CIVIL PROCEDURE REVIEWER1

It is a remedy by which a party seeks

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

Based on Justice De Leon’s Outline, Civil

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

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

MENDEZ, IVAN VIKTOR (2D, ’13)


 Waived— Venue may be waived if not
objected to in a motion to dismiss or in
the answer. (Rule 16, Sec. 6);
judgment in default may be waived by
failure to answer within 15 days.
 Fall within the discretion of the court—
The period to plead may be extended
on motion of a party. (Rule 11, Sec.
11); rules of procedure may be relaxed
in the interest of justice.
JURISDICTION
It is the power and authority of a court to hear,
try and decided a case.
1. Generally
 The statute in force at the time of the
commencement of the action
determines the jurisdiction of the
court.
 Before looking into other matters, it is
the duty of the court to consider the
question of jurisdiction without waiting
for it to be raised.
• If court has jurisdiction, such
must be exercised. Otherwise,
it may be enforced by a
mandamus proceeding.
• If court has no jurisdiction, the
court shall dismiss the claim
and can do so motu proprio.
 Doctrine of primary jurisdiction—
The courts will not resolve a
controversy involving a question which
is within the jurisdiction of an
administrative tribunal.
 Doctrine of continuing jurisdiction—
Once jurisdiction has attached to a
court, it retains that jurisdiction until it
finally disposes of the case. Hence, it is
not lost by
• The passage of new laws
transferring the jurisdiction to
another tribunal except when
expressly provided by the
statute;
• Subsequent filing of a notice of
appeal;
• The mere fact that a party who
is a public official ceased to be
in office; or
• Finality of judgment (the court
still has jurisdiction to enforce
and execute it)
Elements of a valid exercise of
jurisdiction
(1) Jurisdiction over the subject matter or
nature of the case;
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER2
(2) the parties;
(3) the res if jurisdiction over the
defendant cannot be acquired;
(4) the issue of the case; and
(5) Payment of docket fees.
Jurisdiction over the subject matter is a matter
of substantive law.
Jurisdiction over the parties, the res
and the issues are matters of procedure.
Jurisdiction over the parties and the res are
covered by the rule on summons, while
jurisdiction over the issues is subsumed under
the rule on pleadings.
(a) As to subject matter
Jurisdiction over the subject matter is
conferred by the Constitution or by law.
Therefore, jurisdiction over the subject
matter cannot be conferred by
(1) Administrative policy of any
court;
(2) Court’s unilateral assumption
of jurisdiction;
(3) Erroneous belief by the court
that it has jurisdiction;
(4) By contract or by the parties;
(5) By agreement, or by any act or
omission of the parties, nor by
acquiescence of the court; or
(6) By the parties’ silence,
acquiescence or consent
 General Rule: It is determined by the
material allegations of the initiatory
pleading (e.g., the complaint), not the
answer of the defendant. Once acquired,
jurisdiction is not lost because of the
defendant’s contrary allegation.
Exception: In ejectment cases, where
tenancy is averred by way of defense and
is proved to be the real issue, the case
should be dismissed for not being properly
filed with the DARAB.
 It is determined by the cause of action
alleged, not by the amount substantiated
and awarded. Example: If a complaint
alleges a recoverable amount of P1M, RTC
has jurisdiction even if evidence proves the
only P300k may be recovered.
Note: Jurisdiction over the subject matter
CANNOT be waived, enlarged or diminished by
stipulation of the parties.
(b) As to res or property

Jurisdiction over the res refers to the court’s
jurisdiction over the thing or the property
which is the subject of the action.
Jurisdiction over the res is acquired by
(1) Custodia legis—placing the property or
thing under the court’s custody (e.g.,
attachment)
(2) Statutory authority—statute conferring
the court with power to deal with the
property or thing within its territorial
jurisdiction
(3) Summons by publication or other
modes of extraterritorial service (Rule
14, Sec. 15)
(c) As to the issues
Issue— a disputed point or question to which
parties to an action have narrowed down their
several allegations and upon which they are
desirous of obtaining a decision. Thus, where
there is no disputed point, there is no issue.
Jurisdiction over the issue may be conferred or
determined by
(1) Examination of the pleadings—
Generally, jurisdiction over the issues
is determined by the pleadings of the
parties.
(2) Pre-trial—
It may be conferred by stipulation of
the parties in the pre-trial, as when
they enter into stipulations of facts and
documents or enter into an agreement
simplifying the issues of the case (Rule
18, Sec. 2)
(3) Waiver—
Failure to object to presentation of
evidence on a matter not raised in the
pleadings. Said issues tried shall be
treated as if they had been raised in
the pleadings.
(d) As to the parties
The court acquires jurisdiction over the
 Plaintiff—
when he files his complaint
 Defendant—
i. Valid service of summons upon
him, or
ii. Voluntary appearance:
“The defendant’s voluntary
appearance in the action shall be
equivalent to service of summons.
The inclusion in a motion to
dismiss of other grounds aside
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER3
from lack of jurisdiction over the
person of the defendant shall not
be deemed a voluntary
appearance. (Rule 14, Sec. 20)
Examples:
When defendant files
 The necessary pleading;
 A motion for reconsideration;
 Petition to set aside judgment
o f default;
 An answer;
 Petition for certiorari without
questioning the court’s
jurisdiction over his person; or
 When the parties jointly submit
a compromise agreement for
approval
BUT the filing of an answer should
not be treated automatically as a
voluntary appearance when such
answer is precisely to object to the
court’s jurisdiction over the
defendant’s person.
La Naval v. CA: A defendant should
be allowed to put up his own
defenses alternatively or
hypothetically. It should not be the
invocation of available additional
defenses that should be construed
as a waiver of the defense of lack
of jurisdiction over the person, but
the failure to raise the defense.
Note: Jurisdiction over a non-resident
defendant cannot be acquired if the action
is in personam.
2. Estoppel to deny jurisdiction
HEIRS OF BERTULDO HINOG v. MELICOR
(455 SCRA 460, 2005)
Since the deceased defendant participated
in all stages of the case before the trial
court, he is estopped from denying the
jurisdiction of the court. The petitioners
merely stepped into the shoes of their
predecessor and are effectively barred by
estoppel from challenging RTC’s
jurisdiction.
FACTS: Bertuldo Hinog allegedly occupied and
built a small house on a portion of a property
owned by respondents Balane for 10 years at a
nominal annual rental. After 10 years, Bertuldo
refused to heed demands made by
respondents to return said portion and to

remove the house constructed thereon.
Respondents filed a complaint against him.
Bertuldo filed his Answer, alleging ownership of
the disputed property by virtue of a Deed of
Absolute Sale. Bertuldo died without
completing his evidence during the direct
examination. Bertuldo’s original counsel was
replaced by Atty. Petalcorin who entered his
appearance as new counsel for the heirs of
Bertuldo.
Atty. Petalcorin filed a motion to
expunge the complaint from the record and
nullify all court proceedings on the ground
that private respondents failed to specify in
the complaint the amount of damages
claimed so as to pay the correct docket fees;
and that under Manchester doctrine, non-
payment of the correct docket fee is
jurisdictional.
ISSUE: Whether the petitioners are barred by
estoppel from questioning the jurisdiction of
RTC
YES. The petitioners are barred from
questioning jurisdiction of the trial court.
Although the issue of jurisdiction at any stage
of the proceedings as the same is conferred by
law, it is nonetheless settled that a party may
be barred from raising it on the ground of
estoppel. After the deceased Bertuldo
participated in all stages of the case before the
trial court, the petitioners merely stepped into
the shoes of their predecessor and are
effectively barred by estoppel from challenging
RTC’s jurisdiction.
3. Jurisdiction at the time of filing of
action
PEOPLE v. CAWALING
(293 SCRA 267, 1998)
The jurisdiction of a court to try a criminal
case is determined by the law in force at
the time of the institution of the action.
Once the court acquires jurisdiction, it may
not be ousted from the case by any
subsequent events, such as a new
legislation placing such proceedings under
the jurisdiction of another tribunal.
Exceptions to this rule arise when: (1) there
is an express provision in the statute, or (2)
the statute is clearly intended to apply to
FACTS: Brothers Vicente and Ronie Elisan were
drinking tuba at the kitchenette of one of the
accused, Fontamilla. When they were about to
leave, they were warned by Luz Venus that the
six (6) accused consisting of Mayor Cawaling,
four (4) policemen and a civilian, had been
watching and waiting for them outside the
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER4
restaurant. Nevertheless, the two went out and
were chased by the armed men. Vicente
successfully ran and hid behind a coconut tree
while Ronie unfortunately went to the ricefield
and was shot to death there.
An Information alleging murder was
filed in the RTC against the 6 accused. RTC
convicted them of murder. On appeal, the
appellants questioned the jurisdiction of the
RTC over the case, insisting that the
Sandiganbayan was the tribunal with
jurisdiction since the accused were public
officers at the time of the killing.
ISSUE: Whether the Sandiganbayan had
jurisdiction
NO. The jurisdiction of a court to try a
criminal case is determined by the law in force
at the time of the institution of the action.
Once the court acquires jurisdiction, it may not
be ousted from the case by any subsequent
events, such as a new legislation placing such
proceedings under the jurisdiction of another
tribunal. Exceptions to this rule arise when: (1)
there is an express provision in the statute, or
(2) the statute is clearly intended to apply to
actions pending before its enactment.
Section 4-a-2 of PD 1606, as amended
by PD 1861 lists two requisites that must
concur before the Sandiganbayan may
exercise exclusive and original jurisdiction over
a case: (a) the offense was committed by the
accused public officer in relation to his office;
and (b) the penalty prescribed by law is higher
than prision correccional or imprisonment for
six (6) years, or higher than a fine of P6,000.
Sanchez vs. Demetriou clarified that
murder or homicide may be committed both by
public officers and by private citizens, and that
public office is not a constitutive element of
said crime. The relation between the crime and
the office contemplated should be direct and
not accidental.
The Information filed against the
appellants contains no allegation that
appellants were public officers who committed
the crime in relation to their office. The charge
was only for murder.
In the absence of any allegation that
the offense was committed in relation to the
office of appellants or was necessarily
connected with the discharge of their
functions, the regional trial court, not the
Sandiganbayan, has jurisdiction to hear and
decide the case.
REGULAR COURTS (MTC, RTC, CA, SC)
(See San Beda Reviewer)
SPECIAL COURTS (Sandiganbayan)
(See San Beda Reviewer)

QUASI-JUDICIAL BODIES
Securities and Exchange Commission
(Sec. 5.2, RA 8799)
The Commission shall retain jurisdiction over
 Pending cases involving intra-
corporate disputes submitted for final
resolution which should be resolved
within one (1) year from the enactment
of this Code, and
 Jurisdiction over pending suspension of
payments/rehabilitation cases filed as
of 30 June 2000 until finally disposed.
Civil Service Commission
MAGPALE v. CSC (215 SCRA 398, 1992)
Under Section 47 of the Administrative
Code, the CSC shall decide on appeal all
administrative disciplinary cases involving
the imposition of “… (d) removal or
dismissal from office.”
The MPSB decision did not involve
dismissal or separation from office, rather,
the decision exonerated petitioner and
ordered him reinstated to his former
position. The MSPB decision was not a
proper subject of appeal to the CSC.
FACTS: Magpale, port manager of Philippine
Ports Authority-Port Management Unit (PPA-
PMU) of Tacloban, was found by the Secretary
of DOTC guilty of Gross Negligence on two
counts: (a) for his failure to account for the 44
units of equipment and (b) for failing to render
the required liquidation of his cash advances
amounting to P44,877.00 for a period of 4 yrs.
He was also found guilty of frequent and
unauthorized absences. He was meted the
penalty of dismissal from the service with the
corresponding accessory penalties.
He appealed to the Merit System and
Protection Board (MSPB) of the Civil Service
Commission (CSC). The MSPB reversed the
decision.
PPA filed an appeal with the Civil
Service Field Office-PPA, which indorsed the
appeal to CSC. Magpale moved for the
implementation of the MSPB decision which
was opposed by the PPA. MSPB ordered the
immediate implementation of its decision,
which became final and executory.
Respondent CSC reversed MPSB’s
decision and held Magpale guilty.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER5
ISSUE: Whether the law authorized an appeal
by the government from an adverse decision
of the MSBP
NO. Under the Administrative Code of
1987, decisions of the MPSB shall be final,
except only “those involving dismissal or
separation from the service which may be
appealed to the Commission”
While it is true that the CSC does have
the power to hear and decide administrative
cases instituted by or brought before it directly
or on appeal, the exercise of the power is
qualified by and should be read together with
Sec. 49 of Executive Order 292, which
prescribes, among others that “(a) the decision
must be appealable.”
Under Section 47 of the Administrative
Code, the CSC shall decide on appeal all
administrative disciplinary cases involving the
imposition of:
(a) a penalty of suspension for more than
30 days;
(b) fine in an amount exceeding 30 days
salary;
(c) demotion in rank or salary or transfer;
or
(d) removal or dismissal from office.
The MPSB decision did not involve dismissal or
separation from office, rather, the decision
exonerated petitioner and ordered him
reinstated to his former position. The MSPB
decision was not a proper subject of appeal to
the CSC.
Settled is the rule that a tribunal,
board, or officer exercising judicial functions
acts without jurisdiction if no authority has
been conferred by law to hear and decide the
case.
Housing and Land Use Regulatory Board
(HLURB)
SANDOVAL v. CAÑEBA
(190 SCRA 77, 1991)
It is not the ordinary courts but the
National Housing Authority (NHA) which
has exclusive jurisdiction to hear and
decide cases of (a) unsound real estate
business practices; (b) claims involving
refund and any other claims filed by
subdivision lot or condominium unit buyer
against the project owner, developer,
dealer, broker or salesman; and (c) cases
involving specific performance of
contractual and statutory obligations filed
by buyers of subdivision lot or
condominium unit against the owner,

FACTS: Estate Developers and Investors
Corporation (Estate) filed a complaint against
Nestor Sandoval (Sandoval) in the RTC for the
collection of unpaid installments of a
subdivision lot, pursuant to a promissory note,
plus interest. Sandoval alleges that he
suspended payments thereof because of the
failure of the developer to develop the
subdivision pursuant to their agreement. The
RTC ruled in favor of Estate, and ordered
Sandoval to pay. A writ of execution was
issued which thereafter became final and
executory.
Sandoval filed a motion to vacate
judgment and to dismiss the complaint on the
ground that the RTC had no jurisdiction over
the subject matter. A motion for
reconsideration of the writ of execution was
also filed by petitioner. Estate opposed both
motions. RTC denied the motion to vacate for
the reason that it is now beyond the
jurisdiction of the court to do so. A new writ of
execution was issued.
Sandoval filed a petition alleging that
the RTC committed grave abuse of discretion
since the exclusive and original jurisdiction
over the subject-matter thereof is vested with
the Housing and Land Use Regulatory Board
(HLURB) pursuant to PD 957.
ISSUE: Whether the ordinary courts have
jurisdiction over the collection of unpaid
installments regarding a subdivision lot
NO. Under Section 1 of Presidential
Decree No. 957 the National Housing Authority
(NHA) was given the exclusive jurisdiction to
hear and decide certain cases of the following
nature:
(a) Unsound real estate business
practices:
(b) Claims involving refund and any other
claims filed by subdivision lot or
condominium unit buyer against the
project owner, developer, dealer,
broker or salesman; and
(c) Cases involving specific performance
of contractual and statutory obligations
filed by buyers of subdivision lot or
condominium unit against the owner,
developer, dealer, broker or salesman.
The exclusive jurisdiction over the case
between the petitioner and private respondent
is vested not on the RTC but on the NHA. The
NHA was re-named Human Settlements
Regulatory Commission and thereafter it was
re-named as the Housing and Land Use
Regulatory Board (HLURB).
KINDS OF ACTION
1. As to cause or foundation
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER6
The distinction between a real action and a
personal action is important for the purpose of
determining the venue of the action.
(a) Personal
Personal actions are those other than real
actions. (Sec. 2, Rule 4)
Examples
 Action for specific performance
 Action for damages to real property
 Action for declaration of the nullity of
marriage
 Action to compel mortgagee to accept
payment of the mortgage debt and
release the mortgage
(b) Real
An action is real when it affects title to or
possession of real property, or an interest
therein. (Sec. 1, Rule 4)
To be a real action, it is not enough
that it deals with real property. It is important
that the matter in litigation must also involve
any of the following issues:
(a) Title;
(b) Ownership;
(c) Possession;
(d) Partition;
(e) Foreclosure of mortgage; or
(f) Any interest in real property
Examples
 Action to recover possession of real
property plus damages (damages is
merely incidental)
 Action to annul or rescind a sale of real
property
2. As to object
The distinctions are important
(a) to determine whether the jurisdiction
of the defendant is required, and
(b) to determine the type of summons to
be employed
(a) In rem
An action is in rem when it is directed against
the whole world. It is for the determination of
the state or condition of a thing.
Examples
 Probate proceeding
 Cadastral proceeding
(b) In personam
A proceeding in personam is a proceeding to
enforce personal rights and obligations

brought against the person and is based on the
jurisdiction of the person.
Its purpose is to impose some
responsibility or liability directly upon the
person of the defendant. In an action in
personam, no one other than the defendant is
sought to be held liable.
Examples
 Action for sum of money
 Action for damages
(c) Quasi in rem
An action quasi in rem is one wherein an
individual is named as defendant and the
purpose of the proceeding is to subject his
interest therein to the obligation or lien
burdening the property.
Such action deals with the status,
ownership or liability of a particular property,
but which are intended to operate on these
questions only as between the particular
parties to the proceedings, and not to
ascertain or cut-off the rights or interests of all
possible claimants.
NOTE: These rules are inapplicable in the
following cases:
(1) Election cases;
(2) Land registration;
(3) Cadastral;
(4) Naturalization;
(5) Insolvency proceedings;
(6) Other cases not herein provided for,
except by analogy or in a suppletory
character, and whenever practicable
and convenient.
(Sec. 4, Rule 1)
COMMENCEMENT OF ACTION (Sec. 5, Rule
1)
A civil action is commenced
 by the filing of the original complaint in
court, or
 on the date of the filing of the later
pleading if an additional defendant is
impleaded irrespective of whether the
motion for its admission, if necessary,
is denied by the court.
(with respect only to the defendant
later impleaded)
1. Condition precedent
— matters which must be complied with before
a cause of action arises.
 When a claim is subject to a condition
precedent, compliance must be
alleged in the pleading.
 Failure to comply with a condition
precedent is an independent ground
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER7
for a motion to dismiss. (Sec. 1 [j], Rule
16)
Examples:
 Tender of payment before consignation
 Exhaustion of administrative remedies
 Prior resort to barangay conciliation
proceedings
 Earnest efforts towards a compromise
 Arbitration proceedings, when contract
so provides
Katarungang Pambarangay (RA 7160)
Purpose: To reduce the number of court
litigations and prevent the deterioration of the
quality of justice which has been brought by
the indiscriminate filing of cases in the courts.
 Only individuals shall be parties to KB
proceedings, no juridical entities.
 Parties must personally appear in all
KB proceedings and without assistance
of counsel or representatives, except
for minors and incompetents who may
be assisted by their next-of-kin, not
lawyers.
 Conciliation proceedings required is
not a jurisdictional requirement.
 NOTE: Failure to undergo the barangay
conciliation proceedings is non-
compliance of a condition precedent.
Hence, a motion to dismiss a civil
complaint may be filed. (Sec. 1 [j], Rule
16).
 BUT the court may not motu proprio
dismiss the case for failure to undergo
conciliation.
Initiation of proceedings
(1) Payment of appropriate filing fee
(2) Oral or written complaint to the
Punong Barangay (chairman of the
Lupon)
(3) Chairman shall summon respondents
to appear the next working day
(4) Mediation proceedings for 15 days
(5) Should the chairman fail in his
mediation efforts within said period, he
shall constitute the Pangkat
Tagapagkasundo,
(6) If no amicable settlement is reached,
the chairman shall issue a certification
to file action.
All amicable settlements shall be
(1) In writing;
(2) In a language or dialect known to the
parties;
(3) Signed by them; and

(4) Attested to by the lupon chairman or
the pangkat chairman, as the case
may be.
Effect
The amiable settlement and arbitration award
shall have the effect of a final judgment of a
court upon expiration of 10 days from date
thereof, unless:
(1) Repudiation of the settlement has
been made, or
(2) Petition to nullify the award has been
filed before the proper city or
municipal ourt
Execution shall issue upon expiration of 10
days from settlement.
LUMBUAN v. RONQUILLO
(489 SCRA 650, 2006)
While admittedly no pangkat was
constituted, the parties met at the office of
the Barangay Chairman for possible
settlement. The act of Lumbuan in raising
the matter to the Katarungang
Pambarangay and the subsequent
confrontation of the lessee and lessor
before the Lupon Chairman or the pangkat
is sufficient compliance with the
precondition for filing the case in court.
FACTS: Lumbuan (lessor) leased a lot to
respondent Ronquillo (lessee) for 3 years at a
rental of P5000/month. They agreed that: (a)
there will be an annual 10% increase in rent
for the next 2 years; and (b) the leased
premises shall be used only for lessee’s
fastfood business. Ronquillo failed to abide by
the conditions, and refused to pay or vacate
the leased premises despite Lumbuan’s
repeated verbal demands.
Lumbuan referred the matter to the
Barangay Chairman’s Office but no amicable
settlement was reached. The barangay
chairman issued a Certificate to File Action.
Lumbuan filed an action for Unlawful Detainer
with MeTC of Manila which ordered respondent
Ronquillo to vacate the leased premises and to
pay P46,000 as unpaid rentals.
RTC set aside the MeTC decision and
directed the parties to go back to the Lupon
Chairman or Punong Barangay for further
proceedings and to comply strictly with the
condition that should the parties fail to reach
an amicable settlement, the entire case will be
remanded to the MeTC for it to decide the case
anew.
The CA reversed the RTC and ordered
the dismissal of the ejectment case, ruling that
when a complaint is prematurely instituted, as
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER8
when the mandatory mediation and
conciliation in the barangay level had not been
complied with, the court should dismiss the
case and not just remand the records to the
court of origin so that the parties may go
through the prerequisite proceedings.
ISSUE: Whether the CA properly dismissed
complaint for failure of the parties to comply
with the mandatory mediation and conciliation
proceedings in the barangay level
NO. It should be noted that although
no pangkat was formed since no amicable
settlement was reached by the parties before
the Katarungang Pambarangay, there was
substantial compliance with Section 412(a) of
R.A. 7160.
While admittedly no pangkat was
constituted, the parties met at the office of the
Barangay Chairman for possible settlement.
Thereby, the act of petitioner Lumbuan in
raising the matter to the Katarungang
Pambarangay and the subsequent
confrontation of the lessee and lessor before
the Lupon Chairman or the pangkat is
sufficient compliance with the precondition for
filing the case in court. This is true
notwithstanding the mandate of Section 410(b)
of the same law that the Barangay Chairman
shall constitute a pangkat if he fails in his
mediation efforts. Section 410(b) should be
construed together with Section 412, as well as
the circumstances obtaining in and peculiar to
the case. On this score, it is significant that the
Barangay Chairman or Punong Barangay is
herself the Chairman of the Lupon under the
Local Government Code.
2. Payment of filing fee
Payment of the prescribed docket fee vests a
trial court with jurisdiction over the subject
matter or nature of the action. The court
acquires jurisdiction upon payment of the
correct docket fees.
 All complaints, petitions, answers, and
similar pleadings must specify the
amount of damages being prayed for,
both in the body of the pleadings and
in the assessment of the filing fees.
 Manchester v. CA: Any defect in the
original pleading resulting in
underpayment of the docket fee
cannot be cured by amendment, and
for all legal purposes, the court
acquired no jurisdiction in such case.
 BUT nonpayment of filing fees does
not automatically cause the dismissal
of the case. The fee may be paid within
the applicable prescriptive or
reglementary period.

HEIRS OF BERTULDO HINOG v. MELICOR
(455 SCRA 460, 2005)
Non-payment at the time of filing does not
automatically cause the dismissal of the
case, as long as the fee is paid within the
applicable prescriptive or reglementary
period, more so when the party involved
demonstrates a willingness to abide by the
rules prescribing such payment. Thus, when
insufficient filing fees were initially paid by
the plaintiffs and there was no intention to
defraud the government, the Manchester
rule does not apply.
FACTS: Respondents filed a complaint against
Bertuldo for recovery of ownership of the
premises leased by the latter. Bertuldo alleged
ownership of the property by virtue of a Deed
of Absolute Sale. Bertuldo died without
completing his evidence during the direct
examination. Atty. Petalcorin replaced the
original counsel and filed a motion to expunge
the complaint from the record and nullify all
court proceedings on the ground that private
respondents failed to specify in the
complaint the amount of damages claimed
as needed to pay the correct docket fees, and
that under Manchester doctrine, non-payment
of the correct docket fee is jurisdictional.
ISSUE: Whether the nonpayment of the correct
docket fee is jurisdictional in the present case
NO. While the payment of the
prescribed docket fee is a jurisdictional
requirement, even its non-payment at the time
of filing does not automatically cause the
dismissal of the case, as long as the fee is paid
within the applicable prescriptive or
reglementary period, more so when the party
involved demonstrates a willingness to abide
by the rules prescribing such payment. Thus,
when insufficient filing fees were initially paid
by the plaintiffs and there was no intention to
defraud the government, the Manchester rule
does not apply.
SUN INSURANCE OFFICE v. ASUNCION
(170 SCRA 274, 1989)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER9
Where the filing of the initiatory pleading is
not accompanied by payment of the docket
fee, the court may allow payment of the fee
within a reasonable time but in no case
beyond the applicable prescriptive or
reglementary period. Where the trial court
acquires jurisdiction over a claim by the
filing of the pleading and payment of
prescribed filing fees but the judgment
awards a claim not specified in the
pleading, or if specified the same has been
left for the court’s determination, the
additional filing fee shall constitute a lien
on the judgment. It shall be the
responsibility of the Clerk of Court or his
duly authorized deputy to enforce said lien
FACTS
Sun Insurance Office, Ltd. (SIOL) filed a
complaint against Uy for the consignation of a
premium refund on a fire insurance policy with
a prayer for the judicial declaration of its
nullity. Uy was declared in default for failure to
file the required answer within the
reglementary period. Uy filed a complaint in
the RTC for the refund of premiums and the
issuance of a writ of preliminary attachment
initially against petitioner SIOL, but thereafter
included Philipps and Warby as additional
defendants. The complaint sought the
payment of actual, compensatory, moral,
exemplary and liquidated damages, attorney's
fees, expenses of litigation and costs of the
suit. Although the prayer in the complaint did
not quantify the amount of damages sought
said amount may be inferred from the body of
the complaint to be about P50,000,000.
Uy paid only P210.00 as docket fee,
which prompted petitioners' counsel to raise
his objection for under-assessment of docket
fees.
Petitioners allege that while Uy had
paid P182,824.90 as docket fee, and
considering that the total amount sought in the
amended and supplemental complaint is
P64,601,623.70, the docket fee that should be
paid by private respondent is P257,810.49,
more or less. Not having paid the same,
petitioners contend that the complaint should
be dismissed and all incidents arising
therefrom should be annulled.
ISSUE: Whether or not a court acquires
jurisdiction over case when the correct and
proper docket fee has not yet been paid
YES. Where the filing of the initiatory
pleading is not accompanied by payment of
the docket fee, the court may allow payment
of the fee within a reasonable time but in no
case beyond the applicable prescriptive or
reglementary period. Where the trial court
 CIVIL PROCEDURE REVIEWER10

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

Single cause of action (Cannot be filed

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

Splitting a cause of action

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

MENDEZ, IVAN VIKTOR (2D, ’13)


Where there is only one delict or wrong,
there is but a single cause of action
regardless of the number of rights that may
have been violated belonging to one person.
Nevertheless, if only one injury resulted
from several wrongful acts, only one cause
of action arises.
FACTS: Joseph, petitioner, boarded Perez’s
cargo truck with a load of livestock. At the
highway, the truck driver overtook a tricycle
but hit a mango tree when a pick-up truck tried
to overtake him at the same time. This
resulted to the bone fracture of the petitioner’s
leg.
Petitioner filed a complaint for
damages against Perez, as owner, based on a
breach of contract of carriage, and against
Sioson and Villanueva, the owner and driver of
the pick-up truck, based on quasi-delict.
Petitioner impleaded Pagarigan and Vargas,
since he could not ascertain who the real
owners of the pick-up truck and the cargo
truck were. Perez filed a cross-claim against
the other respondents for indemnity, in the
event that she is ordered to pay.
The other respondents paid petitioner's
claim for injuries, so they were released from
liability. They also paid Perez for her claim of
damages. They thereafter filed a Motion to
Exonerate and Exclude themselves since
they’ve already paid Joseph by way of
amicable settlement and Perez’s claim for
damages. Perez filed an Opposition to the
motion since the release of claim executed by
petitioner in favor of the other respondents
allegedly inured to his benefit. RTC dismissed
the case.
ISSUE: Whether the judgment on the
compromise agreement under the cause of
action based on quasi-delict is a bar to the
cause of action for breach of contract of
carriage
YES. A single act or omission can be
violative of various rights at the same time, as
when the act constitutes a juridical a violation
of several separate and distinct legal
obligations. However, where there is only one
delict or wrong, there is but a single cause of
action regardless of the number of rights that
may have been violated belonging to one
person. Nevertheless, if only one injury
resulted from several wrongful acts, only one
cause of action arises.
There is no question that petitioner
sustained a single injury on his person, which
vested in him a single cause of action, albeit
with the correlative rights of action against the
different respondents through the appropriate
remedies allowed by law. Only one cause of
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER11
action was involved although the bases of
recovery invoked by petitioner against the
defendants therein were not necessarily
identical since the respondents were not
identically circumstanced.
DEL ROSARIO v. FEBTC
(537 SCRA 571, 2007)
It is well established, however, that a party
cannot, by varying the form of action or
adopting a different method of presenting
his case, or by pleading justifiable
circumstances as herein petitioners are
doing, escape the operation of the principle
that one and the same cause of action shall
not be twice litigated.
FACTS: PDCP extended a P4.4 million loan to
DATICOR, which that DATICOR shall pay: a
service fee of 1% per annum (later increased
6% per annum) on the outstanding balance;
12% per annum interest; and penalty charges
2% per month in case of default. The loans
were secured by real estate mortgages over
six (6) parcels of land and chattel mortgages
over machinery and equipment.
DATICOR paid a total of P3 million to
PDCP, which the latter applied to interest,
service fees and penalty charges. This left
them with an outstanding balance of P10
million according to PDCP’s computation.
DATICOR filed a complaint against
PDCP for violation of the Usury Law and
annulment of contract and damages. The CFI
dismissed the complaint. The IAC set aside the
dismissal and declared void and of no effect
the stipulation of interest in the loan
agreement. PDCP appealed the IAC's decision
to SC.
In the interim, PDCP assigned a portion
of its receivables from DATICOR to FEBTC for
of P5.4 M. FEBTC and DATICOR, in a MOA,
agreed to P6.4 million as full settlement of the
receivables.
SC affirmed in toto the decision of the
IAC, nullifying the stipulation of interests.
DATICOR thus filed a Complaint for
sum of money against PDCP and FEBTC to
recover the excess payment which they
computed to be P5.3 million. RTC ordered
PDCP to pay petitioners P4.035 million, to bear
interest at 12% per annum until fully paid; to
release or cancel the mortgages and to return
the corresponding titles to petitioners; and to
pay the costs of the suit.
RTC dismissed the complaint against
FEBTC for lack of cause of action since the

MOA between petitioners and FEBTC was not
subject to SC decision, FEBTC not being a party
thereto.
Petitioners and PDCP appealed to the
CA, which held that petitioners' outstanding
obligation (determined to be only P1.4 million)
could not be increased or decreased by any act
of the creditor PDCP, and held that when PDCP
assigned its receivables, the amount payable
to it by DATICOR was the same amount
payable to assignee FEBTC, irrespective of any
stipulation that PDCP and FEBTC might have
provided in the Deed of Assignment, DATICOR
not having been a party thereto, hence, not
bound by its terms.
By the principle of solutio indebiti, the
CA held that FEBTC was bound to refund
DATICOR the excess payment of P5 million it
received; and that FEBTC could recover from
PDCP the P4.035 million for the overpayment
for the assigned receivables. But since
DATICOR claimed in its complaint only
of P965,000 from FEBTC, the latter was
ordered to pay them only that amount.
Petitioners filed before the RTC
another Complaint against FEBTC to recover
the balance of the excess payment of P4.335
million.
The trial court dismissed petitioners'
complaint on the ground of res judicata and
splitting of cause of action. It recalled that
petitioners had filed an action to recover the
alleged overpayment both from PDCP and
FEBTC and that the CA Decision, ordering PDCP
to release and cancel the mortgages and
FEBTC to pay P965,000 with interest became
final and executory.
ISSUE: Whether FEBTC can be held liable for
the balance of the overpayment of P4.335
million plus interest which petitioners
previously claimed against PDCP in a
previously decided case
NO. A cause of action is the delict or
the wrongful act or omission committed by the
defendant in violation of the primary rights of
the plaintiff. In the two cases, petitioners
imputed to FEBTC the same alleged wrongful
act of mistakenly receiving and refusing to
return an amount in excess of what was due it
in violation of their right to a refund. The same
facts and evidence presented in the first case
were the very same facts and evidence that
petitioners presented in the second case.
A party cannot, by varying the form of
action or adopting a different method of
presenting his case, or by pleading justifiable
circumstances as herein petitioners are doing,
escape the operation of the principle that one
and the same cause of action shall not be
twice litigated.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER12
SC held that to allow the re-litigation of
an issue that was finally settled as between
petitioners and FEBTC in the prior case is to
allow the splitting of a cause of action, a
ground for dismissal under Section 4 of Rule 2
of the Rules of Court.
This rule proscribes a party from
dividing a single or indivisible cause of action
into several parts or claims and instituting two
or more actions based on it. Because the
plaintiff cannot divide the grounds for
recovery, he is mandated to set forth in his
first action every ground for relief which he
claims to exist and upon which he relies; he
cannot be permitted to rely upon them by
piecemeal in successive actions to recover for
the same wrong or injury.
Both the rules on res judicata and
splitting of causes of action are based on the
salutary public policy against unnecessary
multiplicity of suits—interest reipublicae ut sit
finis litium. Re-litigation of matters already
settled by a court's final judgment merely
burdens the courts and the taxpayers, creates
uneasiness and confusion, and wastes valuable
time and energy that could be devoted to
worthier cases.
PROGRESSIVE DEVELOPMENT CORP. v. CA
(301 SCRA 367, 1991)
When a single delict or wrong is committed
— like the unlawful taking or detention of
the property of another — there is but one
single cause of action regardless of the
number of rights that may have been
violated, and all such rights should be
alleged in a single complaint as constituting
one single cause of action. In a forcible
entry case, the real issue is the physical
possession of the real property. The
question of damages is merely secondary or
incidental, so much so that the amount
thereof does not affect the jurisdiction of
the court. In other words, the unlawful act of
a deforciant in taking possession of a piece
of land by means of force and intimidation
against the rights of the party actually in
possession thereof is a delict or wrong, or a
cause of action that gives rise to two (2)
remedies, namely, the recovery of
possession and recovery of damages arising
from the loss of possession, but only to
one action. For obvious reasons, both
remedies cannot be the subject of two
(2) separate and independent actions,
one for recovery of possession only, and the

FACTS: PDC leased to Westin a parcel of land
with a commercial building for 9 years and 3
months, with a monthly rental of
approximately P600,000. Westin failed to pay
rentals despite several demands. The
arrearages amounted to P8,6M. PDC
repossessed the leased premises, inventoried
the movable properties found within and
owned by Westin, and scheduled a public
auction for the sale of the movables, with
notice to Westin.
Westin filed a forcible entry case with
the MeTC against PDC for with damages and a
prayer for a temporary restraining order and/or
writ of preliminary injunction. A TRO enjoined
PDC from selling Westin's properties.
At the continuation of the hearing, the
parties agreed, among others, that Westin
would deposit with the PCIB (Bank) P8M to
guarantee payment of its back rentals. Westin
did not comply with its undertaking, and
instead, with the forcible entry case still
pending, Westin instituted another action for
damages against PDC with the RTC.
The forcible entry case had as its
cause of action the alleged unlawful entry by
PDC into the leased premises out of which
three (3) reliefs arose: (a) the restoration by
PDC of possession of the leased premises to
the lessee; (b) the claim for actual damages
due to losses suffered by Westin; and, (c) the
claim for attorney’s fees and cost of suit.
On the other hand, the complaint for
damages prays for a monetary award
consisting of moral and exemplary damages;
actual damages and compensatory damages
representing unrealized profits; and, attorney's
fees and costs, all based on the alleged
forcible takeover of the leased premises by
PDC.
PDC filed a motion to dismiss the
damage suit on the ground of litis pendencia
and forum shopping. The RTC, instead of ruling
on the motion, archived the case pending the
outcome of the forcible entry case.
Westin filed with the RTC an amended
complaint for damages, which was granted. It
also filed an Urgent Ex-Parte Motion for the
Issuance of a TRO and Motion for the Grant of
a Preliminary Prohibitory and Preliminary
Mandatory Injunction, which were all granted.
PDC’s motion to dismiss was denied.
Thus, PDC filed with the CA a special
civil action for certiorari and prohibition. But
the CA dismissed the petition. It clarified that
since the damages prayed for in the amended
complaint with the RTC were those caused by
the alleged high-handed manner with which
PDC reacquired possession of the leased
premises and the sale of Westin's movables
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER13
found therein, the RTC and not the MeTC had
jurisdiction over the action of damages.
ISSUE: Whether Westin may institute a
separate suit for damages with the RTC after
having instituted an action for forcible entry
with damages with the MeTC
NO. Sec. 1 of Rule 70 of the Rules of
Court provides that all cases for forcible entry
or unlawful detainer shall be filed before the
MTC which shall include not only the plea for
restoration of possession but also all claims for
damages and costs arising therefrom.
Otherwise expressed, no claim for damages
arising out of forcible entry or unlawful
detainer may be filed separately and
independently of the claim for restoration of
possession.
Under Sec. 3 of Rule 2 of the Revised
Rules of Court, as amended, a party may not
institute more than one suit for a single cause
of action. Under Sec. 4 of the same Rule, if
two or more suits are instituted on the basis of
the same cause of action, the filing of one or a
judgment upon the merits in any one is
available as a ground for the dismissal of the
other or others.
Westin's cause of action in the forcible
entry case and in the suit for damages is the
alleged illegal retaking of possession of the
leased premises by PDC from which all legal
reliefs arise. Simply stated, the restoration of
possession and demand for actual damages in
the case before the MeTC and the demand for
damages with the RTC both arise from the
same cause of action, i.e., the forcible entry by
PDC into the least premises. The other claims
for moral and exemplary damages cannot
succeed considering that these sprung from
the main incident being heard before the
MeTC. Jurisprudence says that when a single
delict or wrong is committed — like the
unlawful taking or detention of the property of
the another — there is but one single cause of
action regardless of the number of rights that
may have been violated, and all such rights
should be alleged in a single complaint as
constituting one single cause of action. In a
forcible entry case, the real issue is the
physical possession of the real property. The
question of damages is merely secondary or
incidental, so much so that the amount thereof
does not affect the jurisdiction of the court. In
other words, the unlawful act of a deforciant in
taking possession of a piece of land by means
of force and intimidation against the rights of
the party actually in possession thereof is a
delict or wrong, or a cause of action that gives
rise to two (2) remedies, namely, the recovery
of possession and recovery of damages arising
from the loss of possession, but only to one

action. For obvious reasons, both remedies
cannot be the subject of two (2) separate and
independent actions, one for recovery of
possession only, and the other, for the
recovery of damages. That would inevitably
lead to what is termed in law as splitting up a
cause of action.
What then is the effect of the dismissal
of the other action? Since the rule is that all
such rights should be alleged in a single
complaint, it goes without saying that those
not therein included cannot be the subject of
subsequent complaints for they are barred
forever. If a suit is brought for a part of a
claim, a judgment obtained in that action
precludes the plaintiff from bringing a second
action for the residue of the claim,
notwithstanding that the second form of action
is not identical with the first or different
grounds for relief are set for the second suit.
This principle not only embraces what was
actually determined, but also extends to every
matter which the parties might have litigated
in the case. This is why the legal basis upon
which Westin anchored its second claim for
damages, i.e., Art. 1659 in relation to Art. 1654
of the Civil Code, not otherwise raised and
cited by Westin in the forcible entry case,
cannot be used as justification for the second
suit for damages.
CGR CORP. V. TREYES
(522 SCRA 765, 2007)
Petitioners’ filing of an independent action
for damages grounded on the alleged
destruction of CGR’s property, other than
those sustained as a result of dispossession
in the Forcible Entry case could not be
considered as splitting of a cause of action.
FACTS: CGR Corporation, Herman Benedicto
and Alberto Benedicto, petitioners, claim to
have occupied 37 ha. of public land in Negros
Occidental, pursuant to a lease agreement
granted to them by the Secretary of
Agriculture for a period of 25 years (to last
October 2000 to December 2024). On
November 2000, however, respondent Treyes
allegedly forcibly and unlawfully entered the
leased premises and barricaded the entrance
to the fishponds of the petitioners. Treyes and
his men also harvested tons of milkfish and
fingerlings from the petitioners’ ponds.
Petitioners then filed a complaint for
Forcible Entry with the MTC. Another complaint
to claim for damages was also filed by the
petitioners against the same respondent
Treyes grounded on the allegations that Treyes
and his men also destroyed and ransacked the
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER14
Chapel built by petitioner CGR Corporation and
decapitated the heads of the religious figures.
ISSUE: Whether during the pendency of a
separate complaint for Forcible Entry, the
petitioner can independently institute and
maintain an action for damages which they
claim arose from incidents occurring after the
forcible entry of Treyes and his men
YES. The only recoverable damages in
the forcible entry and detainer cases instituted
first by the petitioners with the MTC are the
“rents” or fair rental value of the property from
the time of dispossession by the respondent.
Hence, other damages being claimed by the
petitioners must be claimed in another
ordinary civil action.
It is noteworthy that the second action
instituted by the petitioners (complaint for
damages) have NO direct relation to their loss
of possession of the leased premises – which is
the main issue in the first action they
instituted. The second action for claim of
damages had to do with the harvesting and
carting away of milkfish and other marine
products, as well as the ransacking of the
chapel built by CGR Corp. Clearly, the
institution of the two cases is not a splitting of
a cause of action, since both are concerned
with entirely different issues.
ENRIQUEZ v. RAMOS
(7 SCRA 265, 1963)
An examination of the first complaint filed
against appellant in CFI showed that it was
based on appellants' having unlawfully
stopped payment of the check for
P2,500.00 she had issued in favor of
appellees; while the complaint in the
second and present action was for non-
payment of the balance of P96,000.00
guaranteed by the mortgage. The claim for
P2,500.00 was, therefore, a distinct debt
not covered by the security. The two
causes of action being different, section 4
of Rule 2 does not apply.
FACTS: Rodrigo Enriquez and the Dizon
spouses sold to Socorro Ramos 11 parcels of
land for P101,000. Ramos paid P5,000
downpayment, P2,500 in cash, and with a
P2,500.00 check drawn against PNB, and
agreed to satisfy the balance of P96,000.00
within 90 days. To secure the said balance,
Ramos, in the same deed of sale, mortgaged
the 11 parcels in favor of the vendors. Ramos
mortgaged a lot on Malinta Estate as additional
security, as attorney-in-fact of her four children
and as judicial guardian of her minor child.

