civil procedure consolidated notes updated[1]
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
CIVIL PROCEDURE NOTES
PRELIMINARIES
Remedial Law
Branch of law which prescribes the method of enforcing the rights or obtaining redress for their invasions
Remedial Law vs Substantive Law
Substantive Law Remedial Law
Part of the law which creates, defines, or regulates rights concerning life, liberty, or property or the powers of agencies or instrumentalities for the administration of public affairs
Refers to the legislation providing means or methods whereby causes of action may be effectuated, wrongs redressed, and relief obtained (adjective law)
Makes vested rights possible
Has no vested rights
Prospective in application
Governs rights and transactions which took place (retroactive)
Cannot be enacted by SC SC is expressly empowered to promulgate procedural rules
4 Main Divisions of Remedial Law:
1. Civil Procedure (Rules 1-71)
2. Special Proceedings (Rules 72-109)
3. Criminal Procedure (R110-R127)
4. Rules on Evidence (Rules 128-134)
What are the sources of Remedial Law?
1. 1987 Constitution
2. BP 129 (Judiciary Reorganization Act of 1980) as amended by RA7691 (Act expanding the jurisdiction of MTCs, MuTCs, MCTCs
3. Rules of Court
4. Supreme Court Administrative Matters and Circulars
5. Supreme Court decisions
6. New Civil Code
7. Family Code
8. Local Government Code (RA 7160), particularly the Katarungang Pambarangay Law
9. Special Laws and amendments
10. Rules of Procedure on Small Claims
11. Revised Manual of the Clerk of Court
Differentiate: Civil Actions, Special Proceedings, Criminal Actions
Special Proceedings
Criminal Procedure
Civil Action
A remedy by which a party seeks to
The State prosecutes a person for an
A party sues another for the
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
establish a status, a right, or a particular fact (Rule 1 S3c)
act or omission punishable by law (Rule 1 S3b)
A proceeding wherein a person is prosecuted by the State for acts or omissions committed in violation of penal laws, and to impose the corresponding penalty provided for by penal laws
enforcement or protection of a right, or the prevention or redress of a wrong
A civil action may be ordinary or special. (R1 S3a)
Governed by special rules, and in the absence of special provisions, the rules provided for in ordinary civil actions shall be, as far as practicable, apply suppletory (R72 S2)
Governed by the Revised Rules of Criminal Procedure
Both are governed by the Rules for ordinary civil actions, subject to specific rules prescribed for a special civil action (R1 S3a)
May involve only one party
Involves the State against the accused
Involves 2 or more parties
Initiated by petition
Initiated by complaint
Initiated by complaint, or,
(but filed in court by Information)
in some special civil actions, by petition
Except Habeas Corpus, NOT based on a cause of action
Based on an act or omission punishable by law
Based on a cause of action
CONSTITUTIONAL PROVISIONS Relating to CIVIL PROCEDURE
A8 S1
Judicial Power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial Power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there is grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
What are those other Courts as may be established by Law?
Sandiganbayan
Family Courts (RA 8369)
Court of Tax Appeals
Sharia Court
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
A3 S1
No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
A3 S9(Basis of Rule 67)
Private property shall not be taken for public use without payment of just compensation
A6 S30
No law shall be passed increasing the appellate jurisdiction of the SC as provided in this Constitution without its advice and concurrence.
A8 S5 P1
The Supreme Court shall have the following powers:
- Exercise original jurisdiction over cases affecting:
o Ambassadors
o Other public ministers and consuls
- Over petitions for
o Certiorari
o Prohibition
o Mandamus
o Quo warranto
o Habeas corpus
A7 S4
The Supreme Court en banc shall be the sole judge of all contests relating to the election, returns, and qualification of the President or Vice President, and may promulgate its rules for the purpose.
A7 S18
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within 30 days from its filing.
