1. How should these Rules be referred to?

[1]

These rules shall be known and cited as the Rules of Court.

2. What do you understand by remedial law?[2]

Remedial law is that branch of law which provides for the

jurisdiction of courts and the rules concerning pleading,
practice and procedure before courts.

3. Distinguish substantive law from remedial law.[3]

Substantive law creates, defines and regulates rights and

duties regarding life, liberty or property which when violated
gives rise to a cause of action while Remedial law prescribes
the methods of enforcing those rights and obligations created
by substantive law by providing a procesural system for
obtaining redress for the invasion of rights and violations of
duties and by decided by courts.

4. On February 15, 1996, Roldan E. Mala purchased a 300-square-meter

parcel of land located in Poblacion, Parang, Maguindanao, now Shariff
Kabunsuan, from one Ceres Cañete. On March 3, 1996, Transfer
Certificate of Title No. T-15633 covering the parcel of land was issued in
Roldan’s name. At the time of the purchase, Vivencio B. Villagracia
occupied the parcel of land.
By 2002, Vivencio secured a Katibayan ng Orihinal na Titulo Blg. P-60192
issued by the Land Registration Authority allegedly covering the same
parcel of land.
On October 30, 2006, Roldan had the parcel of land surveyed. In a
report, Geodetic Engineer Dennis P. Dacup found that Vivencio occupied
the parcel of land covered by Roldan’s certificate of title.
To settle his conflicting claim with Vivencio, Roldan initiated barangay
conciliation proceedings before the Office of the Barangay Chairman of
Poblacion II, Parang, Shariff Kabunsuan. Failing to settle with Vivencio at
the barangay level, Roldan filed an action to recover the possession of the
parcel of land with respondent Fifth Shari’a District Court.
In his petition, Roldan alleged that he is a Filipino Muslim; that he is the
registered owner of the lot covered by Transfer Certificate of Title No.
15633; and that Vivencio occupied his property, depriving him of the
right to use, possess, and enjoy it. He prayed that respondent Fifth
Shari’a District Court order Vivencio to vacate his property. Does the
Sharih District Court have the jurisdiction over real actions where one of
the parties is a Muslim?[4] Explain.

No, Shari' a District Courtsu have no jurisdiction over real actions where one of the parties is
not a Muslim. All told, Shari’a District Courts have jurisdiction over a real action only when the
parties involved are Muslims.

5. An impeachable officer was a respondent in a preliminary proceeding

before the House of Representatives who found probable cause against
him. But before the House filed the Articles of Impeachment before the
Senate, the Republic filed a quo warranto case against said impeachable
officer. The officer maintained that he cannot be removed by quo
warranto because, being an impeachable officer, only the Senate acting
as an impeachment court can remove him. Is that contention correct? [5]
Explain.

6. Ramon was charged with the crime of violation of Section 5, Article II

of RA 9165, for selling one (1) gram of methampethamine hydrochloride.
He was set for arraignment this Friday. Yesterday, he filed a motion to
plea bargain the case from violation for Section 5 to Section 12 of RA
9165. The prosecution objected and invoked Section 23 of RA 9165 which
provides that “Any person charged under any provision of this Act
regardless of the impossible penalty shall not be allowed to avail of the
provision on plea bargaining.” The Court denied the motion. Was the
court correct?[6] Explain.

No, sec ra 9165 declared unconstitutional

7. Supmat was a subject of a buy-bust operation for violation of Section 5,

Article II of RA 9165. The operation was witnessed by a representative from the
Department of Justice, a media practitioner and an elected public official, who
did not sign the inventory. Photos were taken of the accused, the drugs valued
at P3m and the police operatives. Others present were not photographed.
Supmat was convicted. The CA affirmed the decision. Was the CA correct? [7]
Explain.
 No. The elective official must sign

8. May the Congress repeal, alter, or supplement rules

concerning pleading, practice, and procedure? Explain. [8]

No. The power of Congress under the 1933 and 1973

constitutions to repeal, alter, or supplement rules concerning
pleading, practice and procedure was taken away in the 1987
Constitution.

9. If your answer is in the negative, which has the power to

amend the Rules of Court.[9
The Supreme Court now has the power to amend the Rules of Court following the expansion of its
Rule making power in the 1987 Constitution.

10. Can the Supreme Court amend the rules of court by way
of its decision only and not through express amendment? [10]
Explain
Yes, the Supreme Court can also amend the Rules of Court by direct amendment and not only
through it’s decisions. The Court has “ the sole prerogative to amend, repeal, or even establish new rules
for a more simplified and inexpensive process, and the speedy disposition of cases” Neypes v. Court of
Appeals

11. What are the limitations on the rule-making power of the

Supreme Court?[11] Enumerate.
The following limitations are imposed by the Constitution on the rule-making power of the
Supreme Court:

a) The rules shall provide a simplified and inexpensive procedure for the speedy disposition of
cases.

b) The rules shall be uniform for all courts of the same grade, and

c) The rules shall not diminish, increase, or modify substantive rights.

12. Ger borrowed money from Kre. Ger failed to pay on the
designated date. Can the courts, on its own, call the parties to
settle their case amicably?[12] Explain.
 No, The courts on their own cannot call on the parties to settle their case amicably. In the absence
of a party going to court to invoke the rules and the jurisdiction of the court, the court even though
vested with jurisdiction cannot on its own initiative take cognizance of a case and settle claims between
the parties.

13. What is the reason behind your answer in the preceding

problem?[13]
In the preceding problem the courts cannot motu proprio call on the parties to settle their case
amicably. The law requires an action from a party in the form of a complaint in order for the court to
gain jurisdiction over the parties and the subject matter of the case.

14. What is a complaint?[14]

A concise statement of the ultimate fact constituting the plaintiffs cause or causes of action
with a specification of the relief sought, but it may add a general prayer for such further relief as may be
deemed just or equitable

15. What is the primary purpose of filing a complaint? [15]

Explain.

The filing of the complaint is the act of presenting said complaint to the clerk of court. It signifies the
commencement of the civil action

16. Distinguish a right of action from a cause of action. [16]

The term " right of action" is the right to commence and

maintain an action. In the law of pleadings, right of action is
distinguished from a cause of action in that the former is a
remedial right belonging to some persons while the latter is a
formal statement of the operational facts that give rise to such
remedial right. The former is a matter of right and depends on
the substantive law while the latter is a matter of statue and is
governed by the law of procedure. The right of action springs
from the cause of action but does not accrue until all the facts
which constitute the cause of action have accrued.
 Right of action is the legal right to sue while cause of
action is the facts which give rise to a right of action.

The cause of action is an act or omission by which a party violates the rights of another wherean
in Right of action is a remedial right or right to relief granted by law to a party to institute an action
against a person who committed a delict

17. How are actions or proceedings classified as to subject

matter?[17]
- Real action

- personal action

18. How actions are classified according to binding effects? [18]

The actions are classified as ff:
-Quasi In rem
- Action In Personam
-Action/proceeding in Rem

19. Distinguish real action from personal action.[19]

Real action is one which affects title to or possession of

real property or interest therein while a personal action is one
which does not affect title to or possession of real property or
interest therein.

20. Give examples of real actions.[20]

Examples are:
- Action to recover ownership or possession of land
- foreclosure of real estate mortgage
- partition
- ejectment
21. Give examples of personal actions.[21]

Examples are:
- action to recover ownership or possession of personal
property
 - action for specific performance
-action for collection of sum of money

22. Do you consider an action to recover deficiency after the

extrajudicial foreclosure of real property mortgage a personal
action?[22] Explain.

23. What is the importance or practical significance of

distinguishing between a real action and a personal action? [23]

The distinction is important for the purposes of

determining the venue of the action and the court having
subject matter jurisdiction thereof.

24. Where to file an action to recover a motorcycle the value

of which is P100,000?[24] Explain.

The Municipal Trial Court has an exclusive original jurisdiction over an actions involving personal
property whose value does not exceed P300,000.00 or, in Metro Manila P400,000.00

25. Define an action in rem.[25]

An action in rem or proceeding in rem is one which is not directed against a particular person
but on the thing or res itself and which asks the court to make a declaration of or to dispose of or deal
with res.

26. Do you consider a petition for correction of date of birth an

action in rem?[26] Explain.

27. Give examples of action or proceedings in rem.[27]

Examples of action or proceedings in rem are:

a. Application for original registration of a parcel of land

b. Special proceedings, the object of which is to establish the res, i.e., status, rigth,or particular fact
 c. Petition for declaration of insolvency

d. Escheat proceedings.

e. Petition for change of name under R103

28. What is an action in personam?[28]

An action in personam is one which is directed against particular persons and seeks a relief
which would be binding only upon such particular persons

29. What is an action quasi in rem?[29]

An action quasi in rem, is one which is directed against a particular persons but seeks to reach
and dispose of or deal with their property located in the Philippines. It is similar to ac action in rem in
that the purpose is to dispose of or deal with property (res) in the Philippines. However like an action in
personam, it is brougth against particular persons and the judgement therein is binding only upon the
parties thereto.

30. Give examples of actions quasi in rem.[30]

Examples of actions quasi in rem are action for partition, action for accounting, attachment,
judicial foreclosure of mortgage and action to quiet title and to remove cloud.

31. Is an action for ejectment an action quasi in rem or in

personam?[31]

An action for ejectment is an action in personam wherein judgment only binds parties who had
been properly impleaded and were given an opportunity to be heard.

32. Is an action to recover title to or possession of real property

an action in personam or an action quasi in rem?[32]

An action to recover, title to or possession of real property is an action in personam, brought

against the person upon whom the claim is made.
 33. What is the importance of distinguishing an action in
personam from an action in rem or quasi in rem?[33]

The distinction is important to determine whether or not jurisdiction over the person of the
defendant is required and consequently to determine the type of summons to be employed.

OR

Extraterritorial under S15 R14 may be effected in actions in rem or quasi in rem but not in action
in personam. On the other hand, S14 and S16 of R14 apply to any action, including actions in personam.

In preliminary attachment, the requirement of prior or contemporaneous service of summons

shall not apply where the action is in rem or in quasi in rem.

34. Define the term jurisdiction as to subject matter, personal

and over the res.[34]
Jurisdiction :

Subject -matter jurisdictiom isnthe authority and power of the court to hear and determine a
particular or specified class of case.

Personal jurisdiction is the power of the court to bind a party or person.

Jurisdiction over the res is the power of the corut to try a case which would bind real or personal
property or determine the status of a party.

35. Define the term jurisdiction as to subject matter, personal

and over the res.[35]

Jurisdiction :

Subject -matter jurisdictiom isnthe authority and power of the court to hear and determine a
particular or specified class of case.

Personal jurisdiction is the power of the court to bind a party or person.

Jurisdiction over the res is the power of the corut to try a case which would bind real or personal
property or determine the status of a party.

36. Classify jurisdiction.[36]

 Classification of Jurisdiction:

a. General jurisdiction

B. Special jurisdiction

C. Original jurisdiction

D. Appellate jurisdiction

E. Exclusive jurisdiction

F. Concurrent jurisdiction

37. What are the original and exclusive jurisdiction of the SC in

civil cases?[37]

The original and exclusive jurisdiction of the supreme court in civil cases are the petitions for
certiorari, prohibition or mandamus against the court of appeals, COMELEC, COA, CTA, Sandiganbayan.

38. What are the original concurrent jurisdiction of the SC with

the CA in civil cases?[38]

The original concurrent jurisdiction of the SC with the CA in civil cases are petitions for
certiorari, prohibition and mandamus againts the RTC, CSC, Central Board of Assessment Appeals, NLRC,
quasi-judicial agencies, and writ of Kalikasan, all subject to the docrine of hierarchy of courts.

39. SC’s original concurrent jurisdiction with the RTC’s in civil

cases.[39]
SC'S Original concurrent jurisdiction with CA and RTC IN CIVIL CASES are:

1. Petition for certiorari, prohibition or mandamus against courts of the first level and other
bodies:

2. Petition for habeas corpus and quo warranto

40. SC’s jurisdiction concurrent with RTC’s.[40]

 SC’s jurisdiction concurrent with the RTC is:

1. Action against ambassadors, other public ministers and consuls.

41. SC’s jurisdiction concurrent with the Sandiganbayan.[41]

1. Petition for certiorari , Prohibition, mandamus, habeas corpus , injunctions, and ancillary writs
in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto in PCGG
cases.

42. In what courts that the Rules of Court be applicable? [42

The Rules of Court be applicable in all courts except as otherwise provided in SC.

43. Carest and Erlinda were nurses of Tondo Medical Center. In

July of 1999, Carest availed of maternity leave when she
delivered her child. Erlinda circulated ennuendos that Carest’s
child did not belong to her husband. For this, Carest filed an
administrative complaint, for serious misconduct, against Erlinda
before the Office of the Ombudsman. Erlinda filed a motion to
dismiss arguing that the Ombudsman has no jurisdiction to
conduct an investigation of an act of a public officer which is not
service-connected. Notwithstanding Erlinda’s motion, the Office of
the Ombudsman rendered a decision finding Erlinda as charged
and ordered her suspension for seven months. Erlinda filed a
petition for certiorari before the Supreme Court arguing that the
Ombudsman has no jurisdiction to conduct an investigation of a
non-service connected act. a) Was Erlinda correct? b) Was she
correct also in elevating her case directly with the Supreme court
without first observing the heirarchy of courts? Explain very
briefly.[43]
a. No, Erlinda is not correct.The office of the Ombudsman has athe power to investigate and render
judgement to any public officer or employee including those in the government-owned or controlled
corporations, with an act or omission alleged to be illegal, unjust, improper or ineefficient is an
Ombudsman case.(Office of the Ombudsman , Administrative Order no. 8)

b. yes Erlinda was correct in alleviating her case directly to The Supreme Court. Under rule 45
section 1, a party desiring to appeal by certiorari froma judgement , final order or resolution of the Court
of Appeals, the Sandiganbayan, the Court of Tax Appeals. the regional Trial Court or other courts,
whenever authorized by law, may file with the Supreme Court a verified petition for the review on
certiorari.

44. What is the basis in determining the jurisdiction of the

court at the time of the filing of the case?[44] Explain.

The basis in determining the jurisdiction of the court at the time of the filling of the case are to
be determined from the material allegations of the complaint, the law in force at the time the
complaint is filed, and the character of the relief sought irrespective of whether plaintiff is entitled
to all or some of the claims averred. Jurisdiction is not affected by the pleas or the theories set up by
the defendant in an answer to the complaint or a motion to dismiss the same. Otherwise,
jurisdiction would be dependent almost entirely upon the whims of defendants. (AC Enterprise vs.
Frabelle Properties Corp. G.R. No. 166744. November 2, 2006, Callejo, J).
45. Which confers jurisdiction over the subject matter of the
case?[45] Explain.

the following confers jurisdiction over the subject matter of the case

A.Nature of the offense

b. Authority of the court to impose the penalty imposable given the allegation in the
information

c. Territorial jurisdiction of the court imposing the penalty

46. Distinguish jurisdiction over the subject matter from the

exercise of jurisdiction.[46] Explain.

47. Juliet invoking the provisions of the Rule on Violence

Against Women and their Children filed with the RTC designated
as a FamilyCourt a petition for issuance of a Temporary Protection
Order (TPO) against her husband, Romeo. The Family Court
issued a 30-day TPO against Romeo. A day before the
expiration of the TPO, Juliet filed a motion for extension.
 Romeo in his opposition raised, among others, the
constitutionality of R.A. 9262 (The VAWC Law) arguing that
the law authorizing the issuance of a TPO violates the equal
protection and due process clauses of the 1987 Constitution. The
Family Court judge, in granting the motion for extension of
the TPO, declined to rule on the constitutionality of R.A. No. 9262.
The Family Court judge reasoned that Famliy Courts are without
jurisdiction to pass upon constitutional issues, being a special
court of limited jurisdiction and R.A. No. 8369, the law creating the
Family Courts, does not provide for such jurisdiction. Is the
Family Court judge correct when he declined to resolve the
constitutionality of R.A. No. 9262?[47] Explain.
-No.

Family Courts have authority and jurisdiction to consider the constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as
Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997," family
courts have exclusive original jurisdiction to hear and decide cases of domestic violence against women
and children. In accordance with said law, the Supreme Court designated from among the branches of
the Regional Trial Courts at least one Family Court in each of several key cities identified. To achieve
harmony with the first mentioned law, Section 7 of R.A. 9262 now provides that Regional Trial Courts
designated as Family Courts shall have original and exclusive jurisdiction over cases of VAWC defined
under the latter law.

48. P filed an action for specific performance against S in order to

compel the latter to execute a deed of conveyance over a parcel of
land the assessed value of which was P10,000 before the Regional
Trial Court. D filed a motion to dismiss alleging that the action was
a real one even if was captioned as specific performance. If you
were he judge, will you grant the motion to dismiss?[48] Explain.
-Yes. Albeit the suit filed is one for specific performance, allegations and relief prayed for in
the complaint must be determined. Under these circumstances, the suit before the RTC is a real action,
affecting as it did title to the real property sought to be reconveyed.

49. May jurisdiction be conferred by waiver?[49] Explain.

- No. Jurisdictional issues, as a rule, cannot be acquired through a waiver or enlarged by the omission of
the parties or conferred by the acquiescence of the court. Also, jurisdiction over the subject matter in a
judicial proceeding is conferred by the sovereign authority which organizes the court; it is given only by
law and in the manner prescribed by law and an objection based on the lack of such jurisdiction cannot
be waived by the parties.

50. A filed an action for specific performance in order for B to

execute a deed of conveyance, the assessed value of the land was
P15,000. A filed the case with the RTC and trial ensued without B
challenging the jurisdiction of the RTC. The Court ruled in favor of
A. On appeal, B challenged the jurisdiction of the the RTC alleging
that under the principle of ultimate objective test, it is the MTC
which has jurisdiction over the case considering that the assessed
value is less than P20,000.00. Do yout think the contention of B will
prosper?[50] Explain.

- No. While it may appear that the suit filed is one for specific performance, hence an action incapable of
pecuniary estimation, a closer look at the allegations and reliefs prayed for in the Complaint, however,
shows that A did not merely seek the execution of the deed of sale in his favor. The cause of action
clearly springs from the right of A as purchaser of the subject land. Under these circumstances, the suit
before the RTC is a real action, affecting as it did title to the real property sought to be reconveyed. A
real action is one in which the plaintiff seeks the recovery of real property; or, as indicated in what is
now Section 1, Rule 4 of the Rules of Court, a real action is an action affecting title to or recovery of
possession of real property.

51. Give a situation of jurisdiction by estoppel. [51] Explain.

Rules of Court shall be applicable in actions civil or criminal , and special proceedings

52. S and D entered into a contract wherein the latter agreed to

sell to S his land, the assessed value of which was P15,000.00. D
failed to comply his promise hence S filed an action for specific
performance against D to compel the latter to execute a deed of
conveyance with the RTC considering that specific performance is
incapable of pecuniary estimation. D did not challenge the
jurisdiction but insisted that he did not promise to sell his land and
that the document purporting to be their agreement was fraudulent.
 Trial ensued after which the court decided to dismiss the case for
lack of jurisdiction. S appealed the decision and contended that
because S did not question the jurisdiction of the RTC, the issue of
lack of jurisdiction was already waived. (a) Did the RTC acquire
jurisdiction of the case?[52] Explain. (2) Assuming that the RTC did
not acquire jurisdiction, was it conferred by waiver on the part of S?
[53]
Explain.
No, unless otherwise provided by law. This is expressed in the familiar legal maxim lex prospicit, non
respicit, the law looks forward not backward. The rationale against retroactivity is easy to perceive. The
retroactive application of a law usually divests rights that have already become vested or impairs the
obligations of contract and hence, is unconstitutional.

53. In what cases that the Rules of Court be applicable? [54]

The rule does not apply where the statute itself expressly or by necessary implication provides that
pending actions are excepted from its operation, or where to apply it to pending proceedings would
impair vested rights. Under appropriate circumstances, courts may deny the retroactive application
of procedural laws in the event that to do so would not be feasible or would work injustice. Nor may
procedural laws be applied retroactively to pending actions if to do so would involve intricate
problems of due process or impair the independence of the courts.

54. Do the Rules of Court have a retroactive application? [55]

Explain.
Rules of Court does not apply to election cases, land registration , cadastral , naturalization and
insolvency proceedings and other cases not herein provided for.

55. While procedural rule may be made applicable to actions

pending and undetermined at the time of their passage and is
retroactive in that sence, in what instances that the rule does
not apply?[56] Enumerate.

56. In what cases that the Rules of Court is not applicable? [57]
Enumerate.

57. Are administrative bodies bound by the Rules of Court? [58]

Explain.
 58. The Comelec admitted the affidavit of the witness even if
the same was not identified during the hearing. Was the
Comelec correct?[59] Explain.

Yes.

59. The issue of the respondent’s appointment was not

disputed. He was charged with acts of lasciviousness
constituting serious misconduct. The Civil Service Commission
admitted in evidence the affidavit of the complainant although
the same was identified only ex-parte. Was the civil
commission correct?[60] Explain.

60. The Court of Appeals admitted in evidence the belated

certification of the Baragay captain that Oh Mi Ghod was not
actually residing in the barangay at the time of the latter’s
application for naturalization. Said certification, however, was
not offered in evidence in the trial court. Was the CA correct?
[61]
Explain.

Yes.

61. If these Rules is not applicable based in your answer in the

preceding questions, will there be situations where the Rules of
Court be made applicable in the cases you enumerated? [62]
Explain.

62. What is the scope of civil procedure in the Rules of Court. [63]

63. Define the following: (1) Civil action [64]; (2) Criminal
action[65]; (3)Special proceedings.[66]
1. Civil action. An action by which a party sues another for the enforcement or protection of a right, or
the prevention or redress of a wrong.

2. Criminal action. An action by which the State prosecutes a person for an act or omission punishable by
law.

3.Special proceeding is remedy by which a party seeks to establish a status, a right, or a particular fact.
(Sec. 3c, Rule 1)

64. What are the special civil actions?[67]

The following are the special civil actions as presently embodied in the Rules of Court:

a. Interpleader;

b. Declaratory relief and similar remedies;

c. Review of judgments and final orders or resolutions of the COMELEC and COA;

d. Certiorari, prohibition, and mandamus;

e. Quo warranto;

f. Expropriation;

g. Foreclosure of real estate and mortgage;

h. Partition;

i. Forcible entry and unlawful detainer; and

j. Contempt.

65. In what cases that the Rules of Court shall not be applicable?
[68]

. These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency
proceedings, and other cases not herein provided for, except by analogy or in a suppletory character
and whenever practicable and convenient. (Sec. 4, Rule 1)

66. When is a civil action commenced?[69]

 A civil action is commenced by the filing of the original complaint in court.

67. If an additional defendant is impleaded in a later pleading,

when shall the action is deemed commenced as far as he is
concerned?[70]

The action is deemed commenced with regard to him on

the date of filing of such later pleading, irrespective of whether
the motion for its admission, if necessary, is denied by the court.

68. How is the Rules of Court be construed?[71]

The Rules of Court shall be liberally construed in order to

promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding (S6R1).

69. Can a petition for judicial settlement of estate be

dismissed for failure of the petitioners to aver that earnest
efforts toward a compromise involving members of the same
family have been made prior to the filing of the petition? [72]
Explain.

No. In ordinary civil action

70. When is an action deemed commenced?[73]

A civil action is deemed commenced by the filling of the

original complaint in court. If an additional defendant is impleaded in a later pleading,
the action is commenced with regard to him on the date of the filing of such later pleading, irrespective
of whether the motion for its admission, if necessary, is denied by the court. (Sec. 5, Rule 1)

Aside from the filing, it is also necessary that the

requisite filing fees should have been paid.

71. May a complaint be filed by registered mail? If so, when it

is deemed commenced.[74]
Yes. It is deemed filed or commenced as to the date of mailing
(S3R13).

However if the requisite docket fee was actually paid, either

personally or by mailing, subsequent to the mailing of the
complaint, the date of such payment or mailing thereof shall be
considered as the date of the filling of the complaint.

72. A complaint filed for recovery of possession of real

property also prayed for moral and exemplary damages the
amounts of which have been left to the court’s discretion, and
for actual damages the amount of which shall be proven at the
trial. The docket fees for the action involving the real property
have been paid, but not those for the related damages, the
amount of which have not been specified;

(a) Did the trial court acquire jurisdiction over the action?[75]

Yes, the trial court acquired jurisdiction over the action.

The SC has held that where the docket fees for a real
action have been paid but the docket fees for related claims for
damages were not, the court nonetheless acquired jurisdiction
over the real action and may not dismiss the action for failure
to specify the amount of damages. What the court should do
is to merely expunge the claim for damages.

(b) May the action be dismissed?[76]

No, since the trial court acquire jurisdiction over real

action it may not dismiss the same. What the trial court should
simply do is to expunge the claim for moral and exemplary
damages which were not specified.
 2.(b) Is the rule on the payment of docket fees in ordinary civil
actions the same as that for the claim of damages which are
impliedly instituted in criminal cases?[77] (91 Bar Q5).

No the rule fornthe payment of docket fees for

damages is not the same as taht for criminal cases.
In criminal cases,docket fees for moral, exemplary,
temperate and nominal damages are required to be paid only if
the complaint or information filed with the trial court alleges
such damages.
73. What trial court outside Metro Manila has exclusive original
jurisdiction over the following cases? Explain briefly your
answers. (a) An action filed on November 13, 2017 to recover the
possession of an apartment unit being occupied by the defendant
by mere tolerance of the plaintiff, after the former ignored the
last demand to vacate that was duly served upon and received by
him on July 6,2016.[78] (b) A complaint in which the principal
relief sought is the enforcement of a seller's contractual right to
repurchase a lot with an assessed value of P15,000.00. [79]

74. Santa filed against Era in the RTC of Quezon City an action
for specific performance praying for the delivery of a parcel of
land subject of their contract of sale. Unknown to the parties, the
case was inadvertently raffled to an RTC designated as a special
commercial court. Later, the RTC rendered judgment adverse to
Era, who, upon realizing that the trial court was not a regular
RTC, approaches you and wants you to file a petition to have the
judgment annulled for lack of jurisdiction. What advice would you
give to Era? Explain your answer.[80]
The advice I would give to Era is that the petition for annulment of judgment on lack of jurisdiction will
not prosper. The Supreme Court has held that a special commmercial court is still a court of general
jurisdiction and can hear and try a non-commercial case. Hence the special commercial court had
jurisdiction to try and decide the action for specific performance and to render a judgment therein.
75. The respondent offered to buy a parcel of land from the
National Tobacco Administration. The deed of sale was signed by
Respondent and he paid the 20% downpayment but the
Petitioners, officers of the NTA, refused to implement the sale.
Respondent thus filed against the Petitioners a Petition for
Mandamus with Damages. In the body of the petition, the
amount of the moral and exemplary damages and the attorney’s
fees were mentioned but they were not mentioned at all in the
prayer. The Petitioners filed a motion to dismiss for failure to pay
the docket fees on the moral and exemplary damages and
attorney’s fees. The Respondent then filed an amended petition
specifying the amount of the damages and fees in the prayer and
also asking that the deed of sale executed by NTA in favor of
Stanford East Realty Corporation be declared void and a TCT in
favor of Petitioner be issued. The trial court, over the Petitioners’
objections, admitted the amended petition stating that the
Respondent had already paid the docketing fee. Did the trial court
act properly in admitting the amended petition?[81]
No. The trial court should have dismissed the petition pursuant to the ruling in Manchester
Development Corporation v. CA, 149 SCRA 562, which had been rendered as far back as 1987 and which
states that the amount of damages claimed should be specified in the body and in the prayer. It is
unfortunate that up to this date, this ruling has been ignored. The trial court had no power to admit the
amended petition since it had no jurisdiction over the original petition. What is more the amended
petition seeks to recover interest over real property at bottom and hence the Respondent should have
specified the assessed value, or if none, the estimated value thereof, to serve as a basis for the
computation of the docket fee. Evidently there was an intent to evade payment of the correct docket
fees. The amended petition should be expunged and the civil case dismissed.

76. P was a former record owner of 100 shares of stock in the

Manila Golf Club. Upon his return from the U.S., he discovered
that the shares in his name were cancelled and new shares issued
in favor of the NSC. P filed an action against NSC and MGC to
compel the assignment of shares of stock in his favor. P paid the
docket fee for actions incapable of pecuniary estimation, which
was only about P600. After trial NSC filed a motion to dismiss on
the ground that P should have paid the docket fee based on the
value of the stocks sought to be recovered and since the proper
docket fees were not paid, the trial court therefore did not
acquire jurisdiction. (a) Were the proper docket fees paid? [82]
Explain. (b) Should the motion to dismiss filed by NSC be
granted?[83] Explain.
A.. No. An action to compel the assignment of shares of stocks is an action for recovery of personal
property rather than one incapable of pecuniary estimation. The docket fees should have been assessed
on the value of the stocks sought to be assigned to P.

b. No. The NSC was estopped from raising the defense of non-payment of the docket fee since it
participated in the trial. The deficiency docket fee shall be assessed as a lien on the judgment award.

77. Allan borrowed money from Bruno in the amount of

P300,000.00. Allan failed to pay hence Bruno caused Allan to
be summoned for barangay concialiation. On November 4,
2017 and in the barangay, they agreed that Allan will pay
Bruno the total amount of P350,000.00 to include the interest,
on November on or before January 30, 2018. Allan failed to
pay hence Bruno filed with the RTC of Ozamiz City an action for
sum of money. Allan moved to dismiss the case alleging that
the RTC has no jurisdiction because the subject of the action
resulted from a conciliation proceding hence it is the MTC
which has jurisdiction. Bruno countered that because the
amount of the claim is more than P300,000.00, it is the RTC
which has jurisdiction. Rule on the contention of the two (2)
sides.[84] Explain.

78. May the trial court allow the payment by installment of the
docket fee where the plaintiff pleads financial difficulty? [85]

Yes. Ths SC gave its imprimatur to a part-payment

scheme of the docket fee for a period of 2 years which was well
 within the prescriptive period. The judge in his discretion may
allow tjis part-payment of tje docket fee especially where tje
amount of the docket fee is large.

79. M et al., as human rights victims obtained a favorable

judgment against the estate of Pres. Marcos in the amount of
$1.9B. They filed a complaint with RTC for the enforcement of
such judgment which has become final and executory. The
Marcos Estate filed a motion to dismiss for non-payment of
docket fees which it argued should be based on the amount of
the judgment award sought to be enforced. M et al. countered
that an action to enforce a foreign judgment is incapable of
pecuniary estimation; hence the rate of Php 610 is sufficient.
Should the docket fees be computed based on the amount of
the judgment award sought to be enforced?[86]

S7 (a) R141 relied upon by the RTC judge covers only

money claims against an estate not based on a judgment.
Although the complaint may have been lodged against an
estate, the schedule of fees for cases incapabale of pecuniary
estimation does not apply to the case at bar. Nonetheless, for
purpose of classification under the governing procedural rule,
this foreign judgment may be subsumed under S7 (b) (3)
R141, or class of actioms not involving property.

80. In the proceedings for the settlement of the estate of Alice,

a contingent money claim for commission in the event of the
sale of properties of the estate was filed by Alan with the
probate court. The executrix moved for the dismissal of the
claim on the ground that the docket fee under S7(a) R141 was
not paid. The RTC dismissed the money claim. Was the
dismissal proper?[87]a

No. The trial court has jurisdiction to act on money claim even without payment if separate
docket fees because the probate court had already assumed jurisdictiom over the proceeding for
settlement ofbthe estate of the deceased. Non-payment if docket fee for a money claim is not a ground
for its dismissal. The probate court should just order the payment of the docket fees within a reasonable
time.

81. What are the instances when the docket fees need not be
paid at the commencement of the suit but may be considered
as a lien on the judgment award?[88]

The instances are :

A. If the damages or claims arose after the filing of

the complaint/initiatory pleading or if the court awards
damages not prayed for in the complaint.

B. Indigent litigation

C. Failure ofbthe adverse party to timely to raise

the issue of nonpayment of the docket fee.

D. Civil action instituted with the criminal action

where the moral, exemplary, nominal, and temperate damages
are not specified in the complaint or information.

E. Petition for writ of amparo shall be exempt from

the payment of docket and other lawful fees.

F. Indigent Petitioner fordata a writ of habeas data

exempt from payment of docket or other lawful fees.

82. The petition for change of name under R108 did not
implead the local civil registrar. However a copy of the petition
was furnished the local civil registrar. Judgment was rendered
granting the petition. On appeal the OSG contends that the
judgment was null and void since an indispensable party, the
local civil registrar, was not impleaded. May the judgment be
set aside?[89]
 Yes, the judgment may be set aside. As ruled, the
necessary consequence of the failure to implead the civil
registrar as an indispensable party and to give notice by
publication of the petition for correction of entry was to render
the proceeding of the trial court, so far as the correction of
entry was concerned, null and void for lack of jurisdiction both
as to party and as to the subject matter. (Republic v. CA, G.R.
No. 103695, Mar. 15, 1996). Along with the tenor of the
following jurisprudential doctrine, thus, said judgment may be
set aside.

83. What is the basis of an ordinary civil action?[90]

The cause of action.

84. What is a cause of action?[91]

Cause of action is the act or omission by which a party

violates a right of another. The facts which give rise to a right
of action.

A cause of action implies that there is some person in

existence who can bring suit and also a person who can
lawfully be sued.

85. What is a right of action?[92]

Right of action is the remedial right or right to relief

granted by law to a party to institute an action against a
person who has violated his right : the legal right to sue.

86. Is a party allowed to institute in more than one suit for a

single cause of action?[93] Explain.

A party may not institute more than one suit for a single
cause of action.
 87. What is the effect if the plaintiff splits his cause of action
into two (2) or more?[94] Explain.
The rule against splitting a cause of action and its effect is that if two or more suits are instituted on the
basis of the same cause of action, the filing of one or a judgment on the merits in any one is available as
a ground for the dismissal of the others.

88. Nora was indebted to Vilma evidenced by four (4) promisory

notes which became due on March 1, April 2, May 3 and June 4.
Vilma, to minimize the docket fee, filed an action for collection for
the promissory note dated March 1 only. The court decided the
case in Vilma’s favor. Yesterday, when he has already the money
to pay for the higher docket fee, filed another collection case
against Nora for the remaining three (3) promissory notes. If you
were the counsel of Nora, what will you do?[95] Explain.
If were the counsel of Nora, I will advise her to proceed with her collection case for the remaining three
promissory notes. It cannot be file for one single cause of action since the promissory notes may be
governed by different terms and conditions.

