RULE 4 VENUE OF ACTION

If the venue is improper, it would not be correct to file a MD on lack of jurisdiction because venue has nothing to do with jurisdiction in civil cases Improper venue is not jurisdictional in civil cases. But in criminal cases, venue is territorial jurisdiction. In criminal cases, venue is jurisdictional it being an essential element of jurisdiction. Venue Place where the action is brought or tried Waivable and can be subject of agreement Governed by procedural law Rule 4 of Rules of Court Refers to the relation between the parties Limits plaintiffs right

VENUE the place or the geographical area where an action is to be filed and tried. It relates only to the place of the suit and not to the jurisdiction of the court in civil cases. The laying of venue is procedural not substantive. It relates to the venue of the court over the person rather than the subject matter. The parties may waive the venue of a case. Venue is not a matter of jurisdiction. It becomes jurisdictional only in criminal cases. The trial court cannot motu proprio dismiss a case on the ground of improper venue. The court may motu proprio dismiss an action in cases of lack of jurisdiction over the subject matter, litis pendencia, res judicata and prescription. The court may however, effect a motu proprio dismiss the complaint based on improper venue in an action covered by the rules on summary procedure. The rule on venue should be construed liberally especially for the convenience of the plaintiff How venue is determined: 1. Personal venue is the residence of the plaintiff or defendant at the option of the plaintiff. If the defendant is a non-resident, the venue is the residence of the plaintiff or where the non-resident defendant may be found, at the election of the plaintiff. 2. Real the place where the real property involved, or any portion thereof, is situated. However, if the defendant is a non-resident and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of the defendant located in the Philippines, the venue is the residence of the plaintiff or where the property or any portion thereof is situated.

Jurisdiction Authority of the court to hear the case Over the subject matter cannot be waived Governed by substantive law, BP 129 Refers to the relation of the parties of the court Limits the courts authority

In case of non-resident defendants, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found. It is an action in rem or quasi in rem in connection with the property located in the Philippines, the court acquires jurisdiction over the res, and its jurisdiction over the person of the non-resident is non-essential. It is not necessary that the court should take actual custody of the property, potential custody thereof being sufficient This rule shall not apply in those cases where a specific rule or law provides otherwise; or where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof.

Examples of Real Actions a. An action to annul transfers of real estate made by decedent b. Action to annul free patent for a parcel of land c. Action to declare a certain lot as conjugal property of the widow d. Action to annul transfers of the plaintiff to demand damages for improvements which he had made on the lot of the defendant e. Action to declare the sale of the fishpond as fictitious, being in reality an action for its recovery When an action involves various parcels of land situated in different provinces of one and same transaction, the RTC in any of the said provinces may take cognizance of the action, judgment rendered may be executed in the other provinces where the rest of the real estate is situated Various parcels of land situated in different provinces cannot be the subject of a single complaint, if they are objects of separate and distinct transactions. There is no common venue. Venue is limited to the respective RTC where each real estate is located

RULE 6 KINDS OF PLEADING

PLEADINGS written statements of the respective claims and defences of the parties submitted to the court for appropriate judgment. (SEC.1) Purpose of pleadings: 1. To APPRAISE the court of the rival claims in a judicial controversy submitted for trial and decision 2. To INDICATE fairly the nature of the claims and defences of both parties 3. To DEFINE the issues and form the foundation of proof to be submitted during trial as well as advice a party to what his adversary would rely on as a cause of action or as defense It is designed to create only the skeleton or framework of a lawsuit

Examples of Personal Actions: a. Action for breach of covenant in a lease b. Action to recover a debt c. Action for collection of rents and rules of venue of actions for forcible entry and unlawful detainer do not apply d. Action to liquidate a partnership e. Recovery of damages f. Action to compel defendants to execute the corresponding purchase contracts in favour of the plaintiffs, involving real property and to pay damages The parties may stipulate venue as long as the agreement is in: 1. Writing 2. Made before the filing of the action 3. Exclusive as to the venue Restrictive stipulation the suit be filed only in the place agreed upon by the parties. With restrictive words. only, solely, exclusive in this court, in no other court save , particularly, nowhere else but/except , or words of equal import Permissive stipulation only or merely consented to the place or venue and no qualifying or restrictive words. When a MD to dismiss based on improper venue is denied, the defendant may not appeal. An order denying a motion to dismiss is merely interlocutory. It is not final. Only final orders or judgments may be appealed from. The normal remedy is to file an answer and interpose the ground as an affirmative defense, go to trial and appeal from the adverse judgment. The remedy is certiorari and prohibition.
1 REVIEWER IN CIVIL PROCEDURE BY DUKE SUCGANG

