CIVPRO - RULE 9-14

Question 1

Discuss the effect of failure to plead defenses and objections.

Answer 1

As a general rule, defenses and objections, not pleaded either in a motion to dismiss or in the answer are deemed waived. However, there shall be no waiver of defenses and objections when it appears from the pleadings or the evidence on record:

1. That the court has no jurisdiction over the subject matter;
2. That there is another action pending between the same parties tor the same cause (litis pendentia);
3. That the action is barred by prior judgment Res judicata? or
4. That the action is barred by statute of limitation (prescription) (ROC, Rule 9 Sec. 1).

Note: The above defenses may be raised at any stage of the proceedings. However, Iack of jurisdiction over the subject matter, by exception, may be barred by laches or estoppel (Tijam v. Sibonghanoy. G.R. No. L-21450, April 15, 1968).

Question 2

What is the effect of failure to plead compulsory counterclaim or cross-claim.

Answer 2

A compulsory counterclaim, or a cross-claim, not set up shall be barred (ROC, Rule 9, Sec. 2).

Note: When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, excusable negligence, or when justice requires, he or she may, by leave of court, set-up the counterclaim by amendment to the pleadings before judgment (ROC, Rule 9, Sec. 2).

Question 3

When is there default?

Answer 3

There is default if the defending party fails to answer within the time allowed therefor (ROC Rule 9, Sec. 3).

Question 4

When is the declaration of default proper? (JAAM-N)

Answer 4

The following must be present before the court shall order the default:

1. The court must have validly acquired [J]urisdiction over the person of the defendant either by service of summons or voluntary appearance;
2. The defendant must have failed to [A]nswer within the time allowed therefor;
3. The claiming party must prove that the defending party has failed to [A]nswer within the period provided by the ROC (Sablas v Sablas, GR No. 144568, July 3, 2007)
4. There must be [M]otion to declare the defendant in default filed by the claiming party; and
5. There must be [N]otice to the defendant by serving upon him a copy of such motion.

Question 5

What are the effects of an Order of Default. (SNG)

Answer 5

The order of default has the following effects:

1.The court shall proceed to render judgment [G]ranting the claimant such relief as his or her pleading may warrant; or

2.The court in its discretion may instead require the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court (ROC, Rule 9, Sec. 3).

2a. Note: The party declared in default loses his Standing in court preventing him from taking part in the trial (Lui Enterprise Inc., v. Zuellig Pharma Corp., G.R. No. 193494, March 12, 2014). The party in default shall still be entitled to Notice of subsequent proceedings (ROC, Rule 9, Sec. 3(a)).

Note: A party in default may testify and may be cited as a witness by his co-defendants having standing in court (Cavili v. Florendo, G.R. No. 73039, Oc.t 9, 1987).

Question 6

What are the remedies available to a party who has been declared in default?

Answer 6

The manner of relief is dependent upon the time the defending party obtained knowledge of the Order of default:

1. If the defendant obtains a notice o the declaration of default before the court renders a default judgment, the defendant may file, under oath, a motion to set aside order of default upon showing that his or her failure to answer was due to fraud, accident, mistake or excusable negligence, and that he or she has a meritorious defense (ROC, Rule 9, Sec. 3(b));
2. If the defendant discovers his or her default after judgment but prior to the judgment becoming final and executory, he or she may file a motion for new trial under Rule 37 to assail a default on the grounds of fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved has probably been impaired in his rights (ROC, Rule 37, Sec. 1(a));
3. If he or she discovers his or her default after the judgment has become final and executory, a petition for relief from judgment under Rule 38 may be filed to assail a default judgment on the grounds of fraud, accident, mistake, or excusable negligence (RC, Rule 38, Sec. 1);
4. Appeal from judgment rendered against him as contrary to evidence or the law, even if no petition to set aside the order of default has been presented by him (ROC, Rule 41, Sec. 2; Otero v. Tan, G.R. No. 200134, (2005)); or
5. A petition for certiorari to declare the nullity of a judgment by default if the trial court properly declared a party in default, if grave abuse of discretion attended such declaration (Crisologo v. Globe Telecom Inc., G.R. No. 167631).

Note: The remedies of the motion to set aside order of default, motion for new trial, ad petition for relief from judgment are mutually exclusive, not alternative or cumulative; meaning a defendant declared in default may avail of only one of the three remedies (Lui Enterprise Invc. v. Zuellig Pharma (2014)).

Question 7

Can a defaulting party file a petition for certiorari to assail the order of default?

