CIVIL PROCEDURE
Notes on PLEADINGS
(Riano, 2011 ed.)
Olive Cachapero
Pleadings – written statements of
claims and defences
Purpose:
a.
Confer
jurisdiction – without which, judgment is void
b. Method by which issues
may be properly laid
c. Inform the court of the facts
in issue
d.
Notify
the opposite party of the facts so he may prepare
Construction of
pleadings:
·
ALL
pleadings shall be Liberally construed to do substantial justice
·
But
the party is strictly bound by the allegations, statements or admissions made
in his pleadings and cannot be permitted to take a contradictory position
Construction of
ambiguous allegations
Construed
strongly against the pleader. It is the pleader who selects the language used
and such ambiguities must be at his peril.
System of pleading in
the Philippines: Code
Pleading based on codified rules or written set of procedure
Pleadings allowed by the
Rules of Court
1.
Complaint
2. Answer
3. Counterclaim
4. Cross-claim
5. Third (fourth,
etc.)-party complaint
6. Complaint-in-intervention,
and
7.
Reply
Pleading allowed under
the Rules on Summary Procedure
1.
Complaint
2. Compulsory counterclaim
pleaded in the aswer
3.
Answers
thereto
Pleadings in the Rule of
Procedure for Small Claims Cases
·
Expressed
in specific forms
Example: see pages 261-262
How nature of the pleading
is determined:
By
the averments in it and not by its title
B. PART OF A PLEADING
1.
Caption
a) Name of the court
b) Title of the action -
Name of the parties whose participation shall be indicated
(plaintiff/defendant)
c) Docket number, if
assigned
2. Title of the action
3. Body
a) Designation of the body
of the pleading
o
Designation
of causes of actions (COA) – ex. First COA, 2nd COA
b) Allegations of the
party’s claims or defences
o
divided
into paragraphs and numbered, each paragraph containing a single set of
circumstances
o
Ultimate facts, not conclusions or
evidentiary facts
§ Methodical and logical
§ Plain, concise and
direct
4. Relief
o
Sounght
from the court and to which he believes he is entitled
o
“prayer”
o
May
include a general prayer for such
further or ther relief as may be deemed just or equitable
o
The
court may grant relief warranted by the allegation/facts and the proof even if
it is not specifically sought by the injured party
o
Note: It is the material
allegations, not the prayer, which determines the relief
5.
Date
of pleading
Allegations in an
environmental case
a. Complaint must state
that it is an environmental case
b. Stating the law involved
Signature and address
Every
pleading must be signed by:
a. Plaintiff, or
b. his counsel
Stating
in either case his address (not post
office box address).
·
Absence
of a proper notice to the court of a change of address, service upon the
parties must be made at the last address of their counsel of record
Effects of an unsigned
pleading
No
legal effect
Remedy:
Pleader
to corret the deficiency if:
a.
Allowed
by the court and
b.
If
pleader shows that the failure to sign was due to mere inadvertence and not to
delay the proceedings
Significance of the
signature of counsel
Certificate by the counsel that:
a) he has read
the pleading,
b)
that to the best of his knowledge,
information and belief there is good ground to support it, and
c)
that it is not interposed for delay
Note: Signature cannot
be delegated to a nonlawyer, otherwise void and cannot be cured or ratified.
When counsel is subject
to disciplinary action in connection with pleadings
- when he deliberately files an unsigned pleading;
- when he signs
a pleading in violation of the Rules;
- when he alleges in the pleading scandalous or indecent matter; or
- when he fails
to promptly report to the court a change of his address
VERIFICATION
|
GR: Pleadings need not
be under oath, verified or accompanied by affidavit
E: When so required
by law or a rule
How a pleading is verified
By an
affidavit declaring:
- the affiant has read
the pleading, and
- that the allegations therein are true and correct of his personal
knowledge or based on authentic records
Substantial
Compliance: when one who has an 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
Significance of a verification
- Assurance that the allegations are true and correct
and not the product of the imagination or a matter of speculation
- That the pleading is filed in good faith
Effect of lack of verification: Treated as unsigned pleading
- Noncompliance with verification reuirements –
verification is not proper
Example: based
on “information and belief” or upon “knowledge, information and belief”
- Absence of verification
Note: Absence
or noncompliance is only formal, not jurisdictional hence it is not fatally
defective.
Remedy: Court may order its submission or correction by reuiring
an oath. This is to secure substantial justice.
OTHER REQUIREMENTS:
1. Counsel’s professional tax receipt number (PTR)
2. IBP official receipt number indicating its date of issue
3. Roll of Attorney’s number
4. MCLE Certificate of Compliance or Certificate of
Exemption
Note: Noncompliance
with these reuirements warrants:
a.) Disciplinary action
b.) Contempt of court
c.) Pleading will not be acted upon, dismissal of the case
and the expunction of the pleading
CERTIFICATION AGAINST FORUM
SHOPPING
|
The certification
against forum shopping is a sworn statement in which the plaintiff or
principal party certifies in a complaint or initiatory pleading to the
following matters:
a) that he has not
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)
that if there is such other pending
action or claim, a complete statement of the present status thereof; and
c) 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 5 days
therefrom to the court wherein his aforesaid complaint or initiatory pleading
has been filed
Nature: Mandatory,
but not jurisdictional
- Applies tospecialcivil actions, subject to specific
rules
Example: Every
petition for certiorari sall be accompanied by a sworn certification of
non-forum shopping
There is forum shopping where there exist:
a) identity of parties, or at least such parties as
represent the same interests in both actions;
b) identity of rights asserted and relief prayed for, the
relief being founded on the same facts; and
c) the identity of the two preceding particulars is such
that any judgment rendered in the pending case, regardless of which party is
successful would amount to res judicata.
What is avoided:
1. Multiplicity of suits
2. Abuse of court processes
3. Congestion of dockets
4. Embarrassing situation of courts
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 for dismissal 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
judicata
Party/counsel committing
wilful and deliberate of forum shopping
1.
Warrants direct contempt
2.
Administrative sanctions
3.
Ground for summary dismissal of the case WITH prejudice
Note: Where the reliefs sought in
the two actions are DIFFERENT, there is NO forum shopping even if the parties
in the actions are the same
Examples:
- Administrative proceeding + judicial/court
proceeding = Forum Shopping
- Ordinary appeal to the CA + Petition for certiorari
in the SC = Forum Shopping
Note: There
could be forum shopping when multiple cases are filed with different prayers
but are actually based on the same COA. (see ex.pg. 278)
Who executes the certification against FS
GR: The plaintiff or
principal party, not the counsel.
Ø Principal party because the certification requires
personal knowledge by the party who executed the same, otherwise, it would
cause the dismissal of the petition.
Ratio: 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.
Note: A
certification signed by counsel is a defective certification and is a valid
cause for dismissal. Certification BY THE COUNSEL is no
certification at all.
Exception:
If, 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.