Necessity of pleadings Pleadings are necessary to invoke the jurisdiction of the court. Also, in order to confer the jurisdiction on a court, that the subject matter be presented for its consideration in a mode sanctioned by law and done by the filing of the complaint or other pleading. Pleadings are intended to secure a method by which the issues may be properly laid before the court. The pleadings are designed to present, define and narrow the issues, to limit the proof to be submitted in the trial, to advise the court and the adverse party of the issues and what are relied upon as the causes of action or defense The pleadings of the parties present the issue to be tried and determine whether such issue is of law or of fact All pleadings should be liberally construed in order that the litigants may have ample opportunity to prove their respective claims and a possible denial of substantial justice due to legal technicalities may be avoided. In case there are ambiguities in the pleadings, the same must be construed against the pleader and that no presumptions in his favour are to be indulged in The real test of a good pleading is whether the information given is sufficient to enable the party to plead and prepare for trial. A legal conclusion may serve the purpose of pleading as well as anything else if it gives the proper information Issues arise upon the pleadings where a fact or conclusion of law is maintained by the one party and converted by the other. An issue of fact

arises a. upon a material allegation in the complaint converted by the answer; b. upon new matters in the answer except an issue of fact is joined thereon. A question not raised in the pleading may properly be ignored by the court. Pleadings allowed: 1. Complaint 2. Counterclaim 3. Cross claim 4. Third, fourth, etc., party complaint 5. Complaint-in-intervention 6. Answer 7. Reply 8. Counter- counterclaim 9. Counter-crossclaim Pleadings allowed under Summary Procedure (complaint; compulsory counterclaim; cross-claim pleaded in the answer; and answer); [permissive counterclaims, third-party complaints, replies and pleadings-in-intervention are prohibited] Pleadings not allowed in a petition for writ of amparo or habeas data are counterclaim, cross-claim, third-party complaint, reply and pleadings in intervention Motion Purpose is to apply for an order not included in the judgment Cannot be initiatory as they are always made in a case already filed in court May be filed even after judgment Any application for relief not by a pleading is a motion May be oral or written

Negative specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. 2. Affirmative when it alleges new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by the claiming party. The affirmative defense include fraud, statute of limitation, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. Before an affirmative defense qualifies, it must be of such nature as to bar the plaintiff from claiming on his cause of action The defendant may admit the material allegation in the complaint, however, he will plead a new matter which will prevent a recovery by the plaintiff. 1.

Pleading Purpose is to submit a claim or defense for appropriate judgment May be initiatory Always filed before judgment Only 9 kinds of pleadings are allowed Must be written

Specific denial the denial of each material allegation of the fact of the complaint the truth of which does not admit. The purpose of specific denial is to make him disclose alleged in the complaint which he succinctly intends to disprove at the trial, together with the matter which he relied upon to support the denial Absence of a denial (except as to amount of unliquidated damages) not specifically denied are deemed admitted. If the allegations are deemed admitted, there is no more triable issue between the parties and if the admissions appear in the answer of the defendant, the plaintiff may file a motion for judgment on the pleadings under rule 34. A party who desires to contradict his own judicial admission may do so only by either of: a. Showing that the admission was made through palpable mistake, or b. That no such admission was made Kinds of specific denial: 1. Absolute denial defendant specifies each material allegation of fact the truth of which he does not admit and sets forth the substance of the matters upon which he relies to support his denial 2. Partial denial where the defendant does not make a total denial of the material allegation in a specific paragraph. He denies only a part of the averment. If he chooses this type of denial, he specifies that part the truth of which he admits and denies only the remainder. Ex. Defendant admits the allegations in par. 5 of the complaint, that plaintiff sustained injuries, but denies the allegation that the collision occurred through defendants fault. 3. Denial by disavowal of knowledge where the defendant alleges that he is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint. Negative pregnant does not qualify as a specific denial. It is conceded to be actually an admission. It is a negative implying also an affirmative and which although is stated in a negative form really admits the allegations to which it relates. Specific denial must be coupled with an oath in: a. Denial of an actionable document b. Denial of allegations of usury in a complaint to recover usurious interest If a party desires to deny the genuiness and the due execution of the document, he must: a. Specifically deny the document, and to set forth what he claims to be the facts b. Deny the document under oath The failure to deny does not preclude a party from arguing against it by evidence of fraud, mistake, compromise, payment, statute of limitations, estoppel, and want of consideration Counterclaim any claim which a defending party may have against an opposing party. (sec. 6) This may refer to a claim for money, or some other relief against an opposing party The nature of the counterclaim is distinct and independent cause of action, so that when properly stated, the defendant becomes an actor and there are two simultaneous actions pending between the same parties, wherein each is at the same time both a plaintiff and a defendant It is an offensive as well as a defensive plea and not necessarily confined to the justice of the plaintiffs claim The purpose of counterclaim are designed to enable the disposition of a whole controversy of interested parties conflicting claims, at one time and in one action, provided all parties can be brought before the court and matter decided without prejudicing the rights of any party

