Revised Rules on Summary Procedure

CASES COVERED BY THE RULE

Q. What are the cases that are governed by the Rules on Summary Procedure?

A. The cases covered are the following:

CIVIL CASES:

1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where atty. fees are awarded the same shall not exceed twenty thousand pesos (P20, 000).

2) All other cases, except probate proceedings, where the total amount of the plaintiff’s claim does not exceed One hundred thousand pesos (P100, 000) or Two hundred thousand pesos (P200, 000. 00), exclusive of interests and costs.

CRIMINAL CASES:

1) Violations of traffic laws, rules and regulations

2) Violations of rental laws3) Violations of municipal or city ordinances4) All other criminal cases where the penalty

prescribed by law for the offense charged is imprisonment not exceeding 6 months or a fine not exceeding one thousand pesos (P1,000) or both, irrespective of other imposable penalties, accessory or otherwise or of the civil liability arising there from. Provided, however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed ten thousand pesos (P10,000).

5) Violation of BP 22.

EFFECT OF FAILURE TO ANSWER

Q. Can the court declare a defendant for failure to file an answer, in default if the case is governed by the Rules on Summary Procedure?

A. Where no answer is filed, the court may not declare defendant in default because a motion to declare defendant in default is a prohibited pleading. (Lesaca vs. CA 21 Oct 1991)

Q. X filed an ejectment suit against Y who filed an answer. Y filed a motion to dismiss in the guise of a position paper. X objected on the ground that such motion is a prohibited motion under the Rule on Summary Procedure. Rule on the objection.

A. Objection not meritorious. While this is indeed a prohibited motion (Sec 19[a] of Revised Rules on Summary Procedure), it should be noted that the motion was filed after an answer had already been submitted within the reglementary period. In essence, therefore, it is not pleading prohibited by the Rule on Summary Procedure. What the rule prohibits is a Motion to Dismiss which would stop the running of the period to file an Answer and cause undue delay.

Q. What are the prohibited pleadings and motions under the Revised Rule on Summary Procedure?

A. They are the following:1) Motion to dismiss the complaint or to quash

the complaint or information except on the ground of lack of jurisdiction over the subject matter or failure to comply with referral to Lupon for conciliation.

2) Motion for a bill of particulars3) Motion for new trial or for reconsideration of

a judgment or for reopening of trial4) Petition for relief of judgment5) Motion for extension of time to file

pleadings, affidavits or any other papers.6) Memoranda7) Petition for certiorari, mandamus or

prohibition against any interlocutory order issued by the court

8) Motion to declare the defendant in default9) Dilatory motion for postponement10)Reply11)Third-party complaints12) Interventions.

Q. In a case for unlawful detainer under the Revised Rules on Summary Procedure, the MTC rendered a decision in favor of A, the lessor, ordering B, the lessee, to vacate A’s apartment and to pay the back rentals. B appealed to the RTC which affirmed MTC’s decision. A anticipating another appeal by B, filed a motion for execution pending appeal pursuant Sec 21of the Revised Rule on Summary Procedure. B likewise within the reglementary period filed a petition for review of the RTC’s decision with the CA.

a) May the RTC grant A’s motion for execution pending appeal after B filed his petition for review with the CA? Explain.

b) May B validly oppose the motion for execution pending appeal on the ground that the motion is not based on the good reasons for which an execution pending appeal may be issued under Sec 2 Rule 39 of the Rules of court.

A. Yes because the decision of the RTC is immediately executory despite the appeal (Sec 21 Revised Rules of Summary Procedure)

No because Sec 2 of Rule 39 is not applicable to this case which falls under Summary Procedure.Q. For failure of the tenant, Marivic, to pay rentals, Letty, the court-appointed administrator of the estate of Santos Lindawan decides to file an action against Marivic for the recovery of possession of the leased premises located in Plaridel, Bulacan and for the payment of the accrued rentals in the total amount of P100,000. If the case is filed with the Municipal Trial Court, is it covered by the Revised Rule of Summary Procedure?

A. Yes it is covered by the Revised Rule on Summary Procedure because Sec 1 A [1] provides that “All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered”. This is a clear case of unlawful detainer and the accrued rentals of P100,000 is immaterial to the application of the Revised Rule on Summary Procedure.

Q. Distinguish action from cause of action. (1999 Bar Exam)

A. An action is one by which a party sues another for the enforcement or protection of a right or the prevention or redness of a wrong. (Sec. 3 Rule 1 1997 Rules of Civil Procedure.) A cause of action is the act or omission by which a party violates a right of another. ( Sec 2 Rule 2 of 1997 Rules. An action must be based on a cause of action. (Sec. 1 Rule 2 of 1997 Rules)

Q. A sued B to recover P500,000 based from a promissory note due and payable on 5 Dec. 1995. The compliant was filed on 30 Nov. 1998 and summons was served on B on 7 Dec. 1998. B interposes a motion to dismiss on the ground that the compliant states no cause of action. If you were the judge, how would you rule on the motion? (1999 Bar Exams)

A. If I were the judge, I would grant the motion on the ground that the compliant states no cause of action. When the complaint was filed, the promissory note was not yet due and demandable and hence the complaint was filed prematurely. This defect was not cured by the service of the summons on the defendant after the date when the promissory note became due and payable.

Q. Distinguish:1) An action IN REM from an action QUASI IN REM.2) An action QUASI IN REM from an action IN PERSONAM.3) An action IN PERSONAM from personal action.4) An action IN REM from real action.

5) A personal action from a local action. (1994 Bar )

A. An action IN REM is an action against all who might be minded to make an objection of any sort against the right sought to be established. While an action QUASI IN REM is an action against an individual although the purpose of the suit is to subject his interest in a particular property to the obligation or lien burdening the property. The judgment rendered in actions IN REM binds the whole world, while the judgment rendered in actions QUASI IN REM is conclusive only between the parties.

An action QUASI IN REM, as stated is an action against a person over a particular property or claims relating thereto, while an action in PERSONAM is an action to establish a claim against a person with a judgment that binds him personally.

An action in PERSONAM, as stated, is an action against a person on the basis of his personal liability while a personal action is an action where the plaintiff seeks the recovery of personal property, the enforcement or the resolution of a contract or the recovery of damages.

An action IN REM is an action against all who might be minded to make an objection of any sort against the right sought to be established, while a real action is an action affecting title to real property or for the recovery of possession or for partition or condemnation of or foreclosure of a mortgage on real property.

A personal action is an action where the plaintiff seeks the recovery of personal property, the enforcement or resolution of a contract or the recovery of damages, while a local action is that which must be brought in a particular place.Plaintiff in a personal action may file it in the place where he resides or where the defendant resides while in a local action, plaintiff has no choice except to file the action in the place where the property is located.

Q. Distinguish civil actions from special proceedings. (1998 Bar Exam)

A. A civil action is one by which a party sues another for the enforcement or protection of the right or the prevention or redress of a wrong, (Sec 3(a) Rule 1, 1997 Rules of Civil Procedure), while a special proceeding is a remedy by which a party seeks to establish a status, a right or a particular fact. (Sec 3(c) Rule 1)

Q. Ruby filed a collection of sum of money case against Grany on April 18, 2003, which the later contested when she filed her answer during the reglementary period. Ruby filed an amended compliant impleading Mildred as additional defendant upon a motion properly filed on May 23, 2003. When is the civil action deemed commence?

