is the remedy available to B even if A was not personally served with the notice of the motion, thismotion can be heard on Dec. 4, !!?A. All that B does is to serve a copy of his motion to the cler+ of court. But of course, B has to prove that B couldnot serve it on AEs office or residence either personally or by mail, registered or ordinary.

This is a remedy which does not appear to be appreciated R by many lawyers.The service on the cler+ of court on that day it was served to him is euivalent to a service of to B.

Ser)ice $% re

remedial law} civil procedure} notes of rene callanta} made early part of 2000 (est)} 123 pages

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