PROCEDURE IN THE REGIONAL TRIAL COURTS

Rule 6
KINDS OF PLEADINGS

SECTION 1. Pleadings Defined. Pleadings are the

written statements of the respective claims and
defenses of the parties submitted to the court for
appropriate judgment. (1a)

1. Q: Define pleadings?
A: PLEADINGS are the written statements of the respective claims and defenses of the
parties submitted to the court for appropriate judgment. (Section 1) Under the Rules,
pleadings cannot be oral because they are clearly described as written statements.

2. Necessity and purpose of pleadings-

1. Pleadings are necessary to invoke the jurisdiction of the court (71 C.J.S.
Pleadings).

2. Pleadings are intended to secure a method by which the issues may be properly
laid before the court. (Santiago v. de los Santos 61 SCRA 146).

3. 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. (71 CJS)

The counterpart of pleadings in criminal procedure is information, or the criminal

complaint where a prosecutor will tell what crime you are being accused what you
did, time, the victim, etc.

3. Construction of pleadings-

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 In this jurisdiction, all pleadings shall be liberally construed so as to do substantial
justice (Concrete Aggregate Corp. v. CA 266 SCRA 88).

While it is the rule that pleadings should be liberally construed, it has also been
ruled that a party is strictly bound by the allegations, statements or admissions made
in his pleading and cannot be permitted to take a contradictory position. (Santiago v.
de los Santos 61 SCRA 146)

Construction of ambiguous allegations in pleadings

In case there are ambiguities in the pleadings, the same must be construed most
strongly against the pleader and that no presumptions in his favor are to be indulged in.
(61 Am Jur, Pleading)

Sec. 2 Pleadings allowed The claims of a party

are asserted in a complaint, counterclaim, cross-
claim, third (fourth, etc.) party complaint, or
complaint-in-intervention.
The defenses of a party are alleged in the answer to
the pleading asserting a claim against him.
An answer may be responded to by a reply. (n)

In a civil case, there are actually two (2) contending parties: (1) the person suing or
filing a claim; and (2) the person being sued or defending.

Q: If you are the claimant or the plaintiff, in what pleading do you assert your
claim?
A: Complaint, counterclaim, cross-claim, third-party complaint or fourth-party
complaint, etc.

On the other hand, if you are the party sued, you also have to file your pleading or
your defense. It is known as the ANSWER. The defenses of a party are alleged in the
answer to the pleading asserting a claim against him.

In the last paragraph, an answer may be responded by a REPLY.

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 COMPLAINT ANSWER REPLY

Q: Summarizing all of them, what are the known pleadings recognized by the law
on Civil Procedure?
A: There are seven (7) types of pleadings:
1.) Complaint;
2.) Answer;
3.) Counterclaim;
4.) Cross-claim;
5.) Reply
6.) Third (Fourth, Fifth, etc.) Party Complaint;
7.) Complaint-in-Intervention.

Pleadings allowed under the Rules on Summary Procedure

Note however, that when a case falls under the Rules on Summary Procedure, the only
pleadings allowed to be filed are:
1. Complaint;
2. Compulsory Counterclaim;
3. Cross-claim pleaded in the Answer; and
4. Answers thereto (Sec. 3 [A]II, Rules on Summary Procedure)

Permissive Counterclaims, third-party complaints, reply and pleadings-in-intervention

are prohibited. (Sec. 9, IV)

Pleadings in small claims cases-

Instead of a complaint it is commenced by filing an accomplished and verified

Statement of Claim (Form 1-SCC).

Instead of an answer, the defendant is to file an accomplished and verified Response

(Form 3-SCC). The defendant may also file a counterclaim (permissive or compulsory).

Aside from the prohibited motions, the following are not allowed:
a) Petition for Relief from Judgment;

b) Petition for Certiorari, mandamus, or prohibition against any interlocutory order

issued by the court;
c) Reply;

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 d) Third-Party complaints; and
e) Interventions.

Pleadings in Environmental Cases-

Pleadings allowed are:

a) complaint;
b) answer which may include a compulsory counterclaim;
c) Pleading in intervention may be filed as in a citizen suit.

Reply, rejoinder and a third-party-complaint are prohibited.

Pleading and motion distinguished-

1. the purpose of a pleading is to submit a claim or defense for appropriate

judgment while the purpose of a motion is to apply for an order not included in the
judgment;
2. a pleading may be initiatory like a complaint while a motion can never be such as
it is filed in a case that is already pending in court;
3. A pleading is always filed before judgment while a motion may be filed after
judgment;
4. There are only 7 kinds of pleadings while any application for a relief other a
judgment can be made in a motion' however, there are only three motions which
actually seek judgment namely: a.) a motion for judgment on the pleadings (R 34); b.) a
motion for summary judgment (R 35); c.) Demurrer to Evidence
5. a pleading must be written while a motion may be oral when made in open court
or in the course of a hearing or trial.

How to determine the nature of a pleading-

Not by its title but by its allegations or averments (Bank of Commerce v. Perlas-
Bernabe, 634 SCRA 107, 118).

DISCUSSION ON THE KINDS OF PLEADINGS-

COMPLAINT

Sec. 3. Complaint The complaint is the pleading

alleging the plaintiffs cause or causes of action.

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 The names and residences of the plaintiff and
defendant must be stated in the complaint.

Q: Define complaint.
A: COMPLAINT is the pleading where the plaintiff will allege his cause or causes of
action. A complaint is also called the INITIATORY PLEADING because it is actually the
first pleading filed in court. It is the pleading that initiates the civil action.

Test of sufficiency of the facts alleged in the complaint-

Determine whether upon the averment of facts, a valid judgment may be properly
rendered.

What to allege-
Rule 8 requires that it should contain a concise statement of the ultimate facts
constituting the plaintiff's cause of action not evidentiary facts or legal conclusions.

Ultimate facts refer to the essential facts constituting the plaintiff's cause of action.

The fact is essential if it cannot be stricken out without leaving the statement of
the cause of action insufficient.

What are not ultimate facts:

1. evidentiary or immaterial facts;
2. legal conclusions, conclusions or inferences of facts from facts not stated, or
incorrect inferences or conclusions from facts stated;
3. the details of probative matter or particulars of evidence, statements of law,
inferences and arguments;
4. an allegation that a contract is valid or void is a mere conclusion of law.

Mr. P wants to sue Mr. R to collect an unpaid loan. Mr. R borrowed money from Mr. P
and refused to pay. Normally, it starts with an introduction: Plaintiff, through counsel,
respectfully alleges that Then it is followed by paragraphs which are numbered. For
instance:

Illustration:

1.) Plaintiff Mr. P, of legal age, is a resident of 79 P. del Rosario St., Cebu
City; whereas defendant Mr. R also of legal age, is a resident of 29
Pelaez St. Cebu City where summons and other processes of this court
may be served;

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 2.) On Nov. 7, 2008, defendant secured a loan from plaintiff in the sum of
P30,000.00 payable within one (1) year form said date with legal
interest;
3.) The account is already due and despite repeated demands, defendant
failed and refused to pay;

PRAYER

WHEREFORE, it is respectfully prayed that judgment be

rendered against the defendant ordering him to pay the loan of
P30,000.00 and interest in favor of the plaintiff.
Plaintiff further prays for such other reliefs as may be just and
equitable under the premises.

Your allegations must contain the four (4) elements of a Cause of Action the Right,
the Obligation, the Delict or Wrong or Violation of Your Right, and the Damage.

Filing of the complaint and its significance-

To file a complaint or an initiatory pleading means presenting the same to the clerk
of court (Sec. 2, Rule 13).

It signals the commencement of the civil action (Sec. 5, Rule 1) and the submission by
the plaintiff to the jurisdiction of the court over his person.

It likewise interrupts the running of the prescriptive period of the action (Art. 1155 of
NCC).

How jurisdiction over the subject matter is acquired-

However, for the court to acquire jurisdiction over the subject matter or the action,
filing is not sufficient, there must also be payment of the required docket fee (Proton
Pilipinas Corporation v. Banque Nacional de Paris, 460 SCRA 260, 276).

Payment of docket fee for supplemental complaint-

In Do-All Metals Industries, Inc., v. Security Bank Corporation, 639 SCRA 39, 45, the
Court ruled that the trial court acquired jurisdiction over the plaintiffs action from the
moment they filed their original complaint accompanied by the payment of the filing
fees due on the same. The plaintiffs non-payment of the additional filing fees due on
their additional claims did not divest the RTC of the jurisdiction it already had over
the case.

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 ANSWER

Sec. 4 Answer An answer is a pleading in which a

defending party sets forth his defenses. (4a)

Q: What is the pleading where you respond?

A: It is called the ANSWER. That is where you will state your defenses. That is why
an ANSWER is called a Responsive Pleading.

Q: Why is it called Responsive Pleading?

A: Because it is the pleading which is filed in response to the complaint or a
pleading containing a claim. It is where you respond to the cause of action. That is
where you state your defenses.

So you can file an answer to the complaint; answer to the counterclaim, answer to
the cross-claim, etc.

It is not found in Criminal Procedure.

Q: If you are charged with a crime, how do you answer?

A: By pleading guilty or not guilty. That is the answer. When you plead guilty, and
the offense is not punishable by reclusion perpetua to death it is the end.
There is no writing of defenses, no written answer in criminal cases. It (pleadings)
only applies to civil cases where you allege your defenses.

Q: What are the defenses under the Rules?

A: That is Section 5.

Sec. 5 Defenses Defenses may either be negative

or affirmative.
A NEGATIVE DEFENSE is the specific denial of the
material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.
An AFFIRMATIVE DEFENSE is an allegation of a new
matter, which, while hypothetically admitting the
material allegations in the pleading of the claimant,
would nevertheless prevent or bar recovery by him.

Defenses may either be negative or affirmative.

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 NEGATIVE DEFENSE/S;

Q: Define a NEGATIVE defense.

A: Paragraph [a]: Briefly, it is a defense of specific denial where you deny the
statement in the complaint and you state the facts and the reason/s on which your
denial is based. In a negative defense, the defendant specifically denies a material fact
or facts alleged in the pleading of the claimant essential to his cause of action.

3 Kinds of Specific Denial-

1. Absolute denial-the defendant specifies each material allegation of fact the

truth of which he does not admit and whenever practicable, sets forth the
substance of the matters upon which he relies to support his denial. (Sec. 10,
Rule 8)

EXAMPLE: The complaint says in paragraph 2, On November 6, 2008,

defendant secured a loan from plaintiff in the amount of P30,000.00 payable
one (1) year from November 6, 2008.

The defendant will say in his answer:

Defendant specifically denies the allegation in Paragraph 2 of the

complaint. The truth of the matter being that he never secured any loan
from plaintiff because he does not even know the plaintiff and he did not
see his face before.

2. Partial denial- the defendant does not make a total denial of the material
allegations in a specific paragraph. In this type, he denies only a part of the
averment. He specifies the part the truth of which he admits and denies
only the remainder.

In the above Example he can say:

Defendant admits the part of the allegation in paragraph 2 which states
that he secured a loan from the plaintiff but specifically denies the remaining
part for the truth of the matter being that the amount is only P10,000.00
payable two (2) years from November 6, 2008.

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

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 material averment made in the complaint. This must be made honestly and in
good faith.

Example:

The defendant is without knowledge or information sufficient to form a

belief as to the truth of the material allegation made in paragraph 2 in the
complaint.

When a specific denial needs to be under oath:

1. a denial of an actionable document (Sec. 8, Rule 8)

2. a denial of allegations of usury in a complaint (not answer) to recover usurious
interest (Sec. 11, Rule 8)

Insufficient denial or denial amounting to admissions:

1. General denial or failure to conform to the required form of specific denial; and
2. denial in the form of negative pregnant

Negative pregnant is a denial in such form as to imply or express an admission of

the substantial fact, which though appearing denied. It is a form of denial, which really
admits the important facts contained in the allegations to which it relates.

While it is a denial in form, its substance actually has the effect of an admission
because of a too literal denial of the allegations sought to be denied. This arises when
the pleader merely repeats the allegations in a negative form or denies only a
qualification or an incidental aspect of the allegation but not the main allegation itself..

In the example above, when the answer states:

"The defendant did not secure a loan from the plaintiff on Nov. 6, 2008 in the
amount of P30,000.00 payable within one year" or Defendant denies that he secured a
loan from the plaintiff on November 6, 2008 in the amount of P10,000.00 payable one (1)
year from November 6, 2008.

AFFIRMATIVE DEFENSES

Q: Define an AFFIRMATIVE defense.

A: In paragraph (b), it is briefly called a defense of confession and avoidance because,
while 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. I admit what you
are saying in the complaint but still you are not entitled to recover from me.

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 EXAMPLE
Defendant may say: Defendant admits the allegation in par. 2 of the Complaint, but
alleges that the action has prescribed.

He confesses to having borrowed money but avoids liability by asserting

prescription.

Examples of affirmative defenses are:

1. fraud,
2. statute of limitations,
3. release, payment,
4. illegality,
5. statute of frauds,
6. estoppel,
7. former recovery,
8. discharge in bankruptcy, and
9. any other matter by way of confession and avoidance.

Suppose, you sue me for damages arising from breach of contract. I admit I entered
into a contract but I have no obligation to comply because the contract is null and void.
Or, the contract is illegal. Or, the stipulation is contrary to public policy, therefore, I am
not bound. I admit what you say but I am not liable because of the illegality of the
subject matter of the contract.

Or, you sue me because according to you, I entered into a contract and I refused to
comply. So, you file a case against me for specific performance or for damages. Then I
say: Its true that I entered into a contract with you. Its true I did not comply. But
there is nothing you can do because the contract is oral and the contract is covered by
the statute of frauds. In order to be enforceable, we should have reduced it into writing.
Since we never reduced it into writing, I am not bound to comply.

COUNTERCLAIMS

Sec. 6. Counterclaim. - A counterclaim is any claim

which a defending party may have against an opposing
party. (6a)

EXAMPLE: You file a case against me for damage to your car. According to you in
your complaint, while you were driving your car along the highway carefully, I came
along driving recklessly and bumped your car causing damages amounting to
P50,000.00 for repair. Your allegation is based on negligence on my part.

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 My answer is denial: That is not true! I deny that! I was the one driving carefully
and you were driving carelessly and negligently. Therefore, if you are

the proximate cause of the accident, Im not liable for the damage of your car. Thats
my answer Im not liable because you are negligent. Because you were the one
negligent, my car was also damaged. I am not liable for the damage on your car. As a
matter of fact, you are the one that should be held liable to pay for the damage of my
car. I am now claiming for the damage of P50,000.00. That is called COUNTERCLAIM.

Nature of a counterclaim
A counterclaim is in the nature of a cross-complaint. Although it may be alleged
in the answer, it is not part of the answer. Upon its filing, the same proceedings are
had as in the original complaint. For this reason it is to be answered within ten (10)
days from service.

Q: If your complaint against me is to recover a sum of money, should my counterclaim

also involve recovery of sum of money?
A: NO. There is no such rule that these two (2) cases should be similar in nature.
(De Borja vs. De Borja, 101 Phil. 911) It is possible for you to file case for recovery of a
piece of land and my counterclaim is recovery of damages arising from a vehicular
accident.

Q: Suppose your claim against me is One (1) Million, is it possible that my

counterclaim against you is Two (2) Million?
A: YES. There is no rule which limits my counterclaim to the same amount you are
claiming. A counterclaim need not diminish or defeat the recovery sought by the
opposing party, but may claim relief exceeding in amount or different in kind from that
sought by the opposing party. (De Borja vs. De Borja, 101 Phil. 911)

Q: You file a case against me for recovery of unpaid loan. My counterclaim is,
rescission of partnership contract. Is the counterclaim proper?
A: Yes although there is no connection between what you are asking and what my
answer is. But what is important is that we are the same parties. If you will not allow
me to file my counterclaim against you, that will be another case in the future. So to
avoid multiplying suits, clogging the dockets of the court and making the proceedings
more expensive, violating the purpose of the rules, the parties are allowed to include all
their claims against each other in one case.

Same capacity rule

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 The SC said that the plaintiff should be sued in a counterclaim in the SAME
CAPACITY that he is suing the defendant. Thats a principle to remember.

DE BORJA vs. DE BORJA

101 Phil 911

FACTS: A died, of course, what survives after that is the estate. X was
appointed as administrator or legal representative. W owes a sum of money
to the estate of A and X filed a case against W to collect the unpaid loan. X is
called the REPRESENTATIVE PARTY under Rule 3, Section 3. W filed an
answer and stated that W has a claim against X. W filed a counterclaim
against X in the case.

HELD: The counterclaim is improper. When X sued W, X is not suing in

his own personal capacity. He is acting as administrator of the estate of A.
The real plaintiff is the estate of A. X is just the legal representative.
Therefore, you cannot file a counterclaim against X in the latters personal
capacity when X is suing W in a representative capacity.

PERMISSIVE & COMPULSORY COUNTERCLAIMS

Sec. 7 Compulsory counterclaim A compulsory

counterclaim is one which, being cognizable by the
regular courts of justice, arises out of or is
connected with the transaction or occurrence
constituting the subject matter of the opposing
partys claim and does not require for its
adjudication the presence of third parties of whom the
court cannot acquire jurisdiction. Such a counterclaim
must be within the jurisdiction of the court both as
to the amount and the nature thereof, except that in
the original action before the Regional Trial Court,
the counterclaim may be considered compulsory.

Under the Rules, there are two types of counterclaim. 1) COMPULSORY

COUNTERCLAIM and, 2) PERMISSIVE COUNTERCLAIM.

The ELEMENTS of a COMPULSORY COUNTERCLAIM are found in Section 7,

namely:

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 1.) It is cognizable by the regular courts of justice;
2.) It arises out of or it is connected with a transaction or occurrence constituting a
subject matter of the opposing partys claim;
3.) It does not require for its adjudication the presence of third parties of whom the
court cannot acquire jurisdiction;
4.) It must be within the jurisdiction of the court, both as to the amount and the
nature thereof, except that in an original action before the RTC, the counterclaim
may be considered compulsory regardless of the amount; and
5.) The defending party has a counterclaim at the time he files his answer.

The fifth requisite is not found in Section 7 but in Rule 11, Section 8:

Rule 11, Sec. 8. Existing counterclaim or cross-

claim. - A compulsory counterclaim or a cross-claim
that a defending party has at the time he files his
answer shall be contained therein. (8a, R6)

Another way of saying it is, the counterclaim has already matured at the time he
files his answer. That is the fifth requisite.

If one of the five requisites is missing, the counterclaim is permissive in nature.

Discussion of the elements

First Element: A COUNTERCLAIM TO BE COMPULSORY MUST BE COGNIZABLE

BY THE REGULAR COURTS.

In other words, if you file a complaint against me and I have a counterclaim against you
under the Labor Code, then it cannot be classified as a compulsory claim because how
can I invoke against you a claim which is cognizable by the NLRC before the RTC?

Second Element: IT ARISES OUT OF OR IT IS CONNECTED WITH A

TRANSACTION OR OCCURRENCE CONSTITUTING A SUBJECT
MATTER OF THE OPPOSING PARTYS CLAIM

The second requisite is the most important. A counterclaim, to be compulsory, must

arise out of or connected with the transaction or occurrence constituting a subject matter
of the opposing party concerned. It must arise out of or is connected with a transaction
or occurrence constituting a subject matter of the opposing partys claim. It must be
logically related to the subject matter of the main action.

Logical Relationship Test

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 The logical relationship test between the claim and the counterclaim has been called:
The one compelling test of compulsoriness. Under this test, any claim a party has
against an opposing party that is logically related to the claim being asserted by the
opposing party, and that it is not within the exception to the rule is a compulsory
counterclaim. Its outstanding quality is flexibility. (Tan v. Kaakbay Finance
Corporation 404 SCRA 518)

MELITON vs. COURT OF APPEALS

216 SCRA 485

HELD: It has been postulated that while a number of criteria have been
advanced for the determination of whether the counterclaim is compulsory or
permissive, the one compelling test of compulsoriness is the logical
relationship between the claim alleged in the complaint and that in the
counterclaim, that is, where conducting separate trials of the respective
claims of the parties would entail a substantial duplication of effort and
time, as where they involve many of the same factual and/or legal issues.

PROBLEM: Emily filed a case against Regina for damages arising from a vehicle
collision. According to Emily, the case of the accident is the negligence of the defendant
in driving her car. Her car bumped the car of Emily and was damaged. So, Emily is
holding Regina liable for the damage on her car. Regina denied that she was negligent.
According to Regina, No, I am not negligent. As a matter of fact, you (Emily) were the
one negligent, and because of that negligence, my car was also damaged. So you should
be the one to pay damages.
Q: Is the counterclaim of Regina arising out of or is connected with the transaction or
occurrence constituting the subject matter of the opposing party?
A: YES because we are talking of the same bumping. You bumped my car, you say I
bumped your car. So we are talking of the same event or transaction.

PROBLEM: T files a case against me for recovery of a piece of land. According to

her, she is the owner of the land which Im occupying. Now, I file my answer, and then
I said, T, I spent a lot of money for necessary expenses to preserve the land. You are
also liable to reimburse me for the expenses for the necessary improvements I
introduced on the land. Under the law on Property, a defendant or possessor is
entitled to reimbursement for necessary improvements and expenses. So she is trying to
recover the piece of land, I am now asking her to reimburse me for all necessary
expenses that I spent on the land.
Q: Is my counterclaim arising out of or connected with the subject matter of your
claim or not?
A: YES. We are talking of the same subject matter. Thus, the counterclaim is
compulsory.

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If the counterclaim, then, did not arise out of or is not connected with the transaction or
occurrence constituting the subject matter of the opposing partys concern, the
counterclaim must be permissive in nature.

PROBLEM: T files a case against me for recovery of a piece of land. My counterclaim

against her is damages arising from a vehicular collision.
Q: Is my counterclaim arising out of a subject matter of your action?
A: NO. It is completely different. Thus, that is a permissive counterclaim.

Importance of determining whether the claim is compulsory or permissive

If the counterclaim is compulsory, the defendant is obliged under the law to raise
it as a counterclaim in the action where he is being sued. If he fails to invoke it, it is
barred forever (Rule 9 Section 2).

If the counterclaim is permissive, the defendant has a choice of raising it as a

counterclaim in the case filed against him or he may decide to file another action
against the plaintiff, raising it as his cause of action. It is permitted but not obliged.

Rule 9, Sec. 2. Compulsory counterclaim, or cross-claim,

not set up barred. - A compulsory counter-claim or a cross-
claim, not set up shall be barred. (4a)

Let us try to apply that principle to the case cited.

PROBLEM: V files a case against me for damages arising from vehicular collision.
Her car is damaged, my car is damaged. In my answer, I denied negligence but I did
not claim from her the damage to my vehicle. After the trial, court found the plaintiff at
fault. So, the complaint of V. This time I will file a case against her to recover damages
for the damage to my car since I was able to prove that she was negligent and not me.
Q: What will happen to my case now?
A: My case will be dismissed because I did not raise that cause of action as a
counterclaim as it is compulsory.

Third Requisite: IT DOES NOT REQUIRE FOR ITS ADJUDICATION

PRESENCE OF THIRD PARTIES OF WHOM THE COURT CANNOT ACQUIRE
JURISDICTION.

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 Meaning, if my counterclaim against you will involve the presence of an
indispensable party who is, lets say, abroad, and therefore, the court cannot acquire
jurisdiction over him, if I dont allege it as counterclaim in my answer, I will not be
barred from filing a separate action.

Fourth Element: THAT THE COUNTERCLAIM MUST BE WITHIN THE

JURISDICTION OF THE COURT BOTH AS TO THE AMOUNT AND
NATURE THEREOF. Xxx except that in an original action before the RTC, the
counterclaim may be considered compulsory regardless of the amount.

Rules:
1. A counterclaim before the MTC must be within the jurisdiction of the said court,
both as to the amount and nature thereof.

2. In an original action before the RTC, the counterclaim may be considered

compulsory regardless of the amount.

3. However, the nature of the action is always material in the RTC such that
unlawful detainer cannot be set up as counterclaim thereat.

4. If a counterclaim is filed in the MTC in excess of its jurisdictional amount, the

excess is considered waived (Agustin v. Bacalan GR No. 46000, March 18, 1985)

Different from:
In Calo v. Ajax In'tl GR No. 22485, March 16, 1968, the remedy where a counterclaim
is beyond the jurisdiction of the MTC is to set off the claims and file a separate action to
collect the balance.

Q: I will file a case against you for forcible entry. I want to recover a piece of land.
Where is the jurisdiction of that case?
A: MTC.

Review: In the Law on Property, even if you are a possessor in bad faith, you are
entitled to reimbursement for necessary expenses. The theory there is, even if he is a
possessor in bad faith, the expenses redounded to the benefit of the land owner.
Anyway, you will spend them just the same as the land owner will have to spend for
them. So it will not be fair if he is not reimbursed. Thats our premise.

PROBLEM: The defendant would like to claim for reimbursement for the necessary
expenses that he spent in my lot. The case I filed against you is forcible entry in the
MTC. Your necessary expenses amount to P350,000.

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 Q: Should you raise it as a compulsory counterclaim in the forcible entry case?
A: NO.

Q: Does it arise out of or connected with the transaction which is the subject matter
of the main action? Why not compulsory?
A: Because the MTC has no jurisdiction over the P350,000 amount for the necessary
expenses. This time, that is the missing element.

Q: How will the defendant claim reimbursement?

