F. PLEADINGS

Question 1

Pleadings

Answer 1

Pleadings are the written statements of the respective claims and defenses of the parties, submitted to the court for appropriate judgment [Sec. 1, Rule 6]

Question 2

Kinds of Pleadings

Answer 2

1. Complaint: a pleading alleging the plaintiff or claimant’s cause/s of action
2. Answer: a pleading where the defending party sets forth his defenses

Note: Counterclaims, cross-claims, third-party complaints, and complaints-in-intervention are kinds of complaints. [Sec. 2, Rule 6]

Question 3

Kinds of Defenses

Answer 3

1. Negative Defense: a specific denial of the material fact or facts alleged in the pleading of the claimaint essential to his cause of action`

Note: A general denial is considered as an admission. [1 Riano 293, 2016 Bantam Ed.]

2. Affirmative Defense: an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him/her.

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

Affirmative defenses may also include grounds for the dismissal of a complaint, specifically:

1. That the court has no jurisdiction over the subject matter
2. That there is another action pending between the same parties for the same cause (lis pendens), or
3. That the action is barred by a prior judgment. [Sec. 5 (b), Rule 6]

Note: The foregoing three (3) grounds need not be included in the answer due to the use of the word “may”. Also note that these grounds for dismissal (in addition to statute of limitations) may still be raised at any time since they are not waivable. [Sec. 1, Rule 9 in relation to Sec. 12 (a), Rule 15]

Question 4

Three kinds of Specific Denials

Answer 4

1. Absolute Denial: made when the defendant specifies each material allegation which he does not admit and, whenever practicable, sets forth the substance of the matters upon which he relies to support his denial. [PBCOM v. Go, G.R. No. 175514 (2011)]
2. Partial Denial: made when the defendant does not make a total denial of the material allegations, but denies only a part of the averment. Here, he specifies which part of the truth he admits and likewise denies. [1 Riano 269, 2016 Bantam Ed.]
3. Denial through disavowal of Knowledge: - made when the defendant alleges he “is without knowledge or information sufficient to form a belief as to the truth of the material averments in the complaint”. [Warner Barnes v. Reyes, 103 Phil. 662 (1958)]

Question 5

Negative Pregnant

Answer 5

A denial, pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It is in effect an admission of the averment it is directed to. [Philamgen v. Sweet Lines, G.R. No. 87434 (1993)]

Question 6

Counterclaim

Answer 6

Any claim which a defending party may have against an opposing party [Sec. 6, Rule 6]

Question 7

Compulsory vs. Permissive Counterclaim

Answer 7

[COMPULSORY COUNTERCLAIM]

1. A compulsory counterclaim, which a party has at the time the answer is filed, shall be contained in the answer [Sec. 8, Rule 11] because a compulsory counterclaim not raised in the same action shall be barred, unless otherwise allowed by these rules. [Sec. 7, Rule 6]
2. Failure to answer a compulsory counterclaim is not a cause for a default declaration.

[PERMISSIVE COUNTERCLAIM]

1. Not subject to the rule on compulsory counterclaims. Hence, it may be set up as an independent action and will not be barred if not contained in an answer to the complaint.
2. Must be answered by the party against whom it is interposed, otherwise he may be declared in default as to the counterclaim.

NOTE: Omitted Compulsory Counterclaim - If a counterclaim already existed at the time of the filing of the answer and the defendant fails to raise it, it shall generally be barred. [Sec. 7, Rule 6]

However, an exception to this would be a counterclaim by amendment before judgment, when the counterclaim was not set up due to oversight, inadvertence, or excusable neglect. [Sec. 10, Rule 11]

Question 8

Requisites for Compulsory Counterclaim

Answer 8

Requisites

1. It arises out of, or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim,
2. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction, and
3. It must be within the jurisdiction of the court both as to the amount and the nature, except that in an original action before the RTC, the counter-claim may be considered compulsory regardless of the amount. [Sec. 7, Rule 6]

Question 9

Test of compulsoriness

Answer 9

A positive answer on all four the following tests would indicate that the counterclaim is compulsory
a. Are the issues of fact and law raised by the claim and counterclaim largely the same?
b. Would res judicata bar a subsequent suit on defendant’s claims, absent the compulsory counterclaim rule?
c. Will substantially the same evidence support or refute the plaintiff’s claim as well as the counterclaim?
d. Is there any logical relation between the claim and counterclaim?
[GSIS v. Heirs of Caballero, G.R. No. 158090 (2010)]

Question 10

Effect on counterclaim when complaint is dismissed

Answer 10

The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer in the following cases

1. Dismissal under Sec. 2, Rule 17 – where the plaintiff files a motion to dismiss the case, after the defendant had filed a responsive pleading
2. Dismissal under Sec. 3, Rule 17 – where the complaint is dismissed due to the fault of the plaintiff

Section 2. Dismissal upon motion of plaintiff.
xxx
If a counterclaim has been pleaded by a defendant prior to the service upon him or her of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his or her counterclaim in a separate action unless within fifteen (15) calendar days from notice of the motion he or she manifests his or her preference to have his or her counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice.