89. What is the importance of a cause of action?[96]

Every ordinary civil action must be based on a cause of action. Otherwise the complaint may be
dismissed for failure to state a cause of action or a judgment may be rendered against the plaintiff
for lack of cause of action.

Also a party may not institute more than one suit for a single cause of action. (S3 R2)

90. Define the following terms:(1) Right of action [97]; (2)

Relief[98]; (3) Remedy[99]; (4) Subject matter[100]
1. Right of Action the remedial right or right to relief granted by law to a party to instute an action
against a person who has violated his right; the legal right to sue.

( 2)Relief the redress or other measure which a plaintiff prays the court to order or adjudicate in his
favor.

(3)Remedy the form or type of action which the plaintiff may avail of in order to obtain relief from the
court.
(4) Subject matter the thing, act, contract, or property which is directly involved in the action,
concerning which the wrong has been done.

91. Illustrate the foregoing terms:

Plaintiff lent P500,000 to Defendant. The loan is secured by

a real estate mortgage executed by X in favor of the
Plaintiff. The Defendant failed to pay the loan on the due
date despite demand from Plaintiff.[101]

Cause of action : the defendant's non-payment of the

loan on due date.

Right of action: The substantive right on the part of the

Plaintiff to sue for redress.

Remedies: Action for collection of sum of money against

the Defendant. Action for foreclosure of the real estate
mortgage against the mortgagor X.

Relief : Payment ofnthe loan, foreclosure of the real

estate mortgage, and damages and interests under Article
2209, Civil Code.

Subject matter: The contract of loan between the

Plaintiff and the Defendant.

92. Distinguish a cause of action from a right of action. [102]

The term " right of action" is the right to commence

and maintain an action. In the law of pleadings, right of action
is distinguished from a cause of action in that the former is a
remedial right belonging to some persons while the latter is a
formal statement of the operational facts that give rise to such
remedial right. The former is a matter of right and depends on
the substantive law while the latter is a matter of statue and is
governed by the law of procedure. The right of action springs
from the cause of action but does not accrue until all the facts
which constitute the cause of action have accrued.

Right of action is the legal right to sue while cause of

action is the facts which give rise to a right of action.

93. May there be a cause of action without a corresponding

right of action?[103]

Yes. There may be a cause of action but with no right of

action if the latter is barred by prescription. For instance the
maker did not pay a promissory note, but no action was
brought within 10 years from the time the note became due
and demandable.

94. Is there a cause of action in proceedings for declaratory

relief?[104]

Yes because of the expanded concept of cause of actions

in proceeding for declaratory relief. The concept of cause of
actions in declaratory relief is not, as in ordinary civil action,
the wrong or delict by which the Plaintiff's rigths are violated,
but is extended to a mere denial, refusal or challenge raising at
least an uncertainty or insecurity which is injurious to plaintiff's
rigth. It is permitted on tbe theory that courts should be
allowed to act, not onlywhen harm is actually done and rights
jeopardized by physical wrongs or physical attavk upon
existing legal relation, but also when challenge, refusal,
dispute, or denial thereof is made amounting to a live
controversy.

95. What is meant by “splitting a cause of action”?[105]

It is when a party institutes more than one suit for a

single cause of action
96. What is the effect of splitting a cause of action?[106]

The filling of one is a ground for the dismissal of the others

(litis pendentia). A judgment upon the merits in any one is
available as a ground for the dismissal of the others (res
judicata).

97. SRBI mortgaged several parcels of land to Metrobank as

security for its loan. Then SRBI and Metrobank entered into a
credit line agreement with the same mortgaged properties as
collateral. SRBI defaulted and Metrobank filed an action for
extrajudicial foreclosure of the mortgage. Subsequently,
Metrobank filed an action for collection of money arising from
the export bill purchases under the credit line agreement.
Metrobank bought the properties at the foreclosure but the bid
price was below SRBI’s obligations. SRBI moved to dismiss the
action for collection on the ground that Metrobank is splitting
its cause of action. Should the motion to dismiss be granted?
[107]

Yes. Under Act 3135, the mortgage creditor in case of

insufficiency of the proceeds of the foreclosure sale is entitled
to claim the deficiency from the debtor. However the action
filed by Metrobank was not an action to recover the deficiency
but an action for collection or specific performance which was
barred by the election of the remedy of foreclosure. The same
should thus be dismissed without prejudice to Metrobank's
institution of an action for recovery of the deficiency.

98. Prince Chong entered into a lease contract with King Kong
over a commercial building where the former conducted his
hardware business. The lease contract stipulated, among
others, a monthly rental of P50,000.00 for a four (4)-year
period commencing on January 1, 2010. On January 1, 2013,
Prince Chong died. Kin Il Chong was appointed administrator of
the estate of Prince Chong, but the former failed to pay the
rentals for the months of January to June 2013 despite King
Kong’s written demands. Thus, on July 1, 2013, King Kong filed
with the Regional Trial Court (RTC) an action for rescission of
contract with damages and payment of accrued rentals as of
June 30, 2013. (A) Can Kin Il Chong move to dismiss the
complaint on the ground that the RTC is without jurisdiction
since the amount claimed is only P300,000.00? [108] Explain. (B)
If the rentals accrued during the lifetime of Prince Chong, and
King Kong also filed the complaint for sum of money during
that time, will the action be dismissible upon Prince Chong’s
death during the pendency of the case?[109] Explain.

99. P sued D for specific performance of a contract. The court

decided in favor of D and dismissed P’S complaint. After the
dismissal had become final, P sued D to have the same
contract reformed to make it conform to their true intent and
to recover upon the reformed contract. Is the second action
barred by res judicata?[110]

Yes. P only had one cause of action on the contract,

whether as written or as reformed, which he could have stated
in the alternative pursuant to S2 R8. P thus split a single cause
of action.

100. Petitioner filed with the CFI a complaint against the

Private Respondent in 1969 for quieting of title with damages,
wherein the former seeks to be declared the owner of the
subject land. In 1970, the private Respondent dispossessed
petitioners of the land in question and stayed there until
January 1978. The Private Respondent won in the CFI but the
 CA reversed and declared the Petitioner as the owner of the
subject land and ordered the Private Respondent to pay
Petitioner P100,000 as the latter’s share in the proceeds of the
sale of the copra from the coconuts harvested in the land. The
Decision became final and executor in February 1978. In the
same month, Petitioner filed a second case with the CFI
against Private Respondent seeking to recover from the latter
the incomes from the subject land from 1970 up to 1978 when
possession of the land was delivered to the Petitioner. Private
Respondent filed a motion to dismiss the second case on the
ground of res judicata. Should the second motion to dismiss be
granted?[111] Explain.

Yes. The Petitioner was splitting his cause of action when he file the second case for both the
first and the 2nd cases involve the same cause of action. The Petitioner would draw the distinction
between the land in dispute in the 1st case and the income from that land being claimed in the 2nd
case. But that is splitting hairs to split a cause if action. The subject-matter is essentially the same in
both cases as the income is only a consequence or accessory of the dispute property. It cannot be
said that there are two causes of action calling for twp separate cases. The claim for the income
from the land was incidental to, and should have been raised bt Petitioner in his earlier claim for
ownership of the land by filling a supplemental complaint.

101. Nasugatan sued Sagasa for injuries he suffered when

Sagasa drove his car recklessly and bumped into Nasugatan.
Sagasa confessed judgment and was adjudged to pay P5,000.00.
Nasugatan became blind because of the injuries he sustained in
the accident. He filed another suit against Sagasa, this time for
P100,000.00. May Sagasa plead the filing of the first complaint in
abatement of the second suit and contend that the judgment on
the merits in the first case constitutes a bar in the second? [112]
Explain.
Yes, Sagasa may plead that the judgment in the first case constitutes a bar in the second.

Under S4 R2, if two suits are instituted on the basis of the same cause of action, a judgement
upon the merits in any one is available as a ground for the dismissal of the other.
 Here the second suit involves the same cause of action: sagasa's reckless driving which violated
the rigth of Nasugatan. In other words Nasugatan's blindness resulted fromnthe same reckless act of
Sagasa. Hence the second suit is barred by the judgment in the first suit.

102. P filed with the RTC an accion reivindicatoria over a parcel

of rice land against D, alleging that the same was sold to him by
the rightful owner S and praying that he (P) be declared the
owner of the land and that D deliver possession to him. D filed an
answer in which he also counterclaimed for moral and exemplary
damages for the unwarranted filing of the suit by P. During the
pendency of the case, P disposed D of the subject land and
proceeded to harvest the rice. Judgment was rendered by the
RTC dismissing P’s suit. The judgment became final. P delivered
possession back to D. D then filed an action before the RTC
against P seeking to recover the value of the rice harvested by P.
P. filed a motion to dismiss on the ground of res judicata. Should
the motion to dismiss be granted?[113]

No. The claim for recovery of the harvested rice need

not be set up in the first case as such claim is not compulsory
having been acquired by D after serving his answer. Hence the
claim is not barred even if not set up in the first case. It couldI be
made subject of a separate case.

103. What are the rules governing joinder of causes of action?

[114]

A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he
may have against opposing party, subject to the following conditions:

a. The party joining the causes of action must comply with the rules on joinder of parties under S6 R3.

b. The joinder must not include special civil actions or actions governed by special rules;

c. If the causes of action are between the same parties but the cause of action pertain to different
venues or jurisdictions, the joinder may be allowed in the RTC provided one of the causes of action falls
within its jurisdiction and the venue lies therein; and
d. If the claims in all the causes of action are principally for recovery of money, the aggregate amount
claimed shall be the test of jurisdiction.

104. A is indebted to B in the amount of P500,000 which became

due on April 1, this year. A also mortgaged his lot to B which
became mature also on April 1. B filed an action for collection and
foreclosure of mortgage, in one suit, yesterday. Do you think the
action will prosper?[115] Explain.
No, the action will not prosper. Under the rules, an action for collection is an ordinary civil action
and cannot be joined with special civil actions, hence, the foreclosure of mortgage. They are separate
causes of action and each is the subject of a different transaction.

105. Is a misjoinder of causes of action a ground for the

dismissal of the action?[116] Explain.

No, misjoinder of causes of action is not a ground for

dismissal of an action. A misjoined cause of action may, on
motion of a party or on the initiative of the court, be severed
and proceeded with separately. (Sec. 6 Rule 2)

106. What is the totality rule?[117]

It is the rule under joinder of causes of action which states

that if the claims in all the causes of actionth are principally for
recover of money, the aggregate amount claimed shall be the
test of jurisdiction. (S5 (d) R2)

107. Lender extended to Borrower a PhP 100,000 loan covered

by a promissory note. Later, Borrower obtained another PhP
100,000 loan again covered by a promissory note. Still later,
Borrower obtained a PhP300,000 loan secured by a real
estate mortgage on his land valued at PhP 500,000.
Borrower defaulted on his payments when the loans
matured. Despite demand to pay the PhP 500,000 loan, Borrower
refused to pay. Lender, applying the Totality Rule, filed against
Borrower with the RTC of Manila, a collection suit for PhP
500,000. (A)Did Lender correctly apply the Totality Rule and
the Rule on Joinder of Causes of Action? Explain. [118]

108. At the trial, Borrower’s lawyer, while cross examining

Lender, successfully elicited an admission from the latter
that the two promissory notes have been paid. Thereafter,
Borrower’s lawyer filed a motion to dismiss the case on the
ground that as proven only PhP 300,000 was the amount due
to Lender and which claim is within the exclusive original
jurisdiction of the MTC. He further argued that lack of
jurisdiction over the subject matter can be raised at any stage
of the proceedings. Should the court dismiss the case? [119]
Explain.

109. Give the rule on joinder of parties.[120]

The rule on joinder of parties can be found under Section 6 Rule 3 of the Rules of Court and it states
that, “All persons in whom or against whom any right to relief in respect to or arising out of the same
transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative,
may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one
complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may
arise in the action; 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 connection with any proceedings in which he
may have no interest. (6n)”.

110. What is the meaning of “transaction” as used in S6 R3?[121]

Transaction as used in S6 R3 means whatever may be done by one person which affects
another's rights, and out of which a cause of action may arise, and the term "series of transactions"
is equivalent to "transactions connected with the same subject of the action. Hence "transaction" is
not limited to agreements or contracts but also includes acts, omissions, or facts out of which the
cause of action arises.

111. Peter, the owner of a parcel of land, files a complaint for

recovery of possession against 30 persons who each occupy a
separate and distinct portion of the land. Is the joinder of
defendants proper?[122] Explain.
 Yes. The action arises out of the same transaction, that is the occupancy by the defendants of
Peter's land. The SC has implicity held that the word "transactions" refers not only to a contract but to
an occurrence. Evidently there is a common question of law: whether or not the defendants have the
right to hold possession as against Peter.

112. P, a Manila resident, filed a complaint against D, a resident

of Iloilo City, in the RTC of Manila. The complaint joins 2 causes
of action: one for collection of P500,000 and the other for title to
real property in Iloilo City with an assessed value of P20,000,
both causes of action arising out of the same transaction between
the parties. Was there a proper joinder of causes of action? [123]

Yes. Where the causes of action are between the same parties bit pertain to different venues
or jurisdictions, the joinder nay be allowed in the RTC provided one of the causes of action falls
within the jurisdiction of the RTC and the venue lies therein (S5 (c)R2). Here the sum of money case
falls within the jurisdiction of the RTC of Manila and the venue lies therein.

113. P filed a complaint in the RTC of Manila. The complaint

joins 2 causes of action: one for collection of P350,000.00
against D and another for specific performance against E (D’s
friend) based on E’s undertaking that he will assign certain
shares of stock in favor of P if D defaults in the payment of the
loan. Assume that the joinder of D and E as defendants
complies with S6 R3. Was there a proper joinder of causes of
action?[124]

No, there was no proper joinder of causes of action.

While one of the causes of actionnot (the one

regarding specific performance which is incapable of pecuniary
estimation) falls within the RTC's jurisdiction, the other
(involving collection of P350,000) does not. Hence the latter
should be severed from the complaint.

The rule under S5 (c) R2 applies only "where the

causes of action are between the same parties." Here the
causes of action are not between the same parties since one
 cause of action is against D while another is against E. Hence
the joinder is not allowed because one cause of action falls
outside the RTC's jurisdiction.

114. Hanna, a resident of Manila, filed a complaint for the

partition of a large tract of land located in Oriental Mindoro.
She impleaded her two brothers John and Adrian as defendants
but did not implead Leica and Agatha, her two sisters who
were permanent residents of Australia. Arguing that there
could be no final determination of the case without impleading
all indispensable parties, John and Adrian moved to dismiss the
complaint. Does the trial court have a reason to deny the
motion?[125] Explain your answer.

115. P, a Manila resident, filed a complaint against D, a

resident of Iloilo City, in the RTC of Manila. The complaint joins
2 causes of action: one for collection of P300,000 and the other
for recovery of title to real property in Iloilo City with an
assessed value of P60,000, both causes of action arising out of
the same transaction between the parties.

(a).Was there a proper joinder of causes of action?[126]

No. While the real action falls within the jurisdiction of

the RTC of Manila the venue does not lie therein but in Iloilo
City. S5 (c)R2 uses the conjunctive "and". Hence there is a
misjoinder of causes of action.

(b). If you were the lawyer for D, what would you do?[127]

I would file a motion to dismiss on the ground of lack

of jurisdiction and lack of venue. Since there was no proper
joinder of causes of action, each cause of action would have to be
filed separately. The RTC has no jurisdiction over a claim not
exceeding P300,000 and the venue of the real action is misplaced
as it should have been filed in Iloilo City.

116. P lent P250,000 to D which remains unpaid despite

several demands by P. P also entered into a contract for
services with D. However D has breached a material provision
of the contract for services. P filed a complaint against D
before the MTC of Manila wherein he joins the cause of action
for collection and rescission. Should the joinder of causes of
action be allowed?[128]

No, the joinder of causes of action should not be allowed.

While the MTC has jurisdiction over the cause of action
involving collection, it has no jurisdiction over the cause of
action involving rescission which is incapable of pecuniary
estimation.
Hence the cause of action involvinh the rescission
should be severed.
Note that the provision allowing joinder of causes of
action which pertains to different jurisdictions under S5 (c) R2
applies only if the joinder is in the RTC.
117. Elise obtained a loan of P3 Million from Merchant Bank.
Aside from executing a promissory note in favor of Merchant
Bank, she executed a deed of real estate mortgage over her
house and lot as security for her obligation. The loan fell due
but remained unpaid; hence, Merchant Bank filed an action
against Elise to foreclose the real estate mortgage. A month
after, and while the foreclosure suit was pending, Merchant
Bank also filed an action to recover the principal sum of P3
Million against Elise based on the same promissory note
previously executed by the latter. In opposing the motion of
Elise to dismiss the second action on the ground of splitting of
a single cause of action, Merchant Bank argued that the ground
relied upon by Elise was devoid of any legal basis considering
that the two actions were based on separate contracts,
namely, the contract of loan evidenced by the promissory note,
and the deed of real estate mortgage. Is there a splitting of a
single cause of action?[129] Explain your answer.

118. P(lessor) files a complaint with the RTC wherein he joins

two causes of action: one against the lessee B to collect unpaid
rentals of P250,000 and the other against sub-lessee C to
collect damages on the leased premises amounting to
P200,000. C files a motion to drop him from the case on the
ground of mis-joinder. Should the court grant C’s motion?[130]

No. Since the right to relief arises from the same

transaction and there is a question of fact/law common to B
and C, the aggregate amount shall be the test of jurisdiction.
The total amount of P450,000 excess the RTC's jurisdiction
amonut of P400,000.

119. P is a dealer of tires in Baguio City. A bought P200,000

worth of tires from P. The same day B bought P200,000 worth
of tires from P. Both A and B did not pay P. P filed a case with
the RTC of Baguio City joining his causes of action against A for
collection of P200,000 and against B for collection of P200,000.
B filed a motion to dismiss the case on the ground of lack of
subject-matter jurisdiction. Should the motion to dismiss be
granted?[131] Explain.

120. D borrowed P250,000 from P. The loan remains unpaid

despite several demands from P. in another transaction, D
bought from P a jeep worth P250,000. Although the jeep had
been delivered to him, D did not pay P the purchase price
despite several demands. The loan and the sale are unrelated
to each other and do not have a common question of law or
fact. P filed a complaint against D before the RTC of Manila
wherein P joins the two causes of action. D filed a motion to
dismiss on the ground of lack of jurisdiction. D argues that
there is a misjoinder of causes of action since the two claims
for relief do not arise from the same transaction or series of
transactions and there is no common question of law of fact.
Should the motion to dismiss be granted?[132] Explain.

No, the motion to dismiss should not be granted.

The requirements under S6R3 applies only where

there is a joinder of plaintiffs or defendants. They do not apply
if there is only one plaintiff and defendant.

Here there is only one plaintiff and defendant. Hence

P may join his cause of action against D even if the claim for
relief is not in respect of or does not arise from the same
transaction or series of transactions and even if there is no
common question of law or fact.

121. P’s bus sideswiped a car owned by G. the cost of the

repair was P450,000. The insurer paid G P60,000 and so the
balance of P390,000 was shouldered by G. the insurer and G
filed a single complaint before the RTC of Makati against P
wherein the insurer claimed for P60,000 and G claimed for
P390,000. P filed an answer wherein he contends that the RTC
of Makati does not have jurisdiction since the separate claims
of the insurer and G fall below the jurisdictional amount and
joinder of causes of action was not proper. Does the RTC of
Makati have jurisdiction?[133] Explain.

Yes. The joinder of causes of action by the Plaintiffs was

proper sincebthe two causes of action arose from a single
transaction, that is, Petitioner's bus hitting the rear side of the
car and there is also a xommon question of fact: whether or
not the bus driver was negligent.

122. P is a resident of Iligan City, while R and M are residents

of Ozamis City. They are the co-owners of a parcel of
residential land located in Tangub City with an assessed value
of P200,000. P borrowed P200,000 from R which he promised
to pay on or before December 1, 2012. However, P failed to
pay his loan. P also rejected R and M’s proposal to partition the
property. R filed a complaint against P and M in the RTC of
Tangub City for the partition of the property. He also
incorporated in his complaint his action against P for the
collection of the latter’s P200,000 loan plus interest and
attorney’s fees. State with reasons whether it was proper for R
to join his causes of action in his complaint for partition against
P and M in the RTC of Tangub City.[134]

It was not proper for R to join his causes of action in his

complaint.

Under the Rules of Civil Procedure, the joinder shall

not include special civil actions.

Here one of the actions joined is for partition which is

a special civil action. Hence the joinder was improper.

Also the claim against Marvin for partition and the

collection claim against P did not comply with the rule on
joinder of parties since the claims did not arise from the same
transaction or series of transactions nor is there any common
question of law or fact.

123. R, a warehouseman, filed a complaint against V, X and Y

Corporations to compel them to interplead. He alleged therein
that the three corporations claimed title and right of possession
 over the goods deposited in his warehouse and that he was
uncertain which of them was entitled to the goods. After due
proceedings, judgment was rendered by the court declaring
that X was entitled to the goods. The decision became final and
executory. R filed a complaint against X for the payment of
P100,000 for storage charges and other advances for the
goods. X filed a motion to dismiss on the ground of res
judicata. X alleged that R should have incorporated in his
complaint for interpleader his claim for storage fees and
advances and that for his failure he was barred from
interposing his claim. R replied that he could not have claimed
storage fees and other advances in his complaint for
interpleader because he was not yet certain as to who was
liable therefore. Resolve the motion to dismiss. [135] Explain.

I would deny the motion to dismiss on the ground of res

judicata.

An interpleader suit is not based on a cause of action

since there is no act or omission by which the defendants
violated the right of the complainant. The complainant is
simply seeking to compel the defendants to interplead among
themselves. Hence the concepts of res judicata and splitting of
cause of action would find no application since the complaint is
not based on a cause of action.

X corporation's argument that R should have

incorporated in his complaint for interpleader his claim for
storage fees and advances is incorrect since joinder of causes
of action shall not include special civil actions like interpleader.

124. Who may be parties in a civil action?[136]

Only natural or juridical persons,entities or entitiesor

authorized by law may be parties in a civil action.
125. Who is a real party in interest?[137]
. Rule 3, Section 2 defines real party in interest as the party who stands to be benefited or injured by the
judgement in the suit or the party entitled to the avails of the suit.

126. Give examples of entities authorized by law to be parties in

a civil action.[138]
a) Estate of a deceased person

b)A registered labor union

c) An entity without juridical personality sued as a defendant.

127. What is the rule if the suit is instituted by a representative

party?[139] Explain.
Sec. 3 of Rule 3 emphasized the rule if the suit is instituted by a representative party, wherein it
states that “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 the tittle of the case and shall be deemed
to be the real party in interest”.

128. Who is a representative in an action?[140]

A representative may be a trustee of an express trust, a guardian, an executor or administrator,
or a party authorized by law or these Rules.

129. May an agent sue in his own name?[141] Explain.

Yes. 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.

130. The Tibanga Subdivision Homeowner’s Association (TSHA)

filed a suit against P seeking to compel her to provide an open
space for Tibanga Subdivision. The records are bereft of any
showing that TSHA is an association duly organized under
Philippine Law. P filed a motion to dismiss with the HLURB on the
ground of lack of legal personality of TSHA to sue. The HLURB
denied the motion to dismiss treating the action as a suit by all
the parties who signed and verified the complaint. Should the
HLURB have dismissed the complaint?[142] Explain.

131. If the plaintiff is not a natural person or an entity

authorized by law to be a party, what is the ground of the motion
to dismiss?[143] Explain.

That the plaintiff has no legal capacity to sue (S1 (d)R16)

132. In whose name must an action be prosecuted or defended?

[144]

Unless otherwise authorized by law or these Rules, every

action must be prosecuted or defended in the name of the real
party in interest.

133. What is the reason for the rule that every action must be
prosecuted or defended in the name of the real party in interest?
[145]

The reason for the rule is that if a person does not stand to
benefit or lose by the judgment, it would be a waste of time for
the court to try the case.

134. Strauss filed a complaint against Wagner for

cancellation of title. Wagner moved to dismiss the complaint
because Grieg, to whom he mortgaged the property as duly
annotated in the TCT, was not impleaded as defendant.(A) Should
the complaint be dismissed?[146]

No.

135. If the case should proceed to trial without Grieg being impleaded
as a party to the case, what is his remedy to protect his interest? [147]
136. Does the rule require that a civil action be prosecuted by
the real party in interest?[148] Explain.
No, what s2 r3 requires is that a civil action be prosecuted in the name of but not necessarily by the real
party in interest.

Hence, an action is allowed to be prosecuted or defended by a plrepresentative or someone acting in a

fiduciary capacity but the beneficiary shall be included in the title of the case Ang shall be seemed to be
the real party in interest.

137. Who is a real party in interest?[149]

a real party in interest is the party who stands to be benefited or injured by the judgement in the suit or
the party entitled to the avails of the suit.

138. If an action is prosecuted in the name of someone who is

not the real party in interest, what is the remedy of the
defendant?[150] Explain.
the defendant may file a motion to dismiss on the ground of failure to state a cause of action.

139. G drove the car of his father, P, and left it in the parking
area of the Known Inn where he was a guest. G entrusted the key
of the car to a security guard hired by the PR Company, the
owner/operator of the Known. E, pretending to be the brother of
G, got the key from the security guard and drove away with the
car. The car was never recovered. Later, P sued PR for the value
of the carnapped vehicle plus damages. PR sets up the defense
that P has no interest in the case, hence, has no cause of action,
as he was not the guest of the Inn but his son, G. is the defense
of PR tenable?[151] Explain.

the defense that P has no interest in the case is not tenable.

Under s5 r3 a real party in interest in the party who stands to be benefited by the judgement in the suit
or the party entitled to the avails of the suit.
Here p owns the car,thus it is clear that he stands to be benefited by the judgement or that he is entitled
to the avails otlf the suit.being the real party in interest,the objection that he has no cause of action will
not lie.

The argument that it was G not P was the guest of the inn is without merit the right of action of P is not
based on contract but on law, specifically art.1999 of the civil code which provides that the security
guard is liable for the vehicles which have been placed in the annexes of the inn on quasi-delict under
article 2179 of the civil code.

140. What is the exception to the rule that every action must be
prosecuted or defended in the name of the real party in interest?
[152]

An action is allowed to be prosecuted or defended by a

representative or someone acting in a fiduciary capacity
provided that the beneficiary shall be included in the title of the
case and shall be deemed to be the real party in interest.

141. Give examples of representative parties.[153]

Representative parties are:

1. Trustee of an express trust.
2. Guardian.
3. Executor or administrator.
4. Party authorized by law or the Rules of Court.

142. Water Builders, a construction company based in

Makati City, entered into a construction agreement with
Super Powers, Inc., an energy company based in Manila, for
the construction of a mini hydro-electric plant. Water Builders failed
to complete the project within the stipulated duration. Super
Powers cancelled the contract. Water Builders filed a request
for arbitration with the Construction Industry Arbitration
Commission (CIAC). After due proceedings, CIAC rendered
judgment in favour of Super Powers, Inc. ordering Water Builders
to pay the former P 10 million, the full amount of the down
payment paid, and P2 million by way of liquidated damages.
Dissatisfied with the CIAC's judgment, Water Builders, pursuant
 to the Special Rules of Court on Alternative Dispute Resolution
(ADR Rules) filed with the RTC of Pasay City a petition to vacate
the arbitral award. Super Powers, Inc., in its opposition, moved to
dismiss the petition, invoking the ADR Rules, on the ground of
improper venue as neither of the parties were doing business in
Pasay City. Should Water Builders' petition be dismissed?[154]
143. Give an example of a party authorized by law or the Rules
of Court to sue even if he is not the real party in interest. [155]
In execution, the court may authorize the judgement obligee to bring an action

against a person alleged to have property of the judgement obligor or to be indebted to

him, when such person claims an adverse interest in the property or denies the debt.

(S46 (R39; 1 FLORENZ D. REGALADO, REMEDIAL LAW COMPENDIUM 466 [7th rev. ed.,

3rd printing]). In this case the judgement obligee must include in the title the name of

the judgement obligor who is deemed to be the real party interest.

144. A complaint entitled “A as Attorney-in-fact for X, Plaintiff,

versus B, Defendant” was filed to recover a car in the possession
of B. A’s power of attorney expressly authorized him (A) to sue
for the recovery of the car. B files a motion to dismiss the
complaint for lack of capacity to sue. Decide the motion. [156]
Explain.
The motion to dismiss should be denied.

The ground of the motion to dismiss is erroneous. There is nothing in the problem to indicate
that A has no legal capacity to sue. The ground tha B may have been thinking of is failure to state a
cause of action on the argument that A as attorney-in-fact is not the real party in interest.

145. Give an exception to the rule requiring the joinder of the

beneficiary.[157]

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.
(S3R3)
146. What are the rules regarding spouses as parties to a suit?
[158]

Under the law, husband and wife shall sue or be sued jointly except where there is complete
separation of property or with regard to the exclusive property of each spouse.

147. Husband and wife lent money to defendant spouses A and

B. A and B did not pay the loan. Husband alone filed a suit to
collect the loan against A and B. A and B filed a motion to dismiss
on the ground that the wife was not impleaded as a co-plaintiff in
violation of S4R3. Should the motion to dismiss be granted? [159]
Explain.
No, the motion to dismiss should not be granted. In action to recover a sum of money, the failure to
join the other spouse is not a jurisdictional defect. The non-joinder of a spouse does not warrant
dismissal as it is merely a formal requirement which may be cured by amendment.

148. D(wife) and E (husband) were married in 1990. E works as

an employee in a private company abroad. In 1995, D (without
E’s knowledge) borrowed money from C to put up a drugstore the
income of which was intended to defray the household expenses.
The drugstore however incurred only losses and eventually went
under. C sues D and E to recover the debt. Should the absolute
community be liable?[160] Explain.
No. Under art. 94 (3) of FC, debts contracted by either spouse without the consent of the other
shall only be a liability of the absolute community to the extent that the family may have been
benefited. Actual benefit to the family must thus be proved. Here since the drugstore incurred only
losses, no benefit was acquired by the absolute community. It doesn't matter that the income of the
drugstore was intended to benefit the family. What matters is actual benefit.

149. Would your answer be the same if D was designated

administrator-spouse?[161] Explain.
No. In the case, the absolute community would be liable. The fact that the debt was contacted for
the benefit of the community ( even if no actual benefit resulted) would suffice to hold liable the
absolute community. (Art. 94 (2), FC)
150. The Philippine Blooming Corporation obtained a P50-million
loan from Ayala Investment. As security for the loan, the
Executive Vice-President of PBM, Alfredo Ching was the
designated administrator-spouse of the absolute community. PBM
defaulted on the loan so Ayala Investment sued PBM and Ching.
A final and executory judgment was rendered in favor of Ayala
Investment and it sought to levy on the conjugal properties of the
Spouses Ching. May the sheriff levy on the absolute community
properties?[162]
No. The sheriff may not levy on the absolute community properties.

Under art. 94 (2) of the FC, the absolute community of property shall be liable for debts
contracted during the marriage by the designated administrator-spouse for the benefit of the
community.

Here when the husband entered into a suretyship agreement to secure the debt of a third person,
he does not thereby contract a debt or obligation for the benefit of the community since the one
benefited bynthe loan was PBM not the absolute community. Hence tge absolute community of the
Spouses Ching is not liable for the debt of Ching and the sheriff may not levy upon the community
properties.

151. Would your answer be the same if it was proved by Ayala

Investment that because of the grant of the loan, the
employment of Ching in PBM would be prolonged, that the shares
in PBM of the Ching family would rise in value, and that Mr.
Ching’s prestige in PBM and his career therein would be
enhanced?[163]

Yes. The benefits contemplated under Art. 94 (2) of the FC must be one directly resulting from the
loan, not a mere by-product or spin-off of the loan itself.

152. Who is an indispensable Party?[164]

An indispensable party is a party-in-interest without whom no final determination may be had of
an action. (S7R3)

153. Who is a necessary party?[165]

 A necessary party is one who is not indispensable but who ought to be joined as a party to the
case if complete relief is to be accorded as to those already parties, or for a complete determination or
settlement of the claim subject of action.

154. Distinguish an indispensable party from a necessary party.

[166]

AS TO NECESSITY FOR FINAL DETERMINATION.

No final determination may be had of an actionof if an indispensable party is not impleaded,

while a final determination may be had of an action even if a necessary party is not impleaded.

AS TO EFFECT OF NOT IMPLEADING DESPITE COURT ORDER.

If an indispensable party is not impleaded by the plaintiff despite a court order, the court may
dismiss the case for failure to prosecute. (S3R17). On the other hand, the failure by the plaintiff to
implead a necessary party despite court order, will not result in the dismissal of the case but simply the
waiver of the plaintiff's claim against such necessary party. (S9R3)

155. What is the rule regarding an indispensable party?[167]

He shall be joined either as plaintiff or as defendant. (S7R3)

156. What is the result if an indispensable party is not impleaded

in a suit?[168]

The court cannot proceed without their presence.

However, the SC has characterized the failure to implied

an indispensable party as a curable error. Hence the court instead
of dismissing the case should order the plaintiff to amend his
complaint by impleading the indispensable party or allowing the
intervention of the indispensable party. These measures may be
taken wvwn after rendition of judgment.

It is submitted however that the amendment or

intervention is no longer available if there has already been entry
of judgment. In such case the judgment would be null and void.

157. In a declaratory relief proceeding, what is the effect of

the failure to include as defendant a party who would be
 adversely affected by the declaratory judgment of the court?
[169]

The non-joinder of.persons who claim any interest which may be affected by a declaratory judgment
is not jurisdictional defect as S2 R63 provides that said declaration shall not prejudice their interests.
Since the judgment in a declaratory relief case is merely declaratory and not executory, the rule on
compulsory joinder of indispensable parties does not apply.

158. What is the test for determining whether a party is an

indispensable party or not?[170]

If the party's interest would be directly affected or necessarily prejudiced by the judgment which
would be rendered in the case.

159. Give examples of indispensable parties.[171]

1. In a partition suit, all the co-owners are indispensable parties.

2. In an action for recovery of land against defendant, who is a tenant of a third-party who claims
ownership, the third-party is an indispensable party.party

3. In an action for rescission filed by a creditor to annul a fraudulent sale, the vendor is an
indispensable party.

4. In an action for annulment of title over a lot, the registered ownerbof the lot is an indispensable
party.

5. In a petition for cancellation or correction of entries in the civil registry, the local registrar is an
indispensable party.

