RULE 11: When to File Responsive Pleadings CIVIL PROCEDURE, Dean Mawis, 2-B LPU 2014

RULE 11: When to File Responsive Pleadings

Section 1. Answer to the complaint. — The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court. (la)

Section 2. Answer of a defendant foreign private juridical entity. — Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity. (2a)

Section 3. Answer to amended complaint. — When the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) days after being served with a copy thereof.

Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (l0) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed.

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. (3a)

Section 4. Answer to counterclaim or cross-claim. — A counterclaim or cross-claim must be answered within ten (10) days from service. (4)

Section 5. Answer to third (fourth, etc.)-party complaint. — The time to answer a third (fourth, etc.)—party complaint shall be governed by the same rule as the answer to the complaint. (5a)

Section 6. Reply. — A reply may be filed within ten (10) days from service of the pleading responded to. (6)

Section 7. Answer to supplemental complain. — A supplemental complaint may be answered within ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. (n)

Section 8. Existing counterclaim or cross-claim. — A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. (8a, R6)

Section 9. Counterclaim or cross-claim arising after answer. — A counterclaim or a cross-claim 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 cross-claim by supplemental pleading before judgment. (9, R6)

Section 10. Omitted counterclaim or cross-claim. — When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment. (3, R9)

Section 11. Extension of time to plead. — Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules.

The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. (7)

DELBROS HOTEL VS IAC, HILTON INT’L, IHLENFELD AS SUCCESSOR TO CHAPMAN & MOSQUERA, THE LATTER TWO AS GM AND COMPTROLLER OF HILTON HOTEL

FACTS: This is a petition for CERTIORARI under Rule 65 assailing the CA order granting the TRO and Preliminary Injunction. Parties entered into an Agreement whereby Delbros financed, built, and furnished a hotel, while Hilton Int’l managed it. 1985, Feb 27 - Petitioner Delbros filed a complaint for termination of agreement and damages against Hilton International and

Chapman (as GM of said corporation) with the RTC Manila. It alleged mismanagement of the hotel, and failure to remit profits as stated in their agreement.

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RULE 11: When to File Responsive Pleadings CIVIL PROCEDURE, Dean Mawis, 2-B LPU 2014

o Hilton Int’l filed an Answer with Compulsory Counterclaim of damages. It alleged that there was no cause of action (as the agreement provided for a 5 day prior notice before termination), and that it was barred by estoppel, laches, and/or waived.

o RTC Judge issued a writ of Preliminary Injunction preventing Hilton from destroying records of operations, moving any hotel property, moving funds, etc.

o Hilton and Chapman assailed the writ on certiorari (Rule 65) to the IAC. 1985 July 3 IAC issued TRO, which became a prelim injunction writ on 1985 August 21.

April 12 – Delbros filed a Motion to Admit Supplemental Complaint. It impleaded as additional defendant Mosquera as Comptroller, and further alleged that the 5-day notice had been served on Hilton pursuant to the agreement. It prayed for confirmation of termination of Agreement [similar to the original but adding Mosquera].

o Over the opposition of Hilton and Chapman, RTC admitted the Supplemental Complaint. RTC ordered the service of summons to Mosquera, and Hilton and Chapman to file an Answer within 5 days from notice. Copies were received on June 21 1985.

o July 6, Hilton, Chapman, and Mosquera filed via registered mail an extension, but RTC didn’t receive it until July 16.o July 9, Delbros filed a Motion to Declare Defendants (Hilton and Chapman) in Default with respect to the Supplemental

Complaint. RTC granted, and Delbros was allowed to present evidence ex-parte. o July 15, RTC rendered judgment by default, confirming the termination of the agreement. o July 18, copies of the default judgment were given to Hilton. In the afternoon of same day, Hilton et al. filed an Answer to

the Supplemental Complaint.o July 19, Delbros filed a Motion for Execution Pending Appeal. July 24, Hilton et al. filed a notice of appeal from default

judgment. o September 3, RTC granted in a Special Order the execution pending appeal amid opposition by Hilton et al. and a writ of

Execution was issued and served upon defendants on the same day. Partial Sheriff’s Return stated that defendants voluntarily vacated their offices, and that Delbros took over the possession and control of the hotel as evidenced by notices of takeover by Delbros president issued to the hotel’s employees and officers.

o September 4, Hilton et al. filed a certiorari petition with IAC assailing the Special Order (execution pending appeal) with prayer for restraining order/preliminary injunction. September 5, a TRO was granted by the IAC.

Delbros filed the instant petition.

ISSUE: WON the July 9 Order Declaring Defendants in Default is proper. [considering the intricacy of the IAC resolutions to the default order]

RULING: NO. Evidence must be given to prove the allegations, even in default.