Question 11

Cross-claim

Answer 11

A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross- claim may cover all or part of the original claim. [Sec. 8, Rule 6]

Existing Cross-claim - A cross-claim that a defending party has at the time he or she files his or her answer shall be contained therein. [Sec. 8, Rule 11]

However, an exception to this would be a cross-claim by amendment before judgment, when the counterclaim was not set up due to oversight, inadvertence, or excusable neglect. [Sec. 10, Rule 11]

Cross-claim arising after Answer - A cross-claim, which either matured or was acquired by a party after serving his answer may, with permission of the court, be presented as a cross-claim by supplemental pleading before judgment. [Sec. 9, Rule 11]

Question 12

Third (fourth, etc.) party complaints

Answer 12

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

Question 13

Complaint-in-intervention

Answer 13

Intervention is a remedy by which a third party, not originally impleaded in a proceeding, becomes a litigant therein to enable him to protect or preserve a right or interest which may be affected by such proceeding. [Restaurante Las Conchas v. Llego, G.R. No. 119085 (1999), citing First Philippine Holdings Corporation v. Sandiganbayan, G.R. No. 88345 (1996)]

Question 14

Reply

Answer 14

A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged in, or relating to actionable documents attached to an answer. This is so, because under the Amended Rules, the plaintiff may file a reply only if the defending party attaches an actionable document to his or her answer. [Sec. 10, Rule 6]

Note: An actionable document is a written document that’s the basis of one’s cause of action or defense. [1 Riano 280, 2016 Bantam Ed.]

Note: The function of a reply is to merely deny the allegations raised in the answer with the actionable document, not to impose new causes of action which arise from the answer.

If the plaintiff wants to interpose a new claim on the basis of the actionable document attached in the answer, he should do this through an amended or supplemental complaint.

Question 15

Extension of time to file a pleading

Answer 15

GR: A motion for extension to file any pleading is prohibited and is considered a mere scrap of paper. [Sec. 11, Rule 11]

EXC: A motion for extension of time to file an answer may be allowed if:

1. For meritorious reasons,
2. For a period not more than 30 calendar days, and
3. A party may only avail of 1 motion for extension

Question 16

Pleadings allowed in small claims cases and cases covered by the Rules on Summary Procedure

Answer 16

1. A small claims action is commenced by filing with the court an accomplished and verified Statement of Claim (Form 1-SCC) in duplicate, accompanied by a Certification Against Forum Shopping, Splitting a Single Cause of Action, and Multiplicity of Suits (Form 1-A-SCC) [Sec. 6]

Question 17

Caption

Answer 17

Sets forth the: 
1.	Name of the court
2.	Title of the action (i.e. the names of the parties and respective participation) and
3.	The docket number, if assigned 
[Sec. 1, Rule 7]

Question 18

Body

Answer 18

Body – Sets forth the pleading’s designation, the allegations of party’s claims or defenses, the relief prayed for, and its date

Question 19

Relief

Answer 19

The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable.

General Rule: It is a settled rule that a court cannot grant a relief not prayed for by a party in the pleadings, or in excess of that being sought. [Bucal v. Bucal, G.R. No. 206957 (2015)]

Exception: Because the rules allow a general prayer for such other reliefs as may be deemed just and equitable, the court may grant reliefs that are not specifically prayed for as long as they are just and equitable. [1 Riano 257, 2016 Bantam Ed.]

Question 20

Date

Answer 20

Every pleading shall be dated. [Sec. 2, Rule 7]

Question 21

Signature and address

Answer 21

Every pleading and other written submissions to the court must be signed by the party or counsel representing him or her. [Sec. 3, Rule 7]

The signature of counsel constitutes a certificate that he or she has read the pleading and document and that such pleading or document:

a. Is not being presented for any improper purpose to harass, delay, or increase cost of litigation
b. Has claims, defenses, and other legal contentions that are warranted by law or jurisprudence, and not merely based on frivolous arguments contrary to jurisprudence
c. Has factual contentions that have evidentiary basis or will most likely be supported by evidence after availment of modes of discovery, and
d. The denials of facts are based on evidence or based on belief of lack of information if specially so identified. [Sec. 3, Rule 7]

Effect of violation of the rule:
The court may on motion or motu proprio, after notice and hearing, impose an appropriate sanction or refer such to the proper office for disciplinary action, unless exceptional circumstances are present.

