Rule 7: Parts of a Pleading

1. Judgment awarded may award a claim not alleged, a relief different from or more
than that claimed, or exceed the amount prayed for PROVIDED that (1) evidence so
warrants, and (2) defendant does not object to the presentation of evidence for the
additional sum. Additional filing fee for the additional sum shall constitute a lien on
the judgment.

If defendant objects, the court may nonetheless admit the evidence if the
presentation of the merits of the action and the ends of substantial justice will be
served thereby. Complaint should be ordered amended.

Judgments rendered against a party in default cannot exceed the amount nor be
different in kind than that prayed for.

2. Only the signature of the party or his counsel operates to validly convert an
unsigned pleading to one that is signed. Counsels authority to sign pleading is
personal to him. An unsigned pleading has no legal effect (as if it was not filed) and
filer (if defendant) may be declared in default.

A pleading required by law/rules to be verified which is not or improper, shall be

treated as an unsigned pleading (no legal effect).

HOWEVER, the court in its discretion may allow the defect of an unsigned/unverfied
pleading to be remedied if the failure to sign was (1) inadvertent, and (2) not
intended to delay.

3. Pleadings need not be verified, under oath, or accompanied by an affidavit.

EXC. Law or rules specifically requires

4. A verification may be made by the party, his counsel, representative or any other
person who personally knows the truth of the facts alleged.

A counsel may verify his clients pleading if the facts in the pleading are true and
correct of his personal knowledge or based on authentic records.

It is substantial compliance with the rules where the lawyer who signed the
pleadings also made the verification.

5. Test to determine whether a party is forum shopping: where final judgment in

one case will amount to res judicata in the action under consideration or where the
elements of litis pendentia are present.

6. Failure in include certification against forum shopping in pleading is cause for

dismissal of the complaint without prejudice, unless otherwise provided. The defect
cannot be cured by mere amendment of the pleading/complaint.

Remedy for the plaintiff in this case would be to refile the case and annex a CNFS, or
Special Civil Action for Certiorari grounded of Grave Abuse of Discretion.
Appeal is not available as a remedy for dismissals without prejudice.

EXC. (Unless otherwise provided)Dismissal for violation of the rule on CNFS is

with prejudice if: the (1) dismissal order so provides, or (2) the acts of the party or
his counsel clearly constitute willful and deliberate forum shopping.

7. Violations of the rule on CNFS do not authorize the court to dismiss a case
summarily (w/o motion and hearing) even if a false CNFS was submitted. It may be
grounds for contempt of court though. There must still be motion and hearing. This
rule is inapplicable where there was willful and deliberate forum shopping.

8. The fact that the party committing forum shopping was not the plaintiff or
petitioner in the first case does not detract or will not defeat the charge of FS if the
party asked for same relief in both cases. Ground for dismissal may be FS or litis
pendentia. Withdrawal of the first complaint will likewise not defeat the FS charge
when made already after the denial of the relief sought in the first case. (withdrawal
should be before the court passed judgment on claim)

9. There is substantial compliance with the verification and requirements of CNFS

where both were submitted and the notary publics signature and stamp were duly
affixed but no notarial seal.

There if likewise SC where the CNFS bears only the signature of the husband, and
spouses are petitioners.

10. GR: The CNFS must be signed by the party himself since he is in the best position
to state the matters therein

EXC. Where the party is a juridical person, lawyer may sign PROVIDED he is
specially authorized by board resolution.

11. CNFS is only required in complaint or initiatory pleadings or incipient

applications. Not required in compulsory counterclaims as they are neither
initiatory nor incipient but merely AUXILIARY or SUPPLEMENTAL to the main
proceeding.

A money claim against the estate is not an initiatory pleading since the probate
proceeding was already initiated. It merely brings a material but incidental matter
arising in the progress of a case. It does not initiate new litigation, it is merely
incidental to a probate proceeding more so if money claim is contingent (separate
action cannot yet be availed).

An ex parte petition for writ of possession over extrajudicially foreclosed property is

in substance merely a motion, not an initiatory pleading, thus no CNFS is required.

12. In verification, the signature of one instead of all parties would be sufficient if
there is showing that he had sufficient knowledge and belief to sign the verification.
13. There is substantial compliance with the CNFS requirement even when proof of
authority of corporate signatory was introduced belatedly or after the signature was
made. Such was considered by SC to be a mere technicality or procedural
imperfection which should not defeat the ends of justice.

