CIVIL PROCEDURE AUGUST 3, 2019

1. What if no legal representative is named by the counsel for the deceased party, or
if the one so named shall fail to appear within the specified period? Explain.

If no legal representative is named by the counsel of the deceased party or if there is but fails to appear
within a specified period, the court may order the opposing party to procure the appointment of an
executor or administrator for the estate of the deceased and the latter shall immediately appear for and on
behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing
party, may be recovered as cost. (Rule 3, Sec.16 4th par.)

2. Ramon, claiming to be the President of PRRD Corporation, filed an action to collect

the sum of money from Samson. The only attachment to the Complaint is the
promissory note signed by Samson. If you were the counsel of Samson, and being
a graduate of Misamis University, what will you do to advance the interest of your
client? Explain.

If I were the counsel of Samson, I would advise him to raise a timely disavowal under oath with specificity
as to the genuiness and due execution of the said actionable document and set forth facts pertaining to
such disavowal. (Rule 8, Sec.8)

3. L executed a will naming O as one of the devisees. Upon L’s death a petition for
the probate of his will was filed with the RTC. During the pendency of the probate
proceedings, O died intestate. The Q law firm entered its appearance as counsel
for F, who claimed to be one of the heirs of O and their representative. The
probate court allowed the appearance of the counsel and the substitution of O by
F, who had been designated by the other heirs as their representative in the
probate court. E opposed the appearance and the substitution on the ground that
under Lawas v. CA, 143 SCRA 173 (1986), priority is given to the legal
representative of the deceased, (i.e. the executor or administrator, or in case
where the heirs resort to an extrajudicial settlement of the estate that the court
may adopt the alternative of allowing the heirs to be substituted for the deceased.
Was the substitution of the deceased O by F proper? Explain.

Yes. Under the rule, the heirs of the deceased may be allowed to be substituted for the deceased without
requiring the appointment of an executor or administrator. (Rule 3, Sec. 16 2nd par.)

4. P filed an action to recover possession and ownership of a parcel of land against D.

during the pendency of the case P died but substitution by his heirs was effected.
The trial court ruled in favor of P. D assert that the RTC’s decision was invalid for
lack of jurisdiction, since the heirs were not substituted for the deceased P. P’s
heirs, however, participated in the trial without being substituted. Was the trial
court’s decision valid? Explain.

Yes, in spite of the general rule provided under Rule 3, Sec .16, a formal substitution of heirs is not
necessary when they themselves voluntarily appear, participate in the case, and present evidence in behalf
of the deceased. Thus, when due process is not violated in consonance with the Rule, such substitution in
the case presented cannot affect the validity of a promulgated decision.

5. P filed an action to recover possession of a parcel of land against D. during the

pendency of the case, D died. P advised the court of D’s death and filed a motion
for substitution but the court did not issue an order for the substation of D. The
 heirs possessed the land. Judgment was rendered in favor of P. May P enforce the
judgment against the heirs?[5] Explain.

No, the right to due process of the heirs of D were violated when they were not given the chance to defend
their side in court. Hence, failure to substitute the heirs for the deceased defendant deprived the court of
jurisdiction to enforce its decision against them.

6. In the preceding problem, would your answer be the same if the heirs voluntarily
appeared in court and participated in the proceedings therein?[6] Explain.

No, my answer would not be the same. Voluntary appearance of the heirs and their participation in the
proceeding therein cured the defect of lack of substitution.

7. P filed an action to recover possession of parcel of land against D. during the

pendency of the case, D died. D’s counsel failed to inform the court of D’s death.
The heirs possessed the land. Judgment was rendered in favor of P. May P enforce
the judgment against the heirs?[7] Explain.

Yes. In the case presented, D’s counsel failed to inform the court of his client’s death. Thus, it may not be
faulted for proceeding to render judgement without ordering his substitution. Its judgement is thus valid
and binding to D’s legal representatives, insofar as his interest in the property subject of the action is
concerned.

8. P filed an action for quieting of title with damages against D. during the pendency
of the case, a notice of hearing sent to D was returned with the notation “party-
deceased.” D’s counsel still continued to appear for D and did not inform the court
of D’s death. Judgment was rendered in favor of P ordering D to vacate the land
and return possession to P. The heirs of D, who are now in possession, contend
that the judgment was void since there was no substitution. Are they
correct?[8] Explain.

No, the failure of the counsel to comply with his duty under the Rule on informing the court of his client’s
death and the non-substitution of such party will not invalidate the proceedings and its judgement thereon
if the action survives after the death of such party. The notation “Party-Deceased” on the unserved notices
could not be the “proper notice” contemplated by the Rule. Hence, the court was within its jurisdiction to
proceed with the case without any irregularities in its proceedings.

9. A filed a complaint for the recovery of ownership of land against B who was
represented by her counsel X. in the course of the trial, B died. However, X failed
to notify the court of B’s death. The court proceeded to hear the case and
rendered judgment against B. after judgment became final, a writ of execution
was issued against C, who being B’s sole heir, acquired the property. (1) If you
were counsel of C, what course of action would you take?[9] Explain. (2) Did the
failure of X to inform the court of B’s death constitute direct contempt?[10] Explain.
9.1. If I were the counsel of C, I would file a motion to set aside the writ of execution. The Supreme Court
held that failure to substitute the heirs for the deceased defendant deprived the court of jurisdiction
to enforce its decision for it violated their right to due process. (G.R. No. L-11567, 17 July 1958)

9.2 No. Direct contempt is misbehavior in the presence of or so near a court as to obstruct or interrupt the
proceedings before the same. This misbehavior would however amount to indirect contempt as it was a
misbehavior of an officer of the court in the performance of his official duties. (Rule 71)
10. P filed an action for recovery of a parcel of land against D. the trial court
dismissed the case prompting P to appeal to the CA. Pending appeal, P died. The
lawyer of P gave notice to the CA of P’s death and moved for the suspension of the
period to file appellant’s brief pending the appointment of an administrator of P’s
estate in the probate proceedings. The CA denied the motion for suspension and
dismissed P’s appeal for failure to file the appellant’s brief. Was the CA
correct?[11] Explain.

No. The death of P extinguished the lawyer-client relationship and hence the lawyer had no more authority
to act in the case save to notify the court and give the names and addresses of the legal representative. The
CA should thus have suspended the period to file the appellant’s brief until a legal representative was
appointed and the order of substitution made.

11. What is the Rule in case a party becomes incompetent or

incapacitated?[12] Explain.

Under S18 R3 of the Rules of Court, in case a party becomes incompetent or incapacitated, the court, upon
motion with notice, may allow the action to be continued by or against the incompetent or incapacitated
person assisted by his legal guardian or guardian ad litem.

12. What is the effect of a transfer of interest during the pendency of the
litigation?[13] Explain.

The action may be continued by or against the original party, unless the court upon motion directs the
transferee to be substituted in the action or joined with the original party.

13. P filed with the RTC an action to collect a loan of P500,000 from D. P was able to
obtain a writ of attachment and attached a property of D. During the pendency of the
case, D died. (a) Should the case be dismissed?[14] Explain. (b) D was substituted by
his heir X. P won the case and no appeal was made by X may P move for the
execution of the judgment against X?[15] Explain. (c) P filed the judgment as a money
claim with the probate court. Does the writ of attachment entitle P to preference over
the other creditors in respect of the property attached?[16] Explain.

a.) No, the case should be allowed to continue until final judgment. S20 R3 provides that when the action is
for recovery of money arising from contract, express or implied, and the defendant dies before the entry of
final judgment, the action shall not be dismissed but shall instead be allowed to continue until entry of final
judgment. D should be substituted by his legal representative or heir.

b.) No. Under S20 R3, the favorable judgment obtained by the plaintiff shall be enforced in the manner
especially provided in the Rules for prosecuting claims against teh estate of a deceased person. P should file
the judgment award in the proceedings for the settlement of the estate of D as a money claim pursuant to
R86.

Yes. The writ of attachment was not dissolved since the main action was not dismissed but continues until
final judgment. Hence, P is a preferred creditor over the property attached.

14. P filed with the RTC an action for recovery of possession of a parcel of land
against D. D died while the case was pending and was substituted by his heir X who
had succeeded D in the possession of the land. P won the case and no appeal was
made by X. May P move for the execution of the judgment against X?[17] Explain.
Yes, since this is not among the cases provided for in S5 R86 which have to be filed with the probate court
as a money claim. The judgment may be enforced against X since he had been validly substituted for D.

15. P filed an action for tort against D who had negligently inflicted injuries upon P. D
died during the pendency of the case and was substituted by his heir X. judgment was
rendered in favor of P for P500,000. No appeal was filed by X. May P move for the
execution of the judgment against X?[18]Explain.

No. This is a judgment for money against the decedent and hence has to be filed with the probate court
pursuant to S5 R86 of the Rules of Court.

16. P filed a complaint for sum of money against D. during the pendency of the case,
D died. Intestate proceedings for the settlement of the D’s estate commenced and
notice to the estate’s creditors was given for them to file their claim within six months
from the first publication of the notice. A month thereafter, on P’s motion, the
administrator of D’s estate was substituted for D in the civil case for collection. The
court rendered judgment in favor of P and D’s administrator appealed. P filed a
contingent claim covering the judgment award in the probate court. At the time of the
filing of the contingent claim, the 6-month period for creditors to file their claim had
expired. In due course the judgment in favor of P was affirmed on appeal and became
final and thus P moved that the estate be ordered to pay P. The administrator
opposed the motion on the ground that the claim is time-barred since the contingent
claim was filed beyond the statute of non-claims. Is the claim of P time-
barred?[19] Explain.

No. Where the deceased was substituted by the administrator in the civil action involving a money claim,
the estate is deemed to have notice of such claim. The substitution of the deceased in the civil action by the
administrator or the decedent's representative is generally considered as equivalent to the presentation of
the claim with the probate court. Under the circumstances, the filing of the contingent claim ad
abundantiorem cautelam by P was a mere formality.

17. (a) P sued to recover an unpaid loan and was awarded P333,000 by the RTC of
Manila. D did not appeal within the period allowed by law. He died six days after the
lapse of the period. Forthwith, a petition for the settlement of his estate was properly
filed in the RTC of Pampanga where an inventory of his assets was filed and
correspondingly approved. Thereafter, P filed a motion for execution with the Manila
court, contending therein that the motion was legally justified because the defendant
died after the judgment in the Manila court had become final. Resolve the
motion.[20] (b) Under the same facts as (a), a writ of execution was issued by the
Manila RTC upon proper motion three days after the lapse of the period to appeal. The
corresponding levy on execution was duly effected on defendant’s parcel of land worth
P666,000 a day before the defendant died. Would it be proper, on motion, to lift the
levy on D’s property?[21] State the reasons for your answer.

a.) I would deny the motion for execution because under the Rules on SPecial Proceedings, a judgment for
money against the decedent must be filed with the probate court as a money claim to be enforced in the
manner provided for under RUle 86. Hence, judgment cannot be enforced by execution.

b.) No, it wouldn't be proper to lift the levy on defendant's property. Under the Rules on Civil Procedure,in
case of the death of the judgment obligor after execution is actually levied upon any of his property, the
same may be sold for the satisfaction of the judgment obligation.
18. Spouses B and C were the owners of a residential and boarding house with a
market value of more than P300,000. Their total earnings were more than double the
minimum wage of an employee. When the city demolished their residence and
boarding house, B and C filed an action for damages with the RTC against the city.
They applied for exemption from the docket and legal fees as indigents. They are
disqualified to litigate as indigents since they have not met the salary and property
requirements under S19R141. May B and C still be exempted from paying the docket
and legal fees as pauper litigants even though they do not meet the requirements
under S19R141?[22] Explain.

Yes. B and C may still be exempted if they can prove that they have "no money or property sufficient and
available for food, shelter and basic necessities for themselves and their family" as provided in Section 21
of Rule 3. If the applicant for exemption meets the salary and property requirements under S19 R141, then
the grant of exemption is mandatory. On the other hand, where the applicant does not satisfy one or both
requirements, then the applicant should not be denied outright. Instead, the court should apply the
"indigency test" under S21 R3 and use its sound discretion in determining the merits of the application for
exemption.

19. What is the Rule in case of death or separation of a party who is a public
officer?[23] Explain.

Section 17 Rule 3 of the Rules of Court provides that in case of death or separation of a party who is a
public officer, the action may be continued and maintained by or against his successor if , within thirty [30)
days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown
to the court by any party that there is a substantial need for continuing or maintaining it and that the
successor adopts or continues or threatens to adopt or continue the action of his predecessor. Before a
substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given
reasonable notice of application therefore and accorded and opportunity to be heard.

20. What is the Rule when an action involves the validity of any treaty, law,
ordinance, executive order, presidential decree, rules or regulations?[24]Explain.

As provided under S22 R3 of the Rules of Court, when an 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.

21. In 2001, The Municipality of X enacted an Ordinance prohibiting persons below

the age of 18 outside of their house from 8:00 in the evening to 4:00 in the morning.
J, a resident of one of the barangays of X was arrested while walking in the street on
September 4, 2016 and was prosecuted for violation of the Ordinance, in the MTC of
X. The judge of the MTC issued an Order which required the Office of the Solicitor
General to appear and be heard as regards the validity of the Ordinance of X. Was the
judge correct?[25] Explain.

