QUESTIONS AND ANSWERS: REMEDIAL LAW REVIEW; Pleadings

REMEDIAL LAW REVIEW 1

Pleadings

1. How is pleading defined? What pleadings are allowed in ordinary civil action? What pleadings are claims asserted? What are defenses asserted?

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

The following pleadings are allowed in ordinary civil actions: (1) complaint; (2) counterclaim; (3) cross-claim; (4) third [fourth, etc.]-party complaint; (5) complaint-in-intervention; (6) answer; and (7) reply.

The claims of a party are asserted in a complaint, counterclaim, cross- claim, third (fourth, etc.)-party complaint, or complaint-in-intervention.

While defenses of a party are alleged in the answer to the pleading asserting a claim against him or her.

An answer may be responded to by a reply only if the defending party attaches an actionable document to the answer.

2. Can the defendant be a plaintiff at the same time? Explain

1. Yes. The defendant can be a plaintiff at the same time. As when the defendant files a counterclaim, a cross-claim or a third-party. Since the Rules of Court defines plaintiff as the claiming party, the counter-claimant, the cross-claim-claimant or the third (fourth, etc)-party plaintiff.

3. What vest jurisdiction on the courts over the subject matter? Is it the filing of the complaint alone? Explain.

1. The filing of the complaint or appropriate initiatory pleading vest jurisdiction over the subject matter or nature of the action. However, it is not the filing alone but as well as with the payment of the prescribed docket fee since non-payment of the required docket fee shall be a ground for the pleading not to be accepted or be expunged from the record.

4. What is the rule on docket fees?

1. The court requires that all complaints, petitions, answers and similar pleadings must specify the amount of damages being prayed for both in the body of the pleading and in the prayer therein and said damages shall be considered in the assessment of the filing fees; otherwise such pleading shall not be accepted for filing or shall be expunged from the record. Moreover, any defect in the original pleading resulting in the underpayment of the docket fee cannot be cured by amendment, such as the reduction of the claim as, for all legal purposes, since there is no original complaint over which the court has acquired jurisdiction. 

5. What are the two kinds of defenses? What are the affirmative defences? What are the affirmative defences that cannot be waived?

1. The two kinds of defenses are: (1) negative defense; and (2) affirmative defense.

Affirmative Defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant would nevertheless prevent or bar recovery by him or her.

Negative Defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his or her cause or causes of action.

The following are affirmative defenses are: (1) fraud; (2) statute of limitation; (3) release; (4) payment; (5) illegality; (6) statute of frauds; (7) estoppel; (8) former recovery; (9) discharge in bankruptcy; (9) any other matter by way of confession and avoidance;  (10) the court has no jurisdiction over the subject matter; (11) that there is another action pending between the same parties for the same cause; and (12) the action is barred by a prior judgment.

The following defenses are: (1) the court has no jurisdiction over the subject matter; (2) that there is another action pending between the same parties for the same cause; (3) the action is barred by a prior judgment; and (4) statute of limitations or prescription.

6. What are the two (2) kinds of counterclaim? Differentiate one from the other. Give an example of a compulsory counterclaim, which, even if not set up, is not considered barred? 

1. The two (2) kinds of counterclaim are: (1) permissive counterclaim; and (2) compulsory counterclaim.

The following are tge significant distinctions between permissive and compulsory counterclaim: (1) a permissive counterclaim may be set up as an independent action and will not be barred if not contained in the answer to the complaint while a compusory counterclaim which a party has at the time the answer is filed shall be contained in the answer otherwise shall be barred; (2) a permissive counterclaim is considered as an initiatory pleading but a compulsory counter claim is not considered as initiatory pleading; (3) a permissive counterclaim must be accompanied by a certificatin against forum shopping and whenever required by law, also a certificate to file an action while a compulsory counterclaim does not require such certificates as it cannot be independently set up; (4) a permissive counterclaim must be answered otherwise, the party against whom it is interposed may be declared in default but failure to answer a compulsory counterclaim is not a cause for a default declaration; and (5) the docket and other lawful fees should be paid for a permissive counteclaim otherwise the court cannot acquire jurisdiction over the permissive counterclaim while the docket fees are not paid for a compulsory counterclaim under the old rules but now docket fees are required to be paid in compulsory counterclaim.