Answer 7

Yes. A petition for certiorari may also be filed if the trial court declared the defendant in default with grave abuse oF discretion (Lui Enterprise v. Zuellig Pharma Corp, G.R. No. 193494, March 12, 2014).

Question 8

Can the defaulting party appeal the judgment by default?

Answer 8

Yes, a party in default loses its right to present evidence, control the proceedings, and examine or cross-examine witnesses. However, it retains the right to appeal as part of the remedies available to a party in default.

The grounds that may be raised in such an appeal are restricted to any ot the following:
first, the failure of the plaintiff to prove the material allegations of the complaint;
second, the decision is contrary to law; and
third, the amount of judgment is excessive or different in kind from that prayed for (Disini v. Republic, G.R. No. 205172, June 15 2021).

Question 9

What is the effect of a partial default?

Answer 9

Where a pleading asserts a claim against several defendants and some of whom answer and the other fails to do so the court shall try the case against all the defending parties based on the answers filed and render judgment on the evidence presented where the claim states a common cause of action against them (ROC, Rule 9, Sec. 3(c).

Question 10

What is the extent of relief that may be awarded against a defendant in default?

Answer 10

Where the defendant is declared in default and subsequently judgment is rendered against him, such judgment shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages (ROC, Rule 9, Sec. 3(d)).

Question 11

Which actions prohibit a declaration of default? (ANS4)

Answer 11

The following actions do not allow a party to be declared in default:

1. An action for Annulment of marriage;
2. The declaration of Nullity of a marriage;
3. An action for legal Separation,

Note: In the first three instances the court shall order the Solicitor General or his or her deputized public prosecutor to investigate whether or not collusion exists between the parties. If there is no collusion, the court shall order said Solicitor General or his or her deputized public prosecutor to intervene for the State to see to it that the evidence submitted is not fabricated (ROC Rule 9 Sec. 3[e)).

1. In Special civil actions for certiorari, prohibition, and mandamus where a comment instead of an answer is required to be filed (ROC, Rule 65, Sec. 6);
2. In Small claims (RRSCC); and
3. In cases under Summary procedure (RRSP).

Question 12

How are pleadings amended?

Answer 12

Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of controversy may speedily be determined, without regard to technicalities, in the most expeditious and inexpensive manner (ROC, Rule l0, Sec. l).

Note: Amendment may be a matter of right or with leave of court (ROC, Rule 10 Secs. 2 and 3).

Question 13

When is an amendment a matter of right?

Answer 13

An amendment is a matter of right if it is made at any time before a responsive pleading is served or in the case of a reply, at any time within 10 calendar days after it is served (ROC Rule 10, Sec. 2).

Question 14

Can a plaintiff still amend his complaint as a matter of right against a non-answering defendant even if the other defendants have filed their answer?

Answer 14

Yes. Where some but not all the defendants have answered, the plaintiff still amend its complaint once, as a matter of right, in respect to claims asserted solely against the non-answering defendant, but not as to clạims asserted against the other defendants. (Remington Industrial Sales Corp. v. CA, G.R. No. 133657, May 2 2002).

Question 15

What is the effect of filing a motion to dismiss as to the right of the plaintiff to amend his complaint as a matter of right?

Answer 15

A motion to dismiss is a motion and is not a responsive pleading (ROC, Rule 10 Sec. 2). Hence, the right granted to the plaintiff under procedural law to amend the complaint before an answer has been served is not precluded by the filing of a motion to dismiss or any other proceeding contesting its sufficiency. Were we to conclude otherwise, the right to amend a pleading under Section 2, Rule 10 will be rendered nugatory and ineffectual, since all that a defendant has to do to foreclose this remedial right is to challenge the adequacy of the complaint before he files an answer (Remington Industrial Sales Corp. v. CA, G.R. No. 133657, May 29, 2002).

Question 16

When is an amendment required to have leave of court?

Answer 16

Where a substantial amendment is sought to be made after a responsive pleading has already been served, it is necessary for the party seeking such amendment to obtain leave of court. A motion must be filed in court with notice to the adverse party who shall be afforded the opportunity to be heard (ROC, Rule 10, Sec. 3).

Note: The amended pleading must be filed together with the motion for leave to amend pleading (ROC, Rute 15, Sec. 10),

Question 17

In what instances may a court refuse to grant leave to amend a pleading?

Answer 17

The Court may refuse to grant leave to amend pleading in the following cases:
1. If the motion was made with intent to delay;
2. If the amendment is to confer jurisdiction to the court; or
3. The pleading stated no cause of action from the beginning which could be amended(ROC, Rule 10, Sec. 3).