22. Define venue.[26]

Venue refers to the possible or proper place or places for the trial of a suit, as among several places where
jurisdiction could be established.

23. What is the difference between jurisdiction and venue?[27]

 Jurisdiction deals with the authority of a court to exercise judicial power while venue deals with the place
where that power should be exercised.

24. Is venue jurisdictional?[28]

In a civil case venue is not jurisdictional. However in a criminal cases it is.

25. Distinguish real action from personal action.[29]

A real action is an action affecting title to or possession of a real property or interest therein. Any other
action is a personal action.

26. What is the venue of real action?[30]

Real action shall be commenced and tried in the in the proper court which has jurisdiction over the area
wherein the real property involved, or a portion thereof, is situated.

27. What is the venue of personal actions?[31]

Personal actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides
or where defendant or any of the principal defendants resides at the election of the plaintiff.

28. In what instances that the Rule on venue would not be applicable?[32]Explain.

Section 4. When Rule not applicable.- This Rule shall not apply.

a. In those cases where a specific rule or law provides otherwise; or

b. Where the parties have validly agreed in writing before the filing of action on the exclusive venue
thereof.

29. Gary who lived in Taguig borrowed P1 million from Rey who lived in Makati under
a contract of loan that fixed Makati as the venue of any action arising from the contract.
Gary had already paid the loan but Rey kept on sending him letters of demand for some
balance. Where is the venue of the action for harassment that Gary wants to file against
Rey?[33] (A) In Makati since the intent of the party is to make it the venue of any action
between them whether based on the contract or not. (B) In Taguig or Makati at the
option of Gary since it is a personal injury action. (C) In Taguig since Rey received the
letters of demand there. (D) In Makati since it is the venue fixed in their contract.

30. For purposes of the Rule on venue, what is the residence of a

corporation?[34] Explain.

The residence of a corporation is its principal place of business, not it's branch office.

31. D, and American citizen, borrowed P500,000 from P, a Filipino citizen while
vacationing in the Philippines. D failed to pay. D went to the U.S. May P file a suit
against D?[35] Explain.

Yes, P may file a suit against D. Rule 4, Section 3 of the Rules of Court allows for the commencement of an
action against non-residents in the court of the place where the plaintiff resides, or where the property or
any portion thereof is situated or found as long as the said action affects the personal status of the plaintiff,
or any property of said defendant located in the Philippines.

32. P filed an action with the RTC of Bulacan, where he resides, against M and F for
the dissolution of their partnership. The main asset of the partnership was a fishpond
located in Marinduque. M and F filed an answer in which they alleged that the
partnership had so far been unproductive and that this was the result of P’s failure to
contribute his share. They counterclaimed for damages. Consequently, the court
granted the intervention of Z, who alleged that they had bought the fishpond and
were now its owners. Z then filed a motion to dismiss upon the ground that venue was
improperly laid? (a) Should the motion to dismiss be granted?[36] Explain. (b) If the
action filed by P against M and F were a real action affecting title over the fishpond,
would your answer still be the same?[37]Explain.

a) No. The motion to dismiss should not be granted. This is a personal action and under Rule 4, Section 2 of
the Rules of Court states that such actions may be commenced and tried where the plaintiff or any of the
principal plaintiffs resides, or where the defendant or any of the principal defendants resides.

b) No. Since the action is a real action then the motion to dismiss should be granted. The venue of real
actions shall be commenced and tried in the proper court which has jurisdiction over the area where the
real property or a portion thereof is situated. Rule 4 Sec 1 of the ROC.

33. P filed a complaint against the surety with the RTC of Manila. The surety then filed
a third-party complaint against X, who had executed an indemnity agreement
undertaking to indemnify the surety in case it becomes liable under the surety bond. X
filed a motion to dismiss the third party complaint on the ground of improper venue. X
pointed out that the indemnity agreement between the surety and X contains a
provision that any suit arising from the agreement shall be solely and exclusively filed
in Quezon City. Should the court dismiss the third party complaint?[38]Explain.

No, a third-party complaint is ancillary to the main case thus a third party complaint has to yield to the
jurisdiction and venue of the main action.

34. P filed a complaint for annulment of contracts of loan with cancellation of Real
Estate Mortgage against D in Pasig, the place where P had its office. P alleged that the
contract of loan was without the knowledge of the corporation. D moved to dismiss
the complaint on the ground that the annulment of the REM is a real action, since P
sought to compel D to accept its payment and thus affecting title over the property
and free it from the encumbrance. Thus it should have been filed in Quezon City,
where the encumbered properties are located. Is a complaint for cancellation of REM a
real action?[39] Explain.

No, the instant action to annual a contract and it's accessory remember is a personal action.an action and
it's accessory rem is a personal action if the mortgagee has not foreclosed the mortgage and the mortgagor
is still in possession of the premises as his title to or possession of the premises as his title to or possession
of the property is not in dispute.

2nd answer given:

No. A complaint for the cancellation of REM is a personal action. The mortgagor is the owner of the
property mortgaged, thus no claim of ownership is involved. The action can be filed where the plaintiff or
any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides.
35. When is Rule 4 on venue of actions not applicable?[40]

 In those cases where a specific rule or law provides otherwise.

 Where the parties have validity agreed I. Writing before the filling of the action on the exclusive
venue thereof.

36. Give examples of cases where a specific rule or law provides otherwise.[41]

1. Civil and criminal actions for libel shall be filed with the regional trial court having jurisdiction over
the place where the libelous article is printed and first published or where any of the offended parties
actually resides at the time of the commission of the offense.

2. Petitions for declaration of nullity and annulment of marriage shall be filled In the family court of the
province or city where the petitioner or respondent has been residing for at least 6months prior to the date
filling. Or in case of non-resident respondent, where he may be found in the Philippines, at the declaration
of absolute nullity of void marriages and annulment of voidable marriages

2nd answer given:

Examples of these cases are:

- a quo warranto proceeding commenced by the Solicitor General and filed in the RTC of Manila, not in the
CA or the SC.

-a petition for a continuing writ of mandamus shall be filed with the RTC exercising jurisdiction over the
territory where the actionable neglect or omission occurred, instead of the RTC other than the CA or the
SC.

-The civil as well as the criminal action for damages for written defamation shall be filed with the RTC of the
province or city where the libelous article is printed or first published or where any of the parties actually
reside at the time of the commission of the offense. If one of the offended parties is a public officer holding
office in the city of Manila, action shall be filed with the RTC of Manila. If he does not hold office in Manila,
then action shall be filed in the city or province where he held office at the time of the commission of the
offense. In case the offended party is a private individual action shall be filed with the RTC of the city or
province where the party actually resides at the time of the commission of the offense or where the
libelous matter is printed or first published.

37. P applied for 6 cellular phone subscription with Piltel. P later filed with the RTC of
Iligan City a complaint for sum of money and damages against Piltel. The latter
moved to dismiss on the ground of improper venue, citing the common provision in
the subscription agreements which provides that: Venue of all suits arising from this
agreement shall be in the proper courts of Makati City. Subscriber expressly waives
any other venue. Should the motion to dismiss be granted?[42] Explain.

Yes , the exclusive venue provision was held valid by SC.SC distinguished this case from Sweet Lines vs.
Teves, in which the plaintiffs were virtually compelled to buy tickets from the sweet lines otherwise they
would be stranded in Bohol. Here, the plaintiff had unfettered freedom to sign or not sign the subscription
agreement.
2nd answer given:

No. The motion to dismiss should not be granted. Cellular phone subscriptions fall into the category of
contracts of adhesion. Such agreements as to venue will not be held valid if it practically negates the action
of the claimant. The convenience of the plaintiffs and his witnesses and the promotion of the ends of
justice weigh more than the venue stipulated in the subscription agreement.

38. PB Com Filed a collection case against D before the RTC of Manila, PB Com’s place
of business, based on the Surety Agreement (SA) executed by D in relation to a credit
line PB Com extended to International Trading Company. However, in this promissory
note executed by ITC, it was expressly stipulated that the “venue” for any legal action
that may arise out of the said Promissory Note shall be Makati to the exclusion of all
other courts.” D moved to dismiss on the ground of improper venue. Can PB Com file
the collection case in Manila, where the Surety Agreement is silent on the venue?[43]

No. PB Com cannot file the collection case in Manila. It must be filed in the venue stated in the promissory
note which is Makati to the exclusion of all other courts. The” complementary-contracts –construed-
together” rule applies. This rule provides that “various stipulations of a contract shall be interpreted
together, attributing to the doubtful ones that sense which may result from all of them taken jointly.”

39. Respondent entered into a payroll agreement with the bank. The agreement
contained a venue stipulation which reads thus: “In case of litigation, venue shall be
in the proper trial courts of Manila for determination of any and all questions arising
here under.” A dispute arising from the payroll agreement between Respondent and
the bank ensued. Respondent filed an action for damages with the RTC of Quezon City
where he resides. The bank filed a motion to dismiss on the ground of improper
venue. Should the motion to dismiss be granted?[44]

No. The motion to dismiss should not be granted because based on the written stipulation as to venue it
can be observed that the stipulation is not restrictive. Thus, the parties may file their suits not only in the
place agreed upon, but also in venues fixed by the rules.

40. After working for 25 years in the Middle East, Evan returned to the Philippines to
retire in Manila, the place of his birth and childhood. Ten years before his retirement,
he bought for cash in his name a house and lot in Malate, Manila. Six months after his
return, he learned that his house and lot were the subject of foreclosure proceedings
commenced by ABC Bank on the basis of a promissory note and a deed of real estate
mortgage he had allegedly executed in favor of ABC Bank five years earlier. Knowing
that he was not in the country at the time the promissory note and deed of mortgage
were supposedly executed, Evan forthwith initiated a complaint in the RTC of Manila
praying that the subject documents be declared null and void. ABC Bank filed.a
motion to dismiss Evan's complaint on the ground of improper venue on the basis of a
stipulation in both documents designating Quezon City as the exclusive venue in the
event of litigation between the parties arising out of the loan and mortgage. Should
the motion to dismiss of ABC Bank be granted?[45] Explain your answer.

No. The motion to dismiss of ABC Bank should not be granted. The action for nullification of the Promissory
Note and deed of Real estate Mortgage is a personal action. Under Rule 4 of the ROC venue in these cases
may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the
defendant or any of the principal defendants resides which in this case is the RTC of Manila.

41. A and B, both residents of Kapatagan, Lanao del Norte, agreed that in the event
of violation of their agreement, the actions may be filed in the RTC of Ozamiz
considering that the value of the loan was P350,000.00. B violated the agreement. A
filed an action to collect in Ozamis RTC in accordance to their agreement. B filed a
motion to dismiss arguing that Ozamiz RTC is not the proper venue of the case. A, in
his opposition, cited their agreement. If you were the judge, will you grant the motion
of B?[46]Explain.

Yes. If I were the Judge, I will grant B for his motion to dismiss. S4 R4 states that where the parties have
validly agreed in writing before the filing of the action on the exclusive venue thereof it shall be applied.
Here, the facts only states that the parties only agreed that in case of violation of the agreement it may be
filed in the RTC of Ozamiz City. Clearly, the parties did not put their agreement in writing and did not use
the word that can express their intent that Ozamiz City is an exclusive venue. Hence, the filing of the case in
Kapatagan where the parties resides is proper.

42. A and B, both residents of Ozamiz City, in their loan agreement, stipulated the
following: “In case of litigation hereunder, venue shall be in the City Court or RTC of
Iligan, as the case may be for determination of any and all questions arising
thereunder.” A violated the terms of the agreement. B sued A in Iligan City Court. A
filed a motion to dismiss alleging improper venue. If you were the judge, will you
dismiss the case?[47] Explain.

No. The venue stipulation here is not exclusive but merely permissive for it does not contain the words
expressing the intent that Iligan is an exclusive venue, like “exclusively” or “solely”. Hence, the filing of the
case in Ozamiz City where the plaintiff resides is proper.

43. When may the ground of improper venue be raised by the defendant?[48]

In a motion to dismiss, or in an answer if no motion to dismiss was filed. The former rule, which provides
that “when improper venue is not objected to in a motion to dismiss it is deemed waived”, was deleted in
the 1997 Rules of Civil Procedure. Note also that in cases governed by the Rule on Summary Procedure and
in ejectment cases, a motion to dismiss is a prohibited pleading.

44. May the trial court dismiss a complaint motu propio on the ground of improper
venue?[49]

No, since if the defendant does not raise the objection of improper venue either in the motion to dismiss or
in the answer, he is deemed to have waived it. However in cases governed by the Rule on Summary
Procedure and in ejectment cases, the trial court instead of issuing the summons may from an examination
of the allegations in the complaint and such evidence as may be attached thereto dismiss the case outright
on any of the grounds for dismissal of a civil action which are apparent therein, including improper venue.

45. What civil cases are governed by the Rule o Summary Procedure?[50]

1.) Ejectment cases 2.) Cases where the total amount of the plaintiff’s claim does not exceed P100,000 or
P200,000 in Metro Manila, exclusive interests and cost.