14. Corporate officers in signing verification and CNFS have implied or apparent
authority to do so, there is no need to present a board resolution granting such
authority. It may be dispensed with especially when the Corporation interposes no
objection to the filing of the case or pleading.

The ff Corporate Officers may sign verification and CNFS w/o board resolution:

(1) Chairperson of the Board of directors

(2) President
(3) Vice-president, Assistant vice-president

(4) General Manager or acting General manager

(5) Personnel Oficer

(6) Employment Specialist in a labor case

*these officials are in a position to verify the truth and correctness of the allegations
in the complaint or petition

Resident agents and counsel need board resolution to validly sign in corporations
behalf

15. Verification and CNFS are fatally defective when their notarial certificate did not
state whether the party presented competent evidence of identity or that the party
was personally known to the notary public. This is cause for dismissal of the petition.
(violation of rule for jurat)

16. Dismissal w/ prejudice, remedy: Appeal; Dismissal w/o prejudice (as in void or
CNFS, signature on pleading or verification), remedy: Certiorari under Rule 65

17. Effect of non-compliance or defect

Verification: pleading is not necessarily rendered fatally detective. Court may order
its submission or correction or act on the pleading based on the circumstances
(ends of justice will be served)

Certification Against Forum Shopping: defect/non-compliance is generally not

curable by subsequent submission or correction. EXC. Substantial compliance or
presence of special circumstances or compelling reasons

18. Who must sign

Verification: parties, counsel, representative or nay one with ample knowledge to
swear to the truth of the allegations in the petition

CNFS: all the parties filing the pleading (those who did not sign will be dropped).
EXC. Where petitioners share a common interest and invoke a common cause of
action or defense (substantial compliance)

19. Who must execute

Verification: same as above

CNFS: party pleader only or counsel specifically authorized via SPA to execute

Rule 8: Manner of Making Allegations in Pleadings

1. Where there are alternative causes of action, it is sufficient that one of the
alternative statements, if made independently, would be sufficient. Insufficiency of
one alternative does not affect the other.

2. Alternative causes of action need not be consistent with one another as long as
each is consistent in itself. Inconsistent statements or defenses may be pleaded this
way. (i.e., ownership and cost for improvements on the land)

3. In all averments of fraud or mistake, the circumstances constituting fraud or

mistake must be stated with particularity. Mere invocation of the words
surreptitiously and fraudulently does not make the allegation particular without
specifying the exact circumstances of the commission and employment of fraud (or
How) and Why it constitutes fraud. Failure is ground for dismissal based on failure
to state a cause of action.

4. Malice, intent, knowledge or other condition of the mind may be averred

GENERALLY.

5. An actionable document must be set forth in the pleading by attachment or

copying in the pleading. To contest its genuineness and due execution, the adverse
party shall specifically deny under oath the G&DE of the doc AND set forth what he
claims to be facts. Otherwise G&DE is deemed admitted (cannot be later on raised by
the adverse party; AP cannot also object to the presentation of only a copy based on
the best evidence rule, lack of documentary stamps cannot anymore be raised as an
objection), failure operates as a judicial admission and does not require proof.

EXC. The requirement of an oath does not apply when the adverse party does not
appear to be a party to the instrument (actionable document). In such case, specific
denial will suffice, no need only for an oath. There MUST BE SPECIFIC DENIAL STILL.
6. Failure to deny G&DE of an actionable document does not preclude a party from
arguing against it by evidence of fraud, mistake, compromise, payment, statutes of
limitations, estoppel, and want of consideration.

7. The requirement of specific denial applies on to ACTIONABLE documents not

merely evidentiary documents (i.e., unilateral letter-reply)

8. A request for admission is not proper where the subject matter thereof is the
SAME as that alleged in the requesting partys complaint for which the requested
part had already denied in his answer. A party should not be required to make a
second denial of allegation already denied in his answer.

9. A specific denial may be contained in the verified complaint provided the

allegation is specific (substantial traversal).

As to effect: verification = under oath

10. The production of the original may be dispensed with the Courts discretion
whenever the opponent does not bona fide dispute the contents of the documents
and no other useful purpose will be served thereby.