Complaint it is the pleading alleging the plaintiffs cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint.(sec. 3) The office, purpose and function of a complaint is to apprise defendant of the cause of action which he is to meet The test for determining the sufficiency of the complaint if it fairly apprises the defendant of the plaintiffs real claims and contentions in such manner that the defendant is not misled to his surprise or injury. It is whether upon such facts a judgment may be rendered against the defendant If a complaint be defective, but the parties go to trial, and the plaintiff without objection, introduces sufficient evidence to constitute the particular cause of action intended to allege in the original complaint and defendant did not object, an issue is joined as fully and as effectively as if it had been previously joined by the most perfect pleading When a complaint does not contain the fats constituting the cause of action, it may not be cured by the exhibits attached to it When a document attached to the complaint contradicts the latters allegation, the defendant should be made to answer the same so as to establish an issue and then the parties will be given an opportunity, the plaintiff to reconcile any apparent conflict between the allegations in his complaint and a document attached to support the same, and the defendant an equal opportunity to refute the allegations of the complaint and to show that the conflict between its allegation and te document attached to it is real, material and decisive Contents: 1. Cause of action 2. Names and residence of parties It must contain ultimate facts, or essential facts constituting plaintiffs cause of action. Must exclude evidentiary facts and conclusions of law. Answer is a pleading in which a defending party sets forth his defenses. (sec. 4) The real function of an answer is to define the issue and show why the plaintiff is not entitled to judgment The purpose of an answer is to notify the court and the plaintiff of the defense relied on so that the latter may prepare to meet it and to defeat the action and bar plaintiffs recovery Defense may either be negative or affirmative

REVIEWER IN CIVIL PROCEDURE BY DUKE SUCGANG

It is permitted in such a way of preventing multiplicity of suits by allowing in one action the determination of the entire controversies between the parties Counterclaim is not a part of the answer because it is a separate pleading. It may however, be included in the answer.

Counterclaim May Be Compulsory Or Permissive. Compulsory counterclaim (sec. 7): 1. Arises out of the transaction or occurrence that is the subject matter of the opposing partys claim 2. Falls within the jurisdiction of the court 3. Does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. A permissive counterclaim does not have the requisites of a compulsory counterclaim. Absence of a logical connection with the subject matter of the complaint

asserted is liable or maybe liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. (sec. 8) While a counterclaim is asserted by a defending party against a claimant, a crossclaim is asserted by a defending party against a co-defending party so that the latter may be held liable for the claim which the claimant seeks to recover from the crossclaimant. The period to answer a cross-claim must be made within 10 days from service The purpose of cross-claim is to determine the entire controversy, including the defendants sued together, with a minimum of procedural steps

Cross-claim A claim against a co-party Must arise from the transaction or occurrence that is the subject matter of the original complaint or counterclaim

Counterclaim Claim against an opposing party May or may not arise out of the subject matter of the complaint (Sec. 9)

Elements of Compulsory Counterclaim a. It arises out of, or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing partys claim b. It does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction c. The court has jurisdiction to entertain both as to the amount and nature A compulsory counterclaim not initially set up because of the pleaders oversight, inadvertence, excusable negligence or when justice requires, may be set up, by leave of court by amendment of the pleadings before judgment. If not set up in the action, the compulsory counterclaim shall be barred. A counterclaim whether matured r acquired by a party after serving his pleading, may, with the permission of the court, be presented as a counterclaim by supplemental pleading before judgment The rules recognize the right of the defending party to prosecute the counterclaim in the same or separate action notwithstanding the dismissal of the complaint, and without regard as to the permissive or compulsory nature of the counterclaim Permissive counterclaim Not subject to the rule. It may be set up as an independent action and will not be barred if not contained in the answer to the complaint Considered an initiatory pleading A certification against non-forum shopping and certificate to file action issued by Lupon Tagapamayapa A PC must be answered by the party against whom it is interposed, otherwise, he may be declared in default as to the counterclaim.