Rule
if there are several plaintiffs/petitioners:
GR:
All must sign otherwise those who did not will be dropped as
parties
E:
Substantial compliance as when the plaintiffs:
a) share a
common interest and
b) invoke
a common COA or defense, signature of only one of them is substantial
compliance with the Rule.
Example:
(see pgs. 282-284)
·
Parties were abroad hence it was reasonable to exempt them
from compliance with the requirement of personal execution of the certification
against forum shopping
·
There were instances where the SC disregarded the absence of
the certification in the interest of substantial justice
·
Common interest:
o
spouses sued jointly
o
husband signed the petition involving the conjugal residence
of the spouses
o
signing of one of all the other petitioners being all
relatives and co-owners of the properties in dispute
o
signed by a “principal party”
Note:
Substantial compliance will not be valid if dishonesty attended the signing of the
certification. (ex. Allegedly signed by
a person already dead)
In
an appeal by certiorari to the SC
GR:
Lack of certification against forum shopping is generally NOT
curable by the submission thereof after the filing of the petition
E:
Presence of special circumstances or compelling reason that
justified the relaxation of the rule requiring verification and certification
Signing
of a person on behalf of a corporation unaccompanied by a proof of authority
Ø the
Court allowed this and permitted subsequent submission of proof of authority
Signing
the certification when the plaintiff is a juridical entity
Through properly authorized
persons (i.e. lawyer of the
corporation)
As long as he :
a. is duly
authorized by the corporation and
b. has
personal knowledge of the facts required to be disclosed in the certification
against forum shopping
Pleadings
requiring certification against forum shopping
1. Complaint
and
2. other
initiatory pleadings
o
Permissive counterclaim
o
Cross-claim
o
Third (fourth, etc.)-party complaint
o
Complaint-in-intervention
o
petition
NOT: Compulsory
counterclaim – because it cannot be the subject of a separate and independent
adjudication
Effects
of non-compliance with the rule on certification against forum shopping
(Failure to submit)
General
Rule:
a. not
curable by a mere amendment
b. ground
for dismissal of action upon motion and after hearing (NOT motu proprio)
Dismissal:
GR:
Dismissal WITHOUT prejudice (presumption)
E:
Unless the order of dismissal provides otherwise
Ø Complaint
dismissed for failure to comply with the required certification is NOT
appealable.
Ø Remedy: Rule
65
Note:
Compliance with the certification against forum shopping is separate
from and independent forum shopping as a ground for dismissal, A complaint
may be dismissed for lack of required certification even if the party has not
committed forum shopping.
Exception:
a.
Unless there is a need to relax the Rule on
the ground of substantial compliance or
b.
there is the presence of special
circumstances or compelling reasons.
Effect
of wilful and deliberate forum shopping
1. ground
for summary dismissal WITH prejudice– no need more motion to dismiss and
hearing
2. direct
contempt
3. administrative
sanctions
Not
wilful and deliberate:
1. Dismissal
WITHOUT prejudice, on the ground of either litis
pendentia or res judicata
Effect
of submission of a false certification
1. Indirect
contempt of court WITHOUT prejudice to the corresponding administrative and
criminal sanctions
Effect
of non-compliance with the requirements of the certification
1. Indirect
contempt of court WITHOUT prejudice to the corresponding sanctions
Verification
|
Certification against Forum Shopping
|
Noncompliance: not fatal. May
be corrected/amended
|
Noncompliance: fatal. Not
curable by amendment UNLESS there is the presence of special circumstances or
compelling reasons.
|
C. ALLEGATIONS IN PLEADINGS
|
Ultimate facts refer to the essential
facts of the claim.
Ø
A
fact is essential if it cannot be stricken out without leaving the
statement of the cause of action inadequate .
Ø
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.
Ø
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.
Ø
They
are the principal, determinate, constitutive facts, upon the existence of
which, the entire cause of action rests.
The complaint, in stating the cause of action,
should not contain sham, false, redundant, immaterial, impertinent, or
scandalous matters. These matters may be stricken out upon motion made
a)
by
a party before responding to a pleading or
b)
within
twenty (20) days after service of the pleading upon him where no responsive
pleading is permitted by the Rules, or
c)
upon
the court’s own initiative at any time
Conditions precedent -
conditions precedent as matters which must be complied with before a cause of
action arises.
Note: When a claim is subject
to a condition precedent, the compliance of the same must be alleged in the
pleading.
Examples
of conditions precedent:
a) A tender of payment is
required before making a consignation
b)
Exhaustion
of administrative remedies is required in certain cases before resorting to
judicial action
c)
Prior
resort to barangay conciliation
proceedings is necessary in certain cases
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 of the Philippines). Such efforts are not required in
special proceedings (Bar 2011).
e)
Arbitration
may be a condition precedent when the contract between the parties provides for
arbitration first before recourse to judicial remedies.
Effect of
failure to comply with a condition precedent
Ground for motion to dismiss: That a condition precedenr fr filing the
claim has not been complied with
PLEADING A
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. There is no need to
allege matters showing the jurisdiction to render the judgment or decision
Under Sec.
3(n) of Rule 131, there is a presumption, though disputable, that “a court
or judge acting as such, whether in the Philippines or elsewhere, was acting in
the lawful exercise of jurisdiction.”
Pleading an official
document or act
·
In
pleading an official document, it is sufficient to aver that the document was
issued in compliance with law.
·
respect
to an official act, it is likewise sufficient to allege that the act was done
also in compliance with law.
Pleading capacity to sue or be sued
·
Facts
showing the capacity of a party to sue or be sued must be averred.
·
If
a party is suing or sued in a representative capacity, his authority
must also be averred.
·
If
a party is an organized association of persons, its legal existence must
likewise be averred
Pleading fraud, mistake or condition of the mind
Particular
Averments
The circumstances constituting such fraud or
mistake must be stated with particularity:
a. Fraud
b.
mistake
Ø the complaint must state with particularity
the fraudulent acts of the adverse party.
Ø These particulars which would necessarily
include the specific acts of fraud committed against the plaintiff would help
apprise the judge of the kind of fraud involved in the complaint.
Ø Note that under the Civil Code of the
Philippines, there are various types of frauds, each of which has its own legal
effects (See Arts. 1170, 1330, 1390, 1344, 1359, 1381 of the Civil Code of
the Philippines).
Ø The same is true with acts constituting mistake
(See Arts. 1331-1334).
General
Averments
a. Malice,
b.
intent,
c.
knowledge or
d. other conditions of the mind of a person may
be averred generally.
Reason: It is difficult to state the particulars constituting these
matters.
PLEADING
ALTERNATIVE CAUSES OF ACTIONS OR DEFENSES (Sec. 2, Rule 8)
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.
La Mallorca v. Court of Appeals
Here, the plaintiffs were allowed to sue based
upon a quasi delict theory and in the alternative, upon a breach of contract,
where the death of their child occurred when they were no longer on board the
bus of the common carrier but at the time the father was in the process of
retrieving the family’s personal belongings from the bus. Although ultimately
the case was ruled to be a breach of contract of carriage, the procedural
device of pleading alternative causes of action was strongly affirmed in this
case.