160. D obtained a car loan from a car dealer evidenced by a

promissory note and secured by a chattel mortgage over the
car executed by D in favor of the car dealer. The note and the
chattel mortgage were assigned by the car dealer to BA
Finance. D defaulted in the payment of the loan. BA Finance
learned later on that the car was in the possession of F. BA
Finance filed an action for replevin against F to recover the car.
D was not impleaded. Is D an indispensable party?[172]
-Yes. In an for replevin filed by tge mortgagee to recover the mortgaged chattel in the possession of a
third person, the mortgagorbis an indispensable party even if the chattel is in the possession of a third
person.

In a chattel mortgage, since the mortgagee's right to possession is conditioned upon the fact of default,
the inclusionbof tge debtor or the mortgagor is necessary for a full and conclusive determination of the
case.

161. In the preceding problem, assume that BA Finance filed the

replevin action against D without impleading F. Is F an
indispensable party?[173]

- Yes. The judgment in the replevin case would directly affect the rights of F. An adverse possessor,
who is not the mortgagor, cannot just be deprived of his possession, let alone be bound by the
terms of the chattel mortgage contract, simply because the mortgagee brings up an action for
replevin.

162. Give examples of necessary parties.[174]

1. A joint obligor in a joint obligations.

2. A transferee pendente lite. (S19R3). The failure to implied or include the transfee pendente
lite would not affect the validity of the judgment.

3. In an action to foreclose a real estate mortgage, the junior mortgagees or lienholders are
necessary parties.

4. In a case of a co-owned property and one of the co-owners files an ejectment suit, the other
co-owners are necessary parties.

163. Quirino and Milagros are co-owners of a credit extended

to the spouses Carandang. Quirino sued the spouses
Carandang. The spouses Carandang filed a motion to dismiss
on the ground that an indispensable party, Milagros, was not
impleaded as a co-plaintiff. The Spouses Carandang contends
that a co-owner is an indispensable party. Should the motion
to dismiss be granted?[175]

No. The motion to dismiss should not be granted. In an action to recover co-owned property,
one co-owner alone may bring the action pursuant to Art. 487 of the NCC which provides that any
one of the co-owners may bring an action for ejectment. The SC stated that Art. 487 applies to
 actions to recover personal property. One co-owner may suffice to file the suit since it is presumed
to have been filed forthe benefit of all the co-owners. (Carandang v.heirs of de guzman, Gr no.
160347, 29 nov 2006)

Milagros is merely a necessary party. Moreover nonjoinder of party is not a ground for
dismissal.

164. D, E, and F are solidarily indebted to P for P90,000. P files

a collection case against D only. Are E and F indispensable
parties?[176]
No, E and F are not indispensable parties. In a solidary obligation, a creditor may sue all,
several, or just one of the solidary debtors.

165. In an action to foreclose a real estate mortgage, is the

junior mortgagee an indispensable party?[177]
No. A junior mortgage or encumbrancer is not an indispensable party, he is merely a necessary
party. The mortgage may be foreclose without impleading him and without prejudice to his equity if
redemption.

166. Is a solidary co-debtor a necessary party?[178]

No, because complete relief is available as to one co-debtor.

167. Is a joint debtor a necessary party?[179]

Yes, a creditor may sue one joint debtor for his share although necessarily that would not afford
complete relief to him.

168. D,E and F are jointly indebted to C in the amount of

P9,000,000. C files a collection suit against D for the amount of
P3,000,000. The complaint alleges that D, E and F are jointly
indebted to C but that C is only suing D in order to avoid
additional factual issues which would just prolong the trial. D
files a motion to dismiss on the ground that C did not implead
E and F.

(a) Should the motion to dismiss be granted?

 No, the motion to dismiss sgould not be granted. A joint
debtor is not an indispensable party but only a necessary
party. Besides non-inclusion of a party is not a ground for
dismissal of an action.

Assume that the motion to dismiss was not granted. The court
however ordered C to implead E and F.[180] Is the order of the
court proper?[181] Explain.
Yes. Under section 9, Rule 3, if the court finds the reason for the omission of the necessary party
unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person
may be obtained.

(b) Assume that C did not comply with the court order. May the
court dismiss the case? Assume that the court continued trying
the case despite C’s non-compliance with its order. The court
rendered judgment in favor of C against D for P3,000,000. The
judgment became final. Subsequently C filed a case against E for
collection of P3,000,000.[182]
No, the court may not order the dismissal of the case. Under Section 9, Rule 3, it is not
provided that the failure to comply with the court's order without justifiable cause shall be a ground for
dismissal; rather the pleader is deemed to have waived his claim against the necessary parties not
included.

c) If you were E’s counsel, what would you do?[183]

I would file a motion to dismiss on the ground that C's claim has been waived.

169. A passenger bus collided with a tricycle resulting in

damage to the tricycle and injuries to its driver. The Plaintiff
tricycle driver filed a case for damages against the bus owner
alone but did not implead the bus driver as defendant. Judgment
was rendered in favor of the plaintiff. The defendant bus owner
argues that the judgment was void for failure to implead the bus
driver as an indispensable party. Is the judgment void? [184]
Explain.
 No, the judgement is not void. In Cerezo v. Tuazon, the Supreme Court has held that the
liability of the bus owner and the driver is solidary since they are joint tort-feasor. The creditor may
proceed against all or just one of the solidary debtors. Where the obligation of the parties is solidary,
neither of the parties is indispensable and the other is not even a necessary party because complete
relief is available from either.

170. Fimarco mortgaged its heavy equipment to the DBP.

DBP assigned the mortgage to APT. Subsequently P filed a
suit against Filmarco for recovery of a parcel of land in
which the mortgaged equipment was located. A final and
executory judgment was rendered in favor of P. The APT
then filed an action to annul the judgment. It argued that it
was an indispensable party and should have been
impleaded in the suit filed by P against Filmarco. Should
the judgment be annulled?[185]
No, the judgment should not be annulled. The mere fact that the recovery of the land would
necessarily entail the removal of the equipment mortgaged to APT does not make the latter an
indispensable party. APT's rights can easily be resolved in a separate action it can file against Filmarco.

171. P filed an action with the RTC to nullify the TCT of A.

There was an existing registered mortgage over the TCT in
favor of Metrobank. The bank was however not impleaded
in the cancellation suit. The court rendered judgment
cancelling the TCT. The judgment became final and
executory. Can the bank file an action to annul the
judgment of the RTC? If so in what court should the bank
file the action?[186]

Yes. In a suit to nullify an existing TCT with an annonated REM, the mortgagee is an
indispensable party, since the mortgagee's rights over the property would no longer be known
and respected by third parties. The non-joinder of the mortgagee deprived the trial court of
jurisdiction to pass upon the controversy. (Metropolitan Bank & Trust Company v. Alejo,364
SCRA 813 (2001).

The bank should file the action with the Court of Appeals which has the original and exclusive
jurisdiction to annul judgments of the RTC.
 172. An impostor (Oliver 1) mortgaged the property of
Oliver 2 to Chinabank misrepresenting that she is the real
Oliver. Oliver 2 filed an action in the RTC against the bank
seeking to nullify the mortgage on the ground that she’s
the real Oliver. Oliver 2 did not implead Oliver 1.
Chinabank filed a motion to dismiss on the ground of non-
joinder of an indispensable party. The trial court denied the
motion to dismiss. Instead of filing an answer, Chinabank
filed a special civil action with the CA to set aside the
Judge’s order denying its motion to dismiss. Meanwhile for
failure of Chinabank to answer within the reglementary
period it was declared in default by the trial court and
Oliver 2 allowed to present evidence ex parte.

a. Did the trial court properly deny Chinabank’s motion

to dismiss?[187]
Yes. The SC held that Oliver 1 is not an indispensable party as tha case can
proceed to judgment so long as Oliver 2 can prove that she's the real Oliver. Further, a declaration of the
mortgage's nullity will not necessarily prejudice Oliver 1 as the bank still needs to initiate proceedings to
go after the mortgagor, who in turn can raise other defenses pertinent to the two of them. Hence it is
not S7 R3 requiring compulsory joinder of parties which applies but S11 R3, which provides that non-
joinder of parties is not a ground for dismissal.you

b. Did the trial court properly declare Chinabank in

default?[188]
Yes. The filing of a petition for certiorari under Rule 65 does not suspend the running of the
period within which a defendant should answer the complaint unless a temporary restraining order or
preliminary injunction was issued. ( China Bank v. Oliver, 390 SCRA 263 (2002).

173. P filed with the RTC an action to annul the issuance

of an OCT registered in the name of A (deceased). P did
not however implead the heirs of A. A judgment in favor of
P annulling the OCT was rendered by the RTC. The heirs of
A then filed with the RTC of Lapu-Lapu City an action to
annul the judgment nullifying the OCT.
 (a) In an action to annul an OCT issued in the name of the
registered owners, are the heirs of such registered owner
indispensable parties?[189]

Yes. The cancellation of the OCT would certainly strip them of their rights over the
property.

(b) Should the RTC grant the action to annul the

judgment?[190]

No. The action to annul the judgment should be filed with the CA which has jurisdiction over
such cases. (Nery v. Leyson, 339 SCRA 232 (2000).

174. What is the Rule if the husband and wife sue or be

[191]
sued? Explain.
Section 4, Rule 3 states that husband and wife shall sue or be sued jointly, except as provided by
law. This provision does not tell us much as it simply begs the question of what the law provides.

If one spouse is suing as plaintiff, the other spouse need not be joined even if the suit relates to
community or conjugal property. This is because the spouses are joint administrators of the community
or conjugal property (Articles 96 and 124, Family Code) and the bringing of a suit is but an act of
administration.

If a spouse is being sued, the other spouse should be joined if the suit could result in liability being
incurred by the absolute community or the conjugal property. If the suit would only result in the
separate liability of a spouse, the other spouse should not be joined. The liabilities of the absolute
community and the conjugal partnership are found in Articles 94 and 121 of the Family Code.

175. What is the Rule if a minor will sue or be sued? [192]

Explain.
Section 5, Rule 3 states that a minor or a person alleged to be incompetent, may sue or be sued
with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem.

176. Describe a joinder of parties.[193]

Joinder of parties - a procedural device that may be employed when there are various causes of
actions that accrue in favor of one or more plaintiffs against one or more defendants, i.e., there is a
plurality of parties. A joinder of parties requires that before parties can be joined under a single
complaint the right to relief must arise out of the same transaction or series of transactions and there
must be a common question of law or fact. A joinder of parties may or not be involved in a joinder of
causes of actions.

177. P files an action with the RTC of Las Pinas City,

Branch 170, to recover a parcel of land co-owned by D. P
however did not implead in his complaint E and F, the co-
owners of the land. The RTC rendered a judgment in favor
of P ordering the reconveyance of the land to P. No appeal
having been filed the judgment became final and executor
on 10 January 2004 and was entered in the book of entries
of judgment on the same day. E and F learned of the
judgment on 10 March 2004 and on 15 March 2004 they
filed a petition for relief from the judgment with Branch
170 of the Las Pinas RTC. P filed an answer seeking the
dismissal of the petition for relief.

a. If you were the judge, would you dismiss the petition

for relief?[194]
YES. The petition for relief cannot be availed of by E and F since they were not
parties to the RTC case. (S1R38)

b. If the dismissal of the petition for relief was proper,

what was the appropriate action that E and F should
have availed of and in what court should they have filed
the same?[195]
The appropriate action that E and F should have availed of should file an action for
the annulment of the RTC decision with the CA.(sec. 9 (2),BP 129) A decision rendered without an
indispensable party having been impleaded is a nullity.

178. Is the non-joinder of necessary or indispensable parties a

ground for a motion to dismiss?[196]
No. Non-joinder of necessary or indispensable parties is not a ground for a motion to dismiss.
Remedy of the opposing party is to move that the court order the plaintiff to implead the indispensable
party and if the other side fails to comply then to move to dismiss under sec. 3 rule 17. The court itself
may sua sponte direct the plaintiff to include the indispensable party. Failure to comply is a ground for
dismissal under S3 R17.

179. What is the Rule on the joinder of indispensable parties? [197]

Explain
The rule on misjoinder or non-joinder of parties does not comprehend whimsical and irrational
dropping or adding of parties in a complaint. What it really contemplates is erroneous or mistaken non
joinder and misjoinder of parties. No one is free to join anybody in a complaint in court only to drop him
unceremoniously later at the option of the plaintiff. The rule presupposes that the original inclusion had
been made in the honest conviction that it was proper and the subsequent dropping is requested
because it has turned out that such inclusion was a mistake. And this is the reason why the rule ordains
that the dropping is "on such terms as are just."

180. 7J, a service contractor, provided manpower

services of Lotte Philippines Inc. Pursuant to this, the
private respondents were assigned to provide janitorial,
maintenance, and utility services to Lotte. Lotte dispensed
with the services of private respondents. The private
respondents filed a labor case against Lotte and 7J. The
labor arbiter ruled that the private respondent’s employer
was 7J not Lotte. NLRC affirmed. The private respondents
filed a petition for certiorari with the CA against NLRC and
Lotte, insisting that Lotte is their employer but they did
implead 7J. CA ruled that Lotte was the employer not 7J
and held Lotte solidarily liable with 7J. May the CA’s
decision be set aside?[198]

Yes. 7J the service contractor is an indispensable

party. It is a party in interest because it will be affected by
the outcome of the case. The CA did not acquire
jurisdiction over 7J. No final ruling can be had without
impleading 7J.

181. Who is an unwilling co-plaintiff?[199]

An unwilling co-plaintiff is any party who should be joined as plaintiff but whose consent to
such joinder cannot be obtained.
 182. What is the remedy if there is an unwilling co-
[200]
plaintiff?
Under Sec.10 of Rule 3, the unwilling co-plaintiff (a) may be made a defendant, and (b) the
reason therefor shall be stated in the complaint.

183. Give examples of an unwilling co-plaintiff. [201]

Where an executor or administrator is unwilling or

refuses to bring a suit for the recovery of the property or
rights of the deceased, the heirs may bring the suit and
implead the executor or administrator as a co-defendant.

184. Whose option is it to implead the unwilling co-

plaintiff?[202]

The original plaintiff. He cannot be compelled on

the mereon representation of the defendant to implead
anyone.

185. Spouses H and W, during their lifetime, acquired a

parcel of land in 1985, located in Cogon, Lala, Lanao del
Norte, under PD 27, or the Agrarian Law at that time, and
subsequently an Emancipation Patent was issued to them
in the same year. H died in 1986 while W died in 1987. A,
B, C, D and E were the spouses’ surviving heirs. In 1989,
A, the eldest of the five siblings, mortgaged the land to F
but it was not redeemed. Subsequently, A executed a deed
of sale in favor of F, without the knowledge of the other
four siblings. The land has an assessed value of
P30,000.00. After learning of the sale, B and C agreed to
institute and action to recover ownership of the land but D
and E did not want to join with them.

(a) What will B and C first do before they file an action in

Court?[203] Explain.
 (a) Before filing an action in Court, they must first plead for non-joinder of indispensable
parties for D and E. Since the land is co-owned by all siblings as heirs, and A sold the property without
the knowledge of the four other siblings, this makes B, C, D and E indispensable parties to the recovery
of the land sold. However, since D and E does not want to join, B and C must plead for non-joinder, so
the court can either order their inclusion or consider their non-joinder as a waiver of the claim.

(b) Let us assume that they already complied the

requirements in accordance to your answer in question (a),
what will B and C do next?[204] Explain.
(b) B and C then file an action in Court, as co-owners, to recover ownership of the land
sold without their consent.

(c) Do you think the action of B and C to recover ownership

of the land from A and F will prosper considering that the
land was not yet partitioned by among the siblings? [205]
Explain.
(c) Yes. Recovering ownership of the land may prosper even without partition; the co-
ownership shall govern.

(d) What will B and C do as far as D and E who do not want

to be included in the suit?[206] Explain.
(d) D and E, have to be impleaded by B and C for being indispensable parties.

186. What is a class suit?[207]

A class suit is a suit brought by or defended by a representative member or members of a large
group of persons on behalf of all the members of the group.

187. What are the requisites of a class suit?[208]

The requisites of a class suit are:

a. Subject matter of the controversy is one of common or general interest to the members of a group;

b. The persons who are members of the group are so numerous that it is impracticable to join all as
parties;
 188. What shall the court do if it finds that the requisites
of a class suit have been met?[209]
The court shall appoint a number of the group which it finds sufficiently numerous and
representative as to fully protect the interests of all concerned to sue or defend for the benefit of the
group.

189. May a group member who was not appointed as a

representative intervene in the suit?[210]
. Yes. According to Rule 3, Sec. 12 of the Rules of Court, “any party in interest shall have a right
to intervene in protection of his individual interest.” Although a person was not appointed as a
representative, as long as he/she is a group member, he/she may intervene in the suit to protect his
individual interest.

190. N Magazine published an article titled “An island of

fear” which wrote all alleged abuses committed by
sugarcane plantation owners against their workers. The
sugarcane planters filed a class suit for libel and damages
against N. Was the filing of a class suit proper?[211] Explain.

No. Each sugarcane planter has a separate and distinct reputation in the
community; hence the subject matter of the controversy is not of common and general
interest. Otherwise put the interest must be in the "subject matter of the controversy" and
not merely in the legal question involved.

191. If a class suit is not proper, what is the recourse of

the defendant?[212] Explain.

The defendant can file a motion to dismiss on

the ground that the plaintiff has no legal capacity to sue.
The reason is that a class suit not being proper, the
plaintiff or plaintiffs has or have no right to sue for the
benefit of the class.

192. L, in Cebu, sold a quantity of rice for P20,000 to R in

Toledo, and shipped the rice through C Transportation. R
refused to pay L, claiming that the rice was never delivered
to him. C, on the other hand, claimed that it has delivered
the rice to R. whom should L sue?[213] Explain.

L Should sue both R and C transportation.

Under Sec. 13 Rule 3 of the ROC, 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 to relief
against the other.

Here L is uncertain as to who between R and C

transportation is liable to him. Hence he can sue both as
alternative defendants.

193. May a defendant whose name or identity is unknown

be sued?[214] Explain.

Yes. Whenever the identity or name of a defendant

is unknown, he may be sued as the unknown owner, heir,
devisee, or by such other designation as the case may
require. However when his identity or true name is
discovered, the pleading must be amended accordingly.

194. May an entity without juridical personality sue as a

plaintiff?[215] Explain.

No, under rule 3 sec. 1 only natural or juridical persons or

entities authorized by law may be parties in a civil action.

195. May an entity without juridical personality be sued as

a defendant?[216] Explain.
Yes, when it has entered into a transaction with the plaintiff.
 196. In the complaint, is it necessary to state the names of
the persons composing the entity?[217] Explain.

No, it is not necessary to state the names of the persons composing the entity. As
provided in Sec. Sec. 15, Rule 3 of Civil Procedure, they may be sued under the name by which
they are generally or commonly known. However in the answer of such defendant, the names
and addresses of the persons composing said entity must all be revealed.

197. What is the duty of a party’s counsel, in case of the

death of the party?[218] Explain.

If a party to a pending action dies, and the claim is not thereby extinguished, it shall be
the duty of the party’s counsel to inform the court within thirty (30) days after such death of
the fact thereof, and to give the name and address of his legal representative or
representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary
action.

198. When would the death of the party in a pending

action extinguish the claim?[219]
The general rule is that a person's rigths and obligations are transmissible upon his death
to his heirs.

However, where the rights and obligations of a party are intransmissible by law or by
stipulation or are purely personal, the party's death would result in the extinguishment of the claim.

199. P filed an action against D, who he alleges to be his

father, to claim the status of the legitimate child. During
the pendency of the case, P died. May the heirs of P be
substituted in the action?[220] Explain.
Yes. Under article 173 of the Family Code, the action to claim legitimacy already
commenced by the childt shall survive notwithstanding the death of either or both of the parties.

200. Does the duty under S16R3 apply to death of a

party in cases pending appeal?[221] Explain.
Yes (riviera filipinas v. Ca, gr 117355, 5 apr 02)
 201. What is the purpose of notifying or informing the
court of the death of a party?[222]
The purpose of notifying or informing the court of the death of a party so that, the court may
forthwith order the name legal representative or representatives of the deceased to appear and be
substituted for the deceased party within a period of thirty (30) days from notice.

202. Who is the legal representative of the deceased

[223]
party?

The executor or administrator appoimted by the probate court, or if none, the heirs ofbthe
deceased.

203. If a party becomes incompetent or incapacitated,

what will the court do?[224]
Under Sec.18 Rule 3 of the Revised Rules of Court 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.

204. In case of any transfer of interest, how the action

may proceed?[225] Explain.
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 to be substituted in
the action or joined with the original party as stated under Sec.19 Rule 1 of the Revised Rules of Court.

205. What if there is no executor of administrator

appointed by the probate court?[226] Explain.

The court has two options:

1. The court may simply allow the heirs of the deceased 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.

2. 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 and the
 latter shall immediately appear foe and in behalf of the
deceased as provided for in the fourth paragraph of S16R3.

CIVIL PROCEDURE AUGUST 3, 2019

What if no legal representative is named by the counsel for the deceased party, or if the
one so named shall fail to appear within the specified period? Explain.

If no legal representative is named by the counsel of the deceased party or if there is but fails
to appear within a specified period, the court may order the opposing party to procure the
appointment of an executor or administrator for the estate of the deceased and 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 cost. (Rule 3,
Sec.16 4th par.)

Ramon, claiming to be the President of PRRD Corporation, filed an action to collect the
sum of money from Samson. The only attachment to the Complaint is the promissory
note signed by Samson. If you were the counsel of Samson, and being a graduate of
Misamis University, what will you do to advance the interest of your client? Explain.

If I were the counsel of Samson, I would advise him to raise a timely disavowal under oath
with specificity as to the genuiness and due execution of the said actionable document and set
forth facts pertaining to such disavowal. (Rule 8, Sec.8)

L executed a will naming O as one of the devisees. Upon L’s death a petition for the
probate of his will was filed with the RTC. During the pendency of the probate
proceedings, O died intestate. The Q law firm entered its appearance as counsel for F,
who claimed to be one of the heirs of O and their representative. The probate court
allowed the appearance of the counsel and the substitution of O by F, who had been
designated by the other heirs as their representative in the probate court. E opposed
the appearance and the substitution on the ground that under Lawas v. CA, 143 SCRA
173 (1986), priority is given to the legal representative of the deceased, (i.e. the
executor or administrator, or in case where the heirs resort to an extrajudicial
settlement of the estate that the court may adopt the alternative of allowing the heirs
to be substituted for the deceased. Was the substitution of the deceased O by F proper?
Explain.

Yes. Under the rule, the heirs of the deceased may be allowed to be substituted for the
deceased without requiring the appointment of an executor or administrator. (Rule 3, Sec. 16
2nd par.)

Hence the pronouncement in Lawas that priority should be given to the deceased's legal
representative in substitution is no longer good case law.

P filed an action to recover possession and ownership of a parcel of land against D.

during the pendency of the case P died but substitution by his heirs was effected. The
trial court ruled in favor of P. D assert that the RTC’s decision was invalid for lack of
jurisdiction, since the heirs were not substituted for the deceased P. P’s heirs, however,
participated in the trial without being substituted. Was the trial court’s decision valid?
Explain.

Yes, in spite of the general rule provided under Rule 3, Sec .16, a formal substitution of heirs is
not necessary when they themselves voluntarily appear, participate in the case, and present
evidence in behalf of the deceased. Thus, when due process is not violated in consonance with
the Rule, such substitution in the case presented cannot affect the validity of a promulgated
decision.

P filed an action to recover possession of a parcel of land against D. during the

pendency of the case, D died. P advised the court of D’s death and filed a motion for
substitution but the court did not issue an order for the substation of D. The heirs
possessed the land. Judgment was rendered in favor of P. May P enforce the judgment
against the heirs?[5] Explain.

No, the right to due process of the heirs of D were violated when they were not given the
chance to defend their side in court. Hence, failure to substitute the heirs for the deceased
defendant deprived the court of jurisdiction to enforce its decision against them.

In the preceding problem, would your answer be the same if the heirs voluntarily
appeared in court and participated in the proceedings therein? [6] Explain.

No, my answer would not be the same. Voluntary appearance of the heirs and their
participation in the proceeding therein cured the defect of lack of substitution. After all the
heirs were now given their day in court.

P filed an action to recover possession of parcel of land against D. during the pendency
of the case, D died. D’s counsel failed to inform the court of D’s death. The heirs
possessed the land. Judgment was rendered in favor of P. May P enforce the judgment
against the heirs?[7] Explain.

Yes. In the case presented, D’s counsel failed to inform the court of his client’s death. Thus, it
may not be faulted for proceeding to render judgement without ordering his substitution. Its
judgement is thus valid and binding to D’s legal representatives, insofar as his interest in the
property subject of the action is concerned.

P filed an action for quieting of title with damages against D. during the pendency of
the case, a notice of hearing sent to D was returned with the notation “party-
deceased.” D’s counsel still acontinued to appear for D and did not inform the court of
D’s death. Judgment was rendered in favor of P ordering D to vacate the land and
return possession to P. The heirs of D, who are now in possession, contend that the
judgment was void since there was no substitution. Are they correct? [8] Explain.

No, the failure of the counsel to comply with his duty under the Rule on informing the court of
his client’s death and the non-substitution of such party will not invalidate the proceedings
and its judgement thereon if the action survives after the death of such party. The notation
“Party-Deceased” on the unserved notices could not be the “proper notice” contemplated by
 the Rule. Hence, the court was within its jurisdiction to proceed with the case without any
irregularities in its proceedings.

A filed a complaint for the recovery of ownership of land against B who was represented
by her counsel X. in the course of the trial, B died. However, X failed to notify the court
of B’s death. The court proceeded to hear the case and rendered judgment against B.
after judgment became final, a writ of execution was issued against C, who being B’s
sole heir, acquired the property. (1) If you were counsel of C, what course of action
would you take?[9] Explain. (2) Did the failure of X to inform the court of B’s death
constitute direct contempt?[10] Explain.

If I were the counsel of C, I would file a motion to set aside the writ of execution. The Supreme Court held
that failure to substitute the heirs for the deceased defendant deprived the court of jurisdiction to enforce its
decision for it violated their right to due process. (G.R. No. L-11567, 17 July 1958)

9.2 No. Direct contempt is misbehavior in the presence of or so near a court as to obstruct or
interrupt the proceedings before the same. This misbehavior would however amount to
indirect contempt as it was a misbehavior of an officer of the court in the performance of his
official duties. (Rule 71)

10. P filed an action for recovery of a parcel of land against D. the trial court
dismissed the case prompting P to appeal to the CA. Pending appeal, P died. The
lawyer of P gave notice to the CA of P’s death and moved for the suspension of the
period to file appellant’s brief pending the appointment of an administrator of P’s
estate in the probate proceedings. The CA denied the motion for suspension and
dismissed P’s appeal for failure to file the appellant’s brief. Was the CA correct? [11]
Explain.

No. The death of P extinguished the lawyer-client relationship and hence the lawyer had no
more authority to act in the case save to notify the court and give the names and addresses of
the legal representative. The CA should thus have suspended the period to file the appellant’s
brief until a legal representative was appointed and the order of substitution made.

11. What is the Rule in case a party becomes incompetent or incapacitated? [12]
Explain.

Under S18 R3 of the Rules of Court, in case 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.

12. What is the effect of a transfer of interest during the pendency of the litigation?
[13]
Explain.

The action may be continued by or against the original party, unless the court upon motion
directs the transferee to be substituted in the action or joined with the original party.

13. P filed with the RTC an action to collect a loan of P500,000 from D. P was able
to obtain a writ of attachment and attached a property of D. During the pendency
of the case, D died. (a) Should the case be dismissed? [14] Explain. (b) D was
substituted by his heir X. P won the case and no appeal was made by X may P
move for the execution of the judgment against X? [15] Explain. (c) P filed the
judgment as a money claim with the probate court. Does the writ of attachment
entitle P to preference over the other creditors in respect of the property attached?
[16]
Explain.

a.) No, the case should be allowed to continue until final judgment. S20 R3 provides that when
the action is for recovery of money arising from contract, express or implied, and the
defendant dies before the entry of final judgment, the action shall not be dismissed but shall
instead be allowed to continue until entry of final judgment. D should be substituted by his
legal representative or heir.

b.) No. Under S20 R3, the favorable judgment obtained by the plaintiff shall be enforced in the
manner especially provided in the Rules for prosecuting claims against teh estate of a
deceased person. P should file the judgment award in the proceedings for the settlement of
the estate of D as a money claim pursuant to R86.

C. Yes. The writ of attachment was not dissolved since the main action was not dismissed but
continues until final judgment. Hence, P is a preferred creditor over the property attached.

14. P filed with the RTC an action for recovery of possession of a parcel of land
against D. D died while the case was pending and was substituted by his heir X who
had succeeded D in the possession of the land. P won the case and no appeal was
made by X. May P move for the execution of the judgment against X? [17] Explain.

Yes, since this is not among the cases provided for in S5 R86 which have to be filed with the
probate court as a money claim. The judgment may be enforced against X since he had been
validly substituted for D.

15. P filed an action for tort against D who had negligently inflicted injuries upon P.
D died during the pendency of the case and was substituted by his heir X. judgment
was rendered in favor of P for P500,000. No appeal was filed by X. May P move for
the execution of the judgment against X? [18]Explain.

No. This is a judgment for money against the decedent and hence has to be filed with the
probate court pursuant to S5 R86 of the Rules of Court.

16. P filed a complaint for sum of money against D. during the pendency of the
case, D died. Intestate proceedings for the settlement of the D’s estate commenced
and notice to the estate’s creditors was given for them to file their claim within six
months from the first publication of the notice. A month thereafter, on P’s motion,
the administrator of D’s estate was substituted for D in the civil case for collection.
The court rendered judgment in favor of P and D’s administrator appealed. P filed a
contingent claim covering the judgment award in the probate court. At the time of
the filing of the contingent claim, the 6-month period for creditors to file their claim
had expired. In due course the judgment in favor of P was affirmed on appeal and
became final and thus P moved that the estate be ordered to pay P. The
administrator opposed the motion on the ground that the claim is time-barred since
the contingent claim was filed beyond the statute of non-claims. Is the claim of P
time-hypothesis barred?[19] Explain.

No. Where the deceased was substituted by the administrator in the civil action involving a
money claim, the estate is deemed to have notice of such claim. The substitution of the
deceased in the civil action by the administrator or the decedent's representative is generally
considered as equivalent to the presentation of the claim with the probate court. Under the
circumstances, the filing of the contingent claim ad abundantiorem cautelam by P was a mere
formality.

17. (a) P sued to recover an unpaid loan and was awarded P333,000 by the RTC of
Manila. D did not appeal within the period allowed by law. He died six days after the
lapse of the period. Forthwith, a petition for the settlement of his estate was
properly filed in the RTC of Pampanga where an inventory of his assets was filed
and correspondingly approved. Thereafter, P filed a motion for execution with the
Manila court, contending therein that the motion was legally justified because the
defendant died after the judgment in the Manila court had become final. Resolve
the motion.[20] (b) Under the same facts as (a), a writ of execution was issued by
the Manila RTC upon proper motion three days after the lapse of the period to
appeal. The corresponding levy on execution was duly effected on defendant’s
parcel of land worth P666,000 a day before the defendant died. Would it be proper,
on motion, to lift the levy on D’s property? [21] State the reasons for your answer.

a.) I would deny the motion for execution because under the Rules on SPecial Proceedings, a
judgment for money against the decedent must be filed with the probate court as a money
claim to be enforced in the manner provided for under RUle 86. Hence, judgment cannot be
enforced by execution.

b.) No, it wouldn't be proper to lift the levy on defendant's property. Under the Rules on Civil
Procedure,in case of the death of the judgment obligor after execution is actually levied upon
any of his property, the same may be sold for the satisfaction of the judgment obligation.

18. Spouses B and C were the owners of a residential and boarding house with a
market value of more than P300,000. Their total earnings were more than double
the minimum wage of an employee. When the city demolished their residence and
boarding house, B and C filed an action for damages with the RTC against the city.
They applied for exemption from the docket and legal fees as indigents. They are
disqualified to litigate as indigents since they have not met the salary and property
requirements under S19R141. May B and C still be exempted from paying the
docket and legal fees as pauper litigants even though they do not meet the
requirements under S19R141?[22] Explain.

Yes. B and C may still be exempted if they can prove that they have "no money or property
sufficient and available for food, shelter and basic necessities for themselves and their family"
as provided in Section 21 of Rule 3. If the applicant for exemption meets the salary and
property requirements under S19 R141, then the grant of exemption is mandatory. On the
other hand, where the applicant does not satisfy one or both requirements, then the applicant
 should not be denied outright. Instead, the court should apply the "indigency test" under S21
R3 and use its sound discretion in determining the merits of the application for exemption.

19. What is the Rule in case of death or separation of a party who is a public
officer?[23] Explain.

Section 17 Rule 3 of the Rules of Court provides that in case of death or separation of a party
who is a public officer, the action may be continued and maintained by or against his
successor if , within thirty [30) days after the successor takes office or such time as may be
granted by the court, it is satisfactorily shown to the court by any party that there is a
substantial need for continuing or maintaining it and that the successor adopts or continues or
threatens to adopt or continue the action of his predecessor. Before a substitution is made,
the party or officer to be affected, unless expressly assenting thereto, shall be given
reasonable notice of application therefore and accorded and opportunity to be heard.

20. What is the Rule when an action involves the validity of any treaty, law,
ordinance, executive order, presidential decree, rules or regulations? [24]Explain.

As provided under S22 R3 of the Rules of Court, when an action involving the validity of any
treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court, in
its discretion, may require the appearance of the Solicitor General who may be heard in
person or through a representative duly designated by him.

21. In 2001, The Municipality of X enacted an Ordinance prohibiting persons below

the age of 18 outside of their house from 8:00 in the evening to 4:00 in the
morning. J, a resident of one of the barangays of X was arrested while walking in
the street on September 4, 2016 and was prosecuted for violation of the Ordinance,
in the MTC of X. The judge of the MTC issued an Order which required the Office of
the Solicitor General to appear and be heard as regards the validity of the
Ordinance of X. Was the judge correct? [25] Explain.

22. Define venue.[26]

Venue refers to the possible or proper place or places for the trial of a suit, as among several
places where jurisdiction could be established.

23. What is the difference between jurisdiction and venue?[27]

Jurisdiction deals with the authority of a court to exercise judicial power while venue deals
with the place where that power should be exercised.

24. Is venue jurisdictional?[28]

In a civil case venue is not jurisdictional. However in a criminal cases it is.

25. Distinguish real action from personal action.[29]

A real action is an action affecting title to or possession of a real property or interest therein.
Any other action is a personal action.
26. What is the venue of real action?[30]

Real action shall be commenced and tried in the in the proper court which has jurisdiction
over the area wherein the real property involved, or a portion thereof, is situated.