A8 S5 P2(Basis of Rule 56)
- Review
- Revise
- Reverse
- Modify
- Affirm
o On appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
1. All cases in which constitutionality or validity of any
a. treaty,
b. international or executive agreement
c. law
d. presidential decree
e. proclamation
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
f. order
g. instruction
h. ordinance
i. regulation
i. is in question
2. all cases involving the legality of any
a. tax
b. impost
c. assessment
d. toll
e. any penalty imposed in relation thereto
3. all cases in which the jurisdiction of any lower court is in issue
4. all criminal cases in which the penalty imposed is reclusion perpetua or higher
5. all cases in which only an error or question of law is involved
A8 S5 P5 (basis of Rules of Court)
The SC shall have the power to promulgate rules concerning:
1. Protection and enforcement of constitutional rights
2. Pleading, practice, procedure in all courts
3. Admission to practice of law
4. Integrated Bar
5. Legal assistance to the underprivileged
Such rules shall (Limits to SC-rule making power):
1. Provide simplified and inexpensive procedure for speedy disposition of cases
2. Shall be uniform for all courts of the same grade
3. Shall not diminish, increase, modify substantive rights.
Rules of procedure of special court and quasi judicial bodies shall remain effective unless disapproved by the SC
A8 S2
The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the SC of its jurisdiction over cases enumerated in S5 thereof.
No law shall be passed reorganizing the Judiciary when it undermines security of tenure of its members.
A3 S16
All persons shall have the right to speedy disposition of cases before before all judicial, quasi judicial, administrative bodies.
A8 S14(basis for Rule 36)
No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without starting the legal basis therefor.
A9A S7 (basis of Rule 64)
Each Commission shall decide by majority of all its Members in any case or matter brought before it within 60 days from date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the SC on certiorari by the aggrieved party within 30 days from receipt of a copy thereof.
CIVIL PROCEDURE PROPER
Jurisdiction
Authority of the court to hear and decide a case and to implement its decision
Rule 30 Rule 36
Rule 39
Venue Jurisdiction
Place where action is instituted
Power of court to hear and decide a case
May be waived Jurisdiction over subject matter and over nature of action are conferred by law and cannot be
waived
Procedural Substantive
May be changed by written agreement of the parties
Cannot be subject of the agreement of the parties
Not a ground for motu proprio dismissal, except in Summary Procedure
A ground for motu proprio dismissal
General Jurisdiction
Power to adjudicate all controversies except those expressly withheld from the plenary powers of the court.
It extends to all controversies which may be brought before a court within the legal bounds of rights and remedies.
Special or Limited Jurisdiction
One which restricts the courts jurisdiction only to particular cases and subject to such limitations as may be provided by the governing law.
It is confined to particular causes, or which can be exercised only under the limitations and circumstances prescribed by the statute
Appellate Jurisdiction
Power and authority conferred upon a superior court to rehear and determine causes which have been tried in lower courts, the cognizance which a superior court takes of a case removed to it, by appeal or writ of error, from the decision of
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
a lower court or the review by a superior court of the final judgment or order of some lower courts
Concurrent / Confluent / Coordinate Jurisdiction
Power conferred upon different courts, whether of the same or different ranks, to take cognizance at the same stage of the same case in the same or different judicial territories
E.g. CA, SC, Sandiganbayan, RTC- in HC cases, Writ of Amparo, Writ of Habeas Data
Original Jurisdiction
Power of the court to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law and appellate jurisdiction, or the authority of a court higher in rank to re-examine the final order or judgment of a lower court which tried the case or elevated for judicial review. It is jurisdiction conferred upon or inherent in the first instance
Jurisdiction conferred by law and filed at the first instance (NOTE: all civil actions)
Exclusive Jurisdiction
Power to adjudicate a case or proceeding to the exclusion of all other courts at that stage
Jurisdiction of the court to the exclusion of all other courts
Exclusive Original Jurisdiction
Power of the court to take judicial cognizance of a case instituted for judicial action for the first time to the exclusion of all other courts
Territorial Jurisdiction
Refers to geographical area within which the courts powers can be exercised
In civil cases, assumes importance in case of venue of real or mixed action
In criminal cases, consideration of territory and locus of crime determine venue and jurisdiction
Territorial jurisdictions:
SC and CA
National
RTC
Regional jurisdiction
Inferior courts
Territorial jurisdiction as defined by SC in BP129
*Power of tribunal considered with reference to the territory within which it is to be exercised.