Note: The rule does not
require that all of the alternative causes of action be sufficient for the
plaintiff to be entitled to relief. It is enough that one of them if made
independently would be sufficient to support a cause of action. (pg. 295)
Ø
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.
Alternative
defenses
Example: payment or
prescription. This rule is consistent with the omnibus motion rule
PLEADING
ACTIONABLE DOCUMENTS
|
Actionable document – written instrument or a
document relied upon by either the plaintiff and the defendant
Examples:
·
promissory note
·
deed of mortgage
·
receipt of payment
Whenever
an actionable document is the basis of a pleading, the rule specifically
directs the pleader to:
a.
set
forth in the pleading the substance of the instrument or the document, and to
attach the original or the copy of the document to the pleading as an exhibit
and which shall form part of the pleading; or
b.
with
like effect, to set forth in the pleading said copy of the instrument or
document
Note: applies only to
actionable documents
How to contest an actionable document; oath required (Bar
2010)
a. specifically denying the genuineness and due
execution of the document under oath; and
b. (b) setting forth what he claims to be the
facts (Sec. 8, Rule 8, Rules of Court).
The denial must be coupled with an oath.
·
Oath = verified
A mere
specific denial of the actionable document is insufficient.
The absence of an oath will result in
the implied admission of the due
execution and genuineness of the document
When an oath is not required (Bar 1987)
1. When the adverse party does not appear to be
a party to
the instrument
2. When compliance with an
order for an inspection of the original instrument is refused
Meaning
of admission
Meaning of admission of the genuineness and due execution of an
instrument
a) is meant that the party whose signature it
bears admits that he signed it or
that it was signed by another for him with his authority;
b)
that at the time it was
signed it was in words and figures exactly as set out in the pleadings
of the party relying upon it;
c)
that the documents was delivered;
and
d)
that any formal
requisites required by law, such as a seal, an acknowledgment, or revenue
stamp, which it lacks, are waived by him.
Defenses cut-off by the admission of genuineness and due
execution
Waived:
a. defenses of forgery of the document,
b.
lack of authority to
execute the document,
c.
that the party charged
signed the document in some other capacity than that alleged in the pleading,
or
d.
that the document was
never delivered
e.
that
the document was not in words and figures as set out in the pleadings
Defenses not cut-off by the admission of genuineness and due
execution
may be interposed despite the implied
admission of the genuineness and due execution of the document:
a) payment or non-payment;
b) want of consideration;
c) illegality of consideration;
d) usury; and
e) fraud.
Ø These defenses are not inconsistent with the
admission of the genuineness and due execution of the instrument and are not
therefore, barred
f)
prescription,
g)
release,
h)
waiver,
i)
statute
of frauds,
j)
estoppel,
k)
former
recovery or
l)
discharge
in bankruptcy are not likewise barred
Ø these defenses having no direct relationship
to the concepts of‘genuineness and due execution.
D. FILING AND SERVICE OF PLEADINGS, JUDGMENTS
AND OTHER PAPERS IN CIVIL CASES
|
Filing – presenting the pleading/other papers to the
clerk of court
Service – act of providing a party with a copy of the
pleading/paper
Upon
whom service shall be made
GR: Upon the counsel (if the party is represented
by a counsel). Otherwise, null and void.
E: Upon the party, if:
a. not represented by a counsel
b. if service upon the party himself is ordered
by the court
c. When the technical defect in the manner of
notice is waived
Service
upon the parties’ counsels of record
tantamount to service upon the parties
themselves, but service upon the parties themselves is not considered service
upon their lawyers. Reason: the parties, generally, have no formal
education or knowledge of the rules of procedure, specifically, the mechanics
of an appeal or availment of legal remedies; thus, they may also be unaware of
the rights and duties of a litigant relative to the receipt of a decision. More
importantly, it is best for the courts to deal only with one person in the
interest of orderly procedure — either the lawyer retained by the party or the
party himself if he does not intend to hire a lawyer
MANNER OF
FILING
1.
Personal
– by presenting the original copy of the pleading, notice, appearance, motion,
order or judgment personally TO THE CLERK OF COURT
Ø
Clerk
of court shall indicate on the pleading filed, the date and hour of filing
2.
By
registered mail
Date of filing:
a) The date of mailing as
shown by the post office stamp on the envelope, or
b) Registry receipt
o
WHICHEVER
IS EARLIER
o
Must
be duly authenticated by the court
How to
prove filing
1.
Personal
Filing
a) by its existence in the
record of the case
b) If not in the reord, by
the written or stamped acknowledgment of its filing by the clerk of court on a
copy of the same
2.
By
registered mail
a) by the registry receipt and
b) by the affidavit of the
person who did the mailing, containing:
i.
a
full statement of the date and place of depositing the mail in the post office
in a sealed envelope addressed to the court,
ii.
with
postage fully prepaid, and
iii.
with
instructions to the postmaster to return the mail to the sender after ten (10)
days if not delivered
Papers required to be filed and served
a)
judgments,
b)
resolutions,
c)
orders,
d)
pleadings
subsequent to the complaint,
e)
written
motions,
f)
notices,
g)
appearances,
h)
demands,
i)
offers
of judgment, or
j)
similar
papers
MODES OF
SERVICE
a)
Personal
service - Preferred mode; shall be done personally, whenever possible
b)
By
mail
c)
Substituted
service – if personal service and service by mail cannot be effected
PERSONAL SERVICE
GR: Indispensable
requirement: Written explanation
Ø
If
another mode of service is used other than personal service, the service must
be accompanied by a written explanation
why the service or filing was not done personally.
E: Exempt from this
explanation are the service of papers emanating from the court.
d)
A
violation of this explanation requirement may be cause for the paper to be
considered as not having been filed. Pleading will be expunged.
e)
Example: “due to lack of manpower
to effect personal service” – valid
Personal
service is made by:
a)
delivering
a copy of the papers personally to the party or his counsel, or
b)
by
leaving the papers in his office
with his clerk or a person having charge thereof.
c)
If
no person is found in the office, or his office is not known or he has no
office, then by leaving a copy of the papers at the party’s or counsel’s residence, if known, with a person of
sufficient age and discretion residing therein between 8am to 6pm.
When
personal service is deemed complete: upon actal delivery
SERVICE BY
MAIL
1.
Registered mail – preferred
a)
by
depositing the copy in the post office,
b)
in
a sealed envelope,
c)
plainly
addressed to the party or his counsel at his office, if known, or otherwise at
his residence, if known,
d)
with
postage fully prepaid, and
e)
with
instructions to the postmaster to return the mail to the sender after ten (10)
days if not delivered
Deemed complete:
a)
upon
actual receipt by the addressee, or
b)
after
5 days from the ate he received the first notice of the postmaster, WHICHEVER
IS EARLIER
2.