A. As to Grany, the original defendant, the civil action is deemed commenced on April 18, 2003. But with regard to Mildred, the additional defendant, it is deemed commenced on May 23, 2003. “A civil action is commenced by the filing of the original compliant on court. If the additional defendant is impleaded in a later pleading the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court.” (Sec 5 Rule 1, 1997 Rules of Civil Procedure)

Q. How shall the Rules of Court be construed (1998 Bar Exams)

A. The Rules of Court should be liberally construed in order to promote their objective of securing a just, speedy, and inexpensive disposition of every action and proceeding. (Sec 6, Rule 1 1997 Rules of Civil Procedure)

However, strict observance of the rules is an imperative necessity when they are considered indispensable to the prevention of needless delays and to an orderly and speedy dispatch of judicial business (Alvero vs. Judge dela Rosa, 76 Phil 428 and other cases)

Q. What are the kinds of actions for the recovery of possession of real property ? Explain each.

A. The kinds of actions are the following:The summary action for forcible entry and

unlawful detainer – forcible entry is a summary action to recover material or physical possession of real property when the person who originally held it was deprived of possession by force, intimidation, strategy, threat or stealth. An action for unlawful detainer, on the other hand may be filed when possession by a land lord, vendor, vendee or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of contract, express or implied. Both actions may be filed with the municipal trial court within one year after unlawful deprivation or withholding of possession.

Accion publiciana is the plenary action to recover the right of possession when dispossession has lasted for more than one year or when dispossession was affected by means other than those mentioned under Rule 70 of the Rules of Court.

Q. Define Cause of Action and give its essential elements.

A. A cause of action is defined as an act or omission of one party in violation of the legal right or rights of another. Its essential elements are:

1) legal right of the plaintiff: 2) correlative obligation of the defendant and3) an act or omission of the defendant on

violation of said legal right. There must be damage or prejudice

otherwise, no right of action arises in favor of plaintiff.

Q. Butch purchased a lot from Cosme for P1.5M. he gave a down payment of P500,000, signed a promissory note payable for 30 days after date, and as security for the settlement of the obligation, mortgaged the same lot to Cosme. When the note fell due and Butch failed to pay Cosme commended suit to recover from Butch the balance of P1M. After securing a favorable judgment on his claim, Cosme brought another action against Butch before the same court to foreclose the mortgage. Butch now files a motion to dismiss the second action on the ground of bar by prior judgment. Rule on the motion. (1999 Bar Exams)

A. The motion to dismiss should be granted. When Cosme commenced suit to collect on the promissory note, he waived his right to foreclose the mortgage. He split his cause of action which he cannot validly do.

Q. What is the rule against splitting a cause of action and its effect on the respective rights of the parties for failure to comply with the same? (1999 and 1998 Bar Exams)

A. The rule against splitting a cause of action and its effect are that if two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for dismissal of the other, the ground for dismissal is either lis pendens (if the actions are still pending) or res judicata (if the judgment in one case has already become final. (Sec 4 Rule 2 of 1997 Rules.

Q. Marife secured two loans from Nimfa, one for P500,000 and the other for P1,000,000 payable on different dates. Both have fallen due. Is Nimfa obliged file only one compliant against Marife for the recovery of both loans. Explain. (1999 Bar Exams)

A. No. Joinder is only permissive since the loans are separate loans which may be governed by different terms and conditions. The two loans give rise to two separate causes of action and maybe the basis of two separate complaints.

Q. What is the rule on joinder of causes of action? ( 1999 Bar Exams)

A. The rule on joinder of causes of action is that a party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, provided that:

1) the rule on joinder of parties is complied with

2) the joinder should not include special civil actions or actions governed by special rules

3) where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder maybe allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein

4) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (Sec. 5 Rule 2 1997 Rules)

Q. May a complaint be dismissed on the ground of misjoinder of causes of action?

A. No. Misjoinder of causes of action is not a ground for dismissal of an action. Misjoined causes of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately. (Sec. 6 Rule 2 1997 Rules)

Q. Distinguish joinder of causes of action from joinder of parties. (1996 Bar Exams)

A. Joinder of causes of action maybe made in the same complaint by one party against another, the totality of the demand determines jurisdiction of the court.

But in cases of joinder of causes of action by or against several parties, the right to relief must arise out of the same transaction or series of transactions and there must be a common question of fact or law. If these requisites are present, the totality of the demand determines the jurisdiction of the court.

Q. The complaint filed before the RTC of Candon City states two (2) causes of action, one for rescission of contract and the other for the recovery of P100,000 both of which arose out of the same transaction. Is the joinder of the two causes of action proper? Explain. (1996 Bar Exams.)

A. Yes, since the first cause of action for rescission of contract falls within the jurisdiction of the RTC of Candon City, because the subject is incapable of pecuniary estimation and the second cause of action for recovery of P100.000 is within the jurisdiction of a lower court and arose out of the

same transaction, both may be joined in the complaint filed with the RTC.

Q. Who may be parties to a civil action?

A. Parties to a civil action are the plaintiff and defendant. Persons having an interest in the subject of the action and in obtaining the relief demanded maybe plaintiffs. Persons claiming an interest in controversy adverse to the plaintiffs maybe defendants.

Parties should be (1) natural persons, (2) juridical persons (3) entities authorized by law to be parties such as labor organizations and entities without legal personality when sued as defendants. (Sec. 1 Rule 3 1997 Rules)

Q. Who is a real party in interest?

A. A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. (Sec 2 Rule 3 of 1997 Rules)

Q. Mr. Garcia, an attorney-in-fact of Mr. Ringor prosecuted a case in favor of the latter without including Mr. Ringor. The defendant Mr. Galang filed a motion to dismiss on the ground that the complaint states no cause of action. Rule on the motion.

A. Motion should be granted. The attorney in fact is not a real party in interest hence cannot prosecute the case only in his name. The complaint should include Mr. Ringor as real party in interest. Where action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. (Sec. 2 and 3 Rule 3 1997 Rules)

Q. When is permissive joinder of parties proper?

A. Permissive joinder of parties is proper when the following requisites are present:

1) The persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transaction or series of transactions is alleged to exist, whether jointly or severally or in the alternative, may join as plaintiffs or be joined as defendants in one complaint ; and

2) There is a question of law or fact common to all such plaintiff or to all such defendants in the action. (Sec. 6 Rule 3 1997 Rules)

Q. Balbin Subdivisions Inc. developed, subdivided and conveyed to lot buyers parcels of land in a subdivision owned by it. Mr. Pre claiming as owner of the whole subdivision filed a case against Balbin Subdivision Inc. for recovery of real properties. Will the action prosper?

A. No the action will not prosper. In an action for recovery of parcels of land, which had already been subdivided and conveyed to lot buyers, the latter are indispensable parties and their having been not impleaded as defendants renders the judgment and all proceedings therein held null and void for want of authority on the part of the court to act not only as to the absent parties but also as to the present. Sec. 7, Rule 3 of 1997 Rules provides that “parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants. Failure to include indespensable parties is a ground for dismissal of action.Q. Who is a necessary party?

A. A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties or for a complete determination or settlement of the claim subject of the action.

Q. Distinguish indispensable and necessary parties.

A. A proper party or necessary party is one which ought to be a party if complete relief is to be accorded as between those already parties.

An indispensable party is a party who must be made a party either as plaintiff or defendant if final determination can be had of an action.

In other words, a necessary party need not be joined as party litigant and the court can still adjudicate the controversy as between the parties already in court.

On the other hand, an indispensable party must be joined under all circumstances to enable the court to resolve the dispute; otherwise the case must be dismissed.

Q. Give the effect of the non-joinder of a necessary party. (1998 Bar Exams)

A. The effect of the non-joinder of a necessary party may be stated as follows: the court may order the inclusion of an omitted necessary party if jurisdiction over his person may be obtained.