Delegated Jurisdiction
The grant of authority to inferior courts to hear and determine cadastral and land registration cases under certain conditions
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Doctrine of Primary Jurisdiction
courts will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring special knowledge and experience of said tribunal in determining technical and intricate matters of fact
courts shall not take cognizance of a case unless it has been decided at the administrative level
Coordinate Jurisdiction
(same as Concurrent Jurisdiction)
Power conferred upon different courts, whether of the same or different ranks, to take cognizance at the same stage of the same case in the same or different judicial territories
Ancillary Jurisdiction
Power of the courts to settle issues which are incidental to main issue
Appeal by Certiorari Petition for Certiorari
Rule 45 Rule 65
Petition is based on questions of law
Petition is based on questions of jurisdiction, whether the lower court acted without
jurisdiction or in excess of jurisdiction or with grave abuse of discretion
Mode of appeal Mode of review / SPECIAL CIVIL ACTION
Involves review of the judgment award or final order on the merits
Directed against interlocutory order of the court or where there is no appeal or any plain, speedy, or adequate remedy
Filed within 15 days from notice of judgment, final order, or resolution appealed from
Filed not later than 60 days from notice of judgment, order, or resolution sought to be reviewed
Stays judgment or final order appealed from
Unless a writ of preliminary injunction or temporary restraining order is issued, the petition does not stay the challenged proceeding
Appellant and appellee are original parties to the action, and the lower court or quasi judicial agency is not impleaded
Judge, court, quasi judicial agency, tribunal, corporation, board or officer or person are public respondents who are impleaded in the action
Motion for reconsideration is not required
Motion for reconsideration or for new trial is required; if a motion for reconsideration or new trial is filed, the period shall not only be interrupted but another 60 days shall be given to petitioner (SC Admin
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Matter 02-03)
Court is in exercise of its appellate jurisdiction and power of review
Court exercises original jurisdiction
Petition shall be filed with the Supreme Court
Petition shall be filed with the RTC, CA, Sandiganbayan, Comelec
JURISDICTION
SUPREME COURT
Original Jurisdiction of the Supreme Court:
A8 S5 P1- (Rule 56)
The SC shall have exclusive original jurisdiction over cases involving:
1. Ambassadors
2. Other public ministers and consuls
3. Over petitions for:
a. Certiorari
b. Prohibition
c. Mandamus
d. Quo warranto
e. Habeas corpus
Appellate Jurisdiction of the Supreme Court:
A8 S5 P2
The SC may review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
1. All cases in which the constitutionality or validity of any treaty, internation or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question
2. All cases involving the legality of any tax, impost, assessment or toll, or any penalty imposed in relation thereto
3. All cases in which the jurisdiction of any lower court is in issue
4. All criminal cases in which the penalty imposed is reclusion perpetua or higher (WITHIN THE SCOPE OF CRIMINAL PROCEDURE- RULE 45)
5. All cases in which only an error or question of law is imposed
1 and 2- PURE QUESTIONS OF LAW
Administrative Supervision of the Supreme Court:
1. Over court personnel
2. Over Justices
3. Over Judges
4. Practice of Law
5. Members of the Integrated Bar
CA decisions
- Appealable to SC under Rule 45
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
R45 S1- a party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals may file with the SC a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth.
Note that questions of law can be raised before the CA (BP129)
COURT OF APPEALS
Original jurisdiction / Original Concurrent Jurisdiction
Original jurisdiction to issue writs of:
- Mandamus
- Prohibition
- Certiorari
- Habeas corpus
- Quo warranto
- Auxiliary writs and processes,
o Whether or not in aid of its appellate jurisdiction
Exclusive Original Jurisdiction:
Exclusive original jurisdiction over the actions for annulment of judgments of RTCs
Appellate Jurisdiction:
1. Rule 41- over RTC decisions in the exercise of its ORIGINAL JURISDICTION (via Notice or Record of Appeal)
- RTC jurisdiction, first instance, including Special Civil Actions
2. Rule 42- over RTC decisions in the exercise of its APPELLATE JURISDICTION (via Petition for Review)
3. Rule 43- Exclusive appellate jurisdiction over all final judgments, resolution, orders, or awards of quasi judicial agencies, instrumentalities, boards, or commissions (via Petition for Review)
RTC
Exclusive Original Jurisdiction:
1. In all actions in which the subject of litigation is incapable of pecuniary estimation
2. Actions which cannot be quantified into monetary estimation
Subject matter (BP129)
3. In all civil actions which involve title to or possession of real property or any interest therein, where assessed value of property involved exceeds 20k OMM or in MM, value of property involved exceeds 50k
Except actions of FE and UD of lands and buildings, original jurisdiction of which is conferred with MTC, MuTC, MCTC
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
4. In all actions in admiralty and maritime actions where demand or claim exceeds 300k OMM or exceeds 400k MM
5. In all matters of probate, testate or intestate, where gross value of estate exceeds 300k OMM or exceeds 400k MM
Gross value- assessed value of property of deceased before deduction (NOT market value)
6. In all actions involving the contract of marriage and marital relations
7. In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction of any court, tribunal, person or body exercising judicial or quasi judicial functions
(refer to 902-A below)
8. In all civil actions and special proceedings falling within Exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law
9. In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses, and costs or the value of property in controversy exceeds 300k OMM or exceeds 400k MM