Ordinary mail – only if no registry
service is available in the locality of the sender or the addressee
Deemed complete) upon expiration of 10
days after mailing, UNLESS the court otherwise provides.
Burden of proof if service is an issue: person
alleging tat the notice was served.
SUBSTITUTED
SERVICE
·
This
mode is availed of only when there is failure to effect service personally or
by mail.
·
This
failure occurs when the office and residence of the party or counsel are
unknown.
Substituted
service is effected by: delivering the copy to the clerk of court, with proof of
failure of both personal service and service by mail
When
substituted service is complete: at the time of delivery of the copy to the clerk
of court.
How to prove service (Bar 2011)
Proof of personal service shall consist of
the
1. written admission of the party served.
2.
It may also be proven by
the official return of the server, or
3.
the affidavit of the
party serving, containing full information of the date, place and manner of
service.
If the service is by ordinary mail, proof thereof shall consist of:
1. the affidavit of the person mailing of the
facts showing compliance with Sec. 7 of Rule 13
If service is by registered
mail,
the proof shall consist of:
1. Such affidavit of the
person mailing and
2. the registry receipt
issued by the mailing office. The registry return card is to be filed
immediately upon its receipt by the sender, or in lieu thereof the unclaimed
letter together with the certified or sworn copy of the notice given by the
postmaster to the addressee
E. KINDS OF PLEADINGS
|
1.
COMPLAINT
|
Complaint is the pleading alleging the plaintiffs’ COA (Sec. 3, Rule
6, Rules of Court).
Ø the names and residences of the plaintiff
and defendant must be stated in the complaint.
Filing of the complaint: the original must be presented to the clerk
of court personally or by registered mail
Payment of docket fees and acquisition of
jurisdiction
It is not the filing of complaint but the payment of docket
fees that vests a trial court with
jurisdiction over the subject matter or nature of the action.
Requirements in the payment of docket fees
All complaints, petitions, answers and similar pleadings must
specify the amount of damages being prayed for both in the body and prayer
Ø Such damages shall be considered in the
assessment of the filing fee
Ø Otherwise, pleading shall not be accepted
for filing or expunged
Note:
a.
Any
defect in the original pleading resulting in the underpayment of the docket fees cannot be cured by amendment (ex.
Reduction of claim)
b.
A
court acquired jurisdiction over a claim upon payment of correct docket fees
Exception to the payment of docket fees: liberal construction:
a. Nonpayment at the time of filing does
not automaticall cause the dismissal of the case, as long as the fee is
paid within the applicable prescriptive
period.
b. If the amount of the docket fees is insufficient,
jurisdiction is not automatically lost and the party filing shall be required
to pay the deficiency
Rule on payment of
appellate docket fees
Heirs of Reinoso Sr.
vs. CA
GR:
GR: (strict
compliance) Payment of
full docket fees within the prescribed period for taking an appeal is mandatory.
Ø The requirement of an appeal fee is not a mere technicality
of law or procedure and should not be undermined except for the most persuasive
of reasons.
Ø Non-observance would be tantamount to no appeal.
Note: (discretionary power to dismiss) Failure to pay the appellate court docket fee within the
prescribed period warrants only discretionary as opposed to automatic
dismissal of the appeal and that the court shall exercise its power to
dismiss in accordance with the tenets of justice and fair play and with great
deal of circumspection considering all
attendant circumstances.
E: (liberal construction) The court may allow payment of the fee within a reasonable
period of time, but in no case beyond the applicable prescriptive period.
Effect of failure to
pay docket fee on supplemental complaint
The trial court acquired jurisdiction over plaintiffs’
action from the moment they filed their original complaint accompanied by the
payment of the filing fees due on the same. The plaintiffs’ nonpayment of the
additional filing fees due on their additional claims did not divest the RTC of
the jurisdiction it already had over the case
Non-payment of
appellate docket fees
1.
Valid ground for dismissal of an appeal
2.
Appellate court does not acquire
jurisdiction over the subject matter of the action
3.
Decision sought to be appealed from
becomes FINAL and EXECUTORY
2.
ANSWER
|
Answer is a pleading in which a defending party sets forth his
defences. It may be an answer to a:
a. Complaint
b. Counterclaim, or
c. Cross-claim
d. Third-party complaint
e. Complaint-in-intervention
Defenses in the answer
1. Negative – when the material averments are SPECIFICALLY denied.
2. Affirmative
General denial: Considered an admission
SPECIFIC DENIAL
Ø Stated in the form of a specific denial
Kinds of specific denial (Bar 2011) (Sec. 10, Rule
8)
1.
Absolute denial
A
defendant must:
a)
specify
each material allegation of fact the truth of which he does not admit and,
b)
whenever
practicable, shall set forth the substance of the matters upon which he relies
to support his denial.
Example: “Defendant denies the
truth of the allegations in par. 7 of the complaint alleging that he owes the
plaintiff P450,000.00, the truth of the matter being that it is the Plaintiff
who owes the defendant the same amount.”
Note:
A denial of the allegations in each paragraph is
required. A blanket denial which
reads: “Defendant specifically denies all the material allegations of the
complaint,” is not a specific denial
but a general denial.
2.
Partial denial
Where
a defendant desires to deny only a part of an averment, he shall:
a)
specify
so much of it as is true and material and
b)
shall
deny only the remainder.
The defendant does not make a total denial
of the material allegations in a specific paragraph, he denies only a part of
the averment. He specifies that part the truth of which he admits and denies
only the remainder. Example: Defendant
admits the allegations in paragraph 5 but denies the allegation that…
3.
Denial by disavowal of knowledge
Where
a defendant is without knowledge or information sufficient to form a belief as
to the truth of a material averment made to the complaint, he shall so state,
and this shall have the effect of a denial.
·
Must be made
a. Sincerely,
and
b. In
good faith
Note:
When the defendant alleges having no knowledge or information
sufficient to form a belief as to the truth of the allegations of the other
party but such matters are plainly and necessarily within the defendant’s
knowledge, a claim of “ignorance or lack of information” will not be
considered as a specific denial.
Example of denial in bad faith, hence deemed
admission:
1.
Bad
faith: Mr. D signs a promissory note in favor of Mr. P. Since Mr. D
failed to pay despite demand, suit was brought against him. The complaint duly
pleaded the promissory note as an
actionable document. Mr. D denies the alleged promissory note by averring lack
of knowledge of the note. This averment appears to be one in bad faith and
shall be considered as an admission because it is absurd for Mr. D not to know
of the promissory note he himself signed (Bar 1993; Bar 1978).
2.
In an action to
foreclose a mortgage, a denial that the defendant is without any knowledge of
his having signed a deed of mortgage
when the facts and the actionable document forming the basis of the claim
incontrovertibly show that he so executed the document denied, is a denial in
bad faith.
A
denial is not specific simply because:
a.
it is so qualified by
the defendant.
b.
of the use of the word
“specifically”
c.
Merely uttering
“specific denial” is ineffective if the denial does not conform to the methods
of denial provided for by the Rules of Court.