On whom sanction imposed:
The attorney, law firm, or the party that violated the rule.

Note: The law firm shall be jointly and severally liable for a violation committed by its partner, associate, or employee.

Question 22

Verification

Answer 22

General Rule: Pleadings need not be under oath or verified. [Sec. 4, Rule 7]

Exception: When otherwise specifically required by law or rule. [Sec. 4, Rule 7]

How Verified
By an affidavit under oath with the following attestations:
a. The allegations in the pleading are true and correct based on personal knowledge or authentic documents;
b. The pleading is not filed to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
c. The factual allegations therein have evidentiary support or, if specifically so identified, will likewise have evidentiary support after a reasonable opportunity for discovery.
The authorization of the affiant to act on behalf of the party, whether in the form of a secretary’s certificate or a special power of attorney, should be attached to the pleading. [Sec. 4, Rule 7]

Effect of noncompliance or defective verification
General Rule: A pleading required to be verified that contains a verification based on “information and belief”, or upon “knowledge, information and belief”, or lacks a proper verification, shall be treated as an unsigned pleading. [Sec. 4, Rule 7]

Note: An unsigned pleading produces no legal effect and is a “mere scrap of paper.”

Exception: Lack of verification is a mere formal, and not a jurisdictional, requirement. As such, a defect in the verification does not render the pleading fatally defective and the court may order its subsequent submission or correction if such serves the ends of justice. [Vda. de Formoso v. PNB, 650 SCRA 35 (2001)]

Question 23

Certification Against Forum Shopping

Answer 23

The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief or in a sworn certification annexed thereto and simultaneously filed therewith

1. That he or she 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 is pending
2. If there is such other pending action or claim, a complete statement of the present status thereof, and
3. If he or she should learn that the same or a similar action or claim has been filed or is pending, he shall report that fact within 5 calendar days to the court wherein his aforesaid complaint or initiatory pleading has been filed. [Sec. 5, Rule 7

What pleadings require a certification against non-forum shopping (Initiatory pleadings)

1. Complaint
2. Permissive counterclaim
3. Cross-claim
4. Third (fourth, etc.) party complain
5. Complaint-in-intervention

Who signs:
General Rule: Plaintiff or Principal party

Rationale: The plaintiff, not the counsel, is in the best position to know whether he or it has actually filed or caused the filing of a petition. Certification signed by counsel without proper authorization is defective, and a valid cause for dismissal [Anderson v. Ho, G.R. No. 172590 (2013)]

Exception: Authorized person, usually counsel

If, for 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 [Vda. de Formoso v. PNB, G.R. No. 154704 (2011)] In cases of a juridical entity, the certification may be executed by a properly authorized person through due authorization by a board resolution. [Cosco v. Kemper, 670 SCRA 343 (2012)]

Note: Similar to the new requirement under verification, the authorization of the affiant to act on behalf of the party, should be attached to the pleading.

Question 24

Effect of noncompliant Certificate Against Forum Shopping

Answer 24

1. Failure to comply with the requirements - Not curable by mere amendment of the complaint or other initiatory pleading

Cause for dismissal of the case, without prejudice, unless otherwise provided, upon motion and after hearing

2. False certification/Non-compliance with any of the undertakings therein - Constitutes indirect contempt of court, without prejudice to administrative and criminal actions
3. When there is willful and deliberate forum shopping - Ground for summary dismissal, with prejudice, direct contempt of court, cause for administrative sanctions

Question 25

Contents of a Pleading

Answer 25

Every pleading stating a party’s claims or defenses shall, in addition to those mandated by Section 2, Rule 7, state the following:

a. Names of witnesses who will be presented to prove a party’s claim or defense;
b. Summary of the witnesses’ intended testimonies, provided that the judicial affidavits of said witnesses shall be attached to the pleading and form an integral part thereof, and

General Rule:
Only witnesses whose judicial affidavits areattached to the pleading shall be presented by the parties during trial.

