Rule 14 -Summons

Sec. 1.Clerk to issue summons. Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants. (1a) Definition: Summons is a writ by which defendant is notified of the action brought against him. Purpose: Service of summons is the means by which the court acquires jurisdiction over his person. A. If a complaint is amended, must summons be served again? Yes:d 1. if it is amended before he appears; and 2. a new cause of action is allege -De Dios v. CA, 212 (1992) Not after responsive pleading is served B. If new defendant is added? Fetalino v. Sanz, 44 Phil 691 (1923) C. If there is substitution under Rule 3, Sec. 16? Sec.2.Contents.The summons shall be directed to the defendants, signed by the under seal, and contain: clerk of court

c)a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the summons. (3a) Summons Form Greetings: You are hereby required, within fifteen (15) days after service of the summons upon you, to file with this Court and serve on the plaintiff your answer to the complaint, copy of which is attached, together with the annexes. You are reminded of the provision in the IBP-OCA memorandum on Policy Guidelines dated March 12, 2002 to observe restraint in filing motion to dismiss and instead allege the grounds thereof as defenses in the Answer. If you fail to answer within the time fixed, the plaintiff will take judgment by default and maybe granted the relief applied for in the complaint. Sec. 3.By whom served. The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons. (5a) Who can served summons? 1. Sheriff 2. His deputy 3. Other proper court officer 4. Any suitable person, if authorized by the court [Sequito v. Letrondo, 105 Phil. 1139 (1959) Sec. 4.Return. When the service has been completed, the server shall, within five (5) days there from, serve a copy of the return, personally or by registered mail, to the plaintiffs counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service. (6a)

a)the name of the court and the names of the parties to the action; b)a direction that the defendant answer within the time fixed by these Rules;

Sec. 5.Issuance of alias summons.If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiffs counsel, stating the reasons for the failure of service, within five (5) days there from. In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons. (4a) Modes of Service: 1. Service in person-Sec.6 2. Substituted service-Sec.7 3. Service by publication -Secs. 14 -16 Sec. 6.Service in person on defendant. Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. (7a) Service in Person Rule 14, Sec. 6 1.Handing copy in rendering it to him 2. Leaving copy in his office 3. Leaving copy in his residence with person of sufficient age and discretion Questions: 1.Can the sheriff serve it on defendant outside his residence? 2.Will it be in person if it is served on his wife in the residence? 3.Can the sheriff serve it on the wife while the latter is in a restaurant? Paclibar v. Pamposa, 507 SCRA 30 (2006) vs. Personal Service Rule 13, Sec. 6 1. On counsel or person or ten-party

-by registered mail Sec. 7.Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a)by leaving copies of the summons at the defendants residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendants office or regular place of business with some competent person in charge thereof. (8a) Substituted Service: Sec. 7, Rule 14 vs. Sec. 8 Rule 13 1. Delivering copy to Clerk of Court Discretion lure of both per-sonal service

1. Leaving copy at residence with person of sufficient age and with proof of fail2. Leaving copy at of fice or regular place of and service by business with competent mail person in charge Cases:

1.Miranda v. CA, 326 SCRA 278 (2000) son-in-law (same compound) 2.Kalfan v. Orion, 522 SCRA 617 (2007) security guard 3.Garcia v. Sandiganbayan, 603 SCRA 348 (2009) [jail) Requisites: 1.Defendant cannot be served within a reasonable time in person 2.Impossibility of prompt service should be shown by stating the efforts made [in the return] 3.There should be report stating relation of confidence between person who received and person to be served

