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CIVIL PROCEDURE Notes on PLEADINGS Source: (Riano, 2011 ed.) By: 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. 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

3. Relief o Sought from the court and to which he believes he is entitled o ―prayer‖ o May include a general prayer for such further or their 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

4. 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 correct the deficiency if:

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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 non lawyer, otherwise void and cannot be cured or ratified. When counsel is subject to disciplinary action in connection with pleadings

a. when he deliberately files an unsigned pleading; b. when he signs a pleading in violation of the Rules; c. when he alleges in the pleading scandalous or indecent matter;

or d. 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:

a. the affiant has read the pleading, and b. that the allegations therein are true and correct of his personal

knowledge or based on authentic records 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

a. Noncompliance with verification requirements – verification is not proper

Example: based on ―information and belief‖ or upon ―knowledge,

information and belief‖ b. 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 requiring 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 requirements 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 to special civil actions, subject to specific rules Example: Every petition for certiorari shall 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

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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.

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

the Court allowed this and permitted subsequent submission of proof of authority

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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

Complaint dismissed for failure to comply with the required certification is NOT appealable.

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.

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

The ultimate facts are the important and substantial facts which form the basis of the primary right of the plaintiff and which make up the wrongful act or omission of the defendant.

The ultimate facts do not refer to the details of probative matter or to the particulars of evidence by which the material elements are to be established.

They are the principal, determinate, constitutive facts, upon the existence of which, the entire cause of action rests.

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

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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 precedent for 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

the complaint must state with particularity the fraudulent acts of the adverse party.

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.

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).

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

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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)

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;

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d) usury; and e) fraud.

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

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

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 record, 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

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PERSONAL SERVICE GR: Indispensable requirement: Written explanation

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).

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

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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

Such damages shall be considered in the assessment of the filing fee 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 automatically 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.

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.

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

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.

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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

equivalent to admission (example, see Riano, 2011 ed. pg. 315)

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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.

Does NOT occur from the failure to attend pre-trial or trial Issued as a punishment for unnecessary 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

reglamentary 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.

The court has no authority to motu proprio declare the defendant in default.

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

Should defendant fail to answer – motu proprio declaration of default

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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 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 answer 2. allow an answer to be filed after the reglamentary 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

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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.

Not part of the answer but is a separate pleading. 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

Same subject matter: action to recover possession of real property, counterclaim for compensation for improvements on land

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

But if he opts to set up CC, he may still plead his ground for dismissal as an affirmative defense in his answer

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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.

Defending party against a co-defending party 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

May be contained in the answer Cross claim must be set up in the same action

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

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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.

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;

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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.

the proper course is for the would-be intervenor to litigate his claim in a separate suit.

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.

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

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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 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.

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

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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.

Continuation of the complaint 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

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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)

Worthless piece of paper Does not stop the running of the period for filing the requisite

pleading 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) Res judicata: that the action is barred by a prior judgment, and d) Prescription: that the action is barred by the statute of limitations.

Section 1, Rule 16 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.