Exception:
If a party presents meritorious reasons as basis for the admission of additional witnesses

c. Documentary and object evidence in support of the allegations contained in the pleading. [Sec. 6, Rule 7]

Question 26

Allegations in a pleading

Answer 26

Every pleading shall contain in a methodical and logical form:

1. a plain, concise and direct statement of the ultimate facts,
2. the evidence on which the party pleading relies for his or her claim or defense, as the case may be
3. If the cause of action or defense is based on law, the pertinent provisions of the law and its applicability. [Sec. 1, Rule 8]

Question 27

Alternative causes of action

Answer 27

A party may set forth two or more claims or defenses alternatively in one cause of action. Such happens when a party is not certain which cause of action would squarely fit the set of facts alleged in the complaint. [1 Riano 278, 2016 Bantam Ed.]

Also. a pleading which alleges alternative causes of action is not made insufficient by the insufficiency of one or more of the alternative statements as long as one of them is sufficient. [Sec. 2, Rule 8]

Question 28

What must be alleged in a pleading?

Answer 28

1. Capacity to sue or be sued
2. General averments
3. Averments with particularity

Question 29

Capacity to sue or be sued

Answer 29

The following must be averred, to wit:

a. Facts showing the capacity of a person to sue or be sued,
b. The authority of a party, to sue and be sued in a representative capacity, or
c. The legal existence of an organized association of persons that is made a party.

Moreover, a party desiring to raise an issue as to the legal existence of any party to sue or be sued in a representative capacity must do so via specific denial. [Sec. 4, Rule 8]

Question 30

Judgments

Answer 30

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

However, under the Amended Rules, an authenticated copy of the judgment or decision pleaded must be attached to the pleading. [Sec. 6, Rule 8]

Question 31

Official documents or acts

Answer 31

In pleading official documents or acts, it is sufficient to aver that the document was issued or the act was done in compliance with law. [Sec. 9, Rule 8]

Question 32

Condition precedent

Answer 32

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

Question 33

Fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments, official documents or acts

Answer 33

Fraud, mistake, malice, intent, knowledge, and other condition of the mind
In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity.
[Sec. 5, Rule 8]

Malice, intent, knowledge or other condition of the mind of a person may be averred generally [Sec. 5, Rule 8]

Question 34

Pleading and contesting an actionable document

Answer 34

[PLEADING]

1. The substance of such document shall be set forth in the pleading, and
2. The original or a copy thereof shall be attached to the pleading as an exhibit. [Sec. 7, Rule 8]

{CONTEST]
GR: The adverse party, under oath, specifically denies them, and sets forth what he or she claims to be the facts

EXC: The requirement of an oath does not apply when

1. The adverse party does not appear to be a party to the instrument, or
2. Compliance with an order for an inspection of the original instrument is refused. [Sec. 8, Rule 8]

Effect of failure to deny under oath:
The genuineness and due execution of the actionable document is deemed admitted. [Sec. 8, Rule 8]

Question 35

Specific denials

Answer 35

Material averments in any pleading asserting a claim, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. [Sec. 11, Rule 8]

EXC:
The following averments in the complaint are not deemed admitted even if not specifically denied
1. Amount of unliquidated damages [Sec. 11, Rule 8]
2. Conclusions in a pleading, because it is for a court to make conclusions, and
3. Non-material allegations or averments, because the rules provide that only material allegations have to be denied. [1 Riano 300, 2016 Bantam Ed.]

Question 36

Affirmative defenses

Answer 36

A defendant shall raise his or her affirmative defenses in the answer. [Sec. 12, Rule 8]

The grounds shall be limited to those under Sec. 5(b), Rule 6 and those enumerated under Sec. 12, Rule 8.

Thus, the following are the affirmative defenses that should be raised in the answer:
Under Sec. 5(b), Rule 6, 1st paragraph: 
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: The court is allowed to conduct a summary hearing within 15 calendar days from the allegation of these affirmative defenses in the answer. After such hearing, they must be resolved by the court within 30 calendar days from the end of the summary hearing. [Sec. 12(d), Rule 8]

Under Sec. 5(b), Rule 6, 2nd paragraph

11. Lack of jurisdiction over the subject matter;
12. Litis pendentia, and
13. Res judicata.

Under Sec. 12, Rule 8:

1. Lack of jurisdiction over the person of the defendant,
2. Improper venue,
3. Lack of legal capacity to sue of the plaintiff,
4. Failure to state a cause of action, and
5. Failure to comply with a condition precedent.

Note: The court must motu proprio resolve these affirmative defenses within 30 calendar days from the filing of the answer. [Sec. 12(c), Rule 8]

Question 37

Effect of failure to raise the affirmative defense at the earliest opportunity

Answer 37

General rule: Failure to raise an affirmative defense in the answer or at the earliest opportunity constitutes a waiver of the defense.