11. To avail of the benefits of an implied admission by failure to SD, it is imperative

that when evidence is subsequently presented challenging the G&DE of the
actionable document, an objection must be timely made. Otherwise, it is deemed
waived and court may admit the evidence despite the implied admission.

12. With respect to material averments, failure to specifically deny is deemed an

admission of its truth.

13. Denials based on lack of knowledge or information of matters clearly known to

the pleader, or ought to be known to it, or could have easily been known by it, are
insufficient and constitute ineffective or sham denials.

14. Even if there was no specific denial, when there is reference to special and
affirmative defenses and such defenses negate or deny the claim of the adverse
party, there is specific denial. It is sufficient that the substance of the matters upon
which the pleaders relied upon to support their denial were stated or indicated in
the special and affirmative defenses.

Rule 9: Effect of Failure to Plead

1. Defenses and objections that are not pleaded either in a motion to dismiss or in
the answer are DEEMED WAIVED.

EXCS. When it appears from the PLEADINGS or the EVIDENCE ON RECORD that
either of the ff are present: (JRLP)

(1) Court has no jurisdiction over the subject matter

(2) Litis Pendentia, there is another action pending between the SAME parties for
the SAME cause

(3) the action has prescribed

(4) Action is barred by prior judgment

in these cases, the court shall dismiss the complaint even if grounds were not
pleaded in MTD or answer

2. The court during pretrial may consider the propriety of dismissing the action
should a valid ground therefor be found to exist only if it involves issues that would
govern trial proper, grounds for dismissal that were waived cannot be taken up by
the court.

3. When a pleader fails to set up a counterclaim or a cross-claim through oversight,

inadvertence, excusable negligence or when justice requires, (JOIE) he may, by leave
of court, set up the counterclaim or cross-claim by AMENDMENT BEFORE
JUDGMENT.

An after acquired counterclaim or cross-claim is merely permissive even if it arises

from or is connected with the transaction or occurrence constituting the subject
matter of the opposing partys claim. In such case, the claims may, with the
permission of the court, be presented as counterclaims or cross-claims by
SUPPLEMENTAL PLEADING BEFORE JUDGMENT or in a SEPARATE ACTION.

4. Final judgment is conclusive not only with respect to the matter directly adjudge
but also as to any other matter that could have been raised in relation thereto (i.e.,
compulsory counterclaim/cross-claim).

A more precise ground for MTD instead of res judicata (only applicable when there
is identity of COA) would be that the claim has been waived or otherwise
extinguished.

5. A claim for moral and exemplary damages for harassment suit is a compulsory
counterclaim on the original action subject of the claim. It must be set forth in
answer and not a separate action.

6. If the defendant fails to answer within the time allowed, 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.

In such case, the court shall proceed to render judgment granting the claimant such
relief as his pleading may warrant OR in its discretion, require the claimant to
submit evidence.

7. Reception of evidence may be delegated to the clerk of court who must be a

member of the Bar.
8. A motion to declare defendant in default must be set for hearing because it may
prejudice the rights of the adverse party, the latter should be given the chance to
oppose the motion.

The Court CANNOT declare the defendant in default MOTU PROPRIO, there must be
a motion by the plaintiff.

EXC. Cases governed by the Rule on Summary Procedure. Court is granted authority
to make such declaration motu proprio.

9. Effect of the order of default:

(1) Party in default shall be entitled to NOTICE of the subsequent proceedings but
shall NOT TAKE PART IN THE TRIAL

10. A party declared in default can testify on behalf of the non-defaulted defendants,
nothing in the ROC prohibits this.

11. Rule in case of partial default:

RQ for applicability: COMPLAINT MUST STATE A COMMON CAUSE OF ACTION

AGAINST ALL DEFENDANTS (i.e. solidary obligation)

Here, default judgment cannot be rendered, instead the court shall try the case
against ALL the parties upon the answer/s that were filed and evidence presented.
The parties in default cannot participate in the trial and are only entitled to notice.
They can testify for the non-defaulted parties.

Where RQ for applicability is ABSENT: default judgment t may be rendered (i.e. joint
obligation, since each obligation of each defendant is separate and distinct from one
another).

12. A judgment rendered against a party in default shall NOT EXCEED or be

DIFFERENT IN KIND from that prayed for NOR award unliquidated damages.

Where this rule is violated and the judgment has become final and executory, the
aggrieved party may file a petition for annulment of judgment against the erring
court. Jurisprudence recognizes this recourse based on being a violation of due
process.