A: He has to file with the RTC a case for reimbursement. He cannot use that as a
counterclaim for the forcible entry case because the MTC has no jurisdiction on a
counterclaim where the amount is over P300,000.00.

I will reverse the problem:

PROBLEM: The plaintiff filed against the defendant an action for accion publiciana
recovery for a piece of land where the value of the property is P1 million. So the case
should be filed in the RTC. Now, the defendant is claiming for the reimbursement of the
improvements thereon (necessary expenses) amounting to P50,000.
Q: Should the defendant raise that as a counterclaim in the accion publiciana case?
A: YES.

In the first example, the counterclaim is above the jurisdiction of the MTC. This time,
the amount for the counterclaim is below the jurisdiction of the RTC. So the RTC can
claim jurisdiction.

Q: How can the RTC try a counterclaim when the claim is only P50,000?
A: It is in accordance with the exception under Section 7: except that in an original
action before the RTC, the counterclaim may be considered compulsory regardless of the
amount. This means that the main action is accion publicianaRTC. The counterclaim
is reimbursement for necessary expenses with arose out of the same land. Normally, the
RTC cannot try that but the answer to this question is YES.

The RTC can award a claim for damages even though the claim is below its
jurisdiction. The principle is: Since the counterclaim is compulsory, jurisdiction over the
main action automatically carries with it jurisdiction over the compulsory counterclaim.
The compulsory counterclaim is merely incidental to the main action. Jurisdiction of the
RTC over the main action necessarily carries with it jurisdiction over the compulsory
counterclaim which is merely ancillary.

If the main action is with the MTC, it cannot try the counterclaim with the RTC. It is
beyond its jurisdiction. It is not covered by the exception. But if it is the main action
which is within the jurisdiction of the RTC, it can try a counterclaim which

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is below its jurisdiction provided it arose out or is connected with the transaction.

That exception is not written in the prior rules but it is a recognized exception laid
down by the SC which is now written down in the law. In the case of

MACEDA vs. COURT OF APPEALS

176 SCRA 440

HELD: The jurisdiction of the MTC in a civil action for sum of money is
limited to a demand that does not exceed P100,000 (now P300,000) exclusive
of interest and costs. A counterclaim beyond its jurisdiction and limit may
be pleaded only by way of defense to weaken the plaintiffs claim, but not
to obtain affirmative relief.

Fifth Requisite: THE DEFENDING PARTY HAS A COUNTERCLAIM AT THE

TIME HE FILES HIS ANSWER.

In other words, the claim has already matured either before or at the time of the
filing of the Answer.

Compulsory and Permissive Counterclaim compared:

1. A compulsory counterclaim arises out of or is necessarily connected with the

transaction or occurrence that is the subject matter of the other party's claim, while a
permissive counterclaim is not;
2. A compulsory counterclaim does not require for its adjudication the presence of
third parties of whom the court cannot acquire jurisdiction while a permissive
counterclaim may require such;
3. A compulsory counterclaim is barred if not set up in the action, while a
permissive counterclaim is not;
4.A compulsory counterclaim need not be answered, no default, while a permissive
counterclaim must be answered otherwise the defendant can be declared in default.

Effect of failure to answer a compulsory counterclaim

A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be
declared in default, principally because the issues raised in the counterclaim are
deemed automatically joined by the allegations of the complaint (Gojo v. Goyala, GR
No. 26768, Oct. 30, 1970)

General rule:

18
 A compulsory counterclaim not set up in the answer is deemed barred.

Exceptions:
1. if it is a counterclaim which either matured or was acquired by a party after
serving his answer it may be pleaded by filing a supplemental answer or pleading
before judgment (Sec. 9 R 11);
2. When a pleader fails to set-up a counterclaim through oversight, inadvertence,
excusable negligence, or when justice requires, he may, by leave of court, set up the
counterclaim by amendment of the pleading before judgment (Sec. 10, R 11).

Motion to dismiss and compulsory counterclaim incompatible remedies

The filing of a motion to dismiss and the setting up of a compulsory counterclaim are
incompatible remedies. In the event that a defending party has a ground for dismissal
and a compulsory counterclaim, he must choose only one remedy. If he decides to file a
motion to dismiss, he cannot set up his counterclaim. But if he opts to set up his
counterclaim, he may still plead his ground for dismissal as an affirmative defense in
his answer.

COUNTERCLAIMS IN CRIMINAL CASES PROHIBITED

last paragraph of Section 1, paragraph [a], Rule 111 of the 2000 Revised Criminal
Procedure:

No counterclaim, cross-claim or third-party

complaint may be filed by the accused in the criminal
case, but any cause of action which could have been
the subject thereof may be litigated in a separate
civil action.

CROSS-CLAIM

Sec. 8. Cross-claim. A cross-claim is any claim by

one party against a co-party arising out of the
transaction or occurrence that is the subject matter
either of the original action or of a counterclaim
therein. Such cross-claim may include a claim that the
party against whom it is asserted is or may be liable
to the cross-claimant for all or part of a claim
asserted in the action against the cross-claimant.(7)

A cross claim is a claim by one party against a co-party. It may be a claim by

defendant against his co-defendant arising out of the subject matter of the main action.

19
Limitations on Cross-Claim

1. Must arise out of the subject matter of the complaint or counterclaim;

2. Can be filed only against a co-party; and
3. Is proper only when the cross claimant stands to be prejudiced by the filing of
the action against him.

Purpose
To settle in a single proceeding all the claims of the different parties in the case against
each other in order to avoid multiplicity of suits (Republic vs. Paredes, GR No. L-12548,
May 20, 1960).

Examples:

In an action for damages against the judgment creditor and the Sheriff for having
sold real property of the plaintiff, the Sheriff may file a cross-claim against the judgment
creditor for whatever amount he may be adjudged to pay the plaintiff.

In an action against a co-signer of a promissory note one of whom is merely an

accommodation party, the latter may file a cross-claim against the party accommodated
for whatever amount he may be adjudged to pay the plaintiff.

J and P are solidary debtors for the sum of P100,000.00 because they signed a
promissory note in favor of D to collect the sum of P100,000.00. However, although J
signed the promissory note, he did not get a single centavo. Everything went to P. Both
of them are now sued. According to J, Actually there is a possibility that I will pay the
P100,000.00 to Dean when actually I did not even get a single centavo out of it.
Everything went to P! Therefore, J will now file a case against P where he will allege
that if J will be held liable to D, P will reimburse him (J). So, J will also file a claim in the
same action against P.

Now, the claim filed by J against his co-defendant P is called a CROSS-CLAIM

where J is called defendant in the case filed by D and a cross-claimant against P. P is
also the defendant in the case filed by D and a cross-defendant with respect to the cross-
claim filed by J. So that is another case, which a defendant is filing against another
defendant.

Take note that the cross-claim of J against P is merely an off-shoot of the case filed by
D against J and P. Meaning, it arises out of the same transaction or occurrence that is the
subject matter of the case filed by D against them.

20
 PROBLEM: Suppose D files a case against J and P to collect a promissory note signed
by J and P and J alleges in his cross claim, Well, since we are already here, I also have a
claim against P for damages arising from a vehicular collision.
Q: Is the cross-claim allowed in the problem?
A: NO. The cross-claim is improper. It has no connection with the complaint of D
against J and P. A counter-claim must always arise out of a transaction or occurrence
that is the subject matter of the main action.

Distinctions between a COUNTERCLAIM and a CROSS-CLAIM.

A: The following are the distinctions:
1.) A COUNTERCLAIM is a complaint by the defendant against the plaintiff,
whereas, A CROSS-CLAIM is a claim by a defendant against a co-
defendant;

2.) The life of the CROSS-CLAIM depends on the life of the main action. A
cross-claim is merely a consequence of the case filed by the plaintiff against
the defendants. No main action, no cross-claim (RUIZ, JR. vs. CA, infraA
cross-claim could not be the subject of independent adjudication once it lost
the nexus upon which its life depended. The cross-claimants cannot claim
more rights than the plaintiffs themselves, on whose cause of action the cross-
claim depended. The dismissal of the complaint divested the cross-claimants
of whatever appealable interest they might have had before and also made
the cross-claim itself no longer viable) Whereas, In a COUNTERCLAIM, you
can kill the main action, still the counterclaim survives.

3.)A COUNTERCLAIM may be asserted whether or not it arises out of the same
transaction or occurrence that is the subject matter of the action, whereas, A
CROSS-CLAIM must always arise out of the same transaction or occurrence that
is the subject matter of the action.

Effect if cross-claim not set up; exception

If a cross-claim is not set up it is barred: exceptions or when cross-claim is permissive-

1. when it is outside the jurisdiction of the court;
2. if the court cannot acquire jurisdiction over third parties whose presence is
necessary for the adjudication of said cross-claim. In which case, the cross-claim is
considered permissive;
3. cross-claim that may mature or may be acquired after service of the answer (Riano
2007, p. 285)

COUNTER COUNTERCLAIM and COUNTER CROSS-CLAIM

21
 Sec. 9. Counter-counterclaims and counter-cross-
claims. A counterclaim may be asserted against an
original counter-claimant.
A cross-claim may also be filed against an
original cross-claimant.(n)

Section 9 is a new provision. There is such a thing as counter-counterclaim and

counter-cross-claim. The concept of counter-counter-claim is not new. As a matter of
fact, that was asked in the bar years ago.

EXAMPLE: C filed against you an action to collect a loan. You filed a counterclaim
against her to recover a piece of land. Of course, she has to answer your counterclaim.
But she will say, Actually you have been molesting me with your claim when actually
you have no right over my land. So, she files an injunction to stop you from molesting
her. In other words, based on your counter-claim against her to recover my land, she
will file a counterclaim to stop you from molesting her. In effect, there is counterclaim
to a counterclaim.

COUNTER-CROSS-CLAIM.

REPLY

Sec. 10. Reply. A reply is a pleading, the office or

function of which is to deny, or allege facts in
denial or avoidance of new matters alleged by way of
defense in the answer and thereby join or make issue
as to such new matters. If a party does not file such
reply, all the new matters alleged in the answer are
deemed controverted.
If the plaintiff wishes to interpose any claim
arising out of the new matters so alleged, such claims
shall be set forth in an amended or supplemental
complaint.(11)

ILLUSTRATION: Plaintiff files a complaint against a defendant to collect an unpaid

loan. D files his answer and raises a new matter, affirmative defense. According to the
defendant, the obligation is already paid. Plaintiff said that you have paid the other
loan. In other words, the plaintiff would like to deny or dispute the defendants
affirmative defense of payment.

Q: Can I file a pleading to dispute your defense?

A: Yes, that pleading is called a REPLY.

22
 Q: How do you classify a reply?
A: It is a responsive pleading because it is the response of the plaintiff to the
affirmative defense raised in the defendants answer.

An answer is a response to the complaint and the reply is a response to the answer.

Q: Assuming that you would like to answer my reply, what pleading would you
file?
A: None. That is the last pleading. So, reply is considered as the last pleading.

Effect of failure to file a reply

Q: Suppose I filed a complaint, you filed an answer invoking payment. I failed to

reply. What is the effect if the plaintiff fails to reply? Is he admitting the correctness of
the defense?
A: No. As a general rule, the failure to file a reply has no effect. Section 10 says that
if a party does not file such reply, all the new matters alleged in the answer are deemed
controverted. Meaning, all the affirmative defenses raised in the answers are
automatically denied.
So, whether you file a reply or not, the defenses are deemed automatically disputed.
The filing of a reply is OPTIONAL.

Exceptions:
1. Where the answer is based on an actionable document (Sec. 8 R 8); and
2. To set up affirmative defenses in the counterclaim (Rosario vs. Martinez, GR No.
L-4473, Sept. 30, 1952)

Note:
Only allegations of usury in a Complaint to recover usurious interest are deemed
admitted if not denied under oath. Hence, if the allegation of usury is contained in an
answer it is not necessary for the plaintiff to file a reply thereto in order to deny that
allegation under oath. (Regalado, p. 146)

A reply should not be confused with the answer to a counterclaim, which is also
filed by the plaintiff.

Distinctions between ANSWER TO COUNTER-CLAIM and REPLY:

A: The following:
1.) A REPLY is a response to the defenses interposed by the defendant in his
answer, whereas
An ANSWER TO A COUNTERCLAIM is a response to a cause of action by
the defendant against the plaintiff;

23
 2.) The filing of a REPLY is generally optional, whereas
The filing of an ANSWER TO A COUNTERCLAIM is generally mandatory
under Rule 11 because if the plaintiff fails to file an answer to the
counterclaim, he will be declared in default on the counterclaim.

OUTLINE OF FLOW OF PLEADINGS

PLAINTIFF DEFENDANT
1. Complaint
2. a.) Answer
b.) Counterclaim
3. a.) Reply to answer
b.) Answer to
counterclaim
4. Reply to answer to
counterclaim

F. THIRD (FOURTH, ETC.) PARTY COMPLAINT

Sec. 11. Third, (fourth, etc.) - party complaint. A

third (fourth, etc.) party complaint is a claim that a
defending party may, with leave of court, file against
a person not a party to the action, called the third
(fourth, etc.) party defendant, for contribution,
indemnity, subrogation or any other relief, in respect
of his opponent's claim. (12a)

THIRD PARTY COMPLAINT is the procedure for bringing into a case a third
person who is not a party to the case to enforce against such 3 rd party a right for
contribution, indemnity, subrogation or any other relief, in respect of the plaintiff-s
claim.

The third-party complaint is actually independent of and separate and distinct from
the plaintiffs complaint. Were it not for this provision of the Rules, it would have to be
filed independently and separately from the original complaint by the defendant
against the third party.

The purpose of a third-party complaint is to enable a defending party to obtain

contribution, indemnity, subrogation or other relief from a person not a party to the
action.

24
 EXAMPLE : A plaintiff files a case against a defendant to collect a loan when there
are two solidary debtors and one of them is compelled to pay everything so that
defendant will drag into the picture the co-debtor for contribution or indemnity. If the
two of them were sued as defendants, all one has to do is to file a cross-claim against his
co-defendant. BUT since only one is sued, the remedy is to avail of Section 11.

Take note that filing a third-party complaint is not a matter of right. THERE MUST
BE LEAVE OF COURT, unlike counterclaim or cross-claim, where you do not need
any motion or leave of court.

Similarity between a cross-claim and 3rd party complaint

There is a close relationship between a cross-claim and a third-party complaint

because a cross-claim must arise out of the subject matter of the main action. A third-
party complaint must be also related to the main action. It cannot be a cause of action,
which has no relation to the main action.

There is always a connection between the main complaint and the third-party
complaint because the condition is contribution, indemnification, subrogation and
any other relief in respect to your opponents claim. There is always a relation
between the third party-complaint and the main complaint against you.

EXAMPLE: The plaintiff files a case against the surety and the principal debtor, so both
of them are defendants, and the surety seeks reimbursement for whatever amount he
may be compelled to pay the plaintiff. What kind of pleading would he file against his
co-defendant (the principal debtor)? CROSS-CLAIM.

BUT if the plaintiff files a case ONLY against the surety, because anyway the
principal debtor is not an indispensable party and the surety would like to seek
reimbursement from the person who benefited from the loan, he cannot file a
cross-claim against anybody because he is the lone defendant. It is possible for him to
just file an answer. If he loses and pays the plaintiff, then he will file another case
against the principal debtor for reimbursement.

But if he wants everything to be resolved in the same case, what kind of pleading
will he file? He must resort a THIRD-PARTY COMPLAINT and implead the principal
debtor.

CONTRIBUTION:

25
 Example #1: Two debtors borrowed P100,000 from Janis (creditor) and they shared
the money 50-50. When the debt fell due, the creditor filed a case against one of them.
So, one of them is being made to pay the P100,000. Not only his share but also his co-
solidary debtor. So if I am the one liable when actually my real liability is only 50,000.
What will I do? I will file a third party complaint against my co-debtor for contribution.

Example #2: If Andrew and Carlo are guilty of a quasi-delict and the injured party
files an action for damages against Andrew only, Andrew may file a third-party
complaint against Carlo for contribution, their liability being solidary (Article 2194,
New Civil Code)

INDEMNIFICATION:

Example #1: Two people signed a promissory note in favor of the creditor. But
actually the entire amount went to you and none for me. When the note fell due, I was
the one sued. So I will file a third-party complaint against you for indemnity. You have
to return to me every centavo that I will pay the creditor.

Example #2: A surety sued for recovery of debt by the creditor may file a third-party
complaint against the principal debtor for indemnity. (Article 2047, New Civil Code)

SUBROGATION:

Subrogation - You step into the shoes of someone else. Your obligation is
transferred to me.

EXAMPLE: Where a house is leased by a lessee and he subleased the property to a

third person who is now occupying the property. In effect, the sub-lessee stepped into
the shoes of the original lessee. If the property is damaged and the lessor sues the lessee
for damages to his leased property, the lessee or sub-lessor can file a third-party
complaint and have the sub-lessee for subrogation because actually, you stepped into
the shoes when you occupied the leased property. (Articles 1651 and 1654, New Civil
Code)

26
 For ANY OTHER RELIEF IN RESPECT TO THE OPPONENTS CLAIM

EXAMPLE: When I buy the property of Mr. Cruz and after a while, here comes Mr.
Dee filing a case against me to claim ownership of the land. But I bought it from Mr.
Cruz who warranted that he is the real owner. So I will now file third-party complaint
against Mr. Cruz to enforce his warranty warranty against eviction. (Article 1548,
New Civil Code)

Why leave of court? Tests for the court to determine propriety of a 3rd-party
complaint:

CAPAYAS vs. COURT OF FIRST INSTANCE

77 PHIL. 181

HELD: There are four (4) possible tests to determine the propriety of a third-
party complaint. In order for it to be allowed, it must pass one of them. That is
the reason when you file it, you need the permission of the court to determine
whether it is proper or not and the original plaintiff may object to the propriety
of the third-party complaint.

There are the FOUR TESTS (any one will do):

1. A third-party complaint is proper if it arises out of the same transaction on

which plaintiffs complaint is based, or although arising out of another or
different transaction, is connected with the plaintiff's claim.

EXAMPLE: A creditor sued only one solidary debtor. So you can file a
third-party complaint for contribution. Anyway, there is only one loan
and our liability arises out of the same promissory note.

2. A third-party complaint is proper if the third-partys complaint, although

arising out of another transaction, is connected with the plaintiffs claim.

EXAMPLE: The car owner is sued for culpa aquiliana for damages
arising from vehicular collision and he files a third-party complaint
against the insurance company for indemnity based on the contract of
insurance. So it is connected with plaintiffs claim, and that is precisely the
purpose of my insurance coverage.

27
 3.Whether the third party defendant would be liable to the original plaintiff or to
the defendant for all or part of the plaintiff's claim against the original defendant.
Although the third party defendant's liability arises out of another transaction.

EXAMPLE: Sublease. Roy leased his property to Eric. Eric subleased it

to Rudolph. If Roys property is damaged, Roy will sue Eric. But Eric will
also sue Rudolph. The sub-lessor has the right to file a third-party
complaint against the sub-lessee for the damaged leased property, which
is now occupied by the sub-lessee. The third-party defendant Rudolph
would be liable to plaintiffs (Roys) claim. Rudolph will be liable to Roy
for Roys claim against Eric although the liability of Rudolph arises out of
another transaction (Sub-lease contract)

4.Whether the third party defendant may assert any defense, which the third
party plaintiff has or may have against plaintiffs claim.

EXAMPLE: A is a registered owner of a car and then sold it to C. C

then is the actual owner. However, C did not register the sale to the LTO.
The registered owner is still A although he is no longer the real owner.
While C was driving that car it bumped the car of B. B researched the
owner of the car at LTO and it is A. So B filed a case against A who had
neither participation nor knowledge of the collision but is liable under the
law because he is the registered owner. Of course, when A got the
complaint, he denied participation and knowledge and alleged that he is
no longer the owner of the car.
So obviously, A arrived at the conclusion that it is C who figured in the
collision. A filed a third-party complaint against C because he is the real
owner. When C got the third-party complaint, and because he knows the
story, in fact he was the one driving, he directly contested the allegations
of B and answered the same. Meaning, instead of A fighting B, C fought B
directly. C answered that it was B who was at fault. So here is a situation
where B sues A, who, in turn sues C who fought B instead, as if he is the
real defendant, then the third party complaint must be proper. It must be
related.

Take note that there is a close similarity between a third-party complaint and a cross-
claim because as we have learned, a cross-claim must also be related to the same
action.

SAMALA vs. VICTOR

170 SCRA 453

28
FACTS: This case involves a vehicular accident. Philip, while riding on a passenger
jeep owned by Tato, the jeep was bumped by the truck of Lewee, injuring Philip.
Philip filed a case for damages arising from breach of contract against Tato. Tato
filed a third-party complaint against Lewee. After trial, the court found that Tato has
not at fault. The fault is entirely against Lewee . So the action against Tato was
dismissed, but the court held that Lewee be directly liable to Philip.
It was questioned by Lewee. Lewee claims that is should be Tato who is liable to
Philip because Philip did not sue me (Lewee), Bakit ako ang ma-liable hindi naman
ako ang dinemanda ni Philip? So procedurally, I am liable to Tato, Tato is liable to
Philip.

ISSUE #1: Can Lewee, a third-party defendant, be held liable directly to Philip, the
original plaintiff?
HELD: YES, that is possible. In a third-party complaint, normally Lewee is liable to
Tato. But Lewee can be made liable to Philip, or Lewee can be made liable to both
Philip and Tato because that is covered by the phrase OR ANY OTHER RELIEF
so broad that it cover a direct liability of a third party defendant to the original
plaintiff.

ISSUE #2: How can the court award damages to Philip based on the theory of culpa
aquiliana when his complaint is based on culpa contractual? Can Lewee be held
liable for culpa-contractual?
HELD: YES. That is also possible because the primary purpose of this rule is to
avoid circuitry of action and to dispose of in one litigation, the entire subject matter
arising from a particular set of fact it is immaterial that the third-party plaintiff
asserts a cause of action against the third party defendant on a theory different from
that asserted by the plaintiff against the defendant. It has likewise been held that a
defendant in a contract action may join as third-party defendants those liable to him
in tort for the plaintiffs claim against him or directly to the plaintiff.

Another interesting case, which is to be compared with the abovementioned case, is

the 1989 case of

SHEAFER vs. JUDGE OF RTC OF OLONGAPO CITY

167 SCRA 386

NOTE: This case although it refers to third-party complaint is related to

criminal procedure. This is similar to the case of JAVIER where the issue is, is
there such a thing as a counterclaim in a criminal case where the offended
party did not make a reservation. In SHAFER, is there such a thing as a third-
party complaint in a criminal case?

29
 FACTS: Shafer while driving his car covered by TPL, bumped another car
driven by T. T filed a criminal case against S for physical injuries arising from
reckless imprudence. T did not make any reservation to file a separate civil
action. So obviously, the claim for civil liability is deemed instituted.
Shafer was covered by the insurance, so he filed a third-party complaint
against the insurance company insofar as the civil liability is concerned. The
insurance company questioned the propriety of d third-party complaint in a
criminal case, because according to the insurance company, the third-party
complaint is entirely different from the criminal liability.

ISSUE: Whether or not the filing of a third-party complaint in a criminal

case is procedurally correct.

HELD: Yes, it is proper. There could be a third party complaint in a

criminal case because an offense causes two classes of injuries the SOCIAL
and the PERSONAL injury. In this case, the civil aspect of the criminal case is
deemed impliedly instituted in the criminal case. Shafer may raise all
defenses available to him in so far as the criminal and civil aspects are
concerned. Shafers claim of indemnity against the insurance company are
also the claim by the victim in the criminal claim. Therefore Shafers claim
against the insurance company is related to the criminal case. So similar to
Javier that an accused may also file a compulsory counterclaim in a criminal
case when there is no reservation.

BUT in the light of the ruling in the case of

CABAERO vs. CANTOS, supra

The SHAFER ruling has to be set aside for the meantime because there is
no such thing as third-party complaint in criminal cases now. In other words,
forget it in the meantime. Also, forget counterclaims in criminal cases even if
they arose out of the main action.
This case refers to JAVIER on whether or not there is such a thing as a
compulsory counterclaim in criminal cases. SC said, Huwag muna samok!
If we will allow it in criminal cases it will only complicate and confuse the
case. The attention might be divested to counterclaims or cross-claims or
third-party complaints, etc.

HELD: The trial court should confine itself to the criminal aspect and the
possible civil liability of the accused arising out of the crime. The counter-
claim (and cross-claim or third party complaint, if any) should be set aside or
refused cognizance without prejudice to their filing in separate proceedings at
the proper time.

30
 We will go to the old case of

REPUBLIC vs. CENTRAL SURETY CO.

25 SCRA 641 [1968]

FACTS : Hannah filed a case against Rina for a liability amounting to

P350,000. So it was filed in RTC. Rina filed a third-party complaint against
ConCon Insurance Company for indemnity insurance but the maximum
insurance is only P50,000. The insurance company moved to dismiss on the
ground that the court has no jurisdiction because third-party complaint is
only for P50,000 which is supposed to be within the competence of the MTC.

ISSUE: Is the insurance company correct?

HELD: NO. The insurance company is wrong. The third-party complaint

is only incidental. The third-party complaint need not be
within the jurisdiction of the RTC where the principal action is pending
because the third-party complaint is really a continuation and an ancillary to
the principal action. If the court acquires jurisdiction over the main action,
automatically, it acquires jurisdiction over the third-party complain which is
mainly a continuation of the principal action.