Pascual v. Pascual, 607 SCRA 288 (2009) 1. What is a reasonable time for the sheriff to effect a personal service in order to demonstrate impossibility of prompt service? To the plaintiff, reasonable time means no more than seven (7) days since an expeditious processing of a complaint is what a plaintiff wants. To the sheriff, reasonable time means 15 to 30 days because at the end of the month, it is a practice for the branch clerk of court to require the sheriff to submit a return of the summons assigned to the sheriff for service. The Sheriffs Return provides data to the Clerk of Court, which the clerk uses in the Monthly Report of Cases to be submitted to the Office of the Court Administrator within the first ten (10) days of the succeeding month. Thus, one month from the issuance of summons can be considered reasonable time with regard to personal service on the defendant. 2. How many attempts should the sheriff make before he is allowed to make substituted service? 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 [of one month] which eventually resulted in failure to prove impossibility of prompt service. Several attempts means at least three (3) tries, preferably on at least two different dates. In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of service can be confirmed or accepted. 3. What specific details on the attempted personal service must be included in the sheriffs return? The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service.[26]The efforts made to find the defendant and the reasons behind the failure must be clearly narrated in detail in the Return. The date and time of the attempts on personal service, the inquiries made to locate the defendant, the name/s of the occupants of the alleged residence or house of defendant and all other acts done, though futile, to serve the summons on defendant must be specified in the Return to justify substituted service. The form on Sheriffs Return of

Summons on Substituted Service prescribed in the Handbook for Sheriffs published by the Philippine Judicial Academy requires a narration of the efforts made to find the defendant personally and the fact of failure.[27] Supreme Court Administrative Circular No. 5 dated November 9, 1989 requires that impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts, which should be made in the proof of service. 4. Who is a person of suitable age and discretion? If the substituted service will be effected at defendants house or residence, it should be left with a person of suitable age and discretion then residing therein.[28]A person of suitable age and discretion is one who has attained the age of full legal capacity (18 years old) and is considered to have enough discernment to understand the importance of a summons. Discretion is defined as the ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed. [29]Thus, to be of sufficient discretion, such person must know how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus, the person must have the relation of confidence to the defendant, ensuring that the latter would receive or at least be notified of the receipt of the summons. The sheriff must therefore determine if the person found in the alleged dwelling or residence of defendant is of legal age, what the recipients relationship with the defendant is, and whether said person comprehends the significance of the receipt of the summons and his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons. These matters must be clearly and specifically described in the Return of Summons. 5. Who is a competent person in-charge? If the substituted service will be done at defendants office or regular place of business, then it should be served on a competent person in charge of the place. Thus, the person on whom the substituted service will be made must be the one managing the office or business of defendant, such as the president or manager; and such individual must have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons. Again, these details must be contained in the Return.

Sheriffs Return This is to certify that on Aug. 19, 2001, at 10:00 oclock in the morning, I served the summons together with the complaint upon defendant Jhogeet Carnecer, at her given address at No. 444 Purok Baracuda, San Pedro Panabo City, thru her mother, Esperdidion Tintero, who is residing thereat and who signed to acknowledge receipt thereof. My effort to serve summons personally to the respondent failed because she reported for work at the time the service was made. Thus, substituted service was made in accordance with Sec. 8, Rule 14 of the Rules of Court. Sec. 8.Service upon entity without juridical personality. When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought. (9a) Sec. 9.Service upon prisoners. When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. (12a) Sec. 10.Service upon minors and incompetents. When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of the minor, service may also be made on his father or mother. (10a, 11a) Sec. 11.Service upon 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, managing partner, general manager, corporate secretary, treasurer, or in-house counsel. (13a)

Domestic Private Juridical Entity: 1.President 2.Managing partner 3.General manager 4.Corporate secretary 5.Treasurer 6.In-house counsel Is the list exclusive? 1. Milenium v. Tan, 326 SCRA 563 (2000) Substantial Compliance Requisites: 1.Actual receipt by person served 2.He must sign a receipt or sheriffs return 3.Actual receipt by the corporation 2. Viking v. CA, 434 SCRA 232 (2004) agent or connected CA allowed it 3. Kalfan v. Orion, 522 SCRA 617 (2007) security guard not allowed no relation of confidence 4. BD Long Span v. RS Ampeloquio, 599 SCRA 468 (2009): staff member As a rule, summons should be personally served on defendant. In case of a domestic private juridical entity, the service of summons must be made upon the officer who is named in the statute (i.e., the president, managing partner, general manager, corporate secretary, treasurer or in-house counsel), otherwise, the service is insufficient. The purpose is reasonably certain that the corporation will receive prompt and proper notice in an action against it or to insure that the summons be served on a representative so integrated with the corporation that such person will know what to do with the legal papers served on him. However, if the summons cannot be served on defendant personally within a reasonable period of time, then substituted service may be resorted to under Sec. 7 of Rule 14. Nonetheless, the impossibility of prompt personal service must be shown by stating that the