27. What is the venue of personal actions?[31]

Personal actions may be commenced and tried where the plaintiff or any of the principal
plaintiffs resides or where defendant or any of the principal defendants resides at the election
of the plaintiff.

28. In what instances that the Rule on venue would not be applicable? [32]Explain.

Section 4. When Rule not applicable.- This Rule shall not apply.

a. In those cases where a specific rule or law provides otherwise; or

b. Where the parties have validly agreed in writing before the filing of action on the exclusive
venue thereof.

29. Gary who lived in Taguig borrowed P1 million from Rey who lived in Makati
under a contract of loan that fixed Makati as the venue of any action arising from
the contract. Gary had already paid the loan but Rey kept on sending him letters of
demand for some balance. Where is the venue of the action for harassment that
Gary wants to file against Rey?[33] (A) In Makati since the intent of the party is to
make it the venue of any action between them whether based on the contract or
not. (B) In Taguig or Makati at the option of Gary since it is a personal injury
action. (C) In Taguig since Rey received the letters of demand there. (D) In Makati
since it is the venue fixed in their contract.

30. For purposes of the Rule on venue, what is the residence of a corporation? [34]
Explain.

The residence of a corporation is its principal place of business, not it's branch office.

31. D, and American citizen, borrowed P500,000 from P, a Filipino citizen while
vacationing in the Philippines. D failed to pay. D went to the U.S. May P file a suit
against D?[35] Explain.

No. D is non-resident and he is not found in the Philippines. Nor he does the action affect P's
personal status or any property of D located in the Philippines. A Philippine court cannot
acquire jurisdiction over a non-resident defendant in an action In personam.

32. P filed an action with the RTC of Bulacan, where he resides, against M and F for
the dissolution of their partnership. The main asset of the partnership was a
fishpond located in Marinduque. M and F filed an answer in which they alleged that
the partnership had so far been unproductive and that this was the result of P’s
failure to contribute his share. They counterclaimed for damages. Consequently, the
court granted the intervention of Z, who alleged that they had bought the fishpond
and were now its owners. Z then filed a motion to dismiss upon the ground that
venue was improperly laid? (a) Should the motion to dismiss be granted? [36]
Explain. (b) If the action filed by P against M and F were a real action affecting title
over the fishpond, would your answer still be the same? [37]Explain.

a) No. The motion to dismiss should not be granted. This is a personal action and not a real
action, notwithstanding the fact that the main asset of the partnership was a real property.
The sale of the fishpond would merely be a neccessary incident to the liquidation of the
partnership. Hence the venue was properly laid.

b) Yes my answer would still be the same. The defendants had already waived the objection
against improper venue when they did not raise the same in the answer. The court having
legally acquired authority to hear and decide the case, it cannot be divested of the authority
by the intervenenors. An intervention cannot alter the nature of the action and the issues
joined by the original parties thereto.

33. P filed a complaint against the surety with the RTC of Manila. The surety then
filed a third-party complaint against X, who had executed an indemnity agreement
undertaking to indemnify the surety in case it becomes liable under the surety
bond. X filed a motion to dismiss the third party complaint on the ground of
improper venue. X pointed out that the indemnity agreement between the surety
and X contains a provision that any suit arising from the agreement shall be solely
and exclusively filed in Quezon City. Should the court dismiss the third party
complaint?[38]Explain.

No, a third-party complaint is ancillary to the main case thus a third party complaint has to
yield to the jurisdiction and venue of the main action.

34. P filed a complaint for annulment of contracts of loan with cancellation of Real
Estate Mortgage against D in Pasig, the place where P had its office. P alleged that
the contract of loan was without the knowledge of the corporation. D moved to
dismiss the complaint on the ground that the annulment of the REM is a real action,
since P sought to compel D to accept its payment and thus affecting title over the
property and free it from the encumbrance. Thus it should have been filed in
Quezon City, where the encumbered properties are located. Is a complaint for
cancellation of REM a real action?[39] Explain.

No, the instant action to annual a contract and it's accessory REM is a personal action.an
action and it's accessory rem is a personal action if the mortgagee has not foreclosed the
mortgage and the mortgagor is still in possession of the premises as his title to or possession
of the premises as his title to or possession of the property is not in dispute.

2nd answer given:

No. A complaint for the cancellation of REM is a personal action. The mortgagor is the owner
of the property mortgaged, thus no claim of ownership is involved. The action can be filed
 where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of
the principal defendants resides.

35. When is Rule 4 on venue of actions not applicable?[40]

In those cases where a specific rule or law provides otherwise.

Where the parties have validity agreed in Writing before the filling of the action on the exclusive venue
thereof.

36. Give examples of cases where a specific rule or law provides otherwise. [41]

1. Civil and criminal actions for libel shall be filed with the regional trial court having
jurisdiction over the place where the libelous article is printed and first published or where
any of the offended parties actually resides at the time oqf the commission of the offense.

2. Petitions for declaration of nullity and annulment of marriage shall be filled In the family
court of the province or city where the petitioner or respondent has been residing for at least
6months prior to the date filling. Or in case of non-resident respondent, where he may be
found in the Philippines, at the declaration of absolute nullity of void marriages and
annulment of voidable marriages

2nd answer given:

Examples of these cases are:

- a quo warranto proceeding commenced by the Solicitor General and filed in the RTC of
Manila, not in the CA or the SC.

-a petition for a continuing writ of mandamus shall be filed with the RTC exercising jurisdiction
over the territory where the actionable neglect or omission occurred, instead of the RTC other
than the CA or the SC.

-The civil as well as the criminal action for damages for written defamation shall be filed with
the RTC of the province or city where the libelous article is printed or first published or where
any of the parties actually reside at the time of the commission of the offense. If one of the
offended parties is a public officer holding office in the city of Manila, action shall be filed with
the RTC of Manila. If he does not hold office in Manila, then action shall be filed in the city or
province where he held office at the time of the commission of the offense. In case the
offended party is a private individual action shall be filed with the RTC of the city or province
where the party actually resides at the time of the commission of the offense or where the
libelous matter is printed or first published.
37. P applied for 6 cellular phone subscription with Piltel. P later filed with the RTC
of Iligan City a complaint for sum of money and damages against Piltel. The latter
moved to dismiss on the ground of improper venue, citing the common provision in
the subscription agreements which provides that: Venue of all suits arising from
this agreement shall be in the proper courts of Makati City. Subscriber expressly
waives any other venue. Should the motion to dismiss be granted? [42] Explain.

Yes , the exclusive venue provision was held valid by SC.SC distinguished this case from Sweet
Lines vs. Teves, in which the plaintiffs were virtually compelled to buy tickets from the sweet
lines otherwise they would be stranded in Bohol. Here, the plaintiff had unfettered freedom to
sign or not sign the subscription agreement.

2nd answer given:

No. The motion to dismiss should not be granted. Cellular phone subscriptions fall into the
category of contracts of adhesion. Such agreements as to venue will not be held valid if it
practically negates the action of the claimant. The convenience of the plaintiffs and his
witnesses and the promotion of the ends of justice weigh more than the venue stipulated in
the subscription agreement.

38. PB Com Filed a collection case against D before the RTC of Manila, PB Com’s
place of business, based on the Surety Agreement (SA) executed by D in relation to
a credit line PB Com extended to International Trading Company. However, in this
promissory note executed by ITC, it was expressly stipulated that the “venue” for
any legal action that may arise out of the said Promissory Note shall be Makati to
the exclusion of all other courts.” D moved to dismiss on the ground of improper
venue. Can PB Com file the collection case in Manila, where the Surety Agreement
is silent on the venue?[43]

No. PB Com cannot file the collection case in Manila. It must be filed in the venue stated in the
promissory note which is Makati to the exclusion of all other courts. The” complementary-
contracts –construed-together” rule applies. This rule provides that “various stipulations of a
contract shall be interpreted together, attributing to the doubtful ones that sense which may
result from all of them taken jointly.”

39. Respondent entered into a payroll agreement with the bank. The agreement
contained a venue stipulation which reads thus: “In case of litigation, venue shall
be in the proper trial courts of Manila for determination of any and all questions
arising here under.” A dispute arising from the payroll agreement between
Respondent and the bank ensued. Respondent filed an action for damages with the
RTC of Quezon City where he resides. The bank filed a motion to dismiss on the
ground of improper venue. Should the motion to dismiss be granted? [44]

No. The venue stipulation here is not exclusive but merely permissive for it does not contain
the words expressing the intent that Manila is an exclusive or solely. Hence the filling of the
case in Quezon city where the plaintiff resides is proper.

40. After working for 25 years in the Middle East, Evan returned to the Philippines
to retire in Manila, the place of his birth and childhood. Ten years before his
retirement, he bought for cash in his name a house and lot in Malate, Manila. Six
months after his return, he learned that his house and lot were the subject of
foreclosure proceedings commenced by ABC Bank on the basis of a promissory note
and a deed of real estate mortgage he had allegedly executed in favor of ABC Bank
five years earlier. Knowing that he was not in the country at the time the
promissory note and deed of mortgage were supposedly executed, Evan forthwith
initiated a complaint in the RTC of Manila praying that the subject documents be
declared null and void. ABC Bank filed.a motion to dismiss Evan's complaint on the
ground of improper venue on the basis of a stipulation in both documents
designating Quezon City as the exclusive venue in the event of litigation between
the parties arising out of the loan and mortgage. Should the motion to dismiss of
ABC Bank be granted?[45] Explain your answer.

No. The motion to dismiss of ABC Bank should not be granted. The action for nullification of
the Promissory Note and deed of Real estate Mortgage is a personal action. Under Rule 4 of
the ROC venue in these cases 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
which in this case is the RTC of Manila.

41. A and B, both residents of Kapatagan, Lanao del Norte, agreed that in the
event of violation of their agreement, the actions may be filed in the RTC of Ozamiz
considering that the value of the loan was P350,000.00. B violated the agreement.
A filed an action to collect in Ozamis RTC in accordance to their agreement. B filed
a motion to dismiss arguing that Ozamiz RTC is not the proper venue of the case.
A, in his opposition, cited their agreement. If you were the judge, will you grant the
motion of B?[46]Explain.

Yes. If I were the Judge, I will grant B for his motion to dismiss. S4 R4 states that where the
parties have validly agreed in writing before the filing of the action on the exclusive venue
thereof it shall be applied. Here, the facts only states that the parties only agreed that in case
of violation of the agreement it may be filed in the RTC of Ozamiz City. Clearly, the parties did
not put their agreement in writing and did not use the word that can express their intent that
Ozamiz City is an exclusive venue. Hence, the filing of the case in Kapatagan where the parties
resides is proper.

42. A and B, both residents of Ozamiz City, in their loan agreement, stipulated the
following: “In case of litigation hereunder, venue shall be in the City Court or RTC
of Iligan, as the case may be for determination of any and all questions arising
thereunder.” A violated the terms of the agreement. B sued A in Iligan City Court. A
filed a motion to dismiss alleging improper venue. If you were the judge, will you
dismiss the case?[47] Explain.

No. The venue stipulation here is not exclusive but merely permissive for it does not contain
the words expressing the intent that Iligan is an exclusive venue, like “exclusively” or “solely”.
Hence, the filing of the case in Ozamiz City where the plaintiff resides is proper.

43. When may the ground of improper venue be raised by the defendant? [48]
 In a motion to dismiss, or in an answer if no motion to dismiss was filed. The former rule,
which provides that “when improper venue is not objected to in a motion to dismiss it is
deemed waived”, was deleted in the 1997 Rules of Civil Procedure. Note also that in cases
governed by the Rule on Summary Procedure and in ejectment cases, a motion to dismiss is a
prohibited pleading.

44. May the trial court dismiss a complaint motu propio on the ground of improper
venue?[49]

No, since if the defendant does not raise the objection of improper venue either in the motion
to dismiss or in the answer, he is deemed to have waived it. However in cases governed by the
Rule on Summary Procedure and in ejectment cases, the trial court instead of issuing the
summons may from an examination of the allegations in the complaint and such evidence as
may be attached thereto dismiss the case outright on any of the grounds for dismissal of a civil
action which are apparent therein, including improper venue.

45. What civil cases are governed by the Rule o Summary Procedure? [50]

1.) Ejectment cases 2.) Cases where the total amount of the plaintiff’s claim does not exceed
P100,000 or P200,000 in Metro Manila, exclusive interests and cost.

46. What are the pleadings allowed under the Rule on Summary Procedure? [51]

The only pleadings allowed under the Rule on Summary Procedure are the complaint,
compulsory counterclaim, cross-claim, and the answers thereto. All pleadings must be
verified.

47. What are the prohibited pleadings, motions, and petitions under the Rule on
Summary Procedure?[52]

1. Motion to dismiss or quash except where the ground is non-referral to brgy. Conciliation
and lack of subject matter jurisdiction.
2. Motion for bill of particulars.
3. Motion for postponements which are dilatory
4. Motion for reconsideration of a judgment, re-opening and new trial
5. Motion for extension of time to file pleadings or papers
6. Motion to declare defendant in default.
7. Third-party complaint.
8. Petition for relief from judgment.
9. Intervention
10. Memoranda
11. Reply
12. Certiorari, prohibition, and mandamus against interlocutory orders

48. In an ejectment case, the court dismissed the complaint for failure of the
plaintiff to appear during the preliminary conference. The plaintiff filed a motion for
reconsideration of the dismissal order. The defendant contends that the dismissal
had become final and executory since the motion for reconsideration is a prohibited
pleading and hence does not suspend the reglementary period to appeal. Is the
Defendant’s contention correct?[53]Explain.

No. The motion for reconsideration prohibited under Sec 19(c) of the Rule of Summary
Procedure is that which seeks reconsideration of a judgment rendered by the court after trial
on the merits. The dismissal order is not a judgment on the merits after trial of the case.

49. P filed with the MeTC of Manila a suit against D to collect the sum of P100,000.
The MeTC rendered judgment in favor of P. D appealed to the RTC which affirmed
the challenged decision. D filed with the CA a motion for extension of 15 days to file
a petition for review. May P in the meantime move for the execution of the
judgment as a matter of right?[54] Explain.

Yes. The decision of the RTC in civil cases covered by the Rule on Summary Procedure shall be
immediately executor, without prejudice to a further appeal that may be taken therefrom.

50. What cases are governed by the Rule of Procedure for Small Claims Cases? [55]

These Rules shall govern the procedure before the MTC in actions for payment of money
where the value of the claim does not exceed P200, 000, exclusive of interests and costs.

51. When shall the MTC apply the Rule of procedure for Small Claims Cases? [56]

Yes, MTC shall apply the rule of procedure for small claims cases for up to three hundred
thousand pesos exclusive of interests and costs.

52. Are the Rules of Civil Procedure applicable to small claims cases? [57]

Yes the Rules of Civil Procedure shall apply in all actions which are:

(a) Purely civil in nature where the claim or relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of money, and

(b) The civil aspect of criminal actions, either filed before the institution of the criminal action,
or reserved upon the filing of the criminal action in court, pursuant to Rule 111 of the Revised
Rules of Criminal Procedure.

53. What are the prohibited pleadings and motions in small claims cases? [58]

These are the prohibited pleadings and motions in small claim cases as per listed in section 14
of the Rules of procedure for small claims cases:

xxx
 SEC. 14. Prohibited Pleadings and Motions. — The following pleadings, motions, or petitions
shall not be allowed in the cases covered by this Rule:

(a)Motion to dismiss the complaint;

(b)Motion for a bill of particulars;
(c)Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
(d)Petition for relief from judgment;
(e)Motion for extension of time to file pleadings, affidavits, or any other paper;
(f)Memoranda;
(g)Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the
court;
(h)Motion to declare the defendant in default;
(i)Dilatory motions for postponement;
(j)Reply;
(k)Third-party complaints; and
(l)Interventions.

54. Are decisions in small claims cases appealable?[59]

After the hearing, the decision will be final and unappeasable. (Section 23 of Rules of Procedure
for Small Claims Cases)

55. Define pleadings.[60]

Pleadings are written statements of the respective claims and defenses of the parties
submitted to the court for appropriate judgment.

56. What are the pleading allowed by the Rules of Court?[61]

The pleadings allowed by the Rules of Court are as follows:

Complaint – alleging the plaintiff’s cause of action

Answer – a defending party sets forth his defenses

Defenses – may be negative (specific denial of the material of fact/s alleged); or affirmative (hypothetically
admitting the material allegations in the pleadings of the claimant)

Counterclaim – defending party may have against an opposing party

Compulsory counterclaim

Cross-claim – any claim by one party against a co-party

Counter-counterclaims or counter-crossclaims

Reply – which is to deny, or allege facts in denial or avoidance of new matters alleged
Third, (fourth, etc.) – party complaint – defending party may file against a person not a party to the action

Answer to third (fourth, etc.) –party complaint

57. What is a complaint?[62]

Complaint is the first pleading filed with the court by party called the plaintiff.

58. What is an answer?[63]

Answer is a responsive pleading to the complaint. It gives notice to the plaintiff as to which
allegations in the complaint the defendant decides to contest and put in issue.

59. Co Batong, a Taipan, filed a civil action for damages with the Regional Trial
Court (RTC) of Parañaque City against Jose Penduko, a news reporter of the
Philippine Times, a newspaper of general circulation printed and published in
Parañaque City. The complaint alleged, among others, that Jose Penduko wrote
malicious and defamatory imputations against Co Batong; that Co Batong’s
business address is in Makati City; and that the libelous article was first printed and
published in Parañaque City. The complaint prayed that Jose Penduko be held liable
to pay P200, 000.00, as moral damages; P150,000.00, as exemplary damages; and
P50,000.00, as attorney’s fees. Jose Penduko filed a Motion to Dismiss on the
following grounds: 1. The RTC is without jurisdiction because under the Totality
Rule, the claim for damages in the amount of P350, 000.00 fall within the exclusive
original jurisdiction of the Metropolitan Trial Court (MeTC) of Parañaque City. 2. The
venue is improperly laid because what the complaint alleged is Co Batong’s
business address and not his residence address. Are the grounds invoked in the
Motion to Dismiss proper?[64]

(Bar Question 2014)

No, the grounds invoked by Jose Penduko in his motion to dismiss is unfitting.

The invocation of the Totality rule is misplaced. Under Art 360 of the RPC, jurisdiction over a civil action for
damages in cases of libel is with the RTC. (Nocum v. Tan 23 Sept 2005). The said provision does not mention
any jurisdictional amount over such action. Hence, Totality Rule does not apply.

The Ground that the complaint mentioned the complainant’s office address rather than his residence is of no
moment since the complaint also stated that the libelous article was printed and first published in Paranaque
City. Under Art. 360 of the RPC, venue in civil actions for libel also lies in the place where the libelous article
was printed and first published.

60. What are the kinds of defenses?[65] Define and Explain.

A negative defense is an attack on a plaintiff's prima facie case, a defense that directly
contradicts elements of the plaintiff's claim for relief. In contrast, an affirmative defense is an
implicit admission of the factual allegations in the complaint, but avoids liability, in whole or in
part, based on additional allegations of excuse, justification or other negating matters.
61. Give examples of affirmative defenses.[66]

Fraud, prescription, release, payment, illegality, statute of frauds, estoppel, former recovery,
discharge in bankruptcy, and any other matter by way of confession and avoidance. Some of
these defences are also grounds for a motion to dismiss.

62. P filed a complaint against B and C who are made co-defendants. C

files an answer serving a copy thereof upon P. Does C also need to serve a
copy upon B?[67] Explain.

No, C does not need to serve a copy upon B. A co-defendant does not need to serve a copy of
the answer against a co-defendant, except where there is a cross-claim in the answer or in
case of S5 R62 in interpleader where the conflicting claimants should serve a copy of the
answer on their co-defendants.

63. What is a counterclaim?[68]

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

64. P files a case against D. D files a counterclaim against P. May P file a

counterclaim against D’s counterclaim?[69] Explain.

Yes, P may file a counterclaim against D’s counterclaim. A counterclaim may be asserted
against an original counterclaimant as provided in Sec. 6 of Rule 6 of the 1997 Rules of Civil
Procedure

65. The Republic, through the PCCG and with the assistance of the Office of
the Solicitor General, filed with the Sandiganbayan a complaint against
Cojuangco and Enrile for reconveyance and damages. Subsequently Enrile
was granted leave of court to implead Solicitor General Chavez as a
defendant in a counterclaim for filing a harassment suit. Was the filing of
the counterclaim against OSG Chavez proper?[70] Explain.

No. A counterclaim is any claim which a defending party may have against an opposing party.
Chavez was not the opposing party but merely the counsel of the opposing party. Enrile has to
file a separate suit if he wants to claim damages against Chavez.

66. H filed with the RTC a complaint against D for damages. The RTC, after
due proceedings, rendered a decision granting the complaint and ordering
D to pay damages to H. D timely filed an appeal before the CA, questioning
the RTC decision. Meanwhile, the RTC granted H’s motion for execution
pending appeal. Upon receipt of the RTC’s order granting execution pending
appeal, D filed with the CA another case, this time a special civil action for
certiorari assailing the said RTC order. Is there a violation of the rule
against forum shopping considering that the two (2) actions emanating
from the same case with the RTC were filed by D with the CA?[71] Explain.

No. There is no violation of the rule against forum shopping. The essence of forum shopping is
the filing by a party against whom an adverse judgment has been rendered in one forum,
seeking another and possibly favorable opinion in another suit other than by appeal or special
civil action for certiorari; the act of filing of multiple suits involving the same parties for the
same cause of action, either simultaneously or successively for the purpose of obtaining a
favorable judgment. Forum shopping exists where the elements of litis pendentia are present
or where a final judgment in one case will amount to res judicata in the action under
consideration. (Roberto S. Benedicto vs. Manuel Lacson, G.R. No. 141508, May 5, 2010,
Peralta, J.)

In Philippines Nails and Wires Corporation vs. Malayan Insurance Company, Inc., G.R. No.
143933, February 14, 2003, the Supreme Court held that one party may validly question a
decision in a regular appeal and at the same time assail the execution pending appeal via
certiorari without violating the rule against forum shopping. This is because the merits of the
case will not be addressed in the Petition dealing with the execution and vice versa.

Since D merely filed a special civil action for certiorari, the same will not constitute a violation
of the rules on forum shopping because the resolution or a favorable judgment thereon will
not amount to res judicata in the subsequent proceedings between the same parties. (Roberto
S. Benedicto vs. Manuel Lacson, G.R. No. 141508, May 5, 2010, Peralta, J.)

67. Is there an instance wherein a counterclaim may be asserted by the

defending party against one who is not an opposing party? [72] Explain.

Yes. Under Sec. 13 of Rule 6, a third-party defendant may in proper cases assert a
counterclaim against the original plaintiff in respect of the latter's claim against the third-party
plaintiff.

68. What are the kinds of counterclaims?[73]

The kinds of counterclaims are compulsory and permissive.

69. What is a compulsory counterclaim?[74]

A compulsory counterclaim is one which, being cognizable by the regular courts of justice,
arises out of or is connected with the transaction or occurrence constituting the subject
matter of the opposing party's claim and does not require for its adjudication the presence of
third parties of whom the court cannot acquire jurisdiction. 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 Regional Trial Court, the counterclaim may be considered
compulsory regardless of the amount.

70. Distinguish a compulsory counterclaim from a permissive counterclaim.

[75]

a. AS TO PRECLUSION IF NOT RAISED. A compulsory counterclaim not set up in an action shall

be deemed barred, while a permissive counterclaim is not barred even if not set up in the
action.
b. AS TO PAYMENT OF FILING FEES. Payment of filing fees on compulsory counterclaims has
been suspended, while filing fees need to be paid on permissive counterclaims filed with the
RTC.

c. AS FOR NEED TO ANSWER. A compulsory counterclaim as a rule need not be answered

while a permissive counterclaim should be answered otherwise the plaintiff could be declared
in default in respect thereof.

d. AS FOR PROHIBITION UNDER THE RULE ON SUMMARY PROCEDURE. A compulsory

counterclaim is allowed under the Rule on Summary Procedure unlike a permissive
counterclaim which may not be availed of therein.

e. AS FOR REQUIREMENT OF CERTIFICATION AGAINST FORUM SHOPPING. A compulsory

counterclaim need not be accompanied by a certification against forum shopping while a
permissive counterclaim must be so accompanied. (Spouses Ponciano v. Parentela, G.R. No.
133284, 9 May 2000; Alba v. Malapajo, 13 January 2016, Peralta, J.)

71. Why is a compulsory counterclaim termed as such?[76]

A compulsory counterclaim is termed compulsory because there is an element of compulsion

to set it up. Under Section 2 of Rule 9, compulsory counterclaim not set up shall be barred.

72. What is the reason behind S2R9?[77]

The rule is designed to achieve resolution of the whole controversy at one time and in one
action and to avoid multiplicity of suits. (Baclayon v. Court of Appeals, 182 SCRA 761; Ledesma
v. Morales, 87 Phil. 199).

73. How should a compulsory counterclaim or crossclaim be set up? [78]

A compulsory counterclaim or a cross-claim that a defending party has at the time he files his
answer shall be contained therein. (S8 R11).

74. May a compulsory counterclaim be set up in a motion to dismiss?

[79]
Explain.

75. What are the requirements in order that a counterclaim may be

considered compulsory?[80] Explain.

a. No. A counterclaim must be within the jurisdiction of the court as to its nature. (S7 R6)

b. No. The counterclaim must be cognizable by the regular courts of justice. An action for
support is cognizable by a special court, that is, the family court.

c. Yes. In the RTC, a counterclaim may be considered as compulsory regardless of the amount
thereof. d. No. The counterclaim is cognizable by the special commercial court which is not a
regular court of justice. e. No. The counterclaim is within the jurisdiction of HLURB.
 76. P files a suit for sum of money in the sum of P500,000 against D in the
RTC of Ozamis City. Assuming that D’s counterclaim arises out of or is
connected to the transaction or occurrence constituting the subject matter
of P’s claim, can D file a counterclaim: (a) For ejectment? [81] (b) For
support?[82] (c) For sum of money in the sum of P250,000? [83] (d) For
infringement of D’s patent? [84] And (e) For delivery of title over a
subdivision lot which P, as a subdivision developer, sold to D? [85]

77. P filed a suit for nullification of a promissory note against D on the

ground of usurious and unconscionable interest rates. D counterclaimed for
the payment of the P1M loan with interest. He however did not pay the
docket fees. Should the counterclaim be dismissed for failure to pay docket
fees?[86] Explain.

No. The counterclaim for the payment of the loan with interest is compulsory since it arises
out of or is connected to the loan transaction subject of the complaint. The grant of the
counterclaim would necessarily negate or defeat the suit for nullification. Being compulsory,
there is no need to pay the filing fees thereon.

78. Carlos executed a promissory note in the sum of P400,000.00 in favour

of Helen and payable on September 2, 2017. Norma acted as Carlo’s co-
maker. Carlos failed to pay as scheduled. Helen comes to you, being a
graduate of Misamis University, and sought your legal advice on what to do
inorder to collect from Carlos. Her querries are: (a) What are the steps to do
before filing the action in court? (5 points) Explain; (b) Where is the venue
of the action? (5 points) Explain; and (c) Which has jurisdiction over the
action? (5 points).

79. Based on the preceding problem and assuming that Norma engaged
you as her counsel, what will you do to protect her? Explain.

80. F filed a collection suit for P387,000 against R in the RTC of Davao City.
Aside from alleging payment as a defense, R in his answer set up
counterclaims for P100,000 as damages and P30,000 as attorney’s fees as
a result of the baseless filing of the complaint, as well as for P250,000 as
the balance of the purchase price of 30 units of airconditioners he sold to F.
Does RTC have jurisdiction over R’s counterclaims and if so does he have to
pay docket fees therefore?[87] Explain.

Yes, applying the totality rule which sums up the total amount of claims of the parties, the RTC
has jurisdiction over the counter claims. Unlike in the case of compulsory counterclaims, a
defendant who raises a permissive counterclaim must first pay docket fees before the court
can validly acquire jurisdiction. One compelling test of compulsoriness is the logical relation
between the claim alleged in the complaint and the counterclaim. R does not have to pay
docket fees for his compulsory counterclaims. R is liable for docket fees only on his permissive
counterclaim for the balance of the purchase price of 30 units of air conditioners in the sum of
P250, 000, as it neither arises out nor is it connected with the transaction or occurrence
constituting F’s claim.
81. D and P entered into a lease contract whereby D leased Room 401 to P.
P was of the impression that the lease also covered the rooftop of Room
442. However D padlocked the way to the rooftop. D insisted that the lease
only covered Room 401 and that P’s use of the rooftop was merely
tolerated. P tendered the lease payment to D who refused to accept the
same. P then filed an action for consignation with the MTC against D. D
then filed an answer with counterclaim for unlawful detainer against P. The
CA ruled that the raising of the counterclaim for ejectment was improper
since such could only be initiated by a verified complaint pursuant to
S4R70. Was the filing of the counterclaim proper? [88] Explain.

No. There is no rule that an ejectment suit cannot be raised in a counterclaim. Thus,
counterclaim for ejectment was compulsory since it was connected with the transaction or
occurrence constituting the subject matter of the opposing claim.

82. P filed with the MeTC of Makati a complaint against D to recover

possession of a parcel of land with an assessed value of P60,000. D filed an
answer. The MeTC tried the case on the merits and rendered a decision in
favor of P. D appealed to the RTC. Assume the RTC does not dismiss the
appeal and proceed to take cognizance thereof. D filed a motion to admit
amended answer in which he raises a counterclaim for P250,000 against P
which arose out of the same transaction subject matter of the complaint.
May the court admit the amended answer?[89] Explain.

No. The court may not admit the amended answer with counterclaim. In the case presented,
the RTC was deciding an appealed case and not an original action. Hence, the exceptive clause
of Rule 6 sec. 7 does not apply and the counterclaim may not be admitted since it falls below
the jurisdictional amount of the RTC.

83. P filed with the RTC an action for recovery of land against D. D filed an
answer raising the defense of ownership. RTC decided for D. On appeal the
CA reversed the RTC and decided for P declaring him as owner of the land
and ordering D to vacate the land. The CA declared that there was no fraud
or bad faith on the part of D. the CA’s judgment became final and
executory. P moved for the execution of the judgment before the RTC. D
opposed on the ground that a hearing supplementary to the execution
should be conducted to allow them to present evidence to prove that they
are builders in good faith and to prove the value of the improvements. (a)
Should the RTC grant the opposition of D?[90] (b) May D file a separate
action to recover the value of the improvements introduced by them?
[91]
Explain.

a. No. Once a decision has become final and executory, the only jurisdiction left with the court
is to order its execution. To allow the supplemental hearing would be to amend or alter a final
and executory judgement

84. A sues L for recovery of a parcel of land. L seeks in turn to be

reimbursed of the value of improvements she had introduced on the same
land and the payment of damages she had sustained. Should L file a
separate action against A for that purpose?[92] Explain.

The claim of L cannot be the subject of a separate action but must be interposed in the very
same action because L’s claim is a compulsory counterclaim; since it arises out or connected to
the suit of A for recovery of land. Under existing procedural rules, a compulsory counterclaim
if not set up is barred.

85. Would the dismissal of the main complaint also result in the dismissal
of the counterclaim?[93] Explain.

No. The same evidence needed to sustain the counterclaim of private respondents would also
refute the cause of action in petitioner's complaint.

... Under Sec. 2, Rule 17, defendant may raise objection to the dismissal of the complaint; in
such case, the trial court may not dismiss the main action.

86. What is the “compelling test of compulsoriness” to determine whether a

claim is compulsory?[94] Explain.

A "compelling test of compulsoriness" is whether there is "a logical relationship between the
claim and counterclaim, that is, where conducting separate trials of the respective claims of
the parties would entail a substantial duplication of effort and time by the parties and the
court."

87. Abraham filed a complaint for damages in the amount of P750,000.00

against Salvador in the RTC in Quezon City for the latter's alleged breach of
their contract of services. Salvador promptly filed his answer, and included
a counterclaim for P250,000.00 arising from the allegedly baseless and
malicious claims of Abraham that compelled him to litigate and to engage
the services of counsel, and thus caused him to suffer mental anguish.
Noting that the amount of the counterclaim was below the exclusive original
jurisdiction of the RTC, Abraham filed a motion to dismiss vis-a-vis the
counterclaim on that ground. Should the counterclaim of Salvador be
dismissed?[95] Explain your answer.

No. The counterclaim of Salvador should not be dismissed on the ground of lack of
jurisdiction. Is an original action before the RTC, the RTC has the jurisdiction over a
compulsory counterclaim regardless or the amount. Here, Salvador’s claim for damages arising
from alleged malicious and baseless claims of Abraham is a compulsory counterclaim as it
arises from Abraham’s complaint. Hence RTC has jurisdiction over Salvador’s counterclaim
even if it did not exceed the jurisdictional amount of 400,000.

88. FBC was engaged by U to construct a multi-level apartment building in

Forbes Park. Forbes Park Association (FPA) suspended all entry permits of
the construction after discovering that the same was violative of the
subdivision’s deed of restriction. FBC filed an action for injunction and
damages against FPA. FPA filed a motion to dismiss on the ground that U,
not FBC was the real party in interest. It was granted which became final.
Later on FPA filed an action against FBC to remove the structures it built
and for damages. (a) If you were the counsel for FBC, what would you do?
[96]
Explain. (b) If you were the counsel for FPA, instead of filing a motion to
dismiss, what would you have done?[97] Explain. (c) Assume that no motion
to dismiss was filed by FBC in the second case and the RTC decided for FPA.
On appeal, may the judgment of the RTC in the second case be set aside?
[98]
Explain.

(a) I would file a motion to dismiss the said suit of the FPA on the ground of res judicata,
specifically that the second case should ve been raised as a compulsory counter claim in the
first case which is under S2R9 the claim to demolish the said structures was a compulsory
counterclaim.

b) I would not file a motion to dismiss but an answer and raise the ground for the motion
to dismiss under the pretences of failure to state a cause of action as an affirmative defense in
the answer which was stated under S6R16 I would plead in my answer the claim for damages
and removal as a compulsory counterclaim

c) Yes the judgement of the RTC may be set aside on the ground of Res judicata, However
RJ can be raised under the circumstance of being the first time to be raised on appeal

89. P sues D who moves to dismiss for failure of the complaint to state a
cause of action. The motion is granted and the case dismissed. The
dismissal became final. Then, D sues P on a claim arising out of the same
transaction or occurrence as P’s earlier attempted claim. P’s defense was on
the ground that D’s claim is precluded by his failure to raise it as a
counterclaim in the first action. Is P’s defense meritorious? [99] Explain.