Example of compulsory counterclaim if not set up is bar would be a claim for damages against the plaintiff sustained by the plaintiff as a consequence of the suit.

7. What are the elements of a compulsory counterclaim? Can the plaintiff set up a counterclaim against the defendant?

1. To be compulsory, the counterclaim must have the following elements: (1) it arises out of, or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing party’s claim; (2) it does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction; and  (3) it is cognizable by the regular courts of justice and the court has jurisdiction to entertain the amount and nature.

Yes. The plaintiff can set up a counterclaim against the defendant.

Under Section 9, Rule 6 of the Rules of Court provides a counterclaim may be asserted against an original counter-claimant such counterclaim is called as counter-counterclaim.

Thus, when a defendant filed a counterclaim against the plaintiff. The plaintiff may file a counter-counterclaim against the defendant.

8. What is a cross-claim? If cross-claim is not set up, what is the effect? Can cross-claim be set up for the first time on appeal? 

1. A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is subject matter either of the original action or of a counterclaim therein. Such cross-claim may cover all or part of the original claim.

No. Cross-claim cannot be set up for the first time on appeal. Since, a cross claim that a party has at the time the answer is filed shall be contained in said answer. if through oversight, inadvertence, or excusable negligence, it is not asserted, it may still be set up with leave of court, by amendment of the pleadings. Thus, it has to be set up in the action otherwise it shall be barred. Hence, if no cross-claim was interposed, such cross-claim not set up shall be barred and cannot be set up for the first time on appeal.

9. When is Reply necessary?

1. Reply is necessary when the defending party attaches an actionable document to his or her answer. Since, Reply is a pleading, the office or function of which is to deny or allege facts in denial or avoidance of new matters alleged in or said actionable document.

10. Is it necessary that the third party claim must be related to the main claim?

1. Yes. The third party claim must be related to the main claim.

Pursuant to Section 11, Rule 6 of the Rules of Court provides that the third party claim shall be denied admission where, among others, matters extraneous to the issue in the principal case are raised.

11. What is intervention? What are the requisites for intervention?

1. Intervention is a remedy by which a third party, not originally impleaded in the proceedings becomes litigant therein to enable him, her, or it to protect or preserve a right or interest which may be affected by such proceedings.

The following are the requisites of intervention: (1) there must be a motion for intervention filed before rendition of judgment by the trial court; (2) the movant must show in his motion that he has (a) a legal interest in the matter on litigation, the success of either of the parties in the action or against both parties; (b) that the movant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; (
c) that the intervention must not duly delay or prejudice the adjudication of the rights of the original parties and that the intervenor’s right may not be fully protected in a separate proceedings.

12. What are parts of pleading?

1. The following are the parts of the pleading: (a) caption of the pleading which contains (1) the name of the court; (2) the title of the action; (3) docket number, if assigned; and (b)  body of the pleading which sets forth its designation, the allegation of the party’s claims or defenses, the relief prayed for and the date of the pleading.

13. How is pleading verified? Who verifies the pleading? If one is authorized to verify the pleading, what is the requirement of the Rules?

1. A pleading is verified by an affidavit.

A pleading is verified by the affiant/party, other person on his behalf, such as his counsel.

The Rules requires the following allegations in the verification: (1) the allegations in the pleading are true and correct based on his or personal knowledge; (2) the pleading is not filed to harass, cause unnecessary delay or needlessly increase the cost of litigation; and (3) the factual allegations in the pleading have evidentiary support or, if specifically so identified, will likewise have evidentiary support after a reasonable opportunity for discovery.

14. What is the effect of lack of verification? Is the defect of lack of verification or defective verification curable?

1. A pleading which lacks the proper verification shall be treated as an unsigned pleading. Thus, it produces no legal effect.

Yes. Defect of lack of verification or defective verification is curable.

It mat be corrected by requiring an oath. The court may order the correction of the pleading or act on an unverified pleading if the attending circumstances are such that a strict compliance with the rule may be dispensed with to serve the ends of justice. 

15. What is certification against forum shopping? How is it effected? When is certification against forum shopping required?

1. Certification against forum shopping is a sworn statement in which the plaintiff or principal party certifies in a complaint or initiatory pleading the following matters: (1) that he has not therefore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-agency and to the best of his knowledge, no such other action is pending therein; (2) if there is such other pending action or claim, a complete statement of the present status thereof; and (3) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within (5) calendar days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

Certification against Forum Shopping is executed by the plaintiff or the principal party himself. Thus, it must be executed by the party and not the attorney. But, if, for reasonable or justifiable reasons, the party-pleader is unable to sign, he must execute a Special Power of Attorney. 

