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b) Counterclaim the pleadings which assert the claim

c) Cross-claim of a party d) Third (Fourth, etc.)-party complaint

e) Complaint-in-intervention

f) Answer – the pleading which alleges the defenses to the pleading asserting a claim g) Reply – the pleading which responds to the answer

1. Kinds of Pleadings

A. COMPLAINT – the pleading alleging the plaintiff’s cause or causes of action.

1. The complaint is the first pleading of a party filed in court.

2. It is the pleading of the plaintiff which must be in writing.

3. Its filing in the court, together with the payment of docket fee, commences the action.

4. Its filing in the court makes out a lis pendens, even if the defendant has not yet been served with summons.

5. Its filing in court is the operative act whereby the court acquires jurisdiction over the person of the plaintiff.

6. Its filing in court abates prescription of the action subject matter of the complaint.

7. The allegations of the complaint, not those of the answer, determine the jurisdiction of the court over the subject matter of the case.

a. The law on jurisdiction at the time of filing the complaint governs.

b. Lack of jurisdiction over the subject matter of the complaint may be questioned by the defendant by:

1) Filing motion to dismiss on ground of lack of jurisdiction under Rule 16, Section 1 (b);

2) Filing answer to include the defense of lack of jurisdiction under Rule 16, Section 6;

3) Availing of the extraordinary remedies of Certiorari and/or prohibition in proper cases.

8. The complaint must state a cause of action by allegation of “ultimate facts upon which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. xxx” (Rule 8, Sec. 1)

a. Remedies against a complaint which does not state a cause of action:

1) Motion to dismiss on said ground (Rule 16, Sec. 1 [g]);

2) Answer to include said ground as affirmative defense (Rule 16, Sec. 6);

3) At the trial, object to plaintiff’s evidence which tends to prove a cause of action not alleged in the complaint:

(a) If no objection from the defendant and the plaintiff succeeds in proving it, the defect is cured by evidence;

(aa) Amendment to conform to evidence, but not mandatory (Rule 10, Sec. 5)

9. The complaint must specify the reliefs sought (in the prayer), but it may add a general prayer for such further or other relief as may be deemed just or equitable (Rule 7, Sec. 2 [c]).

10. The complaint shall be dated (Rule 7, Sec 2 [d]), signed by the party or his counsel, stating in either case his address which should NOT be a post office box (Rule 7, Sec. 3).

11. The complaint must be filed within the prescriptive period of filing the action.

a. See laws on prescription of actions otherwise known as Statute of Limitations in the Civil Code and other applicable laws.

12. If the cause of action in the complaint is based on as actionable document, plead it properly as required (Rule 8, Sec 7).

a. Actionable document is one which is really the basis of claim/action or defense.

Example: Promissory note, deed of sale, written contract

But, letters written by the parties to each other regarding the actionable document are not so. They are merely evidentiary of the existence of said document.

b. How to plead actionable document as basis of the action (Rule 8, Sec . 7):

1) Set forth the substance of said document in the complaint; AND

2) Attach the original document or a copy thereof to the complaint as an exhibit (which shall be considered as part of the complaint); OR said copy may with like effect, be set forth in the complaint. In other words, copy the document verbatim in the complaint.

c. Remedies in case of failure of the plaintiff to comply with the manner of pleading actionable document:

1) Motion to dismiss (Rule 17, Sec. 3) on the ground that the plaintiff failed “to comply with these Rules,” meaning, the Rules of Court; or

2) Motion for an order to require the plaintiff to comply with the Rules and if he is ordered and does not comply, file a motion to dismiss his complaint for failure

“to comply with any order of the court.”

d. If complied with, defendant must specifically deny under oath in his answer, if he has to, the genuineness and due execution of the actionable document; otherwise, he is deemed to have admitted that said document is genuine and duly executed:

Except:

1) If the defendant does not appear to be a party thereof;

Example: Party dies, heirs substituted – no need for them to deny under oath;

2) Even if a party but his request for inspection of the original instrument is refused by plaintiff;

3) When the instrument is NOT the basis of the action but merely evidentiary of the claim (or defense);

4) When plaintiff waives the benefit of implied admission by presenting evidence of genuineness and due execution;

5) When defendant proves forgery of the document and plaintiff does not object.

e. Defenses cut-off from defendant who fails to specifically deny under oath the genuineness and due execution of actionable document pleaded in the complaint:

1) Those that are related to and inconsistent with due execution and genuineness, like –

(a) Forgery; or

(b) Unauthorized signature

f. Defenses not affected or cut-off by defendant’s failure to deny under oath the actionable document of the complaint:

8) Use of Force or Intimidation 9) Insanity

10) Minority, etc.