Now, the same situation happened in another case. The case of

EASTERN ASSURANCE vs. CUI

105 SCRA 642

FACTS : Carol is a resident of Davao City. Cathy is a resident of Cebu

City. Carol filed a case before the RTC of Davao City against Cathy. Cathy
files a third-party complaint against Joy, a resident of Manila. Is the venue
proper?
HELD: The venue is proper because the venue of the main action is
proper. So automatically third-party complaint is also proper. The third-
party has to yield to the jurisdiction and venue of the main action.

Now of course, if theres such a thing as 3rd party complaint, there is also a 4th, 5th,
6th or 7th complaint. That is possible but everything is with respect to his opponents
claim.

EXAMPLE:

31
 A B C D E
A files a B files a 3rd C files a 4th D files a 5th
complaint party party party
against B complaint complaint complaint
against C against D against E

As car was bumped by B. But B contented that the reason that he bumped As car
was because he was bumped by C and the same goes to C, D, E. B then files a 3rd party
complaint against C. C files a 4th party complaint against D. D files a 5th party
complaint against E. Meaning, pasahan, ba. They will throw the liability to the one who
did it. That is a good hypothetical example of how a fourth, fifth, sixth party complaint
can come into play.

Rule on Venue and Jurisdiction Inapplicable

Jurisdiction over the third-party complaint is but a continuation of the main action
and is a procedural device to avoid multiplicity of suits. Because of its nature, the
proscription on jurisdiction and venue applicable to ordinary suits may not apply.
(Eastern Assurance vs. Cui, 105 SCRA 622 [1981])

Where the trial court has jurisdiction over the main case, it also has jurisdiction
over the third-party complaint, regardless of the amount involved as a third-party
complaint is merely auxiliary to an is a continuation of the main action (Rep. vs.
Central Surety and Insurance Co. GR No. L 27802, Oct. 26, 1968)

Grounds for Denial of Third-Party Complaint

a. When allowance would delay resolution of the original case or when the third-
party defendant could not be located; and
b. When extraneous matters to issue of possession would unnecessarily clutter a
case of forcible entry.(del Rosario v. Jimenez 8 SCRA 549)

Summons on third, fourth, etc. party defendant must be served for the court to
acquire jurisdiction over his person, since he is not an original party.

A third-party complaint is not proper in an action for declaratory relief (Comm. of

Customs vs. Cloribel, GR No. L - 21036, June 30, 1977)

Sec. 12. Bringing new parties. - When the presence

of parties other than those to the original action is

32
 required for the granting of complete relief in the
determination of a counterclaim or cross-claim, the
court shall order them to be brought in as defendants,
if jurisdiction over them can be obtained.

Distinguished from a Third-Party Complaint

A third party complaint is proper when not one of the third-party defendants
therein is a party to the main action. If one or more of the defendants in a counterclaim
or cross-claim is already a party to the action, then the other necessary parties may be
brought in under this section.
The best example of Section 12 is the case of:

SAPUGAY vs. COURT OF APPEALS

183 SCRA 464

FACTS: Mobil Philippines filed a case against Sapugay, its gasoline dealer.
Sapugay filed an answer and interposed a counterclaim for damages against
Mobil and included Cardenas (the manager of Mobil) who is not a plaintiff.

ISSUE: Whether or not the inclusion of Cardenas in the counterclaim is

proper where he is not a plaintiff in the Mobil case.

HELD: The inclusion of Cardenas is proper. The general rule that the
defendant cannot by a counterclaim bring into the action any claim against
persons other than the plaintiff, admits of an exception under this provision
(Section 12) meaning, if it is necessary to include a 3rd person in a
counterclaim or cross-claim, the court can order him to be brought in as
defendants. In effect, the bringing of Cardenas in the case is sanctioned by the
Rules.

The case of SAPUGAY should not be confused with the case of:

CHAVEZ vs. SANDIGANBAYAN

198 SCRA 282

FACTS: Petitioner Francisco Chavez (former solicitor general) represented

the government for PCGG. The case arose out of PCGG cases wherein Enrile
was sued for accumulation of his ill-gotten wealth. Enrile filed an answer to
the complaint. Enrile contends that the case is harassment suit whose
mastermind was the Solicitor General himself. Enrile files a counterclaim
against Chavez. (Enriles lawyer maybe well aware of the Sapugay case the

33
 one sued is the lawyer.) Chavez questioned such counterclaim contending
that he was not a plaintiff. Sandiganbayan denied such contention.

HELD: The inclusion of plaintiffs lawyer is improper.

To allow a counterclaim against a lawyer who files a complaint for his
clients, who is merely their representative in court and not a plaintiff or
complainant in the case would lead to mischievous consequences. A lawyer
owes his client entire devotion to his genuine interest, warm zeal in the
maintenance and defense of his rights and the exertion of his utmost learning
and ability. A lawyer cannot properly attend to his duties towards his client
if, in the same case, he is kept busy defending himself.

Q: Is the SC suggesting that a lawyer who sued in a harassment case can get away
with it? Does that mean to say that the lawyer is immune from suit?
A: NO, the SC does not say a lawyer enjoys a special immunity from damage suits.
However, when he acts in the name of the client, he should not be sued in a
counterclaim in the very same case where he has filed only as a counsel and not as
party. Only claims for alleged damages or other causes of action should be filed in a
separate case. Thus, if you feel that the lawyer is acting maliciously, you file a complaint
but in a separate case. Thats why the case of Sapugay should not be confused with
Chavez.

Sec. 13. Answer to third (fourth, etc.) party

complaint. - A third (fourth, etc.)-party defendant
may allege in his answer his defenses, counterclaims
or cross-claims, including such defenses that the
third (fourth, etc.)-party plaintiff may have against
the original plaintiff in respect of the latter's
claim against the third-party plaintiff. (n)

ILLUSTRATIONS:

A files a case against B

B files a 3rd party complaint against C

A vs. B; B vs. C. Normally, B will defend himself against the complaint of A and C
will defend himself in the complaint of B. That is supposed to be the pattern. Normally,

34
C does not file a direct claim against A. But the law allows C in defending himself, to
answer the claim of A. The law allows him to file a direct counterclaim against A.

If C has the right to frontally meet the action filed by A meaning, C will fight A
directly if C has the right to assert any defense which B has against A and even for C
to litigate against A, then it must be a proper third party complaint. That has happened
several times.

EXAMPLE: B owns a car, which was already sold to C. The trouble is that B never
registered the transaction. On the record, B is still the registered owner. Then C, while
driving the car, meets an accident and injures A. When A looked at the record, the
owner is B. So A files a case against B. So B will file a third party complaint against the
real owner (C). Now, C can frontally meet the complaint filed by A. That is the best
example where you have the right against the original plaintiff or even assert a
counterclaim against him. As a matter of fact, that last test is now incorporated as a new
provision (Section 13).

In the case of:

SINGAPORE AIRLINES vs. COURT OF APPEALS

243 SCRA 143 [1995]

FACTS: A filed a case against B. B filed a third party complaint against

and C who wants to frontally meet the main complaint filed by A

HELD: If that is your purpose, you have to file two (2) answers you file an
answer to the third party complaint and you file a second answer to the main
complaint filed by A.
A third-party complaint involves an action separate and distinct from,
although related to, the main complaint. A third-party defendant who feels
aggrieved by some allegations in the main complaint should, aside from
answering the third-party complaint, also answer the main complaint.

Normally, C answers the 3rd party complaint of B and does not answer to the
complaint of A. But according to SINGAPORE case, if C feels aggrieved by the
allegations of A, he should also answer the main complaint of A. Practically, he shall
answer the 3rd party complaint and the main complaint.

35
Reviewer
1. Kinds of Pleadings (Rule 6)

What is a pleading?
Written statements of the respective CLAIMS and DEFENSES of the parties submitted to
the court for appropriate judgment.

Pleadings allowed under the Rules of Court

a. Complaint
b. Answer
c. Counterclaim
d. Cross-claim
e. Reply
f. Third party (fourth party, etc.) complaint (Rule 2, Sec. 6)
g. Complaint in intervention, answer in intervention (Rule 19. Sec. 3)

a. Complaint
Rule 6, Sec. 3. Complaint.
The complaint is the pleading alleging the plaintiff's cause or causes of action. The names
and residences of the plaintiff and defendant must be stated in the complaint.

b. Answer
1. What is an answer?
An answer is a pleading in which a defending party sets forth his defenses (Rule 6, Sec. 4). It
may be an answer to the complaint, third party (fourth party, etc.) complaint, counterclaim, or
cross-claim.

Time to Plead
a. Answer to Complaint and Third-Party (Fourth-Party, etc.) Complaint fifteen (15) days
after service of summons, unless a different period is fixed by the court (Rule 11, Sec. 1)
However, under Rule 16, Section 4, if a motion to dismiss is denied, the movant shall file
his answer within the balance of he period provided by Rule 11 to which he was entitled at the
time of serving his motion, but not less than five (5) days in any event, computed from his
receipt of the notice of the denial. .

b. Answer of a defendant foreign private juridical entity

(1) when summons is served upon a resident agent fifteen (15) days after service of
summons;
(2) when summons is served on the government official designated to receive the same
thirty (30) days from receipt by the latter of the summons.

c. Answer to Amended Complaint, Amended Counterclaim, Amended

Cross-Claim and Amended Third-Party (Fourth-Party, etc.) Complaint:
(1) amended complaint was filed as a matter of right (Rule 10, Section 2) fifteen (15) days
after being served with a copy thereof; and

36
 (2) amended complaint was filed with leave of court (Rule 10, Section 3) ten (10) days from
notice of order admitting the amended complaint.

Strict Observance of the Period

While the rules are liberally construed, the provisions on reglementary periods are
strictly applied for they are deemed indispensable to the prevention of needless delays and
necessary to the orderly and speedy discharge of judicial business.
Strict compliance with said periods is mandatory and imperative.

(1) Negative defenses

SPECIFIC DENIAL of the material fact or facts alleged in the pleading or the claimant
essential to his cause of action. (Rule 6, Section 5)

(2) Negative pregnant

A negative pregnant is a form of negative expression which carries with it in affirmation or at
least an implication of some kind favorable to the adverse party. It is a denial pregnant with an
admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying
or modifying language and the words of the allegation as so qualified or modified are literally
denied, it has been held that the qualifying circumstances alone are denied while the fact itself is
admitted. (Guevarra vs. Eala, A.C. No. 7136, August 1, 2007)

A negative pregnant (sometimes called a pregnant denial) refers to a denial which

implies its affirmative opposite by seeming to deny only a qualification of the allegation
and not the allegation itself. For example, "I have never consumed shabu while on duty"
might imply that the person making the statement had consumed shabu on other
occasions, and was only denying that he had done so while on duty.

(3) Affirmative Defenses

Allegation of a NEW MATTER which, while hypothetically admitting the material allegations in
the pleading of the claimant, would nevertheless PREVENT OR BAR RECOVERY by him.

The affirmative defenses include fraud, statute of limitations, release, payment, illegality,
statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by
way of confession and avoidance. (Rule 6, Sec. 5).

Note that some of these grounds are also grounds for motion to dismiss.

What are the two kinds of defenses that may be set forth in the answer?
1. Affirmative defenses allegation of a new matter which while hypothetically admitting the
material allegations in the pleading would nevertheless prevent or bar recovery by the claiming
party. It is in the nature of confession and avoidance

2. Negative defenses specific denial of the material facts or facts alleged in the pleading
essential to establish the plaintiffs cause of action (Rule 6, Sec. 5).

c. Counterclaims

37
A counterclaim is any claim which a DEFENDING PARTY may have against an opposing
party. (Rule 6, Sec. 6)
(1) Compulsory counterclaim
What is a compulsory counterclaim?
(1) One which, being cognizable by the regular courts of justice,
(2) ARISES OUT OF or is CONNECTED WITH the transaction or occurrence constituting the
subject matter of the opposing partys claim and
(3) does not require for its adjudication the presence of third parties of whom the court
cannot acquire jurisdiction.
(4) Such a counterclaim must be within the jurisdiction of the court both as to the amount
and the nature thereof,
(5) except that in an original action before the Regional Trial Court, the counterclaim may be
considered compulsory regardless of the amount (Rule 6, Sec. 7), meaning its amount need not
be under RTC jurisdiction.
Examples: (1) damages claimed to have been suffered as a consequence of the action; (2)
a claim for attorneys fees; (3) in a possessory action, the defendants claim of ownership

(2) Permissive counterclaim

What is a permissive counterclaim?
a. One which is not barred even if not set up and which has NO LOGICAL RELATION with the
transaction or occurrence that is the subject matter of the opposing partys claim, or
b. even when there is such a connection, the court has no jurisdiction to entertain the claim or it
requires for its adjudication the presence of third persons of whom the court cannot acquire
jurisdiction (National Marketing Corp. vs. Federation of United Namarco
Distributors, Inc., 49 SCRA 248 [1973]).

What is the difference between permissive and compulsory counterclaims?

a. In a permissive counterclaim, the docket and other lawful fees should be paid and the
same should be accompanied by a certificate against forum shopping and certificate to
file action issued by the proper Lupon Tagapamayapa. It should also be answered by
the claiming party. It is NOT BARRED even if not set up in the action.
b. In a compulsory counterclaim, no docket fee is paid and the certificates mentioned
above are not required. If it is not raised in the answer, it shall be BARRED.(Rule 9,
Sec. 2)

Examples of compulsory and permissive counterclaims:

A filed a suit for collection of P350,000 against B in the RTC of Cebu City. Aside from alleging
payment as a defense, B in his answer, set up counterclaims for P120,000 as damages and
P25,000 as attorneys fees as a result of the baseless filing of the complainant, as well as for
P230,000 as the balance of the purchase price of the 28 units of refrigerators he sold to A.
The RTC has jurisdiction over the compulsory counterclaims in the total amount of
P145,000 because in an original action before the RTC, the counterclaim may be considered
COMPULSORY regardless of amount (Rule 6, Sec. 7, 2nd sentence). This means that even a
compulsory counterclaim not exceeding P300,000 or P400,000 may be filed in the RTC.

But the RTC has no jurisdiction over the permissive counterclaim of P230,000 because it

38
does not exceed P300,000.

In an action for recovery of land, the counterclaim for reimbursement of the value of the
improvements is in the nature of a compulsory counterclaim in . Thus, the failure by private
respondents to set it up bars their right to raise it in a subsequent litigation. The rule on
compulsory counterclaim is designed to achieve resolution of the whole controversy at one time
and in one action to avoid multiplicity of suits (Baclayon vs. Court of Appeals, G.R. No. 89132,
February 26, 1990)

N.B.: (1) A compulsory counterclaim that merely reiterates special defenses which
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.
However, a compulsory counterclaim which raises issues not covered by the complaint
should be answered.

(2) If the defendant has a compulsory counterclaim, he should not file a motion to
dismiss but an answer with a counterclaim, with the ground for the motion to dismiss
being asserted as an affirmative defense pursuant to Rule 16, Sec. 6. The compulsory
counterclaim is deemed waived when defendant filed a motion to dismiss the
complaint instead of answering the same (Financial Building Corp. vs. Forbes Park
Association, Inc., G.R. No. 133119, August. 17, 2000).

(3) If the counterclaim is based on an ACTIONABLE DOCUMENT attached to or

copied in the counterclaim, the genuineness and due execution of the instrument shall
be DEEMED ADMITTED unless the adverse party through a reply specifically DENIES
UNDER OATH its genuineness and due execution (Rule 8, Sec. 8)

(3) In an action before the first level court (MTC, MeTC, MTCC, MCTC) the
amounts demanded in the counterclaim, cross-claim, third party complaint must fall
WITHIN THE JURISDICTION of said court, which should not exceed P300,000.00
(outside Metro Manila) and P400,000.00 (within Metro Manila),

(3) Effect on the Counterclaim when the complaint is dismissed

1. If no motion to dismiss has been filed, any of the grounds for dismissal under Rule
16 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 has been filed
The dismissal is without prejudice to the right of the defendant to prosecute his
counterclaim in the same or separate action (Rule 16, Sec. 6). .

2. When the plaintiff himself files a motion to dismiss his complaint after the defendant
has pleaded his answer with a counterclaim. If the court grants the motion, the dismissal
shall be limited to the complaint. It shall be without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action unless within 15 days from notice of the motion,
manifests his preference to have his counterclaim resolved in the same action (Rule 17, Sec. 2).

3. When the complaint is dismissed through the fault of the plaintiff and at a time when

39
a counterclaim has already been set up , the dismissal is without prejudice to the right of
the defendant to prosecute his counterclaim in the same or separate action (Rule 17,
Sec. 3)

d. Cross-claims (Rule 6, Sec. 8)

What is a cross-claim?
a. Any claim by any party against a co-party
b. arising out of the transaction or occurrence
c. that is the subject matter of either the original action or of a counterclaim therein.

Such cross-claim may include a claim that the party against whom it is asserted is or
may be liable to the cross-claimant for all or part or a claim asserted in the action
against the cross-claimant (Rule 6, Sec. 8).
A cross-claim is allowed to be interposed by a party against a co-party to enable the
former to RECOVER from the latter whatever he might be made liable to pay the
plaintiff.

Ex. If ABC Bank sues X and Y to collect a loan, Y, who merely acted as an
accommodation party, may file a cross-claim against X by claiming that X is the actual
debtor and should be liable for the payment of the loan (Bar 1997 ).

The dismissal of the complaint carries with it the dismissal of the cross-claim which is
purely defensive, but NOT a cross-claim seeking affirmative relief (Torres vs. CA, 49
SCRA 67 [1973]).

A cross-claim that a party has at the time the answer is filed shall be contained in
said answer (Rule 11, Sec. 8). If not set up, it shall be barred (Rule 9, Sec. 2). Hence,
a cross-claim cannot be set up for the first time on appeal (Loadmasters Customs
Services, Inc. vs. Glodel Brokerage Corporation, 639 SCRA 69)

A cross-claim that shall be barred if not asserted is one already existing at the time
the answer is filed, but not a cross-claim that may mature or may be acquired after
service of the answer. Such cross-claim may, with permission of the court, be
presented by supplemental pleading before judgment (Rule 11, Sec. 9)

A cross-claim omitted through oversight, inadvertence or excusable neglect, or when

justice requires, may, by leave of court, be set up by amendment before judgment
(Rule 11, Sec. 10)

Distinguish a cross-claim from a counterclaim.

a. A cross-claim is a claim against a co-party while a counterclaim is a claim against an
opposing party.

b. A cross-claim requires that filing fee be paid and that there be certification against
forum shopping while only permissive counterclaim requires the same.

40
c. A cross-claim must be answered, otherwise there might be default while a
compulsory counterclaim need not be answered.

e. Third (fourth, etc.) party complaints

Rule 6, Sec. 11. Third, (fourth, etc.)-party complaint .
A third (fourth, etc.)-party complaint is a claim that a defending party may, with leave of
court, file against a person not a party to the action, called the third (fourth, etc.)-party
defendant, for contribution, indemnity, subrogation or any other relief, in respect of his
opponent's claim.

Ex . If the passenger of a bus sues the operator for breach of contract of carriage because
of injuries sustained by him in an accident, the operator may file a third-party complainant
against the driver for reimbursement

M assembles an owner-type jeep for O, who in turn rents it to P. Due to faulty brakes, P
meets a vehicular accident, causing him injuries. P files an action for damages against O
and M. O cannot file a third-party complaint against M because both are already parties.
Instead, O should file a cross-claim against M (Bar 1996 )

Tests to determine whether the third-party complaint is in respect of plaintiffs claim:

1. Whether it arises out of the same transaction on which the plaintiffs claim is ba sed, or,
although arising out of another or different transaction, is connected with the plaintiffs
claim;

2. Whether the third-party defendant would be liable to the plaintiff or to the defendant
for all or part of the plaintiffs claim against the original defendant; and

3. Whether the third-party defendant may assert any defenses which the third-party
plaintiff has or may have to the plaintiffs claim. (Capayas vs. CFI of Albay, 77 Phil 181).

. Leave of court is necessary in filing a third (fourth, etc.) party complaint in order to
obviate delay in the resolution of the complaint, such as when the third-party
defendant cannot be located, or when unnecessary issues may be introduced, or
when a new and separate controversy is introduced. Leave of court is not required in
filing a counterclaim or cross-claim because the parties involved are already parties
to the case.

Where the trial court has jurisdiction over the main case, it also has jurisdiction over
the third party complaint, regardless of the amount involved as a third-party complaint
is merely auxiliary to and is a continuation of the main action. (Republic v. Central
Surety & Insurance Co., G.R. No. L-27802, Oct. 26, 1968)

f. Complaint-in-intervention
INTERVENTION - a legal proceeding by which a person who is not a party to the action is
permitted by the court to become a party by intervening in a pending action after meeting the
conditions and requirements of the Rules of Court.

41
If the purpose of the motion for intervention is to assert a claim against either or all of the
original parties, the pleading shall be called a COMPLAINT-IN-INTERVENTION

The intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of
the original parties, or an answer-in-intervention if he unites with the defending party in
resisting a claim against the latter. (Rule 19, Sec. 3)

. The answer to the complaint-in-intervention shall be filed within fifteen (15) days from
notice of the order admitting the same, unless a different period is fixed by the court. (Rule 19,
Sec. 4)

g. Reply Rule 6, Sec. 10.

A reply is a pleading, the office or function of which is to deny, or allege facts in denial or
avoidance of new matters alleged by way of defense in the answer and thereby join or make
issue as to such new matters. If a party does not file such reply, ALL the new matters alleged in
the answer are deemed controverted.
If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such
claims shall be set forth in an amended or supplemental complaint.

N.B . The filing of a reply is not necessary , because even if a party does not file a repy, all the
new matters that were alleged in the answer are deemed controverted. ( Rule 6, Sec. 10)

Exception :
1.. Where the defense in the answer is based on an actionable document , a reply under
oath must be made, otherwise, the genuineness and due execution of the document
shall be deemed admitted (Rule 8, Sec. 8) (Veluz vs. Court of Appeals , G.R. No.
139951, November 23, 2000)

2. Where the plaintiff files an action to recover a loan with interest and the defendant in his
answer alleges that the interest charged by the plaintiff in is usurious, there is no need
to file a reply to deny such allegation. It is necessary to deny allegations of usury only if
such allegations are made in a complaint to recover usurious interest. (Rule 8, Sec. 11)
2. Pleadings allowed in small claims cases and cases covered by the rule on
summary procedure

Small Claims
Pleadings allowed
1. Statement of Claims (complaint)
2. Response (answer) - Secs 5 and 11, Rule of Procedure for Small Claims Cases
3. Permissive counterclaim - The defendant may also elect to file a counterclaim
against the plaintiff that does not arise out of the same transaction or occurrence,
provided that the amount and nature thereof are within the coverage of this Rule
and the prescribed docket and other legal fees are paid. (Sec. 13, RPSCC)

b. Prohibited pleadings, motions and petitions

42
1. Motion to dismiss
2. Motion for a bill of particulars.
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial.
4. Petition for relief from judgment.
5. Motion for extension of time to file pleadings, affidavits, or any other paper.
6. Memoranda.
7. Petition for certiorari , mandamus , or prohibition against any interlocutory order issued by the
court.
8. Motion to declare the defendant in default.
9. Dilatory motions for postponement.
10. Reply.
11. Third-party complaints.
12. Interventions ( Sec. 14, RPSCC).

Summary Procedure
a . Pleadings allowed.
1. Complaint
2. Compulsory counterclaim
3. Cross-claims pleaded in the answer
4. Answer to these pleadings ( Sec. 3, Rule on Summary Procedure)

b. Prohibited pleadings, motions and petitions

Same as in Small Claims Cases, except that motion to dismiss is allowed on the ground of
- lack of jurisdiction over the subject matter, or
- failure to comply with barangay conciliation (Sec. 19, RSP).

Rule 7
PARTS OF A PLEADING

Sec. 1 Caption. The caption sets forth the name of

the court. The title of the action, and docket number
if assigned.
The title of the action indicates the names of the
parties. They shall all be named in the original
complaint or petition; but in subsequent pleadings it
shall be sufficient if the name of the first party on

43
 each side be started with an appropriate indication
when there are other parties.
Their respective participation in the case shall be
indicated.

ILLUSTRATION:

Republic of the Philippines

11th Judicial Region
CAPTION
Regional Trial Court of Davao
Branch 12

contains the following:

1. the name of the court;
2. the title of the action and
3. the docket number if assigned.

Juan dela Cruz,

P Civil Case #12345
l For: Annulment of Contract
TITLE a
i
n
t
i
f
f
COMPLAINT

BODY sets forth: -versus-

Plaintiff, through counsel respectfully alleges that:
1. its designation; 1. x x x x x x;
Osama bin Laden
2. xclaims
2. the allegation of the party's x x x x and
x; defenses;
D
3. the relief prayed for; and 3. x x x x x x
e
4. the date of the pleading f
e
n
d
The rule is, it is only in the complaint
a where the name of all the parties are required to
be stated, but in subsequent pleadings,
n no need. But there is an EXCEPTION to this
rule. There are instances where thet law does not require the name of the parties to be
stated even in the complaint.

