F4 Effect of Failure to Plead (Rule 9)

Question 1

EFFECT OF FAILURE TO PLEAD

Answer 1

GR: Defenses not pleaded in a motion to dismiss or in the answer are deemed waived. (Sec. 1, Rule 9)

XPNs: These defenses may be raised at any stage of the proceedings even for the first time on appeal:
1. Lack of jurisdiction over the subject matter;

NOTE: It may, however, be barred by laches. (Tijam v. Siboghanoy, G.R. No. L-21450, 15 Apr. 1968)

2. Litis pendentia (2010 BAR);
3. Res judicata; and 4. Statute of limitations. (Sec. 1, Rule 9, ROC, as amended)

Question 2

Failure to Plead a Compulsory Counterclaim and Crossclaim

Answer 2

GR: A compulsory counterclaim or crossclaim not set up in the answer is deemed barred. (Sec. 2, Rule 9, ROC, as amended)

XPNs:

1. A counterclaim or a crossclaim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a crossclaim by supplemental pleading before judgment. (Sec. 9, Rule 11, ROC, as amended)
2. Counterclaims or crossclaims omitted through oversight, inadvertence, or excusable neglect or when justice requires may be set up by amendment before judgment. Leave of court is necessary. (Sec. 10, Rule 11, ROC, as amended)

NOTE: A permissive counterclaim is not barred.