Ramos failed to comply with the
conditions of the mortgage, so an action for
foreclosure was filed by the vendors-
mortgagees. Ramos moved to dismiss, alleging
that the plaintiffs previously had filed action
against her in the CFI of Manila for the
recovery of P2,500.00 paid by check as part of
the down payment on the price of the
mortgaged lands; that at the time this first suit
was filed, the mortgage debt was already
accrued and demandable; that plaintiffs were
guilty of splitting a single cause of action, and
under section 4 of Rule 2 of the Rules of Court,
the filing of the first action for P2,500.00 was a
defense that could be pleaded in abatement of
the second suit.
CFI of Quezon City denied the motion
to dismiss. Defendant Ramos re-pleaded the
averments as a special defense in her answer.
The CFI ruled against defendant Ramos;
ordered her to pay P96,000.00, with 12%
interest, attorney's fees, and the costs of the
suit; and further decreed the foreclosure sale
of the mortgaged properties in case of non-
payment within 90 days. Ramos appealed
directly to SC,
ISSUE: Whether there was splitting of cause of
action
NO, there is no splitting of cause of
action in this case. An examination of the first
complaint filed against appellant in CFI showed
that it was based on appellants' having
unlawfully stopped payment of the check for
P2,500.00 she had issued in favor of appellees,
while the complaint in the second and present
action was for non-payment of the balance of
P96,000.00 guaranteed by the mortgage. The
claim for P2,500.00 was, therefore, a distinct
debt not covered by the security. The two
causes of action being different, section 4 of
Rule 2 does not apply.
Remedy against splitting a single cause
of action
(a) Motion to dismiss (Sec 1 [e] or [f], Rule
16)—
Within the time for but before filing the
answer to the complaint or pleading
asserting a claim, a motion to dismiss
may be made on any of the following
grounds:
xxx
(e) That there is another action
pending between the same parties for
the same cause;
(f) That the cause of action is barred
by a prior judgment or by the statute
of limitations
xxx
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER15
(b) Answer alleging affirmative defense
(Sec. 6, Rule 16)—
If no motion to dismiss has been filed,
any of the grounds for dismissal
provided for in this Rule may be
pleaded as an affirmative defense in
the answer and, in the discretion of the
court, a preliminary hearing may be
had thereon as if a motion to dismiss
had been filed.
NOTE: As to which action should be dismissed
(the first or second one) would depend upon
judicial discretion and the prevailing
circumstances of the case.
Joinder of causes of action
Joinder of causes of action is the assertion of
as many causes of action as a party may have
against another in one pleading. It is the
process of uniting two or more demands or
rights of action in one action.
 This is merely permissive, NOT
compulsory, because of the use of the
word “may” in Sec. 5, Rule 2.
It is subject to the following conditions:
(a) The party joining the causes of action
shall comply with the rules on joinder
of parties;
i. The right to relief should arise
out of the same transaction or
series of transaction, and
ii. There exists a common
question of law or fact. (Sec. 6,
Rule 3)
(b) The joinder shall not include special
civil actions or actions governed by
special rules;
 Example: An action for claim of
money cannot be joined with
an action for ejectment, or with
an action for foreclosure.
(c) Where the causes of action are
between the same parties but pertain
to different venues or jurisdictions, the
joinder may be allowed in the RTC
provided
i. one of the causes of action
falls within the jurisdiction of
said court, and
ii. the venue lies therein; and
(d) Where the claims in all the causes of
action are principally for recovery of
money, the aggregate amount claimed

shall be the test of jurisdiction. (Sec. 5,
Rule 2)
Misjoinder of causes of action
Misjoinder of causes of action is NOT a ground
for dismissal of an action. A misjoined cause of
action may be severed and proceeded with
separately:
(a) on motion of a party, or
(b) on the initiative of the court. (Sec. 6,
Rule 2)
FLORES v. MALLARE-PHILLIPPS
(144 SCRA 277, 1986)
Application of the Totality Rule under Sect.
33(l) BP129 and Sect. 11 of the Interim
Rules is subject to the requirements for the
Permissive Joinder of Parties under Sec. 6
of Rule 3.
In cases of permissive joinder of
parties, the total of all the claims shall be
the first jurisdictional test. If instead of a
joinder, separate actions are filed by or
against the parties, the amount demanded
FACTS: Binongcal and Calion, in separate
transactions, purchased truck tires on credit
from Flores. The two allegedly refused to pay
their debts, so Flores filed a complaint where
the first cause of action was against Binongcal
for P11, 643, and the second was against
Calion for P10, 212. Binongcal filed a Motion to
Dismiss on the ground of lack of jurisdiction
since under Sec. 19(8) of BP129 RTC shall
exercise exclusive original jurisdiction if the
amount of the demand is more than P20, 000,
and that the claim against him is less than that
amount. He averred further that although
Calion was also indebted to Flores, his
obligation was separate and distinct from the
other, so the aggregate of the claims cannot
be the basis of jurisdiction. Calion joined in
moving for the dismissal of the complaint
during the hearing of the motion. Petitioner
opposed the Motion to Dismiss. RTC dismissed
the complaint for lack of jurisdiction.
ISSUE: Whether RTC has jurisdiction over the
case following the Totality Rule
YES. The Totality Rule (under Sec. 33
of BP129 and Sec. 11 of the Interim Rules)
applies not only to cases where two or more
plaintiffs having separate causes of action
against a defendant join in a single complaint,
but also to cases where a plaintiff has separate
causes of action against two or more
defendants joined in a single complaint.
However, the said causes of action should
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER16
arise out of the same transaction or series of
transactions and there should be a common
question of law or fact, as provided in Sec. 6 of
Rule 3.
In cases of permissive joinder of
parties, the total of all the claims shall be the
first jurisdictional test. If instead of joining or
being joined in one complaint, separate actions
are filed by or against the parties, the amount
demanded in each complaint shall be the
second jurisdictional test.
In the case at bar, the lower court
correctly held that the jurisdictional test is
subject to the Rules on Joinder of Parties
pursuant to Sec. 5 of Rule 2 and Sec. 6 of Rule
3 of the Rules of Court. Moreover, after a
careful scrutiny of the complaint, It appears
that there is a misjoinder of parties for the
reason that the claims against Binongcal and
Calion are separate and distinct and neither of
which falls within its jurisdiction.
UNIWIDE HOLDINGS, INC. v. CRUZ
(529 SCRA 664, 2007)
Exclusive venue stipulation embodied in a
contract restricts or confines parties
thereto when the suit relates to breach of
said contract. But where the exclusivity
clause does not make it necessarily
encompassing, such that even those not
related to the enforcement of the contract
should be subject to the exclusive venue,
the stipulation designating exclusive
venues should be strictly confined to the
FACTS: Uniwide Holdings, Inc. (UHI) granted
Cruz, a 5yr. franchise to adopt and use the
"Uniwide Family Store System" for the
establishment and operation of a "Uniwide
Family Store" in Marikina. The agreement
obliged Cruz to pay UHI a P50,000 monthly
service fee or 3% of gross monthly purchases,
whichever is higher, payable within 5 days
after the end of each month without need of
formal billing or demand from UHI. In case of
any delay in the payment of the monthly
service fee, Cruz would be liable to pay an
interest charge of 3% per month.
It appears that Cruz had purchased
goods from UHI’s affiliated companies FPC and
USWCI. FPC and USWCI assigned all their rights
and interests over Cruz’s accounts to UHI. Cruz
had outstanding obligations with UHI, FPC, and
USWCI in the total amount of P1,358,531.89,
which remained unsettled despite the
demands made.
Thus UHI filed a complaint for
collection of sum of money before RTC of
Parañaque Cruz on the following causes of
action: (1) P1,327,669.832 in actual damages

for failure to pay the monthly service fee; (2)
P64,165.96 of actual damages for failure to
pay receivables assigned by FPC to UHI; (3)
P1,579,061.36 of actual damages for failure to
pay the receivables assigned by USWCI to UHI;
(4) P250,000.00 of attorney’s fees.
Cruz filed a motion to dismiss on the
ground of improper venue, invoking Article
27.5 of the agreement which reads:
27.5 Venue Stipulation – The
Franchisee consents to the exclusive
jurisdiction of the courts of Quezon City, the
Franchisee waiving any other venue.
Parañaque RTC granted Cruz’s motion
to dismiss. Hence, the present petition.
ISSUE: Whether a case based on several
causes of action is dismissible on the ground
of improper venue where only one of the
causes of action arises from a contract with
exclusive venue stipulation
NO. The general rule on venue of
personal actions provides actions may be
commenced and tried where the plaintiff or
any of the principal plaintiffs resides, or where
the defendant or any of the principal
defendants resides, or in the case of a
nonresident defendant, where he may be
found, at the election of the plaintiff. The
parties may also validly agree in writing on an
exclusive venue. The forging of a written
agreement on an exclusive venue of an action
does not, however, preclude parties from
bringing a case to other venues.
Where there is a joinder of causes of
action between the same parties and one
action does not arise out of the contract where
the exclusive venue was stipulated upon, the
complaint, as in the one at bar, may be
brought before other venues provided that
such other cause of action falls within the
jurisdiction of the court and the venue lies
therein.
Based on the allegations in petitioner’s
complaint, the second and third causes of
action are based on the deeds of assignment
executed in its favor by FPC and USWCI. The
deeds bear no exclusive venue stipulation with
respect to the causes of action thereunder.
Hence, the general rule on venue applies – that
the complaint may be filed in the place where
the plaintiff or defendant resides.
It bears emphasis that the causes of
action on the assigned accounts are not based
on a breach of the agreement between UHI
and Cruz. They are based on separate, distinct
and independent contracts—deeds of
assignment in which UHI is the assignee of
Cruz’s obligations to the assignors FPC and
USWCI. Thus, any action arising from the
deeds of assignment cannot be subjected to
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER17
the exclusive venue stipulation embodied in
the agreement.
Exclusive venue stipulation embodied
in a contract restricts or confines parties
thereto when the suit relates to breach of said
contract. But where the exclusivity clause does
not make it necessarily encompassing, such
that even those not related to the enforcement
of the contract should be subject to the
exclusive venue, the stipulation designating
exclusive venues should be strictly confined to
the specific undertaking or agreement.
Otherwise, the basic principles of freedom to
contract might work to the great disadvantage
of a weak party-suitor who ought to be allowed
free access to courts of justice.
What is the totality rule?
Where the claims in all the causes of action are
principally for recovery of money, the
aggregate amount claimed shall be the test of
jurisdiction. (Sec. 5, Rule 2)
PARTIES TO CIVIL ACTIONS (RULE 3)
Parties (Sec. 1, Rule 3)
(1) Plaintiff—
The plaintiff is the claiming party or the
original claiming party and is the one who
files the complaint.
 It may also apply to a
defendant who files a
counterclaim, a cross-claim or a
third party complaint.
(2) Defendant—
The defendant refers to the original
defending party, and also the defendant in
a counterclaim, the cross-defendant, or the
third party defendant.
 If a counterclaim is filed
against the original plaintiff, the
latter becomes the defendant.
Who may be parties? (Sec. 1, Rule 3)
(1) Natural persons
(2) Juridical persons
(a) The State and its political subdivisions;
(b) Other corporations, institutions and
entities for public interest or purpose,
created by law; and
(c) Corporations, partnerships and
associations for private interest r
purpose to which the law grants a
juridical personality, separate and
distinct from each shareholder, partner
or member. (Art. 44, Civil Code)

(3) Entities authorized by law, even if they lack
juridical personality
(a) Corporation by estoppel (Sec. 21,
Corporation Code);
(b) Partnership having a capital of P3,000
or more but fails to comply with the
registration requirements (Art. 1768,
Civil Code);
(c) Estate of a deceased person
(d) A legitimate labor organization (Art.
242 [e], Labor Code);
(e) The Ramon Catholic Church;
(f) A dissolved corporation may prosecute
and defend in suits which:
a. Occur within 3 years after
dissolution; and
b. Are connected with the
settlement and closure of its
affairs (Sec. 122, Corporation
Code)
CLASSIFICATION OF PARTIES
Real party-in-interest
A real party in interest is the party who stands
to be benefited or injured by the judgment in
the suit, or the party entitled to the avails of
the suit.
 Unless otherwise authorized by law or
these Rules, every action must be
prosecuted or defended in the name of
the real party in interest. (Sec. 2, Rule
3)
 Real interest—a present substantial
interest as distinguished from a mere
expectancy or a future, contingent
subordinate or consequential interest.
It is material and direct, as
distinguished from a mere incidental
interest.
 The owner of the right of violated is the
real party in interest as plaintiff, and
the person responsible for the violation
is the real party in interest as
defendant.
Not real party in interest
 A person who has not taken part in a
contract
 Third party who has not taken part in a
compromise agreement
 Mere agent in a contract of sale
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER18
Lack of personality to sue
EVANGELISTA v. SANTIAGO
(475 SCRA 744)
The term "lack of capacity to sue" refers
to a plaintiff's general disability to sue,
such as on account of minority, insanity,
incompetence, lack of juridical personality
or any other general disqualifications of a
party. "Lack of personality to sue” refers to
the fact that the plaintiff is not the real
party- in-interest. The first can be a ground
for a motion to dismiss based on the
ground of lack of legal capacity to sue;
whereas the second can be used as a
ground for a motion to dismiss based on
the fact that the complaint, on the face
FACTS: The Subject Property was part of a vast
tract of land called “Hacienda Quibiga” which
was awarded to Don Hermogenes Rodriguez by
the Queen of Spain and evidenced by a
Spanish title. Don Ismael Favila, claiming to be
one of the heirs and successors-in-interest of
Rodriguez, and pursuant to an SPA executed
by his “mga kapatid,” assigned portions of the
property to the petitioners in exchange for the
labor and work they and their predecessors
have done on the property.
Petitioners were informed that
Santiago was planning to evict them; two of
them received notices to vacate. Their
investigations revealed that the property was
included in TCTs which originated from OCT
No. 670, and is now in the name of
respondent.
Petitioners filed an action for
declaration of nullity of respondent’s
certificates of title on the basis that OCT No.
670 was fake and spurious.
As an affirmative defense, respondent
claimed that the petitioners had no legal
capacity to file the Complaint, and thus, the
Complaint stated no cause of action. He
averred that since OCT No. 670 was genuine
and authentic on its face, then the OCT and all
land titles derived therefrom, are
incontrovertible, indefeasible and conclusive
against the petitioners and the whole world.
RTC dismissed the complaint on the
ground that the action filed was in effect an
action for reversion, and therefore should have
been initiated by the OSG, not private
individuals. In the end, it concluded that the
petitioners were not the owners of the subject
property.
CA affirmed the RTC, and likewise
dismissed the complaint.

ISSUE: Whether the respondent’s action is
properly based on petitioners’ lack of legal
capacity to sue
NO. The term "lack of capacity to sue"
should not be confused with the term "lack of
personality to sue." The former refers to a
plaintiff's general disability to sue, such as on
account of minority, insanity, incompetence,
lack of juridical personality or any other
general disqualifications of a party, while the
latter refers to the fact that the plaintiff is not
the real party- in-interest. The first can be a
ground for a motion to dismiss based on the
ground of lack of legal capacity to sue;
whereas the second can be used as a ground
for a motion to dismiss based on the fact that
the complaint, on the face thereof, evidently
states no cause of action. In the present case,
this Court may assume that the respondent is
raising the affirmative defense that the
Complaint filed by the petitioners before the
trial court stated no cause of action because
the petitioners lacked the personality to sue,
not being the real party-in-interest.
ISSUE: Whether the complaint stated no cause
of action since petitioners had no personality
to sue
YES. Petitioners had no personality to
file the said action, not being the parties-in-
interest, and their Complaint should be
dismissed for not stating a cause of action.
The action is really one for the removal
of a cloud on or quieting of title and according
to Article 477 of the Civil Code, the plaintiff in
such an action must have legal or equitable
title to, or interest in, the real property which is
the subject matter of the action. Petitioners
failed to establish any legal or equitable title
to, or legitimate interest in, the Subject
Property so as to justify their right to file an
action to remove a cloud on or to quiet title.
Also, the title to and possession of the
Subject Property by petitioners’ predecessors-
in-interest could be traced only as far back as
the Spanish title of Rodriguez. Petitioners,
having acquired portions of the Subject
Property by assignment, could acquire no
better title to the said portions than their
predecessors-in-interest.
Standing to sue
DOMINGO v. CARAGUE
(456 SCRA 744, 2005)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER19
Judicial power is the power to hear and
decide cases pending between parties who
have the right to sue in courts of law and
equity. Corollary to this dictum is the
principle of locus standi of a litigant. He
who is directly affected and whose interest
is immediate and substantial has the
standing to sue. Thus, a party must show a
personal stake in the outcome of the case
or an injury to himself that can be
redressed by a favorable decision in order
to warrant an invocation of the court’s
jurisdiction and justify the exercise of
judicial power on his behalf.
FACTS: Petitioners Domingo, Gangan and
Banaria are retired Chairmen, while Ursal and
Cruz are retired Commissioners of COA
(Commission on Audit) and the other
petitioners are incumbent officers or
employees of COA. All claim “to maintain a
deep-seated abiding interest in the affairs of
COA,” especially in its Organizational
Restructuring Plan, as concerned taxpayers.
These petitioners claim that they
were divested of their designations/ranks upon
implementation of the COA Organizational
Restructuring Plan without just cause and
without due process, in violation of Civil
Service Law. Moreover, they were deprived of
their respective Representation and
Transportation Allowances (RATA), thus
causing them undue financial prejudice.
Petitioners now invoke this Court’s
judicial power to strike down the COA
Organizational Restructuring Plan for being
unconstitutional or illegal.
Petitioners invoke Chavez v. Public
Estates Authority, Agan, Jr. v. Philippine
International Air Terminals Co., Inc. and
Information Technology Foundation of the
Philippines v. Commission on Elections where
the court ruled that where the subject matter
of a case is a matter of public concern and
imbued with public interest, then this fact
alone gives them legal standing to institute the
instant petition. Petitioners contend that the
COA Organizational Restructuring Plan is not
just a mere reorganization but a revamp or
overhaul of the COA, which will have an impact
upon the rest of the government bodies
subject to its audit supervision, thus, should be
treated as a matter of transcendental
importance. Consequently, petitioners’ legal
standing should be recognized and upheld.
The respondents, through the OSG
assail the standing of the petitioners to file the
present case. Among others, they allege that
the petitioners: (1) have not shown "a personal
stake in the outcome of the case or an actual
or potential injury that can be redressed by a

favorable decision of the Court, (2) failed to
show any "present substantial interest" in teh
outcome of the case, nor (3) may the
petitioenrs claim that as taxpayers they have
legal standing because nowhere in the petition
do they claim that public funds are spent in
violation of law.
ISSUE: Whether the petitioners have standing
to sue
NO. The Petitioners have not shown
any direct and personal interest in the COA
Organizational Restructuring Plan. There is no
indication that they have sustained or are in
imminent danger of sustaining some direct
injury as a result of its implementation. In fact,
they admitted that “they do not seek any
affirmative relief nor impute any improper or
improvident act against the respondents” and
“are not motivated by any desire to seek
affirmative relief from COA or from
respondents that would redound to their
personal benefit or gain.” Clearly, they do not
have any legal standing to file the instant suit.
Judicial power is the power to hear
and decide cases pending between parties who
have the right to sue in courts of law and
equity. Corollary to this dictum is the principle
of locus standi of a litigant. He who is directly
affected and whose interest is immediate and
substantial has the standing to sue. Thus, a
party must show a personal stake in the
outcome of the case or an injury to himself
that can be redressed by a favorable decision
in order to warrant an invocation of the court’s
jurisdiction and justify the exercise of judicial
power on his behalf.
In Chavez V. PEA, the Court ruled
that the petitioner has legal standing since he
is a taxpayer and his purpose in filing the
petition is to compel the Public Estate
Authority (PEA) to perform its constitutional
duties with respect to: (a) the right of the
citizens to information on matters of public
concern; and (b) the application of a
constitutional provision intended to insure the
equitable distribution of alienable lands of the
public domain among Filipino citizens - such
were matters of transcendental importance.
In Agan,Jr. V. PIATCO, the Court held
that petitioners have legal standing as they
have a direct and substantial interest to
protect. By the implementation of the PIATCO
contracts, they stand to lose their source of
livelihood, a property right zealously protected
by the Constitution and such financial
prejudice on their part is sufficient to confer
upon them the requisite locus standi.
In Information Technology
Foundation V. COMELEC, there were two
reasons why petitioners’ standing was
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER20
recognized— (1) the award for the automation
of the electoral process was a matter of public
concern, imbued with public interest, and (2)
the individual petitioners, as taxpayers,
asserted a material interest in seeing to it that
public funds are properly used.
Representative parties
Where the action is allowed to be prosecuted
or defended by a representative or someone
acting in a fiduciary capacity, the beneficiary
shall be included in the title of the case and
shall be deemed to be the real party in
interest.
A representative may be
(1) a trustee of an express trust,
(2) a guardian,
(3) an executor or administrator, or
(4) a party authorized by law or these
Rules.
An agent acting in his own name and for the
benefit of an undisclosed principal may sue or
be sued without joining the principal except
when the contract involves things belonging to
the principal. (Sec. 3, Rule 3)
OPOSA v. FACTORAN
(224 SCRA 792, 1993)
Petitioners’ personality to sue in behalf of
the succeeding generations can only be
based on the concept of intergenerational
responsibility insofar as the right to a
balanced and healthful ecology is
concerned, since the subject matter of the
complaint is of common and general
interest to all citizens of the Philippines.
FACTS: The petitioners, all minors, sought the
help of the Supreme Court to order the
respondent, then Secretary of DENR, to cancel
all existing Timber License Agreement (TLA) in
the country and to cease and desist from
receiving, accepting, processing, renewing or
approving new TLAs. They alleged that the
massive commercial logging in the country is
causing vast abuses on rainforest.
They furthered the rights of their
generation and the rights of the generations
yet unborn to a balanced and healthful
ecology.
ISSUE: Whether or not the petitioners have a
locus standi
YES. Locus standi means the right of
the litigant to act or to be heard. Under
Section 16, Article II of the 1987 constitution:
“The state shall protect and advance the right

of the people to a balanced and healthful
ecology in accord with the rhythm and
harmony of nature.”
Petitioners, minors assert that they
represent their generation as well as
generation yet unborn. We find no difficulty in
ruling that they can, for themselves, for others
of their generation and for the succeeding
generations, file a class suit. Their personality
to sue in behalf of the succeeding generations
can only be based on the concept of
intergenerational responsibility insofar as the
right to a balanced and healthful ecology is
concerned. Such a right, as hereinafter
expounded considers the “rhythm and
harmony of nature”. Nature means the created
world in its entirety. Such rhythm and harmony
indispensably include, inter alia, the judicious
disposition, utilization, management, renewal
and conservation of the country’s forest,
mineral, land, waters fisheries, wildlife, off-
shore areas and other natural resources to the
end that their exploration, development and
utilization be equitably accessible to the
present as well as future generations.
Needless to say, every generation has a
responsibility to the next to preserve that
rhythm and harmony for the full enjoyment of
a balanced and healthful ecology. Put a little
differently, the minor’s assertion of their right
to a sound environment constitutes, at the
same time, the performance of their obligation
to ensure the protection of that right for the
generations to come.
This landmark case has been ruled as a class
suit because the subject matter of the
complaint is of common and general interest,
not just for several but for all citizens of the
Philippines.
Indispensable parties
An indispensable party is a party in interest
without whom no final determination can be
had of an action.
(1)They shall be joined either as plaintiffs
or defendants. (Sec. 7, Rule 3)
(2)The presence of all indispensable
parties is a condition sine qua non for
the exercise of judicial power.
(3)When an indispensable party is not
before the court, the action should be
dismissed.
NOTE: The failure to join an indispensable
party does not result in the outright dismissal
of the action. Non-joinder or misjoinder of
parties is not a ground for dismissal of an
action.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER21
 It is when the order of the court to
implead the indispensable party goes
unheeded may the case be dismissed.
(4)Remedy: Parties may be dropped or
added by the court on motion of any
party, or on its own initiative at any
stage of the action and on such terms
as are just. (Sec. 11, Rule 3)
DOMINGO v. SCHEER
(421 SCRA 792, 1993)
The joinder of indispensable parties under
Sec 7, Rule 3 is mandatory. Without
presence of indispensable parties to the
suit, the judgment of the court cannot attain
real finality. Strangers to a case are not
bound by the judgment rendered by the
court. The absence of an indispensable
party renders all subsequent actions of the
court null and void. There is a lack of
authority to act not only as to the absent
party but also as to those present. The
responsibility of impleading all the
indispensable parties rest on the
petitioner/plaintiff. However, the non-joinder
FACTS: Vice Consul Jutta Hippelein informed
the Philippine Ambassador to Bonn, Germany
that respondent Emil Scheer had police records
and financial liabilities in Germany. The Board
of Commissioners (BOC) therefore cancelled
respondent’s permanent residence visa, and
ordered his summary deportation and
permanent exclusion from the Philippines and
inclusion of his name on the Bureaus Blacklist.
Respondent filed an Urgent Motion for
Reconsideration of the order, but the BOC did
not resolve the respondent’s motion. The
respondent was neither arrested nor deported.
Meanwhile, the District Court of
Straubing dismissed the criminal case against
the respondent for physical injuries. The
German Embassy in Manila, thereafter, issued
a temporary passport to the respondent.
Respondent informed Commissioner
Verceles that his passport had been renewed
following the dismissal of the said criminal
case. He reiterated his request for the
cancellation of the Summary Deportation
Order and the restoration of his permanent
resident status. The BOC still failed to resolve
the respondents Urgent Motion for
Reconsideration.
In the meantime, petitioner
Immigration Commissioner Andrea T. Domingo
assumed office, and inquired with German
Embassy if the respondent was wanted by the
German police. The German Embassy replied
in the negative.

At about midnight on June 6, 2002,
Marine operatives and Bureau of Immigration
and Deportation (BID) agents apprehended the
respondent in his residence on orders of the
petitioner and was held in custody in the BID
Manila Office while awaiting his deportation.
Respondent’s counsel filed with the
BID a motion for bail to secure the respondents
temporary liberty and filed with the Court of
Appeals a petition for certiorari, prohibition
and mandamus with a prayer for temporary
restraining order and writ of preliminary
injunction, to enjoin the petitioner from
proceeding with the respondent’s deportation.
The CA issued a TRO. Petitioner argues that
the respondent’s petition with the CA should
have been dismissed for failure to implead the
real party-in-interest, which is the BOC.
ISSUE: Whether the BOC was an indispensable
party to the petition
YES. The BOC was an indispensable
party to the petition, BUT the non-joinder of
indispensable parties is not a ground for
dismissal of the action.
The respondent was arrested and
detained on the basis of the Summary
Deportation Order of the BOC. The petitioner
caused the arrest of the respondent in
obedience to the said Deportation Order. The
respondent, in his Memorandum, prayed that
the CA annul not only the Summary
Deportation Order of the BOC but also the
latter’s Omnibus Resolution, and order the
respondent’s immediate release.
The respondent also prayed that the
CA issue a writ of mandamus for the
immediate resolution of his Urgent Motion for
Reconsideration. The said motion had to be
resolved by the BOC as the order sought to be
resolved and reconsidered was issued by it and
not by the petitioner alone. The powers and
duties of the BOC may not be exercised by the
individual members of the Commission.
The joinder of indispensable parties is
mandatory. Without the presence of
indispensable parties to the suit, the judgment
of the court cannot attain real finality.
Strangers to a case are not bound by the
judgment rendered by the court. The absence
of an indispensable party renders all
subsequent actions of the court null and void.
Lack of authority to act not only of the absent
party but also as to those present. The
responsibility of impleading all the
indispensable parties rests on the
petitioner/plaintiff.
However, the non-joinder of
indispensable parties is not a ground for the
dismissal of an action. Parties may be added
by order of the court on motion of the party or
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER22
on its own initiative at any stage of the action
and/or such times as are just. If the
petitioner/plaintiff refuses to implead an
indispensable party despite the order of the
court, the latter may dismiss the
complaint/petition for the petitioner/plaintiffs
failure to comply therefor. The remedy is to
implead the non-party claimed to be
indispensable.
The Court may be curing the defect in
this case by adding the BOC as party
petitioner. Indeed, it may no longer be
necessary to do so taking into account the
unique backdrop in this case, involving as it
does an issue of public interest. After all, the
Office of the solicitor General has represented
the petitioner in the instant proceedings, as
well as the appellate court, and maintained the
validity of the deportation order and of the
BOC’s Omnibus Resolution. It cannot, thus, be
claimed by the State that the BOC was not
afforded its day in court, simply because only
the petitioner, the chairperson of the BOC, was
the respondent in the CA, and the petitioner in
the instant recourse.
UY v. CA
(494 SCRA 535, 2006)
An indispensable party is one whose
interest will be affected by the court's
action in the litigation, and without whom
no final determination of the case can be
had. The party's interest in the subject
matter of the suit and in the relief sought
are so inextricably intertwined with the
other parties' that his legal presence as a
party to the proceeding is an absolute
FACTS: The Heritage Memorial Park is a
flagship project of the Bases Conversion
Development Authority (BCDA) in Fort
Bonifacio. To implement the project, the BCDA
entered into Pool Formation Trust Agreement
(PFTA) with the PNB and the PEA. BCDA was
designated as Project Owner; PEA, the Project
Manager; and PNB as the Trustee.
PEA, as project manager, is tasked to
implement and complete the various
engineering works and improvements of
Heritage Park.
PEA and petitioner Uy, a single
proprietorship doing business under the name
of Edison Development and Construction,
executed a Landscaping and Construction
Agreement whereby the petitioner undertook
to do all the landscaping, including the
construction of a terrasoleum of the Heritage
Park.
Subsequently, the certificate holders of
the project organized themselves into a non-
 CIVIL PROCEDURE REVIEWER23

stock, non-profit corporation, the Heritage Park can be had even when a necessary party is not
Management Corporation (HPMC), now the joined.
private respondent herein. BUT a necessary party ought to be
The Heritage Park Executive joined if complete relief is to be accorded to
Committee, however, terminated the those already parties. (Sec. 8, Rule 3)
construction contracts due to delays and
discrepancies. PEA then assumed the duties of Non-joinder of necessary party
the terminated party. Petitioner filed a Whenever in any pleading in which a claim is
complaint against the PEA before the asserted a necessary party is not joined, the
Construction Industry Arbitration Commission pleader shall set forth
(CIAC) where it sought to recover payment for (1) his name, if known, and
its progress billings on the said projects. CIAC (2) shall state why he is omitted.
ruled in favor of petitioner. Respondent
appealed to the CA on the ground that CIAC Should the court find the reason for the
had no jurisdiction over the subject matter omission unmeritorious, it may order the
since HPMC was not impleaded as a party, inclusion of the omitted necessary party if
thereby depriving it of its right to be heard. CA jurisdiction over his person may be obtained.
ruled in favor of respondent. Hence this (Sec. 9, Rule 3)
petition
LAPERAL DEV’T. CORP. v. CA
ISSUE: Whether HPMC is a real party in interest (223 SCRA 261, 1993)
or an indispensable party
YES. An indispensable party is one
A proper party is one which ought to be a
whose interest will be affected by the court's
party if complete relief is to be accorded as
action in the litigation, and without whom no
between those already parties. A party is
final determination of the case can be had. The
indispensable if no final determination can
party's interest in the subject matter of the suit
be had of an action unless it is joined either
and in the relief sought are so inextricably
as plaintiff or defendant.
intertwined with the other parties' that his
legal presence as a party to the proceeding is
FACTS: Atty. Banzon sought to recover
an absolute necessity.
attorney’s fees for professional services
Based on the Construction Agreement,
rendered in several pending and past cases
PEA entered into it in its capacity as Project
from Laperal, Laperal Dev’t Corp., and Imperial
Manager, pursuant to the PFTA. According to
Dev’t Corp., referring to Sunbeams Inc. only as
the provisions of the PFTA, upon the formation
“Mr. Laperal’s Corporation.” This particular
of the HPMC, the PEA would turn over to the
civil case was decided on the basis of a
HPMC all the contracts relating to the Heritage
Compromise Agreement where Banzon waived
Park. At the time of the filing of the CIAC Case,
all other money claims against the defendants.
PEA ceased to be the Project Manager.
Subsequently, Banzon filed a complaint against
Through a Deed of Assignment, PEA assigned
Laperal, Laperal Dev’t, Imperial Dev’t,
its interests in all the existing contracts it
Sunbeams Convenience Foods, Inc., and Acsay
entered into as the Project Manager for
for (1) annulment of a portion of the
Heritage Park to HPMC.
Compromise Agreement; (2) collection of
PEA officially turned over to HPMC all
attorney’s fees for services in the cases
the documents and equipment in its
rendered for Imperial, Sunbeams, and Laperal
possession related to the Heritage Park
Dev’t.; (3) recovery of P10k adjudged to be
Project, and petitioner was duly informed of
payable to him as attorney’s fees by Ascario
these incidents. Apparently, as of the date of
Tuason; and (4) payment to him of nominal
the filing of the CIAC Case, PEA is no longer a
damages and attorney’s fees.
party-in-interest. Instead, it is now private
RTC dismissed the case on the ground that it
respondent HPMC, as the assignee, who stands
had no jurisdiction to annul the Compromise
to be benefited or injured by the judgment in
Agreement, as approved by an equal and
the suit. In its absence, there cannot be a
coordinate court. It held that the issue was
resolution of the dispute of the parties before
cognizable by the CA. Moreover, it was held
the court which is effective, complete or
that the Compromise Agreement already
equitable.
covered the plaintiff’s professional services in
the questioned cases.
Necessary party or proper party
The CA affirmed the RTC on the issue
A necessary party is not indispensable to the
of jurisdiction, but held Atty. Banzon entitled to
action since a final determination of the case
attorney’s fees from Sunbeams Inc. since it
was not subject to the compromise agreement
MENDEZ, IVAN VIKTOR (2D, ’13)

which waived all money claims against
defendants named therein, having been
referred to only as “Mr. Laperal’s corporation.”
ISSUE: Whether Sunbeams Inc., is liable to pay
attorneys fees
NO. Sunbeams Inc., which was
referred to in the complaint as “Mr. Laperal’s
Corp.” was not named as a party defendant.
The private respondent believed that Laperal,
being the President of the said company, was
directly obligated to him for attorney’s fees
due him for his handling of the case for
Sunbeams. However, there is no evidence that
Sunbeams and Laperal are one and the same
person. Sunbeams should have been joined as
party defendant in order that the judgment of
the lower court could legally affect it. But
even if it was not impleaded, the court could
still validly proceed with the case because
Sunbeams was not an indispensable party but
only a proper party. A proper party is one
which ought to be a party if complete relief is
to be accorded as between those already
parties. A party is indispensable if no final
determination can be had of an action unless it
is joined either as plaintiff or defendant.
The Compromise Agreement upon
which the decision of the court was based was
between plaintiff Atty. Banzon and the
defendants represented by Laperal. Thus,
since Sunbeams was not a party to this
agreement, it could not be affected by it.
However, Banzon’s claim for attorney’s fees
pertaining to Sunbeams was waived by him
not by virtue of the Compromise Agreement,
whereby Sunbeams was not a defendant.
What militates against his claim is his own
judicial admission that he had waived his
attorney’s fees for the cases he had handled
from 1974-1981 for Laperal and his
corporations, including those not impleaded in
his complaint.
Permissive joinder of parties
Parties may be joined in as plaintiffs or
defendants in a single complaint when
(1) Any right to relief arises out of the
same transaction or series of
transactions;
(2) There is a question of law or fact
common to all such plaintiffs or to all
such defendants;
(3) Such joinder is not otherwise
proscribed by the Rules on jurisdiction
and venue.
BUT the court may make such orders as may
be just to prevent any plaintiff or defendant
from being embarrassed or put to expense in
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER24
connection with any proceedings in which he
may have no interest. (Sec. 6, Rule 3)
Effects of misjoinder and non-joinder of
parties
A party is misjoined when he is made a party
to the action although he should not be
impleaded.
A party is not joined when is supposed
to be joined but is not impleaded in the
actions.
Neither misjoinder nor non-joinder of parties is
a ground for dismissal. Parties may be dropped
or added
by order of the court
(1)on motion of any party or on its own
initiative
(2)at any stage of the action and
(3) on such terms as are just.
Any claim against a misjoined party may be
severed and proceeded with separately. (Sec.
11, Rule 3)
NOTE: Failure to obey the order of the court to
drop or add a party is a ground for the
dismissal of the complaint. (Sec. 3, Rule 17)
Class suits
A class suit is an action where one or more
may sue for the benefit of all.
 An action does not become a class suit
merely because it is designated as
such in the pleadings. It depends upon
the attendant facts.
Requisites
(1) The subject matter of the controversy
is one of the common or general
interest to many persons
(2) The persons are so numerous that it is
impracticable to join all as parties,
(3) The parties bringing the class suit are
sufficiently numerous and
representative as to fully protect the
interests of all concerned.
(4) The representative sues or defends for
the benefit of all.
NOTE: Any party in interest shall have the right
to intervene to protect his individual interest.
(Sec. 12, Rule 3)
MATHAY v. CONSOLIDATED BANK
(58 SCRA 559, 1974)