Exception: Non-waivable grounds

1. Lack of jurisdiction over the subject matter;
2. Litis pendentia;
3. Res judicata; and
4. Statute of limitations. [Sec. 1, Rule 9]

Note: If the non-waivable grounds are not raised in the answer, the Amended Rules allow them to be proper grounds for a motion to dismiss. [Sec. 12, Rule 15] With the deletion of Rule 16, and consequently the time for filing of a motion to dismiss, it seems that the Amended Rules do not provide for a specific period where the filing of a motion to dismiss may be done.

Question 38

Striking out of a pleading

Answer 38

The court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. [Sec. 13, Rule 8]

How done

1. Upon motion by a party before responding to a pleading;
2. Upon motion by a party within 20 calendar days after service of the pleading upon him or her, if no responsive pleading is allowed by the rules; or
3. Upon the court’s own initiative at any time. [Sec. 13, Rule 8]

Question 39

Effect of failure to plead

Answer 39

General rule: Defenses and objections not pleaded in either a motion to dismiss or in the answer are deemed waived [Sec. 1, Rule 9]

Exceptions:
The court shall dismiss the case when it appears from the pleadings or the evidence on record that:
1. The court has no jurisdiction over the subject matter,
2. There is another action pending between the same parties for the same cause (litis pendentia),
3. The action is barred by a prior judgment (res judicata), or
4. The action is barred by statute of limitations (prescription). [Sec. 1, Rule 9]

Note: The Amended Rules provide that the aforementioned grounds are the only grounds allowed in a motion to dismiss. [Sec. 12 (a), Rule 15]

Question 40

Failure to plead compulsory counterclaim and cross-claim

Answer 40

General rule: A compulsory counterclaim, or a cross-claim, not set up shall be barred. [Sec. 2, Rule 9]

Exceptions:
1. Omitted Counterclaim or Cross-claim
When a pleader fails to set up a counterclaim or cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment. [Sec. 10, Rule 11]

2. Counterclaim or Cross-claim after Answer
   A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment. [Sec. 9, Rule 11]

Question 41

Default

Answer 41

Failure of the defending party to answer within the time allowed therefor. [Sec. 3, Rule 9]

Dual stages of default:

1. Order of default: Issued by the court on plaintiff’s motion and at the start of the proceedings, for failure of the defendant to seasonably file his responsive pleading.
2. Judgment by default: Rendered by the court following an order of default, when the court has received ex parte the plaintiff’s evidence

Question 42

When declaration of defaulti is proper

Answer 42

The rule on default clearly establishes the “failure to answer within the time allowed therefor” as the ground for a declaration of default [Sec. 3, Rule 9].

Requisites before a declaration of default
1. The court must have validly acquired jurisdiction over the person of the defending party, either by service of summons or voluntary appearance;
2. The defending party must have failed to file his answer within the time allowed therefor;
3. The claiming party must file a motion to declare the defending party in default;
4. The claiming party must prove that the defending party has failed to answer within the period provided by the ROC;
[Sablas v. Sablas, G.R. No. 144568 (2007)]
5. The defending party must be notified of the motion to declare him in default; and [Sec. 3, Rule 9]
6. There must be a hearing set on the motion to declare the defending party in default [Spouses de los Santos v. Carpio, G.R. No. 153696 (2006)]
[1 Riano 364, 2014 Bantam Ed.]

Question 43

Effect of an order of default

Answer 43

A party in default shall be entitled to notices of subsequent proceedings but shall not take part in the trial. [Sec. 3, Rule 9] The party declared in default loses his standing in court. The loss of such standing prevents him from taking part in the trial. He forfeits his rights as a party litigant, has no right to present evidence supporting his allegations, to control the proceedings, or cross-examine witnesses. [1 Riano 305, 2016 Bantam Ed.]

The court may either:
a. Proceed to render judgment granting the claimant such relief as his or her pleading may warrant, or
b. Require the claimant to submit evidence; such reception of evidence may be delegated to the clerk of court.
[Sec. 3, Rule 9]

Question 44

Relief from an order of default

Answer 44

Relief before judgment
File a motion under oath to set aside the order of default upon proper showing that:
a. His or her failure to answer was due to fraud, accident, mistake or excusable negligence, and
b. He has a meritorious defense - such that the motion must be accompanied by a statement of the evidence which he intends to present if the motion is granted and which is such as to warrant a reasonable belief that the result of the case would probably be otherwise if a new trial is granted [Kilosbayan v. Janolo, G.R. No. 180543 (2010)] [Sec. 3(b), Rule 9]

In such a case, the order of default may be set aside in such terms and conditions as the judge may impose in the interest of justice. [Sec. 3(b), Rule 9]

Relief after judgment but before it has become final and executory
The party declared in default may file:
a. a motion for new trial under Sec. 1(a), Rule 37 [Lina v. CA, G.R. No. L-63397 (1985)], or
b. an appeal from the judgment as being contrary to the evidence or the law [Republic v. Sandiganbayan, G.R. No. 148154 (2007), cited in 1 Riano 373, 2014 Bantam Ed.]