44
 Q: What are the instances where the law does not require the name of the parties to
be stated even in the complaint or pleading?
A: These are the following:
1.) Subsequent Pleading (e.g. answer, reply, etc.) (Section 1);
2.) Class suit (Rule 3, Section 12);
3.) When the identity or name of the defendant is unknown (Rule 3, Section 14);
4.) When you sue an entity without judicial personality (Rule 3, Section 15);
5.) If a party is sued in his official capacity. Official designation is sufficient. [e.g.
Mr. Acelar vs. City Mayor of Davao.] (Unabia vs. City Mayor, 99 Phil. 253)

Variance between caption and allegations in the pleading

It is not the caption of the pleading but the allegations therein 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 (Solid Homes Inc. vs. CA, 271 SCRA 157; Banco
Filipino vs. CA, 332 SCRA 241; Lorbes vs. CA 351 SCRA 716). Thus, a complaint
captioned as unlawful detainer is actually an action for forcible entry where the
allegations show that the possessor of the land was deprived of the same by force,
intimidation, strategy, threat or stealth. Likewise, a complaint for unlawful detainer is
actually an action for collection of a sum of money where the allegations of the
complaint do not disclose that the plaintiff demanded upon the defendant to vacate the
property but merely demanded to pay the rentals in arrears.

In one case, while the complaint was denominated as one for specific performance,
the allegations of the complaint and the relief prayed for actually and ultimately sought
for the execution of a deed of conveyance to effect a transfer of ownership of the
property in question. The action therefore, is a real action (Gochan vs. Gochan, 372
SCRA 256). Also although the complaint was denominated as one for reformation of the
instrument, the allegations of the complaint did not preclude the court from passing
upon the real issue of whether or not the transfer between the parties was a sale or an
equitable mortgage as the said issue has been squarely raised in the complaint and had
been the subject of arguments and evidence of the parties. (Lorbes vs. CA 351 SCRA
716).

If the petitioner filed before the SC a petition captioned Petition for Certiorari
based on Rule 65 but the allegations show that the issues raised are pure questions of
law, the cause of action is not one based on Rule 65 which raises issues of jurisdiction,
but on Rule 45 which raises pure questions of law. The allegations of the pleading
determine the cause of action and not the title of the pleading (De Castro vs. Fernandez,
Jr. GR No. 155041, Feb. 14, 2007)

Sec. 2. The body. - The body of the pleading sets

forth its designation, the allegations of the party's

45
 claims or defenses, the relief prayed for, and the
date of the pleading. (n)
a) Paragraphs - the allegations in the body of a
pleading shall be divided into paragraphs so numbered
as to be readily identified, each of which shall
contain a statement of a single set of circumstances
so far as that can be done with convenience. A
paragraph may be referred to by its number in all
succeeding pleadings. (3a)
(b) Headings - When two or more causes of action
are joined, the statement of the first shall be
prefaced by the words "First cause of action", of the
second by "second cause of action," and so on for the
others.
(c) Relief - The pleading shall specify the
relief sought, but it may add a general prayer for
such further or other relief as may be deemed just or
equitable. (3a, R6)
(d) Date - Every pleading shall be dated. (n)

The body-
A pleading is divided into paragraphs so numbered as to be readily identified.
Normally, a complaint starts: Plaintiff, thru counsel, respectfully alleges that x x x. Then
first paragraph, second paragraph and so on. The first paragraph is normally the
statement of the parties and their addresses which is required under Rule 6 where a
complaint must state the names:

1. Plaintiff Juan dela Cruz is of legal age, a resident of Davao City whereas
defendant Pedro Bautista, is also of legal age and a resident of Davao City.
2. On such and such a date, defendant secured a loan from plaintiff in the amount of
so much payable on this date.
3. The loan is now overdue but defendant still refused to pay.

So every paragraph is numbered so that it can easily be identified in the subsequent

pleadings. So in his Answer, the defendant will just refer to the #, I admit the
allegations in paragraph #5)

Paragraph [b] is related to Rule 2 on joinder of causes of action. Can you file one
complaint embodying two or more causes of action? YES.

EXAMPLE: Angelo wants to file a case against Ina to collect three unpaid
promissory notes. So, there are three causes of action. The lawyer of Angelo decided to
file only one complaint collecting the three promissory notes. Now, how should he
prepare the complaint containing the three promissory notes?

46
 Plaintiff respectfully alleges: 1. that he is of legal age x x x.

FIRST CAUSE OF ACTION: In 1995, there was a loan secured amounting to so

much and it is not paid until now;
SECOND CAUSE OF ACTION: In 1995, there was a second loanbecame
payable and is not paid.
THIRD CAUSE OF ACTION: x x x x.

So, you indicate your different causes of action. That is how you prepare your
complaint. On the other hand, the defendant will answer:

ANSWER:
ANSWER TO THE FIRST CAUSE OF ACTION x x x,
ANSWER TO THE SECOND CAUSE OF ACTION x x x,
ANSWER TO THE THIRD CAUSE OF ACTION x x x.

Do not combine them together in one paragraph. Even in trial when you present
your exhibits, you might get confused because you combined all the three causes of
action in one paragraph. But with this one, the presentation is clearer, the outline is
clearer and it is more scientifically arranged than joining them in one story.

Relief-

In the body, you state your allegations or defenses. Then at the end, you state the relief
which we call PRAYER what you are asking the court: Wherefore, it is respectfully
prayed that judgment be rendered ordering defendant to pay plaintiff his loan of P1 million with
interest of 10% p.a. from this date until fully paid. Then, you end up with the date of the
pleading: Davao City, Philippines, December 10, 1997.

Under paragraph [c], the pleading must state the relief sought. But it may add a general
prayer for such further other relief as may be just and equitable like, Plaintiff prays for
such further or other relief which the court may deem just or equitable.

The relief or prayer, although part of the complaint, does not constitute a part of the
statement of the cause of action. It does not also serve to limit or narrow the issues
presented (UBS vs. CA 332 SCRA 534)

It is the material allegations of the complaint, not the legal consequences made
therein or the prayer that determines the relief to which the plaintiff is entitled. (Banco
Filipino vs. CA 332 SCRA 241).

47
 It is important to remember that the court may grant a relief not prayed for as long
as the relief is warranted by the allegations of the complaint and the proof. (Lorbes
vs. CA).

Q: Is the prayer or relief part of the main action?

A: NO, it is part of the complaint or answer but it may indicate what is the nature of
the cause of action. Causes of action are mere allegations. Prayer is not part of the cause
action but it is important because it might enlighten us on the nature of the cause of
action. That is the purpose of relief or prayer.

EXAMPLE : Angelo filed a case against Ina for annulment of a contract of sale. If
you look at the caption, it is a personal action which should be instituted in the place
where the parties reside. But if you look at the prayer: Wherefore, it is respectfully prayed
that after trial, the deed of sale shall be annulled on the ground of intimidation, and the
ownership of the land sold to the defendant in Digos be ordered returned. Actually, you are
trying to recover the ownership of the land. So in other words, it is not a personal action
but a real action.

Relief/s that a court can grant-

Leticia Diona, represented by her Attorney-in-fact, Marcelina Diona v. Romeo

Balangue, Sonny Balangue, Reynaldo Balangue, and Esteban Balangue, Jr.; G.R.
No. 173559. January 7, 2013

Pleadings; relief. It is settled that courts cannot grant a relief not prayed for in the
pleadings or in excess of what is being sought by the party. They cannot also
grant a relief without first ascertaining the evidence presented in court.
In Development Bank of the Philippines v. Tecson, this Court expounded that:
Due process considerations justify this requirement, it is improper to enter an order
which exceeds the scope of relief sought by the pleadings, absent notice, which affords
the opposing party an opportunity to be heard with respect to the proposed relief. The
fundamental purpose of the requirement that allegations of the complaint must provide
the measure of recovery is to prevent surprise to the defendant.

Notably, the Rules is even more strict in safeguarding the right to due process of a
defendant who was declared in default than of a defendant who participated in trial. For
instance, amendment to conform to the evidence presented during trial is allowed the
parties under the Rules. But the same is not feasible when the defendant is declared in
default because Section 3(d), Rule 9 of the Rules of Court comes into play and limits
the relief that may be granted by the courts to what has been prayed for in the
complaint. xxx The raison detre in limiting the extent of relief that may be granted is that
it cannot be presumed that the defendant would not file an Answer and allow himself to
be declared in default had he know that the plaintiff will be accorded a relief greater than
or different in kind from that sought in the Complaint. No doubt, the reason behind
Section 3(d), Rule 9 of the Rules of Court is to safeguard defendants right to due

48
process against unforeseen and arbitrarily issued judgment. This, to the mind of the
Court, is akin to the very essence of due process. It embodies the sporting idea of fair
play and forbids the grant of relief on matters where the defendant was not given the
opportunity to be heard thereon.

In Prince Transport, Inc. v. Garcia, 639 SCRA 312, 330, the Court ruled that a court
can grant the relief warranted by the allegations and the proof even if it is not
specifically sought by the injured party; the inclusion of a general prayer may justify the
grant of a remedy different from or together with the specific remedy sought, if the facts
alleged in the complaint and the evidence introduced so warrant.

Sec. 3. Signature and Address.- Every pleading must be

signed by the party or counsel representing him, stating in
either case his address which should not be a post office
box.
x x x x x

Signature and address every pleading must be signed by the party or the counsel
representing him.

A signed pleading is one that is signed either by the party himself or his counsel.
Section 3, Rule 7 is clear on this matter. It requires that a pleading must be signed by the
party or counsel representing him. Therefore, only the signature of either the party
himself or his counsel operates to validly convert a pleading from one that is unsigned
to one that is signed. (Republic vs. Kenrick Development Corp. 351 SCRA 716)

Counsels authority to sign personal to him/her-

It has been held that counsels authority and duty to sign a pleading are personal to
him. He may not delegate it to just any person because the signature of counsel
constitutes an assurance by him that:
1. he has read the pleading;
2. that to the best of his knowledge, information and belief, there is a good ground to
support it; and
3. that it is not interposed for delay.

Under the Rules of Court, it is counsel alone, by affixing his signature, who can
certify to these matters.

The preparation and signing of a pleading constitute legal work involving practice
of law which is reserved exclusively for the members of the legal profession.
Accordingly however, counsel may delegate the signing of a pleading to another lawyer

49
but cannot do so in favor of one who is not. In so ruling the Court cites The Code of
Professional Responsibility, the pertinent provision on which provides:

Rule 9.01 A lawyer shall not delegate to any unqualified person the performance of
any task which by law may only be performed by a member of the Bar in good
standing.

A signature by agents of a lawyer amounts to signing by unqualified persons,

something the law strongly proscribes. Therefore, the blanket authority entrusted to just
anyone is void. Any act taken pursuant to that authority is likewise void. Hence, there
is no way it could be cured or ratified by counsel. (Republic vs. Kenrick Development
Corp.)

Not Post Office Address, why?

Take note of the prohibition now: You must state your address which should not be
a post office box because one difficulty is that the exact date when you claim your mail
cannot be determined if it is a P.O. box. But if it is served to his office, the exact date of
receipt can easily be determined.

IMPLIED CERTIFICATION IN A PLEADING

Section 3, second paragraph:

The signature of counsel constitutes a

certification by him that he has read the pleading;
that to the best to his knowledge, information, and
belief there is good ground to support it; and that it
is not interposed for delay.

BAR QUESTION: What is the meaning of the phrase Implied Certification in a

Pleading?
A: Implied Certification in a Pleading means that when a lawyer signs a pleading
he is certifying that he has read it, to the best of his knowledge, information and belief
there is a good ground to support it, and it is not interposed for delay.

Effect of an unsigned pleading-

Section 3, last paragraph:

An unsigned pleading produces no legal effect.

However, the court may, in its discretion, allow such
deficiency to be remedied if it shall appear that the

50
 same was due to mere inadvertence and not intended for
delay. Counsel who deliberately files an unsigned
pleading, or signs a pleading in violation of this
Rule, or alleges scandalous or indecent matter
therein, or fails to promptly report to the court a
change of his address, shall be subject to appropriate
disciplinary action. (5a)

So, when a pleading is not signed it produces no legal effect. It is as if no pleading

has been filed.

Q: Now, suppose it was just an inadvertent omission, it was not intentional maybe
because he was hurrying to file the pleading, the lawyer had it filed when actually he
has not signed it yet.
A: Well, actually if that is in good faith, the court may forgive the counsel because
the law says, however, the court, may in its discretion, allow such deficiency to be
remedied if it shall appear that the same was due to mere inadvertence and not
intended for delay.

However, if the lawyer files a pleading, which is UNSIGNED DELIBERATELY,

then, according to the rules, he shall be subject to appropriate disciplinary action. That
is practically unethical no? Not only that, he is also subject to disciplinary action if he
signs a pleading in violation of this Rule or alleges scandalous or indecent matter
therein, or fails to promptly report to the court a change of his address..

Now, this ground fails to promptly report to the court a change of his address has
been inserted in 1997 Rules, this was not found in the prior Rules perhaps to prevent
delays.

Q: What do you mean by this?

A: A lawyer will file a pleading in court, he will say this is his address, and then he
moves his office without telling the court or the opposing counsel of his new address.
So, the court will be sending notices and orders to his old address and it is returned to
sender because the lawyer already moved to another place. So, it causes delay.

So, in order to penalize the lawyer, subject to disciplinary action, it is his obligation
to inform the court and even the opposing counsel about his new address so that all
court orders, decisions and all pleadings will be served on his address. I think what
prompted the SC to insert this is the fact that it has been the cause of delays in many
cases.

Disciplinary action on counsel in the following cases:

1. deliberately filing an unsigned pleading;
2. deliberately signing a pleading in violation of the Rules;
51
 3. alleging scandalous or indecent matter in the pleading; or
4. failing to promptly report a change of his/her address.

Signature of a misjoined party-

The Court rules that the absence of the signature of the person misjoined as a party-
plaintiff in either the verification page or certification against forum shopping is not a
ground for the dismissal of the action. There is no judicial precedent affirming or
rejecting such a view, but we are comfortable with making such a pronouncement. A
misjoined party plaintiff has no business participating in the case as a plaintiff in the
first place, and it would make little sense to require the misjoined party in complying
with all the requirements expected of plaintiffs (Chua v. Torres GR No. 151900, Aug 30,
2005).

VERIFICATION

Sec. 4. Verification.- Except when otherwise

specifically required by law or rule, pleadings need
not be under oath, verified or accompanied by
affidavit. (5)
A pleading is verified by an affidavit that the
affiant has read the pleading and that the allegations
therein are true and correct of his knowledge and
belief.
A pleading required to be verified which contains a
verification based on "information and belief," or
upon "knowledge, information and belief," or lacks a
proper verification, shall be treated as an unsigned
pleading. (6a)

How a Pleading is Verified-

A pleading is verified by an affidavit, which declares that:

(a) the affiant has read the pleading, and
(b) that the allegations therein are true and correct of his personal knowledge or
based on authentic records (Sec. 4 as amended by A.M. No. 00-2-10, May 1, 2000)

Example:

I, Juan de la Cruz of legal age, after being sworn

in accordance with law, hereby say that:

I am the plaintiff in the above entitled case.

I caused the preparation of this complaint;
I read the allegations therein;

52
 And they are true and correct of my own
knowledge.

Signed
Affiant

Subscribed and sworn to before me on this 2nd day

of October 2001, in the City of Cebu, Philippines.

Panfilo Corpuz
Notary Public

Significance of a Verification-

The purpose of verification is to insure good faith in the averments of a pleading or

that they are true and correct, not merely speculative. (Sarmiento vs. Zaratan GR No.
167471, February 5, 2007).

Effect if verification is false-

Q: What do you think will happen if a pleading is verified by a party and it turns out
that the allegations are false? And that he deliberately made those allegations false and
under oath.
A: Well, you know your Criminal Law. That will be a ground for the prosecution for the
crime of perjury, because that is a false affidavit. But if the pleading is not verified, even
if they are false, there is no perjury, because perjury requires a sworn statement by the
accused.

Effect of lack of a verification-

Lack of verification in a pleading is a formal defect, not jurisdictional defect, and can
be cured by amendment. (Phil. Bank of Commerce vs. Macadaeg, L-14174, Oct. 31,
1960)

The absence of a verification may be corrected by requiring an oath. The rule is in

keeping with the principle that rules of procedure are established to secure substantial
justice and that technical requirements may be dispensed with in meritorious cases.
(Pampanga Sugar Development Company, Inc. vs. NLRC 272 SCRA 737) The court may
order the correction of the pleading or act on an unverified pleading if the attending
circumstances are such that strict compliance would not fully serve substantial justice,
which after all, is the basic aim for the rules of procedure. (Robert Development Corp.
vs. Quitain 315 SCRA 150; Joson vs. Torres 290 SCRA 279)

53
What pleading needs to be verified-
Q: Does the law require every pleading to be verified?
A: NO. The GENERAL RULE is, pleadings need not be under oath, EXCEPT when
otherwise specifically required by law or this rule. When the law or rules require a
pleading to be verified, then it must be verified, otherwise it is formally detective. If the
law is silent, verification is not necessary and the pleading is filed properly.

Litigants not required to read the very same document to be filed in court-

Generally, a pleading is not required to be verified unless required by law or by the

Rules of Court. Verification, when required, is intended to secure an assurance that the
allegations of a pleading are true and correct; are not speculative or merely imagined;
and have been made in good faith. To achieve this purpose, the verification of a
pleading is made through an affidavit or sworn statement confirming that the affiant
has read the pleading whose allegations are true and correct of the affiant's personal
knowledge or based on authentic records.

However, the Rules do not require the litigants to read the very same document
that is to be filed before the courts; what the Rules require is for a party to read the
contents of a pleading without any specific requirement on the form or manner in
which the reading is to be done. That a client may read the contents of a pleading
without seeing the same pleading to be actually filed with the court is, in these days of
e-mails and other technological advances in communication not an explanation that is
hard to believe. The variance between the dates of the Petition and the Verification
does not necessarily lead to the conclusion that no verification was made, or that the
verification was false. (Sps. Valmonte v. Alcala, GR No. 168667, July 23, 2008)

BAR QUESTION: Name as many pleadings as you can which must be verified.
A: The following:
1.) Rule 8 when you deny the due execution of an actionable document;
2.) Summary Rules all pleadings under summary rules should be verified;
3.) Special Civil Actions petitions for certiorari, prohibition and mandamus.
4.) Statement of Claim for Small Claims cases as well as the response thereto
(Secs. 5 & 11, Procedure for Small Claims Cases)
5.) Complaint for Injunction (Sec. 4 R 58)
6.) Application for Appointment of Receiver (Sec. 1 R 59)
7.) Application for Support Pendente Lite (Sec. 1 R 69)
8.) Petition for Forcible Entry or Unlawful Detainer, the answers thereto, and the
answers to any compulsory counterclaim and cross-claim pleaded in the
answer (Sec. 4 R 70)
9.) Petition for Indirect Contempt (Sec. 4 R 71)
10.) Petition for Relief from Judgment or Order (Sec. 3 R 38)
11.) Petition for Review from the RTC to the SC (Sec. 2(c) R 41)

54
 12.) Petition for Review from RTC to SC (Sec. 1 R 42)
13.) Petition for Review from CTA and other quasi-judicial agencies to the CA
(Sec. 5 R 43)
14.) Appeal by Certiorari Under R 45 from CA to SC (Sec. 1 R 45)
15.) Petition for Appointment of a Guardian (Sec. 2 R 93)
16.) Petition for Leave filed by Guardian to Sell or Encumber Property of an
Estate (Sec. 1 R 95)
17.) Petition for Declaration of Competency of a Ward (Sec. 1 R 97)
18.) Petition for Habeas Corpus (Sec. 3 R 102)
19.) Petition for Change of Name (Sec. 2 R 103)
20.) Petition for Voluntary Judicial Dissolution of a Corporation (Sec. 1 R 105)
21.) Petition for Cancellation or Correction of Entries in the Civil Registru (Sec.
1 R 108)

Q: Now, on the other hand, suppose a pleading does not require verification but the
lawyer had it verified. What is the effect?
A: There is no effect, just surplusage! A pleading in general is not required to be
verified. But I will verify it. Is there something wrong with it? Technically, none. But if
it is required to be verified and you omit the verification, it is formally defective.

CERTIFICATION OF NON-FORUM SHOPPING

Sec. 5. Certification against forum shopping.-- The

plaintiff or the principal party shall certify under
oath in the complaint or other initiatory pleading
asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed
therewith:
a)that he has not theretofore commenced any action
or filed any claim involving the same issues in any
court, tribunal or quasi-judicial agency and, to the
best of his knowledge, no such other action or claim
is pending therein;
b)if there is such other pending action or claim, a
complete statement of the status thereof; and
c)if he should thereafter learn that the same or
similar action or claim has been filed or pending, he
shall report that fact within (5) days therefrom to
the court wherein his aforesaid complaint or
initiatory pleading has been filed.
Failure to comply with the foregoing requirements
shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be

55
 cause for the dismissal of the case without prejudice,
unless otherwise provided, upon motion and after
hearing. The submission of a false certification or
non-compliance with any of the undertakings therein,
shall constitute indirect contempt of court, without
prejudice to the corresponding administrative and
criminal actions. If the acts of the party or his
counsel clearly constitute willful and deliberate
forum shopping, the same shall be ground for summary
dismissal with prejudice and shall constitute direct
contempt, as well as a cause for administrative
sanctions. (n)

The certification is mandatory under Sec. 5 of Rule 7 but not jurisdictional. (Robert
Development Corp. vs. Quitain)

This rule applies as well to special civil actions since a special civil action is governed by
the rules for ordinary civil actions, subject to the specific rules prescribed for a special
civil action. Such specific rule appears under Rule 46, Sec. 3, which requires that every
petition for certiorari to be accompanied by a sworn certification of non-forum
shopping. (Wacnang vs. Comelec, GR No. 178024 Oct. 17, 2008)

Failure to submit certification against forum shopping and forum shopping are
two separate grounds for dismissal--

The failure to submit a certification against forum shopping is a ground for

dismissal, separate and distinct from forum shopping as a ground for dismissal. A
complaint may be dismissed for forum shopping even if there is a certification
attached and conversely, a complaint may be dismissed for lack of the required
certification even if the party has not committed forum shopping. Compliance with
the certification against forum shopping is separate from, and independent of, the
avoidance of forum shopping itself. (Juaban vs. Espina 548 SCRA 588, March 14,
2008).

Benedicto v. Lacson, et al., G.R. No. 141508, May 5, 2010

There is no need to state that a case was filed and dismissed in the certificate of non-
forum shopping if dismissal is without prejudice.

Foundation of the rule is res judicata.

Pleadings requiring a certification-

56
 The certification against forum shopping is mandatory in filing a complaint and
other initiatory pleadings asserting a claim (Sec.5) This initiatory pleadings include
not only the 1. original complaint but also 2.permissive counterclaim, 3. cross-claim,
4. third (fourth)-party complaint, 5. complaint in intervention, 6. petition or any
application in which a party asserts a claim for relief. The rule does not require a
certification against forum shopping for a compulsory counterclaim because it cannot
be the subject of a separate and independent adjudication. It is therefore, not an
initiatory pleading (UST vs. Surla, 294 SCRA 382)

It bears stressing that the Rule distinctly provides that the required certification
against forum shopping is intended to cover an initiatory pleading, meaning an
incipient application of a party asserting a claim for relief. The answer with a
counterclaim is a responsive pleading, filed merely to counter petitioners complaint
that initiates the civil action and is a claim for relief that is derived only from, or is
necessarily connected with, the main action or complaint. It is not an initiatory pleading
(Sps. Carpio vs. Rural Bank of Sto. Tomas Batangas, supra)

SANTO TOMAS UNIVERSITY HOSPITAL vs. SURLA

294 SCRA 382 [Aug. 17, 1998]

HELD: The certification of non-forum shopping applies only to

permissive counterclaims because there is no possibility of forum
shopping in compulsory counterclaims.
The proviso in the second paragraph of Section 5, Rule 7, of the 1997
Rules of Civil Procedure, i.e., that the violation of the anti-forum shopping
rule shall not be curable by mere amendment . . . but shall be cause for the
dismissal of the case without prejudice, being predicated on the applicability
of the need for a certification against forum shopping, obviously does not
include a claim which cannot be independently set up.

Forum Shopping; definition and nature.

1.There is forum shopping when, as a result of an adverse opinion in one forum, a

party seeks a favorable opinion, other than by appeal or certiorari, in another.

2.There can also be forum shopping when a party institutes two or more suits in
different courts, either simultaneously or successively, in order to ask the courts to rule
on the same or related causes and/or to grant the same or substantially the same reliefs
on the same supposition that one or the other court would make a favorable disposition
or increase a partys chances of obtaining a favorable decision or action. (Huibonhoa vs.