46. What are the pleadings allowed under the Rule on Summary Procedure?[51]

The only pleadings allowed under the Rule on Summary Procedure are the complaint, compulsory
counterclaim, cross-claim, and the answers thereto. All pleadings must be verified.

47. What are the prohibited pleadings, motions, and petitions under the Rule on
Summary Procedure?[52]
1. Motion to dismiss or quash except where the ground is non-referral to brgy. Conciliation and lack of
subject matter jurisdiction.
2. Motion for bill of particulars.
3. Motion for postponements which are dilatory
4. Motion for reconsideration of a judgment, re-opening and new trial
5. Motion for extension of time to file pleadings or papers
6. Motion to declare defendant in default.
7. Third-party complaint.
8. Petition for relief from judgment.
9. Intervention
10. Memoranda
11. Reply
12. Certiorari, prohibition, and mandamus against interlocutory orders

48. In an ejectment case, the court dismissed the complaint for failure of the plaintiff
to appear during the preliminary conference. The plaintiff filed a motion for
reconsideration of the dismissal order. The defendant contends that the dismissal had
become final and executory since the motion for reconsideration is a prohibited
pleading and hence does not suspend the reglementary period to appeal. Is the
Defendant’s contention correct?[53]Explain.

No. The motion for reconsideration prohibited under Sec 19(c) of the Rule of Summary Procedure is that
which seeks reconsideration of a judgment rendered by the court after trial on the merits. The dismissal
order is not a judgment on the merits after trial of the case.

49. P filed with the MeTC of Manila a suit against D to collect the sum of P100,000.
The MeTC rendered judgment in favor of P. D appealed to the RTC which affirmed the
challenged decision. D filed with the CA a motion for extension of 15 days to file a
petition for review. May P in the meantime move for the execution of the judgment as
a matter of right?[54] Explain.

Yes. The decision of the RTC in civil cases covered by the Rule on Summary Procedure shall be immediately
executor, without prejudice to a further appeal that may be taken therefrom.

50. What cases are governed by the Rule of Procedure for Small Claims Cases?[55]

These Rules shall govern the procedure before the MTC in actions for payment of money where the value
of the claim does not exceed P200, 000, exclusive of interests and costs.

51. When shall the MTC apply the Rule of procedure for Small Claims Cases?[56]

Yes, MTC shall apply the rule of procedure for small claims cases for up to three hundred thousand pesos
exclusive of interests and costs.

52. Are the Rules of Civil Procedure applicable to small claims cases?[57]

Yes the Rules of Civil Procedure shall apply in all actions which are:
 (a) Purely civil in nature where the claim or relief prayed for by the plaintiff is solely for payment or
reimbursement of sum of money, and

(b) The civil aspect of criminal actions, either filed before the institution of the criminal action, or reserved
upon the filing of the criminal action in court, pursuant to Rule 111 of the Revised Rules of Criminal
Procedure.

53. What are the prohibited pleadings and motions in small claims cases?[58]

These are the prohibited pleadings and motions in small claim cases as per listed in section 14 of the Rules
of procedure for small claims cases:

xxx

SEC. 14. Prohibited Pleadings and Motions. — The following pleadings, motions, or petitions shall not be
allowed in the cases covered by this Rule:

(a)Motion to dismiss the complaint;

(b)Motion for a bill of particulars;
(c)Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
(d)Petition for relief from judgment;
(e)Motion for extension of time to file pleadings, affidavits, or any other paper;
(f)Memoranda;
(g)Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
(h)Motion to declare the defendant in default;
(i)Dilatory motions for postponement;
(j)Reply;
(k)Third-party complaints; and
(l)Interventions.

54. Are decisions in small claims cases appealable?[59]

After the hearing, the decision will be final and unappeasable. (Section 23 of Rules of Procedure for Small
Claims Cases)

55. Define pleadings.[60]

Pleadings are written statements of the respective claims and defenses of the parties submitted to the
court for appropriate judgment.

56. What are the pleading allowed by the Rules of Court?[61]

The pleadings allowed by the Rules of Court are as follows:

 Complaint – alleging the plaintiff’s cause of action

 Answer – a defending party sets forth his defenses
 Defenses – may be negative (specific denial of the material of fact/s alleged); or affirmative
(hypothetically admitting the material allegations in the pleadings of the claimant)
 Counterclaim – defending party may have against an opposing party
 Compulsory counterclaim
  Cross-claim – any claim by one party against a co-party
 Counter-counterclaims or counter-crossclaims
 Reply – which is to deny, or allege facts in denial or avoidance of new matters alleged
 Third, (fourth, etc.) – party complaint – defending party may file against a person not a party to the
action
 Answer to third (fourth, etc.) –party complaint

57. What is a complaint?[62]

Complaint is the first pleading filed with the court by party called the plaintiff.

58. What is an answer?[63]

Answer is a responsive pleading to the complaint. It gives notice to the plaintiff as to which allegations in the
complaint the defendant decides to contest and put in issue.

59. Co Batong, a Taipan, filed a civil action for damages with the Regional Trial Court
(RTC) of Parañaque City against Jose Penduko, a news reporter of the Philippine
Times, a newspaper of general circulation printed and published in Parañaque City.
The complaint alleged, among others, that Jose Penduko wrote malicious and
defamatory imputations against Co Batong; that Co Batong’s business address is in
Makati City; and that the libelous article was first printed and published in Parañaque
City. The complaint prayed that Jose Penduko be held liable to pay P200, 000.00, as
moral damages; P150,000.00, as exemplary damages; and P50,000.00, as attorney’s
fees. Jose Penduko filed a Motion to Dismiss on the following grounds: 1. The RTC is
without jurisdiction because under the Totality Rule, the claim for damages in the
amount of P350, 000.00 fall within the exclusive original jurisdiction of the
Metropolitan Trial Court (MeTC) of Parañaque City. 2. The venue is improperly laid
because what the complaint alleged is Co Batong’s business address and not his
residence address. Are the grounds invoked in the Motion to Dismiss proper?[64]

(Bar Question 2014)

No, the grounds invoked by Jose Penduko in his motion to dismiss is unfitting.

1. The invocation of the Totality rule is misplaced. Under Art 360 of the RPC, jurisdiction over a civil
action for damages in cases of libel is with the RTC. (Nocum v. Tan 23 Sept 2005). The said provision
does not mention any jurisdictional amount over such action. Hence, Totality Rule does not apply.
2. The Ground that the complaint mentioned the complainant’s office address rather than his residence
is of no moment since the complaint also stated that the libelous article was printed and first
published in Paranaque City. Under Art. 360 of the RPC, venue in civil actions for libel also lies in the
place where the libelous article was printed and first published.

60. What are the kinds of defenses?[65] Define and Explain.

A negative defense is an attack on a plaintiff's prima facie case, a defense that directly contradicts elements
of the plaintiff's claim for relief. In contrast, an affirmative defense is an implicit admission of the factual
allegations in the complaint, but avoids liability, in whole or in part, based on additional allegations of excuse,
justification or other negating matters.

61. Give examples of affirmative defenses.[66]

Fraud, prescription, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in
bankruptcy, and any other matter by way of confession and avoidance. Some of these defences are also
grounds for a motion to dismiss.

62. P filed a complaint against B and C who are made co-defendants. C files an
answer serving a copy thereof upon P. Does C also need to serve a copy upon
B?[67] Explain.

No, C does not need to serve a copy upon B. A co-defendant does not need to serve a copy of the answer
against a co-defendant, except where there is a cross-claim in the answer or in case of S5 R62 in
interpleader where the conflicting claimants should serve a copy of the answer on their co-defendants.

63. What is a counterclaim?[68]

A counterclaim is any claim which a defending party may have against an opposing party.

64. P files a case against D. D files a counterclaim against P. May P file a counterclaim
against D’s counterclaim?[69] Explain.

Yes, P may file a counterclaim against D’s counterclaim. A counterclaim may be asserted against an original
counterclaimant as provided in Sec. 6 of Rule 6 of the 1997 Rules of Civil Procedure

65. The Republic, through the PCCG and with the assistance of the Office of the
Solicitor General, filed with the Sandiganbayan a complaint against Cojuangco and
Enrile for reconveyance and damages. Subsequently Enrile was granted leave of court
to implead Solicitor General Chavez as a defendant in a counterclaim for filing a
harassment suit. Was the filing of the counterclaim against OSG Chavez
proper?[70] Explain.

No. A counterclaim is any claim which a defending party may have against an opposing party. Chavez was
not the opposing party but merely the counsel of the opposing party. Enrile has to file a separate suit if he
wants to claim damages against Chavez.

66. H filed with the RTC a complaint against D for damages. The RTC, after due
proceedings, rendered a decision granting the complaint and ordering D to pay
damages to H. D timely filed an appeal before the CA, questioning the RTC decision.
Meanwhile, the RTC granted H’s motion for execution pending appeal. Upon receipt of
the RTC’s order granting execution pending appeal, D filed with the CA another case,
this time a special civil action for certiorari assailing the said RTC order. Is there a
violation of the rule against forum shopping considering that the two (2) actions
emanating from the same case with the RTC were filed by D with the CA?[71] Explain.

No. There is no violation of the rule against forum shopping. The essence of forum shopping is the filing by
a party against whom an adverse judgment has been rendered in one forum, seeking another and possibly
favorable opinion in another suit other than by appeal or special civil action for certiorari; the act of filing of
multiple suits involving the same parties for the same cause of action, either simultaneously or successively
for the purpose of obtaining a favorable judgment. Forum shopping exists where the elements of litis
pendentia are present or where a final judgment in one case will amount to res judicata in the action under
consideration. (Roberto S. Benedicto vs. Manuel Lacson, G.R. No. 141508, May 5, 2010, Peralta, J.)

In Philippines Nails and Wires Corporation vs. Malayan Insurance Company, Inc., G.R. No. 143933, February
14, 2003, the Supreme Court held that one party may validly question a decision in a regular appeal and at
the same time assail the execution pending appeal via certiorari without violating the rule against forum
shopping. This is because the merits of the case will not be addressed in the Petition dealing with the
execution and vice versa.

Since D merely filed a special civil action for certiorari, the same will not constitute a violation of the rules
on forum shopping because the resolution or a favorable judgment thereon will not amount to res judicata
in the subsequent proceedings between the same parties. (Roberto S. Benedicto vs. Manuel Lacson, G.R.
No. 141508, May 5, 2010, Peralta, J.)

67. Is there an instance wherein a counterclaim may be asserted by the defending

party against one who is not an opposing party?[72] Explain.

Yes. Under Sec. 13 of Rule 6, a third-party defendant may in proper cases assert a counterclaim against the
original plaintiff in respect of the latter's claim against the third-party plaintiff.

68. What are the kinds of counterclaims?[73]

The kinds of counterclaims are compulsory and permissive.

69. What is a compulsory counterclaim?[74]

A compulsory counterclaim 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 cannot acquire
jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the
nature thereof, except that in an original action before the Regional Trial Court, the counterclaim may be
considered compulsory regardless of the amount.

70. Distinguish a compulsory counterclaim from a permissive counterclaim.[75]

a. AS TO PRECLUSION IF NOT RAISED. A compulsory counterclaim not set up in an action shall be deemed
barred, while a permissive counterclaim is not barred even if not set up in the action.

b. AS TO PAYMENT OF FILING FEES. Payment of filing fees on compulsory counterclaims has been
suspended, while filing fees need to be paid on permissive counterclaims filed with the RTC.

c. AS FOR NEED TO ANSWER. A compulsory counterclaim as a rule need not be answered while a permissive
counterclaim should be answered otherwise the plaintiff could be declared in default in respect thereof.

d. AS FOR PROHIBITION UNDER THE RULE ON SUMMARY PROCEDURE. A compulsory counterclaim is

allowed under the Rule on Summary Procedure unlike a permissive counterclaim which may not be availed
of therein.

e. AS FOR REQUIREMENT OF CERTIFICATION AGAINST FORUM SHOPPING. A compulsory counterclaim need

not be accompanied by a certification against forum shopping while a permissive counterclaim must be so
accompanied. (Spouses Ponciano v. Parentela, G.R. No. 133284, 9 May 2000; Alba v. Malapajo, 13 January
2016, Peralta, J.)

71. Why is a compulsory counterclaim termed as such?[76]

A compulsory counterclaim is termed compulsory because there is an element of compulsion to set it up.
Under Section 2 of Rule 9, compulsory counterclaim not set up shall be barred.
 72. What is the reason behind S2R9?[77]

The rule is designed to achieve resolution of the whole controversy at one time and in one action and to
avoid multiplicity of suits. (Baclayon v. Court of Appeals, 182 SCRA 761; Ledesma v. Morales, 87 Phil. 199).

73. How should a compulsory counterclaim or crossclaim be set up?[78]

A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall
be contained therein. (S8 R11).

74. May a compulsory counterclaim be set up in a motion to dismiss?[79]Explain.

75. What are the requirements in order that a counterclaim may be considered
compulsory?[80] Explain.

a. No. A counterclaim must be within the jurisdiction of the court as to its nature. (S7 R6)

b. No. The counterclaim must be cognizable by the regular courts of justice. An action for support is
cognizable by a special court, that is, the family court.

c. Yes. In the RTC, a counterclaim may be considered as compulsory regardless of the amount thereof. d.
No. The counterclaim is cognizable by the special commercial court which is not a regular court of justice. e.
No. The counterclaim is within the jurisdiction of HLURB.