Relief after judgement has become final and executory
He may file a petition for relief under Rule 38 [Lina v. CA, G.R. No. L-63397 (1985)]

These remedies presuppose that the defending party was properly declared in default, but it is submitted, however, that certiorari will lie when said party was improperly declared in default. [1 Riano 374, 2014 Bantam Ed.]

Question 45

Effect of a partial default

Answer 45

Partial default takes place when the complaint states a common cause of action against several defendants, and only some of whom answer. [Sec. 3, Rule 9]

Effects

1. The court should declare defaulting defendants in default, and proceed to trial on answers of others
2. If the defense is personal to the one who answered, it will not benefit those who did not answer.

Question 46

Extent of relief

Answer 46

A judgment rendered against a party in default shall neither:

1. Exceed the amount,
2. Be different in kind from that prayed for, nor
3. Award unliquidated damages. [Sec. 3(d), Rule 9]

Question 47

Actions where default are not allowed

Answer 47

In case of failure to file an answer in an action for:

1. Annulment or declaration of nullity of marriage, or
2. Legal separation

The court shall order the Solicitor General, or his or her deputized public prosecutor:

1. To investigate whether or not a collusion between the parties exists, or
2. To intervene for the State in order to see to it that the evidence submitted is not fabricated, if there is no collusion. [Sec. 3(e), Rule 9]

Question 48

Requirements after default

Answer 48

1. TIME - The defendant must challenge the default order before judgment.
2. FAME - prevented from filing his answer due to fraud, accident, mistake or excusable negligence.
3. MERIT - he must have a meritorious defense.

Question 49

Payment of docket fees

Answer 49

Payment of docket fees is mandatory and jurisdictional [National Transmission Corporation v. Heirs of Teodulo Ebesa, G.R. No. 186102 (2016)].

Question 50

Filing versus service of pleadings

Answer 50

Filing is the act of submitting the pleading or other paper to the court. [Sec. 2, Rule 13]

Service is the act of providing a party with a copy of the pleading or any other court submission. [Sec. 2, Rule 13]

Question 51

Papers required to be filed and served

Answer 51

a. Judgment
b. Resolution
c. Order
d. Pleading subsequent to the complaint
e. Written motion
f. Notice
g. Appearance
h. Demand
i. Offer of judgment; or
j. Similar papers. [Sec. 4, Rule 13]

Question 52

Manner of filing

Answer 52

How filed
The filing of pleadings and other court submissions shall be made by:
a. Submitting personally the original to the court;
b. Sending them by registered mail;
c. Sending them by accredited courier; or
d. Transmitting them by electronic mail or other electronic means as may be authorized by the Court, in places where the court is electronically equipped. [Sec. 3, Rule 13]

Question 53

To whom service is made

Answer 53

General Rule:
Serve the copy of the pleading or the court submission to the party himself.

Exception:
If a party has appeared by counsel, service upon such party shall be made upon his or her counsel or one of the counsels.

Exception to Exception:
The court orders service upon both the party and counsel. [Sec. 2, Rule 13]

When several parties/several counsel
Where one counsel appears for several parties, such counsel shall only be entitled to one copy of any paper served upon him by the opposite side.
Where several counsels appear for one party, such party shall be entitled to only one copy of any pleading or paper to be served upon the lead counsel if one is designated or upon any one of them is there no designation of a lead counsel.
[Sec. 2, Rule 13]

Question 54

Personal service

Answer 54

Service by personal service shall be made by:
1. By personal delivery of a copy to the party, counsel, or to their authorized representative named in the appropriate pleading or motion, or
2. By leaving it in his or her office with his or her clerk, or with a person having charge thereof
• If (a) no person is found in his or her office, or (b) his or her office is not known, or (c) he or she has no office, then by leaving the copy at the party or counsel’s residence, if known, with a person of sufficient age and discretion residing therein.
• Such must be served at the residence at a time between 8 am to 6 pm. [Sec. 6, Rule 13]

Question 55

Service by mail

Answer 55

1. Depositing the copy in the post office in a sealed envelope,
2. The copy must be plainly addressed to the party or counsel at his office, if known. Otherwise, address to his residence, if known,
3. Postage must be fully prepaid, and
4. Copy must come with instructions to the postmaster to return the mail to the sender after 10 calendar days if the copy remains undelivered.