Yes D, Should not have filed a motion to dismiss but an answer interposing his counter claim
and raising the ground of failure to state a cause of action as an affirmative defense under S2
R9 failure to set up a compulsory claim in the first action the same is deemed barred

90. Fe filed a collection suit for P387,000 against Ramon in the RTC of
Davao City. Aside from alleging payment as a defense, Ramon in his
answer ser up counterclaims for P100,000 as damages and P30,000 as
attorney’s fees as a result of the baseless filing of the complaint, as well as
for P250,000 as the balance of the purchase price of 30 units of
airconditioners he sold to Fe. (a) Suppose Ramon’s counterclaim for the
unpaid balance is P310,000, what will happen to his counterclaims if the
court dismisses the complaint after holding a preliminary hearing on
Ramon’s affirmative defense?[100] (b) Under the same premise as paragraph
(b) above, suppose that instead of alleging payment as a defense in his
answer, Ramon filed a motion to dismiss on that ground, at the same time
setting up his counterclaims, and the court grants his motion. What will
happen to his counterclaims?[101] Explain.

Ramon’s counterclaim may be prosecuted in the same or in a separate action under S6R16
which stated that the said dismissal of action shall be without prejudice to the defendant
prosecuting his counter claims in the same or in a separate action
Ramon’s counter claim of 130K will be barred since it is a compulsory counter claim which was
no set up in the answer under S2R9 A counter claim cannot be set up in a motion to dismiss

91. Petitioner filed a complaint for consolidation of title over land sold to
him by Respondent under a pacto de retro sale. Respondent filed an answer
with counterclaim asking that Petitioner receive P810 and that the pacto de
retro sale be declared as an equitable mortgage. Petitioner did not file an
answer to the Respondent’s counterclaim. Upon motion, the trial court
declared Petitioner in default as to Respondent’s counterclaim and rendered
judgment in favor of Respondent. Did the trial court properly declare
petitioner in default in respect of Respondent’s counterclaim? [102] Explain.

No, the counter claim of the Respondent is compulsory since it is interjected or connected to
the subject matter of the petitioner’s complaint for consolidation. Under the Law A party
cannot be declared in default for failing to answer a compulsory counter claim because the
issues raised in the compulsory counter claim are deemed automatically joined by the
allegations of the complainant

92. Plaintiff filed a complaint against defendant for recovery of possession

of real property with the Regional Trial Court of Manila. Defendant filed an
answer with affirmative defenses and interposed a counterclaim of damages
and attorney’s fees arising from the filing of the complaint. When plaintiff
failed to file an answer on the counterclaim, defendant moved to declare
him in default. Notwithstanding notice of the motion, plaintiff did not file an
opposition. As judge, how would you resolve the motion to declare plaintiff
in default?[103] Explain.

As Judge I would deny the motion to declare the plaintiff in default The SC has held that a
party cannot be declared in default for failing to answer a compulsory counter claim the
counter claim for damages and attorney’s fees arising from the filing of the complaint is
compulsory counter claim since it arises from the filing of the complaint by the plaintiff hence
plaintiff cannot be declared default

93. P filed against D an action for recovery of ownership and possession of

a parcel of land. D filed an answer alleging that he was a possessor in good
faith and thus had a right of retention. D counterclaimed for reimbursement
of the value of the useful improvements he had introduced on the land. P
did not file an answer to D’s counterclaim. D filed a motion to declare P in
default as to his counterclaim. Should the court grant D’s motion? [104]
Explain.

94. L obtained a series of loans from Banco De Oro for which he executed
three REMs. L defaulted on the 3 rd loan and BDO extrajudicially foreclosed
the REM on the 1st and 3rd loan. Two days before the scheduled public
auction. L filed with the RTC of Quezon City a complaint for specific
performances, torts, and damages against BDO for including the 1 st REM in
foreclosure. BDO filed an answer with counterclaim. BDO countered that
there is a cross-default provision in the loan contracts that justifies the
inclusion of properties in the 1 st REM in the foreclosure. BDO
counterclaimed for attorney’s fees on the ground that the suit was
malicious and baseless. The auction sale proceeded but the proceeds
realized therefrom were not sufficient to answer for L’s loan obligation. BDO
sent a demand letter to L to pay the deficiency but this was not heeded by
L. L filed a motion to admit supplemental complaint which averred that BDO
had proceeded with the auction sale. The trial court admitted the
supplemental complaint. Subsequently, during the pendency of L’s
complaint, BDO filed with the RTC of Mandaluyong against L a collection
case for the deficiency for which L filed a motion to dismiss on the ground
that the collection case is a compulsory counterclaim that should have been
set up in L’s complaint for tort and damages since it arose from the same
loan transaction. Should L’s motion to dismiss the collection case be
granted? [105] Explain.

No the collection case does not involve a compulsory counter claim. A compulsory counter
claim is one which must be existing at the time of filing the answer under S8 R11 An After
acquired claim is merely permissive. Here the BDO's Right of action is accrued only after L's
refusal to pay after receiving demand letters of deficiency from BDO

95. What is cross-claim?[106]

A cross-claim is any claim by one party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original action or of a counterclaim therein.
Such a cross-claim may include a claim that the party against whom it is asserted is or may be
liable to the cross-claimant for all or part of a claim asserted in the action against the cross-
claimant. (S8 R6)

96. D and E are solidarily indebted to P for P500,000. P filed a collection

case against D and E for P500,000. D filed his answer in which he alleged
that he had already paid P500,000 to P prior to the filling of the complaint.
Judgment rendered in favor of D and E dismissing P’s complaint, the court
finding that D had already paid P even prior to the filing of the case. The
judgment became final and executory. D then files an action to collect
P250,000 from E as reimbursement. E files a motion to dismiss on the
ground that D should have filed his claim as a cross-claim in the collection
case filed by P. Should the court grant the motion to dismiss? [107]Explain.

Yes, the court should grant the motion to dismiss. A cross-claim not set up is deemed barred.
D should have filed in the first case a cross-claim against E for reimbursement.

97. Is there such a thing as a permissive cross-claim? [108] Explain.

In a sense yes. A cross-claim which either matured or was acquired by a party after serving his
pleading is not compulsory. (S9R11)

98. D and E are jointly and severally indebted to P under a promissory note
for P500,000. P sues D and E before the RTC. D filed a cross-claim against
E to recover P450,000 arising from the non-payment of the price of a car
sold and delivered by D to E. E files a motion to dismiss the cross-claim.
Should the court grant the motion to dismiss? [109] Explain.

Yes, the court should grant the motion to dismiss. The cross-claim is not proper since the claim
by D against E did not arise out of the loan transaction subject of the complaint. Hence the
court has no jurisdiction to take cognizance of the cross-claim.

99. P filed a case against D and E. D filed a cross-claim against E. E did not
answer the cross-claim. May D move to declare E in default of the cross-
claim?[110] Explain.

Yes. E should answer the cross-claim otherwise he may be declared in default of the same.
Under S3 R9 the claiming party may move for default in case of failure to answer of the
defending party. The cross-claimant is a claiming party while the cross-defendant is a
defending party within the purview of the Rules of Court

100. P filed a case against D and E. D filed a cross-claim against E. May

E in his answer to the cross-claim, assert a counterclaim against D’s cross-
claim?[111] Explain.

Yes. The cross-defendant can file an answer to the cross-claim and he may plead in the answer
a counter-claim or a cross-claim

101. D and E are solidarily indebted to P for P500,000. P filed a

collection case against D and E for P500,000. D and E filed their answer
alleging the defense of prescription. Judgment rendered in favor of P and
the same became final and executory. D pays the P500,000 to the sheriff.
D then files an action to collect P250,000 from E. E files a motion to dismiss
on the ground that D should have filed his claim as a cross-claim in the
collection case filed by P. should the court grant the motion to dismiss? [112]
Explain.

No. The cross-claim is not compulsory but permissive since D's right to reimbursement arose
only after he had served answer. Prior to paying P, D did not yet have the right of
reimbursement as against E.

102. D borrowed P500,000 from P with X acting as the surety. D did

not pay on maturity so P sued D and X. Judgment rendered in favor of P as
against D and X for P500,000. The bank account of X was garnished in the
amount of P500,000. X demanded indemnification from D but the latter did
not pay X. X sued D for indemnification. D argued that X’s claim for
indemnification was waived since he did not raise it as a cross-claim
pursuant to S2R9. Is D’s argument meritorious?[113] Explain.

No. The cross-claim was merely permissive since X's right to indemnification only arose after
he had paid D. Also under S35 R39, when a judgement is upon an obligation of one of The
parties as security for another, and the surety pays the amount or any part thereof, either by
sale of his property or before sale, he may compel re-payment from the principal.
103. S unlawfully ousted O from his parcel of land. S then sold and
delivered the land to B. O files an action for reconveyance against S and B.
Judgment was rendered in favor of O. the judgment became final and
executory. Later on B filed an action for breach of warranty against eviction
against S. S moved to dismiss on the ground that the action was barred
since B should have raised the same as a cross-claim against S in the
reconveyance suit. Should S’s motion to dismiss be granted? [114] Explain.

No. A cross-claim which matured or arose after the defendant has served his answer is
permissive and not mandatory. (S9 R11) Here B's cross-claim for breach of warranty against
eviction arose only after a final judgment had been rendered in the reconveyance suit. Under
the Law on Sales, the warranty against eviction cannot be enforced until a final judgment has
been rendered whereby the vendee loses the thing acquired or a part thereof. Hence the
cross-claim is not barred.

104. Is a cross-claim subject to the payment of a docket fee?

[115]
Explain.

A cross-claim filed before the MTC is not subject to a docket fee but one filed with the RTC is.
(S7 (a) R141)

105. P filed a complaint for collection of a P1,000,000 loan against D

and E before the RTC of Manila. D filed a counterclaim against P for
P500,000 for moral and exemplary damages claiming that the filing of the
suit was malicious and baseless. D also filed a counterclaim against P for
P450,000 arising from the unpaid price of a car sold by D to P. In the
meantime D also filed a cross-claim against E for indemnification
contending that the loan was really incurred for the benefit of E only. No
docket fees were paid on the counterclaims and cross-claims. (a) Is D liable
to pay docket fees on his counterclaims? [116] Explain. (b) Is D liable to pay
docket fees on his cross-claim?[117] Explain.

(a) D is not liable to pay docket fees on his counterclaim for P500,000 since the counterclaim is
compulsory. Collection of docket fees on compulsory counterclaims has been suspended by
the Supreme Court in its 21 September 2004 Resolution. D is liable for the payment of docket
fees on his counterclaim for P450,000 since the same is a permissive counterclaim.

(b) D is liable to pay docket fees on his cross-claim which was filed before the RTC, pursuant to
S7 (a) R141. The SC did not suspend the collection of docket fees on cross-claims filed with the
RTC.

106. Distinguish a counterclaim from a cross-claim. [118]

As to whom directed. A counterclaim is directed against the opposing party while a cross-
claim is directed against a co-party. AS TO CONNECTION WITH THE MAIN ACTION. A counter
claim may or may not arise out of the transaction constituting the subject matter of the
opposing party's claim while a cross-claim always arises out of the transaction or occurrence
that is the subject matter of the original action or of a counterclaim therein. AS TO
COMPULSORINESS. A counterclaim may or may not be compulsory while a cross-claim is
always compulsory. (Sec.6&7, Rule 6, ROC)

107. Define a reply.[119]

A reply is a pleading, the function of which is to deny, or allege facts in denial or avoidance of
new matters alleged by way of defense in the answer and thereby join or make issue as to
such new matters. (Sec.10, Rule 6, ROC)

108. Is there a need for the Plaintiff to file a reply?[120] Explain.

No, if a party does not file such reply, all the new matters alleged in the answer are deemed
controverted. (Sec. 10, Rule 6, ROC)

109. When is there a need for the Plaintiff to file a reply?[121] Explain.

When the defense is set up in the answer which is based on an actionable document copied in
or attached thereto and the plaintiff wants to contest the genuineness and due execution of
the document. The plaintiff should file a reply specifically denying under oath the document's
authenticity and due execution and setting forth what he claims to be the facts. (Sec.8, Rule 8,
ROC)

110. Assume that the suspension of the Usury Law was lifted by the
Bangko Sentral ng Pilipinas. P files a complaint to recover a loan with
interest against D. D filed an answer in which he raised the defense that
the interest rate charged by P was usurious. Is there a need for P to file a
reply if he wants to deny the allegations of usury?[122] Explain.

Yes. The plaintiff has to file a reply under oath if he desires to deny specifically the
genuineness and due execution of the actionable document, and avoid an admission of such
matters. (Sec. 7, Rule 8, ROC)

111. May the Plaintiff set up in his reply claims arising from the new
matters set up by way of defense in the answer?[123] Explain.

No, the plaintiff should set forth such new claims in an amended or supplemental complaint.

112. What is a third-party complaint?[124]

A third-party complaint is a claim that the defendant may file against a person not a party to
the action for contribution, indemnification, subrogation or any other relief, in respect of his
opponent's claim.

113. What is a fourth-party complaint?[125]

A fourth-party complaint is a claim that the third-party defendant may file against a person
not a party to the action for contribution, indemnification, subrogation or any other relief, in
respect of his opponent's claim.
114. Distinguish a third-party complaint from a third-party claim. [126]

AS TO ITS NATURE. A third-party complaint is a pleading while a third-party claim is not a

pleading but an affidavit or paper.

AS TO WHO FILES. A third-party complaint is filed by a party to a case while a third-party claim
is files by a stranger to the case.

AS TO PURPOSE. The purpose of a third-party complaint is for the defendant to bring in a

stranger as a party to the case while the purpose of the third-party claim is for the third-party
to notify the sheriff of his right or claim over the property attached, levied, or seized by the
sheriff.

115. Illustrate each of the grounds for a third-party complaint. [127]

Contribution. If D and X are liable for tort against P and the latter sues D only, D may file a
third-party complaint against X for contribution, since joint tort-feasors are solidarily liable
under Article 2194 of the Civil Code.

Indemnification. P sues the surety to recover the loan the latter had guaranteed. The surety
may file a third-party complaint against the principal debtor for indemnification. At any rate, a
judgment against the surety is also binding upon the principal debtor who had notice of the
action or proceeding and an opportunity at the surety’s request to join in the defense. (S49
R39; 2 MANUEL V. MORAN, COMMENTS ON THE RULES OF COURT 346 [1979 ed.])

Subrogation. X recklessly drives his car and collides with P’s car destroying it. P sues the
insurer to recover damages on his car insurance policy. The insurer can file a third-party
complaint against X since it would be subrogated to the rights of the insured upon payment to
the latter.

Other Relief In Respect Of His Opponent’s Claim. P sues D to recover real property. D may file
a third-party complaint against X, who sold the real property to him, for breach of warranty
against eviction. [Article 1548, Civil Code]. Insured sues insurer to recover on the policy issued
by the latter. The insurer may file a third-party complaint against the re-insurer.

116. Rufino is indebted to Simplicio in the amount of P400,000 payable

on 31 December 2007. To meet the obligation, Rufino saved P200,000 by
January 2007. During that month, Rosendo was able to borrow the
P200,000 from Rufino after having been warned that Rosendo should return
the P200,000 to Rufino before 31 December 2007. In February 2008,
Simplicio sued Rufino for the collection of his credit. Rufino pleaded in his
answer that he was ready to pay P200,000 to Simplicio and, reciting his
transaction with Rosendo, he filed a third-party complaint against Rosendo
for the recovery of the P200,000. Is the third-party admissible? (80 Bar Q2
ed).[128]

No, the third-party complaint is not admissible. Under S11 R16, a third-party complaint is
available only if the defendant has a right to demand contribution, indemnity, subrogation or
any other relief, in respect of his opponent’s claim. Here the right to demand relief by Rufino
against Rosendo was not in respect of Simplicio’s claim against Rufino. Hence the third-party
complaint is not admissible.

117. B and C borrowedP900,000 from A. The promissory note was

executed by B and C in a joint and several capacity. B, who received the
money from A, gave C P450,000. C in turn loaned P225,000 out of the
P450,000 he received to D. In an action filed by A against B and C with the
RTC of Quezon City, cab C file a third-party complaint against D for the
amount of P225,000? (97 Bar Q2b ed).[129]

No, C cannot file a third-party complaint against D for the amount of P225,000. C’s claim
against D is not in the way of a claim for contribution, indemnity, subrogation, or other relief,
in respect of A’s claim. The loan by C to D is separate and distinct from the loan by A to B and
C.

118. D borrowed P500,000 from P with X acting as the surety. D did

not pay on maturity so P sued X. Judgment rendered in favor of P as
against X for P500,000. The bank account of X was garnished in the
amount of P500,000. X demanded indemnification from D but the latter did
not pay so X filed a suit seeking indemnification from D. D filed a motion to
dismiss arguing that X should have filed a third-party complaint against D
and not having done so, the action for indemnification is barred by res
judicata or waiver. Should the motion to dismiss be granted? [130]

No. Unlike a compulsory counterclaim or cross-claim, the filing of a third-party complaint is

not compulsory. Hence X’s claim for indemnification against D is not barred by res judicata or
waiver.

119. D and E are solidarily indebted to P for P500,000. The debt is due
and outstanding. P sues D for the P500,000 before the RTC. D filed a
motion for leave to file a third-party complaint against E seeking
contribution of P250,000. Should the court grant the motion even though
the amount of the claim does not exceed P300,000? [131]

Yes. Where the RTC has jurisdiction over the main case, it also has ancillary jurisdiction over
the third-party complaint even though the amount claimed falls below the jurisdictional
amount. A third-party complaint is merely auxiliary to and is a continuation of the main action.

120. In an action brought by PCIB against RM and XY before the

Metropolitan Trial Court of Manila, XY interposed a counterclaim of
P450,000; a cross-claim against RM for P500,000; and a third-party
complaint against DE for P425,000, all of which were dismissed, upon
proper motions, for lack of jurisdiction. Discuss the merits of the said order
of dismissal.[132]

The order of dismissal with respect to the counterclaim is proper because a counterclaim must
be within the jurisdiction of the court, both as to its nature and amount. (S7 R6)
It is submitted that the dismissal with respect the cross-claim and third-party complaint is also
proper. It is believed that the doctrine of ancillary jurisdiction is not applicable if what is
involved is a main action filed with the metropolitan trial court rather than a regional trial
court since the amount of the cross-claim and third-party complaint would be above rather
than below the jurisdictional amount. It is also difficult to conceive how a third-party
complaint, which is for contribution, indemnity, subrogation, or other relief, could exceed the
amount of the plaintiff’s claim.

121. P filed a complaint against the surety with the RTC of Manila. The
surety then filed a third-party complaint against X, who had executed
indemnity agreement undertaking to indemnify the surety in case it
becomes liable under the surety bond. X filed a motion to dismiss the third-
party complaint on the ground of improper venue, X pointed out that the
indemnity agreement between the surety and X contains a provision that
any suit arising from the agreement shall be solely and exclusively filed in
Quezon City. Should the court dismiss the third-party complaint? [133]

No. A third-party complaint is ancillary to the main case. Thus a third-party complaint has to
yield to the jurisdiction and venue of the main action. (Eastern Assurance & Surety Corp. v.
Cui, G.R. L-54452, 20 July 1981)

122. P filed an action to recover on his insurance claim against insurer

D. D filed a third-party complaint against re-insurer E which was allowed by
the trial court. Judgment was rendered in favor of P in respect of his
complaints against D, and in favor of D on its third-party complaint against
E. Only D appealed from the judgment against it. May D move for the
execution of the judgment on the third-party complaint against E? [134]

Yes. A third-party complaint is independent of and distinct from the complaint. Hence, the
judgment on the third-party complaint may become final and executory without waiting for
the final determination of the main case. (See Pascual v. Bautista, 33 SCRA 301 [ 1970];
Firestone Tire & Rubber Co. v. Tempongko, 27 SCRA 418 [1969]). E should have appealed the
judgment against it if it still wanted to contest the same.

123. P filed a case against D. D filed a motion for leave of court to file a
third-party complaint against E. The court dismissed the third-party
complaint. May D appeal from the order?[135]

Yes. Such an order would finally dispose of D’s right to implead E. (Vda. de Dios v. Balagot, 20
SCRA 950 [1967]).

124. X’s car collided with P’s car destroying the latter’s car. P sues the
insurer to recover the damages in his car insurance policy. The insurer files
a third-party complaint against X. May X in his answer to the third-party
complaint raise the defense that P’s car was at the time of the collision
being driven by P’s friend who did not have a valid driver’s license, thus
violating the authorized-driver clause of the car policy and barring P from
recovering thereon?[136]
Yes. Under S13 R6, a third party defendant may allege in his answer defenses that the third
party plaintiff may have against the original plaintiffs claim. The violation of the authorized-
driver clause is a defenses that the insurer may have against the claim of the insured P, yet
this may be invoked by X in order to defeat or negate the insurer’s claim pursuant to S13 R6.

125. P filed a collection case against D who acted as a surety in a loan

extended by P to x. D in turn filed a third-party complaint against X for
indemnification. It turned out that X had already paid his loan to P even
before P had brought his suit. May X file a counterclaim against P for moral
and exemplary damages for bringing malicious and unfounded suit and
causing X to be dragged into court?[137]

Yes. Ordinarily a third party defendant may not file a counterclaim against the original
plaintiff, since the original plaintiff is not an opposing party as to him. However under S13 R6,
the third party defendant, in proper cases, may assert a counterclaim against the original
plaintiff in respect of the latter’s claim against the third party plaintiff. Here X’s counterclaim is
connected to the loan transaction subject of the suit filed by P against D.

126. What is the rule in the event that there is a need to bring in new
parties?[138] Explain.

127. What are the parts of a pleading?[139]

Parts of the pleading are the ff:

Caption – sets the name of the court, title of the action and docket number if assigned
Body – the body sets the designation, allegations of the party’s claim or defenses, relief
prayed for and the date of pleading.
Signature and address - it includes matters stated in answer to the next question.

128. What matters or information should be stated by counsel below

his signature? (PIRMA)[140]

P – PTR OFFICIAL RECEIPT NO. FOR THE CURRENT YR.

I - IBP OFFICIAL RECEIOT NO. FOR THE CURRENT YR
R - his roll number
M - No. and Date of issue of his MCLE Cert of Compliance or Cert. of exemption for the
immediately proceeding yr
A – His address which should not be a post – office box

129. What is the effect if the counsel fails to state any of the said
information below his signature?[141]

The pleading is considered as not having been signed. Failure to comply with the B.M. No.
1922 would cause the dismissal of the case and the expunction of the pleadings in the record.

130. Give the rules regarding the inclusion of the parties’ names in the
pleadings.[142]
RULES OF PLEADING: THE names of all parties shall be included in the original complaint. In
subsequent pleadings, it is sufficient to indicate that there are other parties by putting “et al”
after first party in each sides. Names of all parties in an appeal shall also be indicated in the
notice of appeal and records of appeal. (S5 & 6 R41)

In a class suit, it is sufficient if the names of those appearing in the complaints as plaintiffs or
defendants in an answer, be sufficiently numerous and representative as to fully protect the
interest of all concern. (S12 R3)

Identity or name of a defendant is unknown, he may be sued as the unknown owner, heir,
devisee or any other designation as the case may require. When the true identity is revealed /
discovered, the pleading may be amended accordingly. (S14 R3)

When two or more persons were not organized as an entity with juridical personality enter
into transaction, they may be sued under the name by which they are generally or commonly
known. In answer of such defendant, names and address of the persons composing said entity
must be revealed. (s15 R3)

131. May a court adjudge a defendant liable for P1,000,000 where the
specific amount prayed for in the complaint is only P800,000 and there is
no general prayer for such further or other relief as may be deemed just or
equitable?[143]

YES, provided the evidence warrants and the defendants fails to object to the introduction of
evidence on the additional amount of 200,000.00. In such a case the plaintiff shall pay the
additional filing fee on the 200,000, which shall constitute a lien on the judgment award. (S2R
141)

However, if defendants objects to such evidence, the court may nonetheless still admit the
evidence of the presentation of the merits of the action, and the ends of substantial justice
will be subserved thereby. The complaint shall be ordered amended. (S5R10)

132. May the court in its final judgment award a claim not alleged, or a
relief different from, or more that that claimed in the pleading? [144]

YES, (S2R141), the evidence on record should so warrant and the provisions of S5R10 should
be taken into account. The docket fees on such award shall constitute a lien on the judgment.
(S2R141)

133. What is the rule regarding the signing of pleadings?[145]

Every pleading must be signed by the party or counsel representing him, stating either case his
address which should not be a post office box. (S3 R7)

134. The OSG in behalf of the Republic filed a complaint in the RTC foe
the revocation of titles registered in the name of Kenrick Development
Corporation (KDC). KDC filed an answer which was purportedly signed by
its counsel, Atty. G. the trials of the case was held up by various pre-trial
and discovery issues. Two years later, Atty. G who was no longer KDC’s
counsel, was summoned in a congressional hearing on fake land titles. He
testified that he prepared KDC’s answer and sent an unsigned draft to
KDC’s president. He testified that the signature appearing above his name
in the answer was not his, that he did not authorize any one to sign in his
behalf, and he did not know signed above his name. The Republic filed a
motion to declare KDC in default for failure to file a valid answer. The RTC
granted the motion, declared KDC in default, and allowed the Republic to
present its evidence ex parte. On appeal, the CA reversed the RTC, saying
that Atty. G assented to the filing of the answer in his behalf as never
disowned the answer and resumed acting as counsel for KDC after its filing.
Did the CA err?[146] explain

Yes. (S3 Rul 7) is quite clear when it requires that a pleading must be signed by the party or
counsel representing him. Hence, only the signature of either the party himself or his counsel
operates to validly convert a pleading from one that is unsigned to one that is unsigned. The
answer being unsigned, it produced no legal effect and thus KDC was properly declared in
default.

135. What is the significance of counsel’s signature on a pleading? [147]

The signature of counsel constitutes a certification by him that; 1. He has read the pleading; 2.
To the best of his knowledge, information, and belief there is good ground to support it; and,
3. It is not interposed for delay

136. Is it required that a pleading be under oath, verified or

accompanied by affidavit?[148]

No. Pleadings need not be under oath, verified or accompanied by affidavit, except when
otherwise specifically required by law or rule. (S4R7)

137. In an original complaint for recovery of possession of common

property, the heading of the complaint states: “Heirs of Mariano, Namely:
Jose et. Al vs. Heirs of Ramon, et, al.,” do you the caption was properly
prepared?[149] Explain.

No. The heirs must be named thereat. The names of all the parties should be included in the
original complaint. In subsequent pleadings it is sufficient if the name of the first party on each
side be stated with an appropriate indication when there are other parties , such as by using
the word “et, al” The names of all the parties in an appeal shall also be indicated in the notice
of appeal and record of appeal S5&6 R41.

138. D lost in the decision of the MTC. His counsel seasonably filed a
notice of appeal but failed to sign the same. What is the effect of the notice
of appeal?[150] Explain.

The unsigned pleading is invalid and it produces no legal effect. Where a Notice of Appeal is
not signed, it would be as if the hearing never took place. This is so since one cannot put
something on nothing and expect it to stand, (UAC v. Mcfoy, 1962)
139. Based on the preceding problem, will the court be liable if it allows
the counsel to sign the notice of appeal without first notifying the opposing
counsel?[151] Explain.

140. How a pleading is verified?[152]

A pleading is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge or based on authentic
records.

141. May a counsel verify his client’s pleading?[153] Explain.

Yes. If the facts in the pleading are true and correct of his personal knowledge or based on
authentic records. (S3 R7). Where the verification is made by the lawyer who also signed the
pleadings, the courts are inclined to be liberal to accept such signature by the lawyer as
substantial evidence (G. R. No. 141947, July 5, 2001 Santos Vs. Court of Appeals.

142. What would be the effect if the pleading required to be verified is

not verified or lacks a proper verification?[154]

A pleading required to be verified which is not verified or lacks a proper verification, as in

those containing a verification based on "information and belief", or upon knowledge,
information and belief", shall be treated as an unsigned pleading. (ld) Otherwise put the
pleading produces no legal effect. (S3R7) 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. In practice the Supreme Court has been strict with the requirement for
verification in petitions filed before it.

143. What pleadings or papers are required to be verified? [155]

The following pleadings or papers are required to be verified:

1. Petition for relief from judgment (S3R38)
2. Petition for review on certiorari (S1R45)
3. Petition for review from the Regional Trial Court to the Court of Appeals (S1R42)
4. Appeal from quasi-judicial bodies to the Court of Appeals (S5R43)
5. Petition for annulment of judgment of the Regional Trial Court (S4R47)
6. Petition for review of judgment of the Commission on Audit and the Commission on
Elections (S5R64)
7. Complaint with application for preliminary injunction or temporary restraining order
(S4R58)
8. Complaint with application for appointment of receiver (S1R59)
9. Complaint with application for support pendente lite (S1R61)
10. Petition for certiorari, prohibition, or mandamus (R65)
11. Petition for quo warranto (S1R66)
12. Complaint for expropriation (S1R67)
13. Complaint for forcible entry and unlawful detainer (S1R70)
14. Complaint, compulsory counterclaim, cross-claim and the answers thereto under the Rules
on Summary Procedure. (S3[b], Rule on Summary Procedure)
15. Petition for appointment of a general guardian (S2R94)
16. Petition for leave to sell or encumber property of an estate by a guardian (S1R95) 17.
Petition for the declaration of competency of a ward (S1R97)
18. Petition for habeas corpus (S1R97)
19. Petition for writ of amparo and writ of habeas data (S5 Rule on the Writ of Amparo; S6
Rule in the Writ of Habeas Data)
20. Petition for cancellation or correction of entries in the civil registry (S1R108)
21. Petition to take deposition in perpetuam rei memoriam (S1R24)
22. Petitions governed by summary judicial proceedings under the Family Code ( Articles 223,
225, 235, 239, 249 and 253 of the Family Code)
23. Suit between members of the same family (Article 151, Family Code)
24. Petition for declaration of nullity or annulment of marriage or for legal separation (Sec.
2(b)(3) SC Rule on Legal Separation; Sec. 5, SC Rule on Declaration of Absolute Nullity of
Marriage and Annulment of Voidable Marriage)

144. What is forum shopping?[156]

The act of a party who as a result of an adverse opinion in one forum, seeks a favorable
opinion ( other than by appeal or certiorari) in another, or who institutes two or more actions
or proceedings grounded on the same cause, on the gamble that one or the other court would
make a favorable disposition. ( City of Cebu vs Del Rosario, G.R. No. 169341, 22 Nov 2006)

145. Why is forum shopping prohibited?[157] Explain.

Forum shopping is prohibited because of the vexation caused by courts and parties-litigants by
a party who asks different courts or administrative agencies to rule on the same or related
causes or to grant the same or substantially the same relief, in the process creating the
possibility of conflicting decisions being rendered by the different fora upon the same issues.
( Municipality of Taguig vs Court of Appeals, 469 SCRA 588[2005])

146. What is the test for determining whether a party violates the rule
against forum shopping?[158] Explain.

The test for determining whether a party violates the rule against forum shopping is where a
final judgment in one case will amount to res judicata in the action under consideration or
where the elements of litis pendentia are present. (Marcopper Mining Corp. vs Solidbank
Corp., 432 SCRA 360)

147. P filed a complaint against D for collection of sum of money. No

certification against forum shopping was contained or annexed to the
complaint. D filed a motion to dismiss the complaint on the ground of
failure to comply with S4R7. P filed an amended complaint to which he now
annexed the certification against forum shopping. Should D’s motion to
dismiss be granted?[159] Explain.
Yes. Failure to comply with the requirements under the first paragraph S5R7 shall be cause for
the dismissal of the complaint without prejudice, unless otherwise provided. The failure to
comply with the requirements of S5R7 re the filing of a certification against forum shopping
shall not be curable by mere amendment of the complaint or other initiatory pleading

148. If P’s complaint is dismissed, what is the remedy or recourse

available to P?[160] Explain.

P has two options which he can consider. P may simply refile the complaint and annex thereto
the certification against forum shopping. This is because the dismissal for failure to comply
with the requirement of annexing a sworn certification against forum shopping is a dismissal
without prejudice. P may also file a special civil action for certiorari in order to set aside the
dismissal order if P feels that the order was made with grave abuse of discretion amounting to
lack of or excess of jurisdiction. Appeal is not available to P as an appeal may not be taken
from an order dismissing an action without prejudice. (S1R41)

149. P filed a complaint for quasi-delict against D before the MeTC. The
Metc dismissed the complaint on the ground of forum-shopping since there
was a pending criminal case for reckless imprudence involving the same
accident against D. P filed a motion for reconsideration which was denied
by the MeTC. On the 60th day from the notice of the order denying his
motion for reconsideration, P filed a special civil action for certiorari with
the RTC seeking to set aside the dismissal. The RTC dismissed the petition
for certiorari on the ground that appeal was proper remedy. Was the RTC’s
dismissal order correct?[161]

No. A dismissal for forum-shopping under S5R7 is without prejudice unless otherwise stated in
the dismissal order. Under S1R41, no appeal lies from an order dismissing a case without
prejudice and hence a party may file an appropriate civil action under R65. (Casupanan vs
Laruya, G. R. 145391, 26 August 2002)

150. P filed a complaint against D for collection of sum of money. A

certification against forum shopping was annexed to the complaint but the
certification did not contain an undertaking on the part of D. D filed a
motion to dismiss the complaint on the ground of failure to comply with S5
R7. P filed an amended complaint to which is now annexed the certification
against forum shopping containing the missing allegation. Should D’s
motion to dismiss be granted?[162]

The Supreme Court has held that if it is a case of the plaintiff or principal party submitting the
CFS, but the same is defective, the defect may be cured by amendment. What is not allowed
to be cured by mere amendment is the non-submission or absence of a CFS.

151. Petitioners are husband and wife. They filed a petition for
certiorari and mandamus before the Court of Appeals but only the husband
signed the CFS. Is the husband’s signature sufficient? [163] Explain.

Yes, the husband’s signature alone is sufficient in compliance with rule on Certification against
Forum Shopping (Sps.Dar Alonzo-Legasto,30 Aug 2000).
152. May counsel for a party sign the CFS?[164]

As a general rule No. CFS needs to be signed by the party himself since he is in the best
position to state the matters therein. Exception would be the case wherein the party is a
juridical person in which case the lawyer could sign. The lawyer must however be specially
authorized by a board resolution. (BPI Leasing Corp v.CA,18 November 2003).

153. RC filed a complaint for the annulment of foreclosed sale against

Bank V. In its answer, Bank V set up a counterclaim for actual damages
and litigation expenses. RC filed a motion to dismiss the counterclaim on
the ground that Bank V’s answer with counterclaim was not accompanied
by a certification against forum shopping. Rule on the issue. [165] Explain.