76. P files a suit for sum of money in the sum of P500,000 against D in the RTC of
Ozamis City. Assuming that D’s counterclaim arises out of or is connected to the
transaction or occurrence constituting the subject matter of P’s claim, can D file a
counterclaim: (a) For ejectment?[81] (b) For support?[82] (c) For sum of money in the
sum of P250,000?[83] (d) For infringement of D’s patent?[84] And (e) For delivery of
title over a subdivision lot which P, as a subdivision developer, sold to D?[85]

77. P filed a suit for nullification of a promissory note against D on the ground of
usurious and unconscionable interest rates. D counterclaimed for the payment of the
P1M loan with interest. He however did not pay the docket fees. Should the
counterclaim be dismissed for failure to pay docket fees?[86] Explain.

No. The counterclaim for the payment of the loan with interest is compulsory since it arises out of or is
connected to the loan transaction subject of the complaint. The grant of the counterclaim would
necessarily negate or defeat the suit for nullification. Being compulsory, there is no need to pay the filing
fees thereon.

78. Carlos executed a promissory note in the sum of P400,000.00 in favour of Helen
and payable on September 2, 2017. Norma acted as Carlo’s co-maker. Carlos failed to
pay as scheduled. Helen comes to you, being a graduate of Misamis University, and
sought your legal advice on what to do inorder to collect from Carlos. Her querries are:
(a) What are the steps to do before filing the action in court? (5 points) Explain; (b)
Where is the venue of the action? (5 points) Explain; and (c) Which has jurisdiction
over the action? (5 points).

79. Based on the preceding problem and assuming that Norma engaged you as her
counsel, what will you do to protect her? Explain.

80. F filed a collection suit for P387,000 against R in the RTC of Davao City. Aside
from alleging payment as a defense, R in his answer set up counterclaims for
P100,000 as damages and P30,000 as attorney’s fees as a result of the baseless filing
of the complaint, as well as for P250,000 as the balance of the purchase price of 30
units of airconditioners he sold to F. Does RTC have jurisdiction over R’s counterclaims
and if so does he have to pay docket fees therefore?[87] Explain.

Yes, applying the totality rule which sums up the total amount of claims of the parties, the RTC has
jurisdiction over the counter claims. Unlike in the case of compulsory counterclaims, a defendant who
raises a permissive counterclaim must first pay docket fees before the court can validly acquire jurisdiction.
One compelling test of compulsoriness is the logical relation between the claim alleged in the complaint
and the counterclaim. R does not have to pay docket fees for his compulsory counterclaims. R is liable for
docket fees only on his permissive counterclaim for the balance of the purchase price of 30 units of air
conditioners in the sum of P250, 000, as it neither arises out nor is it connected with the transaction or
occurrence constituting F’s claim.

81. D and P entered into a lease contract whereby D leased Room 401 to P. P was of
the impression that the lease also covered the rooftop of Room 442. However D
padlocked the way to the rooftop. D insisted that the lease only covered Room 401
and that P’s use of the rooftop was merely tolerated. P tendered the lease payment to
D who refused to accept the same. P then filed an action for consignation with the
MTC against D. D then filed an answer with counterclaim for unlawful detainer against
P. The CA ruled that the raising of the counterclaim for ejectment was improper since
such could only be initiated by a verified complaint pursuant to S4R70. Was the filing
of the counterclaim proper?[88] Explain.

No. There is no rule that an ejectment suit cannot be raised in a counterclaim. Thus, counterclaim for
ejectment was compulsory since it was connected with the transaction or occurrence constituting the
subject matter of the opposing claim.

82. P filed with the MeTC of Makati a complaint against D to recover possession of a
parcel of land with an assessed value of P60,000. D filed an answer. The MeTC tried
the case on the merits and rendered a decision in favor of P. D appealed to the RTC.
Assume the RTC does not dismiss the appeal and proceed to take cognizance thereof.
D filed a motion to admit amended answer in which he raises a counterclaim for
P250,000 against P which arose out of the same transaction subject matter of the
complaint. May the court admit the amended answer?[89] Explain.

No. The court may not admit the amended answer with counterclaim. In the case presented, the RTC was
deciding an appealed case and not an original action. Hence, the exceptive clause of Rule 6 sec. 7 does not
apply and the counterclaim may not be admitted since it falls below the jurisdictional amount of the RTC.

83. P filed with the RTC an action for recovery of land against D. D filed an answer
raising the defense of ownership. RTC decided for D. On appeal the CA reversed the
RTC and decided for P declaring him as owner of the land and ordering D to vacate
the land. The CA declared that there was no fraud or bad faith on the part of D. the
CA’s judgment became final and executory. P moved for the execution of the
judgment before the RTC. D opposed on the ground that a hearing supplementary to
the execution should be conducted to allow them to present evidence to prove that
they are builders in good faith and to prove the value of the improvements. (a)
Should the RTC grant the opposition of D?[90] (b) May D file a separate action to
recover the value of the improvements introduced by them?[91]Explain.
a. No. Once a decision has become final and executory, the only jurisdiction left with the court is to order
its execution. To allow the supplemental hearing would be to amend or alter a final and executory
judgement

84. A sues L for recovery of a parcel of land. L seeks in turn to be reimbursed of the
value of improvements she had introduced on the same land and the payment of
damages she had sustained. Should L file a separate action against A for that
purpose?[92] Explain.

The claim of L cannot be the subject of a separate action but must be interposed in the very same action
because L’s claim is a compulsory counterclaim; since it arises out or connected to the suit of A for recovery
of land. Under existing procedural rules, a compulsory counterclaim if not set up is barred.

85. Would the dismissal of the main complaint also result in the dismissal of the
counterclaim?[93] Explain.

No. The same evidence needed to sustain the counterclaim of private respondents would also refute the
cause of action in petitioner's complaint.

... Under Sec. 2, Rule 17, defendant may raise objection to the dismissal of the complaint; in such case, the
trial court may not dismiss the main action.

86. What is the “compelling test of compulsoriness” to determine whether a claim is

compulsory?[94] Explain.

A "compelling test of compulsoriness" is whether there is "a logical relationship between the claim and
counterclaim, that is, where conducting separate trials of the respective claims of the parties would entail a
substantial duplication of effort and time by the parties and the court."

87. Abraham filed a complaint for damages in the amount of P750,000.00 against
Salvador in the RTC in Quezon City for the latter's alleged breach of their contract of
services. Salvador promptly filed his answer, and included a counterclaim for
P250,000.00 arising from the allegedly baseless and malicious claims of Abraham that
compelled him to litigate and to engage the services of counsel, and thus caused him
to suffer mental anguish. Noting that the amount of the counterclaim was below the
exclusive original jurisdiction of the RTC, Abraham filed a motion to dismiss vis-a-vis
the counterclaim on that ground. Should the counterclaim of Salvador be
dismissed?[95] Explain your answer.

No. The counterclaim of Salvador should not be dismissed on the ground of lack of jurisdiction. Is an
original action before the RTC, the RTC has the jurisdiction over a compulsory counterclaim regardless or
the amount. Here, Salvador’s claim for damages arising from alleged malicious and baseless claims of
Abraham is a compulsory counterclaim as it arises from Abraham’s complaint. Hence RTC has jurisdiction
over Salvador’s counterclaim even if it did not exceed the jurisdictional amount of 400,000.

88. FBC was engaged by U to construct a multi-level apartment building in Forbes

Park. Forbes Park Association (FPA) suspended all entry permits of the construction
after discovering that the same was violative of the subdivision’s deed of restriction.
FBC filed an action for injunction and damages against FPA. FPA filed a motion to
dismiss on the ground that U, not FBC was the real party in interest. It was granted
which became final. Later on FPA filed an action against FBC to remove the structures
it built and for damages. (a) If you were the counsel for FBC, what would you
do?[96] Explain. (b) If you were the counsel for FPA, instead of filing a motion to
dismiss, what would you have done?[97] Explain. (c) Assume that no motion to dismiss
was filed by FBC in the second case and the RTC decided for FPA. On appeal, may the
judgment of the RTC in the second case be set aside?[98] Explain.

(a) I would file a motion to dismiss the said suit of the FPA on the ground of res judicata, specifically that
the second case should ve been raised as a compulsory counter claim in the first case which is under S2R9
the claim to demolish the said structures was a compulsory counterclaim.

b) I would not file a motion to dismiss but an answer and raise the ground for the motion to dismiss
under the pretences of failure to state a cause of action as an affirmative defense in the answer which was
stated under S6R16 I would plead in my answer the claim for damages and removal as a compulsory
counterclaim

c) Yes the judgement of the RTC may be set aside on the ground of Res judicata, However RJ can be
raised under the circumstance of being the first time to be raised on appeal

89. P sues D who moves to dismiss for failure of the complaint to state a cause of
action. The motion is granted and the case dismissed. The dismissal became final.
Then, D sues P on a claim arising out of the same transaction or occurrence as P’s
earlier attempted claim. P’s defense was on the ground that D’s claim is precluded by
his failure to raise it as a counterclaim in the first action. Is P’s defense
meritorious?[99] Explain.

Yes D, Should not have filed a motion to dismiss but an answer interposing his counter claim and raising the
ground of failure to state a cause of action as an affirmative defense under S2 R9 failure to set up a
compulsory claim in the first action the same is deemed barred

90. Fe filed a collection suit for P387,000 against Ramon in the RTC of Davao City.
Aside from alleging payment as a defense, Ramon in his answer ser up counterclaims
for P100,000 as damages and P30,000 as attorney’s fees as a result of the baseless
filing of the complaint, as well as for P250,000 as the balance of the purchase price of
30 units of airconditioners he sold to Fe. (a) Suppose Ramon’s counterclaim for the
unpaid balance is P310,000, what will happen to his counterclaims if the court
dismisses the complaint after holding a preliminary hearing on Ramon’s affirmative
defense?[100] (b) Under the same premise as paragraph (b) above, suppose that
instead of alleging payment as a defense in his answer, Ramon filed a motion to
dismiss on that ground, at the same time setting up his counterclaims, and the court
grants his motion. What will happen to his counterclaims?[101] Explain.

Ramon’s counterclaim may be prosecuted in the same or in a separate action under S6R16 which stated
that the said dismissal of action shall be without prejudice to the defendant prosecuting his counter claims
in the same or in a separate action

Ramon’s counter claim of 130K will be barred since it is a compulsory counter claim which was no set up in
the answer under S2R9 A counter claim cannot be set up in a motion to dismiss

91. Petitioner filed a complaint for consolidation of title over land sold to him by
Respondent under a pacto de retro sale. Respondent filed an answer with
counterclaim asking that Petitioner receive P810 and that the pacto de retro sale be
declared as an equitable mortgage. Petitioner did not file an answer to the
Respondent’s counterclaim. Upon motion, the trial court declared Petitioner in default
as to Respondent’s counterclaim and rendered judgment in favor of Respondent. Did
the trial court properly declare petitioner in default in respect of Respondent’s
counterclaim?[102] Explain.

No, the counter claim of the Respondent is compulsory since it is interjected or connected to the subject
matter of the petitioner’s complaint for consolidation. Under the Law A party cannot be declared in default
for failing to answer a compulsory counter claim because the issues raised in the compulsory counter claim
are deemed automatically joined by the allegations of the complainant

92. Plaintiff filed a complaint against defendant for recovery of possession of real
property with the Regional Trial Court of Manila. Defendant filed an answer with
affirmative defenses and interposed a counterclaim of damages and attorney’s fees
arising from the filing of the complaint. When plaintiff failed to file an answer on the
counterclaim, defendant moved to declare him in default. Notwithstanding notice of
the motion, plaintiff did not file an opposition. As judge, how would you resolve the
motion to declare plaintiff in default?[103] Explain.

As Judge I would deny the motion to declare the plaintiff in default The SC has held that a party cannot be
declared in default for failing to answer a compulsory counter claim the counter claim for damages and
attorney’s fees arising from the filing of the complaint is compulsory counter claim since it arises from the
filing of the complaint by the plaintiff hence plaintiff cannot be declared default

93. P filed against D an action for recovery of ownership and possession of a parcel of
land. D filed an answer alleging that he was a possessor in good faith and thus had a
right of retention. D counterclaimed for reimbursement of the value of the useful
improvements he had introduced on the land. P did not file an answer to D’s
counterclaim. D filed a motion to declare P in default as to his counterclaim. Should
the court grant D’s motion?[104] Explain.