efforts have been made to find the defendant personally and that such efforts have failed. How is service to a domestic juridical entity classified? Personal or substituted? Sec. 12.Service upon foreign private juridical personality. When the defendant is a foreign private juridical 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 be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines. (14a) Foreign private juridical entity: Transacted business 1.Resident agent designated in accordance with law for that purpose 2.If none, on government official designated by law to that effect a. Insurance Commissioner foreign insurance company b. Bangko Sentral Deputy Governor foreign banking corporation c. Securities and Exchange Commission other foreign corporations 3. Any of its officers or agents within the Philippines Feria/Northwest v. CA, 241 SCRA 192 (1995) Johnlo v. Flores, 88 Phil. 749 service upon attorney Can a foreign corporation be sued in the Philippines? A. If doing business, yes. It does not matter whether: 1. It has a license or 2. It has no license Doing business: continuity of conduct and intention to establish a continuous business, such as appointment of a local agent B. Not doing business: one single or isolated business transaction-Yes Signetics Corp. v. CA, 225 SCRA 737

(1993) A foreign corporation, although not engaged in business in the Philippines, may still look up to our courts for relief; reciprocally such corporation may likewise be sued in the Philippines for acts done against a person or persons in the Philippines provided that it would not be impossible for court processes to reach the foreign corporation. Result only for actions in rem and quasi in rem. [not in personam] exceptLingner & Fisher v. IAC, 125 SCRA 522- where it agreed to be sued in the contract Sec. 13.Service upon public corporations. When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. (15) Sec. 14.Service upon defendant whose identity or whereabouts are unknown. In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. (16a) IN ANY ACTION: Can summons by publication be effected on an unknown defendant or one whose whereabouts cannot be ascertained in an action in personam? Feria?

Sec. 15.Extraterritorial service. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (17a) When can a non-resident defendant not found in the Philippines be sued? 1.when the action affects the personal status of the plaintiff; 2. when the action relates to or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; 3.when the action relates to or the subject of which is, property within the Philippines in which the relief demanded consists,wholly or in part, in excluding the defendant from any interest therein; or 4. when the property of the defendant has been attached within the Philippines. Alba v. Court of Appeals, July 29, 2006, First Division: Ynares-Santiago, J. How is an action in personam distinguished from an action en rem? An action in personam is lodged against a person based on personal liability; an action in rem is directed against the thing itself instead of the person; while an action quasi in rem names a person as defendant, but its object is to subject that persons interest in a property to a corresponding lien or obligation. Hence, petitions directed against the thing itself or the res, which concerns the status of a person, like a petition for adoption, annulment of marriage, or correction of entries in the birth certificate, are actions in rem.

Action in rem or quasi in rem (not in personam): 1.Sum of money 2.Partition/quieting of title 3.Recognition and support 4.Foreclosure of mortgage 5.Annulment of marriage 6.Breach of contract In other words, if action is in personam, extraterritorial service of summons by publication is not allowed. The court cannot acquire jurisdiction over him. In effect, one cannot sue a non-resident defendant not found in the Philippines in an action in personam. If the action is en rem or quasi in rem, jurisdiction over the res is sufficient, even if jurisdiction over the person is not acquired. The service of summons is only to comply with the requirement of due process, not for the purpose of vesting jurisdiction over his person. How is service done? 1. Personal service 2. By publication in a newspaper of general circulation + copy of summons and court order sent by registered mail 3. Any other manner which the court may deem sufficient Any other manner: Valmonte v. CA, 252 SCRA 92 (1996) 1.Done outside the country such as through the Philippine Embassy 2.Motion for leave supported by affidavits 3.Order granting leave with period to answer of not less than 60 days Romualdez-Licarosv.Licaros,401SCRA762(2003) The court ordered that summons be served by publication in a newspaper of general circulation, at the same time furnishing respondent a copy of the order, the corresponding summons and a copy of the petition at her given address in the United States through the Department of Foreign Affairs