Counter counterclaims and counter cross-claims may be asserted against an original counterclaims. A cross-claim may also be filed against an original crossclaimant Reply is a pleading, 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 joins or makes issue as to such new matters. (Sec. 10) A reply is purely a defensive pleading; it is addressed to the answer; its office or function is to attack the answer and to meet, make or join issues as to, the new matters alleged therein, by denying or traversing them, or alleging facts in avoidance thereof, or averring new matters to overcome an affirmative defense It is a responsive pleading to an answer. Not a responsive pleading to a counterclaim or cross-claim. The filing of the reply is not mandatory and will not have an adverse effect on the defendant. If a party does not file such reply, all new matters alleged in the answer are deemed controverted or denied. No admission follows from the failure to file a reply. The material allegations of a complaint must be specifically denied but the allegations of new matters or material allegations of the answer need not be denied because they are deemed denied by the Rules for the plaintiff. When the defense in the answer is based upon a written instrument or document, said instrument is considered an actionable document. Hence, the plaintiff has to file a reply under oath if he desires to deny specifically the genuiness and due execution of the actionable document if he wants to avoid an admission of such matters Third, (forth, etc.) party complaint this pleading is a claim which a defending party, with leave of court, file against a person who is not yet a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponents claim. (Sec. 11) A third-party complaint is actually a complaint independent of, and separate and distinct from the plaintiffs complaint. The courts are vested with discretion to allow or disallow a party to an action to implead an additional party. It is not proper to file a third-party complaint against the plaintiff is asserted by way of a counterclaim. Time to answer a third party complaint shall be within 15 days from service of summons. (sec. 13) The purpose of third-party complaint is to avoid delay and circuity of actions and to enable the controversy to be disposed of in one suit, that is, to permit the determination in a single suit of not only the original claim, but the added partys liability therefor

Compulsory When filed at the time the answer is filed, shall be contained in the answer because a CC not set up shall be barred Not an initiatory pleading Does not require the certificate of nonforum shopping and issued by the Lupon Tagapamayapa A CC that merely reiterates special defenses are deemed controverted even without a reply, or raises issues which are deemed automatically joined by the allegations of the complaint, need not be answered. Failure to answer a CC may not be a cause for a declaration of default

Docket and other lawful fees should be paid A compulsory counterclaim not initially set up because of the pleaders oversight, inadvertence, excusable neglect or when justice requires, may be set up by leave of court by amendment of the pleadings before judgment. If not set up in the action, the CC shall be barred. A counterclaim may be set up after the filing of the answer with leave of court by supplemental pleading before judgment Period to answer a counterclaim must be made within 10 days from service. Effect of dismissal of a complaint on the counterclaim already set up 1. Dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of counterclaim pleaded in the answer 2. Dismissal shall be limited to the complaint unless within 15 days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action 3. If complaint is dismissed through plaintiffs fault, the dismissal will not prejudice the counterclaim. Cross-claim 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. It may include a claim that the party against whom it is
3 REVIEWER IN CIVIL PROCEDURE BY DUKE SUCGANG

Rule 7 PARTS OF A PLEADING

Parts of a pleading: 1. Caption 2. Title 3. Body 4. Signature and address 5. Verification 6. Certificate against forum shopping Pleading must only aver facts and not conclusion because the latter are for the courts to make.

Evidentiary are not presented in pleading because it must be presented during the trial It must only contain ultimate facts because it is essential to a partys cause of action or defences. Caption sets forth the name of the court, title of the action and docket number if assigned. II. Title it shall indicate the names of the parties which shall be named in the original complaint or petition; but in the subsequent pleadings, it shall be sufficient if the name of the first party of each side be stated without the other. Only write the first name of plaintiff and defendant and followed by the word ET AL. It is not the caption of the pleading but the allegations which determine the nature of the action and the court shall grant relief warranted by the allegations and proof even if no such relief is prayed for Instances where the law does not require the name of the parties to be stated: 1. Subsequent pleading 2. Class suit 3. When the identity or name of the defendant is unknown 4. When you sue an entity without judicial personality 5. If a party is sued in his official capacity. Official designation is sufficient. I. Body body of the pleading sets forth its designation, the allegations of the partys claims or defenses, the relief prayed for and the date of the pleading a. Paragraphs b. Headings c. Relief d. Date Par. 2 is related to Rule 2 on joinder of causes of action. One can file a complaint embodying two or more causes of action. The prayer in a pleading does not constitute an essential part of the allegations determinative of the jurisdiction of a court. The prayer for relief, although part of the pleading, cannot create a cause of action; hence, it cannot be considered as a part of the allegations on the nature of the cause of action. Pleading must state the relief sought but it may add a general prayer for such further other relief. When two or more causes of action are joined, the first cause of action shall be prefaced with the words, first cause of action, or and so on for the others. III. A pleading should contain only allegations of ultimate facts, facts essential to a partys cause of action or defense or such facts as are so essential that they cannot be stricken out without leaving the statement of the cause of action inadequate. The complaint must contain relief sought from the court and to which he believes he is entitled. wherefore clause. The relief or prayer, although part of the complaint, does not constitute a part of the statement of cause of action. it does not also serve to limit or narrow the issues presented It is important to remember that the court may grant a relief prayed not prayed for as long as the relief is warranted by the allegations of the complaint and the proof IV. Signature and address of the plaintiff or counsel must be indicated in the pleading. An unsigned pleading has no legal effect but the court may authorize to allow the pleader to correct the deficiency if the pleader shows to the satisfaction of the court, that the failure to sign the pleading was due to inadvertence and not to delay the proceedings. One must state the address and not a post office box because the exact date when the mail is claimed cannot be determined if it is a PO box. Signature and address must constitute a certificate by him that: 1. He has read the pleading 2. That to the best of the knowledge, information and belief that there is a good ground to support it 3. That it is not interposed for delay Counsel who files and unsigned pleading may constitute disciplinary action. However; he may delegate the signing of the pleading to another lawyer but cannot do so in favour of on who is not. A signature by agents of a lawyer amount to signing by unqualified persons, thus void.
4 REVIEWER IN CIVIL PROCEDURE BY DUKE SUCGANG