I would rule for the denial of the motion to dismiss. The Supreme Court has held that a
certification against forum shopping is not required for asserting a compulsory counterclaim
since it is not an initiatory pleading or incipient application but merely auxiliary to the main
preceding. ( Sps. Carpio v. Rural Bank of Sto.Tomas , G.R. 153171, 4 May 2006. Hence the
counterclaim is for actual damages and litigation expenses and thus compulsory since it arose
out of the transaction or occurrence which is the subject matter of RC’s complaint. Hence the
motion to dismiss should be denied.

154. The NLRC rendered a decision against Fr. Tabora, the Ateneo de
Naga University, and Edwin Bernal (the petitioners). The Petitioners filed a
petition under Rule 65 seeking the reversal of the NLRC decision. The
verification and the certification against forum shopping (CFS) was however
signed only by Fr. Tabora. The CA dismissed the Petition insofar as the
Ateneo and Bernal were concerned, notwithstanding a belated showing that
Fr. Tabora has been authorized to sign the verification and CFS for Ateneo
and Bernal. Was the dismissal proper?[166] Explain.

No. In verification, the signature of one instead of all the parties would be sufficient if there is
showing that he had sufficient knowledge and belief to sign the verification. As regards the
CFS requirement, there was substantial compliance with the submission, albeit delayed, of
proof that Fr. Tabora had been authorized to sign the CFS for the Ateneo and Bernal. The SC
considered the delay a mere technicality or procedural imperfection which should not defeat
the ends of justice. (Ateneo de Naga University v. Manalo,9 May 05). Doctrine reiterated in
China Banking Corporation v. Mondragon International Phils, 17 Nov.05, re belated proof of
authority of corporate signatory to CFS. Recent trend of liberality .

155. The verification and certification against forum shopping appended

to the appeal to the NLRC were signed by BPI’s Assistant Vice-President.
There was no proof however that the AVP was authorized by the
corporation’s board. Are the verification and the certification against forum
shopping fatally defective?[167] Explain.

The AVP as a corporate officer has implied or apparent authority to sign the verification and
CFS. An express authorization is not an indispensable requirement. The fact that BPI
acquiesced and expressed no obligation to the appeal by before the NLRC is proof that it
authorized the AVP to sign the verification and the CFS. (Enriquez v. BPI, G.R. 172812, 12
February 2008)

156. Who are corporate officers or employees who may sign the
verification and certification against forum shopping without need of board
resolution?[168] Explain.

Corporate officers or employees who may sign the verification and certification against forum
shopping are : (1) Chairperson of the board of directors; ( 2) the President ; (3) General
Manager ; (4) Personnel Officer; and (5) Employment Specialist in a labor case. The rationale
for this list is that these officers are in position to verify the truth and correctness of the
allegations in the complaint of petition. (Cagayan Valley Drug Corp. v. Commissioner of
Internal Revenue, G.R. No. 151413, 13 February 2008). The Vice President and Assistant Vice-
President may be added to the list. (Enriquez v. BPI, G.R. No.172812, 12 February 2008).

157. Korean Airlines (KAL), a foreign corporation licensed to do

business in the Philippines filed a collection case against Expert Travel and
Tours Inc. The verification and CFS was signed by its counsel and resident
agent X. To the motion to dismiss filed by ETI, KAL countered that X was
authorized by KAL in a teleconference by the Board of Directors. No record
such authorization was attached to the complaint. Can the resident agent
sign the verification and CFS in behalf of a foreign corporation? [169] Explain.

No. X was not specifically authorized to execute the certification in behalf of KAL. Being a
resident agent does not mean that he is authorized to execute the requisite CFS because while
he may be aware of actions filed against his principal, he may be aware of actions initiated by
his principal whether in the Philippines or in the country where such foreign corp. is
organized.( Expertravel and Tours Inc.CA,26 May 2005)

158. In the proceedings for the settlement of the testate estate of

Alice, a contingent money claim for commission in the event of the sale of
properties of the estate was filed by Alan with the probate court, The
executrix moved for the dismissal of the claim on the ground that no
certification against forum shopping was attached thereto pursuant to S5
R7. The RTC dismissed the money claim. Was the dismissal proper?
[170]
Explain.

No. A certification against forum shopping is required only for claimants and other initiatory
pleadings. A money claim against the estate is not an initiatory pleading since the probate
proceeding was already initiated upon the filing of the petition for the allowance of the
decedent’s will. A money claim does not initiate new litigation but merely brings a material
but incidental matter arising in the progress of the case. Hence a money claim is only
incidental to the probate proceeding, more so if it is contingent since the claimant cannot
even institute a separate action for a mere contingent claim. ( Sheker v. Estate of Sheker,
G.R..157912,13 December 2007)

159. What will be the effect on the part of the plaintiff if he submitted a
false certification against forum shopping?[171] Explain.
The submission of a false certification or non-compliance with any of the undertakings therein
shall constitute indirect contempt of court, without prejudice to the corresponding
administrative and criminal actions. 160.

If the acts of the party and his counsel clearly constitute wilful and deliberate forum shopping,
the same shall be ground for summary dismissal with prejudice and shall constitute direct
contempt as well as cause for administrative sanctions.

160. What is the effect of the action if the plaintiff deliberately

committed forum shopping?[172] Explain.

If the acts of the party and his counsel clearly constitute willful and deliberate forum
shopping, the same shall be ground for summary dismissal with prejudice and shall constitute
direct contempt as well as cause for administrative sanctions.

161. What are ultimate facts?[173] Explain.

Ultimate facts are facts essential to a claim or defense. It cannot be stricken out without
leaving the statement of the cause of action or the defense insufficient.

162. How shall the ultimate facts be stated in a pleading?[174] Explain.

The ultimate facts shall be stated in a plain , concise and direct manner and in a
methodological and logical form.

163. How may alternative causes of action or defenses be pleaded?

[175]
Explain.

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.

164. In alternative causes of action or defense, what is the effect of the

insufficiency of one of the alternatives?[176] Explain.

In such a case, as long as one of the alternative statements, if made independently, would be
sufficient, the pleading is not rendered insufficient by the insufficiency of the alternative.

165. In pleading alternative causes of action or defenses, is it required

that the causes of action or defenses be consistent with each other?
[177]
Explain.

No, the causes of actions or defense alleged may be inconsistent with each other, provided
that each cause of action or defense be consistent in itself

166. Is a general averment of the performance or occurrence of all

conditions precedent in a pleading be sufficient? [178] Explain.
Yes, in any pleading a general averment of the performance or occurerence of all conditions
precedent shall be sufficient.

167. Odrareg filed a complaint for recovery of possession of land

against Onitnelot. He alleged that barangay conciliation took place prior to
the filing of the action. He did not, however, attach the certificate to file
action. Will the case be dismissible for failure to comply with a condition
precedent?[179] Explain

168. In an action to recover a parcel of land, the intervenors claimed to

be the absolute owners thereof and asked that they be placed in possession
of the property, but defendants maintained that they had absolute title on
the land and filed a counterclaim for injunction against plaintiffs and
intervenors. Judgment was rendered for the defendants. In a subsequent
action, the intervenors claimed from the defendants the expenses they had
incurred in clearing and cultivating the parcel of land and planting coconut
and other fruit-bearing trees thereon. The defendants in their answer
pleaded that the plaintiff’s claim was a compulsory counterclaim that should
have been set up in the former action as against the counterclaim for
injunction filed by the defendants. The plaintiffs replied that they could not
have set up in the former case such as counterclaim for improvements
because it would have been inconsistent with and would have weakened
their claim for title to the land. Is the plaintiff’s contention meritorious?
[180]
Explain.

169. P filed with the CFI of Cebu an action for recovery of land against
R. R filed an answer raising the defense of ownership. The CFI decided in
favor of R but on appeal the CA reversed the CFI. CA ordered R to vacate
to vacate the premises. In the body of the decision, the CA stated that
there was no fraud or bad faith on the part of R. The CA’s decision became
final and executory. P moved for the execution of the judgment before the
CFI. R opposed on the ground that a hearing supplementary to execution
should be conducted to allow them to present evidence to prove that they
are builders in good faith and to prove the value of the improvements. P
argued that R should have set up their claim for reimbursement in the
action for recovery. The CA allowed R to present such evidence, stating that
R could not have presented such evidence in the trial court since it would
be inconsistent with their defense of ownership. (a) Is the reason cited by
the CA for allowing R to present evidence tenable? [181] Explain. (b) Should
the CFI grant the opposition of R to P’s motion for execution? [182] Explain.
(c) May R file a separate action to recover the value of the improvements
introduced by them?[183] Explain.

170. What facts may be averred generally in a pleading?[184]

Malice, intent, knowledge and other condition of the mind of a person may be averred
generally

171. What facts must be alleged with particularity?[185]

 172. The complaint alleged that the defendant acted in bad faith,
arbitrarily, illegally, wrongfully, and in violation of law. However, it did not
contain any averment of facts showing that defendant’s acts were done in
the manner alleged. Does the complaint state a cause of action?[186]Explain.

173. What is an actionable document?[187]

An actionable document is an instrument or document on which an action or defense is

founded.

174. Give examples of actionable documents?[188]

The following are actionable documents

1. A promissory note in an action to collect amount thereof

2. A deed of real estate mortgage in an action to foreclose the mortgage.
3. A written contract in an action to enforce or rescind the same.

175. What is the requirement regarding an actionable document? [189]

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.

176. What are the two ways of setting forth an actionable document?
[190]

Two ways in setting forth an actionable document

a.) set forth in the pleading the substance of the instrument or the document, and to attach
the original or the copy of the document to the pleading as an exhibit and which shall form
part of the pleading

b.) with like effect, to set forth in the pleading said copy of the instrument or document

177. If the adverse party wants to contest the genuineness and due
execution of an actionable document, how shall he do so? [191] Explain.

If an adverse party wants to contest the genuineness and due execution of an actionable
document he should specifically deny the genuineness and due execution under oath and sets
forth what he claims to be the facts.

178. What specific facts are deemed included within the admission by
the adverse party of the genuineness and due execution of an actionable
document?[192]

Specific facts are:

That the party whose signature it bears signed it

That signed by another, it was signed for the adverse party and with his authority

That at the time it was signed, it was in words and figures exactly as set out in the pleading of the party
relying upon it

that the document was duly delivered

That any formal requisites of law, such as seal acknowledgement or revenue stamp which it lacks are waived
by him

179. P purportedly sold a parcel of land to D. Later, P claimed that

what he signed was a document captioned lease contract and not a deed of
sale. P then filed a complaint against D and M, to whom D sold the
property. In their answer, D and M attached the purported deed of sale. P
did not specifically deny under oath the deed of sale. Can P be allowed to
assail the validity of the deed of sale when he failed to deny it under oath
the genuineness and due execution thereof?[193] Explain.

Yes, failure to deny the genuineness and due execution of an actionable document does not
preclude a party from arguing against it by evidence of fraud, mistake, compromise, payment,
statute of limitations, estoppel and want of consideration.

180. P filed an action to recover a parcel of land against D. attached to

the complaint is a copy of the deed of sale executed by D’s father in favor
of P. D specifically denied but not under oath the deed of sale. At the trial
of the case, D sought to present an expert witness to testify that the
signature of the seller in the deed of sale is a forgery. P objected to the
presentation of the witness saying that D impliedly admitted the
genuineness and due execution of the deed of sale when he failed to
specifically deny it under oath. How should the trial court rule on the
objection?[194] Explain.

The trial court should overrule the objection. Under S8 R8 the requirement of an oath does
not apply when the adverse party does not appear to be a party to the instrument. Here the
D's were not parties to the deed of sale.

181. P filed a verified complaint against D seeking to recover a parcel

of land. In the complaint, P alleged that he never sold the land to D but D
took possession under false claim of ownership. D filed and answer to which
he attached a copy of the deed of sale between him and P over the land. P
did not specifically deny under oath the genuineness and due execution of
the deed of sale. Was there an implied admission under S8R8? [195] Explain.

No. The verified complaint with a specific allegations that P never sold the land to D was a
substantial traversal of the actionable document.

182. M filed a verified complaint to annul a deed of sale over

community property which his wife N had executed in favor of T. M alleged
that the sale was made without his consent and knowledge. In T’s answer,
he attached a SPA purportedly executed by M in favor of N. M filed a reply
which was not under oath alleging his signature to the SPA was forged. May
M prove that his signature to the SPA was forged?[196] Explain.

Yes the allegation in the verified complaint that M did not know or consent to the sale of the
land put T on adequate notice that it would be called upon during the trial to prove the
genuineness and due execution of the SPA.

183. P filed a complaint for collection of P500,000 against D. P attached

a copy of the promissory note for P500,000 to the complaint. D filed an
answer which was not under oath or verified, in which he alleged in the
main that he had already paid the P500,000. P without accounting for the
non-production of the original. D objected to the offer on the ground that it
violates the best evidence rule since only a copy and not the original was
presented. Should the trial court sustain the objection? [197] Explain.

No the trial court should not sustain the objection. The Supreme Court has held in Gaw
vs.Chua that a party who impliedly admits the genuineness and due execution of a document
by failing to consent it in accordance with S8 R8 cannot object to the presentation of a copy
thereof rather the original.

184. P and R are the children of the late CC. Upon the demise of CC,
his spouse and his children executed a deed of partition wherein they
waived their shares over the H Lumber in favor of their co-heir Q. Q then
sold the H Lumber to R. Later R delivered a check for P200,000 to P which
the latter encashed. Subsequently R sued P to collect on the P200,000
which R alleges was a loan. In her answer with counterclaim, P alleged that
the P200,000 was an advance on her share in H Lumber and
counterclaimed for accounting and delivery of her share. R filed an answer
to the counterclaim wherein he alleged that P no longer had any interest in
H Lumber because of the execution of the deed of partition and that he is
now the owner of the H Lumber by virtue of a deed of sale executed in his
favor by CC. R annexed copies of the deed of partition and of sale to his
answer to the counterclaim. P filed a reply and countered that the deed of
partition and the deed of sale were not true and valid agreements and did
not express the true intention of the parties, and that the deeds were only
temporary paper arrangements executed upon advice of counsel until all
the heirs could reach a final agreement. The trial court ruled in favor of R. P
contended that it was error for the trial court to admit mere copies of the
deed of partition and the deed of sale in violation of the best evidence rule.
Is P’s contention correct?[198] Explain.

No the petitioner's contention is not correct. The Supreme Court has held in Gaw vs. Chua Gr
No.160855, that production of the original may be dispensed with in the trial courts discretion
whether the opponent does not bona fide dispute the contents of the documents and no
other useful purpose will be served by requiring production.

Here there was no dispute as to the terms of either deed; hence the RTC correctly admitted
the photocopies in evidence. Petitioner admitted signing the deed of partition.as for the deed
of sale, petitioner in effect admitted the genuineness and due execution of the deed of sale
when she failed to specifically deny it pursuant to S8 R8. The petitioner did not contest the
contents of the deed but simply alleged that there was a contemporaneous agreement that
the transfer of hagonoy lumber to Chua Sioc Juan was only temporary.

185. S filed and action for collection against F. In its complaint S

alleged that F applied with S for the issuance of letters of credit to finance
the purchase of raw materials from various suppliers and that S issued the
letters of credit but F did not pay the loan it had incurred from S in relation
to the letters of credit. The letters of credit were attached to the complaint.
F filed an answer not under oath denying liability. Judgment was rendered
in favor of S. F contends that the trial court erred in admitting in evidence
the letters of credit since the documentary stamps were not affixed thereto
and cancelled hence the letter of credit cannot be used in evidence
pursuant to Section 201 of the National Internal Revenue Code. Is F
correct?[199] Explain.

No since F failed to specifically deny under oath the letters of credit, it is deemed to have
impliedly admitted the genuineness and due execution of the same. Such implied admission
includes the waiver of the objection to the lack of documentary stamps.

186. P filed an action to annul a deed of sale against D on the ground

that he had not made any sale thereof. D filed an answer to which he
attached a copy of a deed of sale purportedly executed by P. P did not file a
reply under oath. During trial, P presented without objection an expert
witness who testified that P’s signature on the deed of sale was forged. May
the court take into account the testimony of the expert witness in deciding
the case?[200] Explain.

Yes. While the P impliedly admitted the geniuses and due execution of the deed of sale when
he did not specifically deny it under oath and set forth what he claims to be facts, the benefits
of the implied admission were lost by the D when he failed to timely execution of the
actionable document.(Koh v. Ongsiako, 36 Phil.185; Titan Construction Corp. v David, G.R. No.
169548, 15 March 2010).

187. What are the three modes of specific denial?[201]

First mode: the defendant must 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.

Second mode: where a defendant desires to deny only a part of the averment, he shall specify
so much of it as is true and material and deny only the remainder.

Third mode: where a defendant is without knowledge or information sufficient to form a

belief as to the truth of a material averment made in the complaint, he shall so state and this
shall have the effect of a denial. (S10 R8)
188. Oicnanev filed a complaint for recovery of the 5% usurious
interest he paid to Olifnap, in addition to the principal obligation. Olifnap
filed his answer without denying specifically the the usurious interest. What
is the effect of the denial of Olifnap?[202] Explain.

189. On the basis of an alleged promissory note executed by Harold in

favor of Ramon, the latter filed a complaint for P950,000.00 against the
former in the RTC of Davao City. In an unverified answer, Harold
specifically denied the genuineness of the promissory note. During the trial,
Harold sought to offer the testimonies of the following: (1) the testimony of
an NBI handwriting expert to prove the forgery of his signature; [203] and (2)
the testimony of a credible witness to prove that if ever Harold had
executed the note in favor of Ramon, the same was not supported by a
consideration. May Ramon validly object to the proposed testimonies? [204]
Give a brief explanation of your answer.

1) Ramon may validly object to the proposed testimony of an NBI handwriting expert to prove
forgery. Under S8 R8, the genuineness and due execution of an actionable document is
deemed admitted by the adverse party if he fails to specifically deny such genuineness and
due execution. Here the genuineness and due execution of the promissory note, which is an
actionable document, was impliedly admitted by Harold when he failed to deny the same
under oath, his answer being unverified. Hence Haroldis precluded from setting up the
defense of forgery and thus Ramon may object to the proposed testimony seeking to prove
forgery

2) Ramon may not validly object to the proposed testimony showing that the note was not
supported by a consideration. The Supreme Court has held that an implied admission under S8
R8 does not preclude the adverse party from introducing evidence that the actionable
document was not supported by a consideration. The reason is that such evidence is not
inconsistent with the implied admission of genuineness and due execution. [Acabal v. Acabal,
31March 2005]The fact that the defense of lack of consideration is inconsistent with Harold’s
defense of forgery is also not objectionable. Under the Rules of Civil Procedure, a party may
set forth two or more statements of defense alternatively or hypothetically. [S2 R8]

190. What is the effect if a material averment in the complaint is not

specifically denied?[205] Explain.

They shall be deemed admitted. (S11 R8)

191. C filed a complaint for sum of money against Y. A copy of the

promissory note upon which the action was based was attached to the
complaint. The complaint alleges that Y defaulted in the payment of the
note. Y filed an answer in which he admits the paragraph regarding his
personal circumstances but “specifically denies” the rest of the allegations
for want of knowledge or information sufficient to form a belief as to the
truth thereof. C moved for a judgment on the pleadings in his favor. Should
the trial court grant the motion?[206] Explain.
 Yes. The third mode of specific denial may not be availed of when the fact as to which want of
knowledge or information is claimed is so plainly and necessarily within the defendant’s
knowledge that his averment of ignorance must be palpably untrue. The defendant must aver
positively or state how it is that he is ignorant of the alleged.(Capitol Motors v. Yabut, 32 SCRA
1)

192. What is a negative pregnant?[207]

A negative pregnant is denial of fact alleged with some qualifying or modifying circumstance
which denial is ambiguous or conjunctive, that is, it cannot be ascertained whether it is the
fact or only the qualification or modification which is denied.

193. What is the effect of a negative pregnant?[208]

The effect is that the defendant is deemed to have only denied the qualification or
modification but not the fact itself which is deemed admitted.

194. Give examples of negative pregnant.[209]

Paragraph 4 alleges that defendant bumped plaintiff’s car while under the influence of
alcohol. The defendant denies bumping plaintiff’s car while under the influence of alcohol. The
defendant is deemed to have denied only the fact of being intoxicated but is deemed to have
admitted the bumping.

195. G filed a case against N for recovery of possession of and to quiet

title over a parcel of land. P in paragraph 4 of the complaint alleges that P
was unable to take possession due to unwarranted adverse claim of
ownership and possession by D alleging sale by certain FN of subject
property to D. In paragraph 3 of his answer, D alleged thus: “Defendant
specifically denies paragraph 4 of the complaint, the truth being that
defendant never asserted title of ownership to the property in virtue of any
deed of conveyance executed in favor of defendant FN nor claimed any
possessory right.” P moved for judgment on the pleadings. Should the court
grant P’s motion?[210] Explain.

Yes. Paragraph 3 of the answer was a negative pregnant. The defendant’s denial as to the
material averments in paragraph 4 conjoined with his disclaimer of dominical or possessory
rights in the manner alleged in the complaint. The defendant’s denial is therefore a negative
pregnant which is equivalent to an admission. The defendant is deemed to have denied only
the qualification regarding the sale by FN but not the fact that he prevented plaintiff from
taking possession by an unwarranted adverse claim of ownership. Hence, a judgment on the
pleadings is proper. (Galofa v. Nee Bon Sing, 22 SCRA 48)

CIVIL PROCEDURE AUGUST 10, 2019

1. L filed an action for forcible entry against G and other defendants. Paragraph 2 of the answer
states that “Defendants specifically deny the allegations in paragraph 2 and 3 for want of
knowledge or information sufficient to form a belief as to the truth thereof, the truth of the matter
being those alleged in the special and affirmative defenses of the defendants.” In the special and
affirmative defenses, the Defendants alleged that L did not show concrete title while the
Defendants are owners by virtue of a TCT which was annexed to the answer. Did the defendants
specifically deny the allegation in the complaint regarding L’s prior physical possession and the
Defendants’ unlawful physical invasion? Explain.

Yes. While the substance of the matters upon which Defendants relied upom to support their
denial was not stated in paragraph 2 of the Answer, these were stated or indicated in the special and
affirmative defenses.

2. Onsa filed a special civil action for certiorari against the decision of the RTC with the CA.
Ngano, the private respondent, filed his answer to the petition. The CA ordered for the
expunction of the Ngano’s answer for being prohibited. Was the CA correct? Explain.

No, the CA was not correct. Under the Rule, the prohibited respondent(s) indicated therein are
public respondents. Thus, in the case presented, the party is a private respondent. (Rule 65 Sec.5 )

3. What is the effect if defenses and objections are not pleaded either in a motion to dismiss or in
the answer?

Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.
Section 1, Rule 9.

However, when it appears from the pleadings or the evidence on record that the court has no
jurisdiction over tge subject matter, that there is another action pending between the same parties
for the same cause, or that the action is barred by prior judgment or by salute of limitations, the
court shall dismiss the claim.

4. What is the effect if a compulsory counterclaim, or cross-claim, is not set up in a case? What
is the reason for the rule?

A compulsory counterclaim, or a cross-claim, not set up shall be barred. The rule is designed to achieve
resolution of the whole controversy at one time and in one action and to avoid multiplicity of suits.

5. How should a compulsory counterclaim or cross-claim be set up?

A compulsory counterclaim or a cross-claim that a defending party has at the time he files his
answer shall be contained therein.

6. May a compulsory counterclaim be set up in a motion to dismiss? Explain.

No, a party who desires to plead a compulsory counterclaim should not file a motion to dismiss but an
answer with a counterclaim, with the ground for the motion to dismiss being asserted as an affirmative
defense pursuant to S6 R17.
 However, If one files a motion to dismiss and the complaint is dismissed, there will be no
chance to invoke the counterclaim.

7. What is the remedy of a party if he fails to set up his counterclaim or cross-claim in the
answer? Explain.

When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or

excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-
claim by amendment before judgment. (S10 R11)

8. What is the rule on pleading regarding after-acquired counterclaims or cross-claims?

A counterclaim or a cross-claim which either matured or 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. (S9 R11)

9. If a compulsory counterclaim or cross-claim not set up is made the subject of a separate

action, what is the remedy of the defendant? Explain.

File a motion to dismiss or answer raising the ground of litis pendentia if the first case is still pending or
the ground of res judicata if the first case is already final and unappealable

10. What is the effect if the defendant failed to file a responsive pleading within the reglementary
period? Explain.

Under the Rules of Civil Procedure, a defendant is declared in default if he fails to file his
answer within the reglementary period. ( Sec. 3 Rule 9)

11. Nailuj filed a collection case against Oicatsana. Summons was served on the latter requiring
him to file his responsive pleading within a period of 15 days from receipt of the same. Oicatsana
did not file his responsive pleading even after the lapsed of the period. Nailuj filed a motion to
declare Oicatsana in default and that judgment be rendered on the basis of the pleadings. The
court granted the motion but required Nailuj to present his evidence ex-parte. Was the court
correct in requiring Nailuj to present his evidence ex-parte? Explain.
Yes. Under the Rules (S3 R9), when a party is declared in default, the court may do either proceed to
render judgment granting the claimant such relief as his pleading may warrant or require the claimant to
submit evidence ex parte. The choice of which action to take is a matter of judicial discretion. The court
has no power to render judgment immediately after the declaration or order of default.

12. D, E and F are solidarily indebted to P in the amount of P900, 000. P filed a complaint for
collection of the P900, 000 against D, E and F before the RTC. D filed an answer within the
reglementary period but E and F did not.
(a) May E and F be declared in default upon motion of P?

a. Yes,since E and F did not file their answers.

(b) May P move for a default judgment against E and F?

b. No. This is a case of partial default under S3 (c) R9. When a pleading asserting a claim states a
common cause of action against several defending parties, some of who answer and the others fail to do
so, the court shall try the case against all upon the answers thus filed and render judgement upon the
evidence presented. Here the court should try the case against D,E and F upon the answer filed by D.

(c) May E and F take part in the trial? and

c. No. A party in default shall be entitled to notice of subsequent proceedings but not to take part in
the trial.

(d) May E and F testify in behalf of D?

d. Yes. A defaulted party is not disqualified from testifying in court in behalf of a non-defaulted
party.

13. P filed a complaint against D, E and F wherein he alleges that defendants are jointly indebted
to him for P900, 000. D filed an answer within the reglementary period but E and F did not.
(a) May E and F be [dna] declared in default [regP] upon motion of P?

a.) Yes, since E and F did not file an answer within the reglementary period.

(b) May P move for [no] a default judgment [no common cause] against E and F?

b.) Yes. The provisions of S3(c) R9 do not apply since the complaint does not state a common cause of
action against D, E, and F. In a joint obligation, each obligation of the joint debtor is separate and distinct
from the other joint debtors. Hence, the court may render default judgment against E and F ordering
them to pay P300,000 each to P.

14. P filed a complaint for collection of a P500, 000 loan against D. D did not file an answer and
was declared in default. The Clerk of Court received P’s evidence which proved that the amount
of the loan was actually P550, 000. May the court award P550, 000 to P?

No. 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. This is different from the rule where the
defendant was not declared in default and which is thus covered by S5 R10.

15. What are the cases wherein no defaults are allowed?

In actions for annulment or declaration of nullity of marriage or for legal separation. If the defending
party 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 or suppressed. No judgment shall be based on a
stipulation of facts or confession or confession of judgment.
16. Atty. Victor Dabo is the lawyer of the defendant in Civil Case No. 1286 of the Regional Trial
Court of Manila entitled “Sweet Sugar Inc. vs. National Landair Inc.”.The defendant was served
summons on 6 July 2008. As of 17 October 2008, Atty Dabo had not filed any responsive
pleading on behalf of the defendant on account of numerous social engagements with important
and prospective clients. On 18 October 2008, the counsel for the plaintiff filed with the court a
“Motion to Declare Defendant in Default,” a copy of which was duly served upon Atty. Dabo.
By way of opposition to the said motion, Atty. Dabo served and filed with the court an answer
attached thereto. The tendered answer recited facts which constituted valid defenses to the claim
asserted in the complaint. The counsel for the plaintiff opposed the admission of the answer
arguing that it was filed out of time; that the inattention of Atty. Dabo did not constitute fraud,
accident, mistake or excusable neglect; and that it would be unfair and unjust if the prejudice
caused by the social activities of Atty. Dabo be inflicted upon the plaintiff, and not upon Atty.
Dabo and his client. What action should the court take? Reasons, (83 Bar Q1 ed).

The court should admit the amended complaint. The Supreme Court has held that the defendant's
answer should be admitted where it was filed before he had been declared in default as default
judgments are generally disfavored. While Atty. Dabo unduly delayed in filing the answer, this was
counterbalanced by the delay of plaintiff's counsel in filing the motion to declare the defendant in
default. Moreover, the answer contained valid defenses. Cases should as much as possible be decided
on the merits rather than on technicalities.

17. What are the remedies of a party who fails to file an answer and/or is declared in default?
a. Before notice of order of default. File a motion to admit answer giving a justifiable cause for the delay
in the filing of the answer. Where an answer has been filed belatedly but before the defendant is
declared in default, the court should admit the answer in order to resolve the case on the merits rather
than on technicalities.
b. After order of default but before judgment. File a motion under oath to set aside the default order
upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable
negligence and that he has a meritorious defense.
c. After judgment but before it becomes final. File a motion for new trial on the ground of FAME. If the
motion for new trial is denied, the defendant may appeal within 15 days from receipt of the order
denying the motion for new trial.
d. After judgment becomes final. File a petition for relief under Rule 38. If the defendant was
improvidently or wrongly declared in default he may move to set aside the judgment by way of a special
civil action for certiorari.
e. After period to file a petition for relief has lapsed. File a petition for annulment of judgment based on
extrinsic fraud under R47.

18. P files a collection case for P500, 000 against D. D was declared in default on the ground that
his answer was filed beyond the reglementary period. D filed a motion for reconsideration in
which he submitted proof that his answer was filed on the 15th day from service of summons.
The trial court denied the motion on the ground that it was not accompanied by an affidavit of
merits. Default judgment rendered against D who received a copy of the judgment on March 1. D
filed a motion for reconsideration which was denied in an order received by D on April 1. On
May 3 D filed a special civil action for certiorari with the CA to set aside the default judgment. P
argued that the petition should be dismissed since the proper remedy was appeal. Should the
petition for certiorari be dismissed?

No. The trial court acted with grave abuse of discretion when it declared the defendant in default
despite the fact that there was proof that he had timely filed his answer. Furthermore a motion for
reconsideration need not be accompanied by an affidavit oF merits. Appeal is not an adequate remedy
since D was not able to present any countervailing evidence before the court a quo.

19. D was defaulted due to his failure to file his answer on time. The court issued an order
deeming the case submitted for decision on the basis of the plaintiff’s allegations but said order
was not furnished to D. the court rendered judgment against D. D filed an appeal alleging that he
was not furnished with the order deeming the case submitted for decision. D’s motion was
denied thus he filed an appeal and assigned as error of the court its failure to furnish him with the
order. Was his appeal meritorious? Explain.

Yes, D's appeal is meritorious. As provided under Rule 9, a party in default shall be entitled to a notice of
the order of default. In the above case, D did not receive notice of the order. Hence, D is may file a
motion to appeal under oath to set aside the order of default upon a meritorious defense as provided
on the same Rule stated herein.

20. Based on the preceding problem and before judgment, as a lawyer and graduate from
Misamis University, what will you do to protect the rights of D? Explain your move.

If I were D's counsel, I will file a motion under oath to set aside the default order upon proper showing
that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has
meritorious defense pursuant to the Rule.

21. What is the effect of partial default?

When a pleading asserts a claim against several defending parties and some file and serve their answers
but the others do not, the court shall try the case against all the defending parties based on the answers
filed and render judgment upon evidence presented where the claim states a common cause of action
against them (S3 R9)
Because of the common cause of action against the defending parties, where one of them fails to
answer, he may be declared in default but the court shall refrain from rendering judgment by default
against such party because the case shall be tried based on the answers of the defending parties.

22. What is the extent of relief to be awarded?

The relief that may be granted in default situations are restricted by S3 R9 of ROC

23. How may a pleading be amended?

Pleadings may be amended by (1) 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,

24. What is the reason for allowing the amendment of pleadings?

 The reason is so that the actual merits of the controversy may speedily be determined without regard
to technicalities, and in the most expeditious and inexpensive manner.

25. What are the kinds of amendments?

The kinds of amendments are:

a) Formal Amendments and
b) Substantial amendments

26. When are amendments a matter of right?

Amendments are a matter of right if it is done at any time before a responsive pleading is served or, in a
case of a reply, at any time within 10 days after it is served. Amendments as a right can only be done
once.

27. What is the remedy of a party if an amendment is refused by the court although the same is a
matter of right? Explain.
The remedy of a party if the amendment is refused is to file a petition for a writ of mandamus since it is
a ministerial duty of the court to accept the amendment made as a matter of right.

The court would be in error if it refuses to admit an amended pleading when such exercise is a
matter of right. The issuance of a writ of mandamus would correct this error.

28. When may a complaint be made as a matter of right?

At any time before the answer is served upon the plaintiff.

29. When may the answer be amended as a matter of right?

At any time before the reply, which is the responsive pleading to an answer, is served upon the
defendant.

30. When may the reply be amended as a matter of right?

within 10 days after it is served.

31. P filed a case for collection of P390, 000 against D before the RTC of Las Pinas City. D filed
an answer in which he raised lack of jurisdiction as an affirmative defense. P moved for leave of
court to admit amended complaint in which P now seeks to collect P410, 000. May the RTC
admit the amended complaint? Explain.

No, it is axiomatic that if the purpose of the amendment is to confer jurisdiction upon the court then the
court cannot admit the amended complaint. This is because the court which does not have jurisdiction
under an original complaint is without power to admit an amended complaint.

32. P filed a case for collection of 390,000 against D before the RTC of Las Pinas City. D filed a
motion to dismiss on ground of lack of jurisdiction. P then filed an amended complaint seeking
to collect 410,000. Should the motion to dismiss be granted?
No. In this case P may amend his complaint as a matter of right since a motion to dismiss is not a
responsive pleading. There is no power or discretion that needs to be exercises by the trial court.