Certification against forum shopping is required in complaint and other initiatory pleadings asserting a relief.

16. What are the effects of non-compliance with the rule on certification against forum shopping? What is the effect of wilful and deliberate forum shopping?

1.  The effect of non-compliance with the rule on certification against forum shopping shall be a ground for the dismissal of the action upon motion and after hearing. Such dismissal is without prejudice.

On the other hand, the effect of willful and deliberate forum shopping the same shall be a ground for a summary dismissal. Such dismissal is with prejudice.

17. What are the content requirements of a pleading? Are allegations of ultimate facts constituting claims or defence in the pleading, sufficient?

1. The pleading shall state the following, in addition to what Rule 7 Section 2 requires: (1) names of the witnesses who will be presented to prove a party’s claim or defense; (2) summary of the witnesses’ intended testimonies with their judicial affidavits attached to the pleading; and (3) documentary and object evidence in support of the allegations contained in the pleading.

No. allegations of ultimate facts constituting defense in the pleading is not sufficient. The Amended Rules provides that allegations must include evidentiary facts.

18. What matters can be availed generally?

1. The following matters can be availed generally: (1) the performance or occurence of all condition precedent; and (2) malice, intent, knowledge, or other condition of the mind of a person.

19. Is pleading different causes of action allowed?

1. Yes. pleading with different causes of action is allowed. 

As in joinder of causes of action. It is the assertion of many causes of action as a party may have against another in one pleading alone.

20. How should the pleader allege a cause of action or defense based on an actionable document?

1. The pleader should allege the cause of action or defense based on actionable document by alleging the substance of such instrument or document and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading.

21. What is the effect of failure to deny under oath the due execution and genuineness of an actionable document? What are defences that are barred if there is failure to deny the due execution and genuineness of the actionable document?

1. The effect of failure to deny under oath the due execution and genuineness of an actionable document shall constitute as an admission of the genuineness and due execution of such document/instrument.

The following are the defenses that are barred if there is failure to deny the due execution and genuineness of the actionable document: (1) forgery; (2) authority to execute the document; or (3) the fact that the party signed the document.

22. What is negative pregnant? What is the effect if there is negative pregnant? Give an example of negative pregnant?

1. Negative pregnant is a denial with admission which is not considered as specific denial.

The effect of negative pregnant implies an affirmation in negative form which really admits the allegation to which it relates.

An example of negative pregnant would be “I deny that I owe the plaintiff One Hundred Thousand Pesos.”  It might imply that the person making the statement owes another sum of money.

23. When may a pleading be amended as a matter of right? By leave of court?

1. A pleading may be amended as a matter of right at any time before a responsive pleading is served or in case of reply, at any time within 10 days after it is served.

Amendment is by leave of court if amendment is substantial except if it falls as a matter of right.

24. May a pleading be amended as a matter of right after a Motion to dismiss is served and filed? Explain.

1. Yes. pleading may be amended as a matter of right even after a motion to dismiss is served and filed. 

Since, a motion to dismiss cannot be considered as an answer. Hence, a party may still amend the pleading as a matter of right as there were no responsive pleading served and filed yet.

25. If the motion to dismiss is granted, may a complaint be still amended as a matter of right?

1. Yes. Provided that the dismissal is not yet final and executory the complaint may still be amended as a matter of right. So long as there is no answer filed.

26. What is an amendment to conform to evidence?

1. Amendment to conform to evidence is an amendment made to the complaint when during trial issues not raised by the pleading are tried with the express or implied consent of the parties. Thus, the court orders the amendment of the pleading to conform to the evidence presented or offered by the party in relation to such an issue.

However, under the Amended Rules, such a complaint is deemed amended and there’s no need to amend the pleading to conform to evidence.

27. What are the grounds for the denial of the motion for leave to amend complaint?

1. The following are the grounds for the denial of the motion for leave to amend complaint such an amendment is made (1) with intent to delay; (2) to confer jurisdiction on the court;  or (3) on the pleading stating no cause of action from the beginning which could be amended.