Ordinary mail – If no registry service is available in the locality of either the sender or addressee, service can be made through ordinary mail. [Sec. 7, Rule 13]

Papers that may be served through substituted service

1. Pleadings
2. Motions
3. Notices
4. Resolutions, and
5. Other papers. [Sec. 8, Rule 13]

Judgments, final orders, or resolutions cannot be served by substituted service. [1 Regalado 233, 2010 Ed.]

Question 56

Substituted service

Answer 56

When substituted service is allowed
When service cannot be made personally or by mail because the office and place of residence of the party or his counsel being unknown. [Sec. 8, Rule 13]

How substituted service is made

1. Delivering the copy to the clerk of court
2. With proof of failure of both personal service and service by mail. [Sec. 8, Rule 13]

Question 57

Service by electronic means

Answer 57

Service by electronic means and facsimile shall be made if the party concerned consents to such modes of service. [Sec. 9, Rule 13]

Service by electronic means

1. By sending an e-mail to the party’s or counsel’s e-mail address, or
2. Through other electronic means of transmission.

Before service by electronic means can be availed of, either the agreement of the parties or the direction of the court is required. [Sec. 9, Rule 13]

Service by facsimile
By sending a facsimile copy to the party or counsel’s given facsimile number.
[Sec. 9, Rule 13]

Question 58

Service of judgments, final orders, or resolutions

Answer 58

Service of judgments, final orders, or resolutions
Judgments, final orders, or resolutions shall be served either:
1. Personally,
2. By registered mail,
3. By accredited courier, upon ex parte motion of any party
4. By publication, when a party summoned by publication has failed to appear in the action. Expenses of publication must be borne by the prevailing party. [Sec. 13, Rule 13]

Question 59

Conventional service or filing

Answer 59

General Rule: The following should not be served or filed electronically, and shall be filed or served personally or by registered mail:

1. Initiatory pleadings and initial responsive pleadings (answer);
2. Subpoena, protection orders, and writs;
3. Appendices and exhibits to motions, or other documents that are not readily amenable to electronic scanning; and
4. Sealed and confidential documents or records.

Exception: When the court gives express permission for them to be filed electronically. [Sec. 14, Rule 13]

Question 60

When service is deemed complete

Answer 60

1. Personal Service - Upon actual delivery.
2. Service by ordinary mail - Upon the expiration of the 10 calendar days after mailing, unless the court otherwise provides.
3. Service by registered mail - Upon the actual receipt by the addressee, or
   after 5 calendar days from the date he or she received the first notice of the postmaster, whichever is earlier.
4. Service by accredited courier - Upon actual receipt by the addressee or
   after at least 2 attempts to deliver or
   upon the expiration of 5 calendar days after the first attempt to deliver, whichever is earlier.
5. At the time of the electronic transmission of the document or
   at the time that the electronic notification of service of the document is sent.

Note: It is not effective or complete if the party serving learns that it did not reach the person to be served.

6. Service by facismile transmission - Upon receipt by the other party as indicated in the facsimile printout.
7. Substituted service - At the time of delivery of the copy to the clerk of court. [Sec. 8, Rule 13]

Question 61

Proof of filing and service

Answer 61

General rule: The filing of a pleading or any other court submission shall be proved by its existence in the record of the case.

Exception: If the pleading or any other court document is not in the record, but is claimed to have been filed by the other modes.

Question 62

Rule on presumptive service

Answer 62

There shall be presumptive service of a notice to a party of a court setting:
1. Addressee is in the same judicial region of the court where the case is pending
• if such notice appears on the records to have been mailed at least 20 calendar days prior to the scheduled date of hearing
2. Addressee is from outside the judicial region of the court where the case is pending
• if such notice appears on the records to have been mailed at least 30 calendar days prior to the scheduled date of hearing. [Sec. 10, Rule 13]

Note: Since it is provided as a mere presumption, it may be subject to proof to the contrary, such as when counsel adduces evidence that notice of the court setting was indeed not served.