Fundamentally, default orders are taken on the legal presumption that in failing to file an answer, the defendant does not oppose the allegations and relief demanded in the complaint. In the case at bar, however, no such presumption can arise vis-a-vis the Answer filed by HILTON and Chapman to the original complaint; their institution of the certiorari proceedings in opposition to petitioner's attempt to interfere with and/or take over the control and management of the hotel pendente lite; and their vigorous opposition to the admission of the supplemental complaint under consideration. These factors, of which the trial judge had full knowledge and notice, should have cautioned him from precipitately rendering the default order as well as the default judgment.

"A supplemental pleading is not like an amended pleading — substitute for the original one. It does not supersede the original, but assumes that the original pleading is to stand, and the issues joined under the original pleading remain as issues to be tried in the action."

While it is conceded that there is authority in support of a default judgment being predicated upon defendant's failure to answer a supplemental complaint, the same cannot apply here. The reason is that although in the supplemental complaint, the relief prayed for was altered from termination of the management contract to judicial confirmation of its termination, the basic and principal issue of whether or not petitioner was entitled to terminate the management contract, remained. As this basic issue had been previously traversed and joined by the Answer filed by HILTON and Chapman, there was no necessity for requiring them to plead further to the Supplemental Complaint. Consequently, the trial judge did not have a legal ground for declaring them in default for such failure to plead.

Another factor which the trial judge should have considered is that the supplemental complaint brought in an additional defendant, Flaviano Mosquera, Jr. On this score, it would have been more prudent under the liberal construction rule provided in Section 2, Rule 1 of the Rules of Court, for the trial court to have treated the supplemental complaint as an amended complaint , and the original answer thereto as sufficient; or otherwise to have waited for the answer of the newly-impleaded defendant before acting on the motion to declare the original defendants in default and rendering the default judgment, considering that a common cause of action has been asserted against the three defendants, so that the answer of Mosquera, Jr. could inure to the benefit of the original defendants. As it turned out, the Answer filed on July 18, 1985 was for and in behalf of all the defendants. Hence, under Sec. 4 of Rule 18, the court shall try the case against all upon the answer filed and render judgment upon the evidence presented.

WHEREFORE, the petition is dismissed. DEFAULT ORDER set aside and the case is remanded to the RTC for further proceedings.

SPOUSES GEORGE AND YOLANDA BARAZZA VS CFI JUDGE CAMPOS AND GATCHALIAN

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RULE 11: When to File Responsive Pleadings CIVIL PROCEDURE, Dean Mawis, 2-B LPU 2014

FACTS: This is a petition for CERTIORARI under Rule 65 assailing the CFI judgment by default as well as the Order declaring the spouses in

default. October 3 1978 – Gatchalian filed a complaint for damages based on petitioner’s alleged use of the business name GATCHALIAN –

THE HOUSE OF NATIVE LECHON in CFI Pasay. October 17 1978 – petitioner-spouses were properly served with summons. October 30 1978 – petitioner-spouses filed an Urgent Ex-Parte Motion for Extension of 15 days to file their Answer, which the CFI

granted on November 2 1978. The order granted an extension of 15 days or up to November 18 1978. November 17 1978 – petitioner-spouses filed a MTD, instead of an Answer, alleging: (1) no cause of action, (2) improper venue, (3)

another action is pending between the same parties for the same cause of action [Infringement of Trade Name filed with the Manila City Fiscal’s Office]. MTD was set for hearing on November 20, 1978, but was never resolved.

November 29 1978 - Gatchalian filed an Ex Parte Motion to Declare Defendants in Default. CFI granted the motion on December 1 1978.

January 29 1979 – CFI rendered a judgment by default in favor of Gatchalian. MR was filed by petitioner-spouses but was denied. Gatchalian moved for a writ of execution, which was granted. Petitioner-spouses with the aid of a new counsel, filed an Omnibus Motion to set aside the Order declaring them in default, the judgment be set aside, and to be given 3 days from receipt of Order within which to file an Answer. CFI denied the motion.

Hence the instant petition.

ISSUE: WON the Order Declaring Defendants in Default is proper.

RULING: NO. Evidence must be given to prove the allegations, even in default.

Under the facts of the case at bar, respondent judge had granted petitioners an extension of fifteen (15) days to file their answer. Instead of filing the answer, petitioners filed a Motion to Dismiss the Complaint one (1) day before the expiration of the period as extended by the court. This is clearly allowed under Section 1, Rule 16, Rules of Court. A motion to dismiss is the usual, proper and ordinary method of testing the legal sufficiency of a complaint. The issue raised by a motion to dismiss is similar to that formerly raised by a demurrer under the Code of Civil Procedure. A motion to dismiss under any of the grounds enumerated in the Rules of Court, must be filed within the time for pleading, that is, within the time to answer.

