file:cvpro_part-1_i.htm

CIVIL PROCEDURE

PART ONE

ORDINARY CIVIL ACTIONS

I.  CASE BEGINS WITH THE FILING OF
COMPLAINT

1.  Preliminary

1. Definition of
complaint

A complaint is a pleading
alleging a plaintiff’s cause or causes of action. The names and residences of the
plaintiff and defendant must be stated in the complaint.1

2. Requirements

2.1 Verification

A pleading is verified by an
affidavit that the affiant has read the pleading and that the allegations
therein are true and correct of his personal knowledge or based on authentic
records. A pleading required to be verified which contains a verification based
on "information and belief" or upon "knowledge, information and
belief," or lacks a proper verification, shall be treated as an unsigned
pleading.2 Absence of verification when required is
not a jurisdictional defect. It is just a formal defect which can be waived.3 The verification by a lawyer is
sufficient.4

2.2 Certificate against
forum-shopping

An important component of a complaint or any
initiatory pleading is the certificate of non-forum shopping. The rule requires
that the plaintiff or principal party certifies under oath in the complaint or
other initiatory pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed therewith:

(a) that he has not
theretofore commenced any action or filed any claim involving the same issues
in any court, tribunal or quasi-judicial agency and, to the best of his
knowledge, no such other action or claim is pending therein;

(b) if there is such other
pending action or claim, a complete statement of the present status thereof;
and

(c) 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 five (5) days therefrom to the court wherein his
aforesaid complaint or initiatory pleading has been filed.5

2.2.1 Nature

(a) The required certificate
of non-forum shopping is mandatory but not jurisdictional.6

(b) Initiatory pleadings are
the complaint, permissive counterclaim, cross-claim, third-party (fourth-party,
etc.), complaints and complaints-in-intervention. The certificate of non-forum
shopping should be signed by the plaintiff (permissive counterclaimant,
cross-claimant, third-party, etc. – plaintiff and plaintiff-in-intervention)
and not the counsel.7

(c) There is forum shopping
when, as a result of an adverse opinion in one forum, a party seeks a favorable
opinion (other than by appeal or certiorari) in other fora, or when he
repetitively avails himself of "several judicial remedies in different
courts, simultaneously or successively, all substantially founded on the same
issue or transactions involving the same essential facts and circumstances, and
all raising substantially the same issues either pending in or resolved
adversely by some other court."8
Elsewise stated, forum shopping exists where the elements of litis pendentia
are present or where a final judgment in one case will amount to res
judicata in the other.9
Where judgment has already become final and executory, res judicata and
not forum shopping should be pleaded as a defense. Forum shopping applies only
when two (2) or more cases are still pending.10

(d) Failure to comply with the
requirement of a certificate of non-forum shopping may not be cured by mere
amendment of the complaint or other initiatory pleading. The initiatory
pleading should be dismissed without prejudice, unless otherwise provided, upon
motion and after hearing. However, even if there is a certificate of non-forum
shopping, if the acts of the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be ground for summary dismissal
with prejudice of the initiatory pleading and shall constitute direct contempt,
as well as a cause for administrative sanctions against the former.11

2.  Filing of
Complaint

1. Manner

Filing of the complaint is the act of presenting
it to the Clerk of Court.12
This may be done by presenting the original copy plainly indicated as such,
personally to the clerk of court or by sending it by registered mail to the
clerk of court. In personal filing, the date and hour of receipt by the clerk
of court as indicated on the face of the complaint is the date and hour of
filing. In filing by registered mail, the date of posting appearing on the
envelope shall be considered the date of filing.13

Filing of a complaint by mail other than through
registry service of the government postal agency is not authorized. Thus, if a
complaint is mailed through any private letter-forwarding agency, the date of
receipt by the clerk of court is the date of filing.14

Filing of the complaint should be distinguished
from service of pleadings subsequent to the filing of the complaint.15 In service of pleadings, priorities in
modes of service must be strictly observed.16

2. Payment of docket
and other lawful fees

Ballatan v. Court of Appeals,17 summarizes the rules on
payment of docket fees:

(a) The rule in this
jurisdiction is that when an action is filed in court, the complaint must be accompanied
by the payment of the requisite docket and filing fees.

(b) In real actions, the
docket and filing fees are based on the value of the property and the amount of
damages claimed, if any, which must be specified in the body and prayer of the
complaint. Note that in Tacay v. RTC of Tagum Davao del Norte, the
Supreme Court opined that a real action may be commenced or prosecuted
without an accompanying claim for damages.18

(c) If the complaint is filed
but the fees are not paid at the time of filing, the court acquires
jurisdiction upon full payment of the fees within a reasonable time as the
court may grant, barring prescription.

(d) Where the fees prescribed
for the real action have been paid but the fees of certain related damages are
not, the court, although having jurisdiction over the real action, may not have
acquired jurisdiction over the accompanying claim for damages.19

(e) Accordingly, the court may
expunge those claims for damages, or allow, on motion, a reasonable time for
amendment of complaint so as to allege the precise amount of damages and accept
payment of the requisite legal fees.20

(f) If there are unspecified
claims, the determination of which may arise after the filing of the complaint
or similar pleading, the additional filing fee thereon shall constitute a lien
on the judgment award. 21

(g) The same rule also applies
to third-party claims and other similar pleadings.22

Note: Even if the value of a property is
immaterial in the determination of the court’s jurisdiction, it should however
be considered in the determination of the amount of docket fee.23