57
Concepcion GR 153785, August 3, 2006; Heirs of Cesar Marasigan vs. Marasigan, GR
156078 March 14, 2008)

It is an act of a party against whom an adverse judgment has been rendered in one
forum of seeking and possibly getting a favorable opinion in another forum, other than
by appeal or the special civil action of certiorari, or the institution of two or more
actions or proceedings grounded on the same cause on the supposition that one or the
other court would make a favorable disposition. (Sps. Carpio vs. Rural Bank of Sto.
Tomas Batangas GR 153171 May 4, 2006)

Estrella Aduan Orpiano v. Spouses Antonio C. Tomas and Myrna U. Tomas; G.R.
No. 178611. January 14, 2013

Forum shopping is defined as an act of a party, against whom an adverse judgment or

order has been rendered in one forum, of seeking and possibly getting a favorable
opinion in another forum, other than by appeal or special civil action for certiorari. It may
also be the institution of two or more actions or proceedings grounded on the same
cause on the supposition that one or the other court would make a favorable decision. x
x x It is expressly prohibited xxx because:
a.) it trifles with and abuses court processes,
b.) degrades the administration of justice, and
c.) congest our court dockets. A willful and deliberate violation of the rule against
forum shopping is a ground for summary dismissal of the case, and may also
constitute indirect contempt.
d.)
e.) How to determine existence of forum shopping

To determine whether a party violated the rule against forum shopping, the most
important question to ask is whether the elements of litis pendentia are present or
whether a final judgment in one case will result to res judicata in another. Otherwise
stated, to determine forum shopping, the test is to see whether in the two or more cases
pending, there is (a) identity of parties, (b) identity of rights or causes of action, and
(c) identity of reliefs sought (Huibonhoa vs. Concepcion)

What is pivotal in determining whether forum shopping exists or not is the vexation
caused the courts and parties-litigants by a party who asks different courts and/or
administrative agencies to rule on the same or related causes and/or grant the same or
substantially the same reliefs, in the process creating possibility of conflicting decisions
being rendered by the different courts and/or administrative agencies upon the same
issues (Lim vs. Vianzon GR 137187, August 3, 2006).

Forum-shopping exists when the elements of litis pendentia concur.

58
ELSA D. MEDADO vs. HEIRS OF THE LATE ANTONIO CONSING, as represented
by DR.SOLEDAD CONSING,
G.R. No. 186720, February 8, 2012

On the third issue, there is forum shopping when the elements of litis pendentia are
present, i.e., between actions pending before courts, there exist:
(1) identity of parties, or at least such parties as represent the same interests in
both actions,
(2) identity of rights asserted and relief prayed for, the relief being founded on
the same facts, and
(3) the identity of the two preceding particulars is such that any judgment
rendered in the other action will, regardless of which party is successful,
amount to res judicata in the action under consideration; said requisites
are also constitutive of the requisites for auter action pendant or lis
pendens

Applying the foregoing, there was clearly a violation of the rule against
forum shopping when Spouses Medado instituted Civil Case No. 797
C for injunction notwithstanding the pendency of Civil Case No. 00
11320 for rescission of contract and damages.

All elements of litis pendentia are present with the filing of the two cases. There
is no dispute that there is identity of parties representing the same interests in the two
actions, both involving the estate and heirs of the late Consing on one hand, and
Spouses Medado on the other. The rescission case names Soledad T. Consing, for
herself and as administratrix of the estate of Antonio Consing as plaintiff, with Spouses
Meritus Rey and Elsa Medado, [PNB] and the Register of Deeds of Cadiz City as
respondents. The injunction case, on the other hand, was instituted by Spouses
Medado, against (LBP) and the Heirs of the Late Antonio Consing, as represented by
Dra. Soledad Consing. The primary litigants in the two action, and their interests, are
the same.

The two other elements are likewise satisfied. There is an identity of rights
asserted and reliefs prayed for in the two cases, with the reliefs being founded on the
same set of facts. In both cases, the parties claim their supposed right as owners of the
subject properties. They all anchor their claim of ownership on the deeds of absolute
sale, which they had executed, and the law applicable thereto. They assert their
respective rights, with Spouses Medado as buyers and the heirs as sellers, based on
the same set of facts that involve the deeds of sale's contents and their validity. Both
actions necessarily involve a ruling on the validity of the same contract as
against the same parties. Thus, the identity of the two cases is such as would render
the decision in the rescission case res judicata in the injunction case, and vice versa.

It does not even matter that one action is for the enforcement of the parties'
agreements, while the other action is for the rescission thereof. In the similar case
of Victronics Computers, Inc. v. RTC, Branch 63, Makati,we discussed: Civil Case No.

59
91-2069 actually involves an action for specific performance; it thus upholds the
contract and assumes its validity. Civil Case No. 91-2192, on the other hand, is for the
nullification of the contract on the grounds of fraud and vitiated consent. While
ostensibly the cause of action in one is opposite to that in the other, in the final
analysis, what is being determined is the validity of the contract. x x x Thus, the
identity of rights asserted cannot be disputed. Howsoever viewed, it is beyond cavil that
regardless of the decision that would be promulgated in Civil Case No. 91-2069, the
same would constitute res judicata on Civil Case No. 91-2192 and vice versa.(emphasis
supplied)

This was further explained in Casil v. CA, where we ruled:

The Court of Appeals held that there can be no res adjudicata because there is no
identity of causes of action between the two cases. We do not agree. In the two cases,
both petitioner and private respondent brought to fore the validity of the agreement
dated May 4, 1994. Private respondent raised this point as an affirmative defense in
her answer in the First Case. She brought it up again in her complaint in the Second
Case. A single issue cannot be litigated in more than one forum. As held in Mendiola
vs. Court of Appeals:

The similarity between the two causes of action is only too glaring. The test of
identity of causes of action lies not in the form of an action but on whether the
same evidence would support and establish the former and the present causes
of action. The difference of actions in the aforesaid cases is of no moment. In
Civil Case No. 58713, the action is to enjoin PNB from foreclosing petitioner's
properties, while in Civil Case No. 60012, the action is one to annul the auction
sale over the foreclosed properties of petitioner based on the same
grounds. Notwithstanding a difference in the forms of the two actions, the
doctrine of res judicata still applies considering that the parties were litigating
for the same thing, i.e. lands covered by TCT No. 27307, and more
importantly, the same contentions and evidence as advanced by herein
petitioner in this case were in fact used to support the former cause of action.

The CA was then correct in ordering the dismissal of the complaint in Civil
Case No. 797-C for violation of the rule against forum shopping. The issue on
the validity of the subject deeds of absolute sale can best be addressed in the
action for rescission, as against the case for injunction filed by Spouses
Medado. In a line of cases, we have set the relevant factors that courts
must consider when they have to determine which case should be
dismissed, given the pendency of two actions, to wit:

(1) the date of filing, with preference generally given to the first action
filed to be retained;

60
 (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.

We emphasize that the rules on forum shopping are meant to prevent such
eventualities as conflicting final decisions. This Court has consistently held that the
costly consequence of forum shopping should remind the parties to ever be mindful
against abusing court processes. In addition, the principle of res judicata requires that
stability be accorded to judgments. Controversies once decided on the merits shall
remain in repose for there should be an end to litigation which, without the doctrine,
would be endless.

Three ways of committing forum shopping-

1. filing multiple cases based on the same cause of action and with the same prayer,
the previous case not having been resolved yet (where the ground is litis
pendentia);
2. filing multiple cases based on the same cause of action and the same prayer, the
previous case having been finally resolved (where the ground for dismissal is res
judicata); and
3. filing multiple cases based on the same cause of action but with different prayers
(splitting of causes of action where the ground for dismissal is also either litis
pendentia or res judiciata) (Chua v. MetroBank, 596 SCRA 524, 535-536)

Rationale against forum shopping-

The rationale against forum shopping is that a party should not be allowed to
pursue simultaneous remedies in two different fora. Filing multiple petitions or
complaints constitutes abuse of court processes, which tends to degrade the
administration of justice, wreaks havoc upon orderly judicial procedure, and adds to
the congestion of the heavily burdened dockets of the court. Thus, the rule proscribing
forum shopping seeks to promote candor and transparency before the courts to
promote the orderly administration of justice, prevent undue inconvenience upon the
other party, and save the precious time of the courts. It also aims to prevent the
embarrassing situation of two or more courts or agencies rendering conflicting
resolutions or decisions upon the same issue (Huibonhoa vs. Concepcion, supra).

Certification against forum shopping and Verification; requirements not

jurisdictional.

61
Sps. Eugene L. Lim and Constancia Lim v. The Court of Appeals-Mindanao
Station, et al.; G.R. No. 192615, January 30, 2013

In any case, it is settled that the requirements of verification and certification against
forum shopping are not jurisdictional. Verification is required to secure an assurance
that the allegations in the petition have been made in good faith or are true and
correct, and not merely speculative. Non-compliance with the verification
requirement does not necessarily render the pleading fatally defective, and is
substantially complied with when signed by one who has ample knowledge of the
truth of the allegations in the complaint or petition, and when matters alleged in
the petition have been made in good faith or are true and correct.

On the other hand, the certification against forum shopping is required based on
the principle that a party litigant should not be allowed to pursue simultaneous
remedies in different fora. While the certification requirement is obligatory, non-
compliance or a defect in the certificate could be cured by its subsequent
correction or submission under special circumstances or compelling reasons or
on the ground of substantial compliance.

Effect of non-compliance

The failure to comply with the required certification is not curable by a mere
amendment and shall be a cause for the dismissal of the action (Sec. 5).

The dismissal is not to be done by the court motu proprio as the rule requires that
it shall be done upon motion and after hearing (Sec. 5)

The dismissal is, as a rule, without prejudice unless the order provides otherwise
(Sec. 5)

Certification against forum shopping; non-compliance is not curable by

subsequent submission unless there is substantial compliance or special
circumstance.

Mary Louise Anderson v. Enrique Ho, G.R. No. 172590. January 7, 2013

In this light, the Court finds that the CA correctly dismissed Andersons Petition for
Review on the ground that the certificate of non-forum shopping attached thereto was
signed by Atty. Oliva on her (Andersons) behalf sans any authority to do so. While the
Court notes that Anderson tried to correct this error by later submitting an SPA and by
explaining her failure to execute one prior to the filing of the petition, this does not
automatically denote substantial compliance. It must be remembered that a defective
certification is generally not curable by its subsequent correction, and while it is true that
in some cases the Court considered such a belated submission as substantial
compliance, it did so only on sufficient and justifiable grounds that compelled a liberal

62
approach while avoiding the effective negation of the intent of the rule on non-forum
shopping.

Certification against forum shopping; SPA designating counsel to sign must be

executed if party-pleader cannot sign.

Mary Louise Anderson v. Enrique Ho, G.R. No. 172590. January 7, 2013

The need to abide by the Rules of Court and the procedural requirements it imposes
has been constantly underscored by this Court. One of these procedural requirements
is the certificate of non-forum shopping which, time and again, has been declared as
basic, necessary and mandatory for procedural orderliness.

In Vda. De Formoso v. Philippine National Bank, the Court reiterated the guidelines
respecting non-compliance with or submission of a defective certificate of non-
forum shopping, the relevant portions of which are as follows:

4) As to certification against forum shopping, non-compliance therewith

or a defect therein, xxx, is generally not curable by its subsequent
submission or correction thereof, unless there is a need to relax the
Rule on the ground of substantial compliance or presence of special
circumstances or compelling reasons.
xxxx
6) Finally, the certification against forum shopping must be executed by
the party pleader, not by his counsel. If, however, for reasonable or
justifiable reasons, the party-pleader is unable to sign, he must execute
a Special Power of Attorney designating his counsel of record to sign
on his behalf.

The requirement that it is the petitioner, not her counsel, who should sign the
certificate of non-forum shopping is due to the fact that a certification is a
peculiar personal representation on the part of the principal party, an assurance
given to the court or other tribunal that there are no pending cases involving
basically the same parties, issues and causes of action. Obviously, it is the
petitioner, and not always the counsel whose professional services have been
retained for a particular case, who is in the best position to know whether [she]
actually filed or caused the filing of a petition in that case. Per the above
guidelines, however, if a petitioner is unable to sign a certification for reasonable or
justifiable reasons, she must execute an SPA designating her counsel of record to sign
on her behalf. A certification which had been signed by counsel without the proper
authorization is defective and constitutes a valid cause for dismissal of the petition.

Who executes the certification?

63
 It is the plaintiff or principal party who executes the certification under oath. (Sec. 5).
The certification must be executed by the party, not the attorney (Damasco vs. NLRC
346 SCRA 714).

It is the petitioner and not the counsel who is in the best position to know whether
he or it actually filed or caused the filing of a petition. A Certification signed by counsel
is a defective certification and is a valid cause for dismissal (Far Eastern Shipping
Company vs. CA 297 SCRA 30). This is the general and prevailing rule.

Certifiction of non-forum shopping, Verification

ELSA D. MEDADO vs. HEIRS OF THE LATE ANTONIO CONSING, as

represented by DR.SOLEDAD CONSING,
G.R. No. 186720, February 8, 2012

Issues:

I. Whether or not the CA correctly admitted the petition for certiorari filed
before it, notwithstanding alleged deficiencies in its verification and
certification against forum shopping;

II. Whether or not the CA correctly admitted the petition for certiorari filed
before it even if no motion for reconsideration of the RTCs Order dated March
9, 2007 was filed with the lower court; and

III. Whether or not the CA correctly held that the rule against forum
shopping was violated by the filing of the complaint for injunction during the
pendency of the action for rescission and damages.

In their comment on the petition, the respondents also raise as an issue the
failure of the petitioner to join her husband as a party to the petition, considering that the
action affects conjugal property.

Ruling:

As we ratiocinated in Heirs of Olarte v. Office of the President:

64
 The general rule is that the certificate of non-
forum shopping must be signed by all the plaintiffs in a
case and the signature of only one of them is
insufficient. However, the Court has also stressed that the
rules on forum shopping were designed to promote and
facilitate the orderly administration of justice and thus should
not be interpreted with such absolute literalness as to
subvert its own ultimate and legitimate objective. The rule of
substantial compliance may be availed of with respect to the
contents of the certification. This is because the requirement
of strict compliance with the provisions regarding the
certification of non-forum shopping merely underscores its
mandatory nature in that the certification cannot be
altogether dispensed with or its requirements completely
disregarded. Thus, under justifiable circumstances, the
Court has relaxed the rule requiring the submission of such
certification considering that although it is obligatory, it is not
jurisdictional.

In HLC Construction and Development Corporation

v. Emily Homes Subdivision Homeowners Association, it
was held that the signature of only one of the petitioners in
the certification against forum shopping substantially
complied with [the] rules because all the petitioners
share a common interest and invoke a common cause of
action or defense.

The same leniency was applied by the Court

in Cavile v. Heirs of Cavile, because the lone petitioner who
executed the certification of non-forum shopping was a
relative and co-owner of the other petitioners with whom he
shares a common interest. x x x

xxx

Here, all the petitioners are immediate relatives who share a

common interest in the land sought to be reconveyed and a common
cause of action raising the same arguments in support thereof. There was
sufficient basis, therefore, for Domingo Hernandez, Jr. to speak for and in
behalf of his co-petitioners when he certified that they had not filed any
action or claim in another court or tribunal involving the same
issues. Thus, the Verification/Certification that Hernandez, Jr. executed
constitutes substantial compliance under the Rules.[14] (citations omitted)

Furthermore, we have consistently held that verification of a pleading is a formal,

not a jurisdictional, requirement intended to secure the assurance that the matters

65
alleged in a pleading are true and correct. Thus, the court may simply order the
correction of unverified pleadings or act on them and waive strict compliance with the
rules. It is deemed substantially complied with when one who has ample knowledge to
swear to the truth of the allegations in the complaint or petition signs the verification;
and when matters alleged in the petition have been made in good faith or are true and
correct.[15] It was based on this principle that this Court had also allowed herein
petitioner, via our Resolution[16] dated April 22, 2009, a chance to submit a verification
that complied with Section 4, Rule 7 of the Rules of Court, as amended, instead of us
dismissing the petition outright.

Liberal interpretation of the rule-

It has also been held that the rules on forum shopping, which were precisely
designed to promote and facilitate the orderly administration of justice, should not be
interpreted with such absolute literalness as to subvert its own ultimate and legitimate
objective which is the goal of all rules of procedure that is, to achieve substantial
justice as expeditiously as possible (Great Southern Maritime Services Corp. vs. Acuna
452 SCRA 422). Hence, the rule is subject to the power of the SC to suspend procedural
rules and to lay down exceptions to the same.

Examples:

While a petition for certiorari is flawed where the certification of non-forum

shopping was signed only by counsel and not by the party, this procedural lapse was
overlooked by the Court in the interest of justice (Sy Chin vs. CA 345 SCRA 673). In
another case, the fact that the parties were abroad at a time when the petition was
filed, was considered a reasonable cause to exempt the parties from compliance with
the requirement that they personally execute the certification against forum shopping
(Hamilton vs. Levy 344 SCRA 821). In De Guia vs. De Guia 356 SCRA 287, the SC went
to the extent of invoking its power to suspend the Rules by disregarding the absence
of the certification against forum shopping in the interest of justice.

In Dar vs. Alonzo-Legato (339 SCRA 306) the Court ruled that where the petitioners
were sued jointly as Mr. and Mrs. over a property in which they were alleged to
have common interest, the signing of the certification by one of the petitioners was
held to be a substantial compliance of the rule. In a subsequent ruling in the case of
Docena vs. Lapesura (355 SCRA 658), where only the husband signed the certificate
against forum shopping in a petition involving the conjugal residence of the spouses,
the SC considered the certification as having substantially complied with the
requirements.

In Cavile vs. Heirs of Clarita Cavile (400 SCRA 255), a similar ruling was made
where the Court held that there was substantial compliance with the Rules where only
one petitioner signed the certification against forum shopping in behalf of all the other

66
petitioners being all relatives and co-owners of the properties in dispute, and who
shared a common interest in them, had a common defense in the complaint for
partition, filed the petition collectively, and raised only one argument to defend their
rights over the properties in question.

In Bases Conversion Development Authority GR No. 144062, November 2, 2006,

while only one petitioner signed the verification and certification, it was held that such
fact is not fatal to the petition. The Court ruled that the signature of a principal party
satisfies the requirement because under the Rules it is clear that the certification may
be signed by a principal party.

In HLC Construction and Development Corp. vs. Emily Homes Subdivision

Homeowners Association 411 SCRA 504, the Court ruled that the signature of only one
petitioner substantially complied with the rules because all the petitioners shared a
common interest and invoked a common cause of action or defense.

Lack of certification not cured by subsequent submission-

In appeal by certiorari to the Supreme Court, the lack of certification is generally not
curable by the submission thereof after the filing of the petition. Sec. 5, Rule 45 of the
1997 Rules provides that failure of the petitioner to submit the required documents that
should accompany the petition, including the certification, required in Sec. 4, Rule 45,
shall be sufficient ground for the dismissal thereof.

Exceptions
In certain exceptional circumstances, however, the Court has allowed the belated
filing of the certification. In all these cases, there were special circumstances or
compelling reasons that justified the relaxation of the rule.

Lack of authority to sign certification-

The same liberal construction applies to certifications against forum shopping
signed by the person on behalf of a corporation which are unaccompanied by proof that
said signatory is authorized to file a petition on behalf of the corporation. A liberal
interpretation is given to the rule more so where the petitioner did submit a
certification against forum shopping, but he failed only to show proof that the
signatory was authorized to do so. In several cases, (Shipside Incorporated vs. CA 404
SCRA 981; Ateneo de Naga University vs. Manalo 458 SCRA 325, etc) the Court
permitted the subsequent submission of proof of authority to sign the certification
against forum shopping.

Signing the Certification when the plaintiff is a juridical person-

A juridical entity, unlike a natural person, can only perform physical acts through
properly delegated individuals. The certification against forum shopping where the

67
plaintiff or a principal party is a juridical entity, like a corporation, may be executed by
properly authorized persons. This person may be the lawyer of the corporation. As long
as he is duly authorized by the corporation and has personal knowledge of the facts
required to be disclosed in the certification against forum shopping, the certification
may be signed by the authorized lawyer (National Steel Corporation vs. CA 388 SCRA
85).

Authority to sign Certification of Non Forum Shopping-

A board resolution purporting to authorize a person to sign documents on behalf of

the corporation must explicitly vest such authority. The signing of verifications and
certifications against forum shopping is not integral to the act of filing; this may not
be deemed as necessarily included in an authorization merely to file cases. (MCWD vs.
Margarita A. Adala, GR No. 168914, July 4, 2007)

Certification against forum shopping and Verification; ratification by the Board of

Directors.

Sps. Eugene L. Lim and Constancia Lim v. The Court of Appeals-Mindanao

Station, et al.; G.R. No. 192615, January 30, 2013

A closer look into the SPA and the Corporate Secretarys Certificate submitted by
BPI reveals that, at the time the subject complaint was filed on January 26, 1999,
Ramos did not have the express authority to file and sign the verification and
certification against forum shopping attached to BPIs complaint. The SPA, which
appointed Ramos and/or Atty. Mateo G. Delegencia as BPIs attorneys-in-fact in the
case against the petitioners, was executed only on July 8, 2008. Even the Corporate
Secretarys Certificate that named the officers authorized by the BPIs Executive
Committee to grant and extend a SPA to other officers of the bank was executed only
on February 21, 2007. The Executive Committee is part of the banks permanent
organization and, in between meetings of BPIs Board of Directors, possesses and
exercises all the powers of the board in the management and direction of the banks
affairs.

BPIs subsequent execution of the SPA, however, constituted a ratification of

Ramos unauthorized representation in the collection case filed against the
petitioners. A corporation can act only through natural persons duly authorized
for the purpose or by a specific act of its board of directors, and can also ratify
the unauthorized acts of its corporate officers. The act of ratification is
confirmation of what its agent or delegate has done without or with insufficient
authority.

In PNCC Skyway Traffic Management and Security Division Workers Organization

(PSTMSDWO) v. PNCC Skyway Corporation, we considered the subsequent execution
of a board resolution authorizing the Union President to represent the union in a petition

68
filed against PNCC Skyway Corporation as an act of ratification by the union that cured
the defect in the petitions verification and certification against forum shopping. We held
that assuming that Mr. Soriano (PSTMSDWOs President) has no authority to file the
petition on February 27, 2006, the passing on June 30, 2006 of a Board Resolution
authorizing him to represent the union is deemed a ratification of his prior execution, on
February 27, 2006, of the verification and certificate of non-forum shopping, thus curing
any defects thereof.

No appeal from an order of dismissal without prjudice; remedy is Certiorari

under R 65 or to refile

If a complaint is dismissed for failure to comply with required

certification, the plaintiff cannot appeal from such order. This is because an
order dismissing an action without prejudice is not appealable. The remedy
provided for under Sec. 1 of Rule 41 is to avail of the appropriate special civil
action under Rule 65 (Sec. 1[g], Rule 41 as amended, Rules of Court.

Effect of willful and deliberate forum shopping

Pursuant to Sec. 5, it will result to a summary dismissal, that is, without

need of a motion to dismiss and hearing and the dismissal is with prejudice.
Appeal can be a roper remedy.

Effect of submission of a false certification

It shall constitute 1. indirect contempt 2. without prejudice to the

corresponding administrative and criminal sanctions (Sec.5)

Effect of non-compliance with the undertakings-

It has the same effect as the submission of a false certification (Sec.5), hence shall
constitute indirect contempt without prejudice to the corresponding administrative
and criminal sanctions (Sec. 5).

OTHER REQUIREMENTS

All pleadings, motions and papers filed in court by counsel shall bear in addition to
1.) counsels current Professional Tax Receipt Number (PTR), 2.) counsels current
IBP official receipt number indicating its date of issue. Pleadings motions and
papers which do not comply with this requirement may not be acted upon by the
court, without prejudice to whatever disciplinary action the court may take
against the erring counsel who shall likewise be required to comply with the
requirement within 5 days from notice. Failure to comply with such requirement

69
shall be a ground for further disciplinary sanction and for contempt of court
(Circular No. 10, July 24, 1985; Bar Matter No. 287, September 26, 2000.

On November 12, 2002, the SC granted the request of the Board of Governors of the
IBP and the Sangguniang Panlalawigan of Ilocos Norte to require all lawyers to
indicate their 3.) Roll of Attorneys Number in all papers and pleadings filed in
judicial and quasi-judicial bodies in addition to the previously required current PTR
and IBP OR. The requirement is meant to protect the public by making it easier to
detect impostors who represent themselves as members of the Bar. Non-compliance
has the same effect as failure to indicate counsels IBP Receipt Number. This
requirement is directed only to lawyers and is not to be construed as precluding a
party who is not a lawyer from signing a pleading himself (Bar Matter No. 1132,
April 1, 2003)

All practicing lawyers are required to indicate in all pleadings filed before the courts
or quasi-judicial bodies, 4.) the number and date of issue of their MCLE Certificate
of Compliance or Certificate of Exemption. Failure to disclose the information
would cause the dismissal of the case and the expunction of the pleading from the
records (Bar Matter No. 1922 En Banc Resolution, June 3, 2008). Per En Banc
Resolution of the Supreme Court dated September 2, 2008, the effectivity date of the
implementation was moved from August 25, 2008 to January 1, 2009.

Reviewer
Parts of a pleading (Rule 7)
a. Caption
The Caption contains the following:
1. Name of the court
2. Title of the action
3. Docket number, if assigned (Rule 7, Sec. 1)

The Body sets forth:

1. Designation
2. Allegations of the partys claims and defenses
3. Relief prayed for (may add a general prayer for such further or other relief as may
be deemed just and equitable)
4. Date of the pleading (Rule 7, Sec. 2)
b. Signature and address
Rule,7 Sec. 3. Signature and address .
Every pleading must be signed by the party or counsel representing him, stating in either
case his address which should not be a post office box.

The signature of counsel constitutes a CERTIFICATE by him that

(a) he has read the pleading;
(b) to the best of his knowledge, information, and belief there is good ground to support it ;
and
70
(c) it is not interposed for delay.

An unsigned pleading produces NO LEGAL EFFECT. However, the court may, in its
discretion, allow such deficiency to be remedied if it shall appear that the same was due to
mere inadvertence and not intended for delay.