94. L obtained a series of loans from Banco De Oro for which he executed three REMs.
L defaulted on the 3rd loan and BDO extrajudicially foreclosed the REM on the 1st and
3rd loan. Two days before the scheduled public auction. L filed with the RTC of Quezon
City a complaint for specific performances, torts, and damages against BDO for
including the 1st REM in foreclosure. BDO filed an answer with counterclaim. BDO
countered that there is a cross-default provision in the loan contracts that justifies the
inclusion of properties in the 1st REM in the foreclosure. BDO counterclaimed for
attorney’s fees on the ground that the suit was malicious and baseless. The auction
sale proceeded but the proceeds realized therefrom were not sufficient to answer for
L’s loan obligation. BDO sent a demand letter to L to pay the deficiency but this was
not heeded by L. L filed a motion to admit supplemental complaint which averred that
BDO had proceeded with the auction sale. The trial court admitted the supplemental
complaint. Subsequently, during the pendency of L’s complaint, BDO filed with the
RTC of Mandaluyong against L a collection case for the deficiency for which L filed a
motion to dismiss on the ground that the collection case is a compulsory counterclaim
that should have been set up in L’s complaint for tort and damages since it arose from
the same loan transaction. Should L’s motion to dismiss the collection case be
granted? [105] Explain.

No the collection case does not involve a compulsory counter claim. A compulsory counter claim is one
which must be existing at the time of filing the answer under S8 R11 An After acquired claim is merely
permissive. Here the BDO's Right of action is accrued only after L's refusal to pay after receiving demand
letters of deficiency from BDO

95. What is cross-claim?[106]

A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is
the subject matter either of the original action or of a counterclaim therein. Such a 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 a
claim asserted in the action against the cross-claimant. (S8 R6)

96. D and E are solidarily indebted to P for P500,000. P filed a collection case against
D and E for P500,000. D filed his answer in which he alleged that he had already paid
P500,000 to P prior to the filling of the complaint. Judgment rendered in favor of D
and E dismissing P’s complaint, the court finding that D had already paid P even prior
to the filing of the case. The judgment became final and executory. D then files an
action to collect P250,000 from E as reimbursement. E files a motion to dismiss on the
ground that D should have filed his claim as a cross-claim in the collection case filed
by P. Should the court grant the motion to dismiss? [107]Explain.

Yes, the court should grant the motion to dismiss. A cross-claim not set up is deemed barred. D should have
filed in the first case a cross-claim against E for reimbursement.

97. Is there such a thing as a permissive cross-claim?[108] Explain.

In a sense yes. A cross-claim which either matured or was acquired by a party after serving his pleading is
not compulsory. (S9R11)

98. D and E are jointly and severally indebted to P under a promissory note for
P500,000. P sues D and E before the RTC. D filed a cross-claim against E to recover
P450,000 arising from the non-payment of the price of a car sold and delivered by D
to E. E files a motion to dismiss the cross-claim. Should the court grant the motion to
dismiss?[109] Explain.

Yes, the court should grant the motion to dismiss. The cross-claim is not proper since the claim by D against
E did not arise out of the loan transaction subject of the complaint. Hence the court has no jurisdiction to
take cognizance of the cross-claim.

99. P filed a case against D and E. D filed a cross-claim against E. E did not answer
the cross-claim. May D move to declare E in default of the cross-claim?[110] Explain.

Yes. E should answer the cross-claim otherwise he may be declared in default of the same. Under S3 R9 the
claiming party may move for default in case of failure to answer of the defending party. The cross-claimant
is a claiming party while the cross-defendant is a defending party within the purview of the Rules of Court

100. P filed a case against D and E. D filed a cross-claim against E. May E in his
answer to the cross-claim, assert a counterclaim against D’s cross-claim?[111] Explain.

Yes. The cross-defendant can file an answer to the cross-claim and he may plead in the answer a counter-
claim or a cross-claim

101. D and E are solidarily indebted to P for P500,000. P filed a collection case
against D and E for P500,000. D and E filed their answer alleging the defense of
prescription. Judgment rendered in favor of P and the same became final and
executory. D pays the P500,000 to the sheriff. D then files an action to collect
P250,000 from E. E files a motion to dismiss on the ground that D should have filed
his claim as a cross-claim in the collection case filed by P. should the court grant the
motion to dismiss?[112] Explain.
No. The cross-claim is not compulsory but permissive since D's right to reimbursement arose only after he
had served answer. Prior to paying P, D did not yet have the right of reimbursement as against E.

102. D borrowed P500,000 from P with X acting as the surety. D did not pay on
maturity so P sued D and X. Judgment rendered in favor of P as against D and X for
P500,000. The bank account of X was garnished in the amount of P500,000. X
demanded indemnification from D but the latter did not pay X. X sued D for
indemnification. D argued that X’s claim for indemnification was waived since he did
not raise it as a cross-claim pursuant to S2R9. Is D’s argument
meritorious?[113] Explain.

No. The cross-claim was merely permissive since X's right to indemnification only arose after he had paid D.
Also under S35 R39, when a judgement is upon an obligation of one of The parties as security for another,
and the surety pays the amount or any part thereof, either by sale of his property or before sale, he may
compel re-payment from the principal.

103. S unlawfully ousted O from his parcel of land. S then sold and delivered the
land to B. O files an action for reconveyance against S and B. Judgment was rendered
in favor of O. the judgment became final and executory. Later on B filed an action for
breach of warranty against eviction against S. S moved to dismiss on the ground that
the action was barred since B should have raised the same as a cross-claim against S
in the reconveyance suit. Should S’s motion to dismiss be granted?[114] Explain.

No. A cross-claim which matured or arose after the defendant has served his answer is permissive and not
mandatory. (S9 R11) Here B's cross-claim for breach of warranty against eviction arose only after a final
judgment had been rendered in the reconveyance suit. Under the Law on Sales, the warranty against
eviction cannot be enforced until a final judgment has been rendered whereby the vendee loses the thing
acquired or a part thereof. Hence the cross-claim is not barred.

104. Is a cross-claim subject to the payment of a docket fee?[115]Explain.

A cross-claim filed before the MTC is not subject to a docket fee but one filed with the RTC is. (S7 (a) R141)

105. P filed a complaint for collection of a P1,000,000 loan against D and E before
the RTC of Manila. D filed a counterclaim against P for P500,000 for moral and
exemplary damages claiming that the filing of the suit was malicious and baseless. D
also filed a counterclaim against P for P450,000 arising from the unpaid price of a car
sold by D to P. In the meantime D also filed a cross-claim against E for
indemnification contending that the loan was really incurred for the benefit of E only.
No docket fees were paid on the counterclaims and cross-claims. (a) Is D liable to pay
docket fees on his counterclaims?[116] Explain. (b) Is D liable to pay docket fees on his
cross-claim?[117] Explain.

(a) D is not liable to pay docket fees on his counterclaim for P500,000 since the counterclaim is compulsory.
Collection of docket fees on compulsory counterclaims has been suspended by the Supreme Court in its 21
September 2004 Resolution. D is liable for the payment of docket fees on his counterclaim for P450,000
since the same is a permissive counterclaim.

(b) D is liable to pay docket fees on his cross-claim which was filed before the RTC, pursuant to S7 (a) R141.
The SC did not suspend the collection of docket fees on cross-claims filed with the RTC.

106. Distinguish a counterclaim from a cross-claim.[118]

As to whom directed. A counterclaim is directed against the opposing party while a cross-claim is directed
against a co-party. AS TO CONNECTION WITH THE MAIN ACTION. A counter claim may or may not arise out
of the transaction constituting the subject matter of the opposing party's claim while a cross-claim always
arises out of the transaction or occurrence that is the subject matter of the original action or of a
counterclaim therein. AS TO COMPULSORINESS. A counterclaim may or may not be compulsory while a
cross-claim is always compulsory. (Sec.6&7, Rule 6, ROC)

107. Define a reply.[119]

A reply is a pleading, the 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, ROC)

108. Is there a need for the Plaintiff to file a reply?[120] Explain.

No, if a party does not file such reply, all the new matters alleged in the answer are deemed controverted.
(Sec. 10, Rule 6, ROC)

109. When is there a need for the Plaintiff to file a reply?[121] Explain.

When the defense is set up in the answer which is based on an actionable document copied in or attached
thereto and the plaintiff wants to contest the genuineness and due execution of the document. The
plaintiff should file a reply specifically denying under oath the document's authenticity and due execution
and setting forth what he claims to be the facts. (Sec.8, Rule 8, ROC)

110. Assume that the suspension of the Usury Law was lifted by the Bangko
Sentral ng Pilipinas. P files a complaint to recover a loan with interest against D. D
filed an answer in which he raised the defense that the interest rate charged by P was
usurious. Is there a need for P to file a reply if he wants to deny the allegations of
usury?[122] Explain.

Yes. The plaintiff has to file a reply under oath if he desires to deny specifically the genuineness and due
execution of the actionable document, and avoid an admission of such matters. (Sec. 7, Rule 8, ROC)

111. May the Plaintiff set up in his reply claims arising from the new matters set
up by way of defense in the answer?[123] Explain.

No, the plaintiff should set forth such new claims in an amended or supplemental complaint.

112. What is a third-party complaint?[124]

A third-party complaint is a claim that the defendant may file against a person not a party to the action for
contribution, indemnification, subrogation or any other relief, in respect of his opponent's claim.

113. What is a fourth-party complaint?[125]

A fourth-party complaint is a claim that the third-party defendant may file against a person not a party to
the action for contribution, indemnification, subrogation or any other relief, in respect of his opponent's
claim.

114. Distinguish a third-party complaint from a third-party claim.[126]

AS TO ITS NATURE. A third-party complaint is a pleading while a third-party claim is not a pleading but an
affidavit or paper.
AS TO WHO FILES. A third-party complaint is filed by a party to a case while a third-party claim is files by a
stranger to the case.

AS TO PURPOSE. The purpose of a third-party complaint is for the defendant to bring in a stranger as a
party to the case while the purpose of the third-party claim is for the third-party to notify the sheriff of his
right or claim over the property attached, levied, or seized by the sheriff.

115. Illustrate each of the grounds for a third-party complaint.[127]

Contribution. If D and X are liable for tort against P and the latter sues D only, D may file a third-party
complaint against X for contribution, since joint tort-feasors are solidarily liable under Article 2194 of the
Civil Code.

Indemnification. P sues the surety to recover the loan the latter had guaranteed. The surety may file a
third-party complaint against the principal debtor for indemnification. At any rate, a judgment against the
surety is also binding upon the principal debtor who had notice of the action or proceeding and an
opportunity at the surety’s request to join in the defense. (S49 R39; 2 MANUEL V. MORAN, COMMENTS ON
THE RULES OF COURT 346 [1979 ed.])

Subrogation. X recklessly drives his car and collides with P’s car destroying it. P sues the insurer to recover
damages on his car insurance policy. The insurer can file a third-party complaint against X since it would be
subrogated to the rights of the insured upon payment to the latter.

Other Relief In Respect Of His Opponent’s Claim. P sues D to recover real property. D may file a third-party
complaint against X, who sold the real property to him, for breach of warranty against eviction. [Article
1548, Civil Code]. Insured sues insurer to recover on the policy issued by the latter. The insurer may file a
third-party complaint against the re-insurer.

116. Rufino is indebted to Simplicio in the amount of P400,000 payable on 31

December 2007. To meet the obligation, Rufino saved P200,000 by January 2007.
During that month, Rosendo was able to borrow the P200,000 from Rufino after
having been warned that Rosendo should return the P200,000 to Rufino before 31
December 2007. In February 2008, Simplicio sued Rufino for the collection of his
credit. Rufino pleaded in his answer that he was ready to pay P200,000 to Simplicio
and, reciting his transaction with Rosendo, he filed a third-party complaint against
Rosendo for the recovery of the P200,000. Is the third-party admissible? (80 Bar Q2
ed).[128]

No, the third-party complaint is not admissible. Under S11 R16, a third-party complaint is available only if
the defendant has a right to demand contribution, indemnity, subrogation or any other relief, in respect of
his opponent’s claim. Here the right to demand relief by Rufino against Rosendo was not in respect of
Simplicio’s claim against Rufino. Hence the third-party complaint is not admissible.

117. B and C borrowedP900,000 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
P450,000. C in turn loaned P225,000 out of the P450,000 he received to D. In an
action filed by A against B and C with the RTC of Quezon City, cab C file a third-party
complaint against D for the amount of P225,000? (97 Bar Q2b ed).[129]

No, C cannot file a third-party complaint against D for the amount of P225,000. C’s claim against D is not in
the way of a claim for contribution, indemnity, subrogation, or other relief, in respect of A’s claim. The loan
by C to D is separate and distinct from the loan by A to B and C.
118. D borrowed P500,000 from P with X acting as the surety. D did not pay on
maturity so P sued X. Judgment rendered in favor of P as against X for P500,000. The
bank account of X was garnished in the amount of P500,000. X demanded
indemnification from D but the latter did not pay so X filed a suit seeking
indemnification from D. D filed a motion to dismiss arguing that X should have filed a
third-party complaint against D and not having done so, the action for indemnification
is barred by res judicata or waiver. Should the motion to dismiss be granted?[130]

No. Unlike a compulsory counterclaim or cross-claim, the filing of a third-party complaint is not compulsory.
Hence X’s claim for indemnification against D is not barred by res judicata or waiver.

119. D and E are solidarily indebted to P for P500,000. The debt is due and
outstanding. P sues D for the P500,000 before the RTC. D filed a motion for leave to
file a third-party complaint against E seeking contribution of P250,000. Should the
court grant the motion even though the amount of the claim does not exceed
P300,000?[131]

Yes. Where the RTC has jurisdiction over the main case, it also has ancillary jurisdiction over the third-party
complaint even though the amount claimed falls below the jurisdictional amount. A third-party complaint is
merely auxiliary to and is a continuation of the main action.