BancoDoBrasilv.CA,333SCRA545(2000) Panamanian vessel damaged by typhoon while docke dat La Union. It later became an object of salvage. Suit against Banco Do Brasil toe xclude it from claiming interest on vessel. Summons by publication. Court awarded 300,000 dollars as damages Gomez v. CA, 425 SCRA 98 (2004) For specific performance [execute deed of sale] or rescission of contract of sale, one defendant in Bohol, the other in US. Substituted service of summons. [Real action]. Is it in personam or in rem? [Action against a person on the basis of his personal liability, or against the thing itself? Will it bind parties only? Sec. 16.Residents temporarily out of the Philippines. When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. (18a) How do you serve summons on a resident defendant temporarily out of the country? 1.Personal 2.Publication 3.Any other manner court deems 4.Substituted[Sec. 7] (Montefalcon) Does service by publication or other means apply if an action is in personam? When any action/Montefalcon? Palma v. Galvez, 615 SCRA 86 (2010) Doctor was sue for damages. Summons served on husband since she was out of the country. Since it is an action in personam, must extra-territorial service be resorted to. No. Not mandatory. Sec.18.Proofofservice.-

The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy. (20) Sec.19. Proof of service by publication.If the service has been made by publication, service maybe proved by the affidavit of the printer,hisforemanorprincipalclerk,oroftheeditor,businessoradvertisingmanager,tow hichaffidavitacopyofthepublicationshallbeattached,andbyanaffidavitshowingthedepo sitofacopyofthesummonsandorderforpublicationinthepostoffice,postageprepaid,dire ctedtothedefendantbyregisteredmailtohislastknownaddress.(21) Requirements: 1. Affidavit of printer, foreman or principal clerk, editor + copy of publication 2. Affidavit of deposit of mail of summons and order of publication with post office [De Reyes v. Ortega, 16 SCRA 903] Period to Answer? [not less than 60 days after notice] MoranSec. 20.Voluntary appearance. The defendants voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a) Possible Forms: 1. Filing a motion to dismiss raising other grounds than lack of jurisdiction over his person 2. Filing an answer without raising the issue of improper service of summons. 3. Filing of a petition-for-intervention [Domingo v. Reed, 477 SCRA 227 (2005)]

Corsino v. Nicolas, 87 SCRA 58 (1978) Others: 1. What about a motion for extension of time to file answer?. Palma v. Galvez, 615 SCRA 86 (2010) 2. What about filing a Notice of Appeal after having been declared in default for failure to answer? BD Long v.RS Ampeloquio, 599 SCRA 468 (2009) Rule 15. -Motions Sec. 1.Motion defined. A motion is an application for relief other than by a pleading. (1a) Is a motion a pleading? Bar 2007 Sec. 2.Motions must be in writing. All motions shall be in writing except those made in open court or in the course of a hearing or trial. (2a) Sec. 3.Contents. A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if required by these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. (3a) Two points: 1.Must state the relief sought and the grounds [Marcial v. Hi-Cement, 475 SCRA 388 (2005)] 2.If required by the Rules or necessary to prove facts, must be accompanied by affidavits and other papers. Must the motion itself be under oath? Exception: Rule 9, Sec. 3 (b) Must a motion be answered in writing?