Effect of absence of a specific denial
1.
Allegations
are deemed admitted – no more triable issue
2.
If
admissions appear in the answer - plaintiff may file a motion for judgment on
the pleadings under Rule 34
Judicial admission
·
An admission in a
pleading cannot be controverted by the party making such admission because
the admission is conclusive as to
him.
·
All proofs submitted
by him contrary thereto or inconsistent therewith should be ignored whether an
objection is interposed by a party or not
Judicial admission - made by a party in the course of the proceedings in the
same case, and does not require proof.
A party who desires to contradict his own
judicial admission may do so only by either of two ways:
a) by showing that the admission was made
through palpable mistake, or
b) that no such admission was made.
Purpose of specific denial
To make the defendant disclose the matters
alleged in the complaint which he intends to:
a)
disprove
in the trial
b)
rely
upon to support the denial
Negative pregnant is a negative implying also an affirmative
and which although is stated in a negative form really admits the allegations
to which it relates
Ø equivalent to admission
Ø (example, see Riano, 2011
ed. pg. 315)
When a specific denial must be coupled with an oath (Bar 2010)
GR: Negative
defense is sufficient if made in the form of a specific denial of the material
allegations in the pleading of the claimant
E: When a
specific denial must be coupled with an oath:
a)
Denial of
an actionable document (Sec. 8, Rule 8)
b)
Denial
of allegations of usury in a
complaint to recover usurious interest
Matters not deemed admitted by the failure to make a specific denial
a. The amount of unliquidated damages
b. Conclusions in a pleading which do not have
to be denied at all because only ultimate facts need be alleged in a pleading
c. Non-material averments or allegations are
not deemed admitted because only material allegations have to be denied
AFFIRMATIVE DEFENSES
Affirmative defense allege new matters which, while hypothetically admitting the
allegations of the pleading, would nevertheless prevent or bar recovery by the
claimant
·
NOT a denial of an
essential ingredient in the plaintiffs cause of action, but one which, if
established, will be a good defense, i.e., an “avoidance” of the claim.
Affirmative defences:
1.
fraud,
2.
statute of
limitations,
3.
release,
4.
payment,
5.
illegality,
6.
statute of frauds,
7.
estoppel,
8.
former recovery,
9.
discharge in
bankruptcy, and
10. any other matter by way of confession and
avoidance.
Note: Before an allegation qualifies as an affirmative defense, it
must be of such nature as to bar the plaintiff from claiming on his cause of
action.
When the answer asserts affirmative defenses, there is proper
joinder of issues which must be ventilated in a full-blown trial on the merits
and cannot be resolved by mere judgment on the pleadings.
2(a). DEFAULT
|
Default occurs hen the defendant fails to file his
answer within the reglamentary period.
Ø
Does
NOT occur from the failure to attend
pre-trial or trial
Ø
Issued
as a punishment for unnecessary
Ø
It is
error to declare a defendant a delay defendant in default where an answer has
already been filed.
Requisites before a party may be declared in default (Bar
1999)
(Memorize) MSFPNH
1. There must be a motion to declare the defending party
in default filed by the claiming party;
2. Summons has been validly and
previously served upon him;
3. The defending party must have failed to file his answer
within the reglementary period or within the period fixed by the court;
4. There must be proof of the failure to file the
answer;
5. The defending party must be notified of the motion to
declare him in default (Sec. 3, Rule 9, Rules of Court); and
6. There must be a hearing set for the motion to declare
the defendant in default – MANDATORY
No motu proprio declaration of default
A motion to declare the defending party must be filed by the
claiming party before a declaration of default is made by the court.
Ø The court has no authority to motu proprio declare
the defendant in default.
Ø the rules leave it up to the claiming party to protect his
or its interests
Before the defending party can be declared in default:
a) the claiming party must file
a motion to declare said defending party in default;
b) the defending party must be notified of the motion to declare him in default; and
c) the claiming party must prove
that the defending party has failed to answer within the period provided by the
Rules of Court.
Failure to file:
1.
Response
under the Rule of Procedure for Small Claims case – a motion to declare the
defendant in default is a prohibited motion
2.
An
answer under the procedure for environmental cases - a motion to declare the
defendant in default is a prohibited motion
Ø
Should
defendant fail to answer – motu proprio
declaration of default
3.
A return
under the writ of amparo – court shall proceed to hear the petition ex parte
4.
A return
under the rule on the writ of habeas
corpus - a motion to declare the defendant in default is a prohibited
motion. court shall proceed to hear the petition ex parte
5.
Answer
under the Revise Rules on Summary Procedure – court motu proprio, or on motion of the plaintiff, shall render judgment
Effect of a declaration or order of default
Party in default (defendant):
1.
loses
his standing in court
Ø
Prevents
him from taking part in the trial
2.
Still
entitled to notices of subsequent proceedings
3.
May
participate in the trial as a WITNESS
Note: A
declaration of default is a NOT an admission of the truth or the validity of
the plaintiff’s claim.
Monarch Insurance v. CA
A judgment of default:
a. does not imply a waiver of rights except that of being heard and presenting evidence
in defendant’s favor.
b. 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 evidence in
support of his allegations as an indispensable condition before final judgment
could be given in his favor.
c. Nor could it be interpreted as an admission
by the defendant that the plaintiffs causes of action find support in the law
or that the latter is entitled to the relief prayed for.
Effect of partial default
When a pleading asserts a claim against several defending
parties and some file and serve their answers but the others do not, the court
shall try the case against all the defending parties based on the answers filed
and render judgment upon the evidence presented where the claim states a common
cause of action against them (Sec. 3[c], Rule 9, Rules of Court).
Action of the court after the declaration/order of default
When a party is declared in default, the court may do either of two things (judicial discretion):
a) to proceed to render judgment
granting the claimant such relief as his pleading may warrant; or
b) to require the claimant to submit to his
evidence ex parte.
Note: The court need
not personally receive the evidence. Reception may be delegated to the clerk of
court.
Admission of
answer filed out of time
Discretion on the part of the trial court (judicial
discretion):
1. extend the time for filing an anser
2. allow an answer to be filed after the
reglementary period
Rule: Defendant’s answer should be admitted
where:
a. it is filed before a declaration of default
and
b. no prejudice is caused to the plaintiff
Hornboook rule: default judgments are generally disfavoured.
Remedies of a defending party declared in
default
(MEMORIZE)
1.
Remedy after notice of order and before judgment
a) file a motion under oath to set
aside the order of default and
b) properly show that
i.
the failure to answer
was due to fraud, accident, mistake, or excusable negligence (FAMEN), and
ii.
that he has a
meritorious defense, i.e., there must be an affidavit of merit
2. Remedy after
judgment and before judgment becomes final and executory
a) file a Motion for New Trial under Rule 37.
b) He may also appeal from the judgment as
being contrary to the evidence or the law
3. Remedy after the
judgment becomes final and executory
The defendant may file a petition for relief from judgment
under Rule 38.