Reason: They have nothing to do with the genuineness and due execution of the instrument.

13. The complaint must be sufficient.

a. Test of sufficiency of complaint – upon admission of proof of the facts alleged in the complaint, may a judgment be properly rendered against the defendant? If so, the complaint is sufficient.

b. Guidelines to satisfy the Test of Sufficiency of complaint:

To satisfy both formal and substantial demands for sufficiency, the following guidelines are suggested in the preparation of a complaint:

1) The facts showing the capacity of the plaintiff and the defendant must be averred. (Rule 8, Sec. 4).

2) The allegations of the complaint must be in methodical and in logical form and should be concise and direct statements of the ultimate facts constituting the claim or cause of action. (Rule 8, Sec. 1).

3) If the complaint contains two or more causes of action, each must be set forth separately and prefaced “first cause of action,” “second cause of action” and so on for the others. The allegations in one cause of action, however, may be incorporated in the other by reference. (Rule 7, Sec. 2 [b]).

4) The allegations must be divided into paragraphs so numbered as to be readily identified and as far as possible, each paragraph must contain a single set of circumstance. (Rule 7, Sec. 2[a]).

5) When an action is based on a written instrument the substance thereof must be set forth in the body of the complaint and the original or a copy of the same should be attached to the complaint as an annex, or said copy may, with like effect be set forth in the complaint. (Rule 8, Sec. 7).

6) If the nature of the cause of action is such that the performance of a condition precedent is necessary for the accrual of the cause of action, a general averment of the happening or performance of all conditions precedent (Rule 8, Sec. 3) or the legal excuse for its non-performance should be alleged in the complaint.

7) Averments of the circumstances constituting fraud or mistake must be alleged with particularity, but malice, intent, knowledge or other conditions of the mind of a person may be averred generally. (Rule 8, Sec. 5).

8) The complaint, under all circumstances, must state the facts truthfully in a direct and positive manner, not hypothetically and contingently.

9) The prayer for relief must be consistent with the allegations of the cause of action asserted in the complaint. To make the relief sought comprehensive, it must include “such other reliefs as the court may deem just and equitable” in the premises so that it may justify extension of a relief not otherwise specifically prayed for. (Schenker v. Gemperle, 5 SCRA 1042). Relief in equity is allowed because Philippine courts are courts of both law and equity. (see BALGOS, Handbook on the Law on Pleadings, 1983 Edition, pp. 32-33)

14. Certification Against Forum Shopping (Rule 7, Sec. 5)

a. The Certification to prevent forum shopping or multiple filing of complaint or other initiatory pleadings must be under oath.

b. Effect of failure to comply with the requirement:

1) not curable by amendment of said pleading;

2) shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing.

c. Effect of submission of false certification or non-compliance with the undertakings therein:

1) indirect contempt;

2) administrative and criminal actions.

d. Effect of willful and deliberate forum shopping:

1) summary dismissal of pleading with prejudice;

2) direct contempt;

3) administrative sanction.

e. The certification must be by the party himself, not by his counsel, unless the latter is authorized by a power of attorney executed by the client for him to do so.

B. ANSWER – a pleading in which a defending party sets forth his defenses. (Sec. 4) 1. It is the second pleading filed by a party in court.