1996 Bar- Gross value is 200k, property located in Pampanga. What is the jurisdiction and venue?
MTC of the place of decedents actual residence at the time of his death, if a resident of the Philippines. If a non resident, then the MTC of the place where his estate is located.
(RA8799 S5.2 as amended by PD902-A)- exclusive and original jurisdiction of the RTC to hear and decide following cases:
1. Cases involving devices or schemes employed by or any acts of the board of directors, business associates, its offices or partnership, amounting to fraud or misrepresentation which may be interest of the public and/or of the stockholders, partners, members of associations or organizations registered with the Commission
2. Controversies arising out of intracorporate or partnership relations, between and among stockholders, members or associates, between any and all of them and the corporation, partnership, or association of which they are stockholders, members or associates respectively, and between such corporation, partnership or association and the state insofar as it concerns their individual franchise or right to exist as such entity
3. Controversies in election or appointment of directors, trustees, officers or managers of such corporations, partnerships, or associations
4. Petitions of corporations, partnerships or associations to be declared in the state of
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
suspension of payments, in cases where the corporation, partnership or association possesses sufficient property to cover all its debts but foresees the impossibility of meeting them when the respectively fall due or in cases where the corporation, partnership or association has no sufficient assets to cover its liabilities, but is under management of a rehabilitation receiver or management committee
Concurrent Original Jurisdiction:
With SC, CA, -- over petitions for certiorari, mandamus, prohibition, quo warranto, habeas corpus
Appellate Jurisdiction:
Over all cases decided by MTCs, MuTCs, MCTCs in their respective territorial jurisdictions
MTC
(note: baligtarin ang RTC jurisdiction, below 20-50, 300-400)
Ordinary Civil Actions:
1. exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including grant of provisional remedies in proper cases, where the value of the personal property, estate or amount of the demand does not exceed 300k OMM or 400k MM exclusive of interest, damages, of whatever kind, AF, litigation expenses and costs, the amount of which must be specifically alleged. Provided, that interest, damages of whatever kind, AF, litigation expenses, and costs shall be included in the determination of the filing fees. Provided further that where there are several claims
or causes of actions between the same or different parties, embodied in the same complaint, the amount of demand shall be the totality of the claims in all the causes of action, irrespective of whether the cause of action arose out of same or different transactions
2. exclusive original jurisdiction over cases of forcible entry or unlawful detainer, provided that when, in such cases, defendant raises questions of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession (see: Summary Procedure)
3. exclusive original jurisdiction in all civil actions involving title to or possession of property or any interest therein where assessed value of property or interest therein does not exceed 20k OMM or does not exceed 50k MM exclusive of interest, damages of whatever kind, AF, litigation expenses, costs. Provided that in cases of land not declared for taxation purposes, the value of such property shall be determined by assessed value of adjacent lots
4. civil cases where the demand does not exceed 300k or not more than 400k MM
5. over actions involving personal property valued at not more than 300k OMM or not more than 400k MM
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
6. admiralty and maritime cases where the demand or claim does not exceed 300k OMM or does not exceed 400k MM
Summary Procedure:
1. All cases of FE and UD, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where AF are awarded, the same shall not exceed 20k
2. All other civil cases, except probate proceedings, where the total amount of the plaintiffs claim does not exceed 100k OMM or 200k MM exclusive of interests and costs (as amended by AM 2-11-9-SC)
3. Civil cases not higher than 100k- Subject to the Rule on Small Claims
What if, gumitna? 150k?