13. Default judgments are NOT ALLOWED in actions for ANNULMENT,

DECLARATION OF NULLITY OF MARRIAGE, and LEGAL SEPARATION. If a
defending party fails to answer, the court shall order the prosecuting attorney to
investigate WON there is collusion between the parties. If none, the PA shall be
ordered to intervene and see to it that evidence submitted is not fabricated or
suppressed.

NB: Art. 49 & 60 of FC states that NO judgment shall be BASED ON A STIPULATION

OF FACTS or CONFESSION OF JUDGMENT.
14. The SC has held that a defendants answer should be admitted where it was filed
before he had been declared in default as default judgments are generally disfavored.
Esp where answer contains valid defenses.

15. Remedies of party who fails to file an anwer and/or is declared in default

(1) BEFORE NOTICE/ORDER OF DEFAULT file a motion to admit answer giving

justifiable cause for delay

(2) AFTER ORDER OF DEFAULT BUT BEFORE JUDGMENT file a motion under
oath to set aside order of default based on Fraud, Accident, Mistake or Excusable
negligence (FAME). Defendant must also have a meritorious defense.

(3) AFTER JUDGMENT BUT BEFORE IT BECOMES FINAL file a motion for new
trial based on FAME. If denied, appeal w/n 15 days
(4) AFTER JUDGMENT BECOMES FINAL file a petition for relief from judgment
(Rule 38); OR special civil action for certiorari (based on GAD, defendant was
improvidently or wrongly declared in default)

(5) AFTER PERIOD TO FILE RELIEF HAS LASPED file a petition for annulment of
judgment based on extrinsic fraud

15. A motion for reconsideration on an order of default need not be accompanied by

an affidavit of merits. Appeal is not the proper remedy for a default judgment
because the party in default was not able to present any countervailing evidence
before the lower court.

16. A defendant against who a default judgment was rendered is not barred on
appeal from challenging the judgment for being CONTRARY TO LAW AND
EVIDENCE (take note, not based on the impropriety of declaration of default or
default judgment as a matter of procedure, i.e., unauthenticated evidence or
hearsay)

17. Failure to file answer under the Rules of Court and the Rules on Summary
Procedure is different:

-different governing law (duh)

-different reglementary period to answer (15, 10)

-motion to declare defendant in default is PROHIBITED under RSP, instead MOTION

TO RENDER JUDGMENT is filed by plaintiff

-Under RSP Court can render judgment motu proprio in favor of the plaintiff, ROC
prohibits this

-Under RSP Court cannot require plaintiff to submit evidence but should just render
judgment as may be warranted by complaint, under ROC court can either do the
same or require the plaintiff to submit evidence
RULE 10: Amended & Supplemental Pleadings

1. Formal amendments may be corrected by the court an any stage of the action, at
its initiative or on motion, PROVIDED no prejudice is caused thereby to the adverse
party. Substantial amendments may be made only UPON LEAVE OF COURT unless
amendment is a MATTER OF RIGHT.

2. Amendment is a MATTER OF RIGHT if done (1) once (2) at any time BEFORE A
RESPONSIVE PLEADING IS SERVED. In case of reply, any time within 10 days after it
is served. When amendment is a MOR, no need to file motion to admit it. It is the
MINISTERIAL duty of the Court to accept the amendment. Amendment must just be
immediately filed. If the Court refuses an amendment as a MOR, the party may avail
of mandamus.

*an answer is a responsive pleading to a complaint, a reply is a responsive pleading

to an answer

*a motion to dismiss is NOT a responsive pleading, hence the complaint may be

amended substantially as a matter of right even after the MTD is filed

Where amendment is a MOR or granted by the Court, it supersedes the original

complaint

3. EXC. When pretrial order is issued, the answer may no longer be amended as a
MOR if such amendment would raise an issue not included in the pretrial order.

4. If the purpose of the amendment is to confer jurisdiction upon the court then the
court CANNOT admit the amended complaint. A Court, which has no jurisdiction in
the original complaint, is without jurisdiction to admit an amendment complaint.