Requirements of a class suit: 1. That the
subject matter of the controversy be one of
common or general interest to many
persons, and 2. That such persons be so
numerous as to make it impracticable to
bring them all to the court.
FACTS: Mathay, Reyes and Dionisio, plaintiffs-
appellants and stockholders in the
Consolidated Mines, Inc. (CMI) alleged that the
latter passed a resolution to organize
Consolidated Bank & Trust Co. (CBTC),
providing that all CMI stockholders are entitled
to subscribe to the capital stock of the
proposed bank at par value, and to the same
extent and amount as their shareholdings in
CMI. Circular letters with Pre-Incorporation
Agreements to subscribe were sent to CMI
stockholders. Plaintiffs-apellants and other
stockholders accomplished and filed their
respective pre-incorporation agreements and
paid the subscription. However, after some
months, the Board of Organizers executed the
Articles of Incorporation of the CBTC which
reflected that only the six (6) individual
defendants paid and subscribed to the initial
50,000 shares. When the paid-in capital stock
was increased, the plaintiff-appellants and
other CMI stockholders were again excluded.
The plaintiffs-appellants filed this complaint as
a class suit to annul and transfer the
subscription and shareholdings of the
defendants to them and other stockholders
who had been denied the right to subscribe.
They alleged as well that some of the
defendants falsely certified to the calling of a
special stockholders' meeting, when plaintiffs-
appellants and other CMI stockholders were
not notified thereof. Further, the defendants
increased the number of Directors, illegally
creating the Position of Director filled up by a
defendant, who was incompetent.
Sevilla, one of the original plaintiffs,
withdrew. Four CMI stockholders filed a motion
to intervene, and to join the plaintiffs-
appellants on record, Defendants filed a
motion to dismiss on the ground that the
plaintiffs had no legal standing or capacity to
institute the alleged class suit.
Some subscribers to the capital stock
of the Bank filed separate manifestations that
they were opposing and disauthorizing the suit
of plaintiffs-appellants.
The defendants-appellee filed a stockholders, and those wrongs alone would
supplemental ground for their motion to
dismiss for the reason that the stockholders
who had abstained at their regular annual
meeting unanimously ratified and confirmed all
the actuations of the organizers. CFI granted
the motion to dismiss, hence the appeal.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER25
ISSUE: Whether the instant action could be
maintained as a class suit
NO. An action does not become a class
suit merely because it is designated as such in
the pleadings. Whether the suit is or is not a
class quit depends upon the attending facts,
and the complaint, or other pleading initiating
the class action should allege the existence of
the necessary facts, to wit, the existence of a
subject matter of common interest, and the
existence of a class and the number of persons
in the alleged class, in order that the court
might be enabled to determine whether the
members of the class are so numerous as to
make it impracticable to bring them all before
the court, to contrast the number appearing on
the record with the number in the class and to
determine whether claimants on record
adequately represent the class and the subject
matter of general or common interest.
The complaint in the instant case
explicitly declared that the plaintiffs-
appellants instituted the "present class suit
under Section 12, Rule 3, of the Rules of Court
in. behalf of CMI subscribing stockholders" but
did not state the number of said CMI
subscribing stockholders so that the trial court
could not infer, much less make sure as
explicitly required by the sufficiently numerous
and representative in order that all statutory
provision.
The interest that ppellants, plaintiffs
and intervenors, and the CMI stockholders had
in the subject matter of this suit — the portion
of stocks offering of the Bank left unsubscribed
by CMI stockholders who failed to exercise
their right to subscribe on or before January
15, 1963 — was several, not common or
general in the sense required by the statute.
Each one of the appellants and the CMI
stockholders had determinable interest; each
one had a right, if any, only to his respective
portion of the stocks. No one of them had any
right to, or any interest in, the stock to which
another was entitled.
Even if it be assumed, for the sake of
argument, that the appellants and the CMI
stockholders suffered wrongs that had been
committed by similar means and even
pursuant to a single plan of the Interim Board
of Organizers of the Bank, the wrong suffered
by each of them would constitute a wrong
separate from those suffered by the other
not create that common or general interest in
the subject matter of the controversy as would
entitle any one of them to bring a class suit on
behalf of the others.
The right to preemption, it has been
said, is personal to each stockholder. By

analogy, the right of each of the appellants to
subscribe to the waived stocks was personal,
and no one of them could maintain on behalf
of others similarly situated a representative
suit.
Defendants
(1) Unwilling co-plaintiff
An unwilling co-plaintiff is a party who is
supposed to be a plaintiff but whose consent to
be joined as a plaintiff cannot be obtained, as
when he refuses to be a party to the action. In
that case,
(1) he may be made a defendant and
(2) the reason therefor shall be stated in
the complaint. (Sec. 10, Rule 3)
(2) Alternative defendant
Where the plaintiff is uncertain against who of
several persons he is entitled to relief, he may
join any or all of them as defendants in the
alternative, although a right to relief against
one may be inconsistent with a right of relief
against the other. (Sec. 13, Rule 3)
Example:
A pedestrian injured in the collision of two
vehicles may sue the vehicle owners or drivers
in the alternative if he is uncertain whose
vehicle caused the injury.
(3) Unknown defendant
Whenever the identity or name of a defendant
is unknown, he may be sued
(1) as the unknown owner, heir, devisee,
or
(2) by such other designation as the case
may require;
When his identity or true name is discovered,
the pleading must be amended accordingly.
(Sec. 14, Rule 3)
Service upon defendant whose identity or
whereabouts are unknown.
Service may, by leave of court, be effected by
publication in a newspaper of general
circulation and in such places and for such
time as the court may order in any action
where
(1) the defendant is designated as an
unknown owner, or the like, or
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER26
(2) whenever his whereabouts are
unknown and cannot be ascertained by
diligent inquiry. (Sec. 14, Rule 14)
(4) Entity without juridical personality as
defendant
When two or more persons not organized as an
entity with juridical personality enter into a
transaction, they may be sued under the name
by which they are generally or commonly
known.
In the answer of such defendant the
names and addresses of the persons
composing said entity must all be revealed.
(Sec. 15, Rule 3)
Service upon entity without juridical
personality.— Service may be effected upon all
the defendants by serving upon
(1) any one of them, or
(2) upon the person in charge of the office
or place of business maintained in such
name.
BUT such service shall not bind individually
any person whose connection with the entity
has, upon due notice, been severed before the
action was brought. (Sec. 8, Rule 14)
Death of party; duty of counsel
(1) If plaintiff dies during pendency of the
case
Whenever a party to a pending action dies,
and the claim is not thereby extinguished, it
shall be the duty of his counsel
(1) to inform the court within thirty (30)
days after such death of the fact
thereof, and
(2) to give the name and address of his
legal representative or
representatives.
NOTE: This duty is mandatory. Failure of
counsel to comply with this duty shall be a
ground for disciplinary action.
Upon notice of death, action of court
Upon receipt of notice of death, the court shall
determine whether the claim is extinguished
by the death. If the claim does not survive, the
court shall dismiss the case.
If the claim survives, substitution
The court shall forthwith order said legal
representative or representatives to appear

and be substituted within a period of thirty
(30) days from notice.
 The heirs of the deceased may be
allowed to be substituted for the
deceased, without requiring the
appointment of an executor or
administrator and the court may
appoint a guardian ad litem for the
minor heirs.
NOTE: The heirs do not need to first
secure the appointment of an
administrator.
 The court may order the opposing
party, within a specified time, to
procure the appointment of an
executor or administrator for the
estate of the deceased if:
i. no legal representative is
named by the counsel for the
deceased party or
ii. if the one so named shall fail to
appear within the specified
period,
The latter shall immediately appear for
and on behalf of the deceased. The
court charges in procuring such
appointment, if defrayed by the
opposing party, may be recovered as
costs. (Sec. 16, Rule 3)
Examples of actions which survive the party’s
death
 Actions arising from delict
 Actions based on tortuous conduct of
the defendant
 Actions to recover real and personal
property
 Actions to enforce a lien on property
 Actions to quieting of title with
damages
 Ejectment case
 Actions for recovery of money
(2) If defendant dies, effect of his death
depends upon the nature of the pending
action
When action will not be dismissed
The action will be allowed to continue until
entry of final judgment when:
i. the action is for recovery of money
arising from contract, express or
implied, and
ii. the defendant dies before entry of final
judgment in the court in which the
action was pending at the time of such
death
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER27
A favorable judgment obtained by the plaintiff
therein shall be enforced in the manner
especially provided in these Rules for
prosecuting claims against the estate of a
deceased person. (Sec. 20, Rule 3)
Effect of non-substitution of deceased
party
Non-compliance with the rules on substitution
of a deceased party renders the proceedings of
the trial court infirm because it acquired no
jurisdiction over the person of the legal
representative of heirs of the deceased.
 However, in an ejectment case, non-
substitution of the deceased does not
deprive the court of jurisdiction
(Florendo Jr. v. Colona)
HEIRS OF BERTULDO HINOG v. MELICOR
(455 SCRA 460, 2005)
Non-compliance with the rule on
substitution would render the proceedings
and judgment of the trial court infirm
because the court acquires no jurisdiction
over the persons of the legal
representatives or of the heirs on whom the
trial and the judgment would be binding.
FACTS: Respondents filed a complaint against
Bertuldo for recovery of ownership of the
premises leased by the latter. Bertuldo alleged
ownership of the property by virtue of a Deed
of Absolute Sale. Bertuldo died without
completing his evidence during the direct
examination. Atty. Petalcorin replaced the
original counsel and filed a motion to expunge
the complaint from the record and nullify all
court proceedings on the ground that private
respondents failed to specify in the
complaint the amount of damages claimed
as needed to pay the correct docket fees, and
that under Manchester doctrine, non-payment
of the correct docket fee is jurisdictional.
ISSUE: Whether the proceedings in the trial
court are infirm
YES. No formal substitution of the
parties was effected within thirty (30) days
from date of death of Bertuldo, as required by
Sec. 16, Rule 3 of the Rules of Court. Needless
to stress, the purpose behind the rule on
substitution is the protection of the right of
every party to due process. It is to ensure that
the deceased would continue to be properly
represented in the suit through the duly
appointed legal representative of his estate.
Non-compliance with the rule on substitution
would render the proceedings and judgment of
the trial court infirm because the court

acquires no jurisdiction over the persons of the
legal representatives or of the heirs on whom
the trial and the judgment would be binding.
DE LA CRUZ v. JOAQUIN
(464 SCRA 576, 2005)
When due process is not violated, as when
the right of the representative or heir is
recognized and protected, noncompliance
or belated formal compliance with the Rules
cannot affect the validity of a promulgated
decision. Mere failure to substitute for a
deceased plaintiff is not a sufficient ground
to nullify a trial court's decision. The
alleging party must prove that there was an
undeniable violation of due process.
FACTS: Pedro Joaquin alleged that he had
obtained a P9,000 loan, payable after five (5)
years, from petitioners, the spouses De la
Cruz. To secure the payment of the obligation,
he executed a Deed of Sale for a parcel of land
in favor of petitioners. The parties also
executed another document entitled
Kasunduan which allegedly showed the Deed
of Sale to be actually an equitable mortgage.
Spouses De la Cruz contended that this
document was merely an accommodation to
allow the repurchase of the property, a right
that he failed to exercise.
The RTC issued a Decision in Joaquin’s
favor, declaring that the parties had entered
into a sale with a right of repurchase. It held
that respondent had made a valid tender of
payment on two separate occasions to
exercise his right of repurchase. Accordingly,
petitioners were required to reconvey the
property upon his payment. CA sustained the
ruling of the trial court, and denied
reconsideration. It further ordered the
substitution by legal representatives, in view of
Joaquin’s death. Petitioner’s assert the RTC
lacked jurisdiction since the respondent died
during the pendency of the case and no
substitution was made.
ISSUES: Whether the trial court lost jurisdiction
over the case upon the death of Pedro Joaquin
NO. Strictly speaking, the rule on the
substitution by heirs is not a matter of
jurisdiction, but a requirement of due process.
Thus, when due process is not violated, as
when the right of the representative or heir is
recognized and protected, noncompliance or
belated formal compliance with the Rules
cannot affect the validity of a promulgated
decision. Mere failure to substitute for a
deceased plaintiff is not a sufficient ground to
nullify a trial court's decision. The alleging
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER28
party must prove that there was an undeniable
violation of due process.
The records of the present case
contain a Motion for Substitution of Party
Plaintiff filed before the CA. It was deemed
granted and the heirs, to have substituted for
the deceased, Pedro Joaquin. There being no
violation of due process, the issue of
substitution cannot be held as a ground of
nullify the court’s decision.
LIMBAUAN v. ACOSTA
(2006)
The instant action for unlawful detainer,
like any action for recovery of real
property, is a real action and as such
survives the death of Faustino Acosta.
FACTS: Faustino Acosta took possession of a
parcel of government land which was originally
intended to be used as a site for a leprosarium.
He subsequently registered the land and built
a fence around it.
Paulino Calanday intruded upon
Acosta’s land without the former’s permission
and built a beerhouse on it. Acosta
remonstrated so Calanday filed a criminal case
for Unjust Vexation and Malicious Mischief; it
was however, dismissed.
Calanday then conveyed the
beerhouse to Juanita Roces who agreed to pay
a P60 monthly rental to Acosta. She then
conveyed the premises to Charles Limbauan,
petitioner in the present case. A few months
later, petitioner stopped paying rentals so
respondent filed a case for unlawful detainer
against respondent. Petitioner reasoned that
since the land belonged to the government,
respondent had no right to collect rentals
therefrom. Hence the suit was never
continued.
Eight years later, the government
converted the parcel of land in which the
premises in dispute are included into
residential land. Respondent then revived his
previous suit of unlawful detainer against
petitioner. Unfortunately, Acosta died while the
case was still on appeal to the CA. Petitioner
avers that the case has become moot and
academic since he was not informed of the
death of respondent and no proper substitution
of parties was instituted.
ISSUE: Whether the case has become moot
and academic due to the death of respondent
and the failure to substitute his heirs as parties
to the case

NO. It is well settled that the failure of
counsel to comply with his duty under Section
16 to inform the court of the death of his client
and no substitution of such party is effected,
will not invalidate the proceedings and the
judgment thereon if the action survives the
death of such party. Moreover, the decision
rendered shall bind his successor-in-interest.
The instant action for unlawful detainer, like
any action for recovery of real property, is a
real action and as such survives the death of
Faustino Acosta. His heirs have taken his place
and now represent his interests in the instant
petition. Hence, the present case cannot be
rendered moot despite the death of
respondent.
Death or separation of party who is a
public officer
An action may be continued by or against the
successor of the deceased public officer when
(1) a public officer is a party in an action in
his official capacity and
(2) dies, resigns, or otherwise ceases to
hold office during its pendency,
(3) it is shown within thirty (30) days after
the successor takes office or such time
as the court may grant, that there is a
substantial need for continuing or
maintaining the action, and that
(4) the successor adopts or continues or
threatens to adopt or continue the
action of his predecessor.
(5) the party or officer to be affected,
unless expressly assenting thereto, has
been given reasonable notice of the
application therefor and accorded an
opportunity to be heard. (Sec. 17, Rule
3)
Incompetency or incapacity
If a party becomes incompetent or
incapacitated, the court,
 upon motion
 with notice,
may allow the action to be continued by or
against the incompetent or incapacitated
person assisted by his legal guardian or
guardian ad litem. (Sec. 18, Rule 3)
Transfer of interest
In case of any transfer of interest, the action
may be continued by or against the original
party, unless the court upon motion directs the
person to whom the interest is transferred
(1) to be substituted in the action or
(2) joined with the original party. (Sec. 19,
Rule 3)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER29
Indigent party
A party may be authorized to litigate his
action, claim or defense as an indigent if the
court,
 upon an ex parte application
 and hearing,
is satisfied that the party is one who has no
money or property sufficient and available for
food, shelter and basic necessities for himself
and his family.
Such authority shall include
(1) an exemption from payment of docket
and other lawful fees, and
(2) of transcripts of stenographic notes
which the court may order to be
furnished him.
The amount of the docket and other lawful fees
which the indigent was exempted from paying
shall be a lien on any judgment rendered in the
case favorable to the indigent, unless the court
otherwise provides.
Any adverse party may contest the grant of
such authority at any time before judgment is
rendered by the trial court.
If the court should determine after hearing that
the party declared as an indigent is in fact a
person with sufficient income or property, the
proper docket and other lawful fees shall be
assessed and collected by the clerk of court. If
the payment is not made within the time fixed
by the court, execution shall issue or the
payment thereof, without prejudice to such
other sanctions as the court may impose. (Sec.
21, Rule 3)
Notice to Solicitor General
The court, in its discretion, may require the
appearance of the Solicitor General in any
action involving the validity of any
(1) treaty,
(2) law,
(3) ordinance,
(4) executive order,
(5) presidential decree,
(6) rules
(7) or regulations,
He may be heard in person or through a
representative duly designated by him. (Sec.
22, Rule 3)
NOTE: Actions filed in the name of the Republic
or its agencies and instrumentalities, if not
initiated by the Solicitor General shall be
summarily dismissed.
 CIVIL PROCEDURE REVIEWER30

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

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

MENDEZ, IVAN VIKTOR (2D, ’13)


DENR. Subsequently, the public officers
alluded to instituted separate criminal and civil
complaints in the City Prosecutor’s Office and
RTC in Marawi City. Diaz, publisher-editor, and
Pagandaman, who executed a sworn
statement attesting the alleged corruption
were named respondents. The City
Prosecutor’s Office dismissed the criminal
case.
Thereafter, a civil complaint for
damages was filed. Diaz filed an answer, then
later moved for the dismissal of the action for
damages on the ground that the trial court did
not have jurisdiction over the subject matter.
He vehemently argued that the complaint
should have been filed in Cotabato City and
not in Marawi City. The respondent judge
denied petitioner’s Motion to Dismiss for lack
of merit.
ISSUE: Whether the venue was improperly laid
NO, petitioner is not correct. Petition
is dismissed for lack of merit. The case is
remanded to the court of origin for further
proceedings.
Not one of the respondents held office
in Cotabato City nor they held their principal
office in that province. It is clear that an
offended party who is at the same time a
public official can only institute an action
arising from libel in 2 venues: (1) the place
where he holds office; or (2) the place where
the alleged libelous articles were printed and
first published. (Art. 360, RPC)
Venue was indeed improperly laid.
However, unless and until the defendant
objects to the venue in a motion to dismiss
prior to a responsive pleading, the venue in a
motion to dismiss cannot truly be said to have
been improperly laid since, for all practical
intents and purposes, the venue though
technically wrong may yet be considered
acceptable to the parties for whose
convenience the rules on venue had been
devised. Diaz, then, as defendant should have
timely challenged the venue laid in Marawi City
in a motion to dismiss, pursuant to Rule 4, Sec.
4, of the Rules of Court. Unfortunately, he had
already submitted himself to the jurisdiction of
trial court when he filed his Answer. Well-
settled is the rule that improper venue may be
waived and such waiver may occur by laches.
Moreover, venue in an action arising from libel
is only mandatory if it is not waived by
defendant. Thus, objections to venue in civil
actions arising from libel may be waived; it
does not, after all, involve a question of
jurisdiction. The laying of venue is procedural
rather than substantive, relating as it does to
jurisdiction of the court over the person rather
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER31
than the subject matter. Venue relates to trial
and not jurisdiction.
Furthermore, Rule 16, Sec. 1, provides
that objections to improper venue must be
made in a motion to dismiss before any
responsive pleading is filed. Responsive
pleadings are those which seek affirmative
relief and set up defenses. Having already
submitted his person to the jurisdiction of the
court, petitioner may no longer object to the
venue which, although mandatory in the
instant case, is nevertheless waivable. As
such, improper venue must be seasonably
raised. Otherwise, it may be deemed waived.
(b) Where parties have validly agreed in
writing on the exclusive venue thereof
before the filing of the action
The parties may agree on a specific venue
which could be in a place where neither of
them resides, as long as the agreement is:
(1) In writing;
(2) Made before the filing of the action;
and
(3) Exclusive as to the venue.
LEGASPI v. REPUBLIC
(559 SCRA 410, 2008)
It must be shown that such stipulation as to
venue is exclusive. In the absence of
qualifying or restrictive words, such as
"exclusively," "waiving for this purpose any
other venue," "shall only" preceding the
designation of venue, "to the exclusion of
the other courts," or words of similar
import, the stipulation should be deemed as
merely an agreement on an additional
forum, not as limiting venue to the specified
FACTS: Jesusito D. Legaspi, as owner and
manager of petitioner J.D. Legaspi
Construction, entered into a Construction
Agreement with respondent Social Security
System (SSS) for the construction of a four-
storey building in Baguio City which will serve
as respondent's branch office.
The Philippine peso collapsed as
against the U.S. Dollar in 1997, thus the cost of
imported materials which petitioner contracted
to use and install on the project shot up, and
petitioner incurred expenses more than the
original contract price. Petitioner had several
meetings with respondent's representatives
during which he informed them of his difficulty
in meeting his obligations under the contract
due to the peso devaluation. After several
failed meetings, petitioner sent a letter to
respondent requesting an adjustment in the
contract price, which was denied by

respondent. Hence, petitioner filed a civil
action with the RTC. Instead of filing an
answer, respondent, represented by the OSG,
filed a Motion to Dismiss on the grounds that
venue was improperly laid and petitioner had
no cause of action. It was respondent's
argument that the Construction Agreement
provided that all actions may be brought
before the proper court in Quezon City and
that petitioner waived any other venue. The
RTC denied respondent's Motion to Dismiss.
Respondent moved to reconsider the Order but
this was denied by the RTC. The petition for
certiorari with the Court of Appeals was
granted. Hence, the present petition for review
on certiorari under Rule 45 of the Rules of
Court.
ISSUE: Whether the stipulation as to venue in
this case is controlling
YES. As regards restrictive stipulations
on venue, jurisprudence instructs that it must
be shown that such stipulation is exclusive. In
the absence of qualifying or restrictive words,
such as "exclusively," "waiving for this purpose
any other venue," "shall only" preceding the
designation of venue, "to the exclusion of the
other courts," or words of similar import, the
stipulation should be deemed as merely an
agreement on an additional forum, not as
limiting venue to the specified place.
In the Construction Agreement,
petitioner agreed to file any action in Quezon
City “expressly waiving any other venue.” This
connotes exclusivity of the designated venue.
The terms clearly stipulate exclusively the
venue where actions arising from the
Construction Agreement should be filed.
Petitioner, however, contends that the
case does not arise from the Construction
Agreement; hence, it may be filed in Makati
City, which is his place of residence. Contrary
to petitioner's contention, the allegations in his
complaint indubitably show that his cause of
action arose from the Construction Agreement.
Waiver of improper venue
(1) Express waiver
Made through written agreement
(2) Implied waiver
Made through failure to seasonably
object to improper venue in a motion
to dismiss or in the answer
DACOYCOY v. IAC
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER32
(195 SCRA 641, 1993)
Where defendant fails to challenge timely
the venue in a motion to dismiss as
provided by Section 4 of Rule 4 of the
Rules of Court, and allows the trial to be
held and a decision to be rendered, he
cannot on appeal or in a special action be
permitted to challenge belatedly the wrong
venue, which is deemed waived.
FACTS: Petitioner Jesus Dacoycoy, filed before
the RTC, Antipolo, Rizal, a complaint against
private respondent Rufino de Guzman for the
annulment of two deeds of sale involving a
parcel of riceland situated in Barrio Estanza,
Lingayen, Pangasinan, the surrender of the
produce thereof, and damages due to private
respondent's refusal to have said deeds of sale
set aside upon petitioner's demand.
Before summons could be served on
private respondent as defendant therein, the
RTC issued an order requiring counsel for
petitioner to confer with respondent trial judge
on the matter of venue.
After said conference, the trial court
dismissed the complaint on the ground of
improper venue. It found, based on the
allegations of the complaint, that petitioner's
action is a real action as it sought not only the
annulment of the deeds of sale but also the
recovery of ownership of the subject parcel of
riceland located in Estanza, Lingayen,
Pangasinan, which is outside the territorial
jurisdiction of the trial court.
Petitioner appealed to the Intermediate
Appellate Court, now Court of Appeals, which
in its decision of April 11, 1986, affirmed the
order of dismissal of his complaint.
ISSUE: Whether or not the trial court can pre-
empt the defendant’s prerogative to object to
improper venue by motu propio dismissing the
case
NO. The motu proprio dismissal of
petitioner's complaint by respondent trial court
on the ground of improper venue is plain error,
obviously attributable to its inability to
distinguish between jurisdiction and venue.
Venue is procedural rather than
substantive. It relates to the jurisdiction of the
court over the person rather than the subject
matter. Provisions relating to venue establish a
relation between the plaintiff and the
defendant and not between the court and the
subject matter. Venue relates to trial not to
jurisdiction, touches more of the convenience
of the parties rather than the substance of the
case. Jurisdiction treats of the power of the
court to decide a case on the merits; while

venue deals on the locality, the place where
the suit may be had.
Dismissing the complaint on the
ground of improper venue is certainly not the
appropriate course of action at this stage of
the proceeding, particularly as venue, in
inferior courts as well as in the courts of first
instance (now RTC), may be waived expressly
or impliedly. Where defendant fails to
challenge timely the venue in a motion to
dismiss as provided by Section 4 of Rule 4 of
the Rules of Court, and allows the trial to be
held and a decision to be rendered, he cannot
on appeal or in a special action be permitted to
challenge belatedly the wrong venue, which is
deemed waived.
Indeed, it was grossly erroneous for
the trial court to have taken a procedural
short-cut by dismissing motu proprio the
complaint on the ground of improper venue
without first allowing the procedure outlined in
the Rules of Court to take its proper course.
How to question improper venue
(1) Motion to dismiss—
By filing a motion to dismiss before a
responsive pleading (answer) on the ground of
improper venue (Sec. 1[c], Rule 16)
(2) Affirmative defense in answer—
By impleading improper venue as an
affirmative defense in the answer (Sec. 6, Rule
16)
PLEADINGS
(Substantial Requirements)
In general
Pleadings defined
Pleadings are the written statements of the
respective claims and defenses of the parties
submitted to the court for appropriate
judgment. (Sec. 1, Rule 6)
 Pleadings are not supposed to allege
conclusions. It must only aver ultimate
facts, or the facts essential to a party’s
cause of action or defense.
 Evidentiary matters are to be
presented during the trial of the case,
not in the pleadings. These and
conclusions may be subject of a motion
to strike.
 All pleadings shall be liberally
construed.
 The intention of the pleader is the
controlling factor in construing a
pleading and should be read in
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER33
accordance with its substance, not its
form.
 Parties are strictly by the allegations,
statements or admissions made in his
pleadings and cannot be permitted to
take a contradictory position.
Distinguished from motion
A motion is an application for relief other than
by a pleading. (Sec. 1, Rule 15)
What allowed
The claims of a party are asserted in a
(1) complaint,
(2) counterclaim,
(3) cross-claim,
(4) third (fourth, etc.)—party complaint, or
(5) complaint-in-intervention.
The defenses of a party are alleged in the
answer to the pleading asserting a claim
against him.
An answer may be responded to by a reply.
(Sec.2, Rule 6)
Pleadings allowed under Summary Procedure
The only pleadings under the Rules on
Summary Procedure are:
(1) complaint;
(2) compulsory counterclaim;
(3) cross-claim pleaded in the answer; and
(4) answers.
Pleadings not allowed in a petition for writ of
amparo or habeas data
The following are prohibited motions in the
mentioned petitions:
(1) counterclaim;
(2) cross-claim;
(3) third-party complaint;
(4) reply; and
(5) pleadings in intervention
Parts of a pleading
(1) Caption—
The caption sets forth
(1) The name of the court;
(2) The title of the action;
The title of the action indicates the
names of the parties. They shall all be
named in the original complaint or
petition; but in subsequent pleadings,
it shall be sufficient if the name of the
first party on each side be stated with
an appropriate indication when there
are other parties.
Their respective participation
in the case shall be indicated.

(3) The docket number if assigned.
NOTE: It is NOT the caption, but the allegations
which determine the nature of the action.
(2) The Body—
The body of the pleading sets forth
(1) its designation,
(2) the allegations of the party’s claims or
defenses,
(3) the relief prayed for, and
(4) the date of the pleading.
(a) Paragraphs.—The allegations in the
body of a pleading shall be
i. divided into paragraphs so
numbered as to be readily
identified,
ii. each of which shall contain a
statement of a single set of
circumstances so far as that can
be done with convenience.
A paragraph may be referred to by its
number in all succeeding pleadings.
(b) Headings—
For joined actions: 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.
Paragraphs in the answer addressed to one
of several causes of action in the complaint
shall be prefaced by the words
 “answer to the first cause of
action” or “answer to the second
cause of action” and so on;
Paragraphs of the answer addressed to
several causes of action, they shall be
prefaced by words to that effect.
(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.
• The relief or prayer does not
constitute a part of the
statement of the cause of
action.
• The court may grant a relief
not prayed for as long as the
relief is warranted by the
allegations of the complaint
and the proof.
(d) Date.—Every pleading shall be dated.
(Sec. 2, Rule 7)
(3) Signature and address—
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER34
Every pleading must be
(1) signed by the party or counsel
representing him, and
(2) state in either case his address which
should not be a post office box.
The signature of counsel constitutes a
certification
(1) that he has read the pleading;
(2) that to the best of his knowledge,
information, and belief there is good
ground to support it; and
(3) that it is not interposed for delay.
An unsigned pleading produces NO legal
effect.
 However, the court may, in its
discretion, allow such deficiency to be
remedied if
• it shall appear that the same
was due to mere inadvertence
and
• not intended for delay.
Counsel shall be subject to appropriate
disciplinary action if:
(1) he deliberately files an unsigned
pleading,
(2) signs a pleading in violation of this
Rule,
(3) alleges scandalous or indecent matter
therein, or
(4) fails to promptly report to the court a
change of his address. (Sec 3, Rule 7)
NOTE: Counsel’s authority and duty to sign a
pleading are personal to him. Hence, he MAY
NOT delegate it to just any person. A blanket
authority entrusted to just anyone is void since
it will amount to signing by unqualified
persons.
(4) Verification—
General Rule: Pleadings NEED NOT be under
oath, verified or accompanied by affidavit.
Exception: when otherwise specifically
required by law or rule. The follow pleadings
must be verified:
 Petition to take deposition before
action;
 Petition for relief from judgment;
 Appeal by Certiorari from CA to SC;
 Application for Preliminary Injunction
or Temporary Restraining Order;
 Application for Appointment of a
Receiver;
 Petition for Certiorari, Prohibition, or
Mandamus;

 All pleadings of forcible entry and
unlawful detainer;
 Petition for appointment of general
guardian;
 Petition of guardian for leave to sell or
encumber property of estate;
 Petition to declare competency of
ward;
 Application for Writ of habeas corpus;
 Petition for change of name;
 Petition for voluntary dissolution of
corporation;
 Petition to correct entries in civil
registry;
 Pleadings in Summary Procedure.
The following need not be verified but must be
under oath:
 Denial of genuineness and dues
execution of actionable document;
 Denial of allegations of usury;
 Motion to set aside order of default;
 Answer to written interrogatories;
 Answer to request for admission.
Affidavit of merit or supporting affidavit is
required in the following:
 Motion for summary judgment or
opposition thereto;
 Motion for new trial;
 Affidavit of third-party claim on levied
property;
 Proof required of redemptioner;
 Complaint with prayer for preliminary
attachment;
 Affidavit of third-party claim on
attached property;
 Motion to dissolve preliminary
injunction on ground of irreparable
damage to movant while adverse party
can be fully compensated
 Complaint for replevin:
 Claim against estate of decedent.
How pleading is verified
A pleading is verified by an affidavit
(1) that the affiant has read the pleading
and
(2) that the allegations therein are true
and correct of his personal knowledge
or based on authentic records.
NOTE: A pleading required to be verified shall
be treated as an unsigned pleading if it
contains a verification
(1) based on “information and belief,”
(2) upon “knowledge, information and
belief,” or
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER35
(3) lacks a proper verification
Remedies
 The court may order the correction of
the pleading if lacking verification
 The court may also acct on the
pleading despite failure to properly
verify if under the circumstances, strict
compliance with the rules may be
dispensed with
 The absence of verification may be
corrected by requiring an oath.
(5) Certification against forum shopping—
Forum shopping is the filing of multiple suits in
different courts, either simultaneously or
successively, involving the same parties, to
ask the courts to rule on the same or related
causes and/or to grant the same or
substantially the same relief.
 It is an act of malpractice
 The same shall constitute direct
contempt, a cause for administrative
sanctions, as well as a ground for the
summary dismissal of the case with
prejudice.
The certification against forum shopping is a
sworn statement by the plaintiff or principal
party certifying in an initiatory pleading:
(a) that he has not commenced any action
or filed any claim involving the same
issues in any court, tribunal or quasi-
judicial agency and, to the best of his
knowledge, no such other action or
claim is pending therein;
(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.
NOTE: The certification must be executed by
the party NOT the counsel, unless the latter is
authorized specifically to do so. A certification
signed by the counsel is a defective
certification and is a valid cause for dismissal.
BUT This rule must be liberally interpreted:
 Failure of parties to sign because they
were abroad may be a reasonable
cause to exempt the parties from
compliance with the requirement
 Signing by one of the petitioners was
held to be substantial compliance

 When plaintiff is a juridical person—
this may be signed by the properly
authorized persons.
This requirement is mandatory in the filing of a
complaint and other initiatory pleading, but it
is NOT jurisdictional. The rule applies also to
special civil actions.
Initiatory pleadings include
(1) Original complaint;
(2) Permissive counterclaim;
(3) Cross-claim;
(4) Third (fourth, etc.)-party complaint;
(5) Complaint in intervention; and
(6) Petition or application wherein the
party asserts his claim or relief.
NOTE: No certification required for a
compulsory counterclaim since it is NOT an
initiatory pleading.
Effect of failure to comply
(1) It shall NOT be curable by mere
amendment of the complaint or other
initiatory pleading.
(2) BUT it shall be cause for the dismissal
of the case without prejudice, unless
otherwise provided, upon motion and
after hearing.
Effect of the submission of a false certification
or non-compliance with any of the
undertakings therein:
(1) Indirect contempt;
(2) Administrative and criminal actions.
Effect of willful and deliberate forum shopping
by the party or his counsel:
(1) ground for summary dismissal with
prejudice
(2) direct contempt, and
(3) a cause for administrative sanctions.
(Sec. 5, Rule 7)
How to determine existence of forum shopping
The most important question is whether the
elements of litis pendentia are present OR
whether a final judgment in one case will result
to res judicata.
The TEST is whether in the two or more
cases pending, there is:
(a) identity of parties;
(b) identity of rights or causes of action,
and
(c) identity of reliefs sought.
HOW ALLEGATIONS MADE
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER36
In general
Every pleading shall contain in a methodical
and logical form, a plain, concise and direct
statement of the ultimate facts on which the
party pleading relies for his claim or defense,
as the case may be, omitting the statement of
mere evidentiary facts.
If a defense relief on is based on law,
 the pertinent provisions thereof and
 their applicability to him shall be
clearly and concisely stated. (Sec. 1,
Rule 8)
Ultimate facts are those which directly form
the basis of the right sought to be enforced, or
the defense relied upon. They are the very
facts without which, for example, the cause of
action stated in a complaint would be
insufficient.
 Test of sufficiency—
If from the facts alleged, a valid
judgment may be rendered for the
plaintiff, the complaint is prima facie
sufficient.
No need to allege the following in the
pleadings:
(1) evidentiary or probative facts
(2) those presumed by law
(3) facts of judicial notice
(4) inferences, arguments and conclusions
of law derived or inferred from the
stated ultimate facts
Capacity
The following must be averred:
(1) Facts showing the capacity of a party
to sue or be sued:
(2) The authority of a party to sue or be
sued in a representative capacity; or
(3) The legal existence of an organized
association of persons that is made a
party.
Contesting the capacity of a party
A party desiring to raise an issue as to the
legal existence of any party or the capacity of
any party to sue or be sued in a representative
capacity, shall do so by specific denial, which
shall include such supporting particulars as are
peculiarly within the pleader’s knowledge.
(Sec. 4, Rule 8)
Specific denial
How to make a specific denial:
(1) Absolute denial—specify each
material allegation of fact the truth of
which he does not admit and,
whenever practicable, set forth the

substance of the matters upon which
he relies to support his denial.
(2) Partial denial—where only a
part of an averment is denied, he
specify so much of it as is true and
material and deny only the remainder.
(3) Denial by disavowal of
knowledge—where defendant is
without knowledge or information
sufficient to form a belief as to the
truth of a material averment in the
complaint, he shall so state, and this
shall have the effect of a denial. (Sec.
10, Rule 8)
NOTE: Allegations not specifically denied are
deemed admitted. Exception:
 amount of unliquidated damages,
which must always be proved;
 allegations of usury in a complaint to
recover usurious interest are admitted
if not denied under oath. (Sec. 11, Rule
8)
Alternative claims and defenses
A party may set forth two or more statements
of a claim or defense alternatively or
hypothetically, either
 in one cause of action or defense or
 in separate causes of action or
defenses.
When two or more statements are made in the
alternative and one of them if made
independently would be sufficient, the
pleading is NOT made insufficient by the
insufficiency of one or more of the alternative
statements. (Sec. 2, Rule 8)
Examples
Alternative cause of action: Breach of
contract of carriage or tort
Alternative defense: Payment; even if
not paid, action has prescribed
Conditions precedent
In any pleading a general averment of the
performance or occurrence of all conditions
precedent shall be sufficient. (Sec. 3, Rule 8)
Example: Exhaustion of administrative
remedies.
Fraud and mistake, condition of mind
In all averments, the circumstances
constituting the following must be stated with
particularity:
(1) fraud or
(2) mistake
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER37
NOTE: If the above rule is not complied with,
 the complaint may be dismissed, or
 the answer may be stricken off the
records and he will be declared in
default.
The following may be averred generally:
(1) malice,
(2) intent,
(3) knowledge or
(4) other condition of the mind of a
person.
(Sec. 5, Rule 8)
Judgments
In pleading a judgment or decision of a
domestic or foreign court, judicial or quasi-
judicial tribunal, or of a board or officer, it is
sufficient
 to aver the judgment or decision
without setting forth matter showing
jurisdiction to render it. (Sec. 6, Rule 8)
Official documents
In pleading an official document or official act,
it is sufficient to aver:
 that the document was issued or the
act done in compliance with law. (Sec.
9, Rule 8)
Need to bring in new parties
When the presence of parties other than those
to the original action is required for the
granting of complete relief in the
determination of a counterclaim or cross-claim,
the court shall ORDER them to be brought in as
defendants, if jurisdiction over them can be
obtained. (Sec. 12, Rule 6)
COMPLAINT
Defined and in general
The complaint is the pleading alleging the
plaintiff’s cause or causes of action. The
names and residences of the plaintiff and
defendant must be stated in the complaint.
(Sec. 3, Rule 6)
 It is the first pleading a party filed in
court.
 It must be in writing.
Allegations
In general
Every pleading shall contain in a methodical
and logical form, a plain, concise and direct
statement of the ultimate facts on which the
party pleading relies for his claim or defense,

as the case may be, omitting the statement of
mere evidentiary facts.
If a defense relief on is based on law,
 the pertinent provisions thereof and
their applicability to him shall be clearly and
concisely stated.
REYES v. RTC MAKATI
(2008)
Allegations of deceit, machination, false
pretenses, misrepresentation, and threats
are largely conclusions of law that, without
supporting statements of the facts to
which the allegations of fraud refer, do not
sufficiently state an effective cause of
action.
FACTS: Pedro and Anastacia Reyes, along with
their two children Oscar, Rodrigo, owned
shares of stock in Zenith Insurance Corporation
(Zenith). When Pedro and Anastacia died,
Rodrigo owned 4,250 shares while Oscar
owned 8,715,637 shares. Pedro’s estate was
properly partitioned in the 70’s but Anastacia’s
estate was not partitioned (which includes her
shares in Zenith).
Zenith and Rodrigo filed a complaint
designated as a derivative suit with the SEC
against Oscar to obtain an accounting of the
funds and assets of Zenith which are now or
formerly in the control, custody, and/or
possession of petitioner Oscar and to
determine the shares of stock of deceased
Reyes spouses that were “arbitrarily and
fraudulently” appropriated by Oscar for himself
and which were not collated and taken into
account in the partition, distribution, and/or
settlement of the estate of the deceased
spouses. The complaint prayed that Oscar be
ordered to account for all the income from the
time he took these shares, and deliver to his
brothers and sisters their just and respective
shares.
In his Answer with Counterclaim, Oscar
denied the charge that he illegally acquired
the shares of Anastacia, asserting that he
purchased the shares with his own funds from
Zenith’s unissued stocks, and that the suit is
not a bona fide derivative suit because the
requisites have not been complied with. He
questioned the SEC's jurisdiction to entertain
the complaint because it pertains to the
settlement of the estate of Anastacia Reyes.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER38
The RTC was later conferred with
jurisdiction over the matter due to a
presidential declaration confirming the former
as a special commercial court. Oscar filed a
Motion to Declare Complaint as Nuisance or
Harassment Suit. The RTC denied the motion
and the CA affirmed. Hence this petition
ISSUE: Whether the allegations against Oscar
were sufficient to hold him guilty of fraud
NO. The rule is that a complaint must
contain a plain, concise, and direct statement
of the ultimate facts constituting the plaintiff's
cause of action and must specify the relief
sought. Section 5, Rule 8 of the Revised Rules
of Court provides that in all averments of fraud
or mistake, the circumstances constituting
fraud or mistake must be stated with
particularity. These rules find specific
application to Section 5(a) of P.D. No. 902-A
which speaks of corporate devices or schemes
that amount to fraud or misrepresentation
detrimental to the public and/or to the
stockholders.
Allegations of deceit, machination,
false pretenses, misrepresentation, and threats
are largely conclusions of law that, without
supporting statements of the facts to which the
allegations of fraud refer, do not sufficiently
state an effective cause of action. Fraud and
mistake are required to be averred with
particularity to enable the opposing party to
controvert the particular facts allegedly
constituting such fraud or mistake.
The charges of fraud against Oscar
were not properly supported by the required
factual allegations. While the complaint
contained allegations of fraud purportedly
committed by him, these allegations are not
particular enough to bring the controversy
within the special commercial court's
jurisdiction; they are not statements of
ultimate facts, but are mere conclusions of
law: how and why the alleged appropriation of
shares can be characterized as "illegal and
fraudulent" were not explained nor elaborated
on.
Capacity of parties
The following must be averred:
(1) Facts showing the capacity of a party
to sue or be sued:
(2) The authority of a party to sue or be
sued in a representative capacity; or
(3) The legal existence of an organized
association of persons that is made a
party.
Contesting the capacity of a party

A party desiring to raise an issue as to the
legal existence of any party or the capacity of
any party to sue or be sued in a representative
capacity, shall do so by specific denial, which
shall include such supporting particulars as are
peculiarly within the pleader’s knowledge.
(Sec. 4, Rule 8)
Actions based upon a document
Whenever an action or defense is based upon
a written instrument or document, the party
shall:
(1) set forth in the pleading the substance
of such instrument or document , and
(2) attach the original or a copy thereof an
exhibit, which shall be deemed to be a
part of the pleading, or
(3) set forth said copy be in the pleading
with like effect. (Sec. 7, Rule 8)
Actionable document is one which is the basis
of the claim or defense. Examples:
 promissory note
 deed of sale
 contract
NOTE: Letters by parties regarding the
actionable document are not actionable
documents, but mere evidence of the
existence of the actionable document.
To contest an actionable document
The party must
(1) specifically deny the genuineness and
due execution of the document under
oath; and
(2) set forth what he claims to be the
facts.
NOTE: A mere specific denial is insufficient.
The denial must be coupled with an oath; the
denial must be verified.
 Absence of an oath will be deemed an
implied admission of the due execution
and genuineness of the document.
 When a party is deemed to have
admitted genuineness and due
execution of an actionable document,
defenses implied from said admission
are waived (forgery, lack of authority
to execute the document, no capacity
to sign, non-delivery of the document,
defense that the document was not in
words and figures as set out in the
pleadings)
 The following are NOT cut-off by the
implied admission since they are
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER39
unrelated to the genuineness and due
execution of the document:
(1) Payment;
(2) Want of consideration;
(3) Illegality of consideration;
(4) Usury;
(5) Fraud;
(6) Prescription,
(7) Release;
(8) Waiver;
(9) Statute of frauds;
(10) Estoppel;
(11) Former recovery or
discharge in bankruptcy, etc.
When an oath is not required
A specific denial under oath will not apply in
the following cases:
(1) When the adverse party does not
appear to be a party to the document,
or
(2) When compliance with an order for an
inspection of the original instrument is
refused. (Sec. 8, Rule 8)
ANSWER
Defined and in general
An answer is a pleading in which a defending
party sets forth his defenses. (Sec. 4, Rule 6)
 This pleading may be an answer to the
complaint, to a counterclaim, or an
answer to a cross-claim.
 There is NO answer to a reply.
 There may be an answer to a third-
party complaint or complaint-in-
intervention.
Types of defenses
Negative
A negative defense is the specific denial of the
material fact or facts alleged in the pleading of
the claimant essential to his cause or causes of
action. (Sec. 5[a], Rule 6)
A defense is negative when the
material averments alleged in the pleading of
the claimant are specifically denied. (Sec. 5,
Rule 3)
How alleged, generally
It is alleged in the form of a specific
denial.
 If the denial is not
under Sec. 10, Rule 8, it is
deemed a general denial.
 A general denial is an
admission.
 CIVIL PROCEDURE REVIEWER40

(3) set forth said copy be

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

MENDEZ, IVAN VIKTOR (2D, ’13)


(5) Fraud;
(6) Prescription,
(7) Release;
(8) Waiver;
(9) Statute of
frauds;
(10) Estoppel;
(11) Former
recovery or discharge
in bankruptcy, etc.
When an oath is not required
A specific denial under oath will not
apply in the following cases:
(3) When the adverse
party does not appear to be a
party to the document, or
(4) When compliance with
an order for an inspection of
the original instrument is
refused. (Sec. 8, Rule 8)
MEMITA v. MASONGSONG
(2007)
The genuineness and due execution of the
instrument shall be deemed admitted
unless the adverse party, under oath,
specifically denies them, and sets forth
what he claims to be the facts. A defendant
must specify each material allegation of
fact the truth of which he does not admit
and, whenever practicable, shall set forth
the substance of the matters upon which he
relies to support his denial.
FACTS: Masongsong, under the business name
of RM Integrated Services, was the distributor
of San Miguel Foods, Inc.’s Magnolia chicken
products. He supplied said products on a 25-
day payment credit to Memita’s Vicor Store.
Masongsong filed a complaint before
the RTC, alleging that Memita’s P603,520.50
credit on goods purchased remain unpaid
despite his several demands. He also prayed
for the issuance of a writ of attachment against
Memita.
Thereafter, the RTC ordered the
issuance of a writ of attachment against
Memita, taking into account: (1) the allegations
of the verified complaint; (2) the testimonies of
Masongsong and Joel Go, his sales person; and
(3) Masongsong’s bond. According to the
sheriff’s return of service, the Provincial Sheriff
issued a notice of levy on attachment to the
Registrar of the TO and a notice of embargo to
the Register of Deeds of Bacolod City.
Memita did not deny that he purchased
goods on credit from Masongsong, but based
his refusal to pay on the following grounds: (1)
questionable deliveries; (2) short deliveries
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER41
and discrepancies; and (3) possible
manipulation of delivery receipts. He made a
counterclaim and asked for P300,000 in actual
damages for the seizure of two of his vehicles;
P500,000 as moral damages; at least P200,000
as exemplary damages; and P150,000 as
attorney’s fees.
The RTC ruled that Masongsong was
entitled to the reliefs prayed for. However,
Memita filed a notice of appeal with the trial
court. In his brief, Memita averred that the trial
court erroneously admitted as evidence the
machine copies of the seventy-two (72) sales
invoices despite the patent lack of proof of due
execution and authenticity; and in holding that
Memita acknowledged receipt of the deliveries
made by Masongsong.
The appellate court upheld the trial
court’s decision. They said Memita failed to
explicitly deny or contest the genuineness and
due execution of the receipts or any signatures
on the receipts.
ISSUES: Whether Memita was able to contest
the genuineness and due execution of the 72
sales invoices
NO. Without specifying the date of
purchase or the receipt number, Memita
denied the quantities and value of his
purchases. He alleged that there were
questionable deliveries and questionable
number of kilos per crate, and concluded that
Masongsong might have manipulated the
delivery receipts. However, he failed to point
out any particular Sales Invoice which
substantiates his claim of short deliveries or
questionable deliveries. The appellate court
reiterated the trial court’s position and stated
that Memita’s The Answer failed to explicitly
deny or contest the genuineness and due
execution of any of the receipts nor any of his
signatures or that of his authorized
representative appearing therein.
Section 8 of Rule 8 provides that the
genuineness and due execution of the
instrument shall be deemed admitted unless
the adverse party, under oath, specifically
denies them, and sets forth what he claims to
be the facts.
Memita, in alleging "questionable" and
"short" deliveries, in effect alleges that
Masongsong committed fraud. Whoever
alleges fraud or mistake affecting a transaction
must substantiate his allegation, since it is
presumed that a person takes ordinary care of
his concerns and private concerns have been
fair and regular. Memita chose to present
evidence which did not "set forth the facts" nor
the "substance of the matters upon which he
relies to support his denial.”