Higher than 100k OMM, then subject to Regular Proceedings in MTC
BUT, below 200k MM, hence, in such case, subject to Summary Procedure pa rin
Why the need to discuss jurisdiction?
To know whether subject to Motion to Dismiss (Rule S1b), that the court has no jurisdiction over the subject matter of the case
In Civil Procedure, SC-CA-RTC-MTC
In Criminal Procedure, SC-CA-SANDIGANBAYAN-RTC-MTC
Commencement of a Civil Action:
R1 S5
Civil action is commenced by the filing of the original complaint in court and payment of the requisite docket fees. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court.
DOCKET FEES- needed to acquire jurisdiction over the case
Jurisdiction over plaintiff
By filing of original complaint in court plus payment of requisite docket fees
Jurisdiction over defendant
By voluntary appearance or service of summons
Jurisdiction over subject matter
Conferred by law
Jurisdiction over the issue
Determined by allegations in the complaint
Jurisdiction over the res
By actual or constructive seizure of property by way of attachment or execution
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Action, Cause of Action, Right of Action (Simplified Version)
Action Cause of Action Right of Action
Suit to enforce ones right or for the prevention or redress of a wrong
Act or omission by which a party violates a right of another
Remedial right to file a suit based on cause of action
Original Distinctions:
Action Cause of Action Right of Action
Suit filed in court for enforcememt or protection of a right, or the prevention or redress of a wrong (R1 S3)
Act or omission by which a party violate a right of another (R2 S2)
Remdial right or right to relief granted by law to a party to institute an action against a person who has committed delict or wrong against him
Reason for the action
Remedy or means afforded or the consequent relief
Formal statement of operative facts that give rise to a remedial right
Remedial right given to a person because of occurrence of the alleged facts
Matter of procedure and depends on the pleadings filed by the parties
A matter of right and depends on substantive law
Not affected by affirmative defenses (fraud, prescription, estoppel, etc)
Affected by affirmative defenses
Kinds of actions:
1ST GROUP: for purposes of venue under Rule 4
Real Action
- Actions affecting title to or possession of real property (A415 NCC in consideration)
- Venue: R4 S1
Personal Action
- Involves privity of contract/personal property (A416-417 of NCC in consideration)
- Venue: R4 S2
Mixed Action
- Action affecting title to or possession of real property + Privity of Contract
- Venue: R4 S1
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
2ND GROUP: for purposes of determining jurisdiction/service of summons
Action In Rem
- Action which binds the whole world
Note: all Special Proceedings are in rem actions
- Summons/notification by PUBLICATION
Action in Personam
- Action which binds the parties
Action Quasi In Rem
- Action which binds interests
o Foreclosure of mortgage
o Partition
o Attachment
o Any interest or lien on real property
Action in rem Action in personam
Action Quasi in Rem
Directed against the thing itself
Directed against particular persons
Directed against particular persons
Jurisdiction over person of defendant is not required
Jurisdiction over person of defendant is required
Jurisdiction over the person of the defendant is not required as long as
jurisdiction over the res is acquired
A proceeding to determine the state or condition of a thing
An action to impose a responsibility or liability upon a person directly
A proceeding to subject the interest of a named defendant over a particular property to an obligation or lien burdening it
Judgment is binding on the whole world
Judgment is bonding only upon the parties impleaded or their successors in interest
Judgment is binding upon particular persons
Examples:
Probate proceeding,
cadastral proceeding,
special proceedings
Examples:
Action for specific performance
Action for breach of contract
Examples:
Action for partition
Action to foreclose real estate mortgage
Real Action Personal Action
Mixed Action
Ownership or possession of real property is involved
Personal property is sought to be recovered or
Both real and personal properties are involved
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
where damages for breach of contract are sought
Founded on privy of real estate
Founded on privity of contract
Founded on both
Filed in the court where the property or any part thereof is situated (R4 S1)
Filed in the court where the plaintiff or any of the plaintiffs resides, where defendant or any of the defendants resides, or in case of non resident defendant, where he may be found, at election of plaintiff (R4 S2)
Filed in the court where the property or any part thereof is situated (R4 S1)
Example:
Accion reivindicatoria
Example:
Action for a sum of money
Example:
Accion publiciana with a claim for damages
Personal Action Action in personam
Personal property is sought to be recovered or where damages for breach of contract are sought
An action directed against particular persons, may be real action, personal action, mixed action
Founded on privity of contract
Not necessarily; because the action may also be
real or mixed
Filed in court where plaintiff or any of defendants reside, at option of plaintiff (R4 S2)
R4 S1 or R4 S2 may govern, depending on whether the action is real action or personal action
Mixed Action Quasi In Rem Action
Both real and personal properties are involved
Both real and personal properties may also be involved
Founded on both privity of real estate and privity of contract
Action directed against particular persons, but jurisdiction over defendant is not required as long as jurisdiction over the res is acquired
Rules on venue of real actions shall govern (R4 S1)
Rules on personal actions govern (?)