2. It is the pleading of the defendant which must be in writing.

3. It must comply with the substantive and procedural requirements under Rules 7 and 8, like the complaint.

4. It must be filed with the court where the complaint is filed.

5. A copy of the answer must be served to plaintiff or his counsel.

6. If the defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. (Rule 8, Sec. 1).

o Functions of the Answer – to define the issues and to show why plaintiff is not entitled to judgment. This is accomplished where the defendant sets forth the NEGATIVE and AFFIRMATIVE defenses.

o Two kinds of defenses which may be set forth in the answer:

1) Negative Defenses – specific denial of the material facts alleged in the pleading of the claimant essential to his cause. (Sec. 5[a]).

a) Three (3) modes of specific denial under the Rules:

1. Defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. This kind of denial is known as absolute denial. (Rule 8, Sec. 10).

Example: contract of sale not true, actually a mortgage.

2. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. This kind of denial is known as partial denial. (id).

3. 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 specific denial. This type of specific denial is known as denial by disavowal of knowledge. (id).

Danger: If within defendant’s knowledge and he denies for lack of knowledge, it is a denial in bad faith and amounts to admission. It must, therefore, be availed of with sincerity and good faith.

b) Insufficient denials or denials amounting to admissions:

1. General denial.

2. Denial in the form of negative pregnant – a denial which at the same time involves as affirmative implication favorable to the opposing party, and is thus an admission of an averment to which it is directed. It is a literal denial pregnant with admission.

 A negative pregnant does not qualify as a specific denial. It is conceded to be actually an admission.

 In a pleading, it is a negative implying also an affirmative and which although is stated in a negative form really admits the allegations to which it relates.

Matters not deemed admitted by the failure to make a specific denial:

a) The amount of unliquidated damages (Sec. 11, Rule 8)

b) Conclusions in a pleading which do not have to be denied at all because only ultimate facts need be alleged in a pleading (Sec 1, Rule 8)

c) Non-material averments or allegations are not deemed admitted because only material allegations have to be denied. (Sec 11, Rule 8).

2) Affirmative Defenses – allegation of new matters which, while hypothetically admitting the material allegations in the pleading of the claimant, would nonetheless PREVENT or BAR recovery by him (Sec. 5[b]).

a) Affirmative defenses are in the nature of confession and avoidance. They may be: (1) fraud, (2) statute of limitations, (3) release, (4) payment, (5) illegality, (6) statute of frauds, (7) estoppel, (8) former recovery, (9) discharge in bankruptcy, and (10) any other matter of confession and avoidance.

b) How pleaded? By way of confession and avoidance.

Illustration: A sues B for sum of money. His complaint states: B borrowed from me P50, 000.00 to be paid on Nov. 25, 2000, now long overdue and unpaid. B’s answer:

Confession Avoidance

(a) While I admit said loan – the action has prescribed; or (b) While I admit said loan – the same was paid; or (c) While I admit said loan – the same was condoned or released.

c) How will affirmative defense affect the plaintiff?

Plaintiff may deny or controvert it by filing a reply; if not, the same is deemed controverted (Rule 6, Sec. 10), except in the following which should be denied under oath by way of reply, otherwise they are deemed admitted:

1. When the defendant pleads USURY as a defense (Rule 8, Sec. 11); (no longer applies as the Usury Law has been inexistent per SC decisions).

2. When the defense is based on actionable document. (Rule 8, Sec. 8).

o Plaintiff’s Remedy against a Defective Answer

1) Motion for judgment on the pleading where the answer fails to tender an issue or otherwise admits the material allegations of the adverse party’s pleading (Rule 34), as where:

a) There is a general denial;

b) The specific denial is defective, i.e., denial for lack of knowledge but made in bad faith;

c) The denial is in the form of negative pregnant;

d) There is express admission.

2) Motion for Summary Judgment (Rule 35) where the answer on its face tenders an issue but plaintiff can prove, by use of affidavit or admission or deposition that there is no genuine issue as to any material fact; in other words, such issue (as it appears in the answer) is SHAM or FALSE.

But, defendant’s answer may be corrected by amendment.

o Answer, generally, must be in formal form. But in Cayetano v. Ceguerra, 13 SCRA 73, 30 January 1965, it was held that “A letter stating defenses addressed to the Clerk of Court is considered sufficient; and the defendant cannot be declared in default.”

o Motion to dismiss is not an answer. But in Epang v. Ortin, 17 May 1955, “if the motion to dismiss raises issues which go into the merit of the case, it can be considered as an answer and the defendant cannot be declared in default.”