Note: Amendment to confer jurisdiction to the court or to a pleading that states no cause of action is allowed if the amendment is a matter of right (Remington Industrial Sales Corp. v. CA, G.R. No. 33657, Mày 29, 2002).

Question 18

What is the effect if issues that are not raised in the pleadings are tried with the express or implied consent of the party?

Answer 18

When issues not raised bý the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings (ROC, Rule 10, Sec. 5).

Note: No amendment of such pleadings deemed amended is necessary to cause them to conform to the evidence (ROC, Rule 10, Sec. 5).

Question 19

What is a formal amendment?

Answer 19

A formal amendment cures a defect in the designation of the parties and other clearly clerical or typographical errors. Said defect and errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused to the adverse party (ROC, Rule 10, Sec. 4).

Question 20

What is a supplemental pleading?

Answer 20

ANS: A supplemental pleading is one which sets forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented. Its filing shall require leave of court through the filing of a corresponding motion, upon reasonable notice (ROC, Rule 10, Sec. 6).

Question 21

Q: Enumerate the effects of an amended pleading. (SEW)

Answer 21

1. Amended pleading shall [S]upersede the pleading it amended,
2. Admissions in the superseded pleading can still be received in evidence against the pleader but as an [E]xtrajudicial admission which must be formally offered in evidence, and
3. Claims or defenses alleged in the superseded pleading which are not incorporated in the amended pleading are deemed to have been [W]aived. (ROC, Rule 10, Sec. 8).

Question 22

What is the period for filing a responsive pleading?

Answer 22

The following shall be the reglementary period for filing a pleading:

I. Answer to the complaint – Within 30 calendar days after service of summons, unless a different period is fixed by the court (R11S1);

II. Answer of a defendant foreign private juridical entity – Depends on whether there is a resident agent.

1. If the defendant has a resident agent - within 30 calendar days after the service of summons to such agent (R11S1; R14S12).
2. If it has no resident agent but it has an agent or officer in the Philippines - within 30 calendar days after service of summons to said agent or officer (R11S1; R14S12); or
3. If it has no resident agent - the service of summons shall be made on the proper government office which will then forward it by registered mail within 10 days to the corporation’s office. The answer must be filed within 60 calendar days after receipt of the summons by the entity. (R11S2)

III. Answer to an amended complaint – Depends on whether the amendment is a matter of right or not a matter of right

1. Amendment is a matter of right - within 30 calendar days after the service of the amended complaint.
2. Amendment is not a matter of right - answer must be filed within 15 calendar days from notice of the order admitting the same.

NOTE: This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.)-party complaint, and amended complaint-in-intervention (R11,S3).

IV. Answer to a counterclaim or cross-claim - Within 20 calendar days from service (R11S4)

V. Answer to a third- party complaint - The period to answer shall be the same as the periods given in answering a complaint which shall either be 15, 20,30 or 60 calendar days as the case may be (R11 S5)

VI. Reply - If allowed, within 15 calendar days from the service of the pleading responded to (R11 S6)

VIII. Answer to supplemental complaint - Within 30 calendar days from notice of the order admitting the supplemental complaint unless a different period is fixed by the court (R11 S7)

IX. Answer to a complaint under the Rules on Summary Procedure - Within 10 days from services of summons (RRSP S5)

Question 23

When can a defendant be granted an additional time to file an answer?

Answer 23

A defendant may, for meritorious reasons. be granted an additional period of not more than 30 calendar days to file an answer. However, a defendant is only allowed to file 1 motion for extension of time to file an answer (ROC, Rule 11, Sec. 1).

Note: A motion for extension to file any pleading, other than an answer is prohibited and considered a mere scrap of paper. The court, however, may allow any other pleading to be filed after the time fixed by these Rules (R11 S11).

Question 24

What are the rules on payment of docket fees?

Answer 24

The following are the rules on payment of docket fees:
1. It is not simply the filing of the complaint or appropriate initiatory pleading but the payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the action (Proton Pilipinas Corporation v, Banque Nationale de Paris, G.R. No. 151242 June 15, 2005);

2. Payment of docket fees is both mandatory and jurisdictional (National Transmission Commission v. Ebesa, G.R. No. 186102, February 24, 2016). When an action is filed, the filing must be accompanied by the payment of the requisite docket and filing fees. Jurisdiction over the case is acquired only upon payment of the prescribed docket fees (Nestle PHL v. FY Sons, Inc.)
3. If the plaintiff fails to comply with the jurisdictional requirement of payment of the docket fees, the defendant should timely raise the issue of jurisdiction otherwise the latter may be estopped (NSC v. CA)
4. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but subsequently, the judgment awards a claim not specified in the pleading, or if specified, the same has been left for determination by the court. The additional filing fee therefor shall constitute a lien on the judgment. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee (Sun Insurance Office, Ltd, v. Asuncion G.R. No. 79937, Febriary 13, 1989).
5. If the plaintiff is a Government instrumentality vested with corporate powers,it is exempt from payment of docket fees. (Bases Conversion and Development Authority v. Commissioner of Internal Revenue, G.R. No 205466, January 1, 202)

Question 25

What is the effect of non-payment of the docket fees?