Requirement of Affidavit: 1.Motion for Summary Judgment [Rule 35] 2.Motion for New Trial [Rule 37] Sec. 4.Hearing of a motion. Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of the hearing, unless the court for good cause sets the hearing on shorter notice. (4a) Two points: 1. Motions must be set for hearing, as a rule 2. Ensure receipt at least 3 days before date of hearingex parte motions v. litigious motions a. extension of time to file pleadings b. Motion for Issuance of Writ of Possession? [Primetown v. Juntilla, 459 SCRA 683 (2005)] c. Motion for issuance of final certificate of sale? [De los Reyes v. Ramnani, 618 SCRA 254 (2010) Other issues: 1. What if the other party has been declared in default? 2. Motion to Cancel Statutory Lien? [Bagano v. Hontanosas, 458 SCRA 59 (2005)] 3. Motion for Execution? But under old Rules, no need. Sec. 5.Notice of hearing. The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. (5a)

Two points: 1. Notice addressed to all parties [not Clerk of Court] 2. Hearing should not be later than 10 days from filing Effect of lack of notice of hearing: 1. Mere scrap of paper which court should not consider. Clerk of Court should not calendar it. Boiser v. Aguierre, 458 SCRA 430 (2005) 2. What if court nevertheless asked other party to comment? Jehann Shipping v. NFA, 477 SCRA 782 (2005) 3. What if court set it for argument? Preysler v. Manila, 621 SCRA 636 (2010) Effect if notice is addressed to clerk of court: 1.Provident v. CA, 259 SCRA 510 (1996) no notice to parties (mere scrap of paper) 2.PNB v. Paneda, 515 SCRA 639 (2007) copy furnished parties Sec. 6.Proof of service necessary. No written motion set for hearing shall be acted upon by the court without proof of service thereof. (6a) Sec. 7.Motion day. Except for motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday is a non-working day, in the afternoon of the next working day. (7a) Sec.8.Omnibus motion.Subject to the provisions of section 1 Of Rule9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived.(8a) Rule 8, Sec. 9: 1.Lack of jurisdiction over subject matter 2.Pendency of another action between same parties 3.Res judicata

4.Prescription Sec.9.Motion for leave.A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted.(n) Applies to: Motion for leave to file1. 3rdParty Complaint, Sec. 11, Rule 6 2. Amended Complaint, Sec. 3, Rule 10 3. Supplemental Pleading, Sec. 6, Rule 10 Sec. 10.Form. The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form. (9a) Motion Sample Republic of the Philippines OFFICE OF THE OMBUDSMAN Mindanao 4TH Floor H & C Bldg., Alvarez St., Sta. Ana, Davao City NAPOLEON TOLOSA, Complainant, Case No. OMB-P-A-10-0471-C -versus-For: Grave Misconduct ELIZABETH TATEL, Respondent. x-------------------------------x

MOTION FOR EXTENSION The undersigned counsel, with extreme caution, respectfully moves for an extension of ten (10) days within which to submit his clients Position Paper, by alleging that: 1. He received the Order of this Honorable Office directing him to submit his clients Position Paper on February 14, 2011 and, therefore, he has until February 24 to comply; 2. He likewise noted that the Order states that the period is not extendible; 2. However, during the last few weeks, he is suffering from heartburn and is undergoing medication [See Annex A], which occasionally renders him dysfunctional; 3. The situation simply makes it well-neigh impossible for him to comply with the Order. 4. However, if his health improves, he commits himself to submit the Position Paper within the original deadline. .WHEREFORE, in the interest of justice, he respectfully pays that he be given an extension of ten (10) days or until March 6, 2011, within which to submit his clients Position Paper. Tagum City, Davao del Norte, Philippines, February 18, 2011. GIL A. DE LA BANDA Counsel for Respondent Valle Hotel Bldg., Osmena St., Tagum City PTR No. _______; ______; Tagum City Roll No. 35845; IBP Life No. 01020 MCLE Exemption No. III-000739 Notice of Hearing Atty. John Michael S. Galauran Fortun, Narvasa & Salazar