The failure to comply with the order for his inclusion without justifiable cause is a waiver of the claim against such party.

The court may proceed with the action but the judgment rendered shall be without prejudice to the rights of such necessary party. (Sec. 9 Rule 3 1997 Rules of Civil Procedure)

Q. What is the rule in cases of unwilling plaintiff? A. An unwilling plaintiff who is a real or indispensable party should be impleaded as defendant and the reason therefore stated in the complaint. (Sec. 10 Rule 3 1997 Rules)

Q. Is misjoinder and non-joinder of parties a ground for dismissal of an action?

A. Neither misjoinder nor non-joinder of parties is ground for dismissal of an action.

Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such forms as are just.

Any claim against a misjoined party may be severed and proceeded with separately. (Sec. 11 Rule 3 1997 Rules)

Q. What are the requisites of a class suit?

A. The following are the requisites of a class suit:

1) The subject matter in controversy is of common or general interest to many persons

2) There is only one right or cause of action pertaining or belonging in common to many persons, not separately or severally to distinguish the individuals

3) The parties are so numerous that it would be impracticable to bring them before the court.

Q. Francisca filed a complaint for the recovery of ownership of land against Santos who was represented by his counsel Romeo. In the course of trial Santos died. However Romeo failed to notify the court of Santos’s death.

The court proceeded to hear the case and rendered judgment against Santos. After judgment became final, a writ of execution was issued against Cosme, who being Santos’ sole heir, acquired the property.(1) If you were counsel of C, what course of action would you take?(2) Did the failure of Romeo to inform the court of Santos’s death constitute direct contempt? (1998 Bar Exams)

A: As counsel of Cosme, I would move to set aside the writ of execution and the judgment for lack of jurisdiction and lack of due process in the same court because the judgment is void. If X had notified the court of B’s death, the court would have ordered the substitution of the deceased by Cosme, the sole heir of Santos. (Sec. 16 Rule 3 of 1997 Rules of Civil Procedure)

The court acquired no jurisdiction over Cosme upon whom the trial and the judgment are not binding. I could also file an action to annul the judgment for lack of jurisdiction because Cosme, as the successor of Santos was deprived of due process and should have been heard before judgment.

No. It is not direct contempt under Sec. 1 Rule 71 but it is indirect contempt within the purview of Sec. 3 of Rule 71. The lawyer can also be the subject of disciplinary action. (Sec. 16 Rule 3 1997 Rules of Civil Procedure.)

Q. What is the duty of the counsel if his client dies during the pendency of a case?

A. Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives.

Failure of counsel to comply may subject him to disciplinary action. (Sec. 16 Rule 3 1997 Rules)

Q. What is the rule in cases of transfer of interests?

A. In case of any transfer of interest, the action maybe continued by or against the original party, unless the court upon motion directs the person whom the interest is transferred to be substituted in the action or joined with the original party.

Q. When A (buyer) failed to pay the remaining balance of the contract price after it became due and demandable, B (seller) sued him for collection before the RTC. After both parties submitted their respective evidence, A perished in a plane accident. Consequently, his heirs brought an action for the settlement of his estate and moved for the dismissal of the collection suit.(1) Will you grant the motion? Explain.(2) Will your answer be the same if A died while the case is already on appeal to the CA? Explain.(3) In the same case, what is the effect if B died before the RTC has rendered judgment? ( Bar Exams)

A. No, because the action will not be dismissed but shall instead be allowed to continue until entry of final judgment.

No, if A died while the case was already on appeal in the court of Appeals, the case will continue because there is no entry yet of final judgment.

The effect is the same. The action will not be dismissed but will be allowed to continue until entry of final judgment. (Sec. 20 Rule 3 1997 Rules)

Q. What is the rule to be observed in case of death of the obligor if there are claims against him?

A. If it is a money claim arising from contract, express or implied the following rule should be observed: (1) If the obligor dies before an action could be filed against him, the obligee will have to file a money claim with the probate court: (2) If the action has already been instituted against the obligor, and he dies before entry of final judgment in the court in which the action is pending at the time of such death, the action shall not be dismissed but shall instead be allowed to continue until entry of final judgment.

• Martinez vs. Pp. May 31, 2000

The plaintiff can then file it as a money claim based on judgment in the probate court. If it is a claim that does not arise from contract, such as a claim for damages for injury to person or property: (1) if the obligor dies before an action could be filed against him an ordinary action may be filed against his executor or administrator (2) if the obligor dies after an action has already been instituted against him, the action will continue until final judgment. The judgment may be executed against his executor or administrator.Q. What is the rule in the case of indigent party or pauper litigants?

A. A party may be authorized to litigate his action, claim or damages as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides. (Sec. 21 Rule 3 1997 Rules of Civil Procedure)

A motion to litigate as an indigent can be made even before the appellate court either for the prosecution of appeals, in petitions for review or in special civil actions. (Martinez vs. Pp. May 31, 2000.)

Q. When is Solicitor General’s appearance required by the Rules?

A. In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through a representative duly designated by him.

Q. Joyce a resident of Pangasinan sued Jeff, a resident of San Fernando City, La Union in the RTC of Quezon City for the collection of a debt of P1M.

Jeff did not file a motion to dismiss for improper venue but raised it as an affirmative defense in his answer. Rule on the affirmative defense of improper venue.

A. There is improper venue. The case for sum of money which was filed in Quezon City, is a personal action. It must be filed in the residence of either the plaintiff, which is Pangasinan, or of the defendant which is San Fernando City, at the election of plaintiff (Sec. 2 Rule 4 of 1997 Rules of Civil Procedure). The fact that it was not raised in a motion to dismiss does not matter because the rule that if improper venue is not raised in a motion to dismiss it is deemed waived was removed from the 1997 Rules of Civil Procedure. The new rules provided that if no motion to dismiss has been filed, any of the grounds for dismissal may be pleaded as an affirmative defense in the answer. (Sec. 6 Rule 16 of 1997 Rules)

Q. Jessa, a resident of Angeles City, borrowed P300,000 from Kimjer, a resident of Pasay City. In the loan agreement, the parties stipulated that “the parties agree to sue and be sued in the City of Manila.”(1) In case of non-payment of the loan, can Kimjer file his complaint to collect the loan from Jessa in Angeles City?(2) Suppose the parties did not stipulate in the loan agreement as to venue, where can Kimjer file his complaint against Jessa?(3) Supposed the parties stipulated in their loan agreement that “venue for all suits arising from this contract shall be the courts of Quezon City,” can Kimjer file her complain against Jessa in Pasay City? (1997 Bar Exams)

A: Yes because the stipulation in the loan agreement that “the parties agree to sue and be sued in the City of Manila” does not make Manila the “exclusive venue thereof” (Sec. 4 Rule 4). Hence, Kimjer can file her complaint in Angeles City where the resides (Sec. 2 Rule 4 of 1997 Rules).

If the parties did not stipulate on the venue, Kimjer can file complaint either in Angeles City where Jessa resides or Pasay City where she resides.

NO. If the parties stipulated that the venue “shall be in the courts in Q.C.” Kimjer cannot file her complaint in Pasay City because of the word “shall” makes Quezon City the exclusive venue thereof.

Q. Josie, a resident of Laoag City file a case for recovery of ownership of a parcel of land with an assessed value of P200,000 located at Vigan City

against Crisel, a resident of La Union. Where the case shall be filed?

A. The case should be filed with the RTC of Vigan City because the action is a real action. Sec. 1 Rule 4 provides that “Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof is situated. Forcible entry and detainer actions shall be commenced and tried in the MTC of the municipality or city wherein the real property involved, or a portion thereof is situated.”