Disciplinary actions: a. When he deliberately files an unsigned pleading b. When he signs a pleading in violation of the Rules c. When he alleges in the pleading scandalous or indecent matter d. When he fails to promptly report to the court a change of his address Verification A pleading is verified by an affidavit which declares that: 1. Affiant has read the pleading 2. That the allegations therein are true and correct of his personal knowledge

V.

The general rule is that pleadings do not have to be verified. Verification is required only if the rules or the law requires a pleading to be verified. If a pleading required to be verified does not contain a verification, it will constitute a substantial defect. The verification requirement is significant to secure an assurance that the allegations in a pleading are true and correct and not the product of the imagination or a matter of speculation, and the pleading is filed in good faith. It has the same consequence as an unsigned pleading. An unsigned pleading and an unverified pleading when verification is required produces no legal effect whatsoever. The absence of verification when required will not affect the jurisdiction of the court but it is still a substantial defect. Absence of verification is cause to treat the pleading as unsigned and dismissible. It is only formal and not a jurisdictional requirement. Non-compliance does not render it fatally defective It is correctible by requiring an oath VI. Certification against non-forum shopping It is a sworn statement certifying the following matters: a. That the party has commenced or filed any claim involving the same issues in any court, tribunal or quasi-judicial and to the best of his knowledge, no other cause of action or claim pending b. That if there is such other pending action or claim, a complete statement of the present status thereof c. That if he should learn that the same or similar action or claim has been filed or pending, he shall report the fact within 5 days therefrom to the court where the complaint or initiatory pleading has been filed. Failure to comply with the requirements shall not be curable by mere amendment of the complaint or other initiatory pleading, but shall be the cause for the dismissal of the case without prejudice. If the certification is false or non-compliance with any of the undertakings shall constitute indirect contempt of the court, without prejudice to the corresponding administrative and criminal actions. If the acts constitute wilful and deliberate forum shopping shall be a ground for summary dismissal with prejudice and shall constitute direct contempt as well as a cause for administrative sanctions.

forum shopping when a party institute two or more suits in different courts, either simultaneously or successive, in order to ask the courts to rule on the same or related causes and/or grant the same or substantially the same reliefs or causes on the supposition that one or the other court would make a favourable disposition or increase a partys chances of obtaining a favourable decision or action. It is mandatory but not jurisdictional It is the plaintiff or principal party who executes the CFNS under oath and not executed by the attorney. Signed by the party himself and cannot be signed by his counsel The reason that the party himself signed the CFNS is that he has actual knowledge, or knows better than anyone else, whether he has initiated similar action/s in other courts, agencies or tribunals. How to determine forum shopping? elements of litis pendencia are present or a final judgment in one case will result to res judicata in another. Whether in two or more cases pending, there is: a. Identity of the parties b. Identity of the rights or causes of action c. Identity of reliefs sought Liberal interpretation of the rules on the signing of the certificate against forum shopping to achieve substantial justice as expeditiously as possible. Dismissal for failure to comply with the required CNFS is not to be done motu proprio by the court but upon motion and after hearing.