Negative pregnant
Denial in the form of a negative
pregnant—
It is a denial which at the same time
involves an affirmative implication
favorable to the opposing party, and is
thus an admission of an averment to
which it is directed. It is a literal denial
pregnant with admission.
 It does not qualify as a specific
denial. It is conceded to be
actually an admission.
 It is a negative implying also
an affirmative and which
although stated in a negative
form really admits the
allegations to which it relates.
PHILIPPINE AMERICAN GENERAL
INSURANCE CO., INC. v. SWEET LINES
(212 SCRA 194, 1993)
Even granting that petitioner’s averment in
their reply amounts to a denial, it has the
procedural earmarks a negative pregnant,
that is, a denial pregnant with the
admission of the substantial facts in the
pleadings responded to which are not
squarely denied. While the petitioners
objected to the validity of such agreement
for being contrary to public policy, the
existence of the bills of lading and said
stipulations were impliedly admitted by
them
FACTS: In March 1977, the vessel SS "VISHVA
YASH" a foreign common carrier, took on board
at Baton Rouge, LA, two (2) consignments of
cargoes for shipment to Manila and later for
transshipment to Davao City, consisting of
bags of Low Density Polyethylene both
consigned to the order of FEBTC Manila, with
arrival notice to TPI in Davao City. The said
vessel arrived at Manila and discharged its
cargoes in the Port of Manila. For
transshipment to Davao, the carrier awaited
and made use of the services of M/V "Sweet
Love" owned and operated by SLI interisland
carrier.
Subject cargoes were loaded and were
commingled with similar cargoes belonging o
other two other companies. The shipments
were discharged from the interisland carrier
into the custody of the consignee. However, of
the 7,000 bags originally contained in 175
pallets, only a total of 5,820 bags were
delivered to the consignee in good order
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER42
condition, leaving a balance of 1,080 bags.
Defendants were sued for such losses.
Before trial, a compromise agreement
was entered into between petitioners, as
plaintiffs, and defendants S.C.I. Line and F.E.
Zuellig. The trial court granted petitioners
motion to dismiss on the ground of said
amicable settlement and the case as to S.C.I.
Line and F.E. Zuellig was consequently
dismissed. CA reversed the RTC on supposed
ground of prescription when SLI failed to
adduce any evidence in support thereof and
that the bills of lading said to contain the
shortened periods for filing a claim and for
instituting a court action against the carrier
were never offered in evidence.
ISSUE: Whether the non-inclusion of the
controverted bills of lading in the formal offer
of evidence would bar respondent from raising
the defense of prescription
NO. In the case at bar, prescription as
an affirmative defense was seasonably raised
by SLI in its answer, except that the bills of
lading embodying the same were not formally
offered in evidence.
As petitioners are suing upon SLI's
contractual obligation under the contract of
carriage as contained in the bills of lading,
such bills of lading can be categorized as
actionable documents which under the Rules
must be properly pleaded either as causes of
action or defenses, and the genuineness and
due execution of which are deemed admitted
unless specifically denied under oath by the
adverse party.
Petitioners failed to controvert the
existence of the bills of lading; hence, they
impliedly admitted the same when they merely
assailed the validity of subject stipulations.
Petitioners' failure to specifically deny the
existence, much less the genuineness and due
execution, of the instruments in question
amounts to an admission. Judicial admissions,
verbal or written, made by the parties in the
pleadings or in the course of the trial or other
proceedings in the same case are conclusive,
no evidence being required to prove the same,
and cannot be contradicted unless shown to
have been made through palpable mistake or
that no such admission was made. Moreover,
when the due execution and genuineness of an
instrument are deemed admitted because of
the adverse party's failure to make a specific
verified denial thereof, the instrument need
not be presented formally in evidence for it
may be considered an admitted fact.
Petitioners failed to touch on the
matter of the non-presentation of the bills of
lading in their brief and earlier on in the
appellate proceedings in this case. Petitioners

acknowledged the existence of said bills of
lading. By having the cargo shipped on
respondent carrier's vessel and later making a
claim for loss on the basis of the bills of lading,
petitioners for all intents and purposes
accepted said bills.
Affirmative
An affirmative defense is an allegation of a
new matter which, while hypothetically
admitting the material allegations in the
pleading of the claimant would nevertheless
prevent or bar recovery by him.
 It is not a denial of an essential
ingredient in the plaintiff’s cause of
action, but one which, if established,
will be a good defense, an avoidance
of the claim.
 It must be of such nature as to bar the
plaintiff from claiming on his cause of
action.
 The plaintiff may deny or controvert it
by filing a reply. If no reply is,
affirmative defenses are deemed
controverted except those which are
required to be under oath.
The affirmative defenses include
(1) fraud,
(2) statute of limitations,
(3) release,
(4) payment,
(5) illegality,
(6) statute of frauds,
(7) estoppel,
(8) former recovery,
(9) discharge in bankruptcy, and
(10) any other matter by way of
confession and avoidance
Implied admissions
General rule: Defenses and objections not
pleaded either in a motion to dismiss or in the
answer are deemed waived.
Exception: The grounds of
(1) Lack of jurisdiction over the subject
matter;
(2) Litis pendentia (that there is another
action pending between the same
parties for the same cause);
(3) Res judicata (that the action is barred
by a prior judgment), and
(4) Prescription
Periods to plead
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER43
Answer to the complaint—
Within 15 days after service of summons,
unless a different period is fixed by the court
(Sec. 1, Rule 11)
Answer of a defendant foreign private juridical
entity.— Within 30 days after receipt of
summons where the defendant is
(1) a foreign private juridical entity and
(2) service of summons is made on the
government official designated by law
to receive the same. (Sec. 2, Rule 11)
Answer to amended complaint:
Filed as a matter of right—
Within 15 days after being served with a copy
of the amended complaint.
Not a matter of right—
Within 10 days from notice of the Order
admitting the same
 An answer earlier filed may serve as
the answer to the amended complaint,
if no new answer is filed.
NOTE: This Rule applies to answers to
(1) an amended counterclaim,
(2) amended cross-claim,
(3) amended third (fourth, etc.)— party
complaint, and
(4) amended complaint-in-intervention.
(Sec. 3, Rule 11)
Waiver of defenses
A compulsory counterclaim, or a cross-claim,
not set up shall be barred. (Sec. 2, Rule 9)
COUNTERCLAIMS
Defined and in general
A counterclaim is any claim which a defending
party may have against an opposing party.
(Sec. 6, Rule 6)
 It partakes of a complaint by the
defendant against the plaintiff
 “claim” may refer to a claim for
(a) Money; or
(b) Some other relief against an
opposing party
 Upon filing of the counterclaim, the
defendant becomes the plaintiff, while
the original plaintiff becomes the
defendant.
 It gives rise to two complaints: the
original complaint and the
counterclaim.
How raised

Included in answer
A counterclaim may be asserted against an
original counter-claimant. (Sec. 9, Rule 6)
A compulsory, counterclaim or a cross-claim
that a defending party has at the time he files
his answer shall be contained therein. (Sec. 8,
Rule 11)
After answer
A counterclaim may be asserted against an
original counter-claimant. (Sec. 9, Rule 6)
A counterclaim or a cross-claim which either
(1) matured or
(2) was acquired by a party after serving
his pleading
may, with the permission of the court, be
presented as a counterclaim or a cross-claim
by supplemental pleading before judgment.
(Sec. 9, Rule 11)
Kinds of counterclaims
Compulsory
A compulsory counterclaim is one which, being
cognizable by the regular courts of justice,
(1) Arises out of or is connected with the
transaction or occurrence constituting
the subject matter of the opposing
party’s claim and
(2) Does not require for its adjudication
the presence of third parties of whom
the court cannot acquire jurisdiction.
(3) Such a counterclaim must be within
the jurisdiction of the court both as to
the amount and the nature thereof,
except that in an original action before
the RTC, the counterclaim may be
considered compulsory regardless of
the amount. (Sec. 7, Rule 6)
NOTE: A compulsory counterclaim, or a cross-
claim, not set up shall be barred. (Sec. 2, Rule
9)
-It cannot be independently adjudicated
BA FINANCE CORP v. CO
(224 SCRA 163, 1993)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER44
Compulsory counterclaim, being ancillary
to the principal controversy, cannot
"remain pending for independent
adjudication by the court." Dismissal of the
complaint carries with it the dismissal of
the compulsory counterclaim.
FACTS: BA Finance brought an action recover a
sum of money from a credit accommodation in
the form of a discounting line which it granted
to Rufino Co, and from certain suretyship
agreements executed in its favor by his co-
respondents. As their counterclaim,
respondents alleged overpayments and
damages. They asserted that they are no
longer indebted to petitioner and are in fact
entitled to reimbursement for overpayments.
They asked for damages for expenses incurred
and inconveniences suffered by them as a
result of the filing of the present action.
After respondents' Amended Answer to
Complaint with Compulsory Counterclaim was
admitted, the case was set for Pre-Trial
Conference. The conference was repeatedly
reset. Counsel for BA Finance failed to attend
the Pre-Trial Conference. Consequently, Co
moved for dismissal of the case without
prejudice. The motion was granted.
Respondents moved to set the
reception of their evidence in support of their
counterclaim. Trial court denied the motion. CA
reversed the lower court’s order and directed it
to set the reception of their evidence on their
counterclaim. Motion for reconsideration was
denied, hence the instant petition alleging that
the dismissal of the complaint carried with it
the dismissal of respondent’s counterclaim.
ISSUE: Whether the dismissal of the complaint
carries with it the dismissal of the
counterclaim
YES. A compulsory counterclaim
cannot "remain pending for independent
adjudication by the court." This is because it is
auxiliary to the proceeding in the original suit
and merely derives its jurisdictional support
therefrom. Thus, if the trial court no longer
possesses jurisdiction to entertain the main
action of the case, an when it dismisses the
same, then the compulsory counterclaim being
ancillary to the principal controversy, must
likewise be similarly dismissed since no
jurisdiction remains for the grant of any relief
under the counterclaim.
In the case at bar, the same evidence
needed to sustain the counterclaim of
respondents would also refute the cause of
action in petitioner's complaint. If private
respondents could successfully show that they
actually made overpayments on the credit
accommodations extended by petitioner, then

the complaint must fail. Therefore the
counterclaim is compulsory. However, with the
dismissal of the complaint on defendant's own
motion, it likewise dismissed the counterclaim
questioning the complaint.
What the defendants could have done
instead of moving for dismissal was to ask the
trial court to declare petitioners to be "non-
suited" on their complaint so that the latter
can no longer present his evidence thereon,
and simultaneously move that he be declared
as in default on the compulsory counterclaim,
and reserve the right to present evidence ex
parte on his counterclaim. This will enable
defendant who was unjustly haled to court to
prove his compulsory counterclaim, which is
intertwined with the complaint, because the
trial court retains jurisdiction over the
complaint and of the whole case. The non-
dismissal of the complaint, the non-suit
notwithstanding, provides the basis for the
compulsory counterclaim to remain active and
subsisting.
-Jurisdiction (both as to amount and
nature; exception)
MACEDA v. CA
(1989)
The MTC does not have original jurisdiction
over the counterclaim as it exceeds
P20,000, hence the RTC did not have
appellate jurisdiction over the claim.
FACTS: Spouses Arturo and Maxima emigrated
to the U.S. and leased their house and lot to
their nephew, Maceda, for P200 per month.
With the spouses’ permission, petitioner
repaired and renovated the house subject to
reimbursement for expenses. The remodeling
job cost P40,000. The spouses made plans to
reimburse him. Maceda introduced more
improvements.
When Arturo passed away in the US,
his attorney-in-fact promised to sell to Maceda
the property for P125,000 after the transfer of
title to his widowed aunt. However, it was later
sold by the aunt to Mr. Gomez, and the latter
to Pablo Zubiri. Ejectment cases were filed
against Maceda, but all were dismissed.
Maxima died in the US.
Zubiri sold the property to Cement
Center, Inc., who asked petitioner to vacate
because of a housing project it had for its
employees. Maceda insisted on being
reimbursed for his improvements as the
original owners had promised to do. Formal
demands to vacate and for payment of P4,000
monthly rental from April 15, 1982 were sent
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER45
to him by the company. Another ejectment suit
was filed against him in the MTC.
In his answer to the complaint, Maceda
set up a P240,000 counterclaim, the alleged
value of his improvements. The MTC ordered
him to vacate the premises and pay Cement
Center rent. The latter was ordered to
reimburse him for the improvements.
The RTC set aside the decision and
ordered Cement Center to pay Maceda
P182,000 as necessary and useful
improvements.
The CA reversed the decision because
of MTC’s lack of jurisdiction, and, in
consequence the RTC decision’s lack of legal
basis.
ISSUE: Whether the MTC had jurisdiction over
an ejectment case where the lessee's
counterclaim exceeds the court's jurisdictional
limit
NO. The MTC did not have original
jurisdiction over his counterclaim as it exceeds
P20,000. Correspondingly, the RTC did not
have appellate jurisdiction over the claim. The
decision of the MTC awarding Maceda
P158,000 on his counterclaim, and that of the
RTC raising the award to P182,200, were
invalid for lack of jurisdiction. The jurisdiction
of the MTC in a civil action for sum of money is
limited to a demand that "does not exceed
P20,000 exclusive of interest and costs but
inclusive of damages of whatever kind." (Sec.
33, subpar. 1, B.P. Blg. 129.) A counterclaim in
the municipal or city court beyond that
jurisdictional limit may be pleaded only by way
of defense to weaken the plaintiffs claim, but
not to obtain affirmative relief.
-Filing fees and non-forum certification
not required
Permissive
A permissive counterclaim is one which does
not arise out of the opposing party’s claim or
necessarily connected with the transaction or
occurrence constituting the subject matter of
the opposing party’s claim.
 It is not connected with the plaintiff’s
cause of action.
 It is NOT barred even if not pleaded in
the answer.
 It may be filed as an independent
action by the defendant as plaintiff.
Examples
 Counterclaim for damages based on
culpa aquiliana in a complaint for
collection of a loan
 CIVIL PROCEDURE REVIEWER46

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

MENDEZ, IVAN VIKTOR (2D, ’13)

 CIVIL PROCEDURE REVIEWER47

unrelated. They asserted that the subject Remedies

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

MENDEZ, IVAN VIKTOR (2D, ’13)


the corresponding pleading, the genuineness
and due execution of the instrument shall be
deemed admitted unless the adverse party
(1) specifically denies them, and
(2) sets forth what he claims to be the
facts;
(3) under oath.
BUT the requirement of an oath does not apply
when
(1) the adverse party does not appear to
be a party to the instrument or
(2) when compliance with an order for an
inspection of the original instrument is
refused. (Sec. 8, Rule 8)
CASENT REALTY DEV’T CORP v.
PHILBANKING CORPORATION
(2007)
When the defense in the answer is based
on an actionable document, a Reply
specifically denying it under oath must be
made; otherwise the genuineness and due
execution of the document will be deemed
admitted.
FACTS: Philbanking Corporation (PhilBanking)
filed a complaint against Casent Realty
Corporation (Casent) before the RTC for
collection on two promissory notes assigned by
Rare Realty Corporation. In its Answer, Casent
raised, among others, as defenses the Dacion
en Pago (Dacion) executed between petitioner
and respondent, and the Confirmation
Statement issued by respondent stating that
petitioner had no loans with the bank as of
December 31, 1988. Petitioner then filed a
Motion for Judgment on Demurrer to the
Evidence, pointing out that the PhilBanking’s
failure to file a Reply to the Answer constituted
an admission of the genuineness and
execution of said documents; and that since
the Dacion obliterated petitioner’s obligation
covered by the promissory notes, the bank had
no right to collect anymore.
The RTC ruled in favor of Casent and
dismissed the complaint.
On appeal, the CA found that under the
Deed of Assignment, respondent PhilBanking
clearly had the right to proceed against the
promissory notes assigned by Rare Realty.
ISSUE: Whether respondent’s failure to file a
Reply and deny the Dacion and Confirmation
Statement under oath constituted a judicial
admission of the genuineness and due
execution of these documents
YES. When an action or defense is
founded upon a written instrument, copied in
or attached to the corresponding pleading as
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER48
provided in the preceding section, the
genuineness and due execution of the
instrument shall be deemed admitted unless
the adverse party, under oath, specifically
denies them, and sets forth, what he claims to
be the facts; but the requirement of an oath
does not apply when the adverse party does
not appear to be a party to the instrument or
when compliance with an order for an
inspection of the original instrument is refused.
Since respondent failed to file a Reply,
in effect, respondent admitted the
genuineness and due execution of said
documents. This judicial admission should
have been considered by the appellate court in
resolving the demurrer to evidence.
Rule 8, Section 8 specifically applies to
actions or defenses founded upon a written
instrument, and provide the manner of
denying it. It is more controlling than Rule 6,
Section 10 which merely provides the effect of
failure to file a Reply. Thus, where the defense
in the Answer is based on an actionable
document, a Reply specifically denying it under
oath must be made; otherwise, the
genuineness and due execution of the
document will be deemed admitted. Since
respondent failed to deny the genuineness and
due execution of the Dacion and Confirmation
Statement under oath, then these are deemed
admitted and must be considered by the court
in resolving the demurrer to evidence.
It must be noted, however, that admission
of the genuineness and due execution of the
Dacion and Confirmation Statement does not
prevent the introduction of evidence showing
that the Dacion excludes the promissory notes.
Petitioner, by way of defense, should have
presented evidence to show that the Dacion
includes the promissory notes.
THIRD/FOURTH-PARTY COMPLAINT
Defined
A third (fourth, etc.)-party complaint is a claim
that a defending party may, with leave of
court, file against a person not a party to the
action, called the third (fourth, etc.)—party
defendant, for
(1) contribution,
(2) indemnity,
(3) subrogation or
(4) any other relief, in respect of his
opponent’s claim. (Sec. 11, Rule 6)
NOTE: It is NOT proper to file a third-party
complaint against one who is already a party
to the action, such as against a plaintiff or a
co-defendant. But a cross-claim may be filed
against them.
 CIVIL PROCEDURE REVIEWER49

Remedies when denied Exception: when otherwise specifically

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

The following need not be verified but must be

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

MENDEZ, IVAN VIKTOR (2D, ’13)

 CIVIL PROCEDURE REVIEWER50

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

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

MENDEZ, IVAN VIKTOR (2D, ’13)


The TEST is whether in the two or more
cases pending, there is:
(d) identity of parties;
(e) identity of rights or causes of action,
and
(f) identity of reliefs sought.
AO-AS v. CA
(491 SCRA 353, 2006)
If the forum shopping is not considered
willful and deliberate, the subsequent cases
shall be dismissed without prejudice on one
of the two grounds mentioned above.
However, if the forum shopping is willful
and deliberate, both (or all, if there are
more than two) actions shall be dismissed
with prejudice.
FACTS: The Lutheran Church in the Philippines
(LCP) has local Lutheran congregations in three
districts, managed by seven directors—two for
each district, and one as the national
president. Three districts were added, thus a
total of eleven (11) directors managed the LCP.
Controversies arose when the board of
directors terminated the services of Eclesio
Hipe, business mana45ger and corporate
secretary.
The Ao-As group, former LCP directors
and officers, filed SEC-SICD Case No. 3587
against the Batong group, the LCP directors at
that time. The case sought accounting and
damages, and appointment of a management
committee. Its causes of action are: (a) non-
liquidation and/or non-accounting of the
P64,000 proceeds of the La Trinidad land
transaction; (b) on-liquidation and/or
unaccounting of P323,750 worth of cash
advances; (c) dissipation of the P4.8M general
fund; (d) non-registration of LCP’s land in
Leyte; (e) severance of church-partnership
with Lutheran Church-Missouri Synod; and (f)
transfer of corporate books.
Several other cases were also
instituted against the Batong group. An NLRC
case questioned the board resolutions which
terminated employees, a Civil Case questioned
another board resolution authorizing the
transfer of corporate records, and another SEC-
SICD Case (No. 3524) questioned the legality
of the 11 members of the LCP Board. Also, in
another SEC Case (No. 3556), a motion was
made to appoint a management committee.
This motion was denied since the same is an
incident of SEC Case 3587.
After hearing in SEC Case 3587, the
SEC-SICD ordered the creation of a imminent dissipation. We cannot rule out the
management committee and declared all
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER51
board resolutions passed by the LCP board
void ab initio.
The CA, however, ruled that the Ao-As
group were guilty of forum shopping.
ISSUE: Whether the Ao-As group is guilty of
forum shopping
NO. The six grounds originally relied
upon by the Ao-As group in SEC Case 3587 are
entirely different from the causes of action in
the NRLC, Civil, and the two other SEC cases. It
is true that the causes of action in the latter
cases were included as additional grounds in
Case 3587 for the appointment of properties
and assets of LCP which may have come into
their possession during their incumbency as
officers and/or directors of LCP. However, the
creation of a management committee and the
prayer for accounting could not have been
asked for in the labor and forcible entry cases.
As regards the other SEC Cases,
though, the Ao-As group could have indeed
prayed for the creation of the management
committee and the accounting of the funds of
the LCP. In fact, the petitioner in SEC-SICD
Case No. 3556 had prayed for the appointment
of a management committee in a motion which
was subsequent to the filing of SEC-SICD Case
No. 3857. SEC dismissed Case No. 3556
considering that it was one of the incidents of
Case No. 3857. In effect, it was denied on the
ground of litis pendentia.
However, this is not a case of willful
and deliberate forum shopping and, hence, the
Case No. 3857 should not be dismissed. The
reason for this is the strict evidentiary
requirement needed to grant a prayer to
create a management committee. The SEC has
the power to create a management committee
when there is “imminent danger of dissipation,
loss, wastage or destruction of assets or other
properties or paralization of business
operations” It should be difficult to deduce the
"imminent danger of dissipation, loss, wastage
or destruction of assets or other properties"
from an allegation of a single act of previous
misappropriation or dissipation on the part of
the Batong group. It is often only when the
previous misappropriations and dissipations
have become extensive and out of control that
it can be candidly said that there is an
imminent danger of further dissipation. The
Ao-As group cannot be faulted therefore for
not praying for the creation of a management
committee in the first couple of cases it filed
with the SEC, and neither can they be faulted
for using the causes of action in previously
filed cases to prove their allegation of
possibility that the danger of imminent
dissipation of the corporate assets became

apparent only in the acts of the respondents
subsequent to the filing of the first two SEC
cases.
As the present jurisprudence now
stands, forum shopping can be committed in
three ways: (1) filing multiple cases based on
the same cause of action and with the same
prayer, the previous case not having been
resolved yet (litis pendentia); (2) filing multiple
cases based on the same cause of action and
the same prayer, the previous case having
been finally resolved (res judicata); and (3)
filing multiple cases based on the same cause
of action but with different prayers (splitting of
causes of action, where the ground for
dismissal is also either litis pendentia or res
judicata). If the forum shopping is not
considered willful and deliberate, the
subsequent cases shall be dismissed without
prejudice on one of the two grounds
mentioned above. However, if the forum
shopping is willful and deliberate, both (or all,
if there are more than two) actions shall be
dismissed with prejudice.
Forum shopping certificate for a denied the motion.
corporation
When plaintiff is a juridical person—this may
be signed by the properly authorized persons.
PAL v. FASAP
(479 SCRA 605, 2006)
Only individuals vested with authority by a
valid board resolution may sign the
certificate of non-forum shopping in behalf
of a corporation. In addition, proof of said
authority must be attached. Failure to
provide a certificate of non-forum shopping
is sufficient ground to dismiss the petition.
Likewise, the petition is subject to dismissal
if a certification was submitted
unaccompanied by proof of the signatory’s
authority.
FACTS: Flight Attendants and Stewards
Association of the Philippines (FASAP) and
Bhagwani filed a complaint for unfair labor
practice, illegal suspension and illegal
dismissal against PAL and some of its officers
before the NLRC Labor Arbiter The Labor
Arbiter upheld FASAP and Bhagwani and,
ordered PAL to pay them damages. The NLRC
modified the decision, setting aside the finding
that PAL was guilty of unfair labor practice, but
affirming the rest of the decision.
PAL filed a petition for certiorari with
the CA, accompanied by a Certification of Non-
Forum Shopping executed by Cesar Lamberte
and Susan Del Carmen, VP Human Resources
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER52
and Asst. VP Cabin Services of PAL,
respectively, who are not parties to the case.
The certification was without proof that the two
affiants had authority to sign in behalf of
petitioners. The CA dismissed the case for
failure to show the affiants’ authority to sign
for PAL and for failure of the other petitioners
to join in the execution of the certification. A
motion for reconsideration was filed with a
Secretary’s Certificate attached evidencing
that affiants Lamberte and Del Carmen have
been authorized by board resolution to initiate
and/or cause to be filed on behalf of PAL
petitions and pleadings in all labor-related
cases.
A perusal of the Secretary’s Certificate
submitted reveals that the authority to cause
the filing of the petition was granted on
February 15, 2000. The petition, on the other
hand, was filed on January 24, 2000 and was
dismissed by the CA on January 31, 2000.
As to the other petitioners, it was
argued that they are mere nominal parties so
that their failure to execute the certification
does not justify dismissal of the petition. CA
ISSUE: Whether the certification of non-forum
shopping was properly executed
NO. The certification of non-forum
shopping attached was without proof of
authority to sign. When a motion for
reconsideration was filed, a Secretary’s
Certificate was submitted as proof that the
board of directors of PAL had authorized the
two to execute the certificate. Nonetheless,
the Court finds that this belated submission is
an insufficient compliance with the certification
requirement.
The required certification must be valid
at the time of filing of the petition. An invalid
certificate cannot be remedied by the
subsequent submission of a Secretary’s
Certificate that vests authority only after the
petition had been filed. At the time the
certification was signed, Lamberte and Del
Carmen were not duly authorized and,
consequently, their signing and attestations
were not in representation of PAL. This
effectively translates to a petition that was
filed without a certification at all as none was
issued by PAL, the principal party to the case.
Rule 65, Section 1, in relation to Rule
46, Section 3 of the Rules of Court requires the
certification of non-forum shopping to be
executed by the corresponding petitioner or
petitioners. As no distinction is made as to
which party must execute the certificate, this
requirement is made to apply to both natural
and juridical entities. When the petitioner is a
corporation, the certification should be

executed by a natural person. Furthermore,
not just any person can be called upon to
execute the certification, although such a
person may have personal knowledge of the
facts to be attested to.
The power of a corporation to sue in
any court is generally lodged with the board of
directors, who can delegate the physical acts
needed to sue, which may be performed only
by natural persons, to its attorneys-in-fact by a
board resolution, if not already authorized
under the corporate by-laws. Thus, only
individuals vested with authority by a valid
board resolution may sign the certificate of
non-forum shopping in behalf of a corporation.
In addition, proof of said authority must be
attached. Failure to provide a certificate of
non-forum shopping is sufficient ground to
dismiss the petition. Likewise, the petition is
subject to dismissal if a certification was
submitted unaccompanied by proof of the
signatory’s authority.
Filing and service defined
Filing—the act of presenting the pleading or
other paper to the clerk of court
Service—the act of providing a party with a
copy of the pleading or paper concerned.
 If any party has appeared 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 to one
copy of any paper served upon him by
the opposite side. (Sec. 2, Rule 3)
Coverage
This Rule governs
(1) the filing of all pleadings and other
papers, and
(2) the service thereof
EXCEPT those for which a different mode of
service is prescribed (Sec. 1, Rule 13)
Papers required to be filed and served—
(1) judgments,
(2) resolutions,
(3) orders,
(4) pleading subsequent to the complaint,
(5) written motions,
(6) notices,
(7) appearances,
(8) demands,
(9) offers of judgment, or
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER53
(10) similar papers shall be filed
with the court, and served upon the
parties affected
(Sec. 4, Rule 13)
Modes of service
There are two modes of service of pleadings,
motions, orders, judgments and other papers:
(1) personally, or
(2) by mail
In general, filing
The filing of pleadings, appearances, motions,
notices, orders, judgments and all other papers
shall be made
(1) Personally—
By presenting the original copies
thereof, plainly indicated as such,
personally to the clerk of court
• the clerk of court shall endorse
on the pleading the date and
hour of filing.
(2) By mail—
By sending them by registered mail.
• The date of the mailing of
motions, pleadings, or any
other papers or payments or
deposits, as shown by the post
office stamp on the envelope
or the registry receipt, shall be
considered as the date of their
filing, payment, or deposit in
court. The envelope shall be
attached to the record of the
case. (Sec. 3, Rule 13)
In general, service
Service of pleadings, motions, notices, orders,
judgments and other papers shall be made
either
(1) personally or
(2) by mail. (Sec. 5, Rule 13)
Service of judgments, final orders, or
resolutions.—Judgments, final orders or
resolutions shall be served
(1) personally
(2) by registered mail, or
(3) by publication, at the expense of the
prevailing party, in cases where a
party was
a. summoned by publication, and
b. has failed to appear in the
action. (Sec. 9, Rule 13)
Personal
Personal service of the papers may be made
(1) by delivering personally a copy to the
party or his counsel,

(2) by leaving it in his office with his clerk
or with a person having charge
thereof, or
(3) by leaving the copy, between 8am and
6pm, at the party’s or counsel’s
residence, if known, with a person of
sufficient age and discretion then
residing therein, in cases where
a. no person is found in his office,
b. his office is not known, or
c. he has no office, then. (Sec. 6,
Rule 13)
Mail
Service by registered mail shall be made
(1) by depositing the copy in the office,
(2) in a sealed envelope,
(3) plainly addressed to the party or his
counsel at his office, if known,
otherwise at his residence, if known,
(4) with postage fully prepaid, and
(5) with instructions to the postmaster to
return the mail to the sender after ten
(10) days if undelivered.
Service by ordinary mail may be done if no
registry service is available in the locality of
either the sender or the addressee (Sec. 7,
Rule 13)
Substituted service
Substituted service is made if service of
pleadings, motions, notices, resolutions, orders
and other papers cannot be made under the
two preceding sections, the office and place of
residence of the party or his counsel being
unknown.
Substituted service is done
(1) by delivering the copy to the clerk of
court, with proof of failure of both
personal service and
(2) service by mail.
The service is complete at the time of such
delivery. (Sec. 8, Rule 13)
Priority
Whenever practicable, the service and filing of
pleadings and other papers shall be done
personally.
 A resort to other modes must be
accompanied by a written explanation
why the service or filing was not done
personally.
 Exception: Papers emanating from the
court.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER54
 A violation of this Rule may be cause
to consider the paper as not filed. (Sec.
11, Rule 13)
Upon party in default (Sec. 3, Rule 9)
A defending party shall be declared in default
when
(1) Ground: He fails to answer within the
time allowed therefor, the court shall,
(2) The claiming party files a motion to
declare the defending party in default,
furnishing proof of failure to answer
(3) Said party gives notice of such motion
to the defending party,
The court shall proceed to render judgment
granting the claimant such relief as his
pleading may warrant,
 unless the court in its discretion
requires the claimant to submit
evidence.
 Such reception of evidence may be
delegated to the clerk of court. (1a,
R18)
(a) Effect of order of default.—A party in
default shall be entitled to notice of
subsequent proceedings but NOT to take part
in the trial.
(b) Relief from order of default.—A party
declared in default may at any time after
notice thereof and before judgment file a
motion under oath to set aside the order of
default upon proper showing that his failure to
answer was due to fraud, accident, mistake or
excusable negligence and that he has a
meritorious defense. In such case, the order of
default may be set aside on such terms and
conditions as the judge may impose in the
interest of justice.
(c) Effect of partial default.—When a pleading
asserting a claim states a common cause of
action against several defending parties, some
of whom answer and the others fail to do so,
the court shall try the case against all upon the
answers thus filed and render judgment upon
the evidence presented.
(d) Extent of relief to be awarded.—A judgment
rendered against a party in default shall not
exceed the amount or be different in kind from
that prayed for nor award unliquidated
damages.
(e) Where no defaults allowed.—If the
defending party in an action for annulment or
declaration of nullity of marriage or for legal
separation fails to answer, the court shall order
the prosecuting attorney to investigate

whether or not a collusion between the parties
exists, and if there is no collusion, to intervene
for the State in order to see to it that the
evidence submitted is not fabricated. (Sec. 3,
Rule 9)
Completion of service
Personal service—
 upon actual delivery
Service by ordinary mail—
 upon the expiration of ten (10) days
after mailing, unless the court
otherwise provides.
Service by registered mail—
 upon actual receipt by the addressee,
or
 after five (5) days from the date he
received the first notice of the
postmaster, whichever date is earlier.
(Sec. 10, Rule 13)
Proof of filing and service
The filing of a pleading or paper shall be
proved by
Personal service
(1) its existence in the record of the case;
(2) the written or stamped
acknowledgment of its filing by the
clerk of court on a copy of the same, if
it is not in the record, but is claimed to
have been filed personally;
Registered mail
(1) by the registry receipt and
(2) by the affidavit of the person who did
the mailing, containing
a. a full statement of the date
and place of depositing the
mail in the post office in a
sealed envelope addressed to
the court,
b. with postage fully prepaid, and
c. with instructions to the
postmaster to return the mail
to the sender after ten (10)
days if not delivered. (Sec. 12,
Rule 13)
The service of a pleading or paper shall be
proved by
Personal service
(1) written admission of the party served,
(2) the official return of the server, or
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER55
(3) the affidavit of the party serving,
containing a full statement of the date,
place and manner of service.
Ordinary mail
(1) affidavit of the person mailing of facts
showing compliance with section 7 of
this Rule.
• Service by ordinary mail may
be done if no registry service is
available in the locality of
either the sender or the
addressee (Sec. 7, Rule 13)
Registered Mail—
(1) such affidavit and
(2) the registry receipt issued by the
mailing office.
 NOTE: The registry return card shall be
filed immediately upon its receipt by
the sender, or in lieu thereof of the
unclaimed letter together with the
certified or sworn copy of the notice
given by the postmaster to the
addressee. (Sec. 13, Rule 13)
Lis pendens
A notice of lis pendens may be recorded in the
office of the registry of deeds of the province
in which the property is situated
(1) by the plaintiff and the defendant;
(2) in an action affecting the title or the
right of possession of real property,
(3) when affirmative relief is claimed in
the answer,
Said notice shall contain
(1) the names of the parties
(2) the object of the action or defense, and
(3) a description of the property in that
province affected thereby.
Effects
(1) Constructive notice to a purchaser or
encumbrancer from the time of filing
such notice for record.
(2) Is notice only against the parties
designated by their real names.
Cancellation
The notice of lis pendens hereinabove
mentioned may be cancelled
(1) only upon order of the court,
(2) after proper showing that
a. the notice is for the purpose of
molesting the adverse party,
or

b. that it is not necessary to
protect the rights of the party
who caused it to be recorded.
(Sec. 14, Rule 13)
AMENDED AND SUPPLEMENTAL
PLEADINGS
Amendments
In general
Pleadings may be amended
(1) by adding or striking out an allegation
or the name of any party, or
(2) by correcting a mistake in the name of
a party or a mistaken or inadequate
allegation or description in any other
respect
Purpose: So that the actual merits of the
controversy may speedily be determined,
without regard to technicalities, and in the
most expeditious and inexpensive manner.
Liberality
BARFEL DEV’T. CORP v. CA
(223 SCRA 268)
As a general policy, liberality in allowing
amendments is greatest in the early stages
of a law suit, decreases as it progresses
and changes at times to a strictness
amounting to a prohibition. This is further
restricted by the condition that the
amendment should not prejudice the
adverse party or place him at a
disadvantage.
FACTS: Barfel sold to Reginas two parcels of
land with two houses erected thereon in Ayala
Alabang, stipulating that the Barfel will apply
the payment of the cash portion of the
purchase price to the removal of any and all
liens on the properties. The contract stated
that apart from a BPI mortgage and the Deed
of Restrictions annotated at the back of the
title, the subject property was free from all
liens. Reginas made the downpayment upon
signing the agreement.
It was later discovered that there was
apparently a second mortgage with the
PISO/Central Bank. Upon this information,
Victor Barrios assured the buyer that the
second mortgage has been reduced and that
he will submit the necessary documents to
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER56
support a legal and valid acceptable
arrangement for the release of such mortgage.
Thereafter, the PSB granted Reginas loan,
which again subjected aforesaid properties to a
mortgage. PSB now promises to pay directly
to BPI from the proceeds of the loan and pay
the sellers the purchase price. The latter
conformed to the arrangement.
Given the prior assurance of a
workable arrangement regarding the Central
Bank mortgage, the buyers now manifested its
willingness to pay P2M ahead of the proceeds
for the PSB loan. Notwithstanding such
negotiations however, the sellers here are in
gross and evident bad faith and malicious
breach of contract for they have failed to
comply with the obligation to release the
second mortgage. BPI further averred that the
sellers actually disauthorized them to
consummate the transaction despite previous
arrangements.
Reginas and Zaragoza filed a
complaint for specific performance and
damages against Barfel and the Spouses
Barrios. Pre-trial was conducted and both
parties presented evidence.
During Barfel’s presentation, Reginas
filed a motion for leave to file an amended
complaint and motion to admit the same. The
amendment sought to implead PISO bank as
additional party defendant and compel it to
accept payment of the existing second
mortgage from Reginas, since no complete
relief can be had unless the second mortgage
is released.
Barfel opposed. The RTC admitted the
amended complaint. The CA sustained the
lower court’s order saying that the amendment
was made without intent to delay the action.
The essence of liberal construction was
accorded by the courts.
ISSUE: Whether the amended complaint
should be allowed
NO. The amendment was made with
intent to delay the action and substantially
alters the cause of action of Reginas and the
defense of Barfel. After the case is set for
hearing, substantial amendments may be
made only upon leave of court. Such leave
may be refused if it appears that the motion
was made with intent to delay the action or
that the cause of action or defense is
substantially altered. (Sec. 3, Rule 10)
The amendment sought by private
respondents, which is to include a new party
defendant at a late stage in the proceeding, is
not a formal but a substantial one. Private
respondents will have to present additional
evidence on the PISO second mortgage. The
effect would be to start trial anew with the

parties recasting their theories of the case. The
correct amount of the second mortgage owed
by petitioners to PISO bank (apparently a
controverted point), would have to be litigated
and this could be time consuming.
As a general policy, liberality in
allowing amendments is greatest in the early
stages of a law suit, decreases as it progresses
and changes at times to a strictness
amounting to a prohibition. This is further
restricted by the condition that the
amendment should not prejudice the adverse
party or place him at a disadvantage.
Form
When any pleading is amended, the following
shall be filed:
(1) a new copy of the entire pleading,
(2) incorporating the amendments, which
shall be indicated by appropriate
marks,. (Sec. 7, Rule 13)
Effect
An amended pleading supersedes the pleading
it amends.
 However, admissions in superseded
pleadings may be received in evidence
against the pleader; and
 Claims or defenses alleged therein not
incorporated in the amended pleading
shall be deemed waived. (Sec. 8, Rule
10)
Kinds
Formal amendment
A defect in the designation of the parties and
other clearly clerical or typographical errors
may be summarily corrected by the court at
any stage of the action,
 at its initiative or on motion,
 provided so no prejudice is caused
thereby to the adverse party. (Sec. 4,
Rule 10)
Substantial amendments
Matter of right
A party may amend his pleading once as a
matter of right
 at any time before a responsive
pleading is served or,
 in the case of a reply, at any time
within ten (10) days after it is served.
(Sec. 2, Rule 10)
Matter of discretion
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER57
Except as provided in the next preceding
section, Substantial amendments may be
made only upon leave of court.
 But such leave may be refused if it
appears to the court that the motion
was made with intent to delay.
 Substantial amendments may be made
only
(1) upon motion filed in court, and
(2) after notice to the adverse
party, and an opportunity to be
heard. (Sec. 3, Rule 10)
To conform to evidence
Amendment to conform to evidence
Issues not raised by pleadings may be deemed
as if they were raised:
(1) When issues are not raised by the
pleadings, and
(2) They are tried with the express or
implied consent of the parties
Such amendment of the pleadings as may be
necessary
 to cause them to conform to the
evidence and
 to raise these issues
may be made
(1) upon motion of any party
(2) at any time, even after judgment;
Failure to amend
Failure to amend does not affect the result of
the trial of these issues.
Amendment to authorize presentation of
evidence
This amendment may be made
 if evidence is objected to at the trial on
the ground that it is not within the
issues made by the pleadings,
 the court may allow the pleadings to
be amended and shall do so with
liberality if the presentation of the
merits of the action and the ends of
substantial justice will be served
thereby. The court may grant a
continuance to enable the amendment
to be made. (Sec. 5, Rule 10)
SWAGMAN HOTELS & TRAVEL, INC. v. CA
(2008)
 CIVIL PROCEDURE REVIEWER58