Real Action In rem action
Ownership or possession of real property is involved
Action directed against the thing itself
Filed in court where property or portion thereof is situated
Not necessarily; depends on whether the action is real, personal, mixed
A proceeding founded on privity of real estate
A proceeding to determine state or condition of a thing
Judgment may bind whole world, or particular persons, depending on whether in rem, in personam, quasi
Judgment is binding upon the whole world
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
in rem
PLEADING (R6 S1)
Sworn written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment
Complaint (R6 S3)
The complaint is the pleading alleging the plaintiffs cause or causes of action.
Answer (R6 S4)
Pleading in which a defending party sets forth his defenses
INITIATORY PLEADING
A pleading that initiates an action
RESPONSIVE PLEADING
A pleading that responds to allegations in the adverse partys pleading
Initiatory Pleadings
Original complaint
Permissive counterclaim
Cross claim
Third party complaint
4th party complaint
Complaint in intervention
Petition
In special civil actions
In special proceedings
Counter counter claim
Counter cross claim
Counter Counter Claim Counter Cross Claim
Any claim which defending party in a counterclaim may have against the original counterclaimant
Any claim which a defending party in a cross claim may have against the original cross claimant
COMPULSORY- Arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing partys claim
PERMISSIVE- does not arise of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing partys claim
Can be an initiatory pleading, if permissive
Responsive Pleadings
Answer to original complaint
Answer to permissive counterclaim
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Answer to third party complaint
Answer to fourth party complaint
Answer to complaint in intervention
Comment or objection to petition
Compulsory counterclaim
Reply
Answer to counter counter claim
Answer to counter cross claim
A motion IS NOT A PLEADING
A position paper IS NOT A PLEADING
A memorandum IS NOT A PLEADING
Why?
Motion is an application for relief other than by a pleading (R15 S1)
Position Paper and Memorandum only narrate facts of the case, issues, no cause of action, no defenses, but only contain discussions
Initiatory Pleading Responsive Pleading
A pleading that initiates an action
A pleading that responds to allegations in the adverse partys pleading
Original complaint
Permissive counterclaim
Answer to original complaint
Answer to permissive counterclaim
Cross claim
Third party complaint
4th party complaint
Complaint in intervention
Petition
In special civil actions
In special proceedings
Counter counter claim
Counter cross claim
Answer to third party complaint
Answer to fourth party complaint
Answer to complaint in intervention
Comment or objection to petition
Compulsory counterclaim
Reply
Answer to counter counter claim
Answer to counter cross claim
Need to be verified, with certification against forum shopping, plus payment of docket fees
Except when otherwise provided by law or these Rules, need not be verified
No need for certification against forum shopping,
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
and not need for payment of docket fees (Note: compulsory counterclaim, docket fees are suspended)
Instances when verification is needed:
Actionable document
Allegations of usury
Answer to permissive counterclaim
Succeeding pleadings in special proceedings
Complaint- a pleading alleging plaintiffs cause and causes of action
FLOW OF CIVIL PROCEDURE
I. BARANGAY CONCILIATION PROCEEDINGS
General Rule with respect to Barangay Conciliation Proceedings:
S412, LGC
No complaint, petition, action or proceedings involving any matter within authority of the Lupon shall be filed or instituted directly or indirectly in court or in any other government office or adjudication unless there has been a confrontation between the parties before the Lupon Chairman or the pangkat, and that no conciliation or settlement has been reacehed as