Counsel who
(a) deliberately files an unsigned pleading, or
(b) signs a pleading in violation of this Rule, or
(c) alleges scandalous or indecent matter therein, or
(d) fails to promptly report to the court a change of his address, shall be subject to appropriate
DISCIPLINARY
ACTION.

c. Verification and certification against forum shopping

(1) Requirements of a corporation executing the verification/certification of
non-forum shopping

Verification
How is verification made?
It is verified by an affidavit which declares that the:
1. Affiant has READ the pleading; and
2. Allegations therein are TRUE AND CORRECT of his PERSONAL KNOWLEDGE or
BASED ON AUTHENTIC RECORDS (Rule 7, Sec. 4)
A pleading required to be verified which contains a verification based on information an belief or
upon knowledge, information and belief, or lacks a proper verification shall be treated as an
UNSIGNED pleading (Rule 7, Sec. 4).

What is the significance of verification?

It is intended 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 that the pleading is filed in good
faith. The absence of a proper verification is cause to treat the pleading as unsigned and
dismissible. (Chua vs. Torres, G.R. No. 151900, August 30, 2005)

Is verification a jurisdictional requirement?

NO. The requirement regarding verification of a pleading is a FORMAL, nor jurisdictional. Such
requirement is simply a condition affecting the form of a pleading, non compliance with which
does not necessarily render the pleading fatally defective (Uy vs. Land Bank of the Phils., 336
SCRA 419 [2000]).

The absence of the signature of the person misjoined as a party-plaintiff in either the verification
page or certification against forum-shopping is not a ground for the dismissal of the action
(Chua vs. Torres, G.R. No. 151900, August 30, 2005)
Forum Shopping

Certification against forum shopping is required in filing a complaint and other initiatory

71
pleadings asserting a claim or relief (Rule 7, Sec. 5). This rule applies as well to special civil
actions since the rules for ordinary civil action are suppletory.

When is there forum shopping?

There is forum shopping when, as a result of an adverse opinion in one forum, a party seeks a
favorable opinion, other than by appeal or certiorari in another. There can also be forum
shopping when a party institutes two or more suits in different courts, either simultaneously or
successively, in order to ask the courts to rule on the same or related causes and/or to grant the
same or substantially the same reliefs on the supposition that one or the other court would make
a favorable disposition or increase a partys chances of obtaining a favorable decision or
action. (Huibonhoa v. Concepcion, G.R. No. 153785, August 3, 2006)

Test to determine forum-shopping:

To determine whether a party violated the rule against forum shopping, the most important
question to ask is whether the elements of litis pendentia are present or whether a final judgment
in one case will result to res judicata in another.Thus, the test is
whether in the two or more cases pending, there is identity of:
1. Parties
2. Rights or causes of action
3. Reliefs sought (Huibonhoa v. Concepcion, supra)
Who executes certification against forum-shopping?
It is the plaintiff or principal party who executes the certification under oath ( Rule 7, Sec. 5).. It
must be signed by the party himself and cannot be signed by his counsels. The reason the
certification against forum shopping is required to be accomplished by petitioner himself is
because only the petitioner himself has actual knowledge of whether or not he has initiated
similar actions or proceedings in different courts or agencies. (Digital Microwave Corp. vs.
CA, G.R. No. 128550, March 16, 2000).

What are the undertakings of a party under the certification against forum shopping?
1. That the party has not commenced or filed any claim involving the same issues in any court,
tribunal, or quasi-judicial agency and, to the best of his knowledge, no such other action or claim
is pending;
2. That if there is such other pending action or claim, a complete statement of the present status
thereof;
3. That if he should therefore learn that the same or similar action or claim has been filed or is
pending, he shall report that fact within five days therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed ( Rule 7, Sec. 5)

In what ways may forum shopping be committed?

1. Filing multiple cases based on the same cause of action and with the same prayer, the previous
case not having been resolved yet (litis pendentia)
2. Filing multiple cases based on the same cause of action and the same prayer, the previous case
having been finally resolved (res judicata )
3. Filing multiple cases based on the same cause of action but with different prayers (splitting
causes of action ) where the ground for dismissal is also either litis pendentia or res judicata).

72
Effect of forum shopping
1. If the forum shopping is NOT considered WILFUL and DELIBERATE, the subsequent cases
shall be DISMISSED WITHOUT PREJUDICE on one of the two grounds mentioned above

Non-compliance with the rule on certification against forum shopping is not curable by mere
amendment and shall be a cause for the dismissal of action without prejudice, unless otherwise
provided, upon motion and after hearing (Rule 7, Sec.5)

2. If the forum shopping is WILFUL and DELIBERATE, both (or all, if there are more than two
actions) shall be DISMISSED WITH PREJUDICE (Ao-As vs. CA, 491 SCRA 353 [2006])

Willfull and deliberate forum shopping of the party or his counsel shall be a ground for summary
dismissal . This dismissal is with prejudice and shall constitute DIRECT CONTEMPT as well as
cause for administrative sanctions on the part of counsel. (Rule 7, Sec. 5)

What are the requirements of forum shopping certificate for a corporation?

Only individuals vested with authority by a valid board resolution may sign the certificate of
non-forum shopping in behalf of a corporation. In addition, the Court has required that proof of
said authority must be attached. Failure to provide a certificate of non-forum shopping is
sufficient ground to dismiss the petition. Likewise, the petition is subject to dismissal if a
certification was submitted unaccompanied by proof of the signatory's authority. (Philippine
Airlines, Inc. vs. Flight Attendants and Stewards Association of the Philippines (FASAP), G.R.
No. 143088. January 24, 2006)

*** Under Sections 4 and 5, Rule 7 of the 1997 Revised Rules on Civil Procedure, a pleading
must be accompanied by a verification as well as certification against forum shopping as signed
by the plaintiff or principal party. As a general rule, a person signing in behalf of a corporation
must be authorized by a board resolution. However, as exceptions, the following persons can
sign the verification and certification without a board resolution:
(1) the Chairperson of the Board of Directors,
(2) the President of a corporation,
(3) the General Manager or Acting General Manager,
(4) Personnel Officer, and
(5) an Employment Specialist in a labor case.
Nevertheless, the better procedure is still to append a board resolution to the complaint or
petition so as to not invite questions as to the authority of the signatory to sign the verification
and certification. (South Cotabato Communications Corporation vs. Sto. Tomas, G.R. No.
173326, December 15, 2010 [TDC]) - TDC

However, subsequent submission of Secretarys Certificate is substantial compliance

with
the requirement that a Board Resolution must authorize the officer executing the non-forum
certification on behalf of the corporation. (Vicar International Construction, Inc. vs. Feb
Leasing and Financing Corp., G.R. No. 157195, April 22, 2005)

d. Effect of the signature of counsel in a pleading

73
The signature of counsel constitutes a certificate by him that
1. he has read the pleading;
2. that to the best of his knowledge, information, and belief there is good ground to support it;
and
3. that it is not interposed for delay. (par. 2, Rule,7 Sec. 3.)

Rule 8
MANNER OF MAKING ALLEGATIONS IN PLEADINGS

Sec. 1 In general Every pleading shall contain in

a methodical and logical form, a plain, concise and
direct statement of the ultimate facts on which the
party pleading relies for his claim or defense, as the
case may be, omitting the statement of mere
evidentiary facts.
If a defense relied on is based on law, the
pertinent provisions thereof and their applicability
to him shall be clearly and concisely stated.

Ultimate not evidentiary facts must be alleged-

Pleadings must only state the ultimate facts where one relies on for his/her defense or
claim. You must omit the statement of evidentiary facts.

Ultimate facts-

Q: What are ultimate facts?

A: Ultimate facts are those, which are essential to ones cause of action or defense.
Ultimate facts refer to those, which directly form the basis of the right sought to be
enforced or the defense relied upon. If the ultimate facts are not alleged, the cause of
action will be insufficient.

The ultimate facts refer to the essential facts of the claim. A fact is essential if it
cannot be stricken out without leaving the statement of the cause of action
insufficient (Ceroferr Realty Corporation vs. CA 376 SCRA 144).

74
The ultimate facts are the important and substantial facts which form the basis of the
primary right of the plaintiff and which make up the wrongful act or omission of the
defendant. The ultimate facts do not refer to the details of probative matter or to the
particulars of evidence by which the material elements are to be established. They are
the principal, determinate, constitutive facts, upon the existence of which, the entire
cause of action rests. (Tantuico, Jr. vs. Republic, 204 SCRA 428)

Q: How do you determine whether a fact is essential to your cause of action or defense?
A: The test to determine whether the fact is essential to your cause of action is: if the
statement in the pleading cannot be deleted because if you delete it, the statement of
your cause of action or defense become incomplete, a certain element of cause of action
disappears then it must be a statement of ultimate fact.

Q: What are the essential elements of a cause of action?

A: The following:
1.) Statement of the right;
2.) Statement of the obligation;
3.) Statement of the violation; and
4.) Statement of damage.

Evidentiary Facts

Q: What are evidentiary facts?

A: Evidentiary facts are the facts, which will prove the ultimate facts. They are proper
during the trial but they have no place in your pleading. Evidentiary facts refer to those
which are necessary to prove the ultimate fact or which furnish evidence of the
existence of some other facts.

In the law on Evidence, ultimate facts are called factum probandum as distinguished from
factum probans (evidentiary facts).

EXAMPLE: In a land dispute, the question is: Who has been in possession of the
land for a long time?

Correct form:

Plaintiff has been in possession of this land continuously for the past 30 years up to the
present.

That is a statement of ultimate fact because that shows your right your right
over the property that you cannot be driven out.

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 Wrong form:

Plaintiff has been in possession of the said property

continuously, openly for the past 30 years from 1967 to
1997 as may be borne out by the following:
He entered the property in 1967. He cleared the
property by cutting the grass. In 1968, he planted 20
coconut trees. In 1969, he planted 50 coconut trees. In
1970, he planted mango trees. In 1971, he planted guava.
He will recite everything from 1967 to 1997.

The form is wrong because you are stating evidentiary facts.

How do you present the facts?

In a methodical and logical form.

Q: Apart from evidentiary facts, what are the other matters that should not be
stated in the pleading?
A: The following:
1.) Facts which are presumed by law;
2.) Conclusions of fact or law;
3.) Matters which are in the domain of judicial notice need not be alleged.

FACTS WHICH ARE PRESUMED BY LAW

Example:
Negligence in culpa contractual
Q: In a case of breach of contract against an operator of the common carrier.
Do you think it is necessary for the plaintiff to allege that the driver acted negligently?
Is an allegation that the driver of the carrier acted with negligence required?
A: NO. There must be negligence, otherwise, there would be no cause of action.
However there is no need to allege it in the complaint because under the Civil Code,
whenever there is a breach of contract of carriage, there is a presumption of negligence
on the part of carrier. It is not for the passenger to prove that the common carrier is
negligent. It is for the common carrier to prove that it is not negligent.

HOWEVER, In culpa aquilana, or quasi-delict, where there is no pre-existing contract

between the parties, the liability of the defendant hinges on negligence. There must be
allegation of negligence. The defendant must be alleged to have acted negligently to
hold him liable otherwise, there is no cause of action. It becomes an ultimate fact which
should be alleged in the pleading.

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 CONCLUSIONS OF FACT OR LAW

For EXAMPLE, where plaintiff said that he is entitled to moral damages or attorneys
fees. That is not a statement of fact but your conclusion.

Statement of fact is to cite the factual basis like sleepless nights etc.

MATHAY vs. CONSOLIDATED BANK

58 SCRA 559

HELD: A bare allegation that one is entitled to something is an allegation

of a conclusion. Such allegation adds nothing to the pleading, it being
necessary to plead specifically the facts upon which such conclusion is
founded.

EXAMPLE:

The complaint alleges that the defendants are holding the plaintiffs property in
Trust for the plaintiff according to the SC in the case of MATHAY is merely a conclusion
of the plaintiff. It is a conclusion of law.

A conclusion or statement of law is also not allowed although there is an exception

under the second paragraph of Section 1 which says that if a defense relied on is
based on law, the pertinent provisions thereof and their applicability to him shall be
clearly and concisely stated.

ALLEGATION OF ALTERNATIVE CAUSES OF ACTION OR

DEFENSES

Sec. 2. Alternative causes of action or defenses. -

A party may set forth two or more statements of a
claim or defense alternatively or hypothetically,
either in one cause of action or defense or in
separate causes of action or defenses. When two or
more statements are made in the alternative and one of
them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency
of one or more of the alternative statements. (2)

Pleading alternative causes of action-

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 The provision recognizes that the liability of the defendant may possibly be based on
either one of two possible causes of action. The plaintiff, may for example, believe that
the liability of the carrier may be based either on a breach of contract of carriage or on a
quasi-delict, but he may not be certain which of the causes of action would squarely fit
the set of facts alleged in the complaint, although he is certain that he is entitled to
relief. He may therefore, state his causes of action in the alternative. This provision in
effect, also relieves a party from being compelled to choose only one cause of action.

Q: What happens if one cause of action is insufficient? Will it cause the dismissal of
the complaint?
A: No, the complaint will remain insofar as the sufficient cause of action is stated.
The insufficiency of one will not affect the entire pleading if the other cause of action is
insufficient.

EXAMPLE:
I read a case about a passenger who was about to board a bus. Of course
when you are a passenger and you get hurt, that is culpa contractual. If you are
not a passenger but you get hurt due to the negligence of the driver, that is
culpa aquiliana. So it depends whether there is a contract of carriage or none.

In that case, the passenger was about to board a bus. As a matter of fact, the
left foot had already stepped on the bus. The bus suddenly sped off. He fell.
He was injured. What is the basis against the carrier? Is there a contract or
none? There is because one foot was already on it but others say there was no
contract yet. You dont really know whether your cause of action is culpa
contractual or culpa aquiliana. You want to claim damages but you are not sure
whether your case is based on culpa contractual or culpa aquiliana. Its either
one of the two. It sometimes happens.

Now, if I am the lawyer for the plaintiff and I am tortured to make my choice, I may
allege 2 possible alternative causes of action. I will draft the complaint in such a way
that I will show to the court that my cause of action is either culpa contractual or culpa
aquilana. I will make sure that both allegations are covered. You cannot be wrong
because the law does not require you to make a choice.

Pleading alternative causes of action normally leads to inconsistent claims. For

instance, the elements of a cause of action based on a contractual theory are inconsistent
with those of a cause of action based on a quasi-delict. As previously discussed, a suit
based on a breach of contract of carriage for example, does not require an allegation and
proof of negligence because it is not an element of a breach of contract suit (Calalas vs.
CA 332 SCRA356; FGU Insurance Corp. vs. GP Sarmiento Trucking Corp. 386 SCRA

78
312). On the other hand, negligence as a rule, is an essential element of a suit based on a
quasi-delict (Art. 2176, Civil Code).

Under Sec. 2, this situation is permissible as long as the allegations pleaded within a
particular cause of action are consistent with the cause of action relied upon as an
alternative. Thus, if the alternative cause of action is a breach of contract, the allegations
therein must support the facts constituting the breach of the contract.

Pleading Alternative Defenses-

Q: You are the defendant. You are confronted with the same problem. There is a
complaint against you and you have 3 possible defenses. Am I obliged to make a choice
immediately?
A: NO. The law allows the defendant to cite the 3 possible defenses alternatively.

No matter if your defenses are inconsistent Section 2, Rule 8 allows the defendant to
plead his defenses hypothetically or alternatively. They may be inconsistent with each
other but what is important is each defense is consistent in itself. Meaning, each
defense, when taken alone, is a good defense. You look at them separately. Do not
compare them.

For EXAMPLE:

Plaintiff files a case against a defendant to collect an unpaid loan. The

basic allegation is that the defendant obtained a sum of money by way of loan
and never paid it. Here is defendants answer:

a.) That is not true. I never borrowed any money from the plaintiff.
That is a defense of denial.
b.) Assuming that I received money from the plaintiff, that money was
not a loan but plaintiffs birthday gift to me. In other words, it was a
donation.
c.) Assuming that the money I received from the plaintiff was really a
loan. However, such amount was completely paid. Defense of
payment.

So, I have 3 defenses. How can you reconcile these 3 defenses? They are inconsistent
with each other but it should not be taken against the defendant. What is important is
that each defense is consistent in itself. Look at them separately. That is also called a
SHOTGUN ANSWER.

Rule is consistent with the omnibus motion rule-

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 The rule allowing alternative defenses is consistent with the omnibus motion rule
which requires that all motions attacking a pleading shall include all objections then
available, and all objections not so included shall be deemed waived (Sec. 8, Rule 15)

During trial only one can be proven-

However, during that trial, you have to choose among them, which you think is true
based on evidence. The problem is that you choose one but it turned out that a different
defense would be correct. You cannot use that defense anymore. There is a prejudice
because during the trial, I will choose among them with the evidence I have. I can
abandon the others. And that is even better because you might confuse the plaintiff of
what really is your defense. Thus, a lawyer should not be afraid to hypothetically or
alternatively plead defenses, which are inconsistent with each other.

That is perfectly allowed as it is alternative and during trial the pleader may show
the best one rather than not stating it in the pleading and during the trial you waive the
best defense because according to the next rule, Rule 9, defenses or objections not
pleaded in the answer are deemed waived.

Take note that you have to correlate this topic on the related provisions we have
already taken up: For EXAMPLE:

1.) Rule 2, Section 5 where a party may, in one pleading state in the alternative or
otherwise, as many causes of action;
2.) Rule 3, Section 6 on permissive joinder of parties. When may 2 persons or
more be joined as plaintiffs or defendants and how are they joined? They are
joined jointly, severally, or alternatively; and
3.) Rule 3, Section 13 on alternative defendants. When you are uncertain who is
the real defendant, you may join them alternatively although the relief
against one may be inconsistent with the other.

HOW ALLEGATIONS IN A PLEADING ARE MADE

SUMMARY:
Q: What averment or allegations in pleadings may be done GENERALLY?
A: The following:
1.) Rule 8, Section 3 Conditions precedent;
2.) Rule 8, Section 5, 2nd sentence Conditions of the mind;
3.) Rule 8, Section 6 Judgment;
4.) Rule 8, Section 9 Official document or act

Q: What averments must be done with PARTICULARITY?

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 A: The following:
1.) Rule 8, Section 4, first sentence Capacity to sue and be sued;
2.) Rule 8, Section 4, 2nd sentence Legal existence of any party to sue or be
sued;
3.) Rule 8, Section 5, first sentence Fraud or mistake

ALLEGATION OF A CONDITION PRECEDENT

Sec. 3. Conditions Precedent. - In any pleading, a

general averment of the performance or occurrence of
all conditions precedent shall be sufficient. (3)

Common usage refers to conditions precedent as matters, which must be complied

with before a cause of action arises. When a claim is subject to a condition precedent,
the compliance of the same must be alleged in the pleading.

Remember, that one of the elements of a right of action is that before you can go to
court, you must comply with all the conditions precedent.

Examples of conditions precedent:

(a) A tender of payment is required before making a consignation (Art. 1256 Civil
Code);
(b) Exhaustion of administrative remedies is required in certain cases before
resorting to judicial action (Lopez vs. City of Manila, 303 SCRA 448; Dy vs. CA
304 SCRA 331);
(c) Prior resort to barangay conciliation proceedings is necessary in certain cases
(Book III, Title I, Chapter 7, Local Government Code of 1991);
(d) Earnest efforts toward a compromise must be undertaken when the suit is
between members of the same family and if no efforts were in fact made, the case
must be dismissed (Art. 151 Family Code);
(e) Arbitration may be a condition precedent when the contract between the parties
provides for arbitration first before recourse to judicial remedies.

The failure to comply with a condition precedent is an independent ground for a

motion to dismiss: that a condition precedent for filing the claim has not been complied
with (Sec. 1[j], Rule 16)

ALLEGATION OF CAPACITY TO SUE OR BE SUED

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 Sec. 4. Capacity - Facts showing the capacity of a
party to sue or to be sued or the authority of a party
to sue or to be sued in a representative capacity or
the legal existence of an organized association of
persons that is made a party, must be averred. A party
desiring to raise an issue as to the legal existence
of any party or the capacity of any party to sue or be
sued in a representative capacity, shall do so by
specific denial, which shall include such supporting
particulars as are peculiarly within the pleader's
knowledge. (4)

ALLEGATION OF FRAUD OR MISTAKE

Sec. 5. Fraud, mistake, condition of the mind.- In

all averments of fraud or mistake, the circumstances
constituting fraud or mistake must be stated with
particularity. Malice, intent, knowledge or other
condition of the mind of a person may be averred
generally. (5a)

Fraud and mistake-

EXAMPLE: In annulment of a contract, fraud is one ground. Suppose the consent

was secured through fraud and plaintiff files a case that the defendant employed fraud
in obtaining his consent.
Q: Is this statement sufficient?
A: No, because the circumstances constituting fraud or mistake must be stated with
particularity. The complaint must state how the fraud was committed. It must be
described in detail how the fraud took place.

Malice, Intent, knowledge or conditions of the mind-

Q: In the second sentence, why is it that malice, intent, etc. may be averred
generally?
A: A general averment of malice or intent suffices because one cannot describe or
particularize what is in the mind of a party. I cannot describe in detail the malice or the
knowledge in your mind. I can only say it in general terms. This is borne out of human
experience.

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 Fraud, on the other hand, is employed openly, by overt acts. How you are deceived
is not only in the mind. Those are manifested by external acts. Therefore, one can
describe how a fraud was committed by the other party.

Sec. 6. Judgment. In pleading a judgment or decision

of a domestic or foreign court, judicial or quasi-
judicial tribunal, or of a board or officer, it is
sufficient to aver the judgment or decision without
setting forth matter showing jurisdiction to render
it. (6)

Sometimes a party invokes a judgment or cites a previous case like res adjudicata to
dismiss a case. How should it be alleged?

Q: Suppose you will ask the court to dismiss the case because there was already
judgment rendered by the court years ago and you simply say, There was a previous
judgment. Is this sufficient?
A: YES because the law presumes that the judgment is valid. And the presumption
is that the court had jurisdiction. You do not have to say that the court had jurisdiction
over the subject matter, issues, etc. when it tried the case years ago. So, it can be
averred generally.

Sec. 9. Official document or act. In pleading an

official document or official act, it is sufficient to
aver that the document was issued or the act done in
compliance with law. (9)

One can just plead the existence of a document made by the government.
EXAMPLE: official letter of the President, or official communication by a government
agency. It is sufficient to aver that the document was issued or an act done.

ACTIONABLE DOCUMENTS

Sec. 7. Action or defense based on document.

Whenever an action or defense is based upon a written
instrument or document, the substance of such
instrument or document shall be set forth in the
pleading, and the original or a copy thereof shall be
attached to the pleading as an exhibit, which shall be
deemed to be a part of the pleading, or said copy may
with like effect be set forth in the pleading. (7)

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 Q: What is an actionable document?
A: An ACTIONABLE DOCUMENT is one which is the basis or the foundation of the
cause of action or defense and not merely an evidence of the cause of action or defense.
(Araneta, Inc. vs. Lyric Film Exchange, 58 Phil. 736)

So a promissory note to collect an unpaid loan is not only an evidence of your cause
of action but is it is the very cause of action or foundation of your cause of action. On
the other hand, when I have a receipt, the receipt is not only evidence of your defense
but is the very foundation of your defense. If I would like to sue you to annul a written
contract, the contract to be rescinded or annulled is the very cause of your action.

But in a collection case, if aside from the promissory note I wrote you several letters
of demand to pay, such letters, while they are relevant to the collection case, do not
serve as the foundation of your cause of action, although they are also important.

Q: What is the purpose of the distinction between actionable and non-actionable

document?
A: If the document is not actionable, there is no need to follow Section 7. If it is
actionable, it must be pleaded in the manner mentioned in Section 7. Also in Section 8, it
is needed to know how to contest the genuineness of the document.

Q: And how do you plead an actionable document under Section 7?

A: There are two (2) options:
1.) The substance of such instrument or document, shall be set forth in the
pleading and the original or a copy thereof shall be attached as an exhibit; or
2.) The copy of the document may with like effect be quoted in the pleading, in
which case, there is no need to attach the copy.

Q: Suppose in the first way, the promissory note was not attached. What will
happen?
A: The party violates Rule 8, Section 7. The adverse party may move to dismiss the
complaint for violation of the rules, if such document could not be secured.

If an actionable document is properly pleaded in your pleading in the manner

mentioned in Section 7, the adverse party is now obliged to follow Section 8 if he wants
to contest such document.

Sec. 8. How to contest such documents. When an

action or defense is founded upon a written
instrument, copied in or attached to the corresponding
pleading as provided in the preceding section, the
genuineness and due execution of the instrument shall
be deemed admitted unless the adverse party, under
84
 oath, specifically denies them, and sets forth what he
claims to be the facts; but the requirement of an oath
does not apply when the adverse party does not appear
to be a party to the instrument or when compliance
with an order for an inspection of the original
instrument is refused. (8a)

Q: Does every pleading have to be under oath?

A: GENERAL RULE: NO.
EXCEPTION: Except when the law requires it. Example: Section 8, Rule 8 or in
order to contest an actionable document.

To contest:
(a) You must specifically deny the genuineness and due execution of the document
under oath; and
(b) You set forth what you claim to be the facts.

If the denial is not verified and under oath, the genuineness and due execution of
the promissory note is deemed admitted.

EXAMPLE: If the plaintiff sues you based on a promissory note which is properly
pleaded under Section 7 and you would like to contest the genuineness and due
execution of the note like when the figure was altered to P20,000 instead of P1,000 only,
so there is falsification, then you must deny the genuineness and due execution in your
answer specifically and most importantly your answer must be VERIFIED AND
UNDER OATH.