The curing effect under Section 5 of Rule 10 complaint is defective for failure to allege the
of the 1997 Rules of Civil Procedure is essential facts.
applicable only if a cause of action exists at It thus follows that a complaint whose
the time the complaint is filed, but the cause of action has not yet accrued cannot be
complaint is defective for failure to allege cured or remedied by an amended or
the essential facts. A complaint whose supplemental pleading alleging the existence
cause of action has not yet accrued cannot or accrual of a cause of action while the case is
be cured or remedied by an amended or pending. Such an action is prematurely
supplemental pleading alleging the brought and is, therefore, a groundless suit,
existence or accrual of a cause of action which should be dismissed by the court upon
while the case is pending. proper motion seasonably filed by the
defendant. The underlying reason for this rule
is that a person should not be summoned
FACTS: Swagman Hotels and Travel, Inc., before the public tribunals to answer for
obtained from respondent Neal B. Christian complaints which are immature.
loans evidenced by three promissory notes
dated 1997, each in the amount of $50,000 Remedies
payable after three years (200) from its date
with a 15% interest per annum payable every Periods to answer
three months. Later on, Christian informed the
Swagman that he was terminating the loans Amendments
and demanded from the latter payment in the Amendment as a matter of right—
total amount of $150,000 plus the unpaid The defendant shall answer the same within
interests of $13,500. fifteen (15) days after being served with a
In 1999, Christian filed a complaint for copy thereof.
the unpaid loans, alleging that petitioner,
instead of paying the 15% monthly interest, Amendment not a matter of right—
started paying only 6%. Swagman filed an The defendant shall answer within ten (10)
Answer, raising as defense the lack of cause of days from notice of the Order admitting the
action of the principal obligations because the same.
three promissory notes were not yet due and  An answer earlier filed may serve as
demandable. the answer to the amended complaint,
The trial court ruled that the first two if no new answer is filed.
promissory notes were already due and
demandable and ordered Swagman to pay the Applicability
amount of the checks plus 6% interest. It ruled This Rule shall apply to the answer to
that although at the time of the complaint, the
(1) an amended counterclaim,
notes were not yet due and demandable, it
(2) amended cross-claim,
was cured when they became due during the
trial. (3) amended third (fourth, etc.)— party
complaint, and
ISSUE: Whether or not lack of cause of action (4) amended complaint-in-intervention.
may be cured by evidence presented during (Sec. 3, Rule 11)
the trial and amendments to conform to the
evidence Supplemental complaint
NO. Amendments of pleadings are This may be answered within ten (10) days
allowed under Rule 10 in order that the actual from notice of the order admitting the same,
merits of a case may be determined in the unless a different period is fixed by the court.
most expeditious and inexpensive manner  If no new or supplemental answer is
without regard to technicalities, and that all filed—
other matters included in the case may be The answer to the complaint shall
determined in a single proceeding, thereby serve as the answer to the
avoiding multiplicity of suits. Section 5 thereof supplemental complaint. (Sec. 7, Rule
applies to situations wherein evidence not 11)
within the issues raised in the pleadings is
presented by the parties during the trial, and Supplemental pleadings
to conform to such evidence the pleadings are A supplemental pleading setting forth
subsequently amended on motion of a party. transactions, occurrences or events which
The curing effect under Section 5 is have happened since the date of the pleading
applicable only if a cause of action in fact sought to be supplemented may be permitted
exists at the time the complaint is filed, but the (1) upon motion of a party
MENDEZ, IVAN VIKTOR (2D, ’13)

(2) reasonable notice and
(3) upon such terms as are just
Period to answer
The adverse party may plead thereto within
ten (10) days from notice of the order
admitting the supplemental pleading. (Sec. 6,
Rule 11)
Distinguished from amended pleadings
SHOEMART, INC. v. CA
(190 SCRA 189, 1990)
A supplemental pleading supplies
deficiencies in aid of an original pleading
not to entirely substitute the latter.
FACTS: Anson Emporium Corp. (Anson) leased
from Shoemart portion of a building for two
years. The lease stipulated that if after
termination of the lease, Shoemart permits
Anson to remain, the lease shall be understood
to be on a month to month basis in the
absence of a contrary written agreement.
Anson remained in possession after the
two-year period but on an increased rental.
Four years later, Shoemart terminated the
lease and gave notice to Anson to vacate,
which the latter refused. A complaint for
ejectment was filed against him with the MTC.
Shoemart asked for, and was granted, leave to
file supplemental complaint which alleged that
the rental of all tenants of the premises had
been increased to P45,142.00, which Anson
refused to pay. Anson alleged that Shoemart’s
claim for increased rentals has been barred.
MTC ruled for Anson.
The RTC reversed the judgment and
ordered Anson to vacate the premises and to
pay P34,622 and P45,142 respectively for the
two lease agreements, with 1% interest from
October 1977. Shoemart filed a motion for
reconsideration of the award of damages,
saying it is less than what is really due. RTC
granted this motion.
CA affirmed the ejectment of
respondent but reduced the damages awarded
by stating that the 1% interest will start to run
from October 1987. Private respondent sought
the correction of the clerical error regarding
date of the effectivity of the payment for
damages. Said motion was granted
Petitioner's motion for reconsideration
seeking the reinstatement of the RTC’s
decision was denied. CA ruled that petitioner’s
claim for damages is limited to the P45,142
alleged in the supplemental complaint.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER59
ISSUE: Whether the subsequently amended
complaint in the case at bar renders the
original complaint abandoned or inexistent
NO. Petitioner's recovery is not limited
by the amount of P45,142.00 prayed for in the
supplemental complaint as increased rental.
This is not a case of a complaint subsequently
amended, the effect of which is to render the
original complaint abandoned or inexistent and
let the amendment take form as the sole
substitute upon which the case stands for trial.
A supplemental complaint or pleading
supplies deficiencies in aid of an original
pleading, not to entirely substitute the latter. A
perusal of the original complaint shows that it
prayed, among others, that the private
respondent be ordered to pay petitioner
P34,622.00 and all other rentals and charges
that may be due until respondent vacates the
premises. Petitioner, therefore, did not
foreclose its right to demand increased rentals
that may be recovered expressed in terms of
the fair rental value or the reasonable
compensation for the use and occupation of
the real property. Unlike in an amended
complaint, the original complaint exists side by
side with the supplemental complaint.
The supplemental pleading merely
served to aver supervening facts which were
then not ripe for judicial relief when the
original pleading was filed. Supplemental
pleadings are meant to supply deficiencies in
aid of the original pleading and not to dispense
with the latter.
The failure of petitioner to amend its
complaint or file additional supplemental
pleadings to allege subsequent rental
increases is of no moment.
In view of the failure of private
respondent to object to the presentation of
evidence showing that there were four (4)
rental increases on the subject premises
although three (3) of said increases are not
alleged in the pleadings, judgment may be
rendered validly as regards the said increases
or issues which shall be considered as if they
have been raised in the pleadings. As found by
the RTC, private respondent did not controvert
the evidence submitted by petitioner in
determining the fair rental value of the
premises including those imposed on all other
tenants of petitioner occupying the Makati
Arcade. If, indeed, the rental increases were
unconscionable, respondent should have at
least presented evidence to substantiate its
claim. The burden of proof to show that the
rental demanded is unconscionable or
exorbitant rests upon private respondent as
the lessee.
Private respondent failed to discharge
its burden when it omitted to present any

evidence at all on what it considers is the fair
rental value other than what were submitted
by petitioner. As a matter of fact, all the other
tenants did not question the reasonableness of
the rental increases
BILL OF PARTICULARS/INTERVENTION
Bill of particulars
Also called bill of definite statement
 It is a motion that applies to any
pleading which in the perception of the
movant contains ambiguous allegations
(Riano)
 If a complaint makes out a cause of
action, the ambiguity in some allegations
or failure to allege facts with sufficient
particularity does not justify the filing of a
motion to dismiss. The proper remedy is to
file a motion for bill of particulars.
Office and Purpose
 To seek an order from court directing
the pleader to submit a bill of
particulars which avers matters with
“sufficient definiteness or particularity”
to enable the movant to file his
responsive pleading. (Sec. 1, Rule 12)
 “The proper preparation of an
intelligent answer requires information
as to the precise nature, character,
scope and extent of the cause of action
in order that the pleader may be able
to squarely meet the issues raised,
thereby circumscribing them within
determined confines and preventing
surprises during trial, and in order that
he may set forth his defenses which
may not be so readily availed of if the
allegation controverted are vague,
indefinite, uncertain or are mere
general conclusions” (Virata v.
Sandiganbayan)
 “The proper office of a bill of
particulars is to inform the opposite
party and the court of the precise
nature and character of the ccause of
action.” (Tan v. Sandiganbayan)
VIRATA v. SANDIGANBAYAN
(221 SCRA 52, 1993)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER60
Object and purpose of a Bill of particular:
(1) Amplify or limit a pleading
(2) Specify more minutely and
particularly a claim or defense set
up and pleaded in general terms
(3) Give information, not contained in
the pleading, to the opposite party
and the court as to the precise
nature, character, scope, and
extent of the cause of action or
defense relied on by the pleader
(4) Apprise the opposite party of the
case which he has to meet
(5) Define, clarify, particularize, and
limit or circumscribe the issues in
the case
(6) Expedite the trial, and assist the
court
(7) Prevent injustice or do justice in
the case when that cannot be
accomplished without the aid of
such a bill.
(8) Proper preparation of a responsive
pleading
(9) Proper preparation of an intelligent
answer.
FACTS: Cesar Virata was among the forty-four
co-defendants of Benjamin (Kokoy) Romualdez
in a complaint filed by the Sandiganbayan. The
complaint was amended thrice, the last
amendment thereto is denominated as Second
Amended Complaint. The plaintiff alleged four
actionable wrongs against petitioner: (1) his
participation in the reduction of the electric
franchise tax and the tariff duty of fuel oil
imports by all public utilities (2) his
participation in the the approval of the '3-Year
Program for the Extension of MERALCO's
Services to Areas’ (3) his participation in the
formation of Erectors Holdings, Inc. and (4) his
acting as a dummy of corporations controlled
by Romualdez and Marcos.
Petitioner moved to dismiss the case
on various grounds including the failure of the
expanded Second Amended Complaint to state
a cause of action. The motion was denied by
Sandiganbayan. SC affirmed the
Sandiganbayan, and advised petitioner that if
he perceive some ambiguity or vagueness
therein, the remedy is not a motion to dismiss,
but rather for a bill of particulars.
Petitioner filed a motion for bill of
particulars, claiming that the general and
sweeping allegations of the Second Amended
Complaint and the purported illegal acts
imputed to them as well as the alleged causes
of actions are vague and ambiguous. They are
not averred with sufficient definiteness or
particularity as would enable defendant Virata

to properly prepare his answer or responsive
pleading. Sandiganbayan partially granted the
motion; of the four actionable wrongs, it
granted the motion with respect only to the
fourth, since the other three actionable wrongs
are not squarely under the Tantuico case.
Not satisfied with the partial grant of
the motion, petitioner filed the instant petition
under Rule 65 of the Revised Rules of Court.
ISSUE: Whether the Motion for Bill of
Particulars should be granted totally
YES. It was grave error for the
Sandiganbayan to state that "[a]lleging the
specific nature, character, time and extent of
the phrase 'active collaboration' would be a
mere surplus age and would not serve any
useful purpose" for precisely, without any
amplification or particularization thereof, the
petitioner would be hard put in meeting the
charges squarely and in pleading appropriate
defenses. Nor can We accept the public
respondent's postulation that "any question as
to the validity or legality of the transactions
involved in the charges against defendant-
movant is irrelevant and immaterial in the
resolution of the instant incident, inasmuch as
the same is a matter of defense which shall
have its proper place during the trial on the
merits, and on the determination of the liability
of defendant-movant after the trial proper."
This is absurd, for how may the petitioner set
up a defense at the time of trial if in his own
answer he was not able to plead such a
defense precisely because of the vagueness or
indefiniteness of the allegations in the
complaint? Unless he pleads the defense in his
answer, he may be deprived of the right to
present the same during the trial because of
his waiver thereof.
Since the issues have not as yet been
joined and no evidence has so far been
adduced by the parties the Sandiganbayan
was in no position to conclude that the matters
which the. petitioner seeks are "within his
intimate or personal knowledge."
It is the office or function, as well as
object or purpose, of a bill of particulars to (1)
amplify or limit a pleading, (2) specify more
minutely and particularly a claim or defense
set up and pleaded in general terms, (3) give
information, not contained in the pleading, to
the opposite party and the court as to the
precise nature, character, scope, and extent of
the cause of action or defense relied on by the
pleader, and (4) apprise the opposite party of
the case which he has to meet, (a) to the end
that the proof at the trial may be limited to the
matters specified, and (b) in order that
surprise at, and needless preparation for, the
trial may be avoided, and (c) that the opposite
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER61
party may be aided in framing his answering
pleading and preparing for trial. It has also
been stated that it is the function or purpose of
a bill of particulars to (5) define, clarify,
particularize, and limit or circumscribe the
issues in the case, to (6) expedite the trial, and
assist the court. A general function or purpose
of a bill of particulars is to (7) prevent injustice
or do justice in the case when that cannot be
accomplished without the aid of such a bill.
Moreover, the phrase "to enable him
properly to prepare his responsive
pleading . . ." in Section 1 of Rule 12 implies
not just the opportunity to (8) properly prepare
a responsive pleading but also to (9) prepare
an intelligent answer. The proper preparation
of an intelligent answer requires information as
to the precise nature, character, scope and
extent of the cause of action in order that the
pleader may be able to squarely meet the
issues raised, thereby circumscribing them
within determined confines and, preventing
surprises during the trial, and in order that he
may set forth his defenses which may not be
so readily availed of if the allegations
controverted are vague, indefinite, uncertain
or are mere general conclusions.
What is beyond its scope
 “The complaint for which a bill for a
more definite statement is sought
need only inform the defendant of the
essential (or ultimate) facts to enable
him, the defendant, to prepare his
answer… Any more ‘particulars’ in that
event would be evidentiary in
character, which must be adduced at
the trial proper.” (Tan v.
Sandiganbayan)
Notes:
• If the purpose is for
preparation for trial, the
appropriate remedy is to avail
discovery procedures or pre-
trial.
• It is erroneous to require
disclosure of evidence relied
upon by the adverse party in a
motion for bill of particulars.
• A motion for bill of particulars
to require a pleader to set forth
matters showing jurisdiction of
a court to render its judgment
is not proper.
 To clarify allegations in the pleading
TAN v. SANDIGANBAYAN
(180 SCRA 34, 1989)

The complaint for which a bill for a more
definite statement is sought, need only
inform the defendant of the essential (or
ultimate) facts to enable the defendant to
prepare an intelligent answer.
FACTS: The PCGG filed a complaint against the
twenty-two petitioners, together with the late
Ferdinand Marcos, Mrs. Imelda Marcos, Don
Ferry, and Federico Moreno, praying, among
others, for the return and reconveyance of all
funds and other property impressed with
constructive trust in favor of PCGG and the
Filipino people, as well as funds and other
property acquired by Defendants by abuse of
right and power and through unjust
enrichment.
Subsequently, the PCGG filed an
Expanded Complaint. In essence, these are
what the PCGG says:
1. The petitioner Lucio Tan was Mr.
Marcos' business partner;
2. Through undue influence, coercion,
and abuse of light they acquired
shareholdings from various firms, and
built a business empire therefrom;
3. The remaining petitioners acted as
their "dummies, nominees, or agents";
4. Together with the Marcoses, they
maneuvered their way into these firms
and acquired control thereof;
5. The same were accomplished through
unacceptable machinations such as
insider trading and similar acts, in
violation of existing laws;
6. They also unjustly enriched the
petitioners at the expense of the
Republic of the Philippines and the
Filipino people.
Notwithstanding this, the twenty-two
petitioners moved for a bill of particulars.The
respondent Court denied the petitioners'
motion, and denied reconsideration. The
petitioners submit that the PCGG's averments
are made up of bare generalizations,
presumptuous conclusions of fact and law, and
plain speculations, for which a motion for a
more definite statement or for a bill of
particulars allegedly lies.
The Sandiganbayan's decided that
Paragraphs 14 to 15, inclusive of the Expanded
Complaint, had already supplied or provided
the specifications and particulars theretofore
lacking in the original Complaint.
ISSUE: Whether the Motion for Bill of
Particulars should be granted
NO. The foregoing allegations of the
PCGG are actionable wrongs that are proper
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER62
for a complaint. The PCGG's
Complaint/Expanded Complaint is garbled in
many respects, but this is no excuse for sloth
on the part of the petitioners. The
Complaint/Expanded Complaint is complete
enough to perish fears of the PCGG pulling a
surprise subsequently.
It is not the office of a bill of particulars
to supply material allegations necessary to the
validity of a pleading, or to change a cause of
action or defense stated in the pleading, or to
state a cause of action or defense other than
the one stated. Also it is not the office or
function, or a proper object, of a bill of
particulars to set forth the pleader's theory of
his cause of action or a rule of evidence on
which he intends to rely, or to furnish
evidential information whether such
information consists of evidence which the
pleader proposes to introduce or of facts which
constitute a defense or offset for the other
party or which will enable the opposite party to
establish an affirmative defense not yet
pleaded. The PCGG's complaint (as amended)
does set out allegations, however confusingly
put in print, which, interrelated to one another,
are enough to support a formal civil charge. If
the petitioners are not aware of the PCGG's
asseverations, the remedy is to deny the same
in their answer for lack of "knowledge or
information sufficient to form a belief as to the
truth of the said averments. They cannot,
however, demand for any more particulars
without actually making the PCGG expose its
evidence unnecessarily before the trial stage.
When to file
It should be filed before a responsive pleading.
 If directed to a complaint, 15 days
after service of summons
 If directed to a counterclaim, 10 days
from service of the counterclaim
 If directed to a reply, 10 days from the
service of said reply
Requisites
The motion shall point out
(a) defects complained of;
(b) paragraphs wherein they are
contained; and
(c) the details desired.
Action of the court (Sec. 2, Rule 12)
Upon receipt of the motion, which the clerk
must immediately bring to the court’s
attention, the court may
(a) deny the motion outright;
(b) grant the motion outright; or
(c) hold a hearing on the motion.
 CIVIL PROCEDURE REVIEWER63

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

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

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

Legal interest— Answer to complaint-in-intervention—

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

Requisites; Who may intervene—

(1) There must be a motion for Ancillary to pending action
intervention filed before rendition of
judgment by the trial court; and SAW v. CA
(2) The movant must be a person who has (195 SCRA 740)
a legal interest
a. in the matter in litigation,
b. in the success of either of the
parties, or an interest against
both, or
c. is so situated as to be
adversely affected by a
distribution or other disposition
of property in the custody of
the court or of an officer
thereof.
(3) The intervention must not unduly delay
or prejudice the adjudication of the
MENDEZ, IVAN VIKTOR (2D, ’13)

Intervention is "an act or proceeding by
which a third person is permitted to
become a party to an action or proceeding
between other persons, and which results
merely in the addition of a new party or
parties to an original action, for the
purpose of hearing and determining at the
same time all conflicting claims which may
be made to the subject matter in litigation.
It is not an independent proceeding, but an
ancillary and supplemental one which, in
the nature of things, unless otherwise
provided for by the statute or Rules of
Court, must be in subordination to the
main proceeding. It may be laid down as a
general rule that an intervenor is limited to
the field of litigation open to the original
parties.
FACTS: Equitable Banking Corporation
(Equitable) filed a collection suit with
preliminary attachment against Freeman, Inc.
(Freeman) and Saw Chiao Lian, its President
and General Manager. The petitioners (Ruben
Saw, et al.) moved to intervene, alleging that
(1) the loan transactions between Chiao Lian
and Equitable were not approved by the
stockholders representing at least 2/3 of
corporate capital; (2) Chiao Lian had no
authority to contract such loans; and (3) there
was collusion between the officials of Freeman
and Equitable in securing the loans. The
motion to intervene was denied, and the
petitioners appealed to the Court of Appeals.
Meanwhile, Equitable and Chiao Lian
entered into a compromise agreement which
was approved by the lower court. However, it
was not complied with, so Equitable secured a
writ of execution, and two lots owned by
Freeman, Inc. were levied upon and sold at
public auction.
The CA sustained the denial of the
motion for intervention, holding that the
compromise agreement will not necessarily
prejudice petitioners whose rights to corporate
assets are at most inchoate, prior to the
dissolution of Freeman, and that intervention
under Sec. 2, Rule 12 of the Revised Rules of
Court is proper only when one's right is actual,
material, direct and immediate and not simply
contingent or expectant.
ISSUE: Whether petitioners may be allowed to
intervene in the action
NO. To allow intervention, [a] it must
be shown that the movant has legal interest in
the matter in litigation, or otherwise qualified;
and [b] consideration must be given as to
whether the adjudication of the rights of the
original parties may be delayed or prejudiced,
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER64
or whether the intervenor's rights may be
protected in a separate proceeding or not.
Both requirements must concur as the first is
not more important than the second.
The interest which entitles a person to
intervene in a suit between other parties must
be in the matter in litigation and of such direct
and immediate character that the intervenor
will either gain or lose by the direct legal
operation and effect of the judgment. Here, the
interest, if it exists at all, of petitioners-
movants is indirect, contingent, remote,
conjectural, consequential and collateral. While
a share of stock represents a proportionate or
aliquot interest in the property of the
corporation, it does not vest the owner thereof
with any legal right or title to any of the
property, his interest in the corporate property
being equitable or beneficial in nature.
Shareholders are in no legal sense the owners
of corporate property, which is owned by the
corporation as a distinct legal person.
Intervention is "an act or proceeding
by which a third person is permitted to become
a party to an action or proceeding between
other persons, and which results merely in the
addition of a new party or parties to an original
action, for the purpose of hearing and
determining at the same time all conflicting
claims which may be made to the subject
matter in litigation. It is not an independent
proceeding, but an ancillary and supplemental
one which, in the nature of things, unless
otherwise provided for by the statute or Rules
of Court, must be in subordination to the main
proceeding. It may be laid down as a general
rule that an intervenor is limited to the field of
litigation open to the original parties.
In the case at bar, there is no more
principal action to be resolved as a writ of
execution had already been issued by the
lower court and the claim of Equitable had
already been satisfied. The decision of the
lower court had already become final and in
fact had already been enforced. There is
therefore no more principal proceeding in
which the petitioners may intervene.
Exception
METROPOLITAN BANK & TRUST CO. v.
PRESIDING JUDGE
(182 SCRA 820, 1990)
The intervenor in a pending case is entitled
to be heard like any other party. An
intervenor’s petition showing it to be
entitled to affirmative relief will be
preserved and heard regardless of the
disposition of the principal action.

FACTS: Metrobank loaned Good Earth
Emporium (GEE) P4.9M, and the latter
mortgaged its air conditioning units as
security. Said units were purchased from
Raycor Air Control systems. However, Raycor
was not completely paid by GEE on the
installation costs to the extent of P150,000.
When GEE was foreclosed by BPI
Consortium, Metrobank filed a complaint for
replevin to recover the units. The defendants
consortium filed their answer. Subsequently,
Raycor filed a motion for leave to intervene,
which was granted.
The complaint was later dismissed with
prejudice when the parties agreed to a
compromise settlement, without informing the
intervenor Raycor.
ISSUE: Whether or not the intervenor in a
pending case is entitled to be heard like any
other party
YES. There is here no final dismissal of
the main case. The aforementioned order of
the lower court has the effect not only of
allowing the intervention suit to proceed but
also of vacating its previous order of dismissal.
The reinstatement of the case in order to try
and determine the claims and rights of the
intervenor is proper. The joint motion of
therein plaintiff and the original defendants to
dismiss the case, without notice to and
consent of the intervenor, has the effect of
putting to rest only the respective claims of
the said original parties inter se but the same
cannot in any way affect the claim of private
respondent which was allowed by the court to
intervene without opposition from the original
parties.
After the intervenor has appeared in
the action, the plaintiff has no absolute right to
put the intervenor out of court by the dismissal
of the action. The parties to the original suit
have no power to waive or otherwise annul the
substantial rights of the intervenor. When an
intervening petition has been filed, a plaintiff
may not dismiss the action in any respect to
the prejudice of the intervenor.
It has even been held that the simple
fact that the trial court properly dismissed
plaintiff s action does not require dismissal of
the action of the intervenor. An intervenor has
the right to claim the benefit of the original
suit and to prosecute it to judgment. The right
cannot be defeated by dismissal of the suit by
the plaintiff after the filing of the petition and
notice thereof to the other parties. A person
who has an interest in the subject matter of
the action has the right, on his own motion, to
intervene and become a party to the suit, and
even after the complaint has been dismissed,
may proceed to have any actual controversy
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER65
established by the pleadings determined in
such action. The trial court's dismissal of
plaintiff’s action does not require dismissal of
the action of the intervenor.
The intervenor in a pending case is
entitled to be heard like any other party. A
claim-in-intervention that seeks affirmative
relief prevents a plaintiff from taking a
voluntary dismissal of the main action. Where
a complaint in intervention was filed before
plaintiff's action had been expressly dismissed,
the intervenor's complaint was not subject to
dismissal on the ground that no action was
pending, since dismissal of plaintiffs action did
not affect the rights of the intervenor or affect
the dismissal of intervenor's complaint. An
intervenor's petition showing it to be entitled
to affirmative relief will be preserved and
heard regardless of the disposition of the
principal action.
SUMMONS (RULE 14)
Definition and purpose
Summons is the writ by which the defendant is
notified of the action brought against him.
 The issuance of summons is
mandatory on the part of the court.
 In an action in personam, the purpose
of summons is not only to notify the
defendant of the action, but also to
acquire jurisdiction over his person.
 Service of summons is required even if
the defendant is aware of the filing of
the action against him.
 In an action in rem or quasi in rem, the
purpose of summons is mainly to
satisfy the constitutional requirements
of due process.
Duty to issue
The clerk of court shall issue the corresponding
summons to the defendants
(1) upon the filing of the complaint and
(2) payment of the requisite legal fees.
(Sec. 1, Rule 14)
Issuance of alias summons—
If a summons is returned without being served
on any or all of the defendants, the server:
(1) shall also serve a copy of the return on
the plaintiff’s counsel,
(2) stating the reasons for the failure of
service,
(3) within five (5) days from such failure.
The clerk may issue an alias summons
(1) on demand of the plaintiff,

(2) if the summons has been lost, or
(3) if the summons has been returned
without being served (Sec. 5, Rule 14)
Form
Content
The summons shall be
(1) directed to the defendant,
(2) signed by the clerk of court, and
(3) under seal.
The summons shall contain:
(a) the name of the court and the names
of the parties to the action;
(b) a direction that the defendant answer
within the time fixed by these Rules;
and
(c) a notice that unless the defendant so
answers, plaintiff will take judgment by
default and may be granted the relief
applied for.
A copy of the complaint and order for
appointment of guardian ad litem, if any, shall
be attached to the original and each copy of
the summons. (3a)
If with leave of court
It shall be made
(1) by motion,
(2) in writing,
(3) supported by affidavit of the plaintiff or
some person on his behalf, and
(4) setting forth the grounds for the
application. (Sec. 17, Rule 14)
Who serves
The summons may be served by
(1) the sheriff,
(2) his deputy,
(3) other proper court officer, or
(4) any suitable person authorized by the
court issuing the summons, for
justifiable reasons. (Sec. 3, Rule 14)
On whom
In general
The clerk of court shall issue the corresponding
summons to the defendants. (Sec. 1, Rule 14)
Service in person on defendant—
Whenever practicable, the summons shall be
served
(1) by handing a copy thereof to the
defendant in person, or
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER66
(2) by tendering it to him, if he refuses to
receive and sign for it. (Sec. 6, Rule
14)
Entity without juridical personality
When persons associated in an entity without
juridical personality are sued under the name
by which they are generally or commonly
known, service may be effected
(1) upon all the defendants by serving
upon any one of them, or
(2) upon the person in charge of the office
or place of business maintained in such
name.
BUT such service shall not bind individually
any person whose connection with the entity
has, upon due notice, been severed before the
action was brought. (Sec. 8, Rule 14)
Associations
Domestic
Service upon domestic private juridical entity—
Service may be made on
(1) the president,
(2) managing partner,
(3) general manager,
(4) corporate secretary,
(5) treasurer, or
(6) in-house counsel. (Sec. 11, Rule 14)
List exclusive
E.B. VILLAROSA & PARTNER CO., LTD. V.
BENITO
(312 SCRA 65, 1999)
The liberal construction rule cannot be
invoked and utilized as a substitute for the
plain legal requirements as to the manner
in which summons should be served on a
domestic corporation. The officer upon
whom service is made must be the one
stated in the statute otherwise the service
is insufficient.
FACTS: Petitioner E.B. Villarosa, a limited
partnership, and private respondent Benita
executed a deed of sale with development
agreement wherein Villarosa agreed to
develop certain parcels of land belonging to
Benito into a housing subdivision for the
construction of low cost housing units. They
further agreed that in case of litigation arising
from any dispute, the venue shall be in the
proper courts of Makati.
The private respondent subsequently
filed a Complaint for Breach of Contract and
Damages against the petitioner before the
 CIVIL PROCEDURE REVIEWER67

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

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

Residents temporarily out

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

MENDEZ, IVAN VIKTOR (2D, ’13)


The normal method of service of summons
on one temporarily absent is by substituted
service because personal service abroad
and service by publication are not ordinary
means of summoning defendants.
Summons in a suit in personam against a
temporarily absent resident may be by
substituted service as domiciliaries of a
State are always amenable to suits in
personam therein.
FACTS: Dolores P. Montefalcon filed a
Complaint for acknowledgment and support
against Ronnie S. Vasquez before the RTC,
alleging that her son Laurence Montefalcon is
the illegitimate child of Vasquez. She prayed
that Vasquez be obliged to give support to
Laurence, whose certificate of live birth he
signed as father.
A sheriff tried to serve the summons
and complaint on Vasquez in Aro-aldao, Nabua,
Camarines Sur. Vasquez's grandfather
received them as Vasquez was in Manila.
Vasquez's mother returned the documents to
the clerk of court, who informed the court of
the non-service of summons. Petitioners then
filed a motion to declare Vasquez in default,
which was denied for lack of proper service of
summons.
The court issued an alias summons on
Vasquez at Taguigupon petitioners' motion. A
Taguig deputy sheriff served it by substituted
service on Vasquez's caretaker. Another alias
summons was issued, also received by the
caretaker.
On petitioners' motion, the trial court
declared Vasquez in default for failure to file
an answer despite the substituted service of
summons. Vasquez was furnished with court
orders and notices of the proceedings at his
last known address, but these were returned
as he had allegedly moved to another place
and left no new address.
In 2001, the court granted petitioners'
prayers. The court added that Vasquez
admitted the truth of the allegations by his
silence.
In the same year, Vasquez surfaced
and filed a notice of appeal which petitioners
opposed. Appeal was granted. Before the
appellate court, he argued that the trial court
never acquired jurisdiction over his person.
The appellate court noted that the service of
summons on Vasquez was "defective" as there
was no explanation of impossibility of personal
service and an attempt to effect personal
service.
Petitioners argued that any attempt at
personal service of summons was needless as
Vasquez already left for abroad as an overseas
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER68
seafarer when the sheriff served the summons
in Taguig. The appellate court, however,
denied the motion.
ISSUE: Whether there was a valid substituted
service of summons
YES. To acquire jurisdiction over the
person of a defendant, service of summons
must be personal, or if this is not feasible
within a reasonable time, then by substituted
service. It is of judicial notice that overseas
Filipino seafarers are contractual employees.
As an overseas seafarer, Vasquez was a
Filipino resident temporarily out of the country.
Hence, service of summons on him is governed
by Rule 14, Section 16, which referred to
extraterritorial service. Because Section 16 of
Rule 14 uses the words "may" and "also," it is
not mandatory. Other methods of service of
summons allowed under the Rules may also be
availed of by the serving officer on a
defendant-seaman.
Obviously, personal service of
summons was not practicable since the
defendant was temporarily out of the country.
To proceed with personal service of summons
on a defendant-seaman who went on overseas
contract work would not only be impractical
and futile, it would also be absurd.
The substituted service in Taguig was
valid and justified because previous attempts
were made by the sheriffs to serve the
summons, but to no avail. Also, the caretaker
who received the alias summons was of
suitable age and discretion, then residing at
Vasquez's dwelling. There is no quarrel that it
was really Vasquez's residence, as evidenced
by his employment contract, executed under
the supervision and authority of the POEA. It
can be presumed that the caretaker must have
informed him one way or another of the suit
upon his return after finishing his nine-month
contract with Fathom Ship Management.
In Montalban v. Maximo, we held that
the normal method of service of summons on
one temporarily absent is by substituted
service because personal service abroad and
service by publication are not ordinary means
of summoning defendants. Summons in a suit
in personam against a temporarily absent
resident may be by substituted service as
domiciliaries of a State are always amenable to
suits in personam therein.
More importantly, the absence in the
final sheriff's return of a statement about the
impossibility of personal service does not
conclusively prove that the service is invalid.
Such failure should not unduly prejudice
petitioners if what was undisclosed was in fact
done. The sheriff's certificate of service of
summons is prima facie evidence of the facts

set out in it. Only clear and convincing
evidence may overcome its presumption of
regularity. Given the circumstances in the
present case, we agree that the presumption
of regularity in the performance of duty on the
part of the sheriff stands.
Non-resident
When the defendant
(1) does not reside and is not found in the
Philippines, and
(2) the action affects
a. the personal status of the
plaintiff or
b. relates to, or the subject of
which is, property within the
Philippines, in which the
defendant has or claims a lien
or interest, actual or
contingent; or
c. in which the relief demanded
consists, wholly or in part, in
excluding the defendant from
any interest therein, or
d. the property of the defendant
has been attached within the
Philippines,
Service may, by leave of court, be effected out
of the Philippines
(1) by personal service as under section 6;
or
(2) by publication in a newspaper of
general circulation in such places and
for such time as the court may order,
• in which case a copy of the
summons and order of the
court shall be sent by
registered mail to the last
known address of the
defendant,
(3) or in any other manner the court may
deem sufficient.
Any order granting such leave shall specify a
reasonable time, which shall not be less than
sixty (60) days after notice, within which the
defendant must answer. (Sec. 15, Rule 14)
in rem, quasi in rem
SANTOS v. PNOC
(556 SCRA 272, 2008)
Where the defendant could not be
personally served with summons despite
diligent efforts to locate his whereabouts,
he may properly be served with summons
of publication.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER69
FACTS: PNOC Exploration Corp. (respondent)
filed a complaint for a sum of money against
Pedro T. Santos, Jr. (petitioner), seeking to
collect the P698,502.10 unpaid balance of the
car loan advanced to Santos when he was still
member of the board of directors.
Personal service of summons to Santos
failed because he could not be located in his
last known address despite earnest efforts to
do so. On PNOC’s motion, the trial court
allowed service of summons by publication.
PNOC then caused the publication of the
summons in Remate, a newspaper of general
circulation in the Philippines. Thereafter, PNOC
submitted the affidavit of publication of the
advertising manager of Remate and an
affidavit of service of the PNOC’s employee to
the effect that he sent a copy of the summons
by registered mail to Santos’ last known
address.
When Santos failed to file his answer,
PNOC moved the case be set for the reception
of its evidence ex parte. The trial court granted
the motion. An omnibus motion for
reconsideration was then sought by Santos,
alleging that the affidavit of service submitted
by PNOC failed to comply with Sec. 19, Rule
14, as it was not executed by the Clerk of
Court. He also claimed denial of due process
for he was not notified of the trial court’s
order. PNOC opposed the motion and insisted
that it complied with the rules on service by
publication. The trial court denied Santos’
motion.
ISSUE: Whether there is improper service of
summons because summons by publication
only applies to actions in rem, and not in
personam
NO. Since petitioner could not be
personally served with summons despite
diligent efforts to locate his whereabouts,
respondent sought and was granted leave of
court to effect service of summons upon him
by publication in a newspaper of general
circulation. Thus, petitioner was properly
served with summons by publication.
The in rem/in personam distinction was
significant under the old rule because it was
silent as to the kind of action to which the rule
was applicable. Because of this silence, the
Court limited the application of the old rule to
in rem actions only. This has been changed.
The present rule expressly states that it
applies "[i]n any action where the defendant is
designated as an unknown owner, or the like,
or whenever his whereabouts are unknown and
cannot be ascertained by diligent inquiry."
Thus, it now applies to any action, whether in
personam, in rem or quasi in rem.