Q. Where is the venue of personal actions?

A. All other actions may be commenced and tried where the plaintiff or any of the principal plaintiff resides, or where the defendant or any of the principal defendants resides or in the case of non-resident defendant where he may be found, at the election of the plaintiff.

Q. David married Fely on June 18,1995 at Candon City, Ilocos Sur. In April 1997 Fely went to the United States and never returned to the Philippines. They have no communication since then. David filed an annulment case against Fely at the RTC of Candon City where he resides. Is the action properly filed?

A. Yes. Sec. 3 Rule 4 provides that “If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found.

Q. What is venue?

A. Venue of action is the place where the action is to be tried, whether real or personal. Venue relates to place of trial, not to jurisdiction, touches more on the convenience of the parties rather than the substance of the case.

Q. Distinguish venue from jurisdiction.

A. Venue refers to the place where the action is to be instituted, jurisdiction refers to the authority of the court to try and decide the case. Venue may be waived; jurisdiction (as to subject matter cannot be waived. Venue may be the subject of a written agreement between the parties; jurisdiction cannot be the subject of the written agreement between parties.

Q. What are pleadings?

A. Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (Sec. Rule 6 of 1997 Rules)

Q. What is a complaint?

A. A complaint is the pleading containing the plaintiff’s cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint. (Sec. 3 rule 6 of 1997 Rules of Civil Procedure) The complaint should inform the defendant of all the material facts on which the plaintiff relies to support his demand, it should state the theory or cause of action which forms the bases of the plaintiff’s claim of liability.

Q. What is an answer?

A. An answer is a pleading which a defendant files against the complaint and raises defenses to defeat the claim against him; he may also; in the answer, raise counter claims against the plaintiff.

Q. What are the kinds of defenses? Explain each.A. Defenses may either be negative or affirmative. A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery.

Q. What should the defendant do in cases where an action is based on an actionable document?

A. The claim or defense should be denied specifically under oath, otherwise the genuineness and due execution of a written instrument copied in or attached to a pleading are deemed admitted.

Q. Maui filed an action against Tracy for recovery of possession of a piece of land. Tracy in her answer specifically denied Maui’s claim and interposed as a counter claim the amount of Php 150,000. 00 arising from another transaction, consisting of the price of the car he sold and delivered to Maui and which the latter failed to pay. Is Tracy’s counter claim allowed under the rules? Explain. (1996 BAR Exams)

A. Tracy’s counter claim is a permissive counter claim in as much as it arises out of another transaction that is the subject matter of its

complaint. It is allowed if it is within the jurisdiction of the court.

Alternative Answer:The question does not state in what court

Maui filed the action. If the assessed value of the property does not exceed Php 20,000. 00 the action may be filed in the MTC in which case the counter claim of Php 150,000. 00 may be allowed in as much as it is within its jurisdiction.

Q. Aya sues Lea for recovery of a tract of land. Lea seeks in turn to be reimbursed the value of improvements she has introduced in the same land and the payment of damages she has sustained. Should Lea file a separate action against Aya for that purpose? (1996 BAR Exams)

A. No. Leah’s claim cannot be made in a separate action. It is a compulsory counter claim in the suit filed by Aya against Lea for the recovery of the land. A compulsory counter claim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court can not acquire jurisdiction. If Lea’s claim is not set up in the suit filed by Aya, the claim is barred. (Sec.7 Rule 6 1997 Rules of Civil Procedure)

Q. Is a “motion to dismiss with counter claim” sanctioned by the rules of Court? (1992 BAR Exams)

A. No, because a counter claim is contained in an answer and not in a motion to dismiss.

What the defendant should do is to plead the ground of his motion to dismiss as an affirmative defense in his answer together with his counter claim.

Q. What is a counter claim?

A. A counter claim is any claim which a defending party may have against an opposing party. (Sec. 6 Rule 6 1997 Rules)

Q. Give the requisites of compulsory counter claim?

A. The following are the requisites of a counter claim.

1) It arises out of, or is necessary connected with the transaction or occurrence that is 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.

3) It must be cognizable by the regular courts of justice.

4) It must be within the jurisdiction of the court both as to amount and the nature thereof, except that in an original action before the RTC, the counter claim is considered compulsory regardless of the amount thereof;

5) It must already be existing at the time the defending party files his answer. (Sec. 7 Rule 6 of the 1997 Rules of Civil Procedure)

Q. B and C borrowed P400, 000.00 from A. The promissory note was executed by B and C in a joint and several capacity. B who received the money from A, gave C P200, 000.00. C in turn loaned P100, 000.00 out of the P200, 000.00 he received, to D.

1.) In an action filed by A against B and C with the RTC, can B file a cross-claim against C for the amount of P200, 000.00?

2.) Can C file a third party complaint against D for the amount of P100, 000.00? (1997 Bar Exams)

A. Yes, B can file a cross-claim against C for the amount of P200,000 given to C. A cross-claim is a claim filed 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 counter claim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of the claim asserted in the action against the cross-claimant. (Sec. 8 Rule 6 1997 Rules)

Yes, C can file a third party complaint against D because the loan of P100,000 was taken out of the P200,000 received from B and hence the loan seeks contribution in respect to his opponent’s claim. (Sec. 11 Rule 6 of 1997 Rules)

Q. A assembles an owner-type jeep for B who in turn rents it to X. Due to faulty brakes, X figures in a vehicular accident causing him severe injuries. X files an action for damages against A and B. May B file a third-party complaint against A for indemnity? Explain. (1996 Bar Exams)A. No, because what B should file is a cross-claim against his co-defendant A. third-party complaint is not available because both A and B are made defendants in the case.

Q. What is a reply?

A. A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. (Sec. 10 Rule 6 1997 Rules)

Q. A, after he files his complaint wants to allege claims arising out of new matters, how will A plead such new matters?

A. A should set forth the new matters in an amended or supplemental complaint.

Q. What is the effect if there is no reply filed?

A. If a party does not file a reply, all matters alleged in the answer are deemed controverted. (Sec. 10 Rule 6 1997 Rules)

Q. What is a third-party complaint?

A. A third-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-party defendant for contribution, indemnity, subrogation or any other relief, in respect to his opponents claim. (Sec. 12 Rule 6 1997 Rules)

Q. When may a third-party complaint be disallowed?

A. In the following cases, a third-party complaint may be disallowed:

1) When the resolution of the main case would be delayed as when the third-party defendant cannot be located.

2) When there are extraneous matters that would be raised

3) When the main action is for declaratory relief.

Q. Cesar Antonio Surla and wife Evangeline filed a complaint for damages against Santo Tomas University Hospital alleging that their son suffered damages when he fell from the hospital’s incubator. The hospital filed an answer alleging counter claims of unpaid hospital bills and professional fees of the doctors as well as moral and exemplary damages against plaintiffs without a certificate of non-forum shopping. State the effects of failure to submit a non-forum shopping certificate. Explain.

A. It depends. A certificate of non-forum shopping is not necessary with respect to the counter claim for moral and exemplary damages because the same is not an initiatory pleading. Such certificate is necessary only when the pleading is initiatory. The reason for the rule is that, the counter claim is merely auxiliary to the proceedings. The counter claim for the unpaid hospital bills however, is an initiatory pleading as it serves as an independent claim. The same did not arise out of the same transaction or occurrence that is the subject matter of plaintiff’s complaint which is the alleged negligence of hospital employees. The hospital’s claim arose out of contract.

