RULE 9: EFFECT OF FAILURE TO PLEAD
LAW ON LEGAL AND COURT PROCESSES:
A RULE-BY-RULE EXPOSITION
PUBLISHED ONLY VIA
PROJECT JURISPRUDENCE - PHILIPPINES
-oOo-
MARK ANGELO S. DELA PEÑA
To cite this online book, please use the following:
Dela Peña. 2023. "Law on Legal and Court Processes: A Rule-by-Rule Exposition." Published by Project Jurisprudence - Philippines. Published: September 20, 2023. Link: [Insert link] Last accessed: [Insert date of access].
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RULE 9: EFFECT OF FAILURE TO PLEAD
Failure to plead occurs when a defending party fails to submit a responsive pleading for the purpose of resisting the claims of the claiming party. Insofar as defendants are concerned, they may be declared in default if they fail to file an answer. The same is true for defendants in a counterclaim, cross-claim defendants, third-party defendants, and defendants in an intervention.
DEFENSES AND OBJECTIONS NOT PLEADED
Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim.[1]
Section 1 of Rule 9 establishes three rules: (a) a motion to dismiss may be filed by the defending party; (b) defenses may be pleaded in the answer; (c) if there is lack of jurisdiction, prescription, res judicata or litis pendentia, even without motion from the parties, the court has the duty to dismiss the case even if such issues are not expressly raised by the parties but merely appear on the pleadings or in the evidence on record; and, (d) objections must be seasonably raised.[2]
In legal language, when a court acts on a particular issue or question even without a motion from the parties, the term used is “motu proprio” or “sua sponte,” which means “on its own.”
The above rule is related to the omnibus motion rule under Rule 15 of the Rules of Court, which says: “Subject to the provisions of Section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived.”
COMPULSORY COUNTERCLAIM, OR CROSS-CLAIM, NOT SET UP BARRED
A compulsory counterclaim, or a cross-claim, not set up shall be barred.[3]
Section 2 of Rule 9 answers the question on when compulsory counterclaims or cross-claims must be raised. They should be raised in the responsive pleading; otherwise, they shall be considered barred. This is a situation in which the Rules of Court compels the parties to reveal all their claims relating to the same parties in order to avoid multiplicity of suits, to enable courts to dispose of the whole matter in controversy in one action, and to pass upon defendant’s demand by counterclaim rather than by independent suit.[4]
DECLARATION OF DEFAULT
If the defending fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court.[5]
Declaration of default is also called “loss of standing in court.” It is the forfeiture of one's right as a party litigant, contestant or legal adversary. A party in default loses his/her right to present his/her defense, control the proceedings, and examine or cross-examine witnesses. S/he has no right to expect that his/her pleadings, motions or evidence would be acted upon by the court.[6]
EFFECT OF ORDER OF DEFAULT
A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial.[7] Despite being declared in default, a responding party is still entitled to notices of the subsequent proceedings.
RELIEF FROM ORDER OF DEFAULT
A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice.[8]
REMEDIES IN CASE OF DEFAULT DECLARATION
The fact, however, that a defendant has lost his/her standing in court for having been declared in default does not mean that s/he is left without any recourse whatsoever.[9] In Lina v. CA,[10] the Supreme Court enumerated the remedies under the Rules of Court available to a party who has been declared in default, to wit: (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/her failure to answer was due to fraud, accident, mistake or excusable neglect, and that he has meritorious defenses;[11] (b) if the judgment has already been rendered when the defendant discovered the default, but before the same becomes final and executory, s/he may file a motion for new trial;[12] (c) if the defendant discovered the default after the judgment has become final and executory, s/he may file a petition for relief;[13] and, (d) s/he may also appeal from the judgment rendered against him/her as contrary to the evidence or to the law, even if no motion to set aside the order of default has been filed.[14]
In addition to the above remedies, 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.[15] A party declared in default may thus alternatively file a petition for certiorari assailing both the order of default and the judgment of default.[16]
APPEAL BY A DEFAULTED PARTY
With regard to the remedy of appeal, it must be noted, that while the defending party declared in default retains the right to appeal from the judgment by default, the grounds that may be raised in such an appeal are restricted to any of the following: (a) the failure of the plaintiff to prove the material allegations of the complaint; (b) the decision is contrary to law; and, (c) the amount of judgment is excessive or different in kind from that prayed for.[17]
In such cases, the appellate tribunal should only consider the pieces of evidence that were presented by the plaintiff during the ex parte presentation of his evidence.[18] A defendant who has been declared in default is precluded from raising any other ground in his appeal from the judgment by default since, otherwise, he would then be allowed to adduce evidence in his defense, which right he had lost after he was declared in default. He is proscribed in the appellate tribunal from adducing any evidence to bolster his defense against the plaintiffs claim.[19]
In the case of Rural Bank of Sta. Catalina, Inc. v. Land Bank of the Philippines,[20] the Supreme Court explained, thus:
It bears stressing that a defending party declared in default loses his standing in court and his right to adduce evidence and to present his defense. He, however, has the right to appeal from the judgment by default and assail said judgment on the ground, inter alia, that the amount of the judgment is excessive or is different in kind from that prayed for, or that the plaintiff failed to prove the material allegations of his complaint, or that the decision is contrary to law. Such party declared in default is proscribed from seeking a modification or reversal of the assailed decision on the basis of the evidence submitted by him in the Court of Appeals, for if it were otherwise, he would thereby be allowed to regain his right to adduce evidence, a right which he lost in the trial court when he was declared in default, and which he failed to have vacated. In this case, the petitioner sought the modification of the decision of the trial court based on the evidence submitted by it only in the Court of Appeals.