120. In an action brought by PCIB against RM and XY before the Metropolitan

Trial Court of Manila, XY interposed a counterclaim of P450,000; a cross-claim against
RM for P500,000; and a third-party complaint against DE for P425,000, all of which
were dismissed, upon proper motions, for lack of jurisdiction. Discuss the merits of
the said order of dismissal.[132]

The order of dismissal with respect to the counterclaim is proper because a counterclaim must be within
the jurisdiction of the court, both as to its nature and amount. (S7 R6)

It is submitted that the dismissal with respect the cross-claim and third-party complaint is also proper. It is
believed that the doctrine of ancillary jurisdiction is not applicable if what is involved is a main action filed
with the metropolitan trial court rather than a regional trial court since the amount of the cross-claim and
third-party complaint would be above rather than below the jurisdictional amount. It is also difficult to
conceive how a third-party complaint, which is for contribution, indemnity, subrogation, or other relief,
could exceed the amount of the plaintiff’s claim.

121. P filed a complaint against the surety with the RTC of Manila. The surety
then filed a third-party complaint against X, who had executed indemnity agreement
undertaking to indemnify the surety in case it becomes liable under the surety bond. X
filed a motion to dismiss the third-party complaint on the ground of improper venue,
X pointed out that the indemnity agreement between the surety and X contains a
provision that any suit arising from the agreement shall be solely and exclusively filed
in Quezon City. Should the court dismiss the third-party complaint?[133]

No. A third-party complaint is ancillary to the main case. Thus a third-party complaint has to yield to the
jurisdiction and venue of the main action. (Eastern Assurance & Surety Corp. v. Cui, G.R. L-54452, 20 July
1981)

122. P filed an action to recover on his insurance claim against insurer D. D filed a
third-party complaint against re-insurer E which was allowed by the trial court.
Judgment was rendered in favor of P in respect of his complaints against D, and in
favor of D on its third-party complaint against E. Only D appealed from the judgment
against it. May D move for the execution of the judgment on the third-party complaint
against E?[134]

Yes. A third-party complaint is independent of and distinct from the complaint. Hence, the judgment on the
third-party complaint may become final and executory without waiting for the final determination of the
main case. (See Pascual v. Bautista, 33 SCRA 301 [ 1970]; Firestone Tire & Rubber Co. v. Tempongko, 27
SCRA 418 [1969]). E should have appealed the judgment against it if it still wanted to contest the same.

123. P filed a case against D. D filed a motion for leave of court to file a third-
party complaint against E. The court dismissed the third-party complaint. May D
appeal from the order?[135]

Yes. Such an order would finally dispose of D’s right to implead E. (Vda. de Dios v. Balagot, 20 SCRA 950
[1967]).

124. X’s car collided with P’s car destroying the latter’s car. P sues the insurer to
recover the damages in his car insurance policy. The insurer files a third-party
complaint against X. May X in his answer to the third-party complaint raise the
defense that P’s car was at the time of the collision being driven by P’s friend who did
not have a valid driver’s license, thus violating the authorized-driver clause of the car
policy and barring P from recovering thereon?[136]

Yes. Under S13 R6, a third party defendant may allege in his answer defenses that the third party plaintiff
may have against the original plaintiffs claim. The violation of the authorized-driver clause is a defenses
that the insurer may have against the claim of the insured P, yet this may be invoked by X in order to defeat
or negate the insurer’s claim pursuant to S13 R6.

125. P filed a collection case against D who acted as a surety in a loan extended
by P to x. D in turn filed a third-party complaint against X for indemnification. It
turned out that X had already paid his loan to P even before P had brought his suit.
May X file a counterclaim against P for moral and exemplary damages for bringing
malicious and unfounded suit and causing X to be dragged into court?[137]

Yes. Ordinarily a third party defendant may not file a counterclaim against the original plaintiff, since the
original plaintiff is not an opposing party as to him. However under S13 R6, the third party defendant, in
proper cases, may assert a counterclaim against the original plaintiff in respect of the latter’s claim against
the third party plaintiff. Here X’s counterclaim is connected to the loan transaction subject of the suit filed
by P against D.

126. What is the rule in the event that there is a need to bring in new
parties?[138] Explain.

127. What are the parts of a pleading?[139]

Parts of the pleading are the ff:

Caption – sets the name of the court, title of the action and docket number if assigned
Body – the body sets the designation, allegations of the party’s claim or defenses, relief prayed for and the
date of pleading.
Signature and address - it includes matters stated in answer to the next question.

128. What matters or information should be stated by counsel below his

signature? (PIRMA)[140]
P – PTR OFFICIAL RECEIPT NO. FOR THE CURRENT YR.
I - IBP OFFICIAL RECEIOT NO. FOR THE CURRENT YR
R - his roll number
M - No. and Date of issue of his MCLE Cert of Compliance or Cert. of exemption for the immediately
proceeding yr
A – His address which should not be a post – office box

129. What is the effect if the counsel fails to state any of the said information
below his signature?[141]

The pleading is considered as not having been signed. Failure to comply with the B.M. No. 1922 would
cause the dismissal of the case and the expunction of the pleadings in the record.

130. Give the rules regarding the inclusion of the parties’ names in the
pleadings.[142]

RULES OF PLEADING: THE names of all parties shall be included in the original complaint. In subsequent
pleadings, it is sufficient to indicate that there are other parties by putting “et al” after first party in each
sides. Names of all parties in an appeal shall also be indicated in the notice of appeal and records of appeal.
(S5 & 6 R41)

In a class suit, it is sufficient if the names of those appearing in the complaints as plaintiffs or defendants in
an answer, be sufficiently numerous and representative as to fully protect the interest of all concern. (S12
R3)

Identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee or any
other designation as the case may require. When the true identity is revealed / discovered, the pleading
may be amended accordingly. (S14 R3)

When two or more persons were not organized as an entity with juridical personality enter into
transaction, they may be sued under the name by which they are generally or commonly known. In answer
of such defendant, names and address of the persons composing said entity must be revealed. (s15 R3)

131. May a court adjudge a defendant liable for P1,000,000 where the specific
amount prayed for in the complaint is only P800,000 and there is no general prayer
for such further or other relief as may be deemed just or equitable?[143]

YES, provided the evidence warrants and the defendants fails to object to the introduction of evidence on
the additional amount of 200,000.00. In such a case the plaintiff shall pay the additional filing fee on the
200,000, which shall constitute a lien on the judgment award. (S2R 141)

However, if defendants objects to such evidence, the court may nonetheless still admit the evidence of the
presentation of the merits of the action, and the ends of substantial justice will be subserved thereby. The
complaint shall be ordered amended. (S5R10)

132. May the court in its final judgment award a claim not alleged, or a relief
different from, or more that that claimed in the pleading?[144]

YES, (S2R141), the evidence on record should so warrant and the provisions of S5R10 should be taken into
account. The docket fees on such award shall constitute a lien on the judgment. (S2R141)

133. What is the rule regarding the signing of pleadings?[145]

Every pleading must be signed by the party or counsel representing him, stating either case his address
which should not be a post office box. (S3 R7)

134. The OSG in behalf of the Republic filed a complaint in the RTC foe the
revocation of titles registered in the name of Kenrick Development Corporation (KDC).
KDC filed an answer which was purportedly signed by its counsel, Atty. G. the trials of
the case was held up by various pre-trial and discovery issues. Two years later, Atty.
G who was no longer KDC’s counsel, was summoned in a congressional hearing on
fake land titles. He testified that he prepared KDC’s answer and sent an unsigned
draft to KDC’s president. He testified that the signature appearing above his name in
the answer was not his, that he did not authorize any one to sign in his behalf, and he
did not know signed above his name. The Republic filed a motion to declare KDC in
default for failure to file a valid answer. The RTC granted the motion, declared KDC in
default, and allowed the Republic to present its evidence ex parte. On appeal, the CA
reversed the RTC, saying that Atty. G assented to the filing of the answer in his behalf
as never disowned the answer and resumed acting as counsel for KDC after its filing.
Did the CA err?[146] explain

Yes. (S3 Rul 7) is quite clear when it requires that a pleading must be signed by the party or counsel
representing him. Hence, only the signature of either the party himself or his counsel operates to validly
convert a pleading from one that is unsigned to one that is unsigned. The answer being unsigned, it
produced no legal effect and thus KDC was properly declared in default.

135. What is the significance of counsel’s signature on a pleading?[147]

The signature of counsel constitutes a certification by him that; 1. He has read the pleading; 2. To the best
of his knowledge, information, and belief there is good ground to support it; and, 3. It is not interposed for
delay

136. Is it required that a pleading be under oath, verified or accompanied by

affidavit? [148]

No. Pleadings need not be under oath, verified or accompanied by affidavit, except when otherwise
specifically required by law or rule. (S4R7)

137. In an original complaint for recovery of possession of common property, the

heading of the complaint states: “Heirs of Mariano, Namely: Jose et. Al vs. Heirs of
Ramon, et, al.,” do you the caption was properly prepared?[149] Explain.

No. The heirs must be named thereat. The names of all the parties should be included in the original
complaint. In subsequent pleadings it is sufficient if the name of the first party on each side be stated with
an appropriate indication when there are other parties , such as by using the word “et, al” The names of all
the parties in an appeal shall also be indicated in the notice of appeal and record of appeal S5&6 R41.

138. D lost in the decision of the MTC. His counsel seasonably filed a notice of
appeal but failed to sign the same. What is the effect of the notice of
appeal?[150] Explain.

The unsigned pleading is invalid and it produces no legal effect. Where a Notice of Appeal is not signed, it
would be as if the hearing never took place. This is so since one cannot put something on nothing and
expect it to stand, (UAC v. Mcfoy, 1962)
139. Based on the preceding problem, will the court be liable if it allows the
counsel to sign the notice of appeal without first notifying the opposing
counsel?[151] Explain.

140. How a pleading is verified?[152]

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein
are true and correct of his personal knowledge or based on authentic records.

141. May a counsel verify his client’s pleading?[153] Explain.

Yes. If the facts in the pleading are true and correct of his personal knowledge or based on authentic
records. (S3 R7). Where the verification is made by the lawyer who also signed the pleadings, the courts are
inclined to be liberal to accept such signature by the lawyer as substantial evidence (G. R. No. 141947, July
5, 2001 Santos Vs. Court of Appeals.

142. What would be the effect if the pleading required to be verified is not verified
or lacks a proper verification?[154]

A pleading required to be verified which is not verified or lacks a proper verification, as in those containing
a verification based on "information and belief", or upon knowledge, information and belief", shall be
treated as an unsigned pleading. (ld) Otherwise put the pleading produces no legal effect. (S3R7) 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. In practice the Supreme Court has been strict with
the requirement for verification in petitions filed before it.

143. What pleadings or papers are required to be verified?[155]

The following pleadings or papers are required to be verified:

1. Petition for relief from judgment (S3R38)
2. Petition for review on certiorari (S1R45)
3. Petition for review from the Regional Trial Court to the Court of Appeals (S1R42)
4. Appeal from quasi-judicial bodies to the Court of Appeals (S5R43)
5. Petition for annulment of judgment of the Regional Trial Court (S4R47)
6. Petition for review of judgment of the Commission on Audit and the Commission on Elections (S5R64)
7. Complaint with application for preliminary injunction or temporary restraining order (S4R58)
8. Complaint with application for appointment of receiver (S1R59)
9. Complaint with application for support pendente lite (S1R61)
10. Petition for certiorari, prohibition, or mandamus (R65)
11. Petition for quo warranto (S1R66)
12. Complaint for expropriation (S1R67)
13. Complaint for forcible entry and unlawful detainer (S1R70)
14. Complaint, compulsory counterclaim, cross-claim and the answers thereto under the Rules on Summary
Procedure. (S3[b], Rule on Summary Procedure)
15. Petition for appointment of a general guardian (S2R94)
16. Petition for leave to sell or encumber property of an estate by a guardian (S1R95) 17. Petition for the
declaration of competency of a ward (S1R97)
18. Petition for habeas corpus (S1R97)
19. Petition for writ of amparo and writ of habeas data (S5 Rule on the Writ of Amparo; S6 Rule in the Writ
of Habeas Data)
20. Petition for cancellation or correction of entries in the civil registry (S1R108)
21. Petition to take deposition in perpetuam rei memoriam (S1R24)
22. Petitions governed by summary judicial proceedings under the Family Code ( Articles 223, 225, 235,
239, 249 and 253 of the Family Code)
23. Suit between members of the same family (Article 151, Family Code)
24. Petition for declaration of nullity or annulment of marriage or for legal separation (Sec. 2(b)(3) SC Rule
on Legal Separation; Sec. 5, SC Rule on Declaration of Absolute Nullity of Marriage and Annulment of
Voidable Marriage)

144. What is forum shopping?[156]

The act of a party who as a result of an adverse opinion in one forum, seeks a favorable opinion ( other
than by appeal or certiorari) in another, or who institutes two or more actions or proceedings grounded on
the same cause, on the gamble that one or the other court would make a favorable disposition. ( City of
Cebu vs Del Rosario, G.R. No. 169341, 22 Nov 2006)

145. Why is forum shopping prohibited?[157] Explain.

Forum shopping is prohibited because of the vexation caused by courts and parties-litigants by a party who
asks different courts or administrative agencies to rule on the same or related causes or to grant the same
or substantially the same relief, in the process creating the possibility of conflicting decisions being
rendered by the different fora upon the same issues. ( Municipality of Taguig vs Court of Appeals, 469 SCRA
588[2005])

146. What is the test for determining whether a party violates the rule against
forum shopping?[158] Explain.

The test for determining whether a party violates the rule against forum shopping is where a final judgment
in one case will amount to res judicata in the action under consideration or where the elements of litis
pendentia are present. (Marcopper Mining Corp. vs Solidbank Corp., 432 SCRA 360)

147. P filed a complaint against D for collection of sum of money. No certification

against forum shopping was contained or annexed to the complaint. D filed a motion
to dismiss the complaint on the ground of failure to comply with S4R7. P filed an
amended complaint to which he now annexed the certification against forum
shopping. Should D’s motion to dismiss be granted?[159] Explain.