Q. BA Savings Bank filed a petition for certiorari with the CA with a certificate of non-forum-shopping signed by its lawyer. It was dismissed by the CA on that ground. It filed a motion for reconsideration attaching thereto a corporate secretary’s certificate authorizing its lawyer to represent it in the action and to sign, execute and deliver a certificate of non-forum shopping. The motion was denied on the ground that the rule requires that it is the petitioner, not the counsel, who must sign the certificate. Is the ruling correct? Why?

A. No, the certificate of non-forum-shopping may be signed for and in behalf of a corporation, specifically by a lawyer who has personal knowledge of the facts required to be disclosed in such document. Corporations perform physical actions only through properly delegated individuals like its officers or agents. In case of natural persons, the rule requires the parties themselves to sign the certificate of non-forum-shopping. However, such does not apply to corporations. There is no circumvention if the certificate was signed by the corporations authorized counsel, who had personal knowledge of the matters required by the rule.

Q. What is the effect of an unsigned pleading? Is the rule absolute? Why?

A. An unsigned pleading produces no legal effect. However the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay (Sec. 3 Rule 7 of 1997 Rules). This is because the requirement as to the signature of a lawyer is mere formal requirement which can be cured.

Q. What is the effect of an unverified pleading?

A. It shall be treated as an unsigned pleading. In fact this is also the effect if the verification contains a verification based on “information and belief” or upon “knowledge, information and belief”. The rule is so because the Rules require that a pleading is verified by an affidavit that the pleading and the allegations therein are true and correct of his personal knowledge or based on authentic records. (Sec. 4 Rule 1997 Rules)Q. What is forum-shopping? What are the sanctions imposed for its violation? (1996 Bar Exams)

A. Forum-shopping is the filing of multiple petitions, complaints or other initiatory pleadings involving the same issues in the SC, CA or other tribunals or agencies, for the purpose of securing a favorable judgment with the result that said courts,

tribunals or agencies have to resolve the same issues.

Any violation thereof shall be a cause for the dismissal of the complaint, petition, application or other initiatory pleading, upon motion and after hearing. However, any clearly, willful and deliberate forum shopping by any party and his counsel through the filing of multiple complaints or other initiatory pleadings to obtain favorable action shall be a ground for summary dismissal thereof and shall constitute direct contempt of court. Furthermore, the submission of false certification or non-compliance with the undertaking therein, shall constitute indirect contempt of court, without prejudice to disciplinary proceedings against the counsel and filing of a criminal action against the guilty party. (Sec. 5 Rule 7 1997 Rules)

Q. What is the significance of a counsel’s signature in a pleading? (1996 Bar Exams)

A. The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information and belief there is a good ground to support it; and that it is not interposed for delay. (Sec. 5 Rule 7 of 1997 Rules)

Q. Who must execute the certification against forum shopping?

A. The certification against forum shopping must be executed by the party and not his counsel. Where there are several plaintiffs or petitioners, the certification against forum shopping must be signed by all of them.

Q. The complaint alleged that the defendant acted in bad faith, arbitrarily, wrongfully, and in violation of law. However it did not contain any averment of facts constituting plaintiff’s cause of action. Does the complaint state a cause of action? Explain.A. No, because it does not state the ultimate facts constituting the plaintiff’s cause of action. The allegations that the defendant acted in bad faith, arbitrarily, illegally, wrongfully and in violation of law are mere conclusions of fact or conclusions of law.Alternative Answer:

Yes, if the complaint alleges ultimate facts and states that the acts were done in bad faith, arbitrarily, illegally, wrongfully and violation of law. The rule allows malice, intent, knowledge or other condition of mind to be averred generally. (Sec. 5 Rule 8 of 1997 Rules)Q. How may a party plead an actionable document?

A. The following are the ways of pleading on actionable document:

1) by setting forth the substance of such document in the pleading and attaching the original or copy of said document thereto as annex or

2) by setting forth said document verbatim in the pleading (Sec. 7 Rule 8 1997 Rules)

Q. Dalaodao Restaurant entered into a contract with Mr. Butch for the latter to deliver vegetables to the former. Mr. Butch contacted Malag Vegetables Products in order to get the needed vegetables. However due to low produce of vegetables, Mr. Butch wasn’t able to deliver the ordered vegetables. Due to damages suffered, Dalaodao Restaurant sued Mr. Butch and Malag Veg. Products and used the contract as basis of the claim. What should the defendants do in order to resist the claim?

A. Sec. 8 Rule 8 of the 1997 Rules of Civil Procedure provides that “Whenever an action or defense is based upon a written instrument or document, copied in or attached to the corresponding pleading, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party under oath, specifically denies them and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original is refused.

Mr. Butch should specifically deny under oath the genuineness and due execution of the contract but such requirement does not apply to Malag Vegetable Product because it was not a party to the contract.

Q. When may a party be declared in default? (1999 Bar Exams)

A. A party may be declared in default when he fails to answer within the time allowed therefore and upon motion of the claiming party with notice to the defending party, and proof of such failure to answer. (Sec. 3, Rule 9 of the 1997 Rules)

Q. What is the effect of an Order of Default? (1999 Bar Exams)

A. The effect of an Order of Default is that the court may proceed to render judgment granting the claimant such relief as his pleading may warrant unless the court in its discretion requires the claimant to submit evidence. The party in default cannot take part in the trial but shall be entitled to notice of subsequent proceedings (Sec. 3[A] Rule 9 of 1997 Rules)Q. For failure to seasonable file his answer despite due notice, A was declared in default in a case instituted against him by B. The following day,

A’s mistress who is working as a clerk in the sala of the judge before whom his case is pleading, informed him of the declaration of default. On the same day, A presented a motion under oath to set aside the order of default on the ground that his failure to answer was due to fraud and he has a meritorious defense. Thereafter he went abroad. After his return a week later, with the case still undecided, he received the order declaring him in default. The motion to set aside default was opposed by B on the ground that it was filed before A received notice of his having been declared in default, citing the rule that the motion to set aside may be made at anytime after notice but before judgment. Rule on the motion to set aside order of default.

A. Assuming that the motion to set aside complies with the other requirements of the rule, it should be granted. Although such a motion may be made after notice but before judgment (Sec. 3 [B] Rule 9) with more reason it may be filed after discovery even before receipt of the order of default.

Q. What are the available remedies of a party declared in default?

(1) Before the rendition of judgment?(2) After judgment but before finality?(3) After finality of judgment? (1998 Bar Exams)

A. The available remedies of a party declared in default are as follows:

1) Before the rendition of judgment (a) he may file a motion under oath to set aside the order of default on the grounds of fraud, accident, mistake, excusable negligence and that he has meritorious defense (Sec. 3 [b] Rule 9 1997 Rules) and if it is denied, he may move to reconsider, and if reconsideration is denied, he may file the special civil action of certiorari for grave abuse of discretion tantamount to lack or excess of the lower court’s jurisdiction. (Sec. 1, Rule 65 Rules of Court) or (b) he may file a petition for certiorari if he has been illegally declared in default e.g. before the expiration of the time to answer.

2) After judgment but before its finality, he may file a motion for new trial on the grounds of fraud, accident, mistake, excusable negligence or a motion for reconsideration on the ground of excessive damages, insufficient evidence or the decision or final order being contrary to law (Sec. 2 Rule 37 1997 Rule of Civil Procedure). If the motion is denied, appeal is available under Rule 40 or 41 whichever is applicable.

3) After finality of judgment, there are three ways to assail the judgment, which are: (a) a petition for relief from judgment under Rule 38 on the grounds of fraud, accident, mistake, excusable negligence; (b) annulment of judgment under Rule 47 for extrinsic fraud or lack of jurisdiction; or (c) certiorari under Rule 65 if the judgment is void on its face or by the judicial record.