33. On 12 May 2005, the plaintiff filed a complaint in the Regional Trial court of Quezon City
for the collection of 250,000. The defendant filed a motion to dismiss the complaint on the
ground that the court had no jurisdiction over the action since the claimed amount of 250,000 is
within the exclusive jurisdiction the Metropolitan Trial court of Quezon City. Before the court
could resolve the motion, the plaintiff, without leave of court, amended his complaint to allege a
new cause of action consisting in the inclusion of an additional amount of P200, 000, thereby
increasing his total claim to P450, 000. The plaintiff thereafter filed his opposition to the motion
to dismiss, claiming that the Regional Trial court had jurisdiction over his action. Rule on the
motion of the defendant with reasons.

The motion to dismiss of the defendant on the ground of lack of jurisdiction should be denied. The
amendment was a matter of right since a motion to dismiss is not a responsive pleading. Hence the
amended complaint supersedes the original complaint and thus the RTC has jurisdiction.

34. A sued B to recover P500, 000 based on a promissory due and payable on 5 December 1998.
The complaint was filed on 30 November 1998 and summons was served on B on 7 December
1998. B interposes a motion to dismiss on the ground that the complaint states no cause of
action. If you were the judge, how would you rule on the motion? (99 Bar Q2b)

If I were the judge, I would grant the motion to dismiss. Here, the promissory note was not yet due
when the complaint was filed on 30 November 1998. Hence the motion to dismiss should be granted for
failure of the complaint to state a cause of action.

35. Arturo lent P1 million to his friend Robert in the condition that Robert execute a promissory
note for the loan and a real estate mortgage over his property located in Tagaytay City. Robert
complied. In his promissory note dated 20 September 2006, Robert undertook to pay the loan
within a year from its due date at 12% per annum interest. In June 2007, the latter refused and
insisted on the agreement. Arturo issued a demand letter and when Robert did not comply,
Arturo filed an action to foreclose the mortgage. Robert moved to dismiss the complaint for lack
of cause of action as the debt was not yet due. The resolution of the motion to dismiss was
delayed because of the retirement of the judge.
(a) On October 1, 2007, pending resolution of the motion to dismiss, Arturo filed an amended
complaint alleging that Robert’s debt had in the meantime become due but that Robert still
refused to pay. Should the amended complaint be allowed considering that no answer has been
filed?
No. an amendment is not proper where the purpose is to cure a complaint which fails to state a cause of
action because of prematurity and where there was a timely objection by the defendant.

An amendment is not proper and should be denied if the plaintiff had no cause of action
at the filling of the original complaint and the purpose of the amendment is to introduce a
subsequently-accrued cause of action.
36. P filed a collection case for P500,000 against D. D filed an answer raising the affirmative defense of
payment. One day after the pre-trial conference, D filed an amended answer without leave of court
wherein D changed his defense from payment to fraud. Should the amended answer be admitted?[41]

No, it should not be amended. The answer may no longer be amended as a matter of right if such
amendment would raise an issue not included in the pre-trial order.

37. The INC filed a complaint against S and C Homes for specific performance and damages
wherein the INC prayed that a deed of sale over the subject parcel of land be executed in its
favor. C filed an answer while S filed a motion to dismiss. Pending the resolution of the motion
to dismiss, C Homes sold the land to the INC. The INC then filed an amended complaint
dropping C as defendant and changing the nature of the case to a mere action for damages. S
filed a motion to strike out the amended complaint on the ground that it was filed without leave
of court. Should the amended complaint be expunged from the records?

No. Where some but not all the defendants have answered, the plaintiff may still amend the complaint
as a matter of right as against the non-answering defendant or defendants. Here S had not filed an
answer. Hence the INC can still amend the complaint as a matter of right.

38. On September, 10 1981, Private respondents filed with the CFI of Pasay an action for
specific performance and damages to compel Petitioners to execute a deed of sale over a parcel
land on their favor (Civil Case No. 9412). On September, 16 1981, the Private Respondents filed
another case for annulment of sale and damages against the Petitioners and the Quiazons when
the Private Respondents learned that the land had been transferred by the Petitioners to the
Quiazons (Civil Case No. 9432). Civil Case No. 9432 was eventually dismissed on the ground
that the Private Respondents had split their cause of action. In 1996 after Petitioners had already
filed their answer, the Private Respondents filed a motion for leave to admit amended complaint
on Civil Case No. 9432. The amendment consists of changing the nature of the case from
specific performance and damages to annulment for sale and damages. The petitioners opposed
the motion on the ground that the amendment substantially changes cause of action and the
theory of the case. Should the amended complaint be admitted?

Yes, provided that before filing for the amended complaint, the pleader obtains leave of court and
provided that the amendment is not made with intent to delay the proceedings. In this case, the private
respondents filed for a motion for leave of court and substantial alteration to the cause of action or
defense is not a bar to the amendment of the original complaint so long as the amendment is not meant
for delay. (City State Savings Bank, Inc. v. Aguinaldo, GR No. 200018, April 6, 2015)

39. Respondent WG&A entered into a lease contract with the Philippine Ports Authority over a
marine slip way in the North Harbour. The lease contract proves that “the lease of the area shall
take effect on January 1, 2001 to June 30, 2001 or until such time PPA turns over its operation to
the winning bidder in the North Harbour modernization.” Believing that the lease contract
expired on June 30, 2001 PPA wrote a letter to Respondent asking it to vacate the leased
premises. Respondent replied that the lease contract is up to the turn-over of the premises to the
winning bidder but the PPA insisted on its stand. Respondent then filed an action for injunction
against PPA. PPA filed its answer. Then WG&A filed a motion to admit amended complaint.
The amended complaint is for injunction and reformation of the contract. PPA opposed the
admission of the amended complaint on the ground that the reformation sought by Responded
constituted a substantial amendment which if granted will substantially alter the Respondent’s
cause of action and theory of the case. Should the trial court admit the amended complaint?

Yes the trial court should admit the amended complaint. Under the Rule the court may grant
leave for a substantial amendment.

40. Plaintiff filed a case against Defendant for annulment of real estate mortgage. The complaint
states that the Plaintiff was defrauded into signing the mortgage. During the trial, the Plaintiff
without objection presented evidence that the mortgaged property was conjugal property and that
his wife did not give her written conformity thereto. No amendment of the complaint was made.
May the court render judgment annulling the mortgage on the ground that the spouse’s written
consent was not obtained?

Yes, Under S5 R10, when issues not raised by the pleadings are tried with the express or implied consent
of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Here the
defendant’s failure to object amounted to an implied consent to the trial of the issue of lack of spousal
consent. The failure to amend does not affect the result of the trial of the issue.

41. Same as above but the Defendant timely objected to the introduction of evidence regarding
lack of spousal consent. How should the court rule on the objection?

The court may sustain the objection on the ground that the claim of lack of spousal content is not
among the issues raised in the pleadings. However, under S5 R10, the court may in the exercise of its
discretion grant the plaintiff a continuance in order to amend the complaint so as to raise the issue of
lack of spousal consent.

42. A complaint was filed by the counsel for Superior Sales (an entity without a distinct juridical
personality) against Mr. Garcia on a money claim for goods delivered. Mr. Garcia did not file a
motion to dismiss. Eventually, trial was held and his liability was established through several
invoices, each of which uniformly showed on its face that Mr. Tan is the proprietor of Superior
Sales. After Superior Sales had rested its case, Mr. Garcia filed a motion to dismiss on the
ground that, since there is actually no person properly suing as plaintiff, no relief can be granted
by the court. On the other hand, the counsel for Superior Sales filed a motion to amend the
complaint to make it conform to the evidence, that the real party plaintiff is Mr. Tan. The court
denied the said motion on the ground that it was filed too late and instead, dismissed the case.
Did the trial court act correctly? (92 Bar Q12)Explain.

No, the trial court did not act correctly.

Under the Rules of Civil Procedure, when issues not raised by the pleadings are tried with the express or
implied consent of the parties, they shall be treated in all respects as if they had been raised in the
pleadings. 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 upon motion of any party at any time, even after
judgment; but the failure to so amend does not affect the result of the trial of these issues (S5 R10)

43. Same preliminary facts as in the preceding problem. However Mr. Garcia filed an answer
raising the defense that the Plaintiff is not a real party in interest. During the trial, Mr. Garcia
objected to the presentation of the invoices showing that Mr. Tan is the proprietor of Superior
Sales on the ground that in the pleadings, the plaintiff is Superior Sales. If you were the judge,
how would you rule on the objection?

If I were the judge, I would first grant a continuance to enable the plaintiff to amend his complaint to
state the name of the plaintiff as Mr. Tan rather than as Superior Sales. After the amendment is made
by the plaintiff, I would overrule the objection and admit the invoices since the presentation of the
merits of the action and the ends of substantial justice will be subserved thereby.

44. What is a supplemental pleading?

It is one setting forth transacions, occurrences or events which have happened since the date of
the pleading sought to be supplemented. Upon motion and upon reasonable notice anf such terms as
are just, the court may permit a party to serve a supplemental pleading.

45. In November 1989, Petitioner Superclean Services Corporation filed with the RTC a
complaint for “mandamus/certiorari” seeking to compel the Home Development & Mutual Fund
to award the 1990 janitorial contract to Petitioner as the lowest bidder. HDMF filed an answer
alleging that Petitioner did not qualify as a bidder. In 1991 Petitioner moved for the admission of
a “supplemental complaint” alleging that the delay in the case had rendered it moot and
academic and accordingly instead of pursuing its prayer for mandamus, it was now seeking
damages. The trial court denied the motion to admit “supplemental complaint.” Was it proper for
Petitioner to supplement its complaint?

No. The supervening event was cited not to reinforce or aid the original demand but to change the relief
sought to one for recovery of damages. Hence Petitioner’s remedy was not to supplement but rather to
amend its complaint. Indeed, the new relief sought is actually an alternative remedy to which Petitioner
was entitled at the time of the filing of its original complaint.

46. Arturo lent P1 Million to his friend Robert on the condition that Robert execute a promissory
note for the loan and a real estate mortgage over his property located in Tagaytay City. Robert
complied. In his promissory note dated 2- September 2006, Robert undertook to pay the loan
within a year from its date at 12% per annum interest. In June 2007, Arturo requested Robert to
pay ahead of time but the latter refused and insisted on the agreement. Arturo issued a demand
letter and when Robert did not comply, Arturo filed an action to foreclose the mortgage. Robert
moved to dismiss the complaint for lack of cause of action as the debt was not yet due. The
resolution of the motion to dismiss was delayed because of the retirement of the judge.
(a) On 1 October 2007, pending resolution of the motion to dismiss, Arturo filed an amended
complaint alleging that Robert’s debt had in the meantime become due but that Robert still
refused to pay. Should the amended complaint be allowed considering that no answer has been
filed?
(b) Would your answer be different had Arturo filed instead a supplemental complaint stating
that the debt became due after the filing of the original complaint?
No. An amendment is not proper where the purpose is to cure a complaint which fails to state a cause of
action because of prematurity and where there was timely objection by the defendant. (Swagman Hotels v.
Court of Appeals, 8 April 2005)
No, my answer would still be the same. A supplemental complaint should merely aid or reinforce the original
cause of action, not change it or confer one where there was none at the time of the filing of the original
complaint. Hence, a supplemental complaint is not proper in this case. (Superclean Services v. CA, 258 SCRA
165)

47. P filed a complaint for damages against D for breach of contract. In his complaint, P alleged
that D completed only ¾ of the house he undertook to construct. Subsequently P amended his
complaint by alleging that D completed only ½ of the house. Trial was held and thereafter the
parties submitted their evidence. The original complaint was not marked and offered in evidence.
May the court in rendering its decision take into consideration P’s statement in the original
complaint that D completed ¾ of the house?
No. An amended pleading supersedes the pleading that it amends. Hence admissions in the superseded
pleadings are merely extrajudicial admissions and still need to be offered in evidence if a party decides
to use them. (Ching v. Court of Appeals, 331 SCRA 16). D should have offered the original complaint in
evidence.

48. In an action for reconveyance of a parcel of land filed in the RTC, the defendant, through his
lawyer, filed an answer therein admitting the averment in the complaint that the land was
acquired by the plaintiff through inheritance from his parents, the former owners thereof.
Subsequently, the defendant charged his lawyer and, with leave of court, amended the answer. In
the amended answer, the abovementioned admission no longer appears; instead, the alleged
ownership of the land by the plaintiff was denied coupled with the allegation that the defendant
is the owner of the land for the reason that he brought the same from the plaintiff’s parent during
their lifetime. After trial, the RTC rendered a decision upholding the defendant’s ownership of
the land. On appeal, the plaintiff contended that the defendant is bound by the admission
contained in his original answer. Is the contention of plaintiff correct?

No, the contention of plaintiff is not correct. Under S8 R10, an amended pleading supersedes the
pleading that it amends. Hence the admissions in the superseded pleading cease to be judicial
admissions and may not be considered by the court unless offered in evidence.

49. Summons was served upon the defendant on 1 March. The Defendant filed a motion to
dismiss on 10 March. The Defendant received the order denying his motion to dismiss on 1
April. Up to when may the Defendant file his answer?

Up to 8 April. The day of the filing of the motion for reconsideration, which interrupts the period of
appeal, is excluded in the computation of the period and forms part of the remaining period counted
from notice of the denial thereof. (S22 R22; Jose Y Feria, 1997 Rules of Civil Procedure 73 (1997)). Hence
the day of the filing of the motion for reconsideration is added to the remaining period of 6 days. The
7th day after 1 April is 8 April.

50. What is the remedy of a party if the adverse party’s pleading contain allegations which are
not averred with the sufficient definiteness or particularity so that he cannot properly prepare his
responsive pleading?
He may file a motion for a bill of particulars. Note however that if the pleading is not only indefinite or
ambiguous but fails to state a cause of action, the remedy of the party is to file a motion to dismiss on
the ground that the pleading states no cause of action.

51. What is a bill of particulars?

A bill of particulars is a definite statement of any matter which is not averred with sufficient definiteness
or particularity in a pleading so as to enable the opposing party to properly prepare his responsive
pleading. (S1 R12). A bill of particulars becomes a part of the pleading for which it is intended. (S6 R12)

52. Within what time may a motion for a bill of particulars be filed?
Within the time to file a responsive pleading under R11.

53. Does the filing of a motion for a bill of particulars stay the period to file responsive
pleadings?
Yes. After service of the bill of particulars or after notice of denial of his motion, the movant may file his
responsive pleading within the period to which he was entitled at the time of filing his motion, which
shall not be less than 5 days in any event. (S5 R12)

54. Within what time shall the order requiring a pleader to file a bill of particulars be complied
with?
The compliance therewith must be effected within 10 days from notice of the order, unless a different
period is fixed by the court. The bill of particulars may be filed either in a separate pleading or in an
amended pleading. (S3 R12)

55. What is the effect on non-compliance or insufficient compliance with the order requiring the
filing of a bill of particulars?
The court may order the striking out of the pleading or the portions thereof to which the order was
directed or make such other order as it deems just. (S4 R12). For instance a court may pursuant to S3
R17 dismiss the plaintiff's complaint if he fails to comply with an order requiring the filing of a bill of
particulars.

56. Distinguish filing from service of pleadings and other papers.

Filing of pleadings and other papers means the act of presenting the same to the clerk of court, while
service is the act of providing a party with a copy of the pleading or paper concerned. (S12 R13)

57. How is service made upon a party who has appeared by counsel?
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. Note,
however, that a request for admission must be served on the party himself, not his counsel.

58. Plaintiff filed a complaint for legal redemption against the Defendant. Upon motion, the
court dismissed the complaint (first dismissal order). The Plaintiff (but not his lawyer) received
the first dismissal order on 23 April 2003. On 8 May 2003 the Plaintiff through counsel moved
for reconsideration. Meanwhile the Plaintiff’s lawyer received the first dismissal order on 15
May 2003. The Plaintiff then received on 23 May 2003 a copy of the order denying the motion
for reconsideration on the ground that it lacked a notice of hearing. On 27 May 2003 Plaintiff
filed a notice of appeal with the court. The court denied the order for having been filed more than
15 days from 23 April and that the motion for reconsideration did not toll the period to appeal
since it was a mere scrap of paper for lack of a notice of hearing. The Plaintiff on the other hand
argued that the period to appeal should have been reckoned from service on the counsel on 15
May 2003 and not from 23 April 2003. Was the notice of appeal filed on time?
No. The general rule is that where a party is represented by counsel, service should be made upon the
counsel and not the party himself and that the reglementary period should be reckoned from service
upon the counsel. Nonetheless appeal here should be reckoned not from the formal notice to counsel
but upon actual notice to him. Here it cannot be denied that the Plaintiff's counsel had actual notice of
the first dismissal order on 8 May 2003 at the latest when he filed a motion for reconsideration thereof.
Hence the 15 day period to appeal should be reckoned from 8 May 2003 and not 15 May 2003. The
notice to appeal should have been filed on or before 23 May 2003 (15th day from 8 May 2003) rather
than 30 May 2003 (15th day from May 2003).

59. What papers are required to be filed and served?

The Following papers are required to be filed with the court and served upon the parties affected:
Judgements
Resolutions
Orders
Pleadings subsequent to the complaint
Written motions
Notices
Appearances
Demands
Offer of judgment
Similar papers
(Sec 4, Rule 13 ROC)

60. Are ex-parte written motions to be served on the parties affected? Explain.
No. The trial court acted with grave abuse of discretion when it declared the defendant in default
despite the fact that there was proof that he had timely filed his answer. Furthermore a motion for
reconsideration need not be accompanied by an affidavit of merits. Appeal is not an adequate remedy
since D was not able to present any countervailing evidence before the court a quo.
Yes. Although they need not be set for hearing, however ex parte motions for preliminary attachment,
temporary restraining order, replevin, or receivership need not be served on the adverse party if such
service would compromise the efficacy of these provisional remedies.

61. What are the two modes of filing pleadings and other papers and when are they considered
filed? Explain.
By presenting the original copy of the pleading, notice, appearance, motion, order or judgment personally to
the clerk of court; or
By registered mail (S3 R13)

62. May a pleading be filed by ordinary mail?

Yes a pleading may be filed by ordinary mail if and only if there is no registry service available in the
locality either the sender or the addressee, otherwise, preferred service by mail is through registered
mail.
63. What are the modes of service of pleadings and other papers and upon whom shall service be
made?
The modes of service of pleadings and other papers are:
Personally (S6 R13)
By mail (S7 R13)
Substitute Service ( S8 R13) – shall only be done if both personal and by mail service cannot be made

64. May pleadings and documents be filed and served by fax or by mail?
Yes. Under S3R3 of the Rules of Procedure on Corporate Rehabilitation (2008) and S6 of the Interim
Rules of Procedure Governing Intra-Corporate Controversies, any pleading and/or document required by
the said Rules may be filed with the court and/or served upon the other parties by fax or email if so
authorized by the court. In such case, the date of transmission shall be deemed to be prima facie the
date of service.
Yes. Under S3 R3 of the Rules of Procedure on Corporate Rehabilitation (2008) and S6 of the Interim
Rules of Procedure Governing Intra corporate controversies any pleading and/or document required by
the said rules may be filed with the court and/or served upon the other parties by fax or email if so
authorized by the court. In such cases the date of transmission shall be deemed to be prima facie the
date of service.

65. May the court waive the requirement of service? Explain.

yes, under s3r3 of the rules of procedure on corporate rehabilitation (2008), where the pleading or
document is voluminous, the court may upon motion, waive the requirement of service, provided that a
copy thereof together with all its attachments is duly filed with the court and is made available for
examination and reproduction by any party, and provided, further, that a notice of such filing and
availability is duly served on the parties.

66. How are judgments, final orders or resolutions served?

Judgments, final orders or resolutions shall be served either personally or by registered mail. When a
party summoned by publication has failed to appear in the action, judgments, final orders or resolutions
against him shall be served upon him also by publications at the expense of the prevailing party. (S9
R13)

67. How is service by mail made?

It shall be made by depositing the copy in the post office, in a sealed envelope, plainly addressed to the
party or his counsel at this office.

If no registry service is available in the locality of either the sender or the addressee, service may be
done by ordinary mail. If known at his residence, with post-age fully pre-paid, and with instructions to
the postmaster to return the mail to the sender after 10 days if delivered.

68. Is there a rule on priority in modes of service and filing?

Yes, whenever practicable, the service and filing of pleadings and other papers shall be done personally.
Except, with respect to papers emanating from the court, a resort to other modes must be accompanied
by a written explanation why the service or filing was not done.

69. What is the consequence of non-compliance with S11R13?

The court may consider the papers as not filed.

70. What is a notice of lis pendens?

It is a notice of the pendency of a real action which the plaintiff or the defendant may record in the
office of the registry of deeds where the property subject of a pending litigation.

71. What is the purpose of a notice of lis pendens?

To serve a constructive notice to those not parties to the case that the real property is the subject of a
pending litigation.

72. D applied for the registration of a parcel of land in his name. An order of general default was
issued and title was issued in the name of D. The judgment of the RTC as a land registration
court became final. Subsequently the heirs of P filed a motion to reopen the case and nullify D’s
title, alleging that D had sold the land to their deceased father. The RTC granted the motion and
reopened the case. The heirs of P sought to register a notice of lis pendens on D’s title. The RD
and LRA en consulta denied the application on the ground that the order of general default is
binding upon whole world, including the heirs of P. is the application for notice of lis pendens
available to the heirs of P?
No. In order that a notice of lis pendens may be annotated at the back of the title, there must be a
pending case involving the land wrongfully registered in the name of the heirs of P. The heirs of P were
not a party in the land registration case as they were bound by the order of the general default. The
filing of the motion did not make the heirs of P a party to the land of registration case which had already
become final and executory. The heirs of P should have filed an action for reconveyance based on Sec.
53 of P.D. No, 1529 and a notice of lis pendens may be then annonated on the OCT immediately upon
the institution of the complaint. (Heirs of Eugenio Lopez Sr. vs Enrique, G.R. No.146262. January 2005).

73. May a notice of lis pendens be cancelled?

Yes, in the ff:
1) Upon order of court after proper showing that the notice is for the purpose of molesting the adverse
party, or that it is not necessary to protect the rights of the party who cause it to be recorded s14r13.
2) By the register of deeds, upon verified petition of the party who caused its registration sec.77 pd
1529.
3) after final judgement in favor of the defendant or other disposition of the action such as to terminate
finally all rights of the plaintiff in and to the land and /or building involved, upon the registration with
the register of deeds of a certificate of the clerk of court in which the action or proceeding was pending
stating the manner of disposal thereof.

74. May a notice of lis pendens be registered in respect of unregistered property?

Yes pursuant to Sec. 113 (d) of PD 1529. The notice of lis pendens shall be recorded by annotation on
the space provided therefore in the Registration Book.

75. Define summons and give its object or purpose.

Summons is the writ by which the defendant is notified of the action brought against him or her. Its
purpose is two-fold:
Acquire jurisdiction over the person of the defendant; and
To notify the defendant that an action has been commenced so that he may be given the opportunity to be
heard of on the claim against him
76. A. Teddy filed against Buboy an action for rescission of a contract for the sale of a
commercial lot. After having been told by the wife of Buboy that her husband was out of town
and would not be back until after a couple of days, the sheriff requested the wife to just receive
the summons in behalf of her husband. The wife acceded to the request, received the summons
and a copy of the complaint, and signed for the same.
(a) Was there a valid service of summons upon Buboy? Explain your answer briefly.
(b) If Buboy files a motion to dismiss the complaint based on the twin grounds of lack of
jurisdiction over his person and prescription of the cause of action, may he be deemed to have
voluntarily submitted himself to the jurisdiction of the court? Explain your answer briefly.
B. What is the mode of appeal applicable to the following cases, and what issues may be raised
before the reviewing court/tribunal?
(a) The decision or final order of the National Labor Relations Commission.
A) Appeal by Certiorari to the Supreme Court under Rule 45 of the Rules of Court. Issue;
Question of law.

(b) The judgment or final order of the RTC in the exercise of its appellate jurisdiction.

B) Petition for Review before the Court of Apoeal under Rule 42 of the Rules of Court. Issue;
erroneous decision.

a. the service of summon in an action for rescission of contract can not be effected by substituted
service of sumons. b. yes mere participation in a court proceedings constitute a voluntary
submission to the jurisdiction of the trying court

B) No. because under section 20 of Rule 14 of the Rules of Court, 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 apperance.

76. (a) No, there was no valid service of summons in this case; since the summons was not
personally received by Buboy, For substituted service of summons to be available, there must be
several attempts by the sheriff to personally serve the summons within a reasonable period.
“Several attempts: means at least three tries, preferably on at least two different dates” (Manotoc
v Court of Appeals, GR No. 130974, August 16, 2006).
(b) No, the filing of the motion to dismiss, assailing the jurisdiction of the court over his person,
together with other grounds raised therein, is not a voluntary submission to the court’s
jurisdiction (Garcia v. Sandiganbayan, G.R. No. 170122, October 12, 2009). Under Section 20.
Rule 14 of the Rules of Court, the defendant’s voluntary appearance in the action shall be
equivalent to service of summons. The inclusion in a motion to dismiss on other grounds aside
from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary
appearance.

The filing of a motion is deemed voluntary submission to the court’s jurisdiction only when it
constitutes an unqualified voluntary appearance before the court, such that the defendant failed to
object to the court’s jurisdiction over his person (PVIB . Spouses Dy, G.R. No. 171137, June 5
2009).
B. (a) Strictly, there is no appeal from an NLRC decision: However, NLRC decisions or final
orders are reviewable on petition for certiorari under Rule 65 of the Rules of Court; filed before
the Court of Appeals (S4 Martin Funeral Homes . NLRC, G.R. No. 130866, September 16,
1998). Petitioner may raise the issue on whether the NLRC acted with grave abuse of discretion
amounting to lack or excess jurisdiction (Pfizer Inc, v. Galan, G.R. No. 158460. August 24,
2007).

(b) The mode of appeal is petition for review under Rule 42 of the Rules of Court Petitioner may
raise errors of fact, law, or both Under Section 2 of Rule 42.
77. What is the effect of service of summons upon the defendant?
The effect of service of summons upon the defendant is the acquisition of the jurisdiction over the
person of the defendant.

78. How does a court acquire jurisdiction over the person of the defendant?
The court acquires jurisdiction over the person of the defendant by issuing a service of summons
towards him.

79. When is the summons issued?

Summons shall be issued upon the filing of the complaint and the payment of the requisite legal fees (S1
R14)

80. Give the contents of a summons.

Contains of a summons:
A. The name of the court and of the parties to the action.
B. A direction that the defendant answer within the time fixed by the Rules.
C. A notice that unless the defendant so answers, plaintiff will take judgment by default and may
be granted the relief applied for.

81. What is the effect of failure to attach a copy of the complaint to the summons?
The defendant must nevertheless appear and apprise the court of this defect; the court can then simply
furnish him with a copy of the complaint and give him a new time to answer. Otherwise he may be
declared in default and judgment rendered against him and he may not be heard to complain.

82. Who are the persons who may serve summons?

The sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person
authorized by the court issuing the summons.

83. Is summons required to serve an amended complaint?

If the defendant has not yet voluntarily appeared in court, as by filing a motion to dismiss or answer,
there is need for summons to serve the amended complaint. This is because the amended complaint
cannot be simply filed and serve as in the case of any other pleading since the defendant had not yet
appeared and indicated his address or that of his counsel. Once the defendant has voluntarily appeared
in court, the amended complaint can simply be filed and served as in the case of any other pleading and
regardless of whether the amended complaint changes the cause of action or introduces a new cause of
action.
84. P filed a complaint to collect an unpaid loan of P500, 000 from D. Summons and copy of the
complaint was served upon D. P then filed and served upon D an amended complaint changing
the amount of the unpaid loan from P500, 000 to P700, 000. No summons was issued to serve
the amended complaint. Upon P’s motion the court rendered a default judgment for P700,000
against D. (a) May the default judgment be set aside?[93] (b) What if the court renders a default
judgment but only for P500,000. May the default judgment be set aside?
A. Yes. The trial court did not acquire jurisdiction over D's person as the amended complaint was not
served upon him by summons. Hence the judgment of the court is a nullity. B. Yes. The original
complaint qas deemed superseded by the filing of the amended complaint. Hence the court did not have
jurisdiction even to try the original cause of action.

85. When an additional defendant is impleaded in a later pleading, is it necessary to serve

summons upon him?
Yes in order to obtain jurisdiction over his person. The service upon him of a copy of the court order
admitting the later pleading together with a copy thereof is not the process required for bringing him to
court.

86. May a stenographer or court interpreter serve summons?

No, they are not proper court officers as their functions do not relate to the service of summons and
court processes. A process server may serve summons.

87. May service of summons be made at night or on a Sunday or holiday?

Yes because of its ministerial character.

88. What are modes of service of summons?

1) Personal service of summons
2) Substituted service of summons
3) Summons by publication
4) Extraterritorial service of summons

89. How is summons served upon natural persons?

Through personal service under S6 R14 or substituted service under S7 R14.

90. When may substituted service be effected?

Substituted service may be effected if for justifiable causes, personal service cannot be effected upon
the defendant within a reasonable time. Otherwise put, substituted service may only be effected if it is
impossible to effect personal service within a reasonable time.

91. What is the meaning of reasonable time?

In Manotoc v. CA, the Supreme Court state that "reasonable time" should be a period of one month.

92. When is there impossibility of personal service within a reasonable time?

For substituted service to be available there must be several attempts by the sheriff to personally serve
the summons within a reasonable period of one month. The sheriff must cite why such efforts were
unsuccessful. It is only then that impossibility of service can be confirmed or accepted.
93. P filed a collection case against D with the RTC of Quezon City. The sheriff went to D’s
residence in Paranaque, waited for ten minutes and saw two young ladies arrive by tricycle.
When advised by them that D was not around, the sheriff left a copy of the summons with one of
them who was indicated in the return as “Josephine Areola.” It turned out that Areola was just a
guest of D’s maid and was only 11 years old. The return does not show impossibility of personal
service within a reasonable time. The court declared D in default and rendered a judgment by
default against D. Nine days later D filed a motion to dismiss the case for lack of jurisdiction
over their persons.
(a) Was there a valid service of summons?
(b) Should the motion to dismiss be granted?

The trial court denied the motion to dismiss. D’s motion for reconsideration was denied. The trial
court then issued a writ of execution. D filed a petition for certiorari under Rule 65 with the
Court of Appeals. The appellate court denied the petition on the ground that D’s failure to appeal
from the judgment of default rendered it final executory.
(c) Was the Court of Appeal’s denial of the petition correct?
a) No, there was no valid service of summons. There must be impossibility of effecting personal service
within a reasonable time.
b) Yes. If the defendant had not been properly summoned, the period to file a motion to dismiss for lack
of jurisdiction over his person does not commence to run until he voluntarily submits to the jurisdiction
of the court, since the court has no jurisdiction to adjudicate the controversy as to him until such time.
Consequently the period to file a responsive pleading did not even commence to run.

c) No. Since the trial court did not validly acquire jurisdiction over the person of D, the judgment issued
by it is null and void. What would only bar the action to annul the judgment would be estoppel or
laches.

94. Circe filed with the RTC a complaint for the foreclosure of real estate mortgage against
siblings Scylla and Charybdis, co-owners of the property and cosignatories to the mortgage deed.
The siblings permanently reside in Athens, Greece. Circe tipped off Sheriff Pluto that Scylla is
on a balikbayan trip and is billeted at the Century Plaza Hotel in Pasay City. Sheriff Pluto went
to the hotel and personally served Scylla the summons, but the latter refused to receive summons
for Charybdis as she was * not authorized to do so. Sheriff Pluto requested Scylla for the email
address and fax number of Charybdis which the latter readily gave. Sheriff Pluto, in his return of
the summons, stated that “Summons for Scylla was served personally as shown by her signature
on the receiving copy of the summons. Summons on Charybdis was served pursuant to the
amendment of Rule 14 by facsimile transmittal of the summons and complaint on defendant’s
fax number as evidenced by transmission verification report automatically generated by the fax
machine indicating that it was received by the fax number to which it was sent on the date and
time indicated therein. “Circe, 60 days after her receipt of Sheriff Pluto’s return, filed a Motion
to Declare Charybdis in default as Charybdis did not file any responsive pleading. (A) Should the
court declare Charybdis in default? Explain.

No, the Court should not declare Charybdis in default because there were no proper service of
summons. Sec 12, Rule 14 of the Rules of Court applies only to a foreign private juridical identity that is
not registered in the Philippines and has no resident agent in the country, and not to individuals (AM
No. 11-3-6-SC, March 15, 2011). The service of summons by facsimile under said rule is, therefore,
defective. A foreclosure of real estate mortgage is a quasi in rem action, thus, the court can render a
judgment as long as it has jurisdiction over the res and any of the modes of extra territorial service of
summons under sec 15 of Rule 14 is complied with prior leave of court. There is, unfortunately, no
showing in the problem that a leave of court was obtained before resorting to extra territorial service of
summons; hence, the service of summons is defective.

Circe filed with the RTC a complaint for the foreclosure of real estate mortgage against siblings Scylla
and Charybdis, co-owners of the property and cosignatories to the mortgage deed. The siblings
permanently reside in Athens, Greece. Circe tipped oft Sherilt Pluto that Scylla is on a balikbayan and is
billeted at the Century Plaza Hotel in Pasay City, Sheriff Pluto went to the hotel and personally served
Scylla the summons, but the latter refused to receive summons for Charybdis as she was not authorized
to do so. Sheriff Pluto requested Scylla for the email address and has number of Charybdis which the
latter readily zave. Sheriff Pluto, in his return of the summons, stated that “Summons for Scylla was
served personally as shown by her signature on the receiving copy of the summons, Summons on
Charybdis was served pursuant to the amendment of Rule 14, by facsimile transmittal of the surmons
and complaint on defendant’s far number as evidenced by transmission verification report automatically
generated by the fax machine indicating that it was received by the fax number to which it was sent on
the date and time indicated therein.” Circe, sixty (60) days after her receipt of Sheriff Pluto’s return, filed
a Motion to Declare Charybdis in default as Charybdis did not file any responsive pleading.

A) Should the court declare Charybdis in default? (2%)

Scylla seasonably filed her answer setting forth therein as a defense that Charybdis had paid the
mortgage debt.

(B) On the premise that Charybdis was properly declared in default, what is the effect of Scylla’s answer
to the complaint? (2%)

SUGGESTED ANSWER

(A) No, the Court should not declare Charybdis in default because there was no proper service of
summons. Section 12, Rule 14 of the Rules of Court applies only to a foreign private juridical entity that
is not registered in the Philippines and has no resident agent in the country, and not to individuals (A.M.
No. 11-3-6-SC, March 15, 2011). The service of summons by facsimile under said rule is, therefore,
defective. A foreclosure of real estate mortgage is a quasi in rem action, thus, the court can render a
judgment as long as it has jurisdiction over the res and any of the modes of extra-territorial service of
summons under Sec. 15 of Rule 14 is complied with prior leave of court. There is, unfortunately, no
showing in the problem that a prior leave of court was obtained before resorting to extra-territorial
service of summons; hence, the service of summons is defective.