Dismissal is non-appealable. The remedy is to avail of the appropriate civil action under Rule 65. A juridical entity can only perform physical acts through properly delegated individuals. The CFNS may be executed by properly authorized persons Wilful and deliberate forum shopping shall be a ground for summary dismissal and no motion to dismiss and hearing are required. Dismissal is with prejudice and shall constitute direct contempt and administrative sanctions Submission of false certification shall constitute indirect contempt of court without prejudice to the corresponding administrative and criminal sanctions Non-compliance with the undertakings in the CFNS has the same effect as the submission of a false certificate.

precedent, capacity to sue or be sued, fraud, mistake, malice, judgment or official document or act. Facts that may be averred generally: 1. Conditions precedent 2. Capacity to sue or be sued 3. Capacity to sue or be sued in a representative capacity 4. Legal existence of an organization 5. Malice, intent, knowledge or other condition of the mind 6. Judgments of domestic or foreign courts, tribunals, boards or officers 7. Official document or act refers to a written instrument upon which the action or defense is based. 2 options on how to plead an actionable document: 1. The substance of such instrument or document, shall be set forth in the pleading; and the original or a copy thereof shall be attach as an exhibit 2. The copy of the document may with like effect be set forth in the pleading in whicih there is no need to attach the copy. Denial not under oath still valid when the requirements of an oath does not apply: 1. When the adverse party does not appear to be a party to the instrument 2. When compliance with an order for an inspection of the original instrument is refused 3. When the document to be denied is not classified as an actionable document but merely an evidentiary matter. When the document is not actionable, there is no need to follow Sec. 7.

CNFS should cover: 1. Complaints/petitions 2. Permissive counterclaims 3. Petition for review 4. Third party complaint 5. Cross claim 6. Complaint in intervention not covered 1. answer with compulsory counterclaim 2. appeals 3. criminal cases 4. cases before administrative body

Rule 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS

Every pleading shall contain in a methodical and logical form a plain, concise and direct statement of the ultimate facts, omitting the statement of mere evidentiary facts. If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. An ideal pleading is brief and concise The purpose of pleadings is to settle and define the issues between the parties, so that the court may be advised as to the questions in dispute Logical order should be observed in the statement of ultimate facts to avoid repetition, as well as to obtain conciseness, logical order The ultimate facts should be alleged by direct averment. They must be stated positively and not hypothetically ultimate facts those which directly form the bases of the right sought to be enforced or the defenses relied upon, if the ultimate facts are not alleged, the cause of action would be insufficient. It is which the evidence will support. evidentiary facts those which are necessary to prove the ultimate facts or which furnish evidence of the existence of some other facts. Should not be stated in the pleading but should be brought out during the trial. Essential elements of a cause of action 1. Statement of the right 2. Statement of the obligation 3. Statement of the violation 4. Statement of the damage Only ultimate facts should be alleged and not evidentiary facts Conclusions of law may not be pleaded as ultimate facts. Conclusions of law is a statement of a right or liability flowing from a certain facts Facts and not conclusions of fact should be pleaded Other matters that should not be stated in the pleadings are: 1. Facts which are presumed by law 2. Conclusions of fact or law 3. Matters which are in the domain of judicial notice Alternative causes of action or defenses a party may set forth two or more statements of a claim or defenses alternatively or hypothetically either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. Allegation or averments in a pleading are made depending on what matters are being alleged in the complaint. Whether is a condition
5 REVIEWER IN CIVIL PROCEDURE BY DUKE SUCGANG

A general averment of the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity is not sufficient. Facts showing such capacity or authority is necessary to be alleged The issue as to the capacity of any party to sue or be sued should cannot be contested at the trial unless such legal existence, capcity or authority has been contested by specific denial, and the such denial contains supporting particulars which are within the pleaders knowledge It is not sufficient that the legal existence of an association of persons that is made a party to an action be averred generally. Fact showing the legal existence of such association must be alleged specifically If the defendant fails to assert plaintiffs lack of capacity to sue by MD or in the answer, it shall be deemed to have waived such objection. Fraud or mistake must be stated with particularity to appraise the other party of what he is to be called on to answer, and so that it may be determined whether the facts and circumstances alleged amount to fraud Failure to allege fraud or mistake with as much particularity as is desirable is not fatal if the general purport of the claim or defense is clear, since all pleadings should be so construed as to do substantial justice.

Matters not deemed admitted by the failure to make a specific denial: a. b. c. The amount of unliquidated damages Conclusions in a pleading which do not have to be denied at all because only ultimate facts need be alleged in a pleading Non-material averments or allegations are not deemed admitted because only material allegations have to be denied

RULE 9 EFFECT OF FAILURE TO PLEAD

Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. Defenses or objections that can still be taken cognizance of the court despite the fact that they are not raised in the motion to dismiss or answer: 1. The court has no jurisdiction over the subject matter 2. There is another action pending with the same parties for the same cause (litis pendencia) 3. The action is barred by prior judgment (res judicata) 4. The action is barred by statute of limitation (prescription) The presence of these grounds authorized the court to motu proprio dismiss the claims. These ground must, however, appear from the pleadings or the evidence on record.

The exceptions can be raised at any time during or after the trial or even for the first time on appeal.