Q. Mr. X filed a compliant against Mr. Y in the RTC. Before an answer is served he amended his complaint without leave of court. Can he validly do that?

A. Yes, a party may amend his pleading once as a matter of right at anytime before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. (Sec. 2 Rule 10 1997 Rules). The amendment is a matter of right since no answer was filed and served yet hence Mr. X may do the amendment without leave of court.

Q. How may pleadings be amended?

A. Pleading be amended either by:1) adding or striking out an allegation or the

name of any party;2) correcting a mistake in the name of a party

or a mistake or inadequate allegation or description in any other respect.

Q. Angel filed a compliant against Beverly, who filed a Motion to Dismiss. May Angel amend her complaint as a matter of right?

A. Yes, because no answer or a responsive pleading was filed. A motion to dismiss is not a responsive pleading.

Q. In the problem above, what if Beverly filed an answer and no reply was filed yet, may Beverly amend her answer?

A. Yes, Beverly has the right to amend her answer before a reply. No responsive pleading has been filed to the answer.

Q. When is amendment a matter of privilege?

A. Substantial amendment is a matter of privilege after the case is set for hearing and hence, needs leave of court. This is true even if the amendment does not substantially alter the cause of action or defense. (Sec. 3 Rule 10 1997 Rules)

Q. When may leave of court to amend the complaint be refused?

A. Leave of court to amend the pleading may be refused if:

1) the motion is made to delay the action,2) the cause of action or defense is

substantially altered.

Q. What are the kinds of amendment? Distinguish.

A. The kinds of amendments are (1) formal amendments and (2) substantial amendments.

Formal amendments are those which affect the form of the pleading such as clerical or typographical errors, not the substantial rights of the parties. Whereas substantial amendments are those that strike at the very essence of the party’s claim or defense and are consequently prejudicial to the other party.

Q. The plaintiff filed an amended complaint in a civil case. Will the amendment be barred if after the filing of the complaint and before the filing of the amendment, the period of prescription concerning the cause of action as to which the amendment was, had expired? Explain.

A. Yes, the rule permits a party to amend his compliant to incorporate a cause of action already in existence at the filing of the original pleading. In the case at bar, after the plaintiff filed his complaint, the cause of action subject matter of the amended complaint was already barred by prescription. A cause of action already barred by prescription can no longer be ventilated in a court of law.

Q. Aubrey filed a case against Malou. At the trial, Malou presented evidence changing his defense without prior amendment of his pleadings. Discuss the validity of the same.

A. Malou can do it even without amending his answer. It may be pointed out that under Sec.5 Rule 10 of 1997 Rules of Civil Procedure, such amendment of the pleadings as may be necessary to cause them to conform to evidence and to raise these issues may be made upon motion of any party at any time, even if after judgment; but failure to amend does not affect the result of the trial of these issues.

Q. Give the limitations on the right to amend pleadings.

A. The limitations in amending pleadings are the following:

1) it cannot change substantially the cause of action or defense or theory

2) it cannot alter a final judgment on a substantial matter

3) it cannot confer jurisdiction

4) it cannot cure a premature or non-existing cause of action

5) it cannot be used to delay proceedings.

Q. What are amended and supplemental pleadings?

A. An amended pleading is one which incorporates facts, circumstances or occurrences that constitute the cause or causes of action or defenses already in existence at the filing of the original pleading and which were not included either because the same were merely overlooked or then not known.

A supplemental pleading refers to one that incorporates new facts, occurrences, circumstances that constitute a new cause of action or defense which only happen after the filing of the original pleading.

Q. Ana filed a complaint for sum of money against Bea in the amount of P500,000 stating that of the P1M obligation of the defendant, Bea had already paid P500,000. Later on Ana filed an amended complaint stating that Bea has not paid her obligations. State the effects of the filing of the amended complaint.

A. Sec. 8 Rule 10 of the 1997 Rules of Civil Procedure provides that “An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claim or defenses alleged therein not incorporated in the amended pleading shall be deemed waived.” The amended pleading is an admission by Ana that Bea had paid P500,000 which Bea can use as evidence against Ana.

Q. Distinguish amended pleading from supplemental pleading.

A. A supplemental pleading does not extinguish the existence of the original pleading, while an amended pleading takes the place of the original pleading. A supplemental pleading exists side by side with the original, it does not replace that which it supplements; it does not supersede the original pleading and the issues joined under the original pleading remain as issues to be tried in the action. A supplemental pleading supplies the deficiencies in aid of an original pleading, not to entirely substitute the latter. (Sps Caoili vs. CA 14 1999)

Q. Within what period should an answer be filed?

A. The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court. (Sec. 1 Rule 11 of 1997 Rules)

Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer is to be filed within thirty (30) days after receipt of summons by such entity. (Sec. 2 Rule 11 Rules)Q. Within what period may an answer to an amended complaint be filed?

A. Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) days after being served with a copy thereof.

Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. (Sec. 3 Rule 11 1997 Rules)

Q. Ara filed a sum of money case against Tracy. Ara amended her complaint with leave of court which was granted. Tracy failed to file an answer to the amended complaint. May she be declared in default?

A. No, although the defendant is given 10 days to answer, Sec. 3 Rule 11 of 1997 Rules of Civil Procedure provides that “An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. Tracy had already filed an answer hence cannot be declared in default.

Q. Is extension of time to plead allowable?

A. Yes upon motion and such terms as may be just, the court may extend the time to plead, (Sec. 11 Rule11 1997 Rules), provided that the motion for extension of time to plead is filed before the lapse of the period; otherwise, there is nothing more to extend.

Q. What is the period to answer a counter claim or cross-claim? What is the purpose?

A. A counter claim or cross claim should be answered within 10 days from service. (Sec. 4 Rule 11 of 1997 Rules). Counter claim or cross-claim is never considered as defense but as a counter-action or cross-action.

There can be default except if the counter claim is compulsory.

Q. What is the period to reply? Is it mandatory?

A. A reply may be filed within 10 days from service of the pleading responded to. (Sec. 6 Rule 11 1997 Rules) It is optional because if there is no reply the party is deemed to have controverted all the new matters called in the answer except when the answer is based on an actionable document.

Q. Defendant failed to file an answer within the prescriptive period, what must he do if he was not yet declared in default?

A. A motion for leave to admit answer should be filed and the answer should be attached to it.Q. Defendant failed to answer a supplemental complaint, may he be declared in default? What is the period to answer supplemental complaint?

A. Sec. 7 of Rule 11 of 1997 Rules provides that “A supplemental complaint may be answered within 10 days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed.

Q. How may a counter claim or cross-claim which a party failed to allege be pleaded?

A. When a pleader fails to set up a counter claim or a cross-claim through oversight, inadvertence or excusable neglect, or when justice requires, he may, by leave of court set up the counter claim or cross-claim by amendment before judgment.

Q. Maui sued Rica to recover P300, 000.00 representing unpaid obligation of defendant for office equipment purchased from plaintiff. Considering that Rica cannot determine exactly how come she still had such obligation, what procedural step must she take to protect her interest?

A. Rica must file a motion for a bill of particulars within ten (10) days after service of summons and a copy of the complaint to her, for a more definite statement regarding the particulars of this P300, 000.00 obligation.

Q. What is the concept of a bill of particulars?

A. A bill of particulars is a detailed explanation respecting any matter which is not averred with sufficient definiteness or particularity in the complaint so as to enable a party to properly prepare his responsive pleading or to prepare for trial.