Answer 25

Non-payment of docket fees will prevent the court from acquiring jurisdiction over the case as jurisdiction is vested only upon the payment of the prescribed docket fees (Manchester Development Corp. v. CA, G.R. No. 75919, May 7, 1987) However, if it is shown that a party has demonstrated his willingness to comply with the rules by paying additional docket fees, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period (Sun Insurance Office, Ltd, v. Asuncion, G.R. No. 79937 February 13 7989).

Note: The relaxed rule on the payment of docket fees as enunciated in the case of Sun Insurance will not apply it there is a showing that the non-payment of the correct docket fees is done with intent to defraud the government (Sun Insurance Office Ltd., v. Asuncion, G.R. No. 79937, February 13, 1989).

Question 26

Differentiate filing and service of pleadings.

Answer 26

Filing is the act of submitting the pleading or other paper to the court. Service is the act of providing a party with a copy of the pleading or any other court submission (ROC, Rule 13, Sec. 2)

Question 27

What are the papers or other documents required to be filed and served?

Answer 27

(JROP - MNAp DOS)

Every [J]udgment, [R]esolution, [O]rder, [P]leading subsequent to the complaint, written [M]otion, [N]otice, [A]ppearance, Demand, [O]ffer of judgment or [S]imilar papers shall be filed with the court, and served upon the parties affected (ROC Rule 13 Sec 4).

Question 28

How are pleadings and court submissions served? (PeRA-EFO-I)

Answer 28

Pleadings, motions, notices, orders, judgments, and other court submissions shall be served:
1. By [Pe]rsonal service;
2. By [R]egistered mail;
3. By [A]ccredited courier;
4. By [E]lectronic mail, [F]acsimile or transmission, [O]ther electronic means as may be authorized by the Court; or
5. As provided for in [I]nternational conventions to which the Philippines is a party (R13 S5).

Question 29

How is personal service of court submissions done?

Answer 29

(POR)

It is made by:
1. By [P]ersonal delivery of a copy to the party or to the party’s counsel, or to their authorized representative named in the appropriate pleading or motion;
2. By leaving it in his or her [O]ffice with his or her clerk, or with a person having charge thereof; or
3. If no person is found in his or her office, or his or her office is not known, or he or she has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party’s or counsel’s [R]esidence if known, with a person of sufficient age and discretion residing therein (ROC, Rule 13, Sec. 6).

Note: The personal service is the preferred mode of service (De Pedro v. Romasan
Development Corporation, G.R. No. 194751, November 26 2014).

Question 30

How is service by registered mail of court submissions made?

Answer 30

(PSORPI)
Service by registered mail shall be made:
1. By depositing the e copy in the [P]ost office:
2. In a [S]ealed envelope;
3. Plainly addressed to the party or to the party’s counsel at his or her [O]ffice, if known;
4. Otherwise, at his or her [R]esidence, if known;
5. With postage fully [P]re-paid;
6. With [I]nstructions to the postmaster to return the mail to the sender after 10 calendar days if undelivered (ROC, Rule 13, Sec. 7).

Note: Service by way of registered mail is the preferred mode of mailing (Aberca V. Ver, G.R. No. 166216, March 14, 2012).

Question 31

When may a party avail of service by ordinary mail?

Answer 31

lf no registered service is available in the locality of either the sender or the addressee, service may be done by ordinary mail (ROC, Rule 13, Sec. 7).

Question 32

When is substituted service of pleading and other court submissions allowed?

Answer 32

This mode is allowed only when there is failure to effect service either personally or by mail when the office and residence of the party or counsel is unknown. It is effected by the delivery of the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery (ROC Rule 13, Sec. 8).

Question 33

Is service by private courier allowed?

Answer 33

Yes. Service may be made by private courier provided that they are accredited (ROC, Rule 13, Sec. 5).

Note: Ninja Van, LBC, JRS Express are accredited couriers.