Service of summons by publication is
proved by the affidavit of the printer, his
foreman or principal clerk, or of the editor,
business or advertising manager of the
newspaper which published the summons. The
service of summons by publication is
complemented by service of summons by
registered mail to the defendant's last known
address. This complementary service is
evidenced by an affidavit "showing the deposit
of a copy of the summons and order for
publication in the post office, postage prepaid,
directed to the defendant by registered mail to
his last known address." The rules, however,
do not require that the affidavit of
complementary service be executed by the
clerk of court. While the trial court ordinarily
does the mailing of copies of its orders and
processes, the duty to make the
complementary service by registered mail is
imposed on the party who resorts to service by
publication.
The trial court acquired jurisdiction
over the person of petitioner by his own
voluntary appearance in the action against
him. This was equivalent to service of
summons and vested the trial court with
jurisdiction over the person of petitioner.
Modes of service
Personal
Whenever practicable, the summons shall be
served
(1) by handing a copy thereof to the
defendant in person, or
(2) by tendering it to him, if he refuses to
receive and sign for it. (Sec. 6, Rule
14)
Substituted
If, for justifiable causes, the defendant cannot
be served within a reasonable time as provided
in the preceding section, service may be
effected
(a) by leaving copies of the summons at
the defendant’s residence with some
person of suitable age and discretion
then residing therein, or
(b) by leaving the copies at defendant’s
office or regular place of business with
some competent person in charge
thereof. (Sec. 7, Rule 14)
ROBINSON v. MIRALLES
(510 SCRA 678, 2006)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER70
Under our procedural rules, personal
service is generally preferred over
substituted service, the latter mode of
service being a method extraordinary in
character. For substituted service to be
justified, the following circumstances must
be clearly established:
(a) personal service of summons within
a reasonable time was impossible;
(b) efforts were exerted to locate the
party; and
(c) the summons was served upon a
person of sufficient age and
discretion residing at the party’s
residence or upon a competent
person in charge of the party’s
office or place of business.
Failure to do so would invalidate all
FACTS: Respondent Celita Miralles filed a
complaint for collection of sum of money
against petitioner Remelita Robinson, alleging
that $20,054 was borrowed by Robinson, as
shown in the MOA they both executed.
Summons was served on Robinson at
her given address. However, per return of
service of the Sheriif, petitioner no longer
resides there. Thus, the trial court issued an
alias summons to be served at Muntinlupa
City, petitioner’s new address.
Again, the Sheriff reported twice
thereafter that the summons could not be
served on petitioner. Sheriff Pontente, who was
to serve the summons interposed that he was
stopped by the Security Guard of Alabang Hills
Village because they were allegedly told by
Robinson not to let anyone proceed to her
house if she is not around. Despite the
explanations of the Sheriff, the guards didn’t
let him in. Thereafter, the Sheriff just left a
copy of the complaint to a guard, who refused
to affix his signature on the original copy, so
he will be the one to give the summons to
petitioner Robinson.
Eventually, petitioner Robinson was
declared in default for her failure to file an
answer seasonably despite service of
summons. The trial court rendered its decision
in favor of Miralles ordering Robinson to pay
her obligations plus cost of damages. A copy of
the court Order was sent to petitioner by
registered mail at her new address and a writ
of execution was also issued.
Robinson filed a petition for relief from
the judgment by default. She claimed that
summons was improperly served upon her,
thus, the trial court never acquired jurisdiction
over her and that all its proceedings are void.
Petitioner Robinson contends that the service
of the summons upon the subdivision guard is
not in compliance with Section 7, Rule 14 since

he is not related to her or staying at her
residence, as required by the rule.
ISSUE: Whether the substituted service of
summons effected is valid
YES. Although the SC have ruled that
the statutory requirements of substituted
service must be followed strictly, faithfully, and
fully and any substituted service other than
that authorized by the Rules is considered
ineffective, the Court frowns upon an overly
strict application of the Rules. It is the spirit,
rather than the letter of the procedural rules,
that governs.
Obviously, it was impossible for the
sheriff to effect personal or substituted service
of summons upon petitioner. We note that she
failed to controvert the sheriff’s declaration.
Nor did she deny having received the
summons through the security guard.
Considering her strict instruction to the
security guard, she must bear
consequences. Thus, we agree with the trial
court that summons has been properly served
upon petitioner and that it has acquired
jurisdiction over her.
Where the action is in personam and
the defendant is in the Philippines, the service
of summons may be made through personal or
substituted service in the manner provided for
in Sections 6 and 7, Rule 14 of the 1997 Rules
of Procedure, as amended.
Under our procedural rules, personal
service is generally preferred over substituted
service, the latter mode of service being a
method extraordinary in character. For
substituted service to be justified, the following
circumstances must be clearly established: (a)
personal service of summons within a
reasonable time was impossible; (b) efforts
were exerted to locate the party; and (c) the
summons was served upon a person of
sufficient age and discretion residing at the
party’s residence or upon a competent person
in charge of the party’s office or place of
business. Failure to do so would invalidate all
subsequent proceedings on jurisdictional
grounds.
Publication
Where the defendant is
(1) designated as an unknown owner, or
the like, or
(2) whenever his whereabouts are
unknown and cannot be ascertained by
diligent inquiry,
Service may, by leave of court, be effected
upon him by
(1) publication in a newspaper of general
circulation and
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER71
(2) in such places and for such time as the
court may order. (Sec. 14, Rule 14)
Extraterritorial
When the defendant
(1) does not reside and is not found in the
Philippines, and
(2) the action affects
a. the personal status of the
plaintiff or
b. relates to, or the subject of
which is, property within the
Philippines, in which the
defendant has or claims a lien
or interest, actual or
contingent; or
c. in which the relief demanded
consists, wholly or in part, in
excluding the defendant from
any interest therein, or
its d. the property of the defendant
has been attached within the
Philippines,
Service may, by leave of court, be effected out
of the Philippines
(4) by personal service as under section 6;
or
(5) by publication in a newspaper of
general circulation in such places and
for such time as the court may order,
• in which case a copy of the
summons and order of the
court shall be sent by
registered mail to the last
known address of the
defendant,
(6) or in any other manner the court may
deem sufficient.
Any order granting such leave shall specify a
reasonable time, which shall not be less than
sixty (60) days after notice, within which the
defendant must answer. (Sec. 15, Rule 14)
Residents temporarily out of the Philippines.
When any action is commenced against a
defendant who ordinarily resides within the
Philippines, but who is temporarily out of it,
service may, by leave of court, be also effected
out of the Philippines by extraterritorial
service. (Sec. 16, Rule 14)
VALMONTE v. CA
(252 SCRA 92, 1996)

As petitioner Lourdes Valmonte is a
nonresident who is not found in the
Philippines, service of summons on her
must be in accordance with Rule 14, §17.
Such service, to be effective outside the
Philippines, must be made either (1) by
personal service; (2) by publication in a
newspaper of general circulation in such
places and for such time as the court may
order, in which case a copy of the
summons and order of the court should be
sent by registered mail to the last known
address of the defendant; or (3) in any
FACTS: Rosita Dimalanta, sister of petitioner
Lourdes Valmonte, filed a complaint for
partition of real property and accounting of
rentals against petitioners Valmonte spouses.
Lourdes Valmonte is a foreign resident. The
RTC denied private respondent's motion to
declare petitioner Lourdes A. Valmonte in
default. A motion for reconsideration was
similarly denied. Private respondent filed a
petition for certiorari, prohibition
and mandamus with the Court of Appeals. The
Court of Appeals rendered a decision granting
the petition and declaring Lourdes in default. A
copy of the appellate court's decision was
received by petitioner Lourdes’ husband at his
Manila law office and in Seattle, Washington.
ISSUE: Whether in an action for partition filed
against her and her husband, who is also her
attorney, summons intended for her may be
served on her husband, who has a law office in
the Philippines
NO. Private respondent's action, which
is for partition and accounting under Rule 69,
is in the nature of an action quasi in rem. Such
an action is essentially for the purpose of
affecting the defendant's interest in a specific
property and not to render a judgment against
him. As petitioner Lourdes Valmonte is a
nonresident who is not found in the Philippines,
service of summons on her must be in
accordance with Rule 14, §17. Such service, to
be effective outside the Philippines, must be
made either (1) by personal service; (2) by
publication in a newspaper of general
circulation in such places and for such time as
the court may order, in which case a copy of
the summons and order of the court should be
sent by registered mail to the last known
address of the defendant; or (3) in any other
manner which the court may deem sufficient.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER72
PERKIN ELMER SINGAPORE v. DAKILA
TRADING
(530 SCRA 170)
Extraterritorial service of summons applies
only where the action is in rem or quasi in
rem, but not if an action is in personam.
FACTS: Dakila Trading Corp (Dakila) entered
into a Distribution Agreement with Perkin-
Elmer Singapore Pte. Ltd. (PES) which
appointed Dakila as sole distributor of its
products in the Philippines. PES was obligated
to give Dakila a commission for the sale of its
products in the Philippines. Dakila was granted
the right to purchase and sell the products of
PES. The agreement further stipulated that
Dakila shall order the products of PES, which it
shall sell in the Philippines, either from PES
itself or from PEIP.
However, PES unilaterally terminated
the Distribution Agreement, prompting Dakila
to file before the RTC a Complaint for
Collection of Sum of Money and Damages with
Prayer for Issuance of a Writ of Attachment
against PES and its affiliate, Perkin-Elmer
Instruments Philippines Corporation (PEIP). RTC
denied respondent’s prayer.
Dakila filed Ex-Parte Motions for
Issuance of Summons and for Leave of Court to
Deputize Dakila’s General Manager (DGM) to
Serve Summons Outside of the Philippines.
RTC granted this motion. Thus, an Alias
Summons was issued by the RTC to PES. But
the said Alias Summons was served and
received by Perkin-Elmer Asia (PEA), a
corporation allegedly unrelated to PES. PEIP
moved to dismiss the Complaint filed by
Dakila. PEA, on the other hand, sent letters to
Dakila and RTC to inform them of the wrongful
service of summons.
Accordingly, Dakila filed an Ex-Parte
Motion to Admit Amended Complaint, together
with the Amended Complaint claiming that (1)
PEA had become a sole proprietorship owned
by the PES, (2) PES changed its name to PEA,
(3) such changes did not avoid its due and
outstanding obligations to Dakila, and (4) the
name of PES in the complaint should be
changed to PEA. RTC admitted the Amended
Complaint.
Dakila filed another Motion for the
Issuance of Summons and for Leave of Court to
Deputize DGM to serve summons outside the
Philippines. RTC granted the motion. RTC thus
issued summons and the DGM went to
Singapore and served summons on PES.
Meanwhile, RTC denied the Motion to
Dismiss filed by PEIP, compelling the latter to
file its Answer to the Amended Complaint.

PES filed with the RTC a Special
Appearance and Motion to Dismiss the
Amended Complaint, which were denied. It
held that even though the Amended Complaint
is primarily for damages, it does relate to a
property of PES, to which the latter has a claim
interest, or an actual or contingent lien, which
will make it fall under one of the requisites for
extraterritorial service. PES filed a Petition for
Certiorari under Rule 65 with application for
temporary restraining order and/or preliminary
injunction before the CA. The CA affirmed the
RTC Orders.
ISSUE: Whether summons were properly
served under the 2nd or 4th instance of extra-
territorial service
NO. Extraterritorial service of
summons applies only where the action is in
rem or quasi in rem, but not if an action is in
personam. In the case at bar, there can never
be a valid extraterritorial service of summons
upon it, because the case involving collection
of a sum of money and damages is an action in
personam, as it deals with the personal liability
of PES by reason of the alleged unilateral
termination of the Distribution Agreement. The
objective sought in Dakila’s Complaint was to
establish a claim against PES. Moreover, The
action instituted by Dakila affects the parties
alone, not the whole world.
Thus, being an action in personam,
personal service of summons within the
Philippines is necessary in order for the RTC to
validly acquire jurisdiction over the person of
PES, and this is not possible in the present
case because the PES is a non-resident and is
not found within the Philippines. Dakila’s
allegation in its Amended Complaint that PES
had personal property within the Philippines in
the form of shares of stock in PEIP did not
make the case fall under any of the four
instances mentioned in Section 15, Rule 14 of
the Rules of Court, as to convert the action in
personam to an action in rem or quasi in rem
and, subsequently, make the extraterritorial
service of summons upon the petitioner valid.
The 2nd instance for extra-territorial
service has no application in the case. The
action for collection of a sum of money and
damages was purely based on the personal
liability of the PES. For the action to be one
falling under the 2nd instance, the main subject
matter of the action must be the property itself
of the PES in the Philippines and in such
instance, judgment will be limited to the res.
However, the allegations made by the
respondent that the petitioner has property
within the Philippines in support of its
application for the issuance of a writ of
attachment was actually denied by the RTC.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER73
Neither does the allegation that PES
had personal property within the Philippines in
the form of shares of stock in PEIP convert the
case from an action in personam to one quasi
in rem, so as to qualify said case under the 4th
instance of extra-territorial service. What is
required is not a mere allegation of the
existence of personal property belonging to
the non-resident defendant within the
Philippines but that the non-resident
defendant’s personal property located within
the Philippines must have been actually
attached. Evidently, PES’s personal property
within the Philippines, in the form of shares of
stock in PEIP, had not been attached; hence,
the case for collection of sum of money and
damages remains an action in personam.
In the case at bar, there can never be
a valid extraterritorial service of summons
upon it, because the case involving collection
of a sum of money and damages is an action in
personam, as it deals with the personal liability
of PES by reason of the alleged unilateral
termination of the Distribution Agreement. The
objective sought in Dakila’s Complaint was to
establish a claim against PES. Moreover, The
action instituted by Dakila affects the parties
alone, not the whole world.
Thus, being an action in personam,
personal service of summons within the
Philippines is necessary in order for the RTC to
validly acquire jurisdiction over the person of
PES, and this is not possible in the present
case because the PES is a non-resident and is
not found within the Philippines. Dakila’s
allegation in its Amended Complaint that PES
had personal property within the Philippines in
the form of shares of stock in PEIP did not
make the case fall under any of the four
instances mentioned in Section 15, Rule 14 of
the Rules of Court, as to convert the action in
personam to an action in rem or quasi in rem
and, subsequently, make the extraterritorial
service of summons upon the petitioner valid.
Registered mail invalid service of
summons
Voluntary appearance
The defendant’s voluntary appearance in the
action shall be equivalent to service of
summons.
The inclusion in a motion to dismiss of
other grounds aside from lack of jurisdiction
over the person of the defendant shall not be
deemed a voluntary appearance. (Sec. 20,
Rule 14)
CEZAR v. RICAFORT-BAUTISTA
(506 SCRA 322, 2006)

The SC still holds that jurisdiction was
validly acquired by the trial court.
Although the substituted service upon him
of summons was defective, said defect was
cured by his voluntary appearance.
FACTS: Private respondent Specified Materials
Corporation filed a Complaint for collection of
sum of money against petitioner Cezar due to
the latter’s failure to pay the construction
materials it purportedly purchased under a
credit line extended by private respondent.
At the time of the institution of the action,
petitioner’s obligation stood at P1,860,000.00,
and under the terms of the credit
arrangement, materials sold to petitioner were
supposed to be paid within 30 days from date
of delivery, subject to a 3% interest per month
for delayed payments.
After the filing of the complaint,
summons was issued, and this was received by
a certain Robles. As petitioner failed to file his
answer to the complaint, private respondent
moved that he be declared in default. This
motion was granted.
Private respondent filed a Motion to
Admit Amended Complaint alleging that it
erroneously computed petitioner’s obligation
to be P1,860,000.00, when it should have
amounted to P2,005,000.00. A copy of the
motion and the Amended Complaint were
personally received by petitioner as evidenced
by his signatures thereon. The Amended
Complaint was ordered admitted. The court
ruled in favor of plaintiff.
Petitioner, by way of special appearance,
argued that the trial court did not acquire
jurisdiction over his person. This motion was
denied. Petitioner filed before the CA a Petition
for Annulment of Judgment, Preliminary
Injunction with Prayer for Temporary
Restraining Order. This petition was dismissed
for “failure to attach an affidavit of merit
alleging the facts supporting the good and
substantial defense, as well as the affidavits of
witnesses or document supporting the
defense.”
Petitioner filed a motion for
reconsideration but this was denied. Following
this set-back, petitioner filed before this Court
a Petition for Review on Certiorari of the
resolutions of the CA, which was also denied
for failure to comply with procedural
requirements. Our resolution became final and
executory. Private respondent filed a Motion
for Execution before the trial court.
ISSUE: Whether the court acquired jurisdiction
over the person of the petitioner by virtue of
the substituted service of summons effected
by the sheriff
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER74
NO. The person who allegedly received
the summons was identified in the sheriff’s
return as Arsenio Robles, was not petitioner’s
employee, was a native of Batangas and was
merely peddling mango seedlings within the
vicinity of his office when the summons was
served.
In the event that summons cannot be
served within a reasonable time, the Rules
permit that substituted service may be
resorted to. In this case, the sheriff employed
the substituted service of summons. The
defect, however, in the manner in which he
implemented this mode of service of summons
is readily apparent on the face of the return. It
must be emphasized that laws providing for
modes other than the personal service of
summons must be strictly followed in order for
the court to acquire jurisdiction over the
person of respondent or defendant. As the
sheriff’s return in the present case does not
contain any statement with regard to the
impossibility of personal service the same is
patently defective and so the presumption of
regularity in the performance of official
functions will not lie.
ISSUE: Whether petitioner’s voluntary
appearance cured the defect in service of
summons.
YES. In Flores v. Zurbito, we held that
an appearance in whatever form without
expressly objecting to the jurisdiction of the
court over the person, is a submission to the
jurisdiction of the court over the person of the
defendant or respondent, thus:
He may appear without such formal
appearance and thus submit himself to the
jurisdiction of the court. He may appear by
presenting a motion, for example, and unless
by such appearance he specifically objects to
the jurisdiction of the court, he thereby gives
his assent to the jurisdiction of the court over
his person.
Hence, in this case, petitioner’s filing of
a Motion for Re-setting of the Hearing
effectively cured the defect of the substituted
service of summons. Petitioner’s insistence of
lack of jurisdiction over his person is utterly
lacking in any legal basis.
LHUILLER v. BRITISH AIRWAYS
(615 SCRA 380, 2010)
A defendant who files a motion to dismiss,
assailing the jurisdiction of the court over
his person, together with other grounds
raised therein, is not deemed to have
appeared voluntarily before the court

FACTS: Lhuillier took respondent British
Airway’s flight 548 from London, United
Kingdom to Rome, Italy. Once on board, she
allegedly requested Halliday, one of the
respondent’s flight attendants, to assist her in
placing her hand-carried luggage in the
overhead bin. However, Halliday allegedly
refused to help and assist her, and even
sarcastically remarked that "If I were to help all
300 passengers in this flight, I would have a
broken back!"
Petitioner further alleged that when
the plane was about to land in Rome, Italy,
another flight attendant, Kerrigan, singled her
out from among all the passengers in the
business class section to lecture on plane
safety. Allegedly, Kerrigan made her appear to
the other passengers to be ignorant,
uneducated, stupid, and in need of lecturing on
the safety rules and regulations of the plane.
Affronted, petitioner assured Kerrigan that she
knew the plane’s safety regulations being a
frequent traveler. Thereupon, Kerrigan
allegedly thrust his face a mere few
centimeters away from that of the petitioner
and menacingly told her that "We don’t like
your attitude."
Upon arrival in Rome, petitioner
complained to respondent’s ground manager
and demanded an apology. However, the latter
declared that the flight stewards were "only
doing their job."
Thus, petitioner filed the complaint for
damages. Summons, together with a copy of
the complaint, was served on the respondent
through Echevarria, General Manager of Euro-
Philippine Airline Services, Inc.
Respondent, by way of special
appearance through counsel, filed a Motion to
Dismiss on grounds of lack of jurisdiction over
the case and over the person of the
respondent. Respondent alleged that only the
courts of London, United Kingdom or Rome,
Italy, have jurisdiction over the complaint for
damages pursuant to the Warsaw Convention.
Thus, since respondent is domiciled in London;
respondent’s principal place of business is in
London; petitioner bought her ticket in Italy
(through Jeepney Travel S.A.S, in Rome); and
Rome, Italy is petitioner’s place of destination,
then it follows that the complaint should only
be filed in the proper courts of London, United
Kingdom or Rome, Italy. Likewise, it was
alleged that the case must be dismissed for
lack of jurisdiction over the person of the
respondent because the summons was
erroneously served on Euro-Philippine Airline
Services, Inc. which is not its resident agent in
the Philippines.
Instead of filing
Comment/Opposition, petitioner filed
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER75
Urgent Ex-Parte Motion to Admit Formal
Amendment to the Complaint and Issuance of
Alias Summons. Petitioner alleged that upon
verification with the SEC, she found out that
the resident agent of respondent in the
Philippines is Alonzo Q. Ancheta. Subsequently,
petitioner filed a Motion to Resolve Pending
Incident and Opposition to Motion to Dismiss.
ISSUE: Whether British Airways, in filing its
motion to dismiss may be deemed as having in
fact and in law submitted itself to the
jurisdiction of the lower court, NO. The
Warsaw Convention has the force and effect of
law in this country. The Warsaw Convention
applies because the air travel, where the
alleged tortious conduct occurred, was
between the United Kingdom and Italy, which
are both signatories to the Warsaw
Convention. Since the Warsaw Convention
applies in the instant case, then the jurisdiction
over the subject matter of the action is
governed by the provisions of the Warsaw
Convention.
Respondent, in seeking remedies from
the trial court through special appearance of
counsel, is not deemed to have voluntarily
submitted itself to the jurisdiction of the trial
court. Thus, a defendant who files a motion to
dismiss, assailing the jurisdiction of the court
over his person, together with other grounds
raised therein, is not deemed to have
appeared voluntarily before the court. What
the rule on voluntary appearance means is
that the voluntary appearance of the
defendant in court is without qualification, in
which case he is deemed to have waived his
defense of lack of jurisdiction over his person
due to improper service of summons.
A special appearance before the
court––challenging its jurisdiction over the
person through a motion to dismiss even if the
movant invokes other grounds––is not
tantamount to estoppel or a waiver by the
movant of his objection to jurisdiction over his
person; and such is not constitutive of a
voluntary submission to the jurisdiction of the
court.
In this case, the special appearance of
the counsel of respondent in filing the Motion
to Dismiss and other pleadings before the trial
court cannot be deemed to be voluntary
submission to the jurisdiction of the said trial
court.
Return of service
When the service has been completed, the
server shall,
(1) within five (5) days therefrom,
a
an
 CIVIL PROCEDURE REVIEWER76

(2) serve a copy of the return, personally

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

Proof of service
The proof of service of a summons shall be
Motion for leave
(1) made in writing by the server and
A motion for leave to file a pleading or motion
(2) shall set forth the manner, place, and
shall be accompanied by the pleading or
date of service;
motion sought to be admitted. (Sec. 9, Rule
(3) shall specify any papers which have
15)
been served with the process and
(4) the name of the person who received
Prohibited motion
the same; and
The following pleadings and motions are
(5) shall be sworn to when made by a
prohibited in a summary procedure:
person other than a sheriff or his
(1) Motion to dismiss except on the
deputy. (Sec. 18, Rule 14)
ground of lack of jurisdiction over
subject matter and failure to comply
Publication
with barangay conciliation
If the service has been made by publication,
proceedings;
service may be proved by
(2) Motion for new trial, or for
(1) the affidavit of the printer, his foreman reconsideration of a judgment, or for
or principal clerk, or of the editor, reopening of trial;
business or advertising manager, (3) Petition for relief from judgment;
(2) an attached copy of the publication, (4) Motion for extension of time to file
and pleadings, affidavits and other papers;
(3) an affidavit showing the deposit of a (5) Memoranda;
copy of the summons and order for (6) Petition for certiorari, and mandamus
publication in the post office, postage or prohibition against an interlocutory
prepaid, directed to the defendant by order of the court;
registered mail to his last known (7) Motion to declare the defendant in
address. (Sec. 19, Rule 14) default;
(8) Dilatory motions for postponement
(9) Reply;
MOTIONS (RULE 15) (10) Third-party complaints;
(11) Interventions.
In general
A motion is an application for relief other than The following are prohibited in Small Claims
by a pleading. (Sec. 1, Rule 15) Cases:
(1) Motion to dismiss the complaint,
Form except on ground of lack of
General rule: All motions shall be in writing. jurisdiction’
(2) Motion for bill of particulars;
Exceptions: (3) Motion for new trial, or for
(1) Motions made in open court or reconsideration of a judgment, or for
reopening of trial;
(2) Motions made in the course of a
(4) Petition for relief from judgment;
hearing or trial. (Sec. 2, Rule 15)
(5) Motion for extension of time to file
pleadings, affidavits and other papers;
Generally
(6) Memoranda;
The Rules applicable to pleadings shall apply
to written motions so far as concerns (7) Petition for certiorari, and mandamus
(1) caption, or prohibition against an interlocutory
(2) designation, order of the court;
(8) Motion to declare the defendant in
(3) signature, and
default;
(4) other matters of form. (Sec. 10, Rule (9) Dilatory motions for postponement
15) (10) Reply;
MENDEZ, IVAN VIKTOR (2D, ’13)

(11) Third-party complaints;
(12) Interventions.
Contents
A motion shall
(1) state the relief sought to be obtained
(2) the grounds upon which it is based,
and
(3) shall be accompanied by supporting
affidavits and other papers, if required
by these Rules or necessary to prove
facts alleged therein. (Sec. 3, Rule 15)
Omnibus motion rule
A motion attacking a pleading, order,
judgment, or proceeding shall include all
objections then available, and all objections
not so included shall be deemed waived. (Sec.
8, Rule 15)
Exceptions
The court shall dismiss the claim when
it appears from the pleadings or the
evidence on record that
(1) the court has no
jurisdiction over the subject
matter,
(2) there is another action
pending between the same
parties for the same cause, or
that
(3) the action is barred by
a prior judgment or
(4) barred by the statute
of limitations. (Sec. 1, Rule 9)
Notice of hearing
General Rule: Every written motion shall be set
for hearing by the applicant.
Exception: Motions which the court may act
upon without prejudicing the rights of the
adverse party.
(Sec. 4, Rule 15)
NOTE: Every written motion required to be
heard and the notice of the hearing thereof
shall be served
(1) in such a manner as to ensure its
receipt by the other party
(2) at least three (3) days before the date
of hearing, unless the court for good
cause sets the hearing on shorter
notice.
Notice of hearing—
The notice of hearing shall be
(1) addressed to all parties concerned,
and
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER77
(2) shall specify the time and date of the
hearing which must not be later than
ten (10) days after the filing of the
motion. (Sec. 5, Rule 15)
General rule: without compliance — scrap
of paper
A motion which does not meet the
requirements of Sections 4 and 5 of Rule 15 is
a mere scrap of paper which the clerk of court
has not right to receive and the trial court has
no authority to act upon.
Defective notice of hearing
VICTORY LINER, INC. v. MALINIAS
(2007)
Under Sections 5 and 6 of Rule 15, the
notice of hearing shall be addressed to the
parties concerned and shall specify the
time and date of the hearing of the motion;
no motion shall be acted upon by the court
without proof of service of the notice
thereof, except when the court is satisfied
that the rights of the adverse party are not
affected.
FACTS: A vehicular collision happened between
petitioner Victory Liner, Inc. (VLI) and an Isuzu
Truck used by respondent Michael Malinias. No
one died, but both vehicles were damaged.
Malinias filed a complaint for damages against
petitioner and the bus driver, Leoncio Bulaong
with the MTC, alleging pecuniary damage to
the truck worth P47,180 representing lost
income for the non-use of the truck. After pre-
trial, the bus driver was dropped as defendant
in the case.
During trial, respondent finished
presenting his evidence and rested his case.
Counsel for petitioner VLI filed a motion to
withdraw as counsel, but the same was denied.
When the case was called for reception of
petitioner’s evidence, no appearance was
made for the bus company. Respondent thus
moved that petitioner be declared to have
waived its right to adduce evidence in its favor.
The case was deemed submitted for judgment
and the MTC ruled in favor of respondent
Malinias, ordering VLI to pay him.
VLI’s new counsel filed a Motion for
Reconsideration. The Notice of Hearing therein
stated: "Please submit the foregoing Motion for
Reconsideration for hearing before the CA at a
schedule and time convenient to the Court and
the parties.” The MTC ruled that the notice did
not conform with the mandatory requirements
of Section 5, Rule 15, and that the motion was
thus a mere scrap of paper which did not
suspend the period to appeal.

Petitioner VLI thereafter filed a Notice
of Appeal and a motion for the inhibition by the
MTC, which was granted. The case was
assigned to a new MTC judge, who was tasked
to rule on the Notice of Appeal. The MTC ruled
that it had been filed beyond the reglementary
period. Again, the MTC reiterated its initial
judgment in favor of Malinias since the fatally
defective MR did not toll the reglementary
period for appeal.
The RTC affirmed the judgment of the
MTC and held the decision final and executory.
ISSUE: Whether the Notice of Hearing filed was
defective
YES. The most crucial failure on the
part of petitioner was to file a Motion for
Reconsideration of the MTC Judgment which
contained a defective Notice of Hearing, failing
as it did to set a date for hearing. Under
Sections 5 and 6 of Rule 15, the notice of
hearing shall be addressed to the parties
concerned and shall specify the time and date
of the hearing of the motion; no motion shall
be acted upon by the court without proof of
service of the notice thereof, except when the
court is satisfied that the rights of the adverse
party are not affected. Unless the movant sets
the time and place of hearing, the court will be
unable to determine whether the adverse
party agrees or objects to the motion, and if he
objects, to hear him on his objection, since the
rules themselves do not fix any period within
which he may file his reply or opposition.
Not only did the defect render the
motion for reconsideration itself unworthy of
consideration, it more crucially failed to toll the
period to appeal. A motion without a notice of
hearing is pro forma, a mere scrap of paper
that does not toll the period to appeal, and
upon the expiration of the 15-day period, the
questioned order or decision becomes final
and executory.
That did not mean that petitioner was
left bereft of further remedies under our Rules.
For one, petitioner could have assailed the
MTC’s denial of the Motion for Reconsideration
through a special civil action for certiorari
under Rule 65 alleging grave abuse of
discretion amounting to lack of jurisdiction on
the part of the MTC in denying the motion. If
that remedy were successful, the effect would
have been to void the MTC’s denial of the
Motion for Reconsideration, thus allowing
petitioner to again pursue such motion as a
means towards the filing of a timely appeal.
Another remedy for the petitioner is
found under Rule 38, which governs petitions
for relief from judgment. Indeed, Section 2,
Rule 38 finds specific application in this case,
as it provides that "[w]hen a judgment or final
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER78
order is rendered by any court in a case, and a
party thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented
from taking an appeal, he may file a petition
[for relief from denial of appeal] in such court
and in the same case praying that the appeal
be given due course."36 Such petition should be
filed within sixty (60) days after the petitioner
learns of the judgment or final order, and not
more than six (6) months after such judgment
or final order was entered. The facts of this
case indicate that petitioner could have timely
resorted to this remedy.
Exceptions
Motions which may be granted ex parte
An ex parte motion does not require that
parties be hard. An example is a motion to set
the case for pre-trial.
NOTE: A motion to dismiss, a motion for
judgment on the pleadings, and a summary
judgment are litigated motions.
Where adverse party had opportunity to
oppose
LANTO v. DIMAPORO
(16 SCRA 599, 1966)
Existence of a cause of action or lack of it
is determined by a reference to the facts
averred in the challenged pleading. The
question raised in the motion is purely one
of law. In this posture, oral arguments on
the motion are reduced to an unnecessary
ceremony and should be overlooked.
FACTS: Resolution No. 7, adopted by the
Provincial Board of Lanao del Norte, reverted a
previous salary appropriation for the position
of Assistant Provincial Assessor to the general
fund. In effect, that position then held by
petitioner was then abolished. He sought relief
to various government officials, including the
President but was disappointed. He then went
to the court seeking mandamus praying for
annulment of the resolution, payment of
backwages, restatement of salary
appropriations as well as reinstatement.
Respondents moved to dismiss stating
lack of cause of action. Petitioner’s counsel
moved to postpone the hearing, but failed to
appear. The court below granted such motion
and dismissed said petition. Hence this appeal.
ISSUE: Whether the dismissal order issued
without any hearing on the motion to dismiss
is void
NO. Petitioner was given the chance to
adduce his case, yet it is because of his

constant absences that he was unable to
present his arguments. One good reason for
the statutory requirement of hearing on a
motion is to enable the suitors to adduce
evidence to support their claims. But here the
Motion to Dismiss is grounded on the lack of
cause of action. Existence of a cause of action
or lack of it is determined by a reference to the
facts averred in the challenged pleading. The
question raised in the motion is purely one of
law. In this posture, oral arguments on the
motion are reduced to an unnecessary
ceremony and should be overlooked. The
hearing for the Motion to Dismiss was set, yet
the petitioner failed to appear (only his counsel
showed up). Moreover, without any clear
showing to the contrary, there is a
presumption of regularity within the actions of
the court with regard to entertaining motions.
In the case at bar, petitioner failed to show
irregularity within the courts.
VLASON ENTERPRISES CORP v. CA
(330 SCRA 26, 1999)
(1) Where the counsel failed object on the
ground of lack of notice to a Motion
addressed to a former counsel, and was
granted by the trial court 30 days to file his
opposition to it, the circumstances clearly
justify a departure from the literal
application of the notice of hearing rule.
(2) The issuance of an order of default is a
condition sine qua non in order that a
judgment by default be clothed with
validity.
Furthermore, it is a legal
impossibility to declare a party-defendant
to be in default before it was validly served
summons.
FACTS: Duraproof sought to enforce its
preferred salvors lien by filing with the RTC a
petition for certiorari, prohibition and
mandamus assailing the actions of the
Customs Officers in forfeiting the vessel and
cargo owned by Omega, which Duraproof
contracted to repair. It impleaded PPA and Med
Line Philippines, Inc. as respondents.
Duraproof amended its petition to
include the former District Collector, and other
companies involved, including Vlason
Enterprises. In both Petitions, Duraproof failed
to allege anything pertaining to Vlason
Enterprises, or any prayer for relief against it.
Summonses for the amended Petition
were served. Duraproof moved several times
to declare the respondents it impleaded in
default. Out of those respondents, only the
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER79
following were declared by RTC in default: the
Singkong Trading Co., Commissioner Mison,
M/V Star Ace and Omega. Duraproof filed an
ex parte Motion to present evidence against
the defaulting respondents, which was
granted.
Duraproof alleged that Vlason
Enterprises, through constant intimidation and
harassment in utilizing the PPA Management of
La Union, caused Duraproof to incur heavy
overhead expenses, causing irreparable
damages of about P3 Million worth of ship
tackles, rigs, and appurtenances including
radar antennas and apparatuses, which were
taken surreptitiously by persons working for
Vlason Enterprises or its agents.
The RTC ruled that in favor of
Duraproof and ordered Vlason to pay P3 Million
worth of damages. Duraproof and the other
companies entered into a compromise
agreement, except Vlason. Duraproof moved
for the execution of judgment. The Motion was
granted and a Writ of Execution was issued.
Vlason Enterprises filed a Motion for
Reconsideration addressed to Duraproof’s
counsel, Atty. Concepcion, on the ground that
it was allegedly not impleaded as a defendant,
served summons or declared in default, and
hence Duraproof may not present evidence
against it in default. Duraproof opposed the
Motion, arguing that it was a mere scrap of
paper due to its defective notice of hearing.
RTC reversed its Decision, finding that
there never was issued an order of default
against Vlason Enterprises, so there could not
have been any valid default-judgment
rendered against it.
The CA ruled that there was no need to
serve summons anew on Vlason Enterprises,
since it had been served summons when the
second amended petition was filed; and that
Vlason Enterprisess Motion for Reconsideration
was defective and void, because it contained
no notice of hearing addressed to the counsel
of Duraproof in violation of Rule 16, Section 4
of the Rules of Court.
ISSUE: Whether the motion for reconsideration
filed by Vlason was void for not containing a
notice of hearing to Duraproof’s counsel
NO. The Motion contained a notice of
hearing sent to Atty. Concepcion who had
already died and had since been substituted
by Duraproof’s new counsel, Atty. Desierto.
Although Rule 15 of the Rules of Court requires
Vlason Enterprises to address and to serve on
the counsel of Duraproof the notice of hearing
of the Motion for Reconsideration, the case at
bar, however, is far from ideal. First, Vlason
Enterprises was not validly summoned and it
did not participate in the trial of the case in the

lower court; thus, it was understandable that
Vlason Enterprises would not be familiar with
the parties and their counsels. Second, Atty.
Desierto entered his appearance only as
collaborating counsel, who is normally not
entitled to notices even from this Court. Third,
Duraproof made no manifestation on record
that Atty. Concepcion was already dead.
Besides, it was Atty. Concepcion who signed
the Amended Petition, wherein Vlason
Enterprises was first impleaded as respondent
and served a copy thereof. Naturally, Vlason
Enterprisess attention was focused on this
pleading, and it was within its rights to assume
that the signatory to such pleading was the
counsel for Duraproof.
The Court has consistently held that a
motion which does not meet the requirements
of Sections 4 and 5 of Rule 15 of the Rules of
Court is considered a worthless piece of paper,
which the clerk of court has no right to receive
and the trial court has no authority to act
upon. However, there are exceptions to the
strict application of this rule. These exceptions
include: “(1) where a rigid application will
result in a manifest failure or miscarriage of
justice; especially if a party successfully shows
that the alleged defect in the questioned final
and executory judgment is not apparent on its
face or from the recitals contained therein.”
The present case falls under such exception
since Vlason Enterprises was not informed of
any cause of action or claim against it. All of a
sudden, the vessels which Vlason Enterprises
used in its salvaging business were levied
upon and sold in execution to satisfy a
supposed judgment against it. To allow this to
happen simply because of a lapse in fulfilling
the notice requirement which, as already said,
was satisfactorily explained would be a
manifest failure or miscarriage of justice.
Circumstances in the case at bar show
that Duraproof was not denied procedural due
process, and that the very purpose of a notice
of hearing had been served. On the day of the
hearing, Atty. Desierto did not object to the
said Motion for lack of notice to him; in fact, he
was furnished in open court with a copy of the
motion and was granted by the trial court
thirty days to file his opposition to it. These
circumstances clearly justify a departure from
the literal application of the notice of hearing
rule. In other cases, after the trial court learns
that a motion lacks such notice, the prompt
resetting of the hearing with due notice to all
the parties is held to have cured the defect.
Proof of service
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER80
No written motion set for hearing shall be
acted upon by the court without proof of
service thereof. (Sec. 6, Rule 15)
Hearing of motion
General rule: All motions shall be scheduled for
hearing on Friday afternoons, or if Friday is a
non-working day, in the afternoon of the next
working day
Exception: Motions requiring immediate action.
(Sec. 7, Rule 15)
MOTION TO DISMISS (RULE 16)
Four general types of motion to dismiss
under the Rules
(1) Motion to dismiss before answer
(Rule 16)
(2) Motion to dismiss by plaintiff (Rule
17)
(3) Motion to dismiss on demurrer to
evidence after plaintiff has rested
his case (Rule 33)
(4) Motion to dismiss appeal either in
RTC (Sec. 31, Rule 41), CA (Sec. 1,
Rule 50) or SC (Sec. 5, Rule 56)
Grounds
A motion to dismiss may be made on any of
the following grounds:
(a) That the court has no jurisdiction over
the person of the defending party;
(b) That the court has no jurisdiction over
the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity
to sue;
(e) That there is another action pending
between the same parties for the same
cause;
(f) That the cause of action is barred by a
prior judgment or by the statute of
limitations;
(g) That the pleading asserting the claim
states no cause of action;
(h) That the claim or demand set forth in
the plaintiff’s pleading has been paid,
waived, abandoned, or otherwise
extinguished;
(i) That the claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds; and
(j) That a condition precedent for filing
the claim has not been complied with.
Lack of jurisdiction

BOTICANO v. CHU
(148 SCRA 541, 1987)
Defect in service of summons cannot be
raised for the first time on appeal. Defects
in jurisdiction arising from irregularities in
the commencement of the proceedings,
defective process or even absence of
process may be waived by a failure to
make seasonable objections.
FACTS: While loaded with logs, and properly
parked by its driver Maximo Dalangin at the
shoulder of the national highway in Nueva
Ecija, Boticano’s Bedford truck was hit and
bumped at the rear by another Bedford truck
owned by private respondent Chu, Jr. and
driven by Sigua, the former’s co-defendant in
the case. Chu agreed to shoulder the
expenses of the repair of the damaged truck of
the latter, but he failed to pay the same.
Summons was issued but was returned
unserved because Sigua was no longer
connected with San Pedro Saw Mill, while Chu
was properly served through the receipt by his
wife of such summons.
Boticano moved to dismiss the case
against Sigua and to declare Chu in default for
failure to file responsive pleadings within the
reglementary period. The motion was granted
by the lower court allowing petitioner to
adduce his evidence ex parte. The RTC found
Chu responsible for the fault of his driver.
Chu filed a notice of appeal and a
motion to extend to file his record on appeal.
Boticano motioned to dismiss the appeal,
which Chu’s counsel opposed. In the end,
Chu’s record on appeal was approved. The
case was brought to the CA, which set aside
the RTC and remanded the case to the court of
origin for summons to be properly served on
Chu and for proceedings to be taken. On
appeal, Boticano questioned the CA’s ruling
that jurisdiction over Chu’s person was not
acquired.
ISSUE: Whether the question of jurisdiction
over the person of the defendant can be raised
for the first time on appeal
NO. However, one of the
circumstances considered by the Court as
indicative of waiver by defendant-appellant of
any alleged defect if jurisdiction over his
person arising from defective or even want of
process, is his failure to raise the question of
jurisdiction in the CFI and at the first
opportunity. Defects in jurisdiction arising
from irregularities in the commencement of
the proceedings, defective process or even
absence of process may be waived by a failure
to make seasonable objections. During the
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER81
stages of the proceedings, in the case at bar,
defendant-appellant could have questioned the
jurisdiction of the lower court. But he did not.
Chu here had voluntarily submitted himself to
the court’s jurisdiction. Thus, jurisdiction was
properly acquired by the trial court over the
person of respondent thru both service of
summons and voluntary appearance in court;
he was properly declared in default for not
having filed any answer; despite respondent’s
failure to file a motion to set aside the
declaration of default, he has the right to
appeal the default of judgment but in the
appeal only the evidence of the petitioner may
be considered, respondent not having adduced
any defense evidence.
Res judicata
DEL ROSARIO v. FEBTC
(537 SCRA 571, 2007)
Res judicata “bar by prior judgment,” as a
ground to dismiss the case has four
essential requisites:
a) finality of the former judgment;
b) the court which rendered it had
jurisdiction over the subject matter
and the parties;
c) it must be a judgment on the
merits; and
d) there must be, between the first
and second actions, identity of
parties, subject matter and causes
of action.
FACTS: PDCP extended a P4.4 million loan to
DATICOR, which stipulated that DATICOR shall
pay: a service fee of 1% per annum (later
increased 6% per annum) on the outstanding
balance; 12% per annum interest; and penalty
charges 2% per month in case of default. The
loans were secured by real estate mortgages
over six (6) parcels of land and chattel
mortgages over machinery and equipment.
DATICOR paid a total of P3 million to
PDCP, which the latter applied to interest,
service fees and penalty charges. This left
them with an outstanding balance of P10
million, according to PDCP’s computation.
DATICOR filed a complaint against
PDCP for violation of the Usury Law and
annulment of contract and damages. The CFI
dismissed the complaint. The IAC set aside the
dismissal and declared void and of no effect
the stipulation of interest in the loan
agreement. PDCP appealed the IAC's decision
to SC.
In the interim, PDCP assigned a portion
of its receivables from DATICOR to FEBTC for

of P5.4 M. FEBTC and DATICOR, in a MOA,
agreed to P6.4 million as full settlement of the
receivables.
SC affirmed in toto the decision of the
IAC, nullifying the stipulation of interests.
DATICOR thus filed a Complaint for
sum of money against PDCP and FEBTC to
recover the excess payment which they
computed to be P5.3 million. RTC ordered
PDCP to pay petitioners P4.035 million, to bear
interest at 12% per annum until fully paid; to
release or cancel the mortgages and to return
the corresponding titles to petitioners; and to
pay the costs of the suit.
RTC dismissed the complaint against
FEBTC for lack of cause of action since the
MOA between petitioners and FEBTC was not
subject to SC decision, FEBTC not being a party
thereto.
Petitioners and PDCP appealed to the
CA, which held that petitioners' outstanding
obligation (determined to be only P1.4 million)
could not be increased or decreased by any act
of the creditor PDCP, and held that when PDCP
assigned its receivables, the amount payable
to it by DATICOR was the same amount
payable to assignee FEBTC, irrespective of any
stipulation that PDCP and FEBTC might have
provided in the Deed of Assignment, DATICOR
not having been a party thereto, hence, not
bound by its terms.
By the principle of solutio indebiti, the
CA held that FEBTC was bound to refund
DATICOR the excess payment of P5 million it
received; and that FEBTC could recover from
PDCP the P4.035 million for the overpayment
for the assigned receivables. But since
DATICOR claimed in its complaint only
of P965,000 from FEBTC, the latter was
ordered to pay them only that amount.
Petitioners filed before the RTC
another Complaint against FEBTC to recover
the balance of the excess payment of P4.335
million.
The trial court dismissed petitioners'
complaint on the ground of res judicata and
splitting of cause of action. It recalled that
petitioners had filed an action to recover the
alleged overpayment both from PDCP and
FEBTC and that the CA Decision, ordering PDCP
to release and cancel the mortgages and
FEBTC to pay P965,000 with interest became
final and executory.
ISSUE: Whether the action should be dismissed
on the ground of res judicata
YES. There is no doubt that the
judgment on appeal relative to the first civil
case was a final judgment. Not only did it
dispose of the case on the merits, it also
became executory as a consequence of the
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER82
denial of FEBTC’s motion for reconsideration
and appeal. In fact, authorities tend to widen
rather than restrict the doctrine of res judicata
on the ground that public as well as private
interest demands the ending of suits by
requiring the parties to sue once and for all in
the same case all the special proceedings and
remedies to which they are entitled.
Section 47 of Rule 39 lays down two
main rules. Section 49(b) enunciates the first
rule of res judicata known as “bar by prior
judgment” or “estoppel by judgment,” which
states that the judgment or decree of a court
of competent jurisdiction on the merits
concludes the parties and their privies to the
litigation and constitutes a bar to a new action
or suit involving the same cause of action
either before the same or any other tribunal.
Stated otherwise, “bar by former
judgment” makes the judgment rendered in
the first case an absolute bar to the
subsequent action since that judgment is
conclusive not only as to the matters offered
and received to sustain it but also as to any
other matter which might have been offered
for that purpose and which could have been
adjudged therein. It is in this concept that the
term res judicata is more commonly and
generally used as a ground for a motion to
dismiss in civil cases.
The second rule of res judicata
embodied in Section 47(c), Rule 39 is
“conclusiveness of judgment.” This rule
provides that any right, fact, or matter in issue
directly adjudicated or necessarily involved in
the determination of an action before a
competent court in which a judgment or
decree is rendered on the merits is
conclusively settled by the judgment therein
and cannot again be litigated between the
parties and their privies whether or not the
claim or demand, purpose, or subject matter of
the two suits is the same. It refers to a
situation where the judgment in the prior
action operates as an estoppel only as to the
matters actually determined or which were
necessarily included therein.
The case at bar satisfies the four
essential requisites of “bar by prior judgment,”
viz:
a) finality of the former judgment;
b) the court which rendered it had
jurisdiction over the subject matter and
the parties;
c) it must be a judgment on the merits;
and
d) there must be, between the first and
second actions, identity of parties,
subject matter and causes of action.