The bill of particulars is filed by the plaintiff pursuant to an order of the court issued upon granting a motion for a bill of particulars filed by the defendant before the latter files his answer. In this motion the defendant prays for a more definite statement of matters which are not averred with sufficient definiteness in the complaint.

Q. What is the effect of the filing of a bill of particulars?

A. A seasonable motion for a bill of particulars interrupts the period within which to answer. After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party shall have the same time to serve his responsive pleading, if any is permitted by the rules, as that to which he was entitled at the time of serving his motion, but no less than five (5) days in any event. (Sec. 5 Rule 12 1997 Rules)Q. What should a party do if a motion for bill of particulars is granted?

A. Sec. 3 Rule 12 of 1997 Rules of Civil Procedure provides that “if the motion for bill of particulars is granted, in whole or in part, the compliance therewith must be effected with ten (10) days from notice of the order, unless a different period is fixed by the court.

Q. What is the effect of non-compliance with the order to file bill of particulars?

A. If the order to file a bill of particulars is not obeyed or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just. (Sec. 4 Rule 12 1997 Rules)

Q. How should the bill of particulars be filed?

A. It may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. (Sec. 3 Rule 12 of 1997 Rules)

PRELIMINARY CONFERENCE AND APPEARANCES OF THE PARTIES

Q. What action shall the court take upon the filing of a civil or criminal action?

A. Upon the filing of a civil or criminal action, the court shall issue an order declaring whether or not the case shall be governed by this Rule. A patently erroneous determination to avoid the application of the Rule on Summary procedure is a ground for disciplinary action.

Q. What pleadings are allowed under the rules on summary procedure?

A. The only pleadings allowed to be filed are the complaints, compulsory counterclaims and cross-claims pleaded on the answer, and the answers thereto. All pleadings shall be verified.

Q. Suppose the court has determined that the case falls under the rule on summary procedure, can it dismiss the case outright on any ground

apparent there from for the dismissal of a civil action?

A. Yes. Sec.4 of the Revised Rule on Summary Procedure provides that “after the court determines that the case falls under summary procedure, it may from an examination of the allegations therein and such evidence as may be attached thereto, dismiss the case outright on any of the grounds apparent there from for the dismissal of a civil action. If no ground for dismissal is found it shall forthwith issue summons which shall state that the summary procedure under this Rule applies.

Q. A complaint for forcible entry was filed by Miss SG against Mr. X and Mr. Y before the MTCC of B.C. Mr X and Mr Y filed with the MTCC of Baguio City an urgent motion for extension of time to file an answer which was denied on the ground that it was a prohibited pleading under the rule on summary procedure. More than 10 days from receipt of summons petitioner submitted an urgent motion praying for the admission of their answer, which was attached thereto. Rule on the motion.

A. I will deny the motion. The Rule on Summary Procedure, in particular, was promulgated for the purpose of achieving “an expeditious and inexpensive determination of cases. For this reason, the rule frowns upon delays and prohibits altogether the filing of motions for extension of time. Consistent with this reasoning is Sec 6 of the Rule which allows the trial court to render judgment, even motu proprio, upon the failure of a defendant to file an answer within the reglementary period. The filing of an answer within the reglementary period is mandatory and non extendible. The word “shall” underscores the mandatory character of the Rule. Giving the provisions, a directory application would subvert the nature of the rule on Summary Procedure and defeat its objective of expediting the adjudication of suits. To admit a late answer is to put premium on dilatory manners.

Q. What are the reglementary periods within which answers must be filed?

A. Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. The answers to counterclaims or cross-claims shall be filed and served within 10 days from service of the answers in which they are pleaded. (Sec 5)

Q. May defenses be waived under the Rule on Summary Procedure?

A. Yes. Affirmative and negative defenses are deemed waived if not pleaded in the answer; except lack of jurisdiction over the subject matter. ***Cross-claims and compulsory counterclaims are deemed barred if not pleaded.

Q. What are the effects of non- appearance of parties during preliminary conference.

A. Preliminary conference shall be held not later than 30 days after the filing of the last answer. ***If plaintiff fails to appear, the case can be dismissed. ***If defendant appears while plaintiff did not, the defendant shall be entitled to judgment on his counterclaim. All cross-claims shall be dismissed. ***If sole defendant fails to appear, the plaintiff shall be entitled to judgment as may be warranted by the allegations in the complaint and evidence. In Lesaca vs. CA 21 Oct 1992, it was held that failure of defendant to appear at the preliminary conference is not a ground for judgment by default. ***The rule does not apply if there are two or more defendants who were sued under a common cause and have a common defense.

Q. What is the duty of the court, in criminal cases covered by Rule on Summary Procedure if the case is commenced by complaint? Or by information?

A. On the basis of the complaint and the affidavits and other evidence accompanying the same, the court may dismiss the case outright for being patently without basis or merit and order the release of the accused if in custody. When the case is commenced by information, or is not dismissed pursuant to the next preceding paragraph, the court shall issue an order which together with copies of the affidavits and other evidence submitted by the prosecution, shall require the accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf serving copies thereof on the complainant or prosecutor not later than 10 days from receipt of such order. The prosecution may file reply affidavits within ten (10) days after receipt of the counter affidavits of the defense.

Q. In pre-trial of criminal cases, there are admissions made by the accused. Are they admissible against him?

A. It depends. In pre-trial conference, no admission of the accused can be used against him unless put to writing and signed by the accused and his counsel. A refusal or failure to stipulate shall not prejudice the accused.

Q. When may the court order the arrest of the accused?

A. The court shall not order the arrest of the accused except for failure to appear whenever required. Release of the person arrested shall either be on bail or recognizance by a responsible citizen acceptable to the court.

Q. In an ejectment case which was covered by the Rule on Summary Procedure, defendant lost in the MTC. He appealed to the RTC which affirmed the decision. Defendant filed a motionfor reconsideration which was objected by the plaintiff on the ground that motion for reconsideration is a prohibited motion under the Rules on Summary Procedure. Rule on the motion.A. Motion for reconsideration is allowed. The Rule on Summary Procedure applies only in cases filed before the MTC pursuant to Sec 26 of BP 129. Summary procedures have no application to cases before the RTC. Hence, when the respondents appealed the decision of the MTC to the RTC, the applicable rules are those of the latter court. Hence a motion for reconsideration of the decision of the RTC is available. (Jakihaka vs. Aquino 12 Jan 1990)

KATARUNGANG PAMBARANGAY

Q. What is the object of Katarungang Pambarangay Law? (1999 Bar Examination)

A. The object of the Katarungang Pambarangay Law is to effect an amicable settlement of disputes among family and barangay members at the barangay level without judicial recourse and consequently help relieve the courts of docket congestion. Compliance therewith is a condition precedent to the filing of a complaint or information in court or before the Prosecutor’s office and its absence is a ground for dismissal of the complaint for pre maturity or absence of cause of action.

CASES COVERED

Q. What are the cases over which the Barangay Lupon may take cognizance of? Exceptions?

A. The Barangay Lupon shall have authority to bring together the parties actually residing in the same municipality or city for amicable settlement of all disputes except:

1) When one party is the government or any subdivision or instrumentality thereof;

2) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions.

3) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five Thousand Pesos(P5,000).

4) Offenses where there is no private offended party.

5) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon.

6) Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon .

7) Such classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Sec. Of Justice.

8) Any complaint by or against corporations, partnerships or juridical entities. The reason is that only individuals shall be parties to barangay conciliation proceedings.

9) Labor disputes or controversies arising from employer-employee relationship.