Note: Where the defendant has however, been wrongly or
improvidently declared in default, as when a timely answer has been served and
filed, the court can be considered to have acted with grave abuse of discretion
amounting to lack of jurisdiction, an act correctible by a petition for certiorari
under Rule 65.
Current judicial trend on defaults
·
Exception rather than
the rule
·
Cases, as much as possible,
should be decided on the merits and not on technicalities
Motion to lift default order
1. Motion must be under oath
2. Accompanied by an affidavit of merits
3. Can be filed at anytime after notice and
before judgment
Implied lifting of the order of default
(see pgs. 327-330, Riano 2011 ed.)
Extent of relief in a judgment by default
not exceed the amount or be different in kind from that
prayed for nor award unliquidated damages
Cases where a declaration/order of default cannot be made
a) annulment of marriage;
b) declaration of nullity of marriage; and
c) legal separation (Sec. 3[e], Rule 9).
If no answer is filed in any of the above actions, the court
shall order the prosecuting attorney
to investigate:
1. WON collusion exists between the parties.
2. If there is no collusion, the court shall
order said prosecuting attorney to intervene for the State in order to see to
it that the evidence submitted is not fabricated
Judgment by default for refusal to comply with the modes of
discovery
GR: A default order and a default judgment is triggered by the
failure of the defending party to file the required answer.
E: A judgment by default may be rendered in
the following cases despite an answer having been filed:
a) If a disobedient party refuses to obey an order
requiring him to comply with the various modes of discovery.
b) If a party or officer or managing agent of
a party willfully fails to appear before the officer who is to take his
deposition or a party fails to serve answers to interrogatories
3.
COUNTERCLAIM
|
Counterclaim is any claim a defendant may have against the
plaintiff.
Ø
Not part
of the answer but is a separate pleading.
Ø
It may,
however, be included in the answer. (Answer with a Counterclaim)
“Any Claim”:
1.
Money
2.
Some
other relief
Counterclaim:
1.
Compulsory Counterclaim
Elements:
a.
Arises
out of or is necessarily connected with the transaction, or occurrence
that is the subject matter of the opposing party’s claim
b.
Fall
within the jurisdiction of the court, and
c.
Does not
require for its adjudication the presence of third parties over whom the court
cannot acquire jurisdiction
2.
Permissive Counterclaim
Note: If the
counterclaim exceeds the jurisdiction of the court, it shall be deemed permissive.
COMPULSORY COUNTERCLAIM
Ø
Same
subject matter: action to recover possession of real property, counterclaim for
compensation for improvements on land
Ø
Most common: :
ligation costs, damages
Lack of jurisdiction in counterclaim:
GR: May
still be pleaded mere to weaken the plaintiff’s claim, not to obtain
affirmative relief from a court without jurisdiction
E: If
defendant desires to have affirmative relief, he may waive the amount in excess
of the jurisdiction of the court.
Instances when the court dismisses the counterclaim for lack of
jurisdiction
GR: The
counterclaim must be within the jurisdiction of the court both as to the amount
and the nature thereof. Otherwise, it will be dismissed.
Example:
Ejectment cases in the RTC
Illegal dismissal in the regular courts
instead of the Labor arbiter
E: Sec. 7,
Rule 6: When the original action is filed with the RTC, the counterclaim may be
deemed compulsory regardless of the amount.
Incompatibility between a compulsory counterclaim
and a motion to dismiss
The filing of a MD is an implied waiver of the
CC because the grant of the MD results in the dismissal of the CC
Ø
But if
he opts to set up CC, he may still plead his ground for dismissal as an
affirmative defense in his answer
PERMISSIVE COUNTERCLAIM
Permissive if any of the elements of CC is absent
Most treated feature: absence of a logical
connection with the subject matter of the complaint (does not arise of, or is
not connected with the plaintiff’s COA)
Example:
Counterclaim for damages based on culpa aquiliana in a complaint for collection
of loan
Compulsory counterclaim (CC)
|
Permissive Counterclaim (PC)
|
Not an initiatory pleading
|
initiatory pleading
|
Should be accompanied by:
a.
CNFS (forum shopping)
b.
Certificate to file an action issued by the Lupon Tagapamayapa
|
|
Failure to answer – NOT declared in default
|
Failure to answer – declared in default as
to the counterclaim
|
Payment of docket fees not required
|
Docket fees and other lawful fees should be
paid for, otherwise PC will be null and void
|
How to set up an omitted counterclaim (only
for PC): by amendment with leave of court
Reasons for omission by the pleader:
·
Oversight
·
Inadvertence
·
Excusable
neglect
·
When
justice requires
Note:
·
CC -
actions not set up shall be barred
·
PC –
actions not set up will not be barred
How to set up a counterclaim arising AFTER serving the pleading (hence matured or acquired by a party after serving his pleading):
counterclaim by supplemental pleading BEFORE JUDGMENT, with the permission of
the court.
Period to answer a counterclaim:
1)
PC - within 10 days from
service
2)
CC – need not be answered as it is deemed automatically
joined and controverted
Effect of the dismissal of a complaint on the
counterclaim already set up
a)
Sec.6
Rule16
Situation: Defendant filed an
answer with a counterclaim and then filed an MD as affirmative defense
Effect: CC/PC not dismissed
b)
Sec. 2 Rule 17
Situation: Plaintiff himself filed an MD of his complaint after defendant filed an
Answer with Counterclaim. Court granted the MD.
Effect: Complaint is dismissed without
prejudice to the right of the defendant to prosecute his counterclaim in a
separate action, UNLESS within 15 days from notice of the notion defendant
manifests his preference to have his counterclaim resolved in the same action.
c)
Sec. 3 Rule 17
Situation: Complaint is dismissed thru plaintiff’s fault and counterclaim has
already been set up
Effect: same with letter b
Note: Similarities in the 3 situations:
·
Dismissal of the complaint WITHOUT
prejudice to the defendant’s right to prosecute his case in the same/separate
action whether CC or PC
4.CROSS-CLAIM
|
Cross-claim – any claim by a
party against a co-party arising out
of the transaction or occurrence that is the subject matter of either of the original action or of a
counterclaim therein.
Ø Defending party against a co-defending party
Ø Where cross-claimant seeks to recover from his
co-defendant who is the actual and true debtor and should be ultimately liable
for the payment of the loan
Ø May be contained in the answer
Cross claim must be set up in the same action
Ø Otherwise, barred.
1. Cross-claim existing at the time the answer is filed
a) If not set up – barred
b) If through oversight, inadvertence, or excusable negligence,
it is not asserted, it may still be set up with leave of court, by amendment
of the pleading
2. Cross claim that may mature or may be acquired after service
of answer – may, by permission of the court, be presented by supplemental
pleading BEFORE judgment.
No cross-claim on appeal
Cross-claim CANNOT be set up for the
first time on appeal. Cross-claim not set up is barred.