Question 63

Rule on change of electronic mail address

Answer 63

Change of electronic mail or facsimile number
A party who changes his e-mail address or facsimile number while the action is pending must file, within 5 calendar days, a notice of change of e-mail address or facsimile number with the court, and serve notice on all other parties. [Sec. 11, Rule 13]

Service through the registered e-mail of the party shall be presumed valid unless such party notifies the court of any change as aforementioned. [Sec. 11, Rule 13]

Question 64

Prescribed format

Answer 64

Subject format of electronically served documents and facsimiles
The subject of the e-mail and facsimile must follow the prescribed format:
1. Case number, followed by
2. Case title, followed by
3. The pleading, order or document title.
• The title of each electronically-filed or served pleading or document, and each submission served by facsimile, shall contain sufficient information to enable the court to ascertain from the title:
a. The parties filing or serving the paper,
b. The nature of the paper,
c. The party or parties against whom relief, if any, is sought, and
d. The nature of the relief sought. [Sec. 12, Rule 13]

Question 65

Notice of lis pendens

Answer 65

Must contain:

1. Record in office of registry of deeds of province where property is situated
2. Names of parties
3. Object of action or defense
4. Description of property

Constructive notice: only from the time of filing such notice for records

May be cancelled only upon order of the court, after proper showing that:

1. The notice is for the purpose of molesting the adverse party, or
2. That it is not necessary to protect the rights of the party who caused it to be recorded.

Question 66

Notice of lis pendens vs. adverse claim

Answer 66

[Adverse claim]
An adverse claim protects the right of a claimant during the pendency of a controversy

An adverse claim may only be canceled upon filing of a petition before the court which shall conduct a hearing on its validity

[Lis pendens]
A notice of lis pendens protects the right of the claimant during the pendency of the action or litigation
A notice of lis pendens may be canceled without a court hearing

Question 67

Amendment as a matter of right

Answer 67

A party may amend his pleading once as a matter of right
a. At any time before a responsive pleading is served, or
b. In the case of a reply, at any time within 10 calendar days after it is served
[Sec. 2, Rule 10]

A motion to dismiss is not a responsive pleading and does not preclude the exercise of the plaintiff’s right to amend his complaint. [Remington Industrial Sales v. CA, G.R. No. 133657 (2002)]

Question 68

Amendments by leave of court

Answer 68

Substantial amendments may be made only upon leave of court [Sec. 3, Rule 10]

Requisites

a. Motion for leave of court, accompanied by the amended pleading sought to be admitted; [Sec. 10, Rule 15]
b. Notice is given to the adverse party; and
c. Parties are given the opportunity to be heard. [Sec. 3, Rule 10]

When leave of court to substantially amend a pleading shall be refused
If it appears to the court that the motion was made:
1. With intent to delay;
2. With intent to confer jurisdiction on the court; or
3. The pleading stated no cause of action from the beginning. [Sec. 3, Rule 10]

Question 69

Formal amendment

Answer 69

When proper
a. Defect in the designation of the parties, or
b. Other clearly clerical or typographical errors
[Sec. 4, Rule 10]

How made
Such defects or errors are summarily corrected by the court, at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party.
[Sec. 4, Rule 10]

Question 70

Issues not raised in the pleadings

Answer 70

Claims or defenses alleged in the superseded pleading but not incorporated or reiterated in the amended pleading are deemed waived. [Sec. 8, Rule 10]

Question 71

Different from supplemental pleadings

Answer 71

When proper
A supplemental pleading is filed to set forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. [Sec. 6, Rule 10]

How made
Upon motion of a party, the court may, upon reasonable notice and upon such terms as are just, permit him or her to serve a supplemental pleading

Note: The admission or non-admission of a supplemental pleading is not a matter of right but is discretionary on the court. Note the language of Sec. 6, Rule 10: “may”.

The adverse party may plead thereto within ten (10) calendar days from notice of the order admitting the supplemental pleading.
[Sec. 6, Rule 10]

Question 72

Effect of amended pleadings

Answer 72

1. Supersedes the pleading that it amends,
2. Admissions in the superseded pleadings may be offered in evidence against the pleader

Note: The amended rules changed the word “received” into “offered”, meaning that the admissions in the superseded pleadings may not necessarily be received in evidence. They are considered extrajudicial admissions.

3. Claims or defenses alleged in the superseded pleading but not incorporated or reiterated in the amended pleading are deemed waived. [Sec. 8, Rule 10]

Question 73

Is an amendment necessary to conform to or authorize the presentation of evidence?

Answer 73

NO. When issues are not raised in the pleadings but are tried with the consent of the parties, they shall be treated as if they had been raised in the pleading. No amendment of such pleadings deemed amended is necessary to cause them to conform to the evidence. [Sec. 5, Rule 10]