10) Actions to annul judgments upon a compromise which can be filed directly in court. (Sec.408 RA 7160)

SUBJECT MATTER FOR AMICABLE SETTLEMENT

Q. A collection for sum of money case (P400,000) was filed by Mr. X against Mr. Y, both residents of Baguio City, at the RTC of Baguio City. Mr. Y filed a motion to dismiss alleging that since they are residents of the same city, the case should be first resolved by the Barangay Lupon, hence the case is prematurely filed and should be dismiss for lack of cause of action. Mr. X objected to the motion contending that the case is beyond the Barangay Lupon’s jurisdiction. Only those cases cognizable by the First level courtst should go to the Barangay Lupon for conciliation as to do otherwise will divest the RTC of its jurisdiction. Is Mr. X’s contention meritorious?

A. No. Mr. X’s contention is not meritorious because the lupon of each barangay shall have authority to bring together the parties actually residing in the same municipality or city for amicable settlement of “ALL disputes”. Even if the case is within the RTC’s jurisdiction, compliance still to the provision of Sec 408 of RA 7160, is a condition precedent for filing an action as long as the parties are residents of the same municipality or city.

VENUE

Q. What are the rules of venue under the Katarungang Pambarangay Law?

A. They are as follows:

1) Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the Lupon of the said barangay.

2) Those involving actual residents of different barangays where the respondent or any of the respondents actually resides, at the election of the complainant.

3) All disputes involving real property or any interest shall be brought in the barangay where the real property or the larger portion thereof is situated.

4) Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study shall be brought in the barangay where such workplace or institution is located. (See 409 Local Government Code 1991)

WHEN PARTIES MAY DIRECTLY GO TO COURT

Q. In a case, two parties are residents of the same municipality but others are residents of different municipalities. Is there a need for prior barangay conciliation? Why?

A. No more. In Candido vs. Macapagal, 221 S 328, it was said that the fact that petitioner Candido and respondent Contreras are residents of the same municipality will not justify compulsory conciliation under PD 7160, it appears that other respondents are residents of different municipalities. Petitioners can file the case directly in court without resorting to barangay conciliation.

EXECUTION

Q. When may objections to venue be raised?

A. Objections to venue shall be raised in the mediation proceedings before the punong barangay; otherwise, the same shall be deemed waived. Any legal question which may confront the punong barangay in resolving objections to venue herein referred to may be submitted to the Secretary of Justice or his duly designated representative whose ruling thereon shall be binding.

Q. Alice filed a complaint for damages against her next-door neighbor Rosa for P100,000 with prayer for preliminary attachment. She alleged that Rosa intrigued against her honor by spreading unsavory rumors about her among their co-workers at the Phoenix knitwear factory located at Valenzuela. After pre-trial the court muto proprio referred the case for amicable settlement between the parties to the Lupon Tagapamayapa of Brgy. 2 Zone 3 in Valenzuela where the factory is located. Rosa

questioned the order contending that the court had no authority to do so as both parties had already gone through pre-trial where amicable settlement was foreclosed and the parties were already going to trial.(1) Comment on Rosa’s contention. Explain.(2) Rosa also opposed the referral to the Lupon Tagapamayapa of Brgy. 2 Zone 3 claiming that the venue was wrong as the proper Lupon was that of Brgy. 1 Zone 5 where she and Alice reside. Is Rosa’s contention valid? Explain.(3) Suppose that the Lupon of Brgy 2 Zone 3 is successful in forgoing an amicable settlement between Alice and Rosa, is the compromise immediately executory? Explain.(4) How, when, and by whom shall the compromise agreement be enforced? Explain. (1995 Bar Exams)

A. Rosa is not correct. The Local Government Code of 1991 provides that in non-criminal cases not falling within the authority of the Lupon, the court may at any time before the trial refer the case to the Lupon concerned for amicable settlement. (Sec 408 RA 7160)

No, because the law also provides that the venue of disputes arising at the workplace of the contending parties shall be brought in the barangay where such workplace is located. (Sec 409[d], RA 7160).

No, because any compromise settlement shall be submitted to the court which referred the case for approval. Sec. 416, RA 7160).

Upon approval thereof, it shall have the force and effect of a judgment of the court and shall be enforced in accordance with Sec 6 Rule 39, execution by motion or by independent action.

REPUDIATION

Q. AB filed a complaint for unlawful detainer against AS before the MTC, Baguio City without referring it first to the barangay Lupon for conciliation. A motion to dismiss was filed on the ground of failure to comply with the requirements of conciliation alleging that bothparties are residents of Baguio City, although the complaint stated that defendant has a postal office address in Baguio City. If you were the judge, rule on the objection.

A. I will deny the motion. As ruled by the SC in the case of Boleyley vs. Villanueva 14 Sept. 1999, there is no need to comply with the conciliation requirement under the Katarungan Pambarangay Law in the absence of showing in the complaint that the parties reside in the same city or municipality. Plaintiff’s complaint should have alleged defendant’s actual residence, not his postal address. The allegation of defendant’s actual residence would have been ideal to determine the

venue. In procedural law, however, specifically for the purposes of venue, the residence of a person is his personal, actual or physical habitation or his actual residence or place of abode, which may not necessarily be his legal residence or domicile. The complaint clearly implies that the parties do not reside in the same city or municipality because the postal office address is not included in the term “residence”. Q. What is the effect of the conciliation proceeding on the prescriptive period for offenses and cause of action?

A. While the dispute is under mediation, conciliation or arbitration, the prescriptive periods for offenses and causes of action under existing laws shall be interrupted upon filing of the complaint with the punong barangay. The prescriptive periods shall resume upon receipt by the complainant of the certification of repudiation or of the certification to file action issued by the lupon or pangkat secretary. But such interruption shall not exceed 60 days from the filing of the complaint with the punong barangay.

Q. Petitioner Diu filed a complaint against private respondent Pagba before the Barangay Chairman of Naval, Biliran. The Brgy. Chairman set the case for hearing but private respondent failed to appear. When the case was set again for hearing, the parties appeared but they failed to reach an amicable settlement. Accordingly, the barangay chairman issued a certification to File Action. Petitioners then filed their complaint before the MTC of Naval. Private respondent moved to dismiss the complain on the ground that no Pangkat was convened to settle the dispute. Rule on the motion.

A. The motion should be denied for lack of merit. The SC held in the case of Diu vs. CA 19 Dec. 1995, while no pangkat was constituted it is not denied that the parties met at the office of the barangay chairman for possible settlement. The efforts of the barangay chairman, however, proved futile as no agreement was reached. Although no pangkat was formed, we believe that there was substantial compliance with the law. It is noteworthy that under Sec 412 of the Local Government Code, the confrontation before the lupon chairman or the pangkat is sufficient compliance with the precondition for filing the case in court.

Q. A compromise agreement between A and B was entered into in the municipal court in an ejectment suit. An action to annul the judgment was filed in the RTC which action was being sought to be dismissed for failure of the plaintiff to resort to barangay conciliation. Is the contention correct? Why?

A. No. It cannot be dismissed on the ground of pre maturity or failure to resort to barangay conciliation because a compromise is immediately executory and beyond the Authority of Barangay. An administrative body like the lupon cannot overturn the judgment of a court. (Sanchez vs. Tupas, 158 SCRA 459).

Q. For failure of the tenant, X to pay rentals, A the court- appointed administrator of the estate of Henry Datu, decides to file an action against the former for the recovery of possession of the leased premises located in Davao City and for the payment of accrued rentals in the total amount of P25,000. Is prior referral to the Lupon necessary? (1991 Bar Exams)

A: No, because the law applies only to disputes between natural persons and does not apply to juridical person such as the estate of a deceased.