Cross-claim
|
Counterclaim
|
Against a co-arty
|
Against an opposing party
|
Must arise from the transaction or
occurrence that is the subject matter of the original complaint or
counterclaim
|
May or may not arise out of the
subject matter of the complaint. It may be PC/CC.
|
Period to answer a cross-claim: within 10 days from service.
5.THIRD (FOURTH, ETC.)-PARTY COMPLAINT
|
Third-party complaint
– a claim which a defendant party may,
with leave of court, file against a person who is not yet a party to the action for:
a. Contribution
b. Indemnity
c. Subrogation, or
d. Any other relief, in respect of his opponent’s claim
Nature
·
Actually a complaint independent of,
and separate and distinct from the plaintiff’s complaint
Judicial discretion of admission of third-[arty complaint
·
Discretion on trial courts to allow or
disallow a party to implead an additional party.
·
Defendant has no vested right to file a
third-party complaint
Example: third-party complaint filed by the operator of the bus (who
was made liable) against the negligent driver for reimbursement
Whether to file a third-party complaint separately or
together with the original case.
GR: (separate
action) The third-party
complaint is independent of and separate and distinct from the plaintiffs
complaint.
E: (joined
with the original case)
a) But the Rules permit defendant to bring in
a third-party defendant or to litigate his separate cause of action in respect
of plaintiffs claim against a third party in the original and principal case
with the object of avoiding circuitry of action and unnecessary proliferation
of lawsuits and of disposing expeditiously in one litigation the entire subject
matter arising from one particular set of facts.
Ø Prior leave of Court is necessary
E to E: where the allowance of a third-party complaint would delay the resolution of the original
case, such as:
a) when the third-party defendant cannot be
located or
b) where matters extraneous to the issue of
possession would unnecessarily clutter a case of forcible entry, or
c) the effect would be to introduce a new and
separate controversy into the action, the salutary object of the rule would not
be defeated
The court should in such cases require the defendant to
institute a separate action.
Leave of court
1.
Required
in third-party complaint
2.
Not
required in a counterclaim or cross-claim
Answer to a third-party complaint: within 15 days from service of summons
6.INTERVENTION
|
Intervention is a remedy by which a third party, not originally impleaded
in the proceedings, becomes a litigant therein to enable him, her or it to
protect or preserve a right or interest which may be affected by such
proceedings.
It is a proceeding in a suit or action by
which a third person is permitted by the court to make himself a party, either:
a) joining plaintiff in claiming what is sought by the
complaint, or
b) uniting with defendant in resisting the claims of plaintiff,
or
c) demanding something adversely to both of them.
Purpose: to enable
a stranger to an action to become a party to protect his interest
Sec. 1 Rule 19
Under above Rule, intervention shall be allowed when a person
has
1. a legal interest in the matter in litigation;
2. legal interest in the success of any of the parties;
3. interest against both parties;
4. when he is so situated as to be adversely affected by a distribution or
disposition of property in the custody of the court or an officer thereof.
Note: Such interest must e direct and immediate so that the
intervenor will either gain or lose by the direct legal operation of the judgment
Intervention NOT a matter of absolute right
GR: Subject to judicial discretion when the applicant shows that
he satisfies the statutory requirement authorizing intervention – Sec.1, Rule
19.
E: Notwithstanding presence of legal interest, permission to
intervene is subject to the sound discretion of the court, the exercise of
which is limited by considering:
a)
WON “the intervention
will unduly delay or prejudice the adjudication of the rights of the
original parties and
b)
WON the intervenor’s
rights may be fully protected in a separate proceeding.
Note:
·
Where the substantial
interest of the movant in the subject matter is undisputed, a denial of a
motion to intervene is an injustice.
·
An independent
controversy cannot be injected into a suit by intervention, hence, such
intervention will not be allowed where it would enlarge the issues in the
action and expand the scope of the remedies.
Ø the proper course is for the would-be
intervenor to litigate his claim in a separate suit.
Ø Intervention is not intended to change the
nature and character of the action itself, or to stop or delay the placid
operation of the machinery of the trial.
Requisites for intervention
1. There must be a motion for intervention
filed before rendition of judgment by the trial court.
Ø A motion is necessary because leave of
court is required before a person may be allowed to intervene.
2. The movant must show in his motion that he
has a:
a) legal interest
b) that the movant is so situated as to be
adversely affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof
c) that the intervention must not unduly delay
or prejudice the adjudication of the rights of the original parties and that
the intervenor’s rights may not be fully protected in a separate proceeding.
Procedure for intervention
1.
Motion and pleading shall be served
upon the original parties
2.
The intervenor shall file a motion for intervention attaching
thereto his pleading-in-intervention.
a)
Complaint-in-intervention-
If the purpose is to
assert a claim against either or all of the original parties.
b)
Answer-in-intervention
- If the pleadings seek
to unite with the defending party in resisting a claim against the latter..
3.
The answer to the
complaint-in-intervention shall be filed within 15 days from notice of the order admitting the same, unless a
different period is fixed by the courts
Time for intervention: any
time before rendition of judgment by the trial court
REPLY
|
Reply is a pleading to deny, or allege facts in denial or
avoidance of new matters alleged in the answer.
a. Reply is a responsive pleading to an answer
b. Reply is not a
responsive pleading to a counterclaim or cross-claim.
Filing of reply to an answer: NOT mandatory
All new matters alleged in the answer
are deemed controverted or denied. No admission follows from the failure to
reply.
When filing of reply is advisable: when defense is based upon an actionable document to
specifically deny the genuineness and due execution of the same
AMENDMENT OF PLEADINGS (Rule 10)
|
1.
Amendment as a matter of right
|
ONCE at:
a) Any time before a responsive pleading is served by the other
party, or
b) In case of a reply which there is no responsive pleading, at
ay time within 10 days after it is served, or
Note: Since an MD is not a
responsive pleading, a plaintiff may file an amended complaint even after the
original complaint was ordered dismissed, provided:
a) Order of dismissal is not yet final, and
Ø Becomes final if not replied or appealed to within the
prescriptive period (15-day reglamentary period to file an appeal)
b) No reply as yet been served
Mandamus: remedy if
the court refuses to admit an amendment when exercised as a matter of right.
Such would be a purely ministerial act.
2.
Amendment by leave of court
|
Leave of court is required for an
amendment made AFTER service of a responsive pleading
Substantial amendment
– one where there is a change in the COA
(or new COA)/defences/theory of the case
GR: May be made only upon
leave of court
E: Amendment as a matter
of right where no leave of court is required as admission of such amendment
would be a ministerial duty.
Sec. 5 Rule 10
Section 5.
Amendment to conform to or authorize presentation of evidence. — When
issues not raised by the pleadings are tried with the express or implied
consent of the parties they shall be treated in all respects as if they had
been raised in the pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to raise these issues
may be made upon motion of any party at any time, even after judgment; but
failure to amend does not effect the result of the trial of these issues. If
evidence is objected to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the pleadings to be amended
and shall do so with liberality if the presentation of the merits of the
action and the ends of substantial justice will be subserved thereby. The
court may grant a continuance to enable the amendment to be made.
|
Two situations in Sec. 5
1.