Exceptions: a. Where the court has no jurisdiction over the subject matter failure to plead lack of jurisdiction in the answer does not waive such defense. The defense of lack of jurisdiction may be raised for the first time by motion to dismiss filed after answer b. Where there is another action pending between the same parties for the same cause in order for such action to be dismissed, the following must concur: 1. Identity of the parties or at least representing the same interests in both actions 2. Identity of rights asserted and relief prayed for, the relief being founded on the same facts 3. Identity in the two cases should be such that the judgment that may be rendered in one would, regardless of which party is successful, amount to res adjudicata in the other c. Where the action is barred by prior judgment or by statute of limitations the defendant may move to dismiss the complaint where the cause of action alleged therein is barred by prior judgment. Once an issue in a case has been raised and finally decided, it cannot be litigated anew Elements of res adjudicata: 1. There is a final judgment or order in the prior civil case 2. The court that rendered the judgment order in the prior case had jurisdiction over the subject matter, and over the parties concerned 3. There was judgment or order on the merits in the prior case 4. There is identity of parties, identity of subject matter and identity of cause of action Compulsory counterclaim or cross-claim not set up shall be barred

Unliquidated damages those which are still subject to evidence before it can properly be awarded such as the presentation of receipts in terms of actual damages, or taking of testimonies to determine mental anquish or besmirched in cases of moral damages. Liquidated damages those which are already fixed and proof of evidence to establish the same are not required.

No default in annulment or declaration of nullity of marriage or legal separation The court shall not motu proprio declare the defendant in default. A motion to declare the defending party as default must be filed by the claiming party before a declaration of default is made by the court. Effect of partial default the court shall try the case against all the defending parties based on the answers filed and render judgment upon the evidence presented where the claim states a common cause of action against them Order of Default order issued by the court on motion of the claiming party with notice to the defending party at the commencement of the proceedings, for failure of the latter to answer the pleading within the period provided by the Rule. Interlocutory. Not appealable. Judgment of Default rendered after the order default is issued granting the claimant such relief as his pleadings may warrant or established by his evidence when so required by the court. Final appealable. Effect of declaration/order of default: 1. The party declared in default loses his standing in court and prevents him from taking part in the trial 2. He is nevertheless entitled to notices of subsequent proceedings. He may participate in the trial, not as a party but as a witness 3. A declaration of default is not an admission of the truth or the validity of the plaintiffs claim. Action of the court after the declaration/order of default: 1. To proceed to render judgment 2. To require the plaintiff to present his evidence ex parte The court need not personally receive the evidence if it decides to hear the evidence of the plaintiff. The reception of the evidence may be delegated to the clerk of court It is within the sound discretion of the TC to permit the defendant to file his answer and to be heard on the merits after the reglementary period for filing the answer expires. It is the discretion of the TC to extend the time for filing an answer but also to allow an answer to be filed after the reglementary period

Default the procedural concept that occurs when the defending party fails to file his answer within the reglementary period. It does not occur from the failure of the defendant to attend either pre-trial or the trial. Requisites before a party may be declared in default: 1. There must be a motion to declare the defending party in default filed by the claiming party 2. Summons has been validly and previously served upon him 3. Defending party must have failed to file his answer within the reglementary period or within the period fixed by the court 4. There must be proof of the failure to file the answer 5. The defending party must be notified of the motion to declare him in default 6. There must be a hearing of the motion to declare the defendant in default A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. The court has no authority to motu proprio declare the defendant in default. A motion to declare the defending party must be filed by the claiming party before a declaration of default is made by the court. Before the defending party can be declared in default, a. the claiming party must file a motion to declare said defending party in default b. The defending party must be notified of the motion to declare him in default, and c. The claiming party must prove that the defending party has failed to answer within the period provided by the Rules of Court A party declared in default at may any time after notice and before judgment file a motion to set aside the order of default upon proper showing that his failure is due to fraud, accident, mistake or excusable negligence ; and that he has meritorious defense. The order of default may be set aside on such terms and conditions as the judge may impose on the interest of justice.

Steps when the defendant fails to file an answer within the time allowed: a. Motion to declare defendant in default b. Order of default c. Judgment based on the complaint of the plaintiff unless court requires the claimant to submit evidence. (ex-parte presentation of plaintiffs evidence) Remedies of a defending party declared in default: 1. Remedy after notice of order and before judgment the defendant must file a motion under oath to set aside the order of default and show that: a. The failure to answer was due to fraud, accident, mistake or excusable negligence and b. that the defendant has a meritorious defense 2. Remedy after judgment and before judgment becomes final and executory the defendant may file a motion for new trial under Rule 37. He may also appeal from the judgment as being contrary to the evidence or the law 3. Remedy after the judgment becomes final and executory the defendant may file a petition for relief from judgment under Rule 38 4. Where the defendant has however, been wrongly or improvidently declared in default, the court can be considered to have acted with grave abuse of discretion amounting to lack of jurisdiction and when the lack of jurisdiction is patent in the face of the judgment or from judicial records, he may avail of the special civil action of certiorari under Rule 65 A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed nor award unliquidated damages