Yes. Failure to comply with the requirements under the first paragraph S5R7 shall be cause for the dismissal
of the complaint without prejudice, unless otherwise provided. The failure to comply with the
requirements of S5R7 re the filing of a certification against forum shopping shall not be curable by mere
amendment of the complaint or other initiatory pleading

148. If P’s complaint is dismissed, what is the remedy or recourse available to

P?[160] Explain.

P has two options which he can consider. P may simply refile the complaint and annex thereto the
certification against forum shopping. This is because the dismissal for failure to comply with the
requirement of annexing a sworn certification against forum shopping is a dismissal without prejudice. P
may also file a special civil action for certiorari in order to set aside the dismissal order if P feels that the
order was made with grave abuse of discretion amounting to lack of or excess of jurisdiction. Appeal is not
available to P as an appeal may not be taken from an order dismissing an action without prejudice. (S1R41)
149. P filed a complaint for quasi-delict against D before the MeTC. The Metc
dismissed the complaint on the ground of forum-shopping since there was a pending
criminal case for reckless imprudence involving the same accident against D. P filed a
motion for reconsideration which was denied by the MeTC. On the 60th day from the
notice of the order denying his motion for reconsideration, P filed a special civil action
for certiorari with the RTC seeking to set aside the dismissal. The RTC dismissed the
petition for certiorari on the ground that appeal was proper remedy. Was the RTC’s
dismissal order correct?[161]

No. A dismissal for forum-shopping under S5R7 is without prejudice unless otherwise stated in the dismissal
order. Under S1R41, no appeal lies from an order dismissing a case without prejudice and hence a party
may file an appropriate civil action under R65. (Casupanan vs Laruya, G. R. 145391, 26 August 2002)

150. P filed a complaint against D for collection of sum of money. A certification

against forum shopping was annexed to the complaint but the certification did not
contain an undertaking on the part of D. D filed a motion to dismiss the complaint on
the ground of failure to comply with S5 R7. P filed an amended complaint to which is
now annexed the certification against forum shopping containing the missing
allegation. Should D’s motion to dismiss be granted?[162]

The Supreme Court has held that if it is a case of the plaintiff or principal party submitting the CFS, but the
same is defective, the defect may be cured by amendment. What is not allowed to be cured by mere
amendment is the non-submission or absence of a CFS.

151. Petitioners are husband and wife. They filed a petition for certiorari and
mandamus before the Court of Appeals but only the husband signed the CFS. Is the
husband’s signature sufficient?[163] Explain.

Yes, the husband’s signature alone is sufficient in compliance with rule on Certification against Forum
Shopping (Sps.Dar Alonzo-Legasto,30 Aug 2000).

152. May counsel for a party sign the CFS?[164]

As a general rule No. CFS needs to be signed by the party himself since he is in the best position to state the
matters therein. Exception would be the case wherein the party is a juridical person in which case the
lawyer could sign. The lawyer must however be specially authorized by a board resolution. (BPI Leasing
Corp v.CA,18 November 2003).

153. RC filed a complaint for the annulment of foreclosed sale against Bank V. In
its answer, Bank V set up a counterclaim for actual damages and litigation expenses.
RC filed a motion to dismiss the counterclaim on the ground that Bank V’s answer with
counterclaim was not accompanied by a certification against forum shopping. Rule on
the issue. [165] Explain.

I would rule for the denial of the motion to dismiss. The Supreme Court has held that a certification against
forum shopping is not required for asserting a compulsory counterclaim since it is not an initiatory pleading
or incipient application but merely auxiliary to the main preceding. ( Sps. Carpio v. Rural Bank of Sto.Tomas
, G.R. 153171, 4 May 2006. Hence the counterclaim is for actual damages and litigation expenses and thus
compulsory since it arose out of the transaction or occurrence which is the subject matter of RC’s
complaint. Hence the motion to dismiss should be denied.

154. The NLRC rendered a decision against Fr. Tabora, the Ateneo de Naga
University, and Edwin Bernal (the petitioners). The Petitioners filed a petition under
Rule 65 seeking the reversal of the NLRC decision. The verification and the
certification against forum shopping (CFS) was however signed only by Fr. Tabora.
The CA dismissed the Petition insofar as the Ateneo and Bernal were concerned,
notwithstanding a belated showing that Fr. Tabora has been authorized to sign the
verification and CFS for Ateneo and Bernal. Was the dismissal proper?[166] Explain.

No. In verification, the signature of one instead of all the parties would be sufficient if there is showing that
he had sufficient knowledge and belief to sign the verification. As regards the CFS requirement, there was
substantial compliance with the submission, albeit delayed, of proof that Fr. Tabora had been authorized to
sign the CFS for the Ateneo and Bernal. The SC considered the delay a mere technicality or procedural
imperfection which should not defeat the ends of justice. (Ateneo de Naga University v. Manalo,9 May 05).
Doctrine reiterated in China Banking Corporation v. Mondragon International Phils, 17 Nov.05, re belated
proof of authority of corporate signatory to CFS. Recent trend of liberality .

155. The verification and certification against forum shopping appended to the
appeal to the NLRC were signed by BPI’s Assistant Vice-President. There was no proof
however that the AVP was authorized by the corporation’s board. Are the verification
and the certification against forum shopping fatally defective?[167] Explain.

The AVP as a corporate officer has implied or apparent authority to sign the verification and CFS. An
express authorization is not an indispensable requirement. The fact that BPI acquiesced and expressed no
obligation to the appeal by before the NLRC is proof that it authorized the AVP to sign the verification and
the CFS. (Enriquez v. BPI, G.R. 172812, 12 February 2008)

156. Who are corporate officers or employees who may sign the verification and
certification against forum shopping without need of board resolution?[168] Explain.

Corporate officers or employees who may sign the verification and certification against forum shopping are
: (1) Chairperson of the board of directors; ( 2) the President ; (3) General Manager ; (4) Personnel Officer;
and (5) Employment Specialist in a labor case. The rationale for this list is that these officers are in position
to verify the truth and correctness of the allegations in the complaint of petition. (Cagayan Valley Drug
Corp. v. Commissioner of Internal Revenue, G.R. No. 151413, 13 February 2008). The Vice President and
Assistant Vice- President may be added to the list. (Enriquez v. BPI, G.R. No.172812, 12 February 2008).

157. Korean Airlines (KAL), a foreign corporation licensed to do business in the

Philippines filed a collection case against Expert Travel and Tours Inc. The verification
and CFS was signed by its counsel and resident agent X. To the motion to dismiss
filed by ETI, KAL countered that X was authorized by KAL in a teleconference by the
Board of Directors. No record such authorization was attached to the complaint. Can
the resident agent sign the verification and CFS in behalf of a foreign
corporation?[169] Explain.

No. X was not specifically authorized to execute the certification in behalf of KAL. Being a resident agent
does not mean that he is authorized to execute the requisite CFS because while he may be aware of actions
filed against his principal, he may be aware of actions initiated by his principal whether in the Philippines or
in the country where such foreign corp. is organized.( Expertravel and Tours Inc.CA,26 May 2005)

158. In the proceedings for the settlement of the testate estate of Alice, a
contingent money claim for commission in the event of the sale of properties of the
estate was filed by Alan with the probate court, The executrix moved for the dismissal
of the claim on the ground that no certification against forum shopping was attached
thereto pursuant to S5 R7. The RTC dismissed the money claim. Was the dismissal
proper?[170]Explain.

No. A certification against forum shopping is required only for claimants and other initiatory pleadings. A
money claim against the estate is not an initiatory pleading since the probate proceeding was already
initiated upon the filing of the petition for the allowance of the decedent’s will. A money claim does not
initiate new litigation but merely brings a material but incidental matter arising in the progress of the case.
Hence a money claim is only incidental to the probate proceeding, more so if it is contingent since the
claimant cannot even institute a separate action for a mere contingent claim. ( Sheker v. Estate of Sheker,
G.R..157912,13 December 2007)

159. What will be the effect on the part of the plaintiff if he submitted a false
certification against forum shopping?[171] Explain.

The submission of a false certification or non-compliance with any of the undertakings therein shall
constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal
actions. 160.

If the acts of the party and his counsel clearly constitute wilful and deliberate forum shopping, the same
shall be ground for summary dismissal with prejudice and shall constitute direct contempt as well as cause
for administrative sanctions.

160. What is the effect of the action if the plaintiff deliberately committed forum
shopping?[172] Explain.

If the acts of the party and his counsel clearly constitute willful and deliberate forum shopping, the same
shall be ground for summary dismissal with prejudice and shall constitute direct contempt as well as cause
for administrative sanctions.

161. What are ultimate facts?[173] Explain.

Ultimate facts are facts essential to a claim or defense. It cannot be stricken out without leaving the
statement of the cause of action or the defense insufficient.

162. How shall the ultimate facts be stated in a pleading?[174] Explain.

The ultimate facts shall be stated in a plain , concise and direct manner and in a methodological and logical
form.

163. How may alternative causes of action or defenses be pleaded?[175]Explain.

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.

164. In alternative causes of action or defense, what is the effect of the

insufficiency of one of the alternatives?[176] Explain.

In such a case, as long as one of the alternative statements, if made independently, would be sufficient, the
pleading is not rendered insufficient by the insufficiency of the alternative.

165. In pleading alternative causes of action or defenses, is it required that the

causes of action or defenses be consistent with each other?[177]Explain.
No, the causes of actions or defense alleged may be inconsistent with each other, provided that each cause
of action or defense be consistent in itself

166. Is a general averment of the performance or occurrence of all conditions

precedent in a pleading be sufficient?[178] Explain.

Yes, in any pleading a general averment of the performance or occurerence of all conditions precedent
shall be sufficient.

167. Odrareg filed a complaint for recovery of possession of land against

Onitnelot. He alleged that barangay conciliation took place prior to the filing of the
action. He did not, however, attach the certificate to file action. Will the case be
dismissible for failure to comply with a condition precedent?[179] Explain

No, not motot proprio dismiss.under rules of court barangay conciliation is not a
jurisdictional requirement .so no dismissal upon failure.

168. In an action to recover a parcel of land, the intervenors claimed to be the

absolute owners thereof and asked that they be placed in possession of the property,
but defendants maintained that they had absolute title on the land and filed a
counterclaim for injunction against plaintiffs and intervenors. Judgment was rendered
for the defendants. In a subsequent action, the intervenors claimed from the
defendants the expenses they had incurred in clearing and cultivating the parcel of
land and planting coconut and other fruit-bearing trees thereon. The defendants in
their answer pleaded that the plaintiff’s claim was a compulsory counterclaim that
should have been set up in the former action as against the counterclaim for
injunction filed by the defendants. The plaintiffs replied that they could not have set
up in the former case such as counterclaim for improvements because it would have
been inconsistent with and would have weakened their claim for title to the land. Is
the plaintiff’s contention meritorious? [180]Explain.

168. No. Under R8 S2 ‘ 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. Hence, the plaintiff and intervenors in the former case could have set up the claim that they were
entitled to the parcel of land at least they are possessors in good faith.

169. P filed with the CFI of Cebu an action for recovery of land against R. R filed
an answer raising the defense of ownership. The CFI decided in favor of R but on
appeal the CA reversed the CFI. CA ordered R to vacate to vacate the premises. In
the body of the decision, the CA stated that there was no fraud or bad faith on the
part of R. The CA’s decision became final and executory. P moved for the execution of
the judgment before the CFI. R opposed on the ground that a hearing supplementary
to execution should be conducted to allow them to present evidence to prove that
they are builders in good faith and to prove the value of the improvements. P argued
that R should have set up their claim for reimbursement in the action for recovery.
The CA allowed R to present such evidence, stating that R could not have presented
such evidence in the trial court since it would be inconsistent with their defense of
ownership. (a) Is the reason cited by the CA for allowing R to present evidence
tenable?[181] Explain. (b) Should the CFI grant the opposition of R to P’s motion for
execution?[182] Explain. (c) May R file a separate action to recover the value of the
improvements introduced by them?[183] Explain.