28. What is the effect of the amendment?

1. The effect of amendment is that it supersedes the pleading that it amends. The admissions made in the superseded pleading may be offered as evidence against the pleader. Moreover, the claims and defenses alleged in the superseded pleading not incorporated in the amended pleading shall be deemed waived.

29. Is issuance of summons required after a complaint is amended?

1. It depends. Issuance of summons is not required after the complaint is amended. Where the defendants have already appeared before the trial court by virtue of summons in the original complaint, the amended complaint may be served upon them without the need of another summons even if new causes of action are alleged.

However, when defendants have not yet appeared in court, new summons on the amended complaint must be served on them. It is for the court to acquire jurisdiction over the persons of the defendant. Thus, if the trial court has not yet acquired jurisdiction over them, new summons for the amended complaint is required.

30. What is supplemental pleading? What is its purpose? Is it necessary that the cause of action which is the subject of supplemental complaint the same or related to the cause of action in the original complaint?

1. 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.

Yes. The cause of action which is the subject of the supplemental complaint must be the same or related to the cause of action in the original complaint. Otherwise, the court should not admit the supplemental complaint. Since, a supplemental pleading only serves to bolster or add something to the primary pleading. It does not replace that which it supplements and it is but a continuation of the complaint.

31. What is the effect if the defences and objections are not pleaded? If they are deemed waived, are there exceptions?

1. Defenses and objections not pleaded either in motion to dismiss or in answer are deemed waived.

However, it is not deemed waived if it appears that: (1) the court has no jurisdiction over the subject matter; (2) that there is another action pending between the same parties for the same cause of action; or (3) that the action is barred by a prior judgment or (4) by statute of limitations.

32. When may the defendant be declared in default? What are the requisites before a defendant may be declared in default?

1. A defendant may be declared in default when he fails to file his answer within the reglementary period prescribed by the Rules.

The following are the requisites before a defendant may be declared in default: (1) the court validly acquired jurisdiction over the person of the defending party; (2) the defending party failed to file the answer within the time allowed therefor; and (3) a motion to declare the defending party in default has been filed by the claiming party with notice to the defending party.

 

33. What is the effect of declaration of default?

1. The party declared in default loses his standing in the court thus has lost the right to participate in the trial. But, nevertheless, he is entitled to notices of subsequent proceedings.

The court will proceed to render judgment granting the claimant such relief as his pleading may warrant

34. What should the court do if some of the defendants files an answer and others do not and the complaint asserts common cause of action against all the defendants?

1. The court shall try the case against the defending parties based on the answer filed and render judgment upon the evidence presented where the claim states a common action against them.

35. What are the remedies in case the defendant is declared in default?

1. The remedy of the defendant after notice of order and before judgment is to file a motion under oath to set aside the order of default and properly show that (a) failure to answer was due to fraud, accident, mistake or excusable negligence; and  (b) that he has a meritorious defense i.e. there must be an affidavit of merit.

The remedy of the defendant after judgment and before the judgement becomes final and executory, he may file a motion for a new trial under Rule 37. Also, he may appeal the judgment as being contrary to the evidence or law.

The remedy of the defendant after the judgment becomes final and executory, he may file a petition for relief from judgement under rule 38.

36. May a defendant be declared in default for another reason?

1. Yes. A defendant may be declared in default for other reasons.

Such as (1) if he refuses to obey an order requiring him to comply with the various modes of discovery; or (2) if a party or officer or managing agent of a party willfully fails to appear before the officer who is to take his deposition or a party fails to serve answers to interrogatories.

37. What is meant by service? What is meant by filing?

1. Service is the act of providing a party with a copy of the pleading or any court submission.. On the other hand, filing is the act of submitting the pleading or other paper to the court.

38. If there are several counsels, to whom shall pleading be served?

1. The pleading shall be served upon the lead counsel if one is designated or upon any one of them if there is no designation of a lead counsel.

39. What are the different modes of filing?

1. The filing of pleadings and other court submissions shall be made by: (1) personal, submitting the original thereof; (2) registered mail; (3) accredited courier; (4) electronic mail or other means as may be authorized by the court in places where the court is electronically equipped.

40. What are the different modes of service?

1. Pleadings, motion, notices, orders, judgments, and other court submission shall be served personally or by registered mail, accredited courier, electronic mail, facsimile transmission, other electronic means as may be authorized by the court or as provided for in international conventions to which the Philippines is a party.