*this applies strictly when the amendment attempts to confer jurisdiction and NOT
when it simply reflects an amendment by operation of law which had already
occurred or nunc pro tunc amendments. (i.e., amendment by adding demand to
vacate in an action for ejectment or unlawful detainer)

*this rule does NOT apply where amendment is the MATTER OF RIGHT. In such case,
the amendment must be admitted. Court has no power or discretion to deny it.

5. A complaint whose cause of action has NOT YET ACCRUED CANNOT BE CURED
OR REMEDIED by an amended pleading alleging existence or accrual of the cause of
action while the case is pending. This applies even when AMENDMENT IS A
MATTER OF RIGHT and EVEN IF THE MOTION TO DISMISS WAS NOT YET
RESOLVED. Action can be dismissed for failure of the complaint to state of action
(i.e., complaint for a debt which was not yet due when the complaint was filed).

*same rule applies to SUPPLEMENTAL pleadings.

6. Where some but not all of the defendants have answered, the plaintiff may still
amend the complaint as a MOR as against the NON-ANSWERING defendant/s.
7. An amendment MAY substantially alter the cause of action/defense or the theory
of the case when the amendments sought to be made shall serve the higher interest
of justice, prevent delay and secure a just, speedy and inexpensive disposition of
every action or proceeding (in the interest of substantial justice). There must be no
intent to delay

*This is largely left to the discretion of the court.

8. When issues not raised by the pleading are tried with the express or implied
consent (bc of failure to object) of the parties, they shall be treated in all respects as
if they had been raised in the pleadings.

The amendment of the pleadings as may be necessary to CONFORM TO THE

EVIDENCE and to raise these issues may be made UPON MOTION of any party AT
ANY TIME, even AFTER JUDGMENT. The failure to amend the pleading WILL NOT
AFFECT the result of the trial of the issue. This applies only where there is NO
OBJECTION.

Even if objection is made, the court may in its discretion grant the plaintiff a
continuance in order to amend the complaint so as to raise the issue of lack of
spousal consent if the (1) presentation of the merits of the action and (2) the ends of
substantial justice, will be subserved thereby. Once pleading is amended, Court can
allow presentation of evidence on the new issue/s.

An amendment to conform to evidence happens when evidence on an issue not in

the pleadings is introduced without objection. If there is objection, court must grant
a continuance to amend the complaint based on (1) and/or (2) above. In most cases,
judges would grant continuances, allowing the amendment of the complaint. It is a
relatively flexible rule.

9. In CRIMINAL cases, substantial amendment of the information can no longer be

made after the accused has PLEADED. EVEN IF NO objection was made during the
trial to evidence presented that was not alleged in the information.

10. A supplemental complaint is NOT proper where the supervening even was cited
not to reinforce or aid the original demand but to CHANGE THE RELIEF sought. In
such case, a motion to admit an amended complaint is the proper recourse.

11. A supplemental complaint should merely aid or reinforce the original cause of
action, not change it or confer one when there was none at the time of the filing of
the original complaint.

12. An amended pleading supersedes the pleading that it amends. Admissions in the
superseded pleading are merely EXTRAJUDICIAL ADMISSIONS and still need to be
OFFERED IN EVIDENCE if a party decides to use them.
Rule 12: Bill of Particulars

1. Effect of non-compliance or insufficient compliance with order requiring filing of

a BOP: Court may order the striking out of the pleading or the portions thereof to
which the order was directed or make such other order as it deems just. It may also
dismiss the complaint.

2. Filing of a motion for BOP stays the period to file responsive pleadings

Rule 13: Filing & Service

1. If any party has appeared/represented by counsel, service upon him shall be

made upon his counsel and not the party himself UNLESS court so orders.
Consequently, the reglementary period should be reckoned from service upon the
counsel.

*where the counsel has ACTUAL notice before formal notice, reglementary period is
reckoned from the former.

NB: A request for admission MUST be served on the PARTY HIMSELF, NOT his
counsel.

2. Where a party is represented by SEVERAL counsels, notice to one is sufficient, and

binds the party. Notice to one counsel is equivalent to notice to all counsel even as
to a counsel who has not received it yet.

3. As between OSG and his deputized counsel, notice to the former is sufficient and
binding, the OSG remains the principle counsel entitled to be furnished copies of all
court orders, notices, and decision.

4. Every judgment, resolution, order, pleading subsequent to the complaint, written

motion, notice, appearance, demand, offer of judgment or similar papers shall be
filed with the court and served upon the parties affected.