Partial default: 1. When a pleading asserting a claim states a common cause of action against several defending parties, 2. Some of whom answer and others fail to do so Effect: the court will try the case against all upon the answers thus filed and render judgment upon the evidence presented. The relief shall not exceed the amount or different in kind from that prayed for nor award unliquidated damages
6 REVIEWER IN CIVIL PROCEDURE BY DUKE SUCGANG

A judgment by default may be rendered in the following cases despite an answer having been filed: 1. Failure to answer interrogatories 2. Disobeying compliance with the various modes of discovery 3. Wilful failure to appear before an officer who is to take his depositions

If the amendment introduces a new and different cause of action, then the prescriptive period is deemed interrupted upon the filing of the amended complaint Where the amendment has not altered or changed the original cause of action then the interruption of the prescriptive period retroacts on the date of the filing of the original complaint. 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 is necessary to cause them to conform the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. 1. 2. When evidence is introduced on an issue not alleged in the pleadings and no objection was interposed by the other party When evidence is offered on an issue not raised in the pleadings but an objection was interjected.

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS

Pleadings may be amended by adding or striking out an allegation or name of the party, or by correcting a mistake in the name of a party or mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. A plaintiff has the right to amend his complaint once at any time before a responsive pleading is served by the other party or in case of a reply to which there is no responsive pleading, at any time within 10 days after it is served. (Sec. 2, amendment as a matter of right) Subsequent amendment must be made with leave of court Amendment does not retroact to the date of the filing of the original action The court would be in error if it refuses to admit an amended pleading when its exercise is a matter of right. This error is correctible by mandamus because the courts duty is purely ministerial as a matter of right.

Amendment as a MATTER OF RIGHT the party has the unconditional right to amend his pleading. The court has no right to prevent him from amending. The opposite party has no right to oppose the amendment. Amendment as a MATTER OF JUDICIAL DISCRETION the court may or may not allow the amendment. So the other party has the right to oppose. If a motion to dismiss is filed, an amendment to the complaint would still be a matter of right during the pendency of the motion to dismiss. Such a motion is not a responsive pleading and its filing does not preclude the exercise of the plaintiffs right to amend his complaint. Even if the motion to dismiss is granted by the court, the plaintiff may still amend his complaint as a matter of right before the dismissal becomes final as long as no answer has yet been served. A complaint which fails to state a cause of action may be cured by evidence presented during the trial or by amendment and without objection during the trial. However, the curing effect is applicable only if a cause of action in fact exists at the time the complaint is filed, but the complaint is defective for failure to allege the essential facts. Defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. (Sec. 4) Amendment as a matter of right: 1. Before an answer if filed (complaint) 2. Before a reply is filed or before the period for filing a reply expires (answer) 3. Any time within 10 days after it is served (reply) 4. Formal amendment Substantial amendments which are a matter of judicial discretion The amendment must be substantial and the adverse party has already filed and served a copy of his responsive pleading It must be with leave of court Such leave may be refused if it appears to the court that the motion was made with intent to delay Orders of the court shall be made upon motion filed in court and after notice to the adverse party and an opportunity to be heard.

Supplemental pleading one which sets forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The filing of supplemental pleadings requires leave of court. The court may allow the pleading only upon such terms as are just. This leave is sought by the filing of a motion with notice to all parties. The adverse party may plead thereto within 10 days from notice of the order admitting the supplemental pleading. Amended pleading Supplemental pleading Refers to the facts existing at the time of Refers to the facts arising after the the commencement of the action filing of the original pleading Takes the place of the original pleading Taken together with the original pleading Can be made as a matter of right as Always with leave of court when no responsive pleading has yet been filed When an amended pleading is filed, a A supplemental pleading does not new copy of the entire pleading must be require the filing of a new copy of the filed entire pleading When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks. An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claims and defenses alleged therein not incorporated in the amended pleading shall be deemed waived. The curing effect under sec. 5 is applicable only if a cause of action exists at the time the complaint is filed, but the complaint is defective for failure to allege the essential facts.

Non-existent cause of action There is yet no delict or wrong committed by the defendant It is not curable by amendment

Imperfect cause of action A delict or wrong has already been committed and alleged in the complaint, but the cause of action is incomplete Curable by amendment

REVIEWER IN CIVIL PROCEDURE BY DUKE SUCGANG