Q: When you say you have admitted the genuineness and due execution of the
document, what are the specific facts that you have deemed admitted?
A: The answer is found in the landmark case of HIBBERD vs. RHODE (32 Phil. 476):

1.) The party whose signature it bears signed it;

2.) If signed by another, it was signed for him and with his authority;

3.) At the time it was signed, it was in words and figures exactly as set out in the
pleading of the party relying upon it;

4.) The document was delivered; and

5.) The formal requisites of law, such as seal, acknowledgement (notarization) or

revenue stamp which it lacks, are waived by it.
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Q: What are the defenses which are no longer allowed once you admit the
genuineness and due execution of the actionable document?
A: The following:

1.) The signature appearing in the document is a forgery;

2.) In case it was signed by an agent in behalf of the corporation or partnership,
or a principal, the signature was unauthorized;
3.) The corporation was not authorized under its charter to sign the instrument;
4.) The party charged signed it in some other capacity than that alleged in the
pleading; and
5.) It was never delivered. (Hibberd vs. Rhode, supra)
6.) The document was not in words and figures as set out in the pleadings
(Imperial Textile Mills vs. CA 183 SCRA 584)

Q: What defenses may be interposed notwithstanding admission of genuineness

and due execution of an actionable document as aforesaid?
A: In the case of HIBBERD, the following:
1.) payment;
2.) want or illegality of consideration;
3.) fraud;
4.) mistake;
5.) compromise;
6.) statute of limitation;
7.) estoppel;
8.) duress;
9.) minority; and
10.) imbecility
11.) usury
12.) statute of frauds
13.) prescription
14.) release
15.) waiver
16.) former discharge in bankruptcy

Q: May the benefit of the admission of genuineness and due execution of an actionable
document be waived? If so, in what instances?
A: YES. In the following cases, the implied admission is deemed waived:

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 1.) Where the pleader presented witnesses to prove genuineness and due
execution and the adversary proved, without objection, the contrary. (Yu
Chuck vs. Kong Li Po, 46 Phil. 608);
2.) Where the pleader fails to object to evidence controverting the due execution.
(Legarda Koh vs. Ongsiaco, 36 Phil. 185)

When mere specific denial though not under oath still valid-

Q: When may a simple denial suffice? Meaning, what are the instances where the
denial of the genuineness of the document, though not under oath, is valid?
A: Section 8 says, the requirement of an oath does not apply:

1.) When the adverse party does not appear to be a party to the instrument;

EXAMPLE: Ms. Guadalope filed a case against Ms. Castillo based on a

contract entered by them. But before Ms. Guadalope filed the case, Ms.
Castillo died. So Ms. Guadalope filed against the heirs. The heirs realized that
the signature of Ms. Castillo in contract as forged. Even if the answer of the
heirs is not under oath, they can still prove forgery because they are not 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. This is because when the document if not
actionable, there is no need to follow Section 7.

REPLY;

General rule: Reply is optional; Exception- Section 8

Normally, the person who is presenting the actionable document is the plaintiff.

PROBLEM: But suppose it is the defendant who is invoking an actionable document

for his defense. He claims to have paid the loan and have attached a copy of the
RECEIPT to his answer. The plaintiff looks at the document and realizes that his
signature in the receipt is forged.
Q: What should the plaintiff do?
A: Based on Section 8, the plaintiff must deny the genuineness of the receipt
specifically under oath

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 Q: In what pleading should the plaintiff file where he will deny under oath the
genuineness and due execution of the receipt?
A: Plaintiff should file a REPLY and it must be under oath. If he will not file a reply,
the receipt is impliedly admitted to be genuine.

Q: But the plaintiff may argue that under Rule 6, Section 10 the filing of a reply is
optional. How do we reconcile it with Section 8?
A: Rule 6 is the general rule. Section 8 should prevail over Rule 6 because the former
is a specific provision that applies only to actionable document. It has been asked in the
Bar:

Q: When is the filing of the reply compulsory?

A: When the defendant anchors his defense on an actionable document and plaintiff
will deny the genuineness and due execution of such document.

SPECIFIC DENIAL

Section 10 of Rule 8 relates with Section 5 of Rule 6:

Sec. 5. Defenses. - Defenses may either be negative or

affirmative.
a. A negative defense is the specific denial of the
material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.
x x x

In an answer, according to Sec. 5 of Rule 6, defenses may either be negative or

affirmative.

Q: Define negative defense.

A: Briefly, it is a defense of SPECIFIC DENIAL where the defendant denies the
statement in the complaint by stating the facts and the reason/s on which his denial is
based.

Q: How is a specific denial done?

A: Rule 8, Section 10:

Sec. 10. Specific denial. A defendant must specify each

material allegation of fact the truth of which he does not
admit and, whenever practicable, shall set forth the
substance of the matters upon which he relies to support

88
his denial. Where a defendant desires to deny only a part
of an averment, he shall specify so much of it as is true
and material and shall deny only the remainder. Where a
defendant is without knowledge or information sufficient to
form a belief as to the truth of a material averment made
in the complaint, he shall so state, and this shall have
the effect of a denial. (10a)

Purpose of specific denial-

The purpose is to make the defendant disclose the matters

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. The parties are
compelled to lay their cards on the table (Aquintey vs.
Tibong, GR No. 166704, December 20, 2006)

Also, issues are conferred.

Q: So what are the modes of specific denial?

A: Under Section 10, there are three (3) MODES OF SPECIFIC DENIAL:

FIRST MODE: A defendant must specify each material

allegation of fact the truth of which he does not
admit and, whenever practicable, shall set forth the
substance of the matters upon which he relies to
support his denial

Q: What happens if a denial violates this first mode? Meaning, the pleader did not
set forth the substance of the matters relied upon to support his denial.
A: That is known as GENERAL DENIAL and it will have the effect of automatically
admitting the allegations in the complaint.

Q: Suppose the pleader will say, Defendant specifically denies the allegations in
paragraph 2,4,7 without any further support for the denial. Is the denial specific?
A: NO. A denial does not become specific simply because he used the word
specific. (Cortes vs. Co Bun Kim, 90 Phil. 167) What makes a denial specific is
compliance with Section 10.

SECOND MODE: Where a defendant desires to deny only

a part of an averment, he shall specify so much of it

89
 as is true and material and shall deny only the
remainder.

Sometimes an allegation may consist of 2 or more parts. Therefore the answer may
admit part 1 but part 2 is denied. Or, the substance of the allegation is actually admitted
by the qualification there is denied.

EXAMPLE: Plaintiff alleges that the Defendant is in possession of the property

under litigation in bad faith. Now, the defendant may admit that the property is in his
possession but he denies the qualification in bad faith possession is not in bad faith.
Based on that, the defendant should say, Defendant admits that portion of paragraph
no. 2 that he is in possession of the property in question; but denies that he is a
possessor in bad faith or something to that effect.

THIRD MODE: Where a defendant is without knowledge

or information sufficient to form a belief as to the
truth of a material averment made in the complaint, he
shall so state, and this shall have the effect of a
denial

Meaning, I am not in a position to admit or to deny because I have no knowledge.

How can I admit or deny something which I do not know?

EXAMPLE: Plaintiff claims for moral damages because Defendant destroyed his
reputation. Defendant does not know that Plaintiff had sleepless nights, wounded
feelings, serious anxiety, etc. Here, Defendant cannot admit or deny those.

However, the SC warned that he third mode of denial should be done in good faith.
If the fact alleged is such that it is within your knowledge, it is impossible that it is not
within your knowledge, you cannot avail of the third mode of denial. Otherwise, if you
will avail of the third mode in bad faith, your denial will be treated as an admission.
That is what happened in CAPITOL MOTORS vs. YABUT (32 SCRA 1).

In CAPITOL MOTORS, suppose I file a case against you, Defendant borrowed

money from plaintiff in the sum of P10,000 payable one year from said date. And then
you say, I have no knowledge or information There is something wrong there.
What you are trying to say there is I do not know whether I borrowed money from
you or not.

Equitable Cardnetwork, Inc. v. Capistrano, G.R. No. 180157, February 8, 2012

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 - Answer with allegations of no knowledge is as a rule, not acceptable as specific
denial.
EXCEPTION: unless done in good faith.
- however, if it is coupled with assertion that the defendant was denying the
allegations regarding those actionable documents, stating that she never applied
for membership with the card company, these reasons cannot be ignored and
they form part of the answer.

Negative Pregnant

A negative pregnant does not qualify as a specific denial. It is conceded to be

actually an admission.

In a pleading, 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.

Example:

A complaint alleges:

Plaintiff extended a loan to Defendant in the amount of P500,000.00 on July 27, 2006
in Cebu City.

The defendant in his Answer states:

Defendant specifically denies that Plaintiff extended a loan to Defendant in the

amount of P500,000.00 on July 27, 2006 in Cebu City.

The answer is a mere repetition of the allegations made in the complaint. The
answer is vague as to what it really denies. Is it the existence of the loan that is denied?
Is it the amount? The date? The place?

The effect of this kind of denial is an admission.

When a specific denial must be coupled with an oath:

(a) A denial of an actionable document (Sec. 8); and

(b) A denial of allegations of usury in a complaint to recover usurious interest (Sec.
11)

The allegations of usury which requires a specific denial under oath are:
(a) Allegations of usury in a complaint (not allegations of usury in the answer), and
(b) The complaint is filed to recover usurious interests (Sec. 11, R 8)
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Sec. 11. Allegations not specifically denied deemed
admitted. Material averment in the complaint, other than
those as to the amount of unliquidated damages, shall be
deemed admitted when not specifically denied. Allegations
of usury in a complaint to recover usurious interest are
deemed admitted if not denied under oath. (1a, R9)

GENERAL RULE: Material averment in a complaint shall be deemed admitted when

not specifically denied.
EXCEPTION: Instances when averments in the complaint are not deemed admitted
even when not specifically denied:

1.) Amount of unliquidated damages;

2.) Immaterial averments (Worcester vs. Lorenzana, 56 O.G. 7932, Dec. 26, 1960)
3.) Evidentiary matters; because a party is only obliged to aver ultimate facts;
(Agaton vs. Perez, L-19548, Dec. 22, 1966)
4.) Conclusions of facts or law.

Lets discuss the first exception AMOUNT OF UNLIQUIDATED DAMAGES is not

deemed admitted even if not specifically denied. So if the damages are liquidated, they
are deemed admitted. Examples of unliquidated damages are moral and exemplary
damages. Or expenses which I incurred in the hospital. Those are unliquidated
damages. They are always subject to evidence. You have to prove how much amount
you are entitled to. That is why they are not deemed admitted even if not specifically
denied.

So if you are claiming P1 million damages for sleepless nights or besmirched

reputation, and I did not specifically denied such claim, it does not mean that you are
automatically entitled to P1 million. Hindi yan puwede. You have to present evidence
that you are really entitled to P1 million. Yaan!

On the other hand, an example of liquidated damages is an obligation with a penal

clause. For example in our contract, it is stipulated that in case you cannot comply with
your obligation, you will pay me P1 million. So if you failed to specifically deny it, then
you are deemed to have admitted that I am entitled to P1 million. There is no need for
computation because the amount is already in the contract beforehand. The contract
itself would show how much I am entitled.

Section 11 also says, Allegations of usury in a complaint to recover usurious

interest are deemed admitted if not denied under oath. Usury means you charge
interest above the legal interest provided by the usury law. If you want to deny my

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charge of usury, your answer must be under oath. So, this is the second instance where
a denial should be verified.

NOW, I wonder why this provision is here when as early as 1983 in the case of LIAM
LAW vs. OLYMPIC SAW MILL (129 SCRA 439), that usury is no longer existing and the
SC stated in that case that the provision of the Rules of Court in usury are deemed
erased or superseded. Obviously, the SC forgot what it said in the 1983.

Sec. 12. Striking out of pleading or matter

contained therein. Upon motion made by a party before
responding to a pleading or, if no responsive pleading
is permitted by these Rules, upon motion made by a
party within twenty (20) days after the service of the
pleading upon him, or upon the court's own initiative
at any time, the court may order any pleading to be
stricken out or that any sham or false, redundant,
immaterial, impertinent, or scandalous matter be
stricken out therefrom. (5, R9)

When to file a Motion to Strike Out a Pleading or Part of a Pleading-

Before answering, the defendant can file a motion to strike out a pleading or a portion
of a pleading.

RULE 7, Sec. 3. Signature and address. x x x x

An unsigned pleading produces no legal effect.
However, the court may, in its discretion, allow such
deficiency to be remedied if it shall appear that the
same was due to mere inadvertence and not intended for
delay. Counsel who deliberately files an unsigned
pleading, or signs a pleading in violation of this
Rule, or alleges scandalous or indecent matter
therein, or fails to promptly report to the court a
change of his address, shall be subject to appropriate
disciplinary action.

So, if your pleading contains scandalous or indecent matters, the lawyer who files it
may be subjected to appropriate disciplinary actions.

Q: What if it is the reply is the one which contains scandalous matter?

A: A motion to strike may still be filed by the defendant within 20 days after the
reply.

Reviewer
Allegations in a pleading (Rule 8)

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a. Manner of making allegations
Rule 8, Sec. 1. In general . Every pleading shall contain in a methodical and logical form, a
plain, concise and direct statement of the ULTIMATE FACTS on which the party pleading relies
for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts.

(1) Condition precedent

In any pleading a general averment of the performance or occurrence of all conditions precedent
shall be sufficient. (Rule 8, Sec. 3.)

(2) Fraud, mistake, malice, intent, knowledge and other condition of the mind,
judgments, official documents or acts
Rule 8, Sec. 5. Fraud, mistake, condition of the mind.
In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be
stated with PARTICULARITY. Malice, intent, knowledge or other condition of the mind of a
person may be averred GENERALLY.

b. Pleading an actionable document

Rule, 8, Sec. 7. Action or defense based on document .
Whenever an action or defense is based upon a written instrument or document, the actionable
document shall be pleaded by setting forth:
1. The substance of such document in the pleading and attaching the original or copy thereof as
an exhibit
2. Said document verbatim in the pleading (Sec. 7, Rule 8).

c. Specific denials
Rule 8, Sec. 10. Specific denial.
A defendant must specify each material allegation of fact the truth of which he does not admit
and, whenever practicable, shall set forth the substance of the matters upon which he relies to
support his denial. Where a defendant desires to deny only a part of an averment, he shall specify
so much of it as is true and material and shall deny only the remainder.
Where a defendant is without knowledge or information sufficient to form a belief as to the truth
of a material averment made in the complaint, he shall so state, and this shall have the effect of a
denial.

(1) Effect of failure to make specific denials

Rule 8, Sec. 11. Allegations not specifically denied deemed admitted.
Material averments in the complaint, other than those as to the amount of unliquidated damages,
shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to
recover usurious interest are deemed admitted if not denied under oath.
N.B. 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

(2) When a specific denial requires an oath

Rule 8, Sec. 8. How to contest such documents .
When an action or defense is founded upon a written instrument (like a promissory note which is

94
the basis of a complaint for collection of sum of money), copied in or attached to the
corresponding pleading as provided in the preceding section, the GENUINENESS AND DUE
EXECUTION of the instrument shall be deemed admitted unless the adverse party, under
oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement
of an oath does not apply (a) when the adverse party does not appear to be a party to the
instrument or (b) when compliance with an order for an inspection of the original instrument is
refused.

Rule 9
EFFECT OF FAILURE TO PLEAD

Section 1. Defenses and objections not pleaded.

Defenses and objections not pleaded either in a motion
to dismiss or in the answer are deemed waived.
However, when it appears from the pleadings or the
evidence on record that the court has no jurisdiction
over the subject matter, that there is another action
pending between the same parties for the same cause,
or that the action is barred by a prior judgment or by
statute of limitations, the court shall dismiss the
claim. (2a)

GENERAL RULE: Defenses or objections not pleaded in a motion to dismiss or on

answer are deemed waived. The court will acquire no jurisdiction over the issues.

The policy is for the parties to lay all their cards on the table.

So, there is no such thing as a surprise defense because the defense must be pleaded.

EXCEPTIONS:

Q: What defenses or objections can be taken cognizance of by the court despite the
fact that they are not raised in the motion to dismiss or answer?
A: Under Section 1, Rule 9, the following:

1.) That the court has no jurisdiction over the subject matter;
2.) That there is another action pending between the same parties for the same
cause (litis pendentia);

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 3.) That the action is barred by prior judgment (res adjudicata); and
4.) That the action is barred by statute of limitation (prescription).

Take note that the exceptions can be raised at any time during or after the trial, or
even for the first time on appeal. In other words, the court shall dismiss the claim if any
of the foregoing grounds appears from the pleadings or the evidence on record.

PNB vs. PEREZ (16 SCRA 279)

PEPSI COLA vs. GUANZON (172 SCRA 571)

HELD: The rule on waiver of defenses by failure to plead in the answer

or in a motion to dismiss does not apply when the plaintiffs own allegations
in the complaint show clearly that the action has prescribed in such a case the
court may motu propio dismiss the case on the ground of prescription.

Under the 1964 Rules, one of the grounds that you can raise at any stage of the
proceeding before judgment is failure to state a cause of action, but it disappeared
under the new rules. Does it mean to say that you cannot raise it anymore?

NO. It can still be raised because it can be taken care of by another rule Rule 33 on
Demurrer.(This is doubtful because in a demurrer to evidence the ground is
insufficiency of evidence or lack of cause of action not failure to state a cause of action).

Sec. 2. Compulsory counterclaim, or cross-claim, not

set up barred. A compulsory counterclaim, or a cross-
claim, not set up shall be barred. (4a)

See discussions on Rule 6, Sections 7 and 8 on counterclaim and cross-claims,

respectively.

RULE ON DEFAULT

Sec. 3. Default; declaration of. If the defending

party fails to answer within the time allowed
therefor, the court shall, upon motion of the claiming
party with notice to the defending party, and proof of
such failure, declare the defending party in default.
Thereupon, the court shall proceed to render judgment
granting the claimant such relief as his pleading may
warrant, unless the court in its discretion requires
the claimant to submit evidence. Such reception of

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 evidence may be delegated to the clerk of court. (1a,
R18)
x x x x x x

Default is a procedure, which results from the failure of the defendant to file an answer
to the complaint within the period prescribed by the rules.

Thus, defending party is declared in DEFAULT if he fails to answer the complaint

within the time allowed therefor.

In Vlason Enterprise Corp. v. CA, GR Nos. 121662-64, July 6, 1999, the Court sais that a
declaration of default is issued as a punishment for unnecessary delay in joining the
issues.

Ground for default-

It is the failure of the defendant to answer within the proper period, not his failure to
appear nor failure to present evidence, which, is the basis of a declaration of default.

Effect of failure of defendant to attend the presentation of evidence for the plaintiff-
The failure of the defendant to attend the hearings for the presentation of the evidence
of the adverse party amounts not to a default, but to a waiver of the defendants right
to object to the evidence presented during the hearing and to cross-examine the
witnesses presented. However, it would not amount to a waiver of the defendants
right to present evidence during the trial dates scheduled for the reception of
evidence for the defense. It is error for the court to issue an order not denominated as
an order of default but provides for the application of the effects of default as when the
defendant who has filed an answer is not allowed to present evidence because of her
absence during the presentation of evidence by the plaintiff (Monzon Spouses Relova
vs. Addio Properties, Inc. GR 1712827, September 17, 2008)

Effect of failure of defendant to appear during the pre-trial-

It is not a ground to declare the default in default although the court can order the
plaintiff to present evidence ex-parte and to render judgment on the basis thereof. This
is because, while the consequence may be similar, such effect is not a form of
punishment imposed upon a defendant for his/her failure to join the issues. Thus, the
old rule which authorized the court to declare a defendant who fails to appear during
the pre-trial as as in default is no longer found in the present rules.

Requisites before a party may be declared in default:

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 1. The Court must have acquired jurisdiction over the person of the defendant thru
a valid service of summons or voluntary appearance;
2. The defending party must have failed to file his answer within the reglementary
period or within the period fixed by the court;
3. there must be a motion to declare the defendant in default;
4. The defending party must be notified of the motion to declare him in default
(Sec. 3 R 9)
5. There must be a hearing of the motion to declare the defendant in default; and
6. There must be proof of such failure to answer.

The required hearing is mandated by Sec. 4 of Rule 15, which states:

Sec. 4. Hearing of 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.

Take note that the word defending party applies not only to the original defendant
but even to the cross-defendant or defendant in a counterclaim.

Steps when the defendant fails to file an answer within the time allowed:

1.) Plaintiff must file Motion to declare defendant in default;

2.) Declaration or Order of default; and
3.) Rendition of Judgment by Default or judgment based on the complaint of the
plaintiff UNLESS the court requires the claimant to submit evidence (ex-
parte presentation of plaintiffs evidence)

The court cannot motu proprio declare a defendant in default.

The court also has the discretion to extend the time for filing an Answer or admit an
Answer though filed out of time-

The trial court has the discretion not only to extend the time for filing an answer but
also to allow an answer to be filed after the reglementary period.

Where there is no declaration of default yet, answer should be admitted even if filed out
of time and no prejudice is caused to the plaintiff. Where answer has been filed, there
can be no declaration of default anymore. (Guillerma S. Sablas vs. Esterlita S. Sablas and
Rodulfo Sablas, GR No. 144568, July 3, 2007)

When a defendant who filed an answer on time can still be declared in default-

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Q: If a defendant files an answer but did not furnish a copy of the answer to the
plaintiff, can the plaintiff move to declare the defendant in default?
A: YES, because the answer is deemed to have not been legally filed. It was not in
accordance with the Rules of Court. (Gonzales vs. Francisco, 49 Phil. 47) So the
defendant must furnish the plaintiff a copy of the answer because in the case of

RAMIREZ vs. COURT OF APPEALS

187 SCRA 153

HELD: The failure to furnish a copy of the answer to the adverse party in
itself is sufficient or valid basis for defendants default.

Action of the court after the declaration/order of default

It can do either of the following:

1. To proceed to render judgment, or
2. To require the plaintiff to present his evidence ex parte.

Under Section 3, it is discretionary upon the court to require the claimant to submit
evidence. EX-PARTE RECEPTION of evidence is OPTIONAL for the court. And such
reception of evidence may be delegated to the clerk of court. This is related to Section 9,
Rule 30:

Rule 30, Sec. 9. Judge to receive evidence;

delegation to clerk of court. The judge of the court
where the case is pending shall personally receive the
evidence to be adduced by the parties. However, in
default or ex parte hearings, and in any case where
the parties agree in writing, the court may delegate
the reception of evidence to its clerk of court who is
a member of the bar. The clerk of court shall have no
power to rule on objections to any question or to the
admission of exhibits, which objections shall be
resolved by the court upon submission of his report
and the transcripts within ten (10) days from
termination of the hearing. (n)

The reception of evidence maybe delegated to the clerk of court but the clerk of
court must be a lawyer. That is the condition. So if he is not a member of the bar, he is
not authorized to conduct or hear an ex-parte reception of evidence.

Default judgment disfavored-

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In Paramount Insurance Corp., v. A.C. Ordonez Corp., 561 SCRA 327, 334) the Court
held that the hornbook rule is that default judgments are generally disfavored.

Effect of pendency of a Motion to Dismiss or for Bill of Particulars on period to file

an Answer-

Q: May a defendant be declared in default while a motion to dismiss (Rule 16) or a

motion for bill of particulars (Rule 12) remains pending and undisposed of?
A: NO, because under the filing of a motion to dismiss or motion for bill of
particulars interrupts the running of the period to answer. It will run again from the
moment he receives the order denying his motion to dismiss or for bill of particulars.
(Hernandez vs. Clapis, 87 Phil. 437)
But said motions must follow the requirements otherwise they will be treated as
mere scraps of paper and will not toll the running of the period to answer.

In the case of
DEL CASTILLO vs. AGUINALDO
212 SCRA 169 [1992]

FACTS: The defendant filed a motion to dismiss under Rule 16 but his
motion to dismiss did not contain notice of time and place of hearing and the
motion was denied. Can he file an answer after filing the motion to dismiss?

HELD: NO. He can be ordered in default. The motion is a useless piece of

paper with no legal effect.
Any motion that does not comply with Rule 16 should not be accepted
for filing and if filed, is not entitled to judicial cognizance and does not affect
any reglementary period. Not having complied with the rules, the motion to
dismiss filed by the defendant did not stay the running of the reglementary
period to file an answer.

GOLDEN COUNTRY FARM, INC. vs. SANVAR DEVT CORP.

214 SCRA 295 [1992]

FACTS: Because the filing of the motion to dismiss is 15 days, the

defendant filed a motion to dismiss on the 8th day. It was denied. So there is
still 7 days to file an answer. On the 15th day, instead of filing an answer, he
filed a motion for reconsideration but such motion was also denied. Can he
still file an answer?

HELD: NO MORE. The filing of the motion to dismiss interrupted the

period to file an answer. When you receive an order, you still have the

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 balance to file your answer. And you did not file an answer instead, you file a
motion for reconsideration. You took the risk. So defendants motion for
reconsideration, which merely reiterated his ground in the motion to dismiss
did not stay the running of the period to file an answer.

Effect of failure to file a response and appear on the date set for hearing under the
Rule of Procedure for Small Claims Cases-

A motion to declare in default is a prohibited motion but the court can render a
judgment on the same day, as may be warranted by the facts. (Sec. 12)

The same Section 12 further provides that if the defendant failed to file a Response
within the reglementary period but appears at the date set for hearing, the court
shall ascertain what defense he has to offer and proceed to hear, mediate or
adjudicate the case on the same day as if a Response had been filed.