5. Ex parte written motions are still required to be served on the parties affected,
but they do not need to be set for hearing..

EXC. EP motions for: preliminary attachment, TRO, replevin or receivership where

SERVICE WOULD COMPROMISE THE EFFICACY of these provisional remedies.

6. Pleadings may be filed only PERSONALLY, by REGISTERED MAIL, or if the two are
unavailable substituted service to the COC. They CANNOT be filed by ORDINARY
mail (EXC. No registry service is available in the locality of either the sender or the
addressee)

7. A party summoned by publication who failed to appear in the action shall be

served the judgments, final orders or resolutions against him likewise by
publication. Rule is the same with a party served with summons who subsequently
absconds and his present address is unknown.

8. Counsel of parties should devise a system to ensure prompt receipt of official

communications, they cannot rely on a third persons negligence (i.e., security
guard-valid and binding service)

9. As regards filing and service, WHENEVER PRACTICABLE these shall be done

PERSONALLY. A resort to other modes must be accompanies by a WRITTEN
explanation why the s/f was not done personally, EXC. Papers emanating from the
court.

10. The Court may consider the paper as NOT filed in case of non-compliance with
requirement of personal filing, and explanation for failure. This is DISCRETIONARY
upon the Court (practicability of personal service must be considered).

Where it is clear that personal service is not practicable, a written explanation might
even be superfluous. The rigid application of the Rule must be relaxed in the interest
of substantial justice.

11. An order of general default is binding upon the whole world. In order that a
notice of ils pendens may be annotated at the back of the title, there must e a
pending case involving the land. Once the order becomes final and executory.
application for lis pendens must be denied.

12. Notice of lis pendens may be cancelled in the ff cases:

(1) Upon order of the court after proper showing that the notice is for the purpose
of molesting the adverse party, OR that it is not necessary to protect the rights of the
party who cause it to be recorded

(2) By ROD, upon verified petition of the party who caused its registration

(3) After final judgment in favor of the defendant or other disposition of the action
such as to terminate finally all the rights of the plaintiff in and to the land/bldg.
involved, upon registration with the ROD of a certificate of the COC in which the
action or proceeding was pending stating the manner of disposal thereof.

13. A notice of lis pendens may be registered in respect of UNREGISTERED property.

The NLP shall be recorded by annotation in the Registration Book.

Rule 14: Service of Summons

1. By service of summons, the court acquires jurisdiction over the person of the
defendant (EXC. Extraterritorial service of summons-only jurisdiction over the res is
acquired). A defendants voluntary appearance is equivalent to service of summons.
2. Summons is issued upon the filing of the complaint and the payment of the
requisite legal fees. COC shall issue the corresponding summons to the defendants.

3. A judgment by default may be rendered even without reception of evidence.

4. Copy of the complaint and an order for appointment of guardian ad litem, if any,
shall be attached to the original and each copy of the summons.

5. A defect in the summons (i.e., complaint was not attached) will not extinguish the
obligation of the defendant, based on the summons, to appear in Court and in case of
failure, the defendant may be declared in default. Instead the defendant must
apprise the court of the defect and the court can furnish him a copy of the complaint
and give a new time to answer.

6. Summons to serve the amended complaint is only necessary when the amended
complaint changes the cause of action or introduces a new cause/s of action. (i.e.,
amendment in amount prayed for in a case for collection of sum of money)

7. Where defendant voluntarily appeared in court (by filing MTD/answer/extension

to file answer), there is NO NEED for summons to serve the amended complaint,
EVEN IF the amended complaint CHANGES THE COA OR INTRODUCES NEW COA.

*in 6 & 7, the amended complaint can simply be filed and served as in the case of
any other pleading

8. Summons must be served on an additional defendant impleaded in a later

pleading.

9. A stenographer or court interpreter cannot serve summons, they are not proper
court officers. A process server may serve summons.

10. Service of summon is ministerial in character, it may be made at night or on a

Sunday or holiday.

11. Summons can be served personally, or by substituted service, summons by

publication or extraterritorial service of summons.

Whenever practicable, the summons shall be served by handing a copy thereof to

the defendant in person, or, tendering it to him if he refuses to receive/sign for it.

If for justifiable causes, the defendant cannot be served within a reasonable time,
substituted service may be effected by (a) leaving copies in residence with a person
of suitable age and discretion OR (b) leaving in office with competent person in
charge.