8805 Ayala Ave., Makati City Sir: Please be notified that the undersigned is submitting the foregoing motion for the consideration of the Office of the Ombudsman on Feb. 22, 2011 at 2:00 oclock in the afternoon without any appearance. Tagum City, Davao del Norte, Feb. 18, 2011. GIL A. DE LA BANDA Explanation: Copies of this Motion are served and filed by registered mail due to distance. Rule 16.-Motion to Dismiss Sec. 1.Grounds. Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: Time to File: before answer or 15 days after service of summons; or 10 days in other cases. 1.Can you file a motion for extension to file answer, then later file a motion to dismiss? Exception. 2.Can you file a motion to dismiss after answer? (Phil-Ville v. Javier, 477 SCRA 533[2005]) (See also Sec. 3, Rule 17) No, except for: 1.Lack of jurisdiction over the subject matter 2.No cause of action; 3.Prescription 4.Evidence discovered only during trial

Apparently, also: (?) 1. res judicata 2. litis pendencia 3. failure to prosecute But see Associated Bank v. Montano, 604 SCRA 134 (2009) mere procedural options. It is immaterial that a motion to dismiss is filed after answer. Are the grounds in Rule 16 exclusive? See: Philsec Investment v. CA, 274 SCRA 102 (1997) But: 1. Failure to attach certification against forum shopping 2. Unsigned pleading 3. Inadequate/Non-payment of docket fee Grounds: a) That the court has no jurisdiction over the person of the defending party; How acquired: 1. Service of summons 2. Voluntary appearance/Waiver 1.Is jurisdiction over the person of the defendant necessary in all cases before a court can enter a valid judgment? [Albav.CA,465SCRA(2006)] 2. Does inclusion of grounds other in a motion to dismiss amount to waiver of jurisdiction over person [Sec. 20, Rule 14] b) That the court has no jurisdiction over the subject matter of the claim; Basic Principle: Jurisdiction is conferred by law and not by agreement of the parties. Decision rendered without jurisdiction is null and void and can be challenged even after finality. Exception: Estoppel

and laches Tijam v. Sibonghanoy,23 SCRA 29(1968) Subsequent Cases: 1.Gonzaga v. CA, 394 SCRA (2002)RTC to HLURB invoked the jurisdiction 2. Salva v. CA, 304 SCRA 632 (1999) ejectment-participation in case 3.Metromedia Times Corp. v. Pastorin, 465 SCRA 320 (2005) labor arbiter-raisedr jurisdiction on appeal Status of TijamThe lack of jurisdiction of a court may be raised at any stage of the proceedings, even on appeal. This doctrine has been qualified by recent pronouncements which stemmed principally from the ruling in the case of Sibonghanoy. It is to be regretted, however, that the holding in said case had been applied to situations which were obviously not contemplated therein. The exceptional circumstances involved in Sibonghanoywhich justified the departure from the accepted concept of non-waivability of objection to jurisdiction has been ignored and, instead a blanket doctrine had been repeatedly upheld that rendered the supposed ruling in Sibonghanoynot as the exception, but rather the general rule, virtually overthrowing altogether the time honored principle that the issue of jurisdiction is not lost by waiver or by estoppel. Principles in Determining jurisdiction: 1. Determined by the allegations in the complaint/hypothetical admission 2. Once acquired, it is never lost until the case is terminated. [Determined by law at the time of the filing of the complaint.] Ramosv.StatelandInvestment,473SCRA499[2005] Where a defendant alleges tenancy in his answer to a complaint for unlawful detainer,must the trial court dismiss the case outright for lack of jurisdiction? Bar2007,No.8: X files an unlawful detainer case against Y before the appropriate MTC. In his answer, Y avers as a special affirmative defense that he is a tenant of Xs deceased father in whose name the property remains registered.

What should the court do? c) That venue is improperly laid; d) That the plaintiff has no legal capacity to sue; Two meanings: 1. Lacks the necessary legal qualification [minority/insanity/corporation not licensed to do business/sole proprietorship] 2. Lacks the character or representation he claims [legal personality] Questions: 1. Is lack of capacity of defendant a ground under Rule 16, Sec. 1, of a motion to dismiss? 4. Suit filed by an agent? [Sustiguer v. Tamayo, 176 SCRA 579 (1989) e) That there is another action pending between the same parties for the same cause; Requisites for litis pendencia:

by lessee and ejectment by lessor [Teodoro v. Mirasol, 99 Phil. 150] Issue: Should you continue occupying Property? 3rdrequisite not present: 1. Annulment of mortgage and foreclosure of mortgage [Tambunting v. De Leon, 87 Phil. 529 (1950)] 2. Valencia v. CA, 263 SCRA 287 rescission of contract, while pending plaintiff damage fishpond Can there be lis pendens if one case is a civil while the other is an administrative case? Sherwill v. Sitio Sto. Nino, 461 SCRA 517 [2005] Petition filed by association before LMB to cancel corporations titles on the ground of double titling and quieting of title before RTC filed by corporation Which should be dismissed: Criteria1. Priority in time rule 2. More appropriate action a. Mirasol, supra., declaratory relief and ejectment [inappropriate] 1stintended to preempt b. University v. CA, 233 SCRA 86. [Did not vacate, so apartment was demolished. Filed damages, lessor sought to eject. (issue of damage can be properly resolved in ejectment)

(a) Identity of parties, or atleast such as representing the same interest in

both actions; (b)identity of rights asserted and relief prayed for, there life being founded on the same facts; and, (c)the identity in the two (2) cases should be such that the judgment that maybe rendered in the pending case would, regardless of which party is successful, amount to res judicata in the other. 3rd requisite present: 1. Recovery of land and action to quiet title [Francisco v. De Blas, 93 Phil.1 (1953)] 2. Partition based on extrajudicial partition and annulment of partition [Montesa v. Directo, 27 SCRA 509] 4. Declaratory relief on lease contract [fix longer period] by filed

3. Interest of justice a. Roa-Magsaysay v. Magsaysay, 98 SCRA 952 [custody/custody @ support b. Allied Banking v. CA, 259 SCRA 371[collection case and accounting] CONSOLIDATION Calo v. Tan, 476 SCRA 426 (2005) Relevant considerations: (1) the date of filing, with preference generally given to the first action filed to be retained; (2) whether the action sought to be dismissed was filed merely to preempt the latter action or to anticipate its filing and lay the basis for its dismissal; and (3) whether the action is the appropriate vehicle for litigating the issues between the parties. f) That the cause of action is barred by a prior judgment or by the statute of limitations; A. Statute of limitations [Art. 1106-1150 DeVera Cruz v. Miguel, 468 SCRA 506 [2005] How is prescription distinguished from laches? Answer: 1. prescription is concerned with the fact of delay, laches is concerned with the effect of delay. 2. prescription is a matter of time; laches is principally a question of inequity of permitting a claim to be enforced, this inequity being founded on some change in the condition of the property or the relation of the parties. 3. Prescription is statutory; laches is not. 4. Laches applies in equity, whereas prescription applies at law. 5. Prescription is based on a fixed time, laches is not. B. Res judicata [Bar by Former Judgment]

Requisites: (1) the former judgment must be final; (2) the court which rendered the judgment had jurisdiction over the subject matter and the parties; (3) the judgment must be on the merits;and (4) there must be between the first and second action, identity of parties, subject matter and causes of action. (3) Re judgment on the merits: Meaning rendered after consideration of the evidence: Heirs of Maglaque v. CA, 524 scra234 (2007) During pre-trial parties entered into a stipulation of facts and submitted case for decision. Plaintiff lost and alter filed another case. Re 4thRequisite: identity of a. parties b. subject matter c. cause of action a.Parties: Maglaque v. CA First: versus Planters Development Bank and Spouse Angel Beltran and Erlinda Beltran. Second: versus Planters Development Bank, Mr. Angel Beltran, Estate of Erlinda C. Beltran and Registry of Deeds for the Province of Bulacan. c. Causes of action: Test-Whether the same evidence is necessary to sustain the second cause of action. Maglaque v. CA Revocation of Sale and Reconveyance of Title with Damages Recovery of Ownership with Damages