Failure to state a cause of action
HALIMAO v. VILLANUEVA
(253 SCRA 1, 1996)
The rule that a motion to dismiss is to be
considered as a hypothetical admission of
the facts alleged in the complaint applies
more particularly to cases in which the
ground for dismissal is the failure of the
complaint to state a cause of action.
FACTS: Reynaldo Halimao wrote a letter to the
Chief Justice, alleging that respondents,
without lawful authority and armed with
armalites and handguns, forcibly entered the
Oo Kian Tiok Compound in Cainta, Rizal, of
which complainant was caretaker. Complainant
prayed that an investigation be conducted and
that respondents be disbarred.
Respondents Villanueva et. al. filed a
comment, claiming that the complaint is a
mere duplication of the complaint filed by
Danilo Hernandez in Administrative Case No.
3835, which this Court had already dismissed
for lack of merit. They pointed out that both
complaints arose from the same incident and
the same acts complained of and that Danilo
Hernandez, who filed the prior case, is the
same person whose affidavit is attached to the
complaint in this case.
Co-respondent Ferrer claimed that the
two complaints were filed for the purpose of
harassing him because he was the principal
lawyer of Atty. Daniel Villanueva in two cases
before the SEC.
This case was referred to the IBP,
whose Board of Governors dismissed the case.
The Investigating Commissioner found that the
complaint is barred by the decision in
Administrative Case No. 3835 which involved
the same incident. The complaints in the two
cases were similarly worded.
Complainant filed a motion for
reconsideration of the resolution of the IBP
Board of Governors, alleging that the
commissioner erroneously dismissed the
complaint since the respondents are deemed
to have admitted the allegations of the
complaint against them by filing a motion to
dismiss
ISSUE: Whether the respondents
hypothetically admitted petitioner’s allegations
by filing a motion to dismiss
NO. The rule that a motion to dismiss
is to be considered as a hypothetical admission
of the facts alleged in the complaint applies
more particularly to cases in which the ground
for dismissal is the failure of the complaint to
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER83
state a cause of action. This rule does not
apply to other grounds for dismissal. In such
cases, the hypothetical admission is limited to
the facts alleged in the complaint which relate
to and are necessary for the resolution of
these grounds as preliminary matters involving
substantive or procedural laws, but not to the
other facts of the case.
Two motions for reconsideration of this
resolution were filed by the complainant
therein, both of which were denied. While the
complainant (Danilo Hernandez) in
Administrative Case No. 3835 is different from
the complainant in the present case, the fact is
that they have an identity of interest, as the
Investigating Commissioner ruled. Both
complainants were employed at the Oo Kian
Tiok Compound at the time of the alleged
incident. Both complain of the same act
allegedly committed by respondents. The
resolution of this Court in Administrative Case
No. 3835 is thus conclusive in this case, it
appearing that the complaint in this case is
nothing but a duplication of the complaint of
Danilo Hernandez in the prior case.
TAN v. CA
(295 SCRA 247, 1998)
General rule: Averments in the complaint
are deemed hypothetically admitted upon
filing of a Motion to Dismiss grounded on
failure to state a cause of action
Exceptions: Motion to Dismiss does not
admit the following:
1) Epithets of fraud
2) Allegations of legal conclusions
3) Erroneous statements of law
4) Inferences or conclusions from facts
not stated
5) Conclusions of law
6) Allegations of fact, falsity of which
is subject to judicial notice
7) Matters of evidence
8) Surplusage and irrelevant matter
9) Scandalous or insulting matter
10) Legally impossible facts
11) Unfounded facts by record
incorporated in pleading or
document
General averments contradicted
FACTS: Tan Keh sold two parcels of land to Tan
Kiat, but failed to effect the immediate transfer
of the properties since Tan Kiat was still a
foreign national at the time of the sale.
Nevertheless Tan Keh secured the sale by

executing a lease contract of 40 years in favor
of Tan Kiat.
Four years later, Tan Keh sold the
properties to his brother, Tan. Tan knowingly
held the property in trust for Tan Kiat until the
latter acquires Filipino citizenship. The new
TCTs were issued in the name of Tan as
trustee of Tan Kiat. Tank Keh and Tan
executed another lease contract to secure the
conveyance of the property to Tan Kiat. Tan
Kiat never paid rental and no demand for
rentals was made on him.
Tan Died. Tan Kiat thereafter
demanded for the conveyance of the property
as he was finally a naturalized Filipino.
Petitioners failed to convey them.
Tan Kiat filed a complaint for recovery
of property. Petitioners moved for its dismissal
based, among others, on failure to state a
cause of action. RTC dismissed complaint
acceding to all grounds set forth by the
petitioners. CA reversed and ordered that case
be remanded for further proceedings.
ISSUE: Whether the complaint stated no cause
of action
YES. Averments in the complaint are
deemed hypothetically admitted upon filing of
a Motion to Dismiss grounded on failure to
state a cause of action. But there are also
limitations to such rule.
In the case at bar, the “trust theory”
claimed by Tan Kiat does not hold water. The
lease contract as evidenced by document
attached with the Motion to Dismiss and
admitted by Tan Kiat already belies the latter’s
claim of ownership. There is an apparent
lessor-lessee relationship. Ownership of Tan is
further supported by the annotated mortgage
on the back of the TCT which Tan executed in
favor of a bank so as to secure a loan. In truth,
By the very nature of a mortgage contract, Tan
could not have mortgage the property if he
was not the real owner.
Having failed to prove the trust
relationship, it may be gleaned from the
allegations that the transaction was a double
sale instead. Since Tan had the TCT in his
name, he is presumed to have the better right.
Statute of Frauds
ASIA PRODUCTION CO., INC. v. PANO
(205 SCRA 458, 1992)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER84
Under Article 1403, the contracts concerned
are simply "unenforceable" and the
requirement that they—or some note or
memorandum thereof — be in writing refers
only to the manner they are to be proved. It
goes without saying then, that the statute
will apply only to executory rather than
executed contracts. Partial execution is
even enough to bar the application of the
statute.
FACTS: Respondents Hua and Dy, owners of a
building constructed on a lot leased from Lucio
San Andres and located in Bulacan, sold the
building to the petitioners for P170,000.00,
with the assurance that respondents will also
assign to them the contract of lease over the
land. The above agreement and promise were
not reduced to writing.
Private respondents undertook to
deliver the deed of conveyance over the
building and the deed of assignment of the
contract of lease within sixty (60) days upon
the P20,000 downpayment. The balance was
to be paid in monthly installments. Petitioners
paid the downpayment and issued eight (8)
postdated checks for the payment of the eight
(8) monthly installments.
Petitioners constructed a weaving
factory on the leased lot. Unfortunately,
private respondents, despite extensions
granted, failed to comply with their
undertaking to execute the deed of sale and to
assign the contract despite the fact that they
were able to encash the checks in the total
amount of P30,000. Worse, the lot owner made
it plain to petitioners that he was unwilling to
give consent to the assignment of the lease
unless petitioners agreed to certain onerous
terms, such as an increase in rental, or the
purchase of the land at a very unconscionable
price.
Petitioners removed all their property,
machinery and equipment from the building,
vacated the same and returned its possession
to private respondents. They demanded from
the latter the return of their partial payment
for the purchase price of the building in the
total sum of P50,000, which respondents
refused to return. Petitioner filed a complaint
for recovery and of actual, moral and
exemplary damages and attorney's fees with
the CFI.
Hua was declared in default. Dy filed a
motion to dismiss the complaint on the ground
that the claim on which the action is based —
an alleged purchase of a building which is not
evidenced by any writing — cannot be proved
by parol evidence since Article 1356 in relation
to Article 1358 of the Civil Code requires that it

should be in writing. The RTC granted the
motion to dismiss on the ground that the
complaint is barred by the Statute of Frauds.
Their motion for reconsideration was denied
for the reason that the oral contract in this
case was not removed from the operation of
the Statute of Frauds because there was no full
or complete performance by the petitioners of
the contract as required by Jurisprudence.
ISSUE: Whether petitioner’s action is barred by
the Statute of Frauds
NO. Article 1403 of the Civil Code
declares the following contracts, among
others, as unenforceable, unless they are
ratified: The purpose of the statute is to
prevent fraud and perjury in the enforcement
of obligations depending for their evidence on
the unassisted memory of witnesses by
requiring certain enumerated contracts and
transactions to be evidenced by a writing
signed by the party to be charged. It was not
designed to further or perpetuate fraud.
Under Article 1403, the contracts
concerned are simply "unenforceable" and the
requirement that they—or some note or
memorandum thereof — be in writing refers
only to the manner they are to be proved. It
goes without saying then, that the statute will
apply only to executory rather than executed
contracts. Partial execution is even enough to
bar the application of the statute.
The instant case is not for specific
performance of the agreement to sell the
building and to assign the leasehold right, but
to recover the partial payment for the agreed
purchase price of the building. By their motion
to dismiss, private respondents theoretically or
hypothetically admitted the truth of the
allegations of fact in the complaint. The action
is definitely not one for specific performance;
hence the Statute of Frauds does not apply.
And even if it were for specific performance,
partial execution thereof by petitioners
effectively bars the private respondents from
invoking it.
Condition precedent
SUNVILLE TIMBER PRODUCTS, INC. v.
ABAD
(206 SCRA 482, 1992)
The doctrine of exhaustion of
administrative remedies calls for resort first
to the appropriate administrative
authorities in the resolution of a forestry laws aid regulations here claimed to
controversy falling under their jurisdiction
before the same may be elevated to the
courts of justice for review.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER85
FACTS: Sunville Timber Products (Sunville) was
granted a Timber License Agreement (TLA),
authorizing it to cut, remove and utilize timber
within the concession area covering 29,500
hectares of forest land in Zamboanga del Sur,
for a period of 10 years.
The respondents filed a petition with
the DENR for the cancellation of the TLA and
with the RTC for injunction in a civil case, both
on the ground of serious violations of its
conditions and the provisions of forestry laws.
Sunville moved to dismiss this case on
the ground that the plaintiffs had not yet
exhausted administrative remedies, among
others.
The motion to dismiss and the motion
for reconsideration were denied. The CA
sustained the RTC’s decision. CA held that the
doctrine of exhaustion of administrative
remedies was not without exception and
pointed to the several instances approved by
this Court where it could be dispensed with.
The applicable exception was the urgent need
for judicial intervention because City Council of
Pagadian requested the Bureau of Forest
Development to reserve 1,000 hectares in
Lison Valley. This request remained unacted
upon. Instead a TLA covering 29,500 hectares,
including the area requested, was given to
petitioner Sunville. Due to the erosion caused
by Sunville’s logging operations heavy floods
have occurred in areas adjoining the logging
concessions. Thus, it is urgent that
indiscriminate logging be stopped.
Sunville contends that the doctrine of
exhaustion of administrative remedies was not
correctly applied
ISSUE: Whether the application of the doctrine
of exhaustion of administrative remedies is
correct
NO. The doctrine of exhaustion of
administrative remedies calls for resort first to
the appropriate administrative authorities in
the resolution of a controversy falling under
their jurisdiction before the same may be
elevated to the courts of justice for review.
There is the explicit language of
pertinent laws vesting in the DENR the power
and function "to regulate the development,
disposition, extraction, exploration and use of
the country's forests" and "to exercise
exclusive jurisdiction" in the "management and
disposition of all lands of the public domain,"
and in the Forest Management Bureau the
responsibility for the enforcement of the
have been violated. This comprehensive
conferment clearly implies at the very least
that the DENR should be allowed to rule in the
first instance on any controversy coming under

its express powers before the courts of justice
may intervene.
The charge involves factual issues
calling for the presentation of supporting
evidence. Such evidence is best evaluated first
by the administrative authorities, employing
their specialized knowledge of the agreement
and the rules allegedly violated, before the
courts may step in to exercise their powers of
review.
Who files
How pleaded
Period
A motion to dismiss may be filed within the
time for but before filing the answer to the
complaint or pleading asserting a claim. (Sec.
1, Rule 16)
As affirmative defense
If no motion to dismiss has been filed,
(1) any of the grounds for dismissal
provided for in this Rule may be
pleaded as an affirmative defense in
the answer, and
(2) a preliminary hearing may be had
thereon as if a motion to dismiss had
been filed, in the discretion of the
court, (Sec. 6, Rule 16)
-counterclaim which may be prosecuted
in same or separate action refers to
permissive counterclaim
Hearing and resolution
Hearing
At the hearing of the motion, the parties shall
submit
(1) their arguments on the questions of
law and
(2) their evidence on the questions of fact
involved except those not available at
that time.
NOTE: Should the case go to trial, the evidence
presented during the hearing shall
automatically be part of the evidence of the
party presenting the same. (Sec. 2, Rule 16)
Resolution of motion
After the hearing, the court may
(1) dismiss the action or claim,
(2) deny the motion, or
(3) order the amendment of the pleading.
The court shall not defer the resolution of the
motion for the reason that the ground relied
upon is not indubitable.
In every case, the resolution shall state
clearly and distinctly the reasons therefor.
(Sec. 3, Rule 6)
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER86
MUNICIPALITY OF BINAN v. CA
(219 SCRA 69, 1993)
Preliminary Hearing under Sec 5, Rule 16 is
not mandatory even when the same is
prayed for, It rests largely on the sound
discretion of the trial court.
A preliminary hearing on an
affirmative defense for failure to state a
cause of action is not necessary.
FACTS: Petitioner Municipality of Binan filed for
unlawful detainer against private respondent
Garcia, stating that it was no longer amenable
to the renewal of its 25-year lease contract
with private respondent over the premises
involved because of its pressing need to use
the same for national and provincial offices.
Garcia filed his answer to the
complaint saying that the contract of lease had
not yet expired and, assuming that it had
expired, he has exercised his option to stay in
the premises for another 25 years as expressly
provided in the said contract.
Petitioner filed its reply. Subsequently
private respondent filed a "Motion for
Preliminary Hearing as if a Motion to Dismiss
Has Been Filed" on the ground that the
complaint states no cause of action, reiterating
his previous argument.
The MTC ordered private respondent to
vacate the premises. Private respondent filed a
"Manifestation/Motion" in the nature of a
motion to dismiss, praying that the same be
first resolved instead of rendering judgment on
the pleadings. Also, private respondent filed a
notice of appeal to the RTC.
Petitioner filed a motion for
discretionary execution, which was granted. A
writ of execution was issued directing the
deputy sheriff to enforce the terms.
Private respondent filed with the CA
an appeal on the ground that the lower court
failed to conduct a preliminary hearing as
prayed by his previous motion. CA granted
private respondent’s appeal
ISSUE: Whether or not a preliminary hearing
for a Motion to Dismiss is mandatory
NO. It cannot be said that the lower
court committed a grave abuse of discretion or
exceeded its jurisdiction when it failed to
conduct a preliminary hearing, as prayed for in
private respondent's "Motion for Preliminary
Hearing as if a Motion to Dismiss Has Been

Filed," before rendering judgment on the
merits of the case. The motion of private
respondent is anchored on the ground that the
complaint states no cause of action since the
original term of 25 years stipulated in the
contract of lease had not yet expired and
assuming that it had expired, private
respondent had made known to petitioner his
exclusive option to renew it for another 25
years.
Section 5, Rule 16 allows the grounds
for a motion to dismiss to be set up as
affirmative defenses in the answer if no motion
to dismiss has been filed. However, contrary to
the claim of private respondent, the
preliminary hearing permitted under the said
provision is not mandatory even when the
same is prayed for. It rests largely on the
discretion of the trial court. The use of the
word "may" in said provision shows that such a
hearing is not a matter of right demandable
from the trial court. Where the provision reads
"may," this word shows that it is not
mandatory but discretional. It is an auxiliary
verb indicating liberty, opportunity, permission
and possibility.
Moreover, a preliminary hearing on an
affirmative defense for failure to state a cause
of action is not necessary. It is a well-settled
rule that in a motion to dismiss based on the
ground that the complaint fails to state a cause
of action, the question submitted to the court
for determination is the sufficiency of the
allegations in the complaint itself. Whether
those allegations are true or not is beside the
point, for their truth is hypothetically admitted
by the motion. In other words, to determine
sufficiency of the cause of action, only the
facts alleged in the complaint, and no other
should be considered.
- preliminary hearing not mandatory
- preliminary hearing on an affirmative
defense or failure to state a cause of
action not necessary
Effects
Of dismissal
An order granting a motion to dismiss based
on the following shall bar the refiling of the
same action or claim:
(1) That the cause of action is barred by a
prior judgment or by the statute of
limitations;
(2) That the claim or demand set forth in
the plaintiff’s pleading has been paid,
waived, abandoned, or otherwise
extinguished;
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER87
(3) That the claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds; and
NOTE: They are still subject to the right of
appeal
. (Sec. 5, Rule 16)
-appealable; refiling barred if motion
based on Sec. 1 (f), (h), and (i)
On periods for pleading
If the motion is denied—
the movant shall file his answer within the
balance of the period prescribed by Rule 11 to
which he was entitled at the time of serving his
motion, BUT not less than five (5) days in any
event, from his receipt of the notice of the
denial.
If the pleading is ordered to be amended—
He shall file his answer within the period
prescribed by Rule 11 counted from service of
the amended pleading, unless the court
provides a longer period. (Sec. 4, Rule 16)
On other grounds and omnibus motion
rule
A motion attacking a pleading, order,
judgment, or proceeding shall include all
objections then available, and all objections
not so included shall be deemed waived. (Sec.
8, Rule 15)
Exceptions
The court shall dismiss the claim when it
appears from the pleadings or the evidence on
record that
(1) the court has no jurisdiction over the
subject matter,
(2) there is another action pending
between the same parties for the same
cause, or that
(3) the action is barred by a prior
judgment or
(4) barred by the statute of limitations.
(Sec. 1, Rule 9)
Remedies
If motion granted – appeal or refile
complaint
If motion denied – file answer, unless
without jurisdiction, in which case, Rule
65 petition
NPC v. CA
(185 SCRA 169, 1990)

As a general rule, whenever a motion is
denied, the petitioner should file an answer,
go to trial and if the decision is adverse,
reiterate the issue on appeal. However, if
the court who denies the motion acts
without or in excess of jurisdiction or with
grave abuse of discretion the proper move
is to proceed to a higher court for relief.
FACTS: FINE Chemicals, a company engaged in
the manufacturing of plastics applied with the
NPC for direct power connection. Meralco
assured that it had the capabilities to serve
FINE but that to allow direct connections will
be detrimental to other consumers since they’ll
shoulder the additional subsidy burden.
However, NPC went on with the plan
anyway and provided its services with FINE.
Because of this, Meralco filed a petition for
Prohibition, Mandamus and Damages with
Preliminary Injunction with the RTC. FINE
countered saying that Injuction would be moot
since the service has already been
consummated and the facilities have been
installed and are functional. Meralco
amended its petition by incorporating an
application for a writ of preliminary mandatory
injunction. FINE moved to dismiss the
amended petition on the ground of
insufficiency of the allegations in the petition
to plead a cause of action. The trial judge
allowed Meralco to adduce evidence over
FINE’s objection. FINE then filed
manifestation adopting its Motion to Dismiss
but was denied.
Undaunted, FINE proceeded directly to
the CA and filed a petition for Certiorari,
Prohibition and Mandamus. CA dismissed.
Hence this petition.
ISSUE: Whether Meralco’s petition in the lower
court should be dismissed
YES. As a general rule, whenever a
motion is denied, the petitioner should file an
answer, go to trial and if the decision is
adverse, reiterate the issue on appeal.
However, if the court who denies the motion
acts without or in excess of jurisdiction or with
grave abuse of discretion the proper move is
to proceed to a higher court for relief. It would
be unfair to require the defendant to undergo
the ordeal and expense of trial under such
circumstances as the remedy of appeal would
not be plain and adequate.
More importantly, petitioner’s motion
to dismiss is based on the ground that the
complaint states no cause of action, so that
there is no need for a full blown trial. It is also
important to note that the courts will strive to
settle the controversy in a single proceeding
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER88
leaving no root or branch to bear the seeds of
future litigation.
DISMISSAL OF ACTIONS (RULE 17)
Upon notice by plaintiff—before answer
A complaint may be dismissed by the plaintiff
(1) by filing a notice of dismissal
(2)at any time before service of the
answer or of a motion for summary
judgment.
Upon such notice being filed, the court shall
issue an order confirming the dismissal.
 The court does not have to approve
the dismissal because it has no
discretion on the matter.
 Before an answer or motion for
summary judgment has been served
upon plaintiff, dismissal by the plaintiff
is a matter of right.
 It occurs as of the filing of the notice,
not upon court’s confirmation.
General rule: The dismissal made by filing a
notice of dismissal is without prejudice.
Exceptions:
(1)The notice otherwise states; and
(2)When filed by a plaintiff who has once
dismissed in a competent court an
a action based on or including the same
claim, in which case the notice
operates as an adjudication upon the
merits. (Sec. 1, Rule 17)
O.B. JOVENIR v. MACAMIR REALTY
(2006)
The trial court has no discretion or option to
deny the motion, since dismissal by the
plaintiff under Section 1, Rule 17 is
guaranteed as a matter of right to the
plaintiffs. Even if the motion cites the most
ridiculous of grounds for dismissal, the trial
court has no choice but to consider the
complaint as dismissed, since the plaintiff
may opt for such dismissal as a matter of
right, regardless of ground.
FACTS: Macamir Realty and the Miranda
Spouses (principal stockholders) filed a
complaint against Jovenir Construction,

seeking the annulment of the construction
project entered into by private respondents
with Jovenir, as well as for damages. Jovenir n
allegedly misrepresented itself as a legitimate
contractor.
Madeja and Mangrobang, Jr., the
impleaded defendants, filed their respective
motions to dismiss. Madeja alleged that while
the spouses Miranda had initiated the
complaint on behalf of Macamir Realty, the
real party-in-interest, they failed to attach any
Board Resolution authorizing them to file suit
on behalf of the corporation. Madeja, a
member of the Board of Directors of Macamir
Realty, averred as a fact that said Board had
not authorized the spouses Miranda to initiate
the complaint against Jovenir Realty.
Ten (10) days after the filing of the
complaint, private respondents filed a Motion
to Withdraw Complaint, alleging that during
the initial hearing on the prayer for preliminary
injunction their counsel discovered a supposed
technical defect in the complaint that may be a
ground for the dismissal of this case. Thus,
they prayed to be allowed to withdraw the
complaint without prejudice. Jovenir
Construction filed an opposition.
However, just one day earlier, private
respondents filed another complaint against
the same defendants save for Madeja, and
seeking the same reliefs as the first complaint.
This time, a Board Resolution authorizing the
spouses to file the Complaint on behalf of
Macamir Realty was attached to the complaint.
This second complaint was also filed with the
Makati RTC. The Verification and Certification
of Non-Forum Shopping in the second
complaint was accomplished by Rosauro
Miranda.
Eleven (11) days after the filing of the
Motion to Withdraw Complaint and seven (7)
days after the filing of the second Complaint,
the Makati RTC granted the Motion to
Withdraw Complaint. The RTC noted an action
may be dismissed by the plaintiffs even
without Order of the Court by filing a notice of
dismissal at anytime before the service of the
answer under Rule 17, Section 1 of the Rules
of Court, and accordingly considered the
complaint withdrawn without prejudice.
Jovenir filed a Motion to Dismiss the
second complaint on the ground of forum-
shopping. They pointed out that at the time of
the filing of the second complaint, the first
complaint was still pending. The Makati RTC
denied the Motion to Dismiss. This Order was
affirmed by the CA
ISSUE: Whether the dismissal was improper
since Macamir filed a Motion for Withdrawal
instead of the required Notice of Dismissal
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER89
NO. Section 1, Rule 17 of the 1964
Rules of Civil Procedure stated:
Dismissal by the plaintiff — An action
may be dismissed by the plaintiff
without order of court by filing a
notice of dismissal at any time
before service of the answer or of
a motion for summary judgment.
Unless otherwise stated in the
notice, the dismissal is without
prejudice, except that a notice
operates as an adjudication upon the
merits when filed by a plaintiff who has
once dismissed in a competent court
an action based on or including the
same claim. A class suit shall not be
dismissed or compromised without the
approval of the court.
Indubitably, the provision ordained the
dismissal of the complaint by the plaintiff as a
matter of right at any time before service of
the answer. The plaintiff was accorded the
right to dismiss the complaint without the
necessity of alleging in the notice of dismissal
any ground nor of making any reservation.
Evidently, respondents had the right to
dismiss their complaint by mere notice when
Jovenir had not yet served their answer on
respondents. The Motion to Withdraw
Complaint makes clear respondents’ "desire to
withdraw the complaint without prejudice."
That respondents resorted to a motion to
effect what they could have instead by mere
notice may be indicative of a certain degree of
ignorance of procedural rules on the part of
respondents’ counsel. Yet such "error," if it
could be called as such, should hardly be of
fatal consequence. Petitioners posit that the
"remedy" of filing a notice of dismissal is not
exclusive, respondents having the "option" of
securing the court’s approval to the dismissal.
On the contrary, the trial court has no
discretion or option to deny the motion, since
dismissal by the plaintiff under Section 1, Rule
17 is guaranteed as a matter of right to the
plaintiffs. Even if the motion cites the most
ridiculous of grounds for dismissal, the trial
court has no choice but to consider the
complaint as dismissed, since the plaintiff may
opt for such dismissal as a matter of right,
regardless of ground.
While the Motion to Withdraw
Complaint is styled as a "motion" and contains
a "prayer", these are innocuous errors and
superfluities that do not detract from its being
a notice of dismissal made under said Section
1 of Rule 17 and which ipso facto dismissed
the case. It is a hornbook rule that it is not the

caption of a pleading but the allegations
thereat that determines its nature.
Thus, the complaint could be properly
considered as having been dismissed or
withdrawn as of the filing of the Motion to
Withdraw Complaint. Accordingly, when
respondents filed their new complaint relating
to the same cause of action on, the old
complaint was no longer pending.
As noted at the onset, the 1997 Rules
of Civil Procedure now requires that upon the
filing of such notice, the court issue an order
confirming the dismissal. The new requirement
is intended to qualify the right of a party to
dismiss the action before the adverse party
files an answer or asks for summary judgment.
Still, there is no cause to apply the 1997 Rules
retroactively to this case. A plaintiff’s right to
cause the dismissal of his complaint under the
1964 rules was unqualified. Procedural rules
may not be given retroactive effect if vested
rights would be disturbed, or if their
application would not be feasible or would
work injustice.
Upon motion of plaintiff—after answer
SEC. 2. Dismissal upon motion of plaintiff.—
Except as provided in the preceding section, a
complaint shall not be dismissed at the
plaintiff’s instance save upon approval of the
court and upon such terms and conditions as
the court deems proper. If a counterclaim has
been pleaded by a defendant prior to the
service upon him of the plaintiff’s motion for
dismissal, the dismissal shall be limited to the
complaint. The dismissal shall be without
prejudice to the right of the defendant to
prosecute his counterclaim in a separate
action unless within fifteen (15) days from
notice of the motion he manifests his
preference to have his counterclaim resolved
in the same action. Unless otherwise specified
in the order, a dismissal under this paragraph
shall be without prejudice. A class suit shall not
be dismissed or compromised without the
approval of the court. (2a)
Effect of counterclaim
Due to fault of plaintiff
SEC. 3. Dismissal due to fault of plaintiff.—If,
for no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his
evidence in chief on the complaint, or to
prosecute his action for an unreasonable
length of time, or to comply with these Rules
or any order of the court, the complaint may
be dismissed upon motion of the defendant or
upon the court’s own motion, without prejudice
to the right of the defendant to prosecute his
counterclaim in the same or in a separate
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER90
action. This dismissal shall have the effect of
an adjudication upon the merits, unless
otherwise declared by the court. (3a)
CRUZ v. CA
(2006)
Rule 17, Sec. 3 enumerates the instances
where the complaint may be dismissed
due to plaintiff's fault: (1) if he fails to
appear on the date for the presentation of
his evidence in chief; (2) if he fails to
prosecute his action for an unreasonable
length of time; or (3) if he fails to comply
with the rules or any order of the court.
Once a case is dismissed for failure to
prosecute, this has the effect of an
adjudication on the merits and is
understood to be with prejudice to the
filing of another action unless otherwise
provided in the order of dismissal. In
other words, unless there be a
qualification in the order of dismissal that
it is without prejudice, the dismissal
FACTS: There are 4 cases involved in this
controversy.
1st case: Unlawful Detainer before the
MTC of Gapan, Nueva Ecija, decided in 1998 in
favor of petitioner Cruz and Concepcion.
2nd case: Quieting of Title before the
RTC of Gapan, Nueva Ecija which was
dismissed for failure to prosecute as
evidenced by the RTC in 2000. (Civil Case
1600)
3rd case: Suit for Injunction filed before
the RTC of Gapan City, which was dismissed
on ground of res judicata – because there
was substantial identity of parties with the 2nd
case.
4th case: Annulment of Title With
Damages filed with RTC of Gapan City, where
petitioners interposed a Motion for Outright
Dismissal of Civil Case, where the court
granted the Motion for Outright dismissal on g
reasoned that:ounds of res judicata and accion
pendente lite, after finding that – (1) the 3rd
case involve the same parties, subject matter
and issue as that in the 1st case and 2nd case;
(2) in all 3 cases, Mariano Bunag was included
as party-plaintiff and Ernestina Concepcion as
party-defendant; (3) the subject matter is a
1,160 sq.m parcel of land in San Nicolas,
Gapan City;l (4) and the issue is who between
the 2 parties has the lawful title over the
same.
The court hereby sentenced guilty of indirect
Contempt of Court by reason of non-disclosure
of Cases 1 and 2 in the Certificate/Verification
of their complaint – as required by Section 5,
Rule 7 of the ROC.