Rule 16: Motion to Dismiss

Grounds:
(1) Lack of subject matter jurisdiction

(2) Lack of personal jurisdiction

(3) Plaintiff has no legal capacity to sue

(4) Pleading fails to state a cause of action

(5) Condition precedent for filing claim not complied with

(6) Improper venue

(7) Lis Pendens

(8) Res Judicata

(9) Prescription
(10) Claim is unenforceable under the statute of frauds

(11) The claim has been paid, abandoned, waived or otherwise extinguished.

1. MTD shall be filed within the time for filing an answer but before the answer is
filed.
EXC. Where ground is (1) (7) (8) and (9), and such grounds appear from the
pleadings or evidence on record, (court can dismiss MP) the MTD may be filed even
AFTER an answer has been filed.

2. Omnibus Motion Rule:: Such grounds which are not pleaded are DEEMED
WAIVED. EXC. (1), (7), (8), (9).

3. Generally the court cannot dismiss a case motu proprio. EXC. When it appears
from the pleadings or evidence on record that (1), (7), (8), (9), the court shall
dismiss the claim; AND in Ejectment cases & cases governed by the rule on summary
procedure, this applies to ALL grounds for MTD, this should be based on the Courts
examination of the allegations in the complaint and evidence attached.

4. A complaint cannot simply be dismissed because the allegations specified are

vague or indefinite provided that it states a cause of action. In such case, a motion
for BOP or to avail of a mode of discovery is more appropriate. (Galeon v. Galeon)

5. Examples of lack of legal capacity to sue: an executor or administrator whose

resignation has been accepted by probate court, unincorporated association, a
foreign corporation doing business in the PH without a license (A foreign
corporation NOT doing business in the PH without a license, HAS legal capacity to
sue), a corporation after its dissolution and the lapse of the 3-year grace period
under CC.
Where plaintiff is not the real party in interest, the ground for dismissal is failure to
state a cause of action. NOT lack of legal capacity to sue.

6. An essential condition to be considered as doing business in the Philippines is the

actual performance of specific commercial acts within PH territory. Export
transactions are excluded. The perfection and the consummation of the transactions
must be done inside the Philippines.

7. Examples of failure to state COA: complaint to collect on a debt which is not yet
due (even if plaintiff alleges financial difficulties, such does not make obligor lose
the benefit of the period Art 1198 CC), other premature causes of action,

8. Failure to state a cause of action relates to the failure of the allegations in the
pleading to state a cause of action, while lack of cause of action relates to a failure of
proof, that is, the plaintiffs failure to prove by evidence his allegations relating to
his cause of action. The former would not bar the re-filing of the complaint, while a
judgment for defendant on the latter would amount to res judicata.

9. By filing a MTD based on (4), the defendant does not admit the allegations in the
complaint. What happens is just a hypothetical admission for the limited purpose of
determining whether the complaint sufficiently states a COA. If MTD is denied, the
defendant can still refute/go over the allegations in the complaint.

Admissions are merely hypothetical, not judicial, and the court cannot decide the
case on the merits based on the hypothetical admissions.

10. The court can conduct a preliminary hearing where the affirmative defense was
raised in the answer based on (4) but the court cannot receive evidence aliunde as it
must resolve the motion SOLELY on the basis of the ALLEGATIONS in the complaint
& annexes.

11. For dismissal based on (7), three RQs must concur: identity of the parties,
substantial identity of the COA and the relief sought, AND result in one action is
determinative of the second in any event and regardless of which party prevails.

12. In a MTD based on (7), there is no requirement that there be a prior pending
action, just a pending action. Hence, an MTD may be filed in either suit, not
necessarily in the earlier or later one.

13. Examples of (7): first case is for declaration of nullity, second case is custody of
minor child (former automatically includes resolution of the latter case pursuant to
Arts. 49&50 FC-same parties and same subject matter; second should be dismissed
as first is the more appropriate action to resolve the issues); first is for declaratory
relief on subsistence of lease contract, second is action for unlawful detainer (any
can be dismissed).

14. Examples of dismissal based on (11): a creditor files a case against one of three
of joint debtors but without justifiable cause, fails to comply with courts order to
implead the other two joint debtors as necessary parties (there is a deemed waiver
of the claim against the parties not included S9R3).