DEFAULT JUDGMENTS FROWN UPON
A default judgment is frowned upon because of the policy of the law to hear every litigated case on the merits. However, the default judgment will not be vacated unless the defendant satisfactorily explains the failure to file the answer, and shows that it has a meritorious defense.[21]
The policy of the law has been to have every litigated case tried on the merits. As a consequence, the courts have generally looked upon a default judgment with disfavor because it is in violation of the right of a defending party to be heard.[22] As the Supreme Court has said in Coombs v. Santos:[23]
A default judgment does not pretend to be based upon the merits of the controversy. Its existence is justified on the ground that it is the one final expedient to induce defendant to join issue upon the allegations tendered by the plaintiff, and to do so without unnecessary delay. A judgment by default may amount to a positive and considerable injustice to the defendant; and the possibility of such serious consequences necessitates a careful examination of the grounds upon which the defendant asks that it be set aside. In implementation of the policy against defaults, the courts have admitted answers filed beyond the reglementary periods but before the declaration of default.[24]
EFFECT OF PARTIAL DEFAULT
When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented.[25]
EXTENT OF RELIEF TO BE AWARDED
A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages.[26]
The mere fact that a defendant is declared in default does not automatically result in the grant of the prayers of the plaintiff. To win, the latter must still present the same quantum of evidence that would be required if the defendant were still present. A party that defaults is not deprived of its rights, except the right to be heard and to present evidence to the trial court. If the evidence presented does not support a judgment for the plaintiff, the complaint should be dismissed, even if the defendant may not have been heard or allowed to present any countervailing evidence.[27]
In civil cases, the party having the burden of proof must establish his/her case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.[28]
Basic is the rule that the party making allegations has the burden of proving them by a preponderance of evidence.[29] Moreover, parties must rely on the strength of their own evidence, not upon the weakness of the defense offered by their opponent.[30] This principle holds true, especially when the latter has had no opportunity to present evidence because of a default order.[31] Needless to say, the extent of the relief that may be granted can only be as much as has been alleged and proved[32] with preponderant evidence required under Section 1 of Rule 133.
WHERE NO DEFAULTS ALLOWED
If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the Solicitor General or his or her deputized public prosecutor, to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated.[33]
[1] Section 1, Rule 9, Rules of Court.
[2] Also known as the rule on seasonable objections. See Moreno v. Kahn, 837 Phil. 337 [ G.R. No. 217744. July 30, 2018 ].
[3] Section 2, Rule 9, Rules of Court.
[4] Banco De Oro v. Court of Appeals, 505 Phil. 278 [ G.R. NO. 160354. August 25, 2005 ].
[5] Section 3, Rule 9, Rules of Court.
[6] Rodriguez v. United States [ G.R. No. 251830. June 28, 2021 ], citing Otero v. Tan (Otero), 692 Phil. 714 (2012).
[7] Section 3, Rule 9, Rules of Court.
[8] Section 3, Rule 9, Rules of Court.
[9] Otero v. Tan (Otero), 692 Phil. 714 (2012).
[10] 210 Phil. 311 (1985).
[11] Rule 18, Rules of Court.
[12] Rule 37, Rules of Court.
[13] Rule 38, Rules of Court.
[14] Rule 41, Rules of Court.
[15] David v. Judge Gutierrez-Fruelda, 597 Phil. 354, 361 (2009).
[16] Kilosbayan Foundation v. Janolo, Jr., 640 Phil. 33, 45 (2010).
[17] Otero v. Tan (Otero), 692 Phil. 714 (2012).
[18] Otero v. Tan (Otero), 692 Phil. 714 (2012).
[19] Otero v. Tan (Otero), 692 Phil. 714 (2012).
[20] 479 Phil. 43 (2004).
[21] Mamarco Import v. Villamena, 791 Phil. 457 [ G.R. No. 192477. July 27, 2016 ].
[22] Mamarco Import v. Villamena, 791 Phil. 457 [ G.R. No. 192477. July 27, 2016 ].
[23] 24 Phil. 446, 449-450 (1913).
[24] Cathay Pacific Airways, Ltd. v. Romillo, Jr., No. L-64276, March 4, 1986, 141 SCRA 451, 455.
[25] Section 3, Rule 9, Rules of Court.
[26] Section 3, Rule 9, Rules of Court.
[27] Gajudo v. Traders Royal Bank, 519 Phil. 791 [ G.R. NO. 151098. March 21, 2006 ].
[28] Section 1, Rule 133, Rules of Court.
[29] Saguid v. Court of Appeals, 451 Phil. 825, June 10, 2003; Ocampo v. Ocampo, 427 SCRA 545, April 14, 2004; Catapusan v. Court of Appeals, 332 Phil. 586, November 21, 1996.
[30] Heirs of Anastacio Fabela v. CA, 362 SCRA 531, August 9, 2001.
[31] Gajudo v. Traders Royal Bank, 519 Phil. 791 [ G.R. NO. 151098. March 21, 2006 ].
[32] Regalado, Remedial Law Compendium, Vol. 1, 7th rev. ed. (1999), p. 169. See also P. T. Cerna Corporation v. CA, 221 SCRA 19, 25, April 6, 1993.
[33] Section 3, Rule 9, Rules of Court.