Effect of failure to file an Answer under the Rule on Summary Procedure-

The defendant will not be declared in default, instead the court, motu proprio, or on
motion of plaintiff, shall render judgment as may be warranted by the facts alleged
in the complaint and limited to what is prayed for (Sec. 6, II) A motion to declare
defendant in default is likewise prohibited under Sec. 19(h).

(a) Effect of order of default. - A party in

default shall be entitled to notice of
subsequent proceedings but not to take part
in the trial. (2a, R18)

Effect of a declaration/order of default

1. The party declared in default loses his standing in court. The loss of such
standing prevents him from taking part in the trial (Sec. 3[a], Rule 9);
2. While the defendant can no longer take part in the trial, he is nevertheless
entitled to notices of subsequent proceedings (Sec. 3[a], Rule 9)/. It is submitted
that he may participate in the trial, not as a party but as a witness (Cavile vs.
Florendo GR No. 73039, Oct. 9, 1987)
3. A declaration of default is not an admission of the truth or the validity of the
plaintiffs claims (Monarch Insurance vs. CA 333 SCRA 7 [2000]; Vlason
Enterprises Corp. vs. CA 310 SCRA 26).

So if you are declared in default, you cannot take part in the trial. You lose your
standing in court, you cannot cross-examine the witness of the plaintiff assuming there

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is a reception of evidence. You cannot object to his evidence. You cannot even present
your own evidence when you are in default.

Right of a party in default

He is entitled to notice of:

1. Motion to declare him in default;
2. Order declaring him in default;
3. Subsequent proceedings; and
4. Service of final orders and judgments.

Note: A defendant declared in default cannot take part in the trial, but he cannot be
disqualified from testifying as a witness in favor of non-defaulting defendants (Cavile
vs. Florendo GR No. 73039, Oct. 9, 1987)

Default is not an admission of the allegations in the complaint.

There was an action for reconveyance alleging that with the use of fraud, there
was acquisition of title over a property. The defendants did not file an answer hence; an
order of default was issued. But the plaintiffs failed to prove the fraudulent act. It was
contented that the failure to answer is equivalent to an implied admission of the
allegations in the complaint. Is the contention correct? Why?

Being in default, does not imply a waiver of rights, except that of being
heard and of presenting evidence in his favor. It does not imply admission by the
defendant of the facts and causes of action of the plaintiff, because the codal
section requires the latter to adduce his evidence in support of his allegations as
an indispensable condition before final judgment could be given in his favor. Nor
could it be interpreted as an admission by the defendant that the plaintiffs
causes of action finds support in the law, or that the latter is entitled to the relief
prayed for. (Heirs of Pedro de Guzman v. Angelina Perona, et al., G.R. No. 152266,
July 2,2010, citing Luxuria Homes, Inc. v. CA, G.R. No. 125986, January 28, 1999,
302 SCRA 315; Delos Santos v. Dela Cruz, 37 SCRA 55 (1971)).

Plaintiff is not automatically entitled to the relief prayed for, once the
defendants are declared in default. Favorable relief can be granted only after the
court has ascertained that the relief is warranted by the evidence offered and the
facts proven by the presenting party. Otherwise, it would be meaningless to
require presentation of evidence if every time the other party is declared in
default, a decision would automatically be rendered in favor of the non-defaulting
party and exactly according to the tenor of his prayer. This is not contemplated
by the Rules nor is it sanctioned by the due process clause. (Heirs of Pedro de
Guzman v. Angelina Perona, et al., G.R. No. 152266, July 2, 2010, citing Pascua v.
Florendo, 220 Phil. 588; Gajudo v. Traders Royal Bank, 485 SCRA 108 (2005)).

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Effect of filing of an amended complaint upon defaulted defendant

If the defendant was declared in default upon an original complaint, the filing of the
amended complaint results in the withdrawal of the original complaint, hence, the
defendant is entitled to file an answer to the amended complaint as to which he was not
in default.

Judicial discretion to admit answer filed out of time

It is within the sound discretion of the trial court to permit the defendant to file his
answer and to be heard on the merits after the reglementary period for filing the answer
expires. The Rules of Court provides for discretion on the part of the trial court not only
to extend the time for filing an answer but also to allow an answer to be filed after the
reglementary period. It is not correct to say that a trial court has no recourse but to
declare a defending party in default when he fails to file an answer within the required
period. In fact, the rule is that the answer should be admitted where it is filed before
a defending party is declared in default and no prejudice is caused to the other party
and that there is no showing that the defendant intends to delay the case (Sablas vs.
Sablas GR 144568, July 3, 2007) The hornbook rule is that default judgments are
generally disfavored (Paramount Insurance Corp., vs. A.C. Ordonez Corporation, GR
No. 175109, August 6, 2008).

Current Judicial Trend on Default

The current judicial trend is to avoid defaults and thus, courts are enjoined to be
liberal in setting aside orders of default. (Ampeloquio vs. CA 333 SCRA 465

The issuance of orders of default should be the exception rather than the rule and to be
allowed only in clear cases of obstinate refusal by the defendant to comply with the
orders of the trial court (Lorbes vs. CA GR 139884 February 15, 2001) because suits
should as much as possible, be decided on the merits and not on technicalities
(Samartino vs. Raon GR 131482 July 3, 2002). Thus, in practice, an answer under oath
containing the defenses of the defendant, may under the rules on liberal interpretation,
be deemed as equivalent of an affidavit of merit.

The policy of the law is to have every litigants case tried on the merits as much as
possible. Hence, judgments by default are frowned upon. A case is best decided when
all contending parties are able to ventilate their respective claims, present their
arguments and adduce evidence in support thereof. (Sablas vs. Sablas GR 144568 July 3,
2007).

HOW TO LIFT ORDER OF DEFAULT

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 (b) Relief from order of default. - A party
declared in default may at any time after
notice thereof and before judgment file a
motion under oath to set aside the order of
default upon proper showing that his failure
to answer was due to fraud, accident,
mistake or excusable negligence and that he
has a meritorious defense. In such case, the
order of default may be set aside on such
terms and conditions as the judge may impose
in the interest of justice. (3a, R18)

Summary of Remedies of a defending party declared in default:

(a) 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 (FAMEN)
and that (b) the defendant has a meritorious defense, i.e., there must be an
affidavit of merit (Sec. 3[b], Rule 9); Villareal vs. CA 295 SCRA 511; Republic vs.
Sandiganbayan GR No. 148154, December 17, 2007; Republic vs. Sandiganbayan,
540 SCRA 431)

Steps the defendant should take to set aside the order of default:
1.) File a motion to lift or set aside the order of default. The motion must be
verified and under oath;
2.) He must explain why he failed to file an answer due to FAME; and
3.) He must also show that he has a meritorious defense.
In such a case, the order of default may be set aside on such terms and conditions as the
judge may impose in the interest of justice (Sec. 3b)

Meaning, even if you are a victim of FAME, if you have no meritorious defense, the
court will not lift the order of default.

Q: When can the defendant avail of this remedy?

A: He may file a motion to set aside the order of default at any time after notice
thereof and before judgment.

(b) Remedy after judgment and before judgment becomes final and executor
The defendant may file a motion for new trial under Rule 37. He may also

104
 appeal from the judgment as being contrary to the evidence or the law (Talsan
Enterprises, Inc. vs. Baliwag Transit, Inc. 310 SCRA 156; Lina vs. CA 135 SCRA
637)

(c) Remedy after the judgment becomes final and executory The defendant may
file a petition for relief from judgment under Rule 38 (Balangcad vs. Justices of
the CA GR No. 83888, February 12, 1992; Republic vs. Sandiganbayan [supra])

(d) 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 the judicial records, he may avail of
the special civil action of certiorari under Rule 65 (Balangcad vs. Justices,
supra)

Flow Chart of Remedies from Judgment by Default

Judgment by default

Motion for New Trial or Reconsideration at any time after service of judgment by
default and within 15 (30) days therefrom

Failure to file Motion for New Trial/Reconsideration or Denial of said Motion

Perfect Appeal from said judgment by default within the balance of said 15 (30) day
period

Failure to Appeal without defendant's fault

Petition for Relief from Judgment within 60 days from notice of judgment but within 6
months from entry thereof

Annulment of Judgment under R 47

Implied Lifting of the Order of Default

While it is true that there was no positive act on the part of the court to lift the default
order because there was no motion nor order to that effect, the anti-graft courts act of
granting respondent the opportunity to file a responsive pleading meant the lifting of
the default order on terms the court deemed proper in the interest of justice. It was the

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operative act lifting the default order and thereby reinstating the position of the
original defendant whom respondent is representing, founded on the courts
discretionary power to set aside orders of default.

PARTIAL DEFAULT

(c) Effect of partial default. - When a pleading

asserting a claim states a common cause of action
against several defending parties, some of whom answer
and the others fail to do so, the court shall try the
case against all upon the answers thus filed and
render judgment upon the evidence presented. (4a, R18)

The principle here is that, the answer filed by the answering defendant will
automatically benefit the non-answering defendant.

Effect of partial default-

In all instances where a common cause of action is alleged against several

defendants, some of whom answer and the others do not, the latter or those in default
acquire a vested right not only to own the defenses interposed in the answer of their
co-defendant or co-defendants not in default but also to expect a result of the
litigation totally common with them in kind and in amount whether favorable or
unfavorable (Remigia Grageda, et al., vs. Hon. Nimfa Gomez and Haudiny Grageda,
GR No. 169536, Sept. 21, 2007).

The best example would be a promissory note signed by both B and C and they
bound themselves solidarily. Both of them were sued. B answered while C did not,
hence he is in default. Can there be a default judgment against C? NO, there will still be
a trial based on the answer of B. In effect, B will defend not only himself but also C.

Q: Suppose during the trial, B proved that the obligation has been extinguished,
which is also applicable to C, and the complaint is dismissed, what is the effect?
A: Both will win the case. So C will be benefited by the answer of his co-defendant B.
Hence, there is still a possibility that a defaulted defendant can win based on our
example.

On the other hand it is absurd if the answer of B will not benefit the defaulting
defendant. EXAMPLE: Gary filed a case against B and C based on a promissory note on
a loan secured by both, and C defaulted. B answered alleging payment. Suppose, B
proved such defense, the effect is both B are absolved. If you say that C should lose
because the answer of B will not benefit C, there will be two conflicting decisions: C is
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in default and thus, should pay the loan; and there is no more loan as far as B is
concerned. Do you mean a loan is paid and at the same time unpaid? Thats absurd!

But take NOTE that to apply the principle, there must be a common cause of action.
If there is no common cause of action, while there may be a trial, the answer of B is only
for him. After the trial, B might be absolved from liability but the defaulting defendant
C will be held liable because Bs answer does not cover C. That is when there is no
common cause of action. In the case of

CO vs. ACOSTA (134 SCRA 185 [1985])

reiterating the case of
LIM TANHU vs. RAMOLETE (66 SCRA 425)

FACTS: B and C were (solidary debtors) sued by Gary for a loan

evidenced by a promissory note. B filed an answer but C defaulted. The case
was tried based on Bs answer. Gary moved to drop B from the case but
retained C, the defaulted defendant so that Gary can secure an immediate
judgment.

ISSUE: Is the motion of Gary proper?

HELD: NO. When there is a common cause against two or more

defendants, if you drop the case against one, you drop the case against all.
Selection is not allowed. To drop B means that the cause of action against him
is weak. Why should one drop somebody if a case against such person is
meritorious? If such is the fact, necessarily the cause of action against the
other is also weak the fact there is actually a common cause of action.

However, the ruling in ACOSTA should not be confused with the ruling in

IMSON vs. COURT OF APPEALS [1996 BAR]

239 SCRA 58 [1994]

FACTS: Imson was driving a Toyota Corolla when he was bumped by a

Hino Truck causing injury to Imson and totally wreaking his car. So he filed
an action for damages against several defendants. He impleaded all of them
the driver, the bus company owner and the insurance company. The
insurance company filed an answer but the owner and the driver did not. So
both the owner and the driver were declared in default.
Subsequently, lmson and the insurance company entered into a
compromise agreement wherein the latter paid him P70,000 which was its
total liability under the insurance contract but constituted only a part of the
total claim.

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 So when the case (between Imson and the insurance company) was
eventually dismissed because of the compromise agreement, the bus
company owner also moved to dismiss the case against him and the driver,
arguing that since they are all indispensable parties under a common cause of
action, the dismissal of the case against the insurance company should
likewise result to the dismissal of the case against them citing the case of
ACOSTA and RAMOLETE.

ISSUE #1: Is there a common cause of action among the three of them?
HELD: The owner is wrong. There is NO common cause of action. The
cause of action against the driver is based on quasi-delict under Article 2178
of the Civil Code. The liability against the owner is also based on quasi-delict
but on another provision of the Civil Code Article 2180 (the liability of the
employer for the delict or wrong of the employee) So, the liability of the
owner and the driver is based on quasi -delict but under separate provisions
of the Civil Code.
Now, the cause of action against the insurance company is not based on
quasi-delict but based on contract because he seeks to recover liability from
the insurance company based on the third-party liability clause of the
insurance contract with the company.
So, there is no common cause of action among them.

ISSUE #2: Is the insurance company an indispensable party? Because if it

is so and he is removed from the case, the case cannot proceed without him.
HELD: NO. The insurance company is not an indispensable party.
It is true that all of Imsons claims in the civil case is premised on the
wrong committed by defendant truck driver. Concededly, the truck driver is
an indispensable party to the suit. The other defendants, however, cannot be
categorized as indispensable parties. They are merely necessary parties to the
case. It is easy to see that if any of them had been impleaded as defendant
(meaning, the insurance company or the owner was impleaded), the case
would still proceed without prejudicing the party not impleaded.
Thus, if petitioner did not sue the insurance company, the omission
would not cause the dismissal of the suit against the other defendants. Even
without the insurer, the trial court would not lose its competency to act
completely and validly on the damage suit. The insurer, clearly, is not an
indispensable party. It is a necessary party.

(d) Extent of relief to be awarded. - A judgment

rendered against a party in default shall not exceed
the amount or be different in kind from that prayed
for nor award unliquidated damages. (5a, R18)

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 This is what we call LIMITATIONS on a default judgment:
1.) The default judgment should not exceed the amount prayed for in the
complaint;
2.) The default judgment should not be different in kind from that prayed for in
the complaint;
3.) The default judgment should not award unliquidated damages.

Leticia Diona, represented by her Attorney-in-fact, Marcelina Diona v. Romeo

Balangue, Sonny Balangue, Reynaldo Balangue, and Esteban Balangue, Jr.; G.R.
No. 173559. January 7, 2013

Pleadings; relief. It is settled that courts cannot grant a relief not prayed for in the
pleadings or in excess of what is being sought by the party. They cannot also grant a
relief without first ascertaining the evidence presented in court. In Development Bank of
the Philippines v. Tecson, this Court expounded that:
Due process considerations justify this requirement, it is improper to enter an order
which exceeds the scope of relief sought by the pleadings, absent notice, which affords
the opposing party an opportunity to be heard with respect to the proposed relief. The
fundamental purpose of the requirement that allegations of the complaint must provide
the measure of recovery is to prevent surprise to the defendant.

Notably, the Rules is even more strict in safeguarding the right to due process of
a defendant who was declared in default than of a defendant who participated in trial.
For instance, amendment to conform to the evidence presented during trial is
allowed the parties under the Rules. But the same is not feasible when the
defendant is declared in default because Section 3(d), Rule 9 of the Rules of
Court comes into play and limits the relief that may be granted by the courts to
what has been prayed for in the complaint. xxx The raison detre in limiting the extent
of relief that may be granted is that it cannot be presumed that the defendant would not
file an Answer and allow himself to be declared in default had he known that the plaintiff
will be accorded a relief greater than or different in kind from that sought in the
Complaint. No doubt, the reason behind Section 3(d), Rule 9 of the Rules of Court is to
safeguard defendants right to due process against unforeseen and arbitrarily issued
judgment. This, to the mind of the Court, is akin to the very essence of due process. It
embodies the sporting idea of fair play and forbids the grant of relief on matters where
the defendant was not given the opportunity to be heard thereon.

MANGELIN vs. COURT OF APPEALS

215 SCRA 230 [1992]

ISSUE: What is the difference between ex-parte presentation of evidence

by virtue of default judgment AND ex-parte presentation of evidence by
failure to appear during the trial

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 HELD: In reception of evidence due to DEFAULT ORDER, paragraph [d]
applies the judgment cannot exceed the amount or be different in kind from
that prayed for in the complaint.
BUT if theres an ex-parte reception of evidence against a defendant who
filed an answer but FAILED TO APPEAR during the trial, the limitations in
paragraph [d] does not apply. Therefore in this case, a greater amount than
that prayed for in the complaint, or a different nature of relief may be
awarded so long as the same are proved.

It may be pointed out that there is a difference between a judgment

against a defendant based on evidence presented ex-parte pursuant to a
default order and one based on evidence presented ex-parte and against a
defendant who had filed an answer but who failed to appear at the hearing.
In the former, Section 3 [d] of Rule 9 provides that the judgment against the
defendant should not exceed the amount or be different in kind from that
prayed for. In the latter, however, the award may exceed the amount or be
different in kind from that prayed for.

This is because when there is an ex parte presentation of evidence due to failure to

appear in trial, ones standing in court is not lost. HE can still present evidence later to
refute the plaintiffs evidence. He simply waived the rights attached on particular
hearing but not to all subsequent trials. In judgment by default, he actually loses his
standing in court.

Q: What is the difference between UNLIQUIDATED damages and LIQUIDATED

damages?
A: UNLIQUIDATED DAMAGES are 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 anguish or besmirched
reputation in cases of moral damages.
LIQUIDATED DAMAGES are those which are already fixed and proof or evidence
to establish the same are not required. An example is an obligation with a penal clause
like an agreement to construct a house and upon failure to finish the same within a
stipulated period, the contractor is liable for P10,000 for every day of delay. The amount
is already fixed based on the contract price and the penalty provided and such other
circumstances as stipulated.

So, in an action for unliquidated damages, let the defendant be declared in default
anyway the court can never award those damages. Because if I will answer, damages
can be awarded. In other words, I will win the case simply because there is no way for

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the court to award the damages. And most damages are usually those unliquidated
damages.

(e) Where no defaults allowed. - If the defending

party in an action for annulment or declaration of
nullity of marriage or for legal separation fails to
answer, the court shall order the prosecuting attorney
to investigate whether or not a collusion between the
parties exists, and if there is no collusion, to
intervene for the State in order to see to it that the
evidence submitted is not fabricated. (6a, R18)

Where no defaults are allowed:

1. Annulment of marriage;
2. Declaration of nullity of marriage;
3. Legal Separation;
4. Special Civil Actions of certiorari, prohibition and mandamus where comment
instead of an answer is required to be filed; and
5. Summary Procedure.

Relate this provision of the rule to Articles 48 and 60 of the Family Code:

Family Code, Art. 48. In all cases of annulment or

declaration of absolute nullity of marriage, the court
shall order the prosecuting attorney or fiscal
assigned to it to appear on behalf of the State to
take steps to prevent collusion between the parties
and to take care that the evidence is not fabricated
or suppressed.
In the cases referred to in the preceding paragraph,
no judgment shall be based upon a stipulation of facts
or confession of judgment.

Family Code, Art. 60. No decree of legal separation

shall be based upon a stipulation of facts or a
confession of judgment.
In any case, the court shall order the prosecuting
attorney or fiscal assigned to it to take steps to
prevent collusion between the parties and to take care
that the evidence is not fabricated or suppressed.

Judgment by default for refusal to comply with the modes of

discovery

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 The rule is that a default order and consequently a
default judgment is triggered by the failure of the
defending party to file the required answer (Sec. 3
Rule 9).
By way of exception, a judgment by default may be
rendered in the following cases despite an answer
having been filed:

(a) If a party refuses to obey an order requiring

him to comply with the various modes of
discovery (Sec. 3[c] Rule 29; or
(b) If a party or officer or managing agent of a
party willfully fails to appear before the
officer who is to take deposition or a party
fails to serve answers to interrogatories.
(Sec. 5 Rule 29)

Reviewer

Effect of failure to plead (Rule 9)

1. Failure to plead defenses and objections (implied admissions)
Defenses not pleaded in a motion to dismiss or in the answer are deemed WAIVED.
Exceptions:
These defenses may be raised at any stage of the proceedings even for the first time on appeal::
1. Lack of jurisdiction over the subject matter (Note: This may, however, be barred by
laches - Tijam v. Sibonghanoy, G.R. No. L-21450, April 15, 1968)
2. Litis pendentia
3. Res judicata
4. Prescription (LLRP) (Rule 9, Sec. 1) Relate to omnibus motion rule (Rule 15, Sec. 8)

***Laches need not be specifically pleaded and may be considered by the court on its own
initiative in determining the rights of the parties. (Heirs of Valientes v. Ramas, G.R. No. 157852;
December 15, 2010) TDC

2. Failure to plead a compulsory counterclaim and cross-claim

Rule 9, Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred.
A compulsory counterclaim, or a cross-claim, not set up shall be barred.

6. Default (Rule 9, Sec. 3)

a. When a declaration of default is proper

What are the grounds for the declaration of default?

a) Failure of a defending party to answer within the time allowed (Rule 9, Sec. 3). This includes
failure to answer a complaint, permissive counterclaim, cross-claim, third-party complaint, etc.
b) Wilful failure to appear before an officer to make a deposition, after being served with a
proper notice, or failure to serve answers after proper service of interrogatories (Rule 29, Sec. 3)
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c) Failure to appear at pre-trial (Rule 18, Sec. 5)

NOTE:
1. A declaration of default cannot be made by the court motu proprio; there must be a motion to
that effect (The Philippine British Co., Inc. vs. De Los Angeles, 63 SCRA 50 [1975]).

2. If no motion to declare defendant in default is filed, the complaint should be dismissed for
failure to prosecute.

3. A defendants answer should be admitted where it had been filed before it was declared
in default, and no prejudice is caused to plaintiff (Indiana Aerospace University vs. CHED. 356
SCRA 367 [2001])

b. Effect of an order of default

a. A party in default LOSES HIS STANDING in court. He cannot appear therein, adduce
evidence and be heard nor take part in trial. He cannot file a motion to dismiss without first filing
a motion to set aside the order of default. He loses his right to present evidence, control the
proceedings and examine the witnesses or object to plaintiffs evidence.

b. A motion to declare the defending party in default should be served upon him. A party in
default, however, shall be entitled to NOTICE of subsequent proceedings but not to take part in
the trial.

c. Being declared in default does not constitute a waiver of all rights. What is waived is only the
RIGHT TO BE HEARD and to PRESENT EVIDENCE during trial while default prevails.
A party in default is still entitled to notice of final judgments and orders and proceedings taken
subsequent thereto. He may be cited and testify as a witness.

d. A party VALIDLY declared in default irreparably loses the right to participate in the trial. A
defendant IMPROVIDENTLY declared in default may retain and exercise such right to
participate in the trial after the order of default and the subsequent judgment by default are
annulled and the case remanded to the court of origin. The former can only appeal. The latter
may file a petition for certiorari (Indiana Aerospace University vs. CHED, supra).

c. Relief from an order of default

Summary of the Remedies in Default
a. From notice of the order of default but BEFORE JUDGMENT
(1) motion to set aside order of default under Rule 9, Sec. 3(b)
(2) in a proper case, petition for certiorari under Rule 65.

b. AFTER JUDGMENT BUT BEFORE FINALITY

(1) motion for reconsideration under Rule 37, Section 1
(2) motion for new trial under Rule 37, Section 1
(3) appeal under Rule 41, Section 1

c. AFTER FINALITY OF JUDGMENT

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(1) petition for certiorari under Rule 65
(2) petition for relief from judgment under Rule 38
(3) petition for annulment of judgment under Rule 47.

d. Effect of a partial default

Rule 9, Section 3(c). Effect of partial default . When a pleading asserting a claim states a
common cause of action against several defending parties, some of whom answer and the others
fail to do so, the court shall try the case against all upon the answers thus filed and render
judgment upon the evidence presented.

e. Extent of relief
Two (2) kinds of Proceedings after Declaration of Default and the Extent of Relief that may be
Granted
(a) Without hearing
The Court may immediately render judgment granting the claimant such relief as his pleading
may warrant. Such relief however shall not exceed the amount or be different in kind from that
prayed for nor award unliquidated damages. (Rule 9, Sec. 3)

(b) With Hearing

The Court may, in its discretion, allow or require the claimant to submit evidence. Such
reception of evidence may be delegated to the Clerk of Court. After the reception of claimants
evidence, the court may render judgment granting the reliefs prayed for as established by the
evidence. It may also award unliquidated damages without exceeding the
amounts prayed for. (Rule 9, Sec. 3)

f. Actions where default is not allowed

a. Action for
declaration of nullity of marriage;
action for annulment of marriage;
action for
legal separation (Rule 9, Sec. 3 (e))
NOTE: If the defending party fails to answer, the court shall order the prosecuting attorney to
investigate whether or not a collusion exists between the parties, and if there is no collusion, to
intervene for the State in order to see to it that the evidence submitted is not fabricated.

b. Actions governed by the Rule on Summary Procedure and Rule of Procedure for Small Claims
Cases, where a motion to declare defendant in default is not allowed.

c. Special civil actions of certiorari , prohibition and mandamus where comment instead of an
answer is required to be filed.

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