Luzon Development Bank v.Conquilla,470SCRA533 (1)premature foreclosure of the mortgage (2) alternative causes of action: (a)nullification of the foreclosure and the auction sale, (b)release of the balance of the loan, or )recovery of the excess proceeds of the sale. Evidence- bank had no right to foreclose at the time it did Can a case be dismissed based on stare decisis? De Mesa v. Pepsi Cola, 467 SCRA 433, August 19, 2005 Pepsi Cola v. Espiritu, 525 SCRA 525 (2007) The principle of stare decisis embodies the legal maxim that a principle of law which has been established by the decision of a court of controlling jurisdiction will be followed in other cases involving a similar situation. g) That the pleading asserting the claim states no cause of action; Basis: The allegations in the complaint. The complaint is therefore hypothetically admitted as true and correct. Test: Can the court render judgment based on the complaint? Result: Defendant is not allowed to dispute, much less to present evidence. Therefore, ground must be apparent in the complaint. FAILURE TO STATE vs. LACK OF CAUSE OF ACTION 1. The former refers to the insufficiency of allegation in the pleading, while the latter to the insufficiency of factual basis for the action 2. Failure to state a cause may be raised in a Motion to Dismiss under Rule 16, while lack of cause may be raised any time. 3. Dismissal for failure to state a cause can be made at the earliest stages of an action, while

dismissal for lack of cause is usually made after questions of fact have been resolved on the basis of stipulations, admissions or evidence presented. Case: Goodyear v. Sy, 474 SCRA 427, [2005]The court may consider --in addition to the complaint --the appended annexes or documents, other pleadings of the plaintiff, or admissions in the records. But see, Albert v. CA, 334 SCRA 756 (2000) All documents attached to the complaint and other pleadings submitted by the parties. h) That the claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished; Art. 1231 of the Civil Code; [loss of thing, confusion or merger, novation] Can one file a motion to dismiss based on laches? Navarro v. Metrobank, 595 SCRA 149 (2009) i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and Art. 1403, 1405 and 1874: statutes requiring certain agreements to be reduced into writing, otherwise they are unenforceable. j)That a condition precedent for filing the claim has not been complied with.(1a) Examples: 1.Exhaustion of administrative remedies 2.Barangay conciliation 3.Art.151, Family Code

Sec.2.Hearing of motion.At the hearing of the motion, the parties shall submit their arguments on the questions of law and their evidence on the questions of fact involved, Except those not available at that time. Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same. (n) Notes: 1.Summary nature of hearing [PhilSec. Investment v. CA, 274 SCRA 102] 2.As to factual issues, must it be proved by oral testimony? Rule 133, Sec. 7 3.Not allowed: lack of jurisdiction over subject matter and failure to state cause of action Sec.3.Resolution of motion.After hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading. The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor. (3a) Options: Remedies 1. Dismiss [plaintiff] appeal, refile [amend?] 2. Deny -[defendant] go to trial [exception: certioari] Balo v. Court of Appeals, 471 SCRA 227,[2005] 3. Amend -comply Sec.4.Time to plead.If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule11 to which he was entitled at the time of serving his

motion, but not less than five (5) days in any event, computed from his receipt of the notice of denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides alongerperiod.(4a) Sec. 5.Effect of dismissal. Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim. (n) Exceptions to re-filing: cant be refiled 1. Prior judgment and prescription (f) 2. Paid, waived, abandoned, extinguished (h) 3. Statute of frauds (i) Lis pendens? Sec. 6.Pleading grounds as affirmative defense. If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. (5a) Notes: 1. If no motion to dismiss, no ground is permanently barred 2. In affirmative defense, one can raise other grounds than those in Sec. 1, Rule 16. [tenancy/jurisdiction, forum non-conveniens, lack of capacity to be sued, laches] 3. Advantages: other side cannot amend as a matter of right, would not result to waiver of compulsory counterclaim.

Sps. Rasdas v. Estenor, 477 SCRA 538 (2005), December 13, 2005, Second Division: Tinga, J. Question: May a preliminary hearing be held on an affirmative defense after a motion to dismiss has been denied? Rimbunan Hijau v. OrientalWood, 470SCRA455,[2005] Question: When the averments in a motion to dismiss are not specifically denied by the adverse party, are they deemed admitted for the purpose of resolving the motion?