When evidence
introduced on an issue not alleged in the pleading was not objected
2.
When such was
objected – court may nevertheless admit the evidence where the objecting party
FAILS to sow that the admission of the evidence would prejudice him in his
defense.
Ø The court must give him continuance to enable him to meet
the new situation
Amendment to cure a failure to state a COA to conform to the
evidence (Sec 5, Rule 10):
3. Evidence not within the issues raised in the pleadings is
offered during the trial and not objected to – treated as issues having been
raised in the pleading even if not actually raised
4. Where the complaint insufficiently states the COA – cured by
evidence presented during the trial without objection
5. Complaint which failed to aver the fact that certain
conditions precedent were complied with – maybe corrected by evidence of
compliance of said conditions without objection
Note:
a) Objection: as irrelevant to the issue
b) Plaintiff may then move for the amendment of his complaint
to conform to the evidence
c) If failed to amend, such will not affect the trial of these
issue because such are deemed to have been raised in the pleadings (implied
amendment of the pleadings)
No amendment where NO COA exists
Issue: May a complaint that lacks a cause of action at the time it
was filed be cured by the accrual of a cause of action during the pendency of
the case? NO!
Facts: When the case was
filed, none of the promissory notes subject of the action was due and
demandable but two of the notes became due during the pendency of the action.
Held: T he curing effect (cured by evidence presented during trial)
under Section 5 is applicable only
if a cause of action in fact exists at the time the complaint is filed, but the
complaint is defective for failure to allege the essential facts. It thus follows that a complaint whose cause
of action has not yet accrued cannot be
cured or remedied by an amended or supplemental pleading alleging the
existence or accrual of a cause of action while the case is pending. (Swagman Hotels vs. CA)
Amendment to correct a jurisdictional
defect
1.
Before a responsive pleading is served – a matter of right; court’s
ministerial duty’ no need for positive act by the court
Example: Ejectment case in RTC may be amended with new allegations to
transform allegations of forcible entry to quieting of title (within RTC’s
jurisdiction)
2.
After a responsive pleading is served – amendment can be done only
upon leave of court, where exercise of sound judicial discretion is required’
requires performance of positive act by the court
Note: A complaint cannot be amended to confer jurisdiction on the
court in which it was filed, if the cause of action originally set forth was
not within the court’s jurisdiction, where an answer has already been served
and filed.
Effect of amendment
on the original pleading
Original pleading is demed superseded and abandoned by the
amendatory complaint ONLY IF the latter introduces a NEW or DIFFERENT COA.
Effect of the
amendment on ADMISSIONS made in the original pleading: ceases to be judicial admissions and are to be considered
extrajudicial admissions which may still be used as evidence if formally
offered in evidence.
When summons NOT
required after complaint is amended
1. Where defendants have already
appeared before the trial court – no need for summons. Court’s jurisdiction
continues.
2. Where defendant has not
yet appeared in court – new summons must be served.
3. Where a new defendant
is impleaded, summons must be served upon him so that the court may acquire
jurisdiction over his person.
Supplemental pleading (SP) – one which sets for transactions, occurrences, or events
which have happened since the date of the pleading sought to be supplemented.
Ø
Continuation of the complaint
Ø
Set up new facts which justify, enlarge
or change the kind of relief with respect to the SAME subject matter in the
original complaint
Requirements:
1. Leave of court
2. Terms are just
3. Leave is sought by filinga motion with notice to all parties
COA in supplemental
pleadings:
If different from the COA in the original complaint: the
supplemental pleading cannot be admitted
Answer to an SP: not mandatory. “may” be answered within 10
days from notice of the order admitting te same, unless a different period is
fized by court. The answer to the complaint shall serve as the answer to the
supplemental complaint if no new or supplemental answer is filed.
MOTION IN CIVIL
CASES
|
Motion – application for relief’ ask or move the court to do smething
GR: All motions must be in writing
E:
1) Motions made in open court
2) Motions made in the course of a hearing or
trial
Contents of a motion:
a) a statement of the relief sought to be
obtained;
b) the grounds upon which the motion is based;
and
c) supporting affidavits and other papers -
only when so mandated by the Rules or when necessary to prove facts stated in
the motion
Hearing of the motion
1.
Litigated
motion – one which requires the
parties to be heard before a ruling on the motion is made by the court.
Example: motion to dimiss; motion for summary judgment
2.
Ex
parte motion – one which does not
reuire that the parties be heard and which the court may act uon without
prejudicing the rights of the other party
Example: motion to set the case for pre-trial; motion for extension of
time
GR: Every written motion is deemed a litigated motion.
E: Ex parte motion
Notice of the motion
·
Served at least 3 days before the date of hearing, addressed
to all parties concerned.
·
Notice of hearing
shall specify the time and date of the
hearing which shall not be later than 10 days after the filing of the motion
·
Proof of service:
required
Motion day: Friday afternoons, or if Friday is a
non-working holiday, in the afternoon of the next working day
E: does not applu if motion reuires immediate attention
Failure to set the motion for hearing, to
include a notice of hearing and to serve the motion (Secs. 4,5,6 of Rule 15)
Ø Worthless piece of paper
Ø Does not stop the running of the period for
filing the requisite pleading
Ø Considered pro forma and thus will be treated mere to delay the proceedings
OMNIBUS MOTION RULE (Bar 2010; 2011)
The rule is a procedural principle which requires that every
motion that attacks a pleading, judgment, order or proceeding shall include
all grounds then available, and all objections not so included shall be deemed
waived.
Sec. 1, Rule 9
Objections not deemed waived even if not
included in the motion:
a) Lack of jurisdiction: that the court has no jurisdiction over the
subject matter;
b) Litis pendentia: that there is another action pending
between the same parties for the same cause
c) (c)Res judicata: that the action is barred by a prior judgment,
and
d) Prescription: that the action is barred by the statute of
limitations.
Grounds
for a motion to
dismiss:
1.
That
the court has no jurisdiction over the person of the defending party;
2.
That
the court has no jurisdiction over the subject matter of the claim;
3.
That
venue is improperly laid;
4.
That
the plaintiff has no legal capacity to sue;
5.
That
there is another action pending between the same parties for the same cause;
6.
That
the cause of action is barred by a prior judgment or by the statute of
limitations;
7.
That
the pleading asserting the claim states no cause of action;
8.
That
the claim or demand set forth in the plaintiff's pleading has been paid,
waived, abandoned, or otherwise extinguished;
9.
That
the claim on which the action is founded is enforceable under the provisions of
the statute of frauds; and
10.
That
a condition precedent for filing the claim has not been complied with.
thank you for this one, you are such a blessing
ReplyDeleteOh wow. My pleasure. Good luck!
ReplyDeleteAre you a lawyer now?
ReplyDelete