170. What facts may be averred generally in a pleading?[184]

Malice, intent, knowledge and other condition of the mind of a person may be averred generally

171. What facts must be alleged with particularity?[185]

172. The complaint alleged that the defendant acted in bad faith, arbitrarily,
illegally, wrongfully, and in violation of law. However, it did not contain any averment
of facts showing that defendant’s acts were done in the manner alleged. Does the
complaint state a cause of action?[186]Explain.

173. What is an actionable document?[187]

An actionable document is an instrument or document on which an action or defense is founded.

174. Give examples of actionable documents?[188]

The following are actionable documents

1. A promissory note in an action to collect amount thereof

2. A deed of real estate mortgage in an action to foreclose the mortgage.
3. A written contract in an action to enforce or rescind the same.

175. What is the requirement regarding an actionable document?[189]

Where the defense in the answer is based on an actionable document, a reply specifically denying it under
oath must be made; otherwise, the genuineness and due execution of the document will be deemed
admitted.

176. What are the two ways of setting forth an actionable document?[190]

Two ways in setting forth an actionable document

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

b.) with like effect, to set forth in the pleading said copy of the instrument or document

177. If the adverse party wants to contest the genuineness and due execution of
an actionable document, how shall he do so?[191] Explain.

If an adverse party wants to contest the genuineness and due execution of an actionable document he
should specifically deny the genuineness and due execution under oath and sets forth what he claims to be
the facts.

178. What specific facts are deemed included within the admission by the adverse
party of the genuineness and due execution of an actionable document?[192]

Specific facts are:

1- That the party whose signature it bears signed it

2- That signed by another, it was signed for the adverse party and with his authority
3- That at the time it was signed, it was in words and figures exactly as set out in the pleading of the party
relying upon it
4- that the document was duly delivered
5- That any formal requisites of law, such as seal acknowledgement or revenue stamp which it lacks are
waived by him

179. P purportedly sold a parcel of land to D. Later, P claimed that what he signed
was a document captioned lease contract and not a deed of sale. P then filed a
complaint against D and M, to whom D sold the property. In their answer, D and M
attached the purported deed of sale. P did not specifically deny under oath the deed of
sale. Can P be allowed to assail the validity of the deed of sale when he failed to deny
it under oath the genuineness and due execution thereof?[193] Explain.

Yes, failure to deny the genuineness and due execution of an actionable document does not preclude a
party from arguing against it by evidence of fraud, mistake, compromise, payment, statute of limitations,
estoppel and want of consideration.

180. P filed an action to recover a parcel of land against D. attached to the

complaint is a copy of the deed of sale executed by D’s father in favor of P. D
specifically denied but not under oath the deed of sale. At the trial of the case, D
sought to present an expert witness to testify that the signature of the seller in the
deed of sale is a forgery. P objected to the presentation of the witness saying that D
impliedly admitted the genuineness and due execution of the deed of sale when he
failed to specifically deny it under oath. How should the trial court rule on the
objection?[194] Explain.

The trial court should overrule the objection. Under S8 R8 the requirement of an oath does not apply when
the adverse party does not appear to be a party to the instrument. Here the D's were not parties to the
deed of sale.

181. P filed a verified complaint against D seeking to recover a parcel of land. In

the complaint, P alleged that he never sold the land to D but D took possession under
false claim of ownership. D filed and answer to which he attached a copy of the deed
of sale between him and P over the land. P did not specifically deny under oath the
genuineness and due execution of the deed of sale. Was there an implied admission
under S8R8?[195] Explain.

No. The verified complaint with a specific allegations that P never sold the land to D was a substantial
traversal of the actionable document.

182. M filed a verified complaint to annul a deed of sale over community property
which his wife N had executed in favor of T. M alleged that the sale was made without
his consent and knowledge. In T’s answer, he attached a SPA purportedly executed by
M in favor of N. M filed a reply which was not under oath alleging his signature to the
SPA was forged. May M prove that his signature to the SPA was forged?[196] Explain.

Yes the allegation in the verified complaint that M did not know or consent to the sale of the land put T on
adequate notice that it would be called upon during the trial to prove the genuineness and due execution
of the SPA.

183. P filed a complaint for collection of P500,000 against D. P attached a copy of

the promissory note for P500,000 to the complaint. D filed an answer which was not
under oath or verified, in which he alleged in the main that he had already paid the
P500,000. P without accounting for the non-production of the original. D objected to
the offer on the ground that it violates the best evidence rule since only a copy and
not the original was presented. Should the trial court sustain the
objection?[197] Explain.

No the trial court should not sustain the objection. The Supreme Court has held in Gaw vs.Chua that a party
who impliedly admits the genuineness and due execution of a document by failing to consent it in
accordance with S8 R8 cannot object to the presentation of a copy thereof rather the original.

184. P and R are the children of the late CC. Upon the demise of CC, his spouse
and his children executed a deed of partition wherein they waived their shares over
the H Lumber in favor of their co-heir Q. Q then sold the H Lumber to R. Later R
delivered a check for P200,000 to P which the latter encashed. Subsequently R sued P
to collect on the P200,000 which R alleges was a loan. In her answer with
counterclaim, P alleged that the P200,000 was an advance on her share in H Lumber
and counterclaimed for accounting and delivery of her share. R filed an answer to the
counterclaim wherein he alleged that P no longer had any interest in H Lumber
because of the execution of the deed of partition and that he is now the owner of the
H Lumber by virtue of a deed of sale executed in his favor by CC. R annexed copies of
the deed of partition and of sale to his answer to the counterclaim. P filed a reply and
countered that the deed of partition and the deed of sale were not true and valid
agreements and did not express the true intention of the parties, and that the deeds
were only temporary paper arrangements executed upon advice of counsel until all
the heirs could reach a final agreement. The trial court ruled in favor of R. P
contended that it was error for the trial court to admit mere copies of the deed of
partition and the deed of sale in violation of the best evidence rule. Is P’s contention
correct?[198] Explain.

No the petitioner's contention is not correct. The Supreme Court has held in Gaw vs. Chua Gr No.160855,
that production of the original may be dispensed with in the trial courts discretion whether the opponent
does not bona fide dispute the contents of the documents and no other useful purpose will be served by
requiring production.

Here there was no dispute as to the terms of either deed; hence the RTC correctly admitted the
photocopies in evidence. Petitioner admitted signing the deed of partition.as for the deed of sale,
petitioner in effect admitted the genuineness and due execution of the deed of sale when she failed to
specifically deny it pursuant to S8 R8. The petitioner did not contest the contents of the deed but simply
alleged that there was a contemporaneous agreement that the transfer of hagonoy lumber to Chua Sioc
Juan was only temporary.

185. S filed and action for collection against F. In its complaint S alleged that F
applied with S for the issuance of letters of credit to finance the purchase of raw
materials from various suppliers and that S issued the letters of credit but F did not
pay the loan it had incurred from S in relation to the letters of credit. The letters of
credit were attached to the complaint. F filed an answer not under oath denying
liability. Judgment was rendered in favor of S. F contends that the trial court erred in
admitting in evidence the letters of credit since the documentary stamps were not
affixed thereto and cancelled hence the letter of credit cannot be used in evidence
pursuant to Section 201 of the National Internal Revenue Code. Is F
correct?[199] Explain.

No since F failed to specifically deny under oath the letters of credit, it is deemed to have impliedly
admitted the genuineness and due execution of the same. Such implied admission includes the waiver of
the objection to the lack of documentary stamps.
186. P filed an action to annul a deed of sale against D on the ground that he had
not made any sale thereof. D filed an answer to which he attached a copy of a deed of
sale purportedly executed by P. P did not file a reply under oath. During trial, P
presented without objection an expert witness who testified that P’s signature on the
deed of sale was forged. May the court take into account the testimony of the expert
witness in deciding the case?[200] Explain.

Yes. While the P impliedly admitted the geniuses and due execution of the deed of sale when he did not
specifically deny it under oath and set forth what he claims to be facts, the benefits of the implied
admission were lost by the D when he failed to timely execution of the actionable document.(Koh v.
Ongsiako, 36 Phil.185; Titan Construction Corp. v David, G.R. No. 169548, 15 March 2010).

187. What are the three modes of specific denial?[201]

First mode: the defendant must specify each material allegation of fact the truth of which he does not
admit, and whenever practicable, set forth the substance of the matters upon which he relies to support his
denial.

Second mode: where a defendant desires to deny only a part of the averment, he shall specify so much of it
as is true and material and deny only the remainder.

Third mode: where a defendant is without knowledge or information sufficient to form a belief as to the
truth of a material averment made in the complaint, he shall so state and this shall have the effect of a
denial. (S10 R8)

188. Oicnanev filed a complaint for recovery of the 5% usurious interest he paid
to Olifnap, in addition to the principal obligation. Olifnap filed his answer without
denying specifically the the usurious interest. What is the effect of the denial of
Olifnap?[202] Explain.

189. On the basis of an alleged promissory note executed by Harold in favor of

Ramon, the latter filed a complaint for P950,000.00 against the former in the RTC of
Davao City. In an unverified answer, Harold specifically denied the genuineness of the
promissory note. During the trial, Harold sought to offer the testimonies of the
following: (1) the testimony of an NBI handwriting expert to prove the forgery of his
signature;[203] and (2) the testimony of a credible witness to prove that if ever Harold
had executed the note in favor of Ramon, the same was not supported by a
consideration. May Ramon validly object to the proposed testimonies?[204] Give a brief
explanation of your answer.

1) Ramon may validly object to the proposed testimony of an NBI handwriting expert to prove forgery.
Under S8 R8, the genuineness and due execution of an actionable document is deemed admitted by the
adverse party if he fails to specifically deny such genuineness and due execution. Here the genuineness and
due execution of the promissory note, which is an actionable document, was impliedly admitted by Harold
when he failed to deny the same under oath, his answer being unverified. Hence Haroldis precluded from
setting up the defense of forgery and thus Ramon may object to the proposed testimony seeking to prove
forgery

2) Ramon may not validly object to the proposed testimony showing that the note was not supported by a
consideration. The Supreme Court has held that an implied admission under S8 R8 does not preclude the
adverse party from introducing evidence that the actionable document was not supported by a
consideration. The reason is that such evidence is not inconsistent with the implied admission of
genuineness and due execution. [Acabal v. Acabal, 31March 2005]The fact that the defense of lack of
consideration is inconsistent with Harold’s defense of forgery is also not objectionable. Under the Rules of
Civil Procedure, a party may set forth two or more statements of defense alternatively or hypothetically.
[S2 R8]

190. What is the effect if a material averment in the complaint is not specifically
denied?[205] Explain.

They shall be deemed admitted. (S11 R8)

191. C filed a complaint for sum of money against Y. A copy of the promissory
note upon which the action was based was attached to the complaint. The complaint
alleges that Y defaulted in the payment of the note. Y filed an answer in which he
admits the paragraph regarding his personal circumstances but “specifically denies”
the rest of the allegations for want of knowledge or information sufficient to form a
belief as to the truth thereof. C moved for a judgment on the pleadings in his favor.
Should the trial court grant the motion?[206] Explain.

Yes. The third mode of specific denial may not be availed of when the fact as to which want of knowledge
or information is claimed is so plainly and necessarily within the defendant’s knowledge that his averment
of ignorance must be palpably untrue. The defendant must aver positively or state how it is that he is
ignorant of the alleged.(Capitol Motors v. Yabut, 32 SCRA 1)

192. What is a negative pregnant?[207]

A negative pregnant is denial of fact alleged with some qualifying or modifying circumstance which denial is
ambiguous or conjunctive, that is, it cannot be ascertained whether it is the fact or only the qualification or
modification which is denied.

193. What is the effect of a negative pregnant?[208]

The effect is that the defendant is deemed to have only denied the qualification or modification but not the
fact itself which is deemed admitted.

194. Give examples of negative pregnant.[209]

Paragraph 4 alleges that defendant bumped plaintiff’s car while under the influence of alcohol. The
defendant denies bumping plaintiff’s car while under the influence of alcohol. The defendant is deemed to
have denied only the fact of being intoxicated but is deemed to have admitted the bumping.

195. G filed a case against N for recovery of possession of and to quiet title over a
parcel of land. P in paragraph 4 of the complaint alleges that P was unable to take
possession due to unwarranted adverse claim of ownership and possession by D
alleging sale by certain FN of subject property to D. In paragraph 3 of his answer, D
alleged thus: “Defendant specifically denies paragraph 4 of the complaint, the truth
being that defendant never asserted title of ownership to the property in virtue of any
deed of conveyance executed in favor of defendant FN nor claimed any possessory
right.” P moved for judgment on the pleadings. Should the court grant P’s
motion?[210] Explain.

Yes. Paragraph 3 of the answer was a negative pregnant. The defendant’s denial as to the material
averments in paragraph 4 conjoined with his disclaimer of dominical or possessory rights in the manner
alleged in the complaint. The defendant’s denial is therefore a negative pregnant which is equivalent to an
admission. The defendant is deemed to have denied only the qualification regarding the sale by FN but not
the fact that he prevented plaintiff from taking possession by an unwarranted adverse claim of ownership.
Hence, a judgment on the pleadings is proper. (Galofa v. Nee Bon Sing, 22 SCRA 48)