15. Laches can be a ground for MTD.

16. Prior demand is not a condition precedent for filing an action for specific
performance (i.e. collection suit) because the filing of the action for collection may
itself be the demand required by law (1169 CC provides that demand can be
extrajudicial or judicial).

17. In a suit EXCLUSIVELY among family members, earnest efforts at compromise is

a condition precedent to filing the action. Rule does not apply where some parties in
the action are not family members (i.e. in laws). Rule applies only to ordinary civil
actions or suits, not to special proceedings (i.e. petition for judicial settlement of
estate)

In such cases, the allegation in the complaint as well as the certification to file action
by the Brgy. Chairman is sufficient compliance.

Requirement of barangay conciliation does not apply where the dispute involves
real property located in a different city or municipality.

18. In the hearing of a MTD, the parties shall submit their evidence on the questions
of fact involved, affidavits cannot be used and are not sufficient to prove factual
questions.

19. The Court need not issue its resolution immediately after the hearing but may
for justifiable reason defer the resolution as when the court needs time to study the
matter. The Court however shall not defer the resolution of the motion for the
reason that the ground relied upon is not indubitable (not certain or
unquestionable). If the ground is raised as an affirmative in the answer, the court
can also defer the resolution after trial.

20. Period to file an answer is within 15 days from receipt of summons. When an
MTD is filed, the running of the period for filing an answer is tolled until the
resolution of the motion. The remainder of the 15 day period shall run from the
order of denying of the MTD. If more than 5 days, + 1 to represent the day the MTD
was filed. Otherwise, just 5 days.

Where complaint is ordered amended by the court after filing of the MTD, a new
period of 15 days is granted after service of the amended pleading on defendant for
the answer. If there is no order and even if MTD has not yet been resolved, same
rule applies. There is no need to wait for resolution of the motion as the amendment
render it moot and academic.

If the amendment does NOT render the MTD moot, i.e. when the amendment is not
based on the ground in the MTD, resolution of the motion is necessary before period
to answer begins to run.
21. If motion to dismiss is granted, Plaintiff can refile the complaint. EXC. Dismissal
with prejudice such as (8), (9), (10) and (11).

22. All grounds for dismissal may be pleaded as an affirmative defense in the answer
if no MTD is filed. In such case, court can hold a preliminary hearing or defer its
resolution until after the trial. A preliminary hearing can only be held if no motion to
dismiss had been filed, or if one is filed, the trial court did not categorically resolve it
but merely deferred its resolution.

If the MTD was already filed and categorically denied, the trial court cannot conduct
a preliminary hearing on the affirmative defense on the same ground. This is
ordinarily litigated in the trial proper not a preliminary hearing. EXC. Where it is
clear that the second action is barred by res judicata.

23. Once an MTD is denied, the answer of the defendant may be raise the same
ground invoked in the MTD as an affirmative defense. An order denying an MTD is
merely an interlocutory order and cannot amount to res judicata.

The defendant CANNOT however raise in his answer another ground for MTD, as
the same is deemed waived. Unless ground is either (1), (7), (8), or (9). Defendant
may raise any other defense as well which is not among the grounds waived by non-
inclusion in the MTD.

24. Dismissals without prejudice cannot be appealed. Remedy would be re-filing or

certiorari. Dismissals with prejudice may be appealed, MR first.

Cases where order of dismissal is w/o prejudice:

(1) lack or defect in Certificate against forum shopping in pleadings

(2) Dismissal by plaintiff upon notice

(3) Dismissal by plaintiff upon motion

(4) Dismissal due to fault of plaintiff where court provides that the dismissal shall
be without prejudice

(5) dismissal for plaintiffs failure to appear at pre-trial or failure to file pre-trial
brief where court provides that dismiss is w/o prejudice

25. Riguera FN: Orders granting MTD are FINAL and NOT INTERLOCUTORY. Appeal
then may be a remedy regardless of the nature of the dismissal (w/ or w/o
prejudice).

26. Certiorari is n/a or prohibited under rules of summary procedure

Rule 17

Rule 19: Intervention

1. Intervention requires leave of court

2. An intervention cannot legally alter the nature of the action and the issues joined
by the original parties.
3. In cases for annulment, declaration of nullity or legal separation, the court shall
order the prosecuting attorney to intervene for the state in order to see to it that the
evidence submitted is not fabricated.

4.