(B) Assuming that Charybdis was properly declared in default, the court shall try the case against all the
defendants upon the Answer filed by: Scylla, and render judgment upon the evidence presented
(Section 3 (c), Rule 9, Rules of Court).

95. On the premise that Charybdis was properly declared in default, what is the effect of Scylla’s
answer to the complaint?
Assuming that Charybdis was properly declared in default, the court shall try the case against all the
defendants upon the Answer filed by: Scylla, and render judgment upon the evidence presented
(Section 3 (c), Rule 9, Rules of Court).

96. Is there a need for strict compliance with the requirements of substituted service or would
substantial compliance suffice?
There must be strict compliance. Since substituted service is in derogation of the common law and is
extraordinary in character, it must be used only as prescribed and in the circumstances authorized by
statute. Statutes prescribing modes other than personal services of summons must be strictly complied
with to give the court jurisdiction, and such compliance must appear affirmatively in return. (Laus v.
Court of Appeals, 219 SCRA 688)

97. What should the sheriff’s return in case of substituted service of summons contain?
The sheriff’s return in case of substituted service should contain a report indicating that the person who
received the summons is one with whom the defendant has a “relation of confidence” that would
ensure that the defendant would receive or be notified of the summons. (Ang Ping v CA, 15 July 1999).
Otherwise, the substituted service of summons would be presumed defective. The presumption may
however be overthrown by clear evidence that the sheriff complied with the requirements of S7 R14.

98. UCPB filed a complaint against Ongpin to enforce his liability as surety. The sheriff went to
the office of PILTEL in order to serve summons on Ongpin who was then the chairman of the
board of PILTEL and was expected to attend a board meeting on that day. Ongpin however did
not attend the board meeting. The sheriff served summons on Anne Morallo, executive secretary
of the President of PILTEL, who told the sheriff that she was authorized to receive summons in
behalf of Ongpin. When Morallo tried to forward the summons to Ongpin, the latter’s lawyers
(also the counsel of PILTEL) refused to receive it. Subsequently Ongpin entered a special
appearance challenging the jurisdiction of the trial court. Did the trial court acquire jurisdiction
over Ongpin?
No. There was non-compliance with the rule on substituted service under section 7(b) of Rule 14. The
phrase therein, “at the defendant’s office or regular place of business” does not include a corporation
where the defendant is a chairman of the board of directors as he does not regularly hold office or
conduct business therein. (UCPB v. Ongpin, G.R. No 146593, 26 October 2001)

99. In the ejectment case filed by Petitioner against Respondent, while Respondent was in
Norway, the service of summons was served upon Respondent’s brother who was then at the
house indicated in the complaint as Respondent’s residence. It turned out that the house was
being leased by Respondent to Gonzales. The MTC rendered judgment in favor of the Petitioner.
The Respondent then filed with the RTC an action to annul the MTC judgment. The RTC ruled
in favor of Respondent and the CA affirmed the RTC judgment, adding that an action for
ejectment is an action quasi in rem.
(a) Is an action for ejectment quasi in rem or in personam?
(b) Was the proper judgment annulling the MTC decision proper?
A.) An ejectment case is an action in personam since it merely seeks to enforce personal liability against
the Defendant. This can be gleaned from Sections 1, 15, 17 of Rule 70.

B.) Yes. There was no valid service of summons upon Respondent. The Respondent although staying at
Norway was a Philippine resident as shown by documents (including an REM) executed by her where
she indicated her address as Buenlag, Calasiao, Pangasinan. However, the substituted service was
effected not at her residence but at a house which although owned by her was being leased to Gonzales
who also resides thereat. Also, Oscar Layno the brother of the respondent was merely visiting the
premises to collect rental and did not reside thereat. The sheriff’s return did not even indicate that the
house was Respondent’s residence and that Oscar resided there. Residence, for purposes of summons,
is not synonymous to domicile, but the place where the person named in the summon is actually
residing. As it turned out, the occupant of the house was Gonzalez and respondent’s brother was only in
the premises to collect rent from Gonzalez. Since the MTC did not acquire jurisdiction over the person of
Respondent, its judgment is null and void. (Domagas v. Jensen, G.R. 155847, 17 January 2005)

100. The plaintiff filed a complaint for sum of money against the Defendant. The sheriff
attempted to serve summons on the Defendant at her given address but the attempt was
unsuccessful since the Defendant no longer resided at the given address. Later the trial court
issued an alias summons to serve upon the Defendant at her new address at Alabang Hills
Subdivision, Muntinlupa City. The security guard however refused to allow the sheriff to enter
the subdivision since the Defendant had given the security guards strict instructions not to allow
anyone to proceed to her house when she’s not around. When the sheriff came back to Alabang
Hills, the same thing happened. The sheriff then left the summons with the security guard but the
name of A.H. Geroche who refused to sign the receipt. Subsequently a judgment by default was
rendered against the Defendant. Defendant filed with the trial court a petition for relief. She
contended that the substituted service of summons was not valid since it was not made in
accordance with S7 R14. Should the trial court grant the petition for relief? Explain.
No, the trial court should not grant the petition for relief.

The Supreme Court has held that an overly strict application of S7 R14 may be dispensed with if the
sheriff was prevented from effecting substituted service by the defendant himself. Here the defendant
herself gave strict instructions to the security guards not to allow anyone to proceed to her house if she
was not around. In his return the sheriff declared that he was refused entry by the security guard. She
should bear the consequences of such strict instructions. It can be considered that summons was
properly served upon the defendant. (Robinson v. Miralles, G. R. No. 163584, 12 December 2006)

101. How is service of summons made upon a domestic private juridical entity?
when the defendant is a corporation, partnership, or association organized under the laws of the
Philippines with a juridical personality, service may be made on the president, in house-counsel, general
manager, managing partner, treasurer, or corporate secretary.

102. State the changes made on the list of persons who may receive service of summons on
behalf of a domestic private juridical entity under the 1964 Rules of Civil Procedure and under
the 1997 Rules of Civil Procedure.
Under the 1964 rules, the persons who may receive service of summons were the president, manger,
secretary, cashier, agent and director. Under the 1997 Rules deleted from the enumeration of persons
upon whom service of summons may be made were the agent and director. "Manager" was changed to
"general manager”, “secretary” was changed to "corporate secretary," and “cashier” was changed to
"treasurer"

103. P filed a complaint against Acme Corporation. Summons was served upon the President of
Acme Corporation while he was on holiday in Boracay. Was there a valid service of summons?
Yes. While ordinarily the service of summons under S11 R14 would be at the corporation's office or
place of business, there is no requirement that it be done so. It may be effected anywhere.

104. P filed a complaint for rescission of contract with damages against the Columbus
Corporation (CC). Summons was served upon CC through Ayreen, a filing clerk of CC. CC
failed to file an answer and was thus declared in default. Judgment was rendered in favor of P
and the judgment became final and executory. CC filed a motion to lift order of default. P
opposed the motion arguing that under the substantial compliance rule, there would be a valid
service of summons even if service was not made to the persons specified by the Rules of Court
since CC in effect admitted that it received the summons. Was there valid service of summons on
CC so as to vest the trial court with jurisdiction over CC? Was the judgment of the trial court
null and void?
No, there was no valid service of summons on CC. The substantial compliance rule has been abandoned
bt the 1997 Rules. The enumeration under S11 R14: president, in-house counsel, general manager,
managing partner, treasurer, and corporate secretary, is an exclusive enumeration following the
statutory rule expression unios est exclusion alterius. Substantial compliance rule, which was applicable
under the 1964 rules is no longer in force because of the word, "agent," present in the 1964 Rules, was
deleted under the 1997 rules.

105. Villarosa Corporation has its principal office in Davao City and has branch offices in
Paranaque and Cagayan de Oro City. Summons was served upon the branch manager at Cagayan
de Oro City. VC filed a motion to dismiss for lack jurisdiction. Should the motion to dismiss be
granted?
Yes. A branch manager is not among the persons enumerated in S11 R14. The substantial compliance
under the 1964 Rules has been abandoned and replaced by the strict compliance rule of the 1997 Rules.

106. Centrogen obtained loans from Far East Bank in the total amount of P2 million secured by a
real estate mortgage executed by Ireneo Santiago. When Centrogen defaulted in the payment of
the loan, BPI (successor-in-interest of FEBTC) instituted extrajudicial foreclosure proceedings.
Santiago filed a complaint for annulment of mortgage against BPI. The sheriff served the
summons and a copy of the complaint upon the branch manager of BPI Sta. Cruz, Laguna.
Subsequently, instead of filing an answer, BPI filed a motion to dismiss on the ground of lack of
jurisdiction over its person. BPI argued in the motion that a branch manager is not one among the
persons authorized under S11 R14 to receive summons.
(a) Was summons validly served upon BPI?
(b) Should the motion to dismiss be granted?
A. No. The service of summons on BPI's branch manager did not bind the corporation for the branch
manager is not included in the enumeration in the statute of the persons upon whom service of
summons can be validly made in behalf of the corporation. Such service is therefore void and
ineffectual.
B. No. A case should not be dismissed simply because an original summons was wrongfully served. It
should be difficult to conceive that when a defendant personal appears before a court complaining that
he had not been validly summoned, that the case against him should be dismissed. An alias o new
summons can be actually served on said defendant

107. How do you reconcile the Court’s rulings in E.B. Villarosa and in Bank of the Philippines
Islands?
In E.B Villarosa neither the plaintiff nor the trial court initiated or considered the possibility if serving
alias summons upon the defendant. In Bank of the Philippine Islands however the trial court ordered the
issuance of alias or new summons which was served upon the corporate secretary of BPI at its main
office at the BPI Building in Ayala Avenuew Makati City. It is submitted that the plaintiff and that the
Court could simply have directed the issuance of the alias summons on the defendant partnership.

108. P filed a complaint against A. The sheriff left a copy of the summons and complaint with
the security guard of A at its office in Calamba. The SG then turned over the summons and
complaint to the in-house counsel of A. A filed a motion for extension of time to file answer.
Later a filed a motion to dismiss the complaint for lack of personal jurisdiction. Should the
motion to dismiss be granted? Explain.
No, under sec 20 rule 14, the defendant’s voluntary appearance in the action shall be equivalent to
service of summons and the SC has held that the filing of a motion for extension of time to file answer is
a voluntary appearance.

109. In the preceding problem, what if instead of filing a motion for extension of answer, D filed
a motion to dismiss on the ground of lack of personal jurisdiction and of failure of the complaint
to state a cause of action. Would your answer be the same?
Yes, my answer should be the same. A case should not be dismissed outright on motion of defendant
because the original summons was wrongfully served or there was failure of service. It is inconceivable
that a complaint would be dismissed where the defendant has appeared in court and no judgment has
yet rendered in favor of plaintiff. The court can simply order or allow the plaintiff to move for the
issuance of an alias summon.

110. Would Service of summons on the office secretary of the president of a corporation be
binding upon the corporation?
It is submitted that it would be binding upon the corporation provided the sheriff made diligent
attempts to serve the president within a reasonable time. The service may be justified by way of
analogy to sec 7, rule 14, the secretary being a competent person in charge of the office or regular place
of business. As stated by Justice Regalado in his book, “the ultimate test on the validity and the
sufficiency on service of summons is whether the same and the attachments thereto were ultimately
received by the corporation under such circumstance that no undue prejudice is sustained by it from the
procedural lapse and it was afforded full opportunity to present its responsive pleadings.

111. A lawyer made two special appearances in court in behalf of Defendant Corporation in
order to challenge the validity of service of summons upon it. The summons was served upon the
lawyer while in court. Did the trial court acquire jurisdiction over the defendant corporation?
No, lawyer is not within the person within the persons enumerated under Sec 11, Rule 14 who may
validly receive summons in behalf of the corporation. Note that the word agent under the rules was
deleted in the 1997 Rules of Civil Procedure.

112. The SEC promulgated a rule that if a management committee was formed to oversee the
affairs of a corporation pursuant to P.D. 902-A, only the chairman of the management committee
can validly receive summons. Summons was served on the corporation through its corporate
secretary. Was there a valid service of summons?
Even if a management committee was formed to oversee the affairs of a corporation pursuant to PD
902-A. It would not authorize the SEC to promulgate a rule that only the chairman of the ManComm can
validly receive summons. Such rule cannot amend or alter the Rules of Court promulgated by the SC
which allows officers of a corporation to receive summons in its behalf. In this case, summons was
served upon the corporate secretary.

113. May a foreign private juridical entity bring a suit before Philippine courts?
Yes, unless it is transacting business in the Philippines without a license (sec 133, Corporate Code).
Hence, foreign corporation not licensed to do business in the Philippines can sue on an isolated
transaction.

114. May a foreign private juridical entity be sued before Philippine courts?
Yes, provided that it has transacted business in the Philippines, regardless of whether it has a license to
do so or not. (Sec 12, Rule 14). Philippine Court however do not have jurisdiction over foreign
corporations which have not transacted business in the Philippines

115. What is the meaning of the phrase, “has transacted business in the Philippines”?
Under the 1964 Rules, the phrase used was "doing business in the Philippines." (S14 R14, 1964 Rules)
"Doing business" is defined in Sec. 3(d) of the Foreign Investments Act as including the following:
(Keyword: SOAMI)

1. Soliciting orders or service contracts;

2. Opening offices, whether called "liaison" offices or branches;
3. Appointing representatives or distributors domiciled in the Philippines or who in any calendar year
stay in the country for a period or periods totalling 180 days or more;
4. Participating in the management, supervision or control of any domestic business, firm entity or
corporation in the Philippines; and
5. Any other act or acts that imply a continuity of commercial dealings or arrangements, and
contemplate to that extent the performance of acts or works, or the exercise of some of the functions
normally incident to, and in progressive prosecution of, commercial gain or of the purpose and object of
the business organization.

Provided, however, that the phrase "doing business" shall not be deemed to include mere investment as
a shareholder by a foreign entity in domestic corporations duly registered to do business, and/or the
exercise of right as such investor, nor having a nominee director or officer to represent its interests in
such corporation; nor appointing a representative or distributor domiciled in the Philippines which
transacts business in its own name and for its own account.

116. How is service of summons made upon a foreign private juridical entity?
When the defendant is a foreign private judicial entity which has transacted business in the Philippines,
service may be made on its resident agent designated in accordance with law for that purpose, or if
there is no such agent, on the government official designated by law to that effect, or on any of its
officers or agents within the Philippines.

If the foreign private judicial entity is not registered in the Philippines or has no resident agent, service
may, with leave of court, be effected out of the Philippines through any of the following means:

a) By personal service coursed through the appropriate court in the foreign country with the assistance
of the Department of Foreign Affairs;
b) By publication once in a newspaper of general circulation in the country where the defendant may be
found and by serving a copy of the summons and the court order by registered mail at the last known
address of the defendant;
c) By facsimile or any recognized electronic means that could generate proof of service; or
d) By such other means as the court may in its description direct. (S12 R14 as amended by A.M. No. 11-
3-6-SC dated March 2011)

117. Who is the “government official designated by law.”?

1. Foreign insurance corporations: the Insurance Commissioner pursuant to Sec. 190 of the Insurance
Code.
2. Foreign banks: the Banko Sentral Deputy Government in-charge of the supervising and examining
departments pursuant to Section 76 of the General Banking Law of 2000.
3. Issuer or any person liable under the Securities Regulation Code: the Securities and Exchange
Commission pursuant to Section 65 of the Securities Regulation Code.
4. Other corporations: the Securities and Exchange Commission pursuant to Section 128 of the
Corporate Code.

118. P sued H Company, Inc., a U.S. corporation with which P had entered into a construct
military housing in Subic Military Base. The sheriff served summons upon a staff of H in its
field office in Subic although H had appointed a resident agent who held office in Manila. Was
there a valid service summons?
No. When a foreign corporation has designated a resident agent authorized to receive summons
pursuant to Section 128 of the Corporation Code, such designation is exclusive and service of summons
on any other person is inefficacious. (H.B. Zachry Company vs Court of Appeals, 232 SCRA 329 [1994];
Poizat vs Morgan, 28 Phi. 597) The two other modes of service are allowed when the foreign
corporation has neglected or refused to designate a resident agent. (Poizat vs Morgan, supra)

119. Respondent sued Hong Kong & Shanghai Banking Corporation Limited (HSBC) and HSBC
International Trustee Ltd. In its complaint Respondent alleged that Thomson had issued a HSBC
check to her, that HSBC unjustly refused to honor the check despite directives for it to do so
from the drawer Thomson, that Thomson died and Respondent thus forwarded her demand to
HSBC Trustee but the latter refused to pay the checks despite receipt of the originals thereof.
Summons was served upon HSBC Trustee through the in-house counsel of HSBC at its
Enterprise Tower Office. Was there a proper service of summons upon HSBC Trustee?
No. S12 R14 is the relevant provision. Firstly, there were no appropriate allegations in the complaint
showing that HSBC Trustee is doing business in the Philippines. It is not enough to allege in a general
way that the defendant foreign corporation is doing busines in the Philippines. Secondly, thereis no
allegation in the complaint that HSBC is a domestic agent of HSBC Trustee. Thus, summons tendered to
the in-house counsel of HSBC for HSBC Trustee was clearly improper. (HSBC Ltd. vs Catalan, G.R.159590,
18 October 2004

120. Sharp Corporation is a Filipino corporation doing business in Japan through its four duly
registered branches. The Plaintiff filed in Japan case for sum of money against Sharp but
summons could not be served on Sharp in Japan. The Tokyo District Court requested the
Supreme Court of Japan to cause the delivery of the summons to the Philippines. The Japanese
Supreme Court delivered the summons to the Ministry of Foreign Affairs which forwarded the
same to the Japanese Embassy in Manila. The Japanese Embassy then sent the summons to the
Ministry of Foreign Affairs. The Ministry of Foreign Affairs endorsed the summons to the
executive judge of the CFI. The sheriff then served the summons at Sharp’s principal office in
Manila. A judgment was rendered by the Japanese court against Sharp. Sharp filed an action for
the enforcement of the Japanese judgment before the Manila Regional Trial Court. The RTC and
the Court of Appeals both dismissed the petition on the ground that the action for collection is in
personam and extraterritorial service of summons is not allowed. May the judgment of the
Japanese court be enforced in the Philippines?
Yes. Applying the doctrine of processual presumption, the Japanese procedural law on service of
summons upon a private judicial entity is presumed to be the same asS12 R14. The delivery of summons
to the Japanese Ministry of Foreign Affairs is equivalent to service "on the government official
desiignated by law to that effect" as provided in S12 R14. Hence, it is not a case of extraterritorial but
territorial service of summons. (Northwest Orient Airlines vs Court of Appeals 241 SCRA 192 [1995])

121. What are the instances wherein service of summons may be made by publication?
1. Service upon defendant whose identity or whereabouts are unknown. (S14 R14)
2. Extraterritorial service upon a non-resident defendant. (S15 R14)
3. Service upon a resident temporarily out of the Philippines. (S16 R14)

122. C has a due but unpaid promissory note drawn in his favor by T, whose present
whereabouts are unknown to him. One day C saw T in Tangub City. Whereupon C filed a suit
against T in the RTC of Tangub alleging that T is a resident defendant but whose address is
unknown and cannot be ascertained by diligent inquiry. He moved the court to allow service of
summons through publication. Should the court grant the motion? Explain.
Yes, the court should grant the motion. Under S14R14, summons may be served through publication
upon resident whose whereabouts are unknown and cannot be ascertained by diligent inquiry.

123. Alfon was detained in the BJMP of Iligan City. A Compliant for collection of sum of
money was filed against him by Nofla, his neighbor in Iligan. Summons was served upon him
through his son living in their residence. Was there a proper service of summons to him?
Explain.
No, there is no proper service of summons serve to him. S14, R9 states that 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.

124. After the filing of the Complaint and the payment of docket fees, who will issue the
summons?
Upon filing of the complaint and the payment of the docket fees, the clerk of court shall for with issue
the corresponding summons to the defendants.

125. In a collection case filed against D by P, the summons was not served because D was no
longer residing in place stated in the complaint. A return was made by the sheriff showing such
facts. May the Clerk of court issue the alias summons motu proprio? Explain.
No, the sheriff or the server must serve a copy of the return on plaintiffs’ counsel within five (5 ) days
from completion of failure of the service in order for the plaintiffs’ counsel to move for default and
when defendants fail to answer on time then the alias of summon may sought.
126. P filed a complaint for specific performance against D. In the complaint, D was stated to be
residing at Purok “K”, Poblacion, Norzagaray, Bulacan. The sheriff went to D’s house and talked
to him. D refused to receive the summons. What will the sheriff do? Explain.
If the respondent refuses to receive the summons, it can be effected by tendering it to him.

127. P filed an action to collect a sum of money from A. summons returned unserved as A was
no longer residing at the given address. P moved for service of summons by publication. The
court granted the motion and copy of the summons was served by publication. However no copy
of the summons and order of publication was sent to A at his last known address. Judgment by
default was rendered against A. Subsequently A filed an action to annul the judgment. A argued
that a copy of the summons and the order should have been sent to his last known address and
since this was not done, the service of summons by publication is ineffective. P argues that the
requirement of sending a copy of the summons and the order to the defendant’s last known
address applies only to S15. Is P correct? Explain.
No. P is not correct. The requirement of sending a copy of the summons and order to the defendant’s
last known address by registered mail applies to all instances where service of summons by publication
is made. This may be gleaned from S19 R14 regarding proof of service by publication which provides
that the affidavit shall avert a copy of the summons and order for publication shall be sent by registered
mail to the defendants last known address.

128. A, a grocery owner, sued B before an RTC for the payment of some merchandise. When the
sheriff failed to effect service of summons on B in Tubod, Lanao del Norte, the address stated in
the complaint, the court ordered the publication of the summons and a copy of the complaint in a
newspaper of general circulation in Lanao del Norte. As B was actually no longer residing in
Lanao del Norte and consequently did not become aware of the collection suit against him, he
failed to file his answer. He was therefore declared in default and a judgment was in due time
rendered against him. One year after the date of the judgment, a levy of execution was made on
B’s properties.
(1) Did the court acquire jurisdiction to render judgment? Explain.
(2) What remedies, including provisional ones, if any, would be available to B, and to what
forum should he go for relief?
1. No, he court did not acquire jurisdiction to render judgment. The Supreme Court has held that in
order for a court to acquire jurisdiction to render judgment it must acquire jurisdiction over the person
of the defendant. Here there was no valid service of summons by publication since there was no
showing that diligent efforts were exerted to ascertain the whereabouts of B nor was the summons and
order for publication sent to B at his last known address.

2. B should file with the Court of Appeals an action to annul the judgment of the regional trial court on
the ground of lack jurisdiction. B can incorporate in the annulment suit an application for a temporary
restraining order or preliminary injunction to restrain the sheriff from proceeding with public auction of
the levied properties.

129. When may extraterritorial service of summons be availed of?

Extra territorial service of summons may be availed of:
When the defendant is a non-resident and is not found in the Philippines
1. When the action affects the personal status of the plaintiff.
2. The action relates to the property within the Philippines:
 a. In which the defendant has or claims an interest, or
b. In which the relief demanded consists of excluding the defendant from any interest
therein.
3. An action wherein the property of the defendant has been attached within the Philippines.

130. In the foregoing instances, does the extraterritorial service of summons confer jurisdiction
over the person of the non-resident defendant? Explain.
No, the court acquires jurisdiction over the res (plaintiff’s status or defendant’s property) which is
situated in the Philippines but not over the person of the defendant.

131. What is a long-arm statute? Explain.

A long arm statute is a statute which allows a local forum to obtain jurisdiction over a non-resident
defendant when the cause of action is generated locally and affects a local plaintiff.

132. Is S15R14 a long-arm statute? Explain.

No, since it does not provide for the acquisition of personal jurisdiction over the non resident defendant.
What provided for is the acquisition of jurisdiction over the res situated in the Philippines or termed as
quasi in rem jurisdiction.

133. P filed a case to collect a loan from D, who is a resident of the U.S.
(a) May extraterritorial service of summons be effected? Explain.
(b) What would be the recourse, if any, of P in order to run after D? Explain.
NO, the action is one o personam,hence extraterritorial service cannot be affected in an action against a non-
resident defendant.
P should look for property of D in the Philippines and have them attached.The attachment would then
convert P’s action as quasi in rem that extraterritorial service of summons may be affected.

134. D, an American tourist in the Philippines, negligently drove his car hitting and inflicting
serious injuries upon P. after the accident, D forthwith went back to the U.S. Can P file a torts
case in the Philippines against D? Explain.
No, an action of tort and damages is one in personam, since we do not have a long arm statute in the
Philippines, P has no judicial recourse unless he will locate any property of D in the Philippines and
attach it.

135. What are the modes of effecting extraterritorial service?

Service may by leave of court be effected out of the Philippines by:
1. Personal service as under S6.
2. Publication in a newspaper of general circulation such places and for such time as the court may
order, in which case a copy of the summons and order of publication hall be sent by registered mail.
3. Other manner the court may deem sufficient.

136. May summons be validly served by telefax of email? Explain.

Yes. Extraterritorial service may be ''in any other manner the court may deem sufficient.

137. What is the purpose of extraterritorial service of summons?

The purpose of extraterritorial service of summons is not to vest the court with jurisdiction over the
person of the defendant but merely for satisfying the due process requirement. In a proceeding in rem
or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction
on the court provided that the court acquires jurisdiction over the res.

138. L filed an action for partition and accounting in the RTC of Iligan against her sister, M, who
is a resident of Singapore and is not found in the Philippines. Upon motion, the court ordered the
publication of the summons for 3 weeks in a local tabloid, Bulgar. G, an OFW vacationing in the
Philippines, saw the summons in the Bulgar and brought a copy of the tabloid when she returned
to Singapore. G showed the tabloid and the page containing the summons to M who said, “Yes, I
know, my kumara Anita scanned and emailed that page of Bulgar to me.” Did the court acquire
jurisdiction over M? Explain.
No, the court did not acquire jurisdiction over M. Under S15 R14 on extraterritorial service of summons,
it is required that a copy of the summons and order be sent to the defendant's last known address by
registered mail. In the case, no copy of summons and order was sent to M's last known address by
registered mail. The fact that M read a copy of the Bulgar would not constitute a valid service of
summons in the absence of a specific court order directing that the service upon M of a copy of Bulgar
would not constitute a sufficient service.

139. P filed an action to recover title over a parcel of land in Laguna from D, who is a U.S.
resident. With leave of court, extraterritorial service of summons by publication was made, with
a copy of the summons and order being sent by registered mail to D’s last known address. The
trial court rendered judgment by default declaring P as the owner of the land and imposing
attorney’s fees by way of damages upon D. Is the judgment of the court valid?
The judgment of the court is valid in part. The judgment declaring P as the owner of the land is valid
since the court validly acquired jurisdiction over the res. However, the judgment ordering D to pay
attorneys fees to P is invalid since a claim for recovery of damages is one in personam and the court
never acquired jurisdiction over the person of D.

140. Petitioner left for the United States. Respondent husband then filed an action to declare the
nullity of his marriage with Petitioner. Upon leave of court, summons was published in a
newspaper of general circulation once a week for 3 consecutive weeks and a copy of the
summons and the order was sent to the Petitioner at her given address in California through the
Department of Foreign Affairs, Pasay City. Petitioner contended that there was no valid
extraterritorial service of summons since a copy of the summons and order was not sent directly
to her but only through the Department of Foreign Affairs at Pasay City. Was there a valid
service of summons?
Yes, there was a valid extraterritorial service. Under S15 R14, extraterritorial service of summons may be
made where the action concerns the personal status of the plaintiff. An action for the declaration of
nullity concerns the plaintiff's personal status and is an action in rem or quasi in rem. Here the
extraterritorial service as effected not through the second but through the third mode, in any other
manner the court may deem sufficient since the sending of the summons and order to the Petitioner at
her last known address through the DFA was made with leave of court and by virtue of a court order.

141. It is an order of the court requiring a retroactive re-dating of an order, judgment or

document filing be entered or recorded in a judgment.
Nunc pro tunc
142. Private Respondent filed an action to revive a judgment which held the Petitioner liable for
the return of a barge and for actual, moral and exemplary damages to the Private Respondent.
The Petitioner at that time was already residing in the United States. Sheriff served summons at
the house in Paranaque where the Petitioner’s mother resides. The Petitioner was declared in
default and judgment was rendered reviving the earlier case. The Petitioner filed an action to
annul the judgment of revival. Should the judgment be annulled?
Yes. The judgment should be annulled. The action is one in personam. Hence, extraterritorial service
summons in an action against a non- resident defendant cannot be validly effected. Hence the judgment
is null and void.

143. Paul Schenker, a Swiss citizen and resident, through his wife and attorney-in-fact, Helen
Schenker, a Philippine resident, filed a suit in the Philippines against Gemperle for the
enforcement of subscriptions to shares of stocks. Gemperle then filed with the CFI an action for
damages against Paul Schenker, alleging that Paul had caused the publication of malicious
imputations against the plaintiff which damages his business reputation. Summons and copy of
the complaint was served upon Helen Schenker. Did the CFI acquire jurisdiction over the person
of Paul?
Yes, since Paul had appointed his wife as his attorney-in-fact, she is authorised to bring suits in his
behalf, she is also deemed authorised to receive summons in a case filed against Paul, especially where
in his behest and wherein he had authorized Helen to be his attorney-in-fact.

144. P filed an action for partition against the spouses Valmonte, who both reside in the United
States. Mr. Valmonte however has a law office in Manila and he travels between the USA and
the Philippines. The sheriff served summons on Mr. Valmonte at his law office. Mr. Valmonte
received summons for himself but not for his wife on the gorund that he was not authorized to
receive summons on her behalf. Subsequently Mrs. Valmonte was declared in default for not
filing an answer.
(a) What is the nature of an action for partition?
(b) Was summons validly served on Mrs. Valmonte?
An action for partition is an action quasi in rem.
No. Since she is a non-resident, service could only be made pursuant to S15R14 and such service must be
outside of the country. Furthermore Mrs. Valmonte did not appoint Mr. Valmonte as her attorney in fact to
represent her in litigations and in court. Mr. Valmonte was merely acting as his wife's counsel in negotiations
with P, but this cannot be construed as an authorization to represent her in court. Compared with Gemperle
v. Schenker, where the non-resident husband had appointed the wife as hi Attorney in fact to represent him
in a suit against the plaintiff. There the Supreme Court said that service of summons and plaintiff's complaint
upon the wife validly conferred upon the court jurisdiction over the husband.

145. Daniel Chan owns a house and lot at Forbes Park, Makati, where his wife and children
reside. He is the Chief Executive Officer of various family corporations where he owns 20% of
the respective capital stocks. These family corporations owe several banks the total sum of P2.5
billion, with Chan as a solidary co-debtor. After Chan has carefully manipulated the finances of
the family corporation and diverted their funds to his account in a Swiss bank, he flees from the
Philippines and now resides at 127 Rue Duphine, Zurich, Switzerland. The banks concerned now
retains the services of Atty. Ramon Castillo for the purpose of filing a suit in the Philippines
against Daniel Chan on his obligation as a solidary co-debtor on the loans of the family
corporations. One of the procedural problems is the method of effecting a valid service of
summons upon Daniel Chan, now residing in Switzerland, to enable the Philippine court to
acquire jurisdiction over his person. Describe the remedies and procedures, and the supporting
grounds thereof that Atty. Castillo should follow as would enable him to effect a valid service of
summons on Daniel Chan.
First, Atty. Castillo should file a collection suit against Daniel Chan with application for the issuance of a
writ of preliminary attachment. A writ of preliminary attachment may be applied for since Daniel is a
non-resident.

Upon the issuance of the order and writ of attachment, Atty. Castillo should coordinate with the sheriff
to attach the house and lot at Forbes Park. The writ of attachment may be enforced even prior to service
of summons since Daniel Chan is a non-resident.

Upon the attachment of the Forbes Park property, Atty Castillo should file a motion for leave to effect
extra - territorial service upon Daniel Chan. Extra territorial service may now be availed of since the
property of Chan has been attached within the Philippines.

Once the court grants leave and extraterritorial service is effected upon Chan, the court acquires
jurisdiction over the res (the property attached) and may render valid judgment enforcible against the
Forbes Park property.

There is no solution to the problem of how to effect valid service of summons in order for the court to
acquire jurisdiction over the person of Chan. The reason is that the court cannot acquire jurisdiction
over the person of a non-resident found in the Philippines. Extraterritorial service under S15R16 confers
jurisdiction only over the res and not the person of the defendant.

Hence, Atty Castillo should try look for more property of Chan to attach. The court's judgment can be
enforced only on the property of Chan which is attached.
146. How is summons made upon a resident who is temporarily out of the Philippines? Explain.
When any action is commenced against a defendant who ordinarily resides with in the Philippines, but
who is temporarily out of it, may, by leave of court, be also affected out of the Philippines as under
S15R16.

147. Does S16R14 also cover action in personam?

Yes, since it uses the word "any action", clearly implying that it applies not only to action in rem, and
quasi in rem but also quasi in rem but also action in personam.

148. P sued F for damages arising from a motorcycle accident. The sheriff left the summons and
a copy of the complaint with Fr. Bautista at the convent where he and Father Maximo reside. At
the time of the service of summons, F was temporarily out of the Philippines. Judgment was
rendered by default against F. He then sought to annul the judgment on the ground that he was
not validly served with summons. F contends that in the case of a resident defendant who is
temporarily out of the Philippines, summons should be served by extraterritorial service pursuant
to S15 R14 and not by substituted service under S7 R14. F also contends that he never received a
copy of the summons and complaint. Should the judgment be annulled?
No. A perusal of S16 R14 reveals that extraterritorial service is not the exclusive mode of serving
summons upon the resident defendant temporarily our of the Philippines sine the said provision uses
the word “may”.
149. P filed with the RTC a torts case against A, B, C, and D. The sheriff went to D’s residence
and served the summons and complaint on D’s husband, since D was temporarily out of the
country in Ireland. Subsequently D filed a motion to dismiss on the ground that she was not
properly served with summons since she was temporarily out of the country and hence service of
summons on her should conform to Section 16, Rule 14 of the Rules of Court which requires
extraterritorial service. Should the RTC grant the motion to dismiss?
The RTC should not grant the motion to dismiss. The SC has held that in the case of a resident
temporarily out of the Philippines, extraterritorial service is not mandatory since section 16 of Rule 14
uses the word “may” and thus substituted service of summons may be resorted to.