The respondents filed a MFR which the
Court granted by setting aside the order which
granted the defendant’s Motion for the
Outright Dismissal and the order citing the
plaintiffs and counsel guilty for contempt of
court. The court thereby ordered the
defendants to file their answer/responsive
pleading within 15 days from receipt of the
Court order.
Petitioners then appealed in the CA
and the CA dismissed the petition for lack of
merit, reasoning that there is no identity of
parties between Case 1 and the instant case
for the simple reason that plaintiffs in the case
at bar were not parties in Case 1. Also, the
plaintiffs and their counsel can not be said to
have violated the rule against forum shopping.
Plaintiffs and their counsel did not file Case 1
and therefore they are not obligated to inform
this Court that they have filed a similar action
involving the same issue with other court.
In their comment, respondents Bunag
and Vda. de Bunag maintain that the CA did
not err when it held that there was no res
judicata in the case at bar.
Petitioners claim that res judicata
applies in this case because all the elements
thereof are present, which are - (1) there must
be a final judgment or order; (2) said judgment
or order must be on the merits; (3) the Court
rendering the same must have jurisdiction on
the subject matter and the parties; and (4)
there must be between the two cases identity
of parties, identity of subject matter, and
identity of causes of action.
On the other hand, private respondents argue
the contrary alleging that the 2nd and 4th
elements are lacking.
ISSUE: Whether there was a proper dismissal
of the Civil Case 1600 (a case prior to the case
at bar) - which is a necessary element for res
judicata to attach.
YES. Under the rule of res judicata,
also known as “bar by prior judgment,” a final
judgment rendered by a Court having
jurisdiction of the subject matter and of the
parties, is conclusive in a subsequent case
between the same parties and their successor-
in-interest, litigating for the same thing and
under the same title and in the same capacity.
On the 2nd element of res judicata –
that (2) said judgment or order must be
on the merits, the private respondents argue
that the dismissal of CASE 2 (Quieting of Title)
was not a dismissal on the merits. The
dismissal of this case, they claim, will not bar
the filing of the instant case, Case 4 (for
Annulment of Title) because there was neither
litigious consideration of the evidence nor any
stipulations submitted by the parties at the
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER91
trial. In fact, there was no pre-trial conference
and that after four years of court
inactivity, the case was dismissed for
failure to prosecute.
The SC ruled that the argument raised
by the respondents is UNTENABLE. Section 3
of Rule 17 of the ROC provides:
Section 3. Dismissal due to fault of
plaintiff. – If, for no justifiable cause,
the plaintiff fails to appear on the date
of the presentation of his evidence in
chief on the complaint, or to prosecute
his action for an unreasonable length
of time, or to comply with these Rules
or any order of the court, the
complaint may be dismissed upon
motion of the defendant or upon the
court's own motion, without prejudice
to the right of the defendant to
prosecute his counterclaim in the
same or in a separate action. This
dismissal shall have the effect of an
adjudication upon the merits, unless
otherwise declared by the court.
The rule enumerates the instances
where the complaint may be dismissed
due to plaintiff's fault: (1) if he fails to
appear on the date for the presentation of his
evidence in chief; (2) if he fails to prosecute his
action for an unreasonable length of time; or
(3) if he fails to comply with the rules or any
order of the court. Once a case is dismissed
for failure to prosecute, this has the effect of
an adjudication on the merits and is
understood to be with prejudice to the filing of
another action unless otherwise provided in
the order of dismissal. In other words, unless
there be a qualification in the order of
dismissal that it is without prejudice, the
dismissal should be regarded as an
adjudication on the merits and is with
prejudice.
In the case at bar, the order dismissing
Case 2 / Civil Case No. 1600 is based on the
failure of the plaintiffs as well as counsel to
appear on several settings despite due notices,
precisely for the reception of plaintiffs’
evidence, upon motion of the defendant
through Atty. Mark Arcilla, this case is
dismissed for failure to prosecute.
It is clear from the afore-
mentioned order that said case was
dismissed, upon petitioners’ motion, for
failure of private respondents and their
counsel to attend several scheduled
hearings for the presentation of their
evidence. Since the order did not contain a
qualification whether same is with or without
prejudice, following Section 3, it is deemed to
be with prejudice and shall have the effect of
an adjudication on the merits. A ruling based

on a motion to dismiss, without any trial on the
merits or formal presentation of evidence, can
still be a judgment on the merits.
Effect on counterclaim
PINGA v. SANTIAGO
(2006)
Under Section 3, Rule 17 of the 1997 Rules
of Civil Procedure, the dismissal of the
complaint due to the fault of plaintiff does
not necessarily carry with it the dismissal of
the counterclaim, compulsory or otherwise.
In fact, the dismissal of the complaint is
without prejudice to the right of defendants
to prosecute the counterclaim.
FACTS: Petitioner Eduardo Pinga was named as
one of two defendants in a complaint for
injunction filed in RTC Zamboanga del Sur, by
respondent Heirs of German Santiago,
represented by Fernando Santiago. The
Complaint alleged in essence that petitioner
Pinga and co-defendant Saavedra had been
unlawfully entering the coco lands of the
respondent, cutting wood and bamboos and
harvesting the fruits of the coconut trees
therein.
Respondents prayed that petitioner
Pinga and Saavedra be enjoined from
committing "acts of depredation" on their
properties, and ordered to pay damages.
In their Amended Answer with
Counterclaim, petitioner and his co-defendant
disputed respondents’ ownership of the
properties in question, asserting that
petitioner’s father, Edmundo, from whom
defendants derived their interest in the
properties, had been in possession thereof
since the 1930s.
By July of 2005, the trial of the case
had not yet been completed. Moreover,
respondents, as plaintiffs, had failed to present
their evidence. It appears that the RTC already
ordered the dismissal of the complaint after
respondents’ counsel had sought the
postponement of the hearing scheduled
then. However, the order of dismissal was
subsequently reconsidered by the RTC in an
Order dated 9 June 2005, which took into
account the assurance of respondents’ counsel
that he would give priority to that case.
At the hearing, plaintiffs’ counsel on
record failed to appear, sending in his stead a
representative who sought the postponement
of the hearing. Counsel for defendants (who
include herein petitioner) opposed the move
for postponement and moved instead for the
dismissal of the case. The RTC noted that it
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER92
was obvious that respondents had failed to
prosecute the case for an unreasonable length
of time, in fact not having presented their
evidence yet. On that ground, the complaint
was dismissed. At the same time, the RTC
allowed defendants "to present their evidence
ex-parte."
Respondents filed a Motion for
Reconsideration. RTC granted respondents’
Motion for Reconsideration and dismissing the
counterclaim. Petitioner Pinga filed a Motion
for Reconsideration, but the same was denied
by the RTC. Respondents filed an Opposition to
Defendants’ Urgent Motion for
Reconsideration, wherein they argued that that
"compulsory counterclaims cannot be
adjudicated independently of plaintiff’s cause
of action," and "a conversu, the dismissal of
the complaint carries with it the dismissal of
the compulsory counterclaims."1
The matter was elevated to this Court directly
by way of a Petition for Review under Rule 45
on a pure question of law
ISSUE: Whether the dismissal of the complaint
necessarily carries the dismissal of the
compulsory counterclaim
NO. Under Section 3, Rule 17 of the
1997 Rules of Civil Procedure, the dismissal of
the complaint due to the fault of plaintiff does
not necessarily carry with it the dismissal of
the counterclaim, compulsory or otherwise. In
fact, the dismissal of the complaint is without
prejudice to the right of defendants to
prosecute the counterclaim.
On a prefatory note, the RTC, in
dismissing the counterclaim, did not expressly
adopt respondents’ argument that the
dismissal of their complaint extended as well
to the counterclaim. Instead, the RTC justified
the dismissal of the counterclaim on the
ground that "there is no opposition to
[plaintiff’s] Motion for Reconsideration [seeking
the dismissal of the counterclaim]." This
explanation is hollow, considering that there is
no mandatory rule requiring that an opposition
be filed to a motion for reconsideration without
need for a court order to that effect; and, as
posited by petitioner, the "failure to file an
opposition to the Plaintiff’s Motion for
Reconsideration is definitely not one among
the established grounds for dismissal [of the
counterclaim]." Still, the dismissal of the
counterclaim by the RTC betrays at very least
a tacit recognition of respondents’ argument
that the counterclaim did not survive the
dismissal of the complaint. At most, the
dismissal of the counterclaim over the
objection of the defendant (herein petitioner)
on grounds other than the merits of the
counterclaim, despite the provisions under

Rule 17 of the 1997 Rules of Civil Procedure,
constitutes a debatable question of law,
presently meriting justiciability through the
instant action.
The doctrine that the complaint
may not be dismissed if the counterclaim
cannot be independently adjudicated is
not available to, and was not intended for
the benefit of, a plaintiff who prevents or
delays the prosecution of his own
complaint. Otherwise, the trial of
counterclaims would be made to depend upon
the maneuvers of the plaintiff, and the rule
would offer a premium to vexing or delaying
tactics to the prejudice of the
counterclaimants. It is in the same spirit that
we have ruled that a complaint may not be
withdrawn over the opposition of the
defendant where the counterclaim is one that
arises from, or is necessarily connected with,
the plaintiff’s action and cannot remain
pending for independent adjudication.
Accordingly, the RTC clearly erred
when it ordered the dismissal of the
counterclaim, since Section 3, Rule 17
mandates that the dismissal of the complaint
is without prejudice to the right of the
defendant to prosecute the counterclaim in the
same or separate action. If the RTC were to
dismiss the counterclaim, it should be on the
merits of such counterclaim. Reversal of the
RTC is in order, and a remand is necessary for
trial on the merits of the counterclaim.
PERKIN ELMER v. DAKILA TRADING
(2007)
Extraterritorial service of summons applies
only where the action is in rem or quasi in
rem, but not if an action is in personam.
FACTS: Dakila Trading Corp (Dakila) entered
into a Distribution Agreement with Perkin-
Elmer Singapore Pte. Ltd. (PES) which
appointed Dakila as sole distributor of its
products in the Philippines. PES was obligated
to give Dakila a commission for the sale of its
products in the Philippines. Dakila was granted
the right to purchase and sell the products of
PES. The agreement further stipulated that
Dakila shall order the products of PES, which it
shall sell in the Philippines, either from PES
itself or from PEIP.
However, PES unilaterally terminated
the Distribution Agreement, prompting Dakila
to file before the RTC a Complaint for
Collection of Sum of Money and Damages with
Prayer for Issuance of a Writ of Attachment
against PES and its affiliate, Perkin-Elmer
Instruments Philippines Corporation (PEIP). RTC
denied respondent’s prayer.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER93
Dakila filed Ex-Parte Motions for
Issuance of Summons and for Leave of Court to
Deputize Dakila’s General Manager (DGM) to
Serve Summons Outside of the Philippines.
RTC granted this motion. Thus, an Alias
Summons was issued by the RTC to PES. But
the said Alias Summons was served and
received by Perkin-Elmer Asia (PEA), a
corporation allegedly unrelated to PES. PEIP
moved to dismiss the Complaint filed by
Dakila. PEA, on the other hand, sent letters to
Dakila and RTC to inform them of the wrongful
service of summons.
Accordingly, Dakila filed an Ex-Parte
Motion to Admit Amended Complaint, together
with the Amended Complaint claiming that (1)
PEA had become a sole proprietorship owned
by the PES, (2) PES changed its name to PEA,
(3) such changes did not avoid its due and
outstanding obligations to Dakila, and (4) the
name of PES in the complaint should be
changed to PEA. RTC admitted the Amended
Complaint.
Dakila filed another Motion for the
Issuance of Summons and for Leave of Court to
Deputize DGM to serve summons outside the
Philippines. RTC granted the motion. RTC thus
issued summons and the DGM went to
Singapore and served summons on PES.
Meanwhile, RTC denied the Motion to
Dismiss filed by PEIP, compelling the latter to
file its Answer to the Amended Complaint.
PES filed with the RTC a Special
Appearance and Motion to Dismiss the
Amended Complaint, which were denied. It
held that even though the Amended Complaint
is primarily for damages, it does relate to a
property of PES, to which the latter has a claim
interest, or an actual or contingent lien, which
will make it fall under one of the requisites for
extraterritorial service. PES filed a Petition for
Certiorari under Rule 65 with application for
temporary restraining order and/or preliminary
injunction before the CA. The CA affirmed the
RTC Orders.
ISSUE: Whether summons were properly
served under the 2nd or 4th instance of extra-
territorial service
NO. Extraterritorial service of
summons applies only where the action is in
rem or quasi in rem, but not if an action is in
personam. In the case at bar, there can never
be a valid extraterritorial service of summons
upon it, because the case involving collection
of a sum of money and damages is an action in
personam, as it deals with the personal liability
of PES by reason of the alleged unilateral
termination of the Distribution Agreement. The
objective sought in Dakila’s Complaint was to
establish a claim against PES. Moreover, The

action instituted by Dakila affects the parties
alone, not the whole world.
Thus, being an action in personam,
personal service of summons within the
Philippines is necessary in order for the RTC to
validly acquire jurisdiction over the person of
PES, and this is not possible in the present
case because the PES is a non-resident and is
not found within the Philippines. Dakila’s
allegation in its Amended Complaint that PES
had personal property within the Philippines in
the form of shares of stock in PEIP did not
make the case fall under any of the four
instances mentioned in Section 15, Rule 14 of
the Rules of Court, as to convert the action in
personam to an action in rem or quasi in rem
and, subsequently, make the extraterritorial
service of summons upon the petitioner valid.
The 2nd instance for extra-territorial
service has no application in the case. The
action for collection of a sum of money and
damages was purely based on the personal
liability of the PES. For the action to be one
falling under the 2nd instance, the main subject
matter of the action must be the property itself
of the PES in the Philippines and in such
instance, judgment will be limited to the res.
However, the allegations made by the
respondent that the petitioner has property
within the Philippines in support of its
application for the issuance of a writ of
attachment was actually denied by the RTC.
Neither does the allegation that PES
had personal property within the Philippines in
the form of shares of stock in PEIP convert the
case from an action in personam to one quasi
in rem, so as to qualify said case under the 4th
instance of extra-territorial service. What is
required is not a mere allegation of the
existence of personal property belonging to
the non-resident defendant within the
Philippines but that the non-resident
defendant’s personal property located within
the Philippines must have been actually
attached. Evidently, PES’s personal property
within the Philippines, in the form of shares of
stock in PEIP, had not been attached; hence,
the case for collection of sum of money and
damages remains an action in personam.
In the case at bar, there can never be
a valid extraterritorial service of summons
upon it, because the case involving collection
of a sum of money and damages is an action in
personam, as it deals with the personal liability
of PES by reason of the alleged unilateral
termination of the Distribution Agreement. The
objective sought in Dakila’s Complaint was to
establish a claim against PES. Moreover, The
action instituted by Dakila affects the parties
alone, not the whole world.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER94
Thus, being an action in personam,
personal service of summons within the
Philippines is necessary in order for the RTC to
validly acquire jurisdiction over the person of
PES, and this is not possible in the present
case because the PES is a non-resident and is
not found within the Philippines. Dakila’s
allegation in its Amended Complaint that PES
had personal property within the Philippines in
the form of shares of stock in PEIP did not
make the case fall under any of the four
instances mentioned in Section 15, Rule 14 of
the Rules of Court, as to convert the action in
personam to an action in rem or quasi in rem
and, subsequently, make the extraterritorial
service of summons upon the petitioner valid.
Remedy of plaintiff
KO v. PNB
(419 SCRA 298, 2006)
Considering that an order of dismissal for
failure to prosecute has the effect of an
adjudication on the merits, petitioners’
counsel should have filed a notice of appeal
with the appellate court within the
reglementary period. Instead of filing a
petition under Rule 45 of the Rules of Court,
the proper recourse was an ordinary appeal
with the Court of Appeals under Rule 41.
FACTS: This is a petition for review on
certiorari assailing the Order of the Regional
Trial Court of Laoag City.The case stemmed
from an action filed by petitioners in the trial
court for Annulment of Mortgage, Extra-judicial
Foreclosure Sale, Annulment of Transfer
Certificate and Deed of Sale with a Prayer for
Preliminary Injunction and Restraining Order.
The complaint alleged that the assailed
mortgage and the foreclosure proceedings
were null and void since the written consent of
petitioners, as beneficiaries of the mortgaged
property, were not secured. Respondent bank
denied the claim and alleged that in the
execution of the mortgage, petitioners in fact
gave their consent.
During the course of the
proceedings, petitioners and their
counsel failed to attend a scheduled trial.
Upon motion of respondent bank, the
complaint was dismissed. When the case was
called, Atty. Lorenzo Castillo, counsel for the
plaintiffs did not appear despite proper notice.
No plaintiff appeared. Atty. Eduardo Alcantara,
counsel for defendant bank appeared.
Atty. Alcantara manifested that there were
numerous occasions in the past when plaintiffs
and counsel did not attend. He pointed out

that there is an apparent lack of interest on
the part of plaintiff to prosecute the action. He
moved to dismiss the case on that legal
ground.
Petitioners filed a motion for reconsideration
claiming that they have been continuously
pursuing negotiations with respondent bank to
purchase back the property and have gained
positive results. Respondent bank countered
that from the time the complaint was filed, a
period of three years had elapsed but
petitioners failed to prosecute their case,
showing lack of interest in the early resolution
thereof. The trial court denied the motion for
reconsideration.
ISSUE: Whether the petitioners, who failed to
attend a scheduled trial and dismissed by the
court, may file a petition for review on
certiorari under Rule 45
NO. On the procedural aspect, we find
that petitioners erred in filing a petition for
review on certiorari under Rule 45 of the Rules
of Court instead of filing an appeal with the
Court of Appeals. Section 3, Rule 17 of the
Rules of Court provides:
SEC. 3. Dismissal due to fault of
plaintiff.—If, for no justifiable cause,
the plaintiff fails to appear on the date
of the presentation of his evidence in
chief on the complaint, or to prosecute
his action for an unreasonable length
of time, or to comply with these Rules
or any order of the court, the
complaint may be dismissed upon the
motion of the defendant or upon the
court’s own motion, without prejudice
to the right of the defendant to
prosecute his counterclaim in the same
or in a separate action. This
dismissal shall have the effect of
an adjudication upon the merits,
unless otherwise declared by the
court.
Upon the order of dismissal,
petitioners’ counsel filed a timely motion for
reconsideration which was denied by the trial
court.
The rule is clear. In order to perfect an
appeal all that is required is a pro forma notice
of appeal. Perhaps due to failure to file a notice
of appeal within the remaining two days of the
appeal period, petitioners’ counsel instead
filed the instant petition. The rules of
procedure, however, do not exist for the
convenience of the litigants. These rules are
established to provide order to and enhance
the efficiency of our judicial system. They are
not to be trifled with lightly or overlooked by
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER95
mere expedience of invoking "substantial
justice."
Procedural law has its own
rationale in the orderly administration of
justice, namely, to ensure the effective
enforcement of substantive rights by
providing for a system that obviates
arbitrariness, caprice, despotism or
whimsicality in the settlement of
disputes. The enforcement of procedural
rules is not antithetical to the
substantive rights of the litigants.
The expeditious disposition of cases is as much
the duty of the plaintiff as the court. It must be
remembered that a defendant in a case
likewise has the right to the speedy disposition
of the action filed against him7 considering that
any delay in the proceedings entail prolonged
anxiety and valuable time wasted.
In the case at bar, three years have
since lapsed from the filing of the complaint on
May 3, 2002 and the order of dismissal on April
27, 2005. Petitioners’ failure to prosecute their
case and proceed with the trial during the span
of three years leads to no other conclusion
than that petitioners have no interest in seeing
their case terminated at the earliest possible
time; or that petitioners’ case is unmeritorious
from inception. Whichever the case may be,
the dismissal order of the trial court stand and
is now immutable.
Petitioners cannot claim that they were
deprived of due process. True, the right to due
process safeguards the opportunity to be
heard and to submit any evidence one may
have in support of his claim or defense.
Nonetheless, we have time and again held that
where the opportunity to be heard, either
through verbal arguments or pleadings, is
accorded, and the party can "present its side"
or defend its "interest in due course," there is
no denial of due process. What the law
proscribes is the lack of opportunity to be
heard. Petitioners had the opportunity to
present their case and claim the relief they
seek. But their inadvertence and lack of
circumspect renders the trial court’s order
dismissing their case final and executory.
Dismissal of counterclaim
SEC. 4. Dismissal of counterclaim, cross-claim,
or third-party complaint.—The provisions of
this Rule shall apply. to the dismissal of any
counterclaim, cross-claim, or third-party
complaint. A voluntary dismissal by the
claimant by notice as in section 1 of this Rule,
shall be made before a responsive pleading or
a motion for summary judgment is served or, if
there is none, before the introduction of
evidence at the trial or hearing. (4n)

DEFAULT (Rule 9, Sec. 3)
Nature in general
A defending party shall be declared in default
when
(1) Ground: He fails to answer within the
time allowed therefor, the court shall,
(2) The claiming party files a motion to
declare the defending party in default,
furnishing proof of failure to answer
(3) Said party gives notice of such motion
to the defending party,
The court shall proceed to render judgment
granting the claimant such relief as his
pleading may warrant,
 unless the court in its discretion
requires the claimant to submit
evidence.
 Such reception of evidence may be
delegated to the clerk of court. (1a,
R18)
(a) Effect of order of default.—A party in
default shall be entitled to notice of
subsequent proceedings but NOT to take part
in the trial.
(b) Relief from order of default.—A party
declared in default may at any time after
notice thereof and before judgment file a
motion under oath to set aside the order of
default upon proper showing that his failure to
answer was due to fraud, accident, mistake or
excusable negligence and that he has a
meritorious defense. In such case, the order of
default may be set aside on such terms and
conditions as the judge may impose in the
interest of justice.
(c) Effect of partial default.—When a pleading
asserting a claim states a common cause of
action against several defending parties, some
of whom answer and the others fail to do so,
the court shall try the case against all upon the
answers thus filed and render judgment upon
the evidence presented.
(d) Extent of relief to be awarded.—A judgment
rendered against a party in default shall not
exceed the amount or be different in kind from
that prayed for nor award unliquidated
damages.
(e) Where no defaults allowed.—If the
defending party in an action for annulment or
declaration of nullity of marriage or for legal
separation fails to answer, the court shall order
the prosecuting attorney to investigate
whether or not a collusion between the parties
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER96
exists, and if there is no collusion, to intervene
for the State in order to see to it that the
evidence submitted is not fabricated. (Sec. 3,
Rule 9)
When may a defendant be declared in
default?
(1) Failure to file answer
(2) Failure to furnish copy of answer
(3) Failure to appear at pre-trial
(4) Failure to comply with modes of
discovery
When allowed
Effect
GAJUDO v. TRB
(2006)
No incompatibility bet. Section 3, Rule 9 of
the 1997 Rules of Civil Procedure and the
rule on preponderance of evidence under
Section 1, Rule 133 of the Rules of Court
FACTS: Ps filed a complaint before RTC of QC
against R seeking for annulment of the extra-
judicial foreclosure and auction sale made by
city sheriff of parcel of land covered by TCT
No. 16711 of the RD of QC the conventional
redemption thereof, and prayed for damages
and the issuance of a writ of preliminary
injunction.
Complaint alleged that: P Chua
obtained a loan from R bank in the amount of
P75k secured by a real estate mortgage over a
parcel of land, and owned in common by Ps.
the loan was not paid, R commenced extra-
judicial foreclosure, property was sold in the
auction sale to R for the sum of P24.9k Such
sale was tainted with irregularity because, the
bid price was shockingly or unconscionably,
low; that the other Ps (Gajudos) failed to
redeem the property due to their lack of
knowledge of their right of redemption, and
want of sufficient education; that Chua offered
to buy back, and R also agreed to sell back,
the foreclosed property, on the understanding
that Chua would pay Rthe amount of P40k, the
sum that the bank paid at the auction sale,
plus interest; that Chua made an initial
payment P4k,; that, in a sudden change of
position, R wrote Chua asking that he could
repurchase the property, but based on the
current market value thereof; R wrote Chua
requiring him to tender a new offer.
R filed its answer with counterclaim,
asserting that the foreclosure sale of the
mortgaged property was done in accordance
with law; and that the bid price was neither

unconscionable, nor shockingly low; that Ps
slept on their rights when they failed to
redeem the property within the one year
statutory period.
"Pre-trial having been concluded, the
parties entered upon trial, a big conflagration
hit the City Hall of QC (amazing!) which
destroyedthe records of the case. After the
records were reconstituted, the foreclosed
property was sold by R to the Ceroferr Realty
Corporation, and that the notice of lis pendens
annotated on the certificate of title had already
been cancelled. P with leave of court, amended
their complaint, but the Trial Court dismissed
the case ‘without prejudice’ due to P’s failure
to pay additional filing fees.
P re-filed the complaint with the same
Court, impleading as additional defendants the
Ceroferr Realty Corporation and additional
cause of action, that new defendants conspired
with R in canceling the notice of lis pendens.
Summons was served on R,P filed a
motion to set case for pre-trial, which motion
was denied by the TC in its Order of on the
ground that R bank has not yet filed its
answer. P filed a motion to declare R in default,
alleging that no answer has been filed despite
the service of summons. TC declared the
motion submitted for resolution upon
submission by Ps of proof of service of the
motion on R. Upon giving proof, R was
declared in default. P were allowed by the
Court allowed to present evidence ex parte. A
partial decision was made.
R filed a motion to set aside partial
decision by default and admit that their
Answer with counterclaim: averred that the
erroneous filing of said answer was due to an
honest mistake of the typist and inadvertence
of its counsel.Motion was denied.
Respondent bank appealed the Partial
Decision to the CA which ruled in favor of R.
ISSUE: Whether CA erred in failing to apply the
provisions of Section 3, Rule 9 of the 1997
Rules of Civil Procedure and in applying
instead the rule on preponderance of evidence
under Section 1, Rule 133 of the Rules of
Court.
NO. The Petition has no merit.
Ps argue that the quantum of evidence
for judgments flowing from a default order
under Section 3 of Rule 9 is not the same as
that provided for in Section 1 of Rule 133.
Between the two rules, there is no
incompatibility that would preclude the
application of either one of them. To begin
with, Section 3 of Rule 9 governs the
procedure which the trial court is directed to
take when a defendant fails to file an answer.
According to this provision, the court "shall
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER97
proceed to render judgment granting the
claimant such relief as his pleading may
warrant," subject to the court’s discretion on
whether to require the presentation of
evidence ex parte. The same provision also
sets down guidelines on the nature and extent
of the relief that may be granted. In particular,
the court’s judgment "shall not exceed the
amount or be different in kind from that
prayed for nor award unliquidated damages."
parties must rely on the strength of
their own evidence, not upon the weakness of
the defense offered by their opponent. This
principle holds true, especially when the latter
has had no opportunity to present evidence
because of a default order.
A defaulted defendant is not actually
thrown out of court. While in a sense it may be
said that by defaulting he leaves himself at the
mercy of the court, the rules see to it that any
judgment against him must be in accordance
with law. The evidence to support the
plaintiff’s cause is, of course, presented in his
absence, but the court is not supposed to
admit that which is basically incompetent.
Although the defendant would not be in a
position to object, elementary justice requires
that only legal evidence should be considered
against him. If the evidence presented should
not be sufficient to justify a judgment for the
plaintiff, the complaint must be dismissed. And
if an unfavorable judgment should be
justifiable, it cannot exceed in amount or be
different in kind from what is prayed for in the
complaint.
In sum, while petitioners were allowed
to present evidence ex parte under Section 3
of Rule 9, they were not excused from
establishing their claims for damages by the
required quantum of proof under Section 1 of
Rule 133. Stated differently, any advantage
they may have gained from the ex parte
presentation of evidence does not lower the
degree of proof required. Clearly then, there is
no incompatibility between the two rules.
VLASON ENTERPRISES v. CA
(310 SCRA 26, 1999)

(1) Where the counsel failed object on the
ground of lack of notice to a Motion
addressed to a former counsel, and was
granted by the trial court 30 days to file his
opposition to it, the circumstances clearly
justify a departure from the literal application
of the notice of hearing rule.
(2) The issuance of an order of default is a
condition sine qua non in order that a
judgment by default be clothed with validity.
Furthermore, it is a legal impossibility
to declare a party-defendant to be in default
before it was validly served summons.
FACTS: Seizure proceedings were held over the
cargo of Omega’s vessel, M/V Star Ace, while it
was docked in the PPA compound at La Union.
La Union was hit by 3 typhoons, which
damaged the vessel. Because of this, Omega
entered into a salvage agreement with
Duraproof Services to secure and repair the
vessel for $1 million and fifty percent (50%) of
the cargo after all expenses, cost and taxes.
The District Collector of Customs lifted
the warrant of seizure, but the Customs
Commissioner declined to issue a clearance;
instead, he forfeited the vessel and its cargo.
This prompted Duraproof to enforce its
preferred salvors lien by filing with the RTC a
petition for certiorari, prohibition and
mandamus assailing the actions of the
Customs Officers, and impleading PPA and Med
Line Philippines, Inc. as respondents.
Duraproof amended its petition to
include the former District Collector, and other
companies involved, including Vlason
Enterprises. In both Petitions, Duraproof failed
to allege anything pertaining to Vlason
Enterprises, or any prayer for relief against it.
Summonses for the amended Petition
were served. Duraproof moved several times
to declare the respondents it impleaded in
default. Out of those respondents, only the
following were declared by RTC in default: the
Singkong Trading Co., Commissioner Mison,
M/V Star Ace and Omega. Duraproof filed an
ex parte Motion to present evidence against
the defaulting respondents, which was
granted.
Duraproof alleged that Vlason
Enterprises, through constant intimidation and
harassment in utilizing the PPA Management of
La Union, caused Duraproof to incur heavy
overhead expenses, causing irreparable
damages of about P3 Million worth of ship
tackles, rigs, and appurtenances including
radar antennas and apparatuses, which were
taken surreptitiously by persons working for
Vlason Enterprises or its agents.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER98
The RTC ruled that in favor of
Duraproof and ordered Vlason to pay P3 Million
worth of damages. Duraproof and the other
companies entered into a compromise
agreement, except Vlason.
Duraproof moved for the execution of
judgment. The Motion was granted and a Writ
of Execution was issued.
Vlason Enterprises filed a Motion for
Reconsideration addressed to Duraproof’s
counsel, Atty. Concepcion, on the ground that
it was allegedly not impleaded as a defendant,
served summons or declared in default, and
hence Duraproof may not present evidence
against it in default. Duraproof opposed the
Motion, arguing that it was a mere scrap of
paper due to its defective notice of hearing.
Despite this Motion, the auction sale
was conducted. The trial court ordered the
deputy sheriffs to cease and desist from
implementing the Writ of Execution and from
levying on the personal property of the
defendants. The order was unheeded.
Duraproof filed with the CA a Petition
for Certiorari and Prohibition to nullify the
cease and desist orders of the trial court. CA
issued a TRO against the RTC order. Vlason
received from a notice to pay Duraproof P3
million. Not having any knowledge of the CA
case to which it was not impleaded, Vlason
filed with the RTC a Motion to Dismiss.
The sheriff levied Vlason Enterprises’
properties, so the latter filed a special
appearance before the CA, praying for the
lifting of the levy on its properties or,
alternatively, for a temporary restraining order
against their auction until its Motion for
Reconsideration was resolved by the trial
court.
RTC reversed its Decision, finding that
there never was issued an order of default
against Vlason Enterprises, so there could not
have been any valid default-judgment
rendered against it.
The CA allowed Duraproof to implead
Vlason in the CA case. Thereafter, the CA
rendered the assailed Decision, stating that
the decision of the RTC had become final and
executory, never having been disputed or
appealed to a higher court, and that the lower
court may now take appropriate action on the
urgent ex-parte motion for issuance of a writ of
execution. The CA clarified that there was no
need to serve summons anew on Vlason
Enterprises, since it had been served summons
when the second amended petition was filed;
and that Vlason Enterprisess Motion for
Reconsideration was defective and void,
because it contained no notice of hearing
addressed to the counsel of Duraproof in

violation of Rule 16, Section 4 of the Rules of
Court.
Vlason Enterprises filed (1) a Motion for
Clarification, praying for a declaration that the
trial court Decision against it was not valid;
and (2) a partial Motion for Reconsideration,
seeking to set aside the assailed Decision
insofar as the latter affected it.
The RTC issued a Writ of Possession by
virtue of which Duraproof took possession of
Vlason’s barge Lawin.
Hence, this Petition.
ISSUE: Whether the RTC default judgment was
binding on Vlason
NO. Vlason was never declared in
default. The trial court denied Motion of
Duraproof to declare all the defendants in
default, but it never acted on the latters
subsequent Motion to declare Vlason
Enterprises likewise.The RTC declared in
default only Atty. Eddie Tamondong, as well as
the other defendants Hon. Salvador Mison, M/V
Star Ace, Omega Sea Transport Co., Inc. of
Panama and Sinkong Trading Co., but despite
due notice to them, they failed to appear. Even
Duraproof cannot pinpoint which trial court
order held petitioner in default.
More important, the trial court
admitted that it never declared petitioner in
default. There could not have been any valid
default-judgment rendered against it. The
issuance of an order of default is a condition
sine qua non in order that a judgment by
default be clothed with validity.
Furthermore, it is a legal impossibility
to declare a party-defendant to be in default
before it was validly served summons.
Order of default
When some answer and others default
Extent of relief to be awarded
Where not allowed
Procedure after order of default
-render judgment
-hearing ex parte
Remedy from order of default
Motion to set aside
RAMNANI v. CA
(221 SCRA 582, 1993)
A satisfactory showing by the movant of
the existence of fraud, accident, mistake or
excusable neglect is an indispensable
requirement for the setting aside of a
judgment of default or order of default.
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER99
FACTS: The Dizons filed a case for a sum of
money against the Ramnanis’ failure to remit
the value of jewelry that the latter received
from the former on a consignment basis.
Josephine Ramnani submitted an
answer with counterclaim stating the fact that
it was the Dizons who owed them money.
Pre-Trial was set but the Ramnanis did
not show up hence they were declared in
default. The court later received the evidence
of the Dizons ex parte due to the Ramnanis
status of default. Lower court ruled in favor of
the Dizons.
Ramnanis stated a meritorious defense
as an excuse to set aside their order of default.
They stated that the obligation was entered
into by Mrs Dizon without Mr. Dizon’s consent
ergo void. It was, however, denied.
A Petition for Certiorari was filed with
the CA imputing error despite their meritorious
defense. Denied since the CA ruled that
certiorari is a remedy only for errors of
jurisdiction, not errors in judgement.
ISSUE: Whether the order of default against
the petitioners should be set aside
NO. Remedies for a party held in
default:
1.) Anytime after discovery thereof & before
judgement: FAME +meritorious defense
2.) If judgment already rendered upon
discovery but before it becomes final and
executory: motion for new trial.
3.) After it becomes final and executory:
petition for relief under Section 2 of rule 8
4.) Appeal from judgment as contrary to the
evidence or to the law.
In the case at bar, the petitioner failed
to prove that they were unable to attend the
pre-trial hearing due to FAME.
Remedies from judgment by default
Before finally
Motion for reconsideration or new trial
Appeal
MARTINEZ v. REPUBLIC
(2006)
A defendant party declared in default
retains the right to appeal from the
judgment by default on the ground that
the plaintiff failed to prove the material
allegations of the complaint, or that the
decision is contrary to law, even without
need of the prior filing of a motion to set
aside the order of default.

FACTS: Jose R. Martinez filed a petition for the
registration in his name of three (3) parcels of
land he allegedly purchased from his uncle. He
claimed continuous possession of the lots; that
the lots had remained unencumbered; and that
they became private property through
prescription pursuant to Section 48(b) of CA
No. 141.
The OSG was furnished a copy of the
petition. The trial court set the case for hearing
and directed the publication of the
corresponding Notice of Hearing in the Official
Gazette. The OSG, in behalf of the Republic of
the Philippines, opposed the petition.
Despite the opposition filed by the
OSG, the RTC issued an order of general
default, even against the Republic of the
Philippines. This ensued when during the
hearing of even date, no party appeared
before the Court to oppose Martinez’s petition.
RTC received Martinez’s oral and
documentary evidence and concluded that
Martinez and his predecessors-in-interest had
been for over 100 years in possession
characterized as continuous, open, public, and
in the concept of an owner. The RTC thus
decreed the registration of the three (3) lots in
the name of Martinez.
From this Decision, the OSG filed a
Notice of Appeal, which was approved by the
RTC. However, after the records had been
transmitted to the CA, the RTC received a
letter from the LRA stating that only two of the
lots sought to be registered were referred to in
the Notice of Hearing published in the Official
Gazette, and that the third lot was omitted due
to the lack of an approved survey plan for that
property. LRA manifested that this lot should
not have been adjudicated to Martinez for lack
of jurisdiction. This letter was referred by the
RTC to the Court of Appeals for appropriate
action.
The CA reversed the RTC and ordered
the dismissal of the petition for registration. It
found the evidence presented by Martinez as
insufficient to support the registration of the
subject lots.
Martinez directly assailed the CA
decision before the SC, claiming that the OSG
no longer had personality to oppose the
petition, or appeal its allowance by the RTC,
following the order of general default.
ISSUE: Whether an order of general default
bars the Republic from interposing an appeal
from the trial court’s subsequent decision
NO. We hold that a defendant party
declared in default retains the right to appeal
from the judgment by default on the ground
that the plaintiff failed to prove the material
allegations of the complaint, or that the
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER100
decision is contrary to law, even without need
of the prior filing of a motion to set aside the
order of default.
By 1997, the doctrinal rule concerning
the remedies of a party declared in default had
evolved into a fairly comprehensive
restatement as offered in Lina v. Court of
Appeals:
a) The defendant in default may, at
any time after discovery thereof and
before judgment, file a motion, under
oath, to set aside the order of default
on the ground that his failure to
answer was due to fraud, accident,
mistake or excusable neglect, and that
he has meritorious defenses; (Sec 3,
Rule 18)
b) If the judgment has already been
rendered when the defendant
discovered the default, but before the
same has become final and executory,
he may file a motion for new trial
under Section 1(a) of Rule 37;
c) If the defendant discovered the
default after the judgment has become
final and executory, he may file a
petition for relief under Section 2 of
Rule 38; and
d) He may also appeal from the
judgment rendered against him as
contrary to the evidence or to the law,
even if no petition to set aside the
order of default has been presented by
him. (Sec. 2, Rule 41)
The fourth remedy, that of appeal, is anchored
on Section 2, Rule 41 of the 1964 Rules. Yet
even after that provision’s deletion under the
1997 Rules, the Court did not hesitate to
expressly rely again on the Lina doctrine,
including the pronouncement that a defaulted
defendant may appeal from the judgment
rendered against him.
Yet even if it were to assume the
doubtful proposition that this contested right of
appeal finds no anchor in the 1997 Rules, the
doctrine still exists, applying the principle of
stare decisis. Jurisprudence applying the 1997
Rules has continued to acknowledge the Lina
doctrine which embodies this right to appeal as
among the remedies of a defendant, and no
argument in this petition persuades the Court
to rule otherwise.
NOTE: The RTC appears to have issued the
order of general default simply on the premise
that no oppositor appeared before it on the
hearing. But it cannot be denied that the OSG
had already duly filed its Opposition to
Martinez’s petition long before the said
hearing. It was improper to declare the
oppositor in default simply because he failed to

appear on the day set for the initial healing.
Strangely, the OSG did not challenge the
propriety of the default order. It would thus be
improper for the Court to make a counsel withdrew his appearance. This Court is
pronouncement on the validity of the default
order since the same has not been put into
issue.
After finality
Petition for relief from judgment
Annulment of judgment
Is certiorari a proper remedy?
JAO v. CA
(251 SCRA 391, 1995)
The proper remedy of a party wrongly
declared in default is either to appeal from
the judgment by default or to file a petition
for relief from judgment, and not certiorari.
FACTS: Due to the non-appearance of the
petitioner Jao & Company, Inc., during the
hearing on the merits, the Regional Trial Court
of Manila, Branch 51 — upon motion of herein
private respondent Top Service, Inc. — issued
an order dated April 14, 1989 declaring said
petitioner in default and allowed evidence to
be presented ex-parte. The petitioner however
filed an answer. On May 26, 1989, the trial
court rendered a decision ordering Jao to pay
Top Service the agreed rentals with 12%
interest. A writ of preliminary injunction was
issued by the RTC. By virtue of such decision,
Top Service stated that Jao’s counsel had
withdrawn his appearance in the trial court and
left no forwarding address. No notice of the
said order of default and the decision could be
given it. The former contends that the latter’s
remedy was timely appeal, which the latter
failed to perfect.
ISSUE: Whether the decision of the trial court,
promulgated on May 26, 1989, became final
YES. Under ordinary
circumstances, the proper remedy of a
party wrongly declared in default is
either to appeal from the judgment by
default or to file a petition for relief from
judgment, and not certiorari. A default
judgment is an adjudication on the merits and
is, thus, appealable. Since appeal is the proper
remedy, the extraordinary writ of certiorari will
not lie.
Petitioner contends that it could not be
bound by the questioned Order of April 14,
1989 declaring it in default and the
subsequent Decision of May 20, 1989 because
it did not receive copies thereof. Respondents
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER101
counter that such non-service was due to
petitioner's fault in not furnishing the trial
court with its "forwarding address" after its
not in a position to settle this issue of fact — as
indeed the Supreme Court does not decide
such questions.
But it is not disputed that after receipt
of the decision, petitioner filed a motion for
reconsideration. Thus, whatever defects — if
indeed there was any — may have been
committed by the trial court in failing to give
constructive notice of its erroneous default
order was cured by petitioner's voluntary filing
of the said motion for reconsideration. Upon
denial thereof, petitioner should have
appealed. But instead of doing that, it opted
for the wrong remedy of certior
INDIANA AEROSPACE UNIVERSITY v. CHED
(356 SCRA 367, 2001)
The remedies available to a defendant
VALIDLY declared in default are as follows:
(1) a motion to set aside the order of
default under Section 3(b), Rule 9 of the
Rules of Court, if the default was discovered
before judgment could be rendered; (2) a
motion for new trial under Section 1(a) of
Rule 37, if the default was discovered after
judgment but while appeal is still available;
(3) a petition for relief under Rule 38, if
judgment has become final and executory;
and (4) an appeal from the judgment under
Section 1, Rule 41, even if no petition to set
aside the order of default has been resorted
to.
FACTS: In 1996, the Chairman of the Technical
Panel for Engineering, Architecture, and
Maritime Education (TPRAM) of CHED, received
a letter from Douglas Macias –Chairman of the
Board of Aeronautical Engineering, PRC
inquiring whether petitioner Indiana Aerospace
University had already acquired university
status in view of their representation in the
advertisement in the Manila Bulletin.
After investigation, it was found that
there was a violation committed by the IAU
when it used the term “university” when it had
not yet complied with the basic requirement of
being a university as prescribed in CHED
Memoradum. Respondent CHED inquired from
the SEC as to the status of the registered
name of petitioner and it was affirmed that IAU
(registered as Indiana School of Aeronautics,
Inc.) had not amended its Articles of
Incorporation to change its name to a
“university.” CHED ordered IAU to desist from

using the word “university.” IAU through its
chairman and founder appealed to the Order of
CHED averring that the school will encounter
difficulties and suffer damages if it will not be
allowed to use the word “university” in its
school name.
Prior to the court decision granting the
Cease and Desist Order filed by CHED,
petitioner IAU filed Complaint for Damages
before the Court. Respondent CHED then filed
a Special Appearance with Motion to Dismiss
the Complaint for damages. Petitioner IAU filed
Opposition to the Motion to Dismiss. The TC
Judge denied respondent CHED’s motion to
dismiss and issued a writ of preliminary
injunction in favor of IAU.
The TC Judge also directed CHED to file its
Answer to the decision within 15 days from the
receipt of the Court Order – which was August
15, 1998. On September 22, 1998, petitioner
IAU filed Motion to Declare Respondent in
Default pursuant to Section 9, Section 3 of
RROC. On the same day, respondent CHED
filed for Motion for Extension of Time to File its
Answer until November 18, 1998, but CHED
submitted its Answer however on November
17, 1998. On November 11, petitioner IAU filed
its Opposition to the Motion for Extension of
Time to File respondent’s Answer. Trial Judge
rendered its Decision and granted petitioner’s
motion to declare respondent CHED in Default.
Respondent CHED consequently filed
with the CA a petition for certiorari arguing
that the RTC had committed grave abuse of
discretion in declaring respondent CHED in
default despite its Filing of an Answer.
The CA ruled that respondent CHED
should NOT have been declared in default,
because its answer had been filed long before
the RTC ruled upon petitioner’s Motion to
declare respondent in default. Thus,
respondent had not obstinately refused to file
an Answer; on the contrary, its failure to do so
on time was due to excusable negligence. (an
express exception to being declared in default
under Rule 9, SecTion 3).
Thus, IAU instituted case at bar to appeal the
CA decision.
ISSUE: Whether respondent CHED should be
declared in default despite its filing of an
answer, and whether its failure to file answer
on time be excused on ground that it was due
to excusable negligence
NO. The SC agreed with respondent
CHED that certiorari was the only plain, speedy
and adequate remedy in the ordinary course of
law, because the default Order had
improvidently been issued.
The remedies available to a defendant
declared in default are as follows: (1) a motion
MENDEZ, IVAN VIKTOR (2D, ’13)
CIVIL PROCEDURE REVIEWER102
to set aside the order of default under Section
3(b), Rule 9 of the Rules of Court, if the default
was discovered before judgment could be
rendered; (2) a motion for new trial under
Section 1(a) of Rule 37, if the default was
discovered after judgment but while appeal is
still available; (3) a petition for relief under
Rule 38, if judgment has become final and
executory; and (4) an appeal from the
judgment under Section 1, Rule 41, even if no
petition to set aside the order of default has
been resorted to.
These remedies, however, are
available only to a defendant who has been
validly declared in default. Such defendant
irreparably loses the right to participate in the
trial. On the other hand, a defendant
improvidently declared in default may retain
and exercise such right after the order of
default and the subsequent judgment by
default are annulled, and the case remanded
to the court of origin. The former is limited to
the remedy set forth in section 2, paragraph 3
of Rule 41 of the pre 1997 Rules of Court, and
can therefore contest only the judgment by
default on the designated ground that it is
contrary to evidence or law. The latter,
however, has the following options: to resort
to this same remedy; to interpose a petition for
certiorari seeking the nullification of the order
of default, even before the promulgation of a
judgment by default; or in the event that
judgment has been rendered, to have such
order and judgment declared void.
In prohibiting appeals from
interlocutory orders, the law does not
intend to accord executory force to such
writs, particularly when the effect would
be to cause irreparable damage. If in the
course of trial, a judge proceeds without
or in excess of jurisdiction, this rule
prohibiting an appeal does not leave the
aggrieved party without any remedy. In a
case like this, a special civil action of
certiorari is the plain, speedy and
adequate remedy. (as such as what CHED
had done).
Herein respondent CHED
controverts the judgment by default, not
on the ground that it is unsubstantiated
by evidence or that it is contrary to law,
but on the ground that it is intrinsically
void for having been rendered pursuant
to a patently invalid order of default.