Without resolving petitioners' Motion to Dismiss the Complaint, respondent Judge declared defendant in default . This is clearly in contravention of the Rules for under Section 3, Rule 16, the court after hearing may deny or grant the motion or allow amendment of pleading, or may defer the hearing and determination of the motion until the trial if the ground alleged therein does not appear to be indubitable. And it is only from the time that the movant receives notice of the denial or deferment of the motion to dismiss that the period within which he shall file his answer is computed, which period is prescribed by Rule 11, unless the court provides a different period.

WHEREFORE, the petition is granted. The DEFAULT ORDER, JUDGMENT BY DEFAULT, and WRIT OF EXECUTION are set aside and the case is remanded to the RTC for resolution on the Motion to Dismiss filed.

DAVID V GUTIERREZ - Fruelda, GR 170427

Facts:

Respondent filed a complaint for accounting, reconveyance and damages with prayer for preliminary attachment against petitioner with the RTC. Service of summons failed as petitioner was abroad. RTC ordered service by publication. Thereafter, private respondents moved that petitioner be declared in default since he failed to answer within 60 days from date of last publication.

Petitioner filed a motion for extension of 15 days within which to file Answer, with opposition to the motion to declare him in default. RTC denied the motion and declared petitioner in default.

Petitioner moved to lift the order of default and sought another extension of 15 days within which to file Answer. Petitioner stated that declarations of default are frowned upon, that he should be given the opportunity to present evidence in the interest of substantial justice, and that he has meritorious defenses. Motion was denied. Petitioner filed an appeal under Rule 65.

Issue: Whether RTC erred in denying the motion to lift order of default, despite the defect in notice WHEN, INTER ALIA, COPIES OF THE COMPLAINT AND ALIAS SUMMONS WERE SENT BY REGISTERED MAIL AS EVIDENCED BY REGISTRY RECEIPT, IN CONTRAST TO A REGISTRY RETURN CARD AS PROOF OF SERVICE, NOTWITHSTANDING THE FACT THAT NO AFFIDAVIT SHOWING THE DEPOSIT OF A COPY OF THE SUMMONS AND ORDER OF PUBLICATION IN THE POST OFFICE, POSTAGE PREPAID, DIRECTED TO PETITIONER BY REGISTERED MAIL TO HIS LAST KNOWN ADDRESS WAS SHOWN BY PRIVATE RESPONDENTS.

Held: Petition denied.

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RULE 11: When to File Responsive Pleadings CIVIL PROCEDURE, Dean Mawis, 2-B LPU 2014

Petitioner belabors his complaint on the alleged defects in the service of summons by publication. He ignores his voluntary appearance before the RTC when he filed two motions for extension to file Answer. His voluntary appearance was equivalent to service of summons. It has cured any alleged defect in the service of summons.

We also note that petitioner’s motions were not motions to dismiss the complaint on the ground of lack of jurisdiction over his person. On the contrary, the motions invoked the RTC’s jurisdiction while seeking the following affirmative reliefs: to grant extension, deny the motion to declare petitioner in default and lift the order of default. Thus, petitioner waived any defect in the service of summons by publication or even want of process because for the RTC to validly act on his motions, it necessarily acquired jurisdiction over his person.

One declared in default has the following remedies:

a) The defendant in default may, at any time after discovery thereof and before judgment, file a motion under oath to set aside the order of default on the ground that his failure to answer was due to fraud, accident, mistake or excusable negligence, and that he has a meritorious defense (Sec. 3, Rule 18 [now Sec. 3(b), Rule 9]);

b) If the judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory, he may file a motion for new trial under Section 1(a) of Rule 37;

c) If the defendant discovered the default after the judgment has become final and executory, he may file a petition for relief under Section 2 [now Section 1] of Rule 38; and

d) He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented by him (Sec. 2, Rule 41).

Moreover, a petition for certiorari to declare the nullity of a judgment by default is also available if the trial court improperly declared a party in default, or even if the trial court properly declared a party in default, if grave abuse of discretion attended such declaration.

Petitioner used the first remedy. But the RTC denied his motion to lift the order of default.

We affirm the RTC’s denial. Indeed, default orders are not viewed with favor. But in this case, petitioner failed to comply with the basic requirements of Section 3(b), Rule 9 of the Rules of Court. The motion was not under oath. There was no allegation that petitioner’s failure to file an Answer or any responsive pleading was due to fraud, accident, mistake, or excusable negligence. Petitioner merely stated that declarations of default are frowned upon, that he should be given the opportunity to present evidence in the interest of substantial justice, and that he has meritorious defenses. Unfortunately, his claim that he has meritorious defenses is unsubstantiated. He did not even state what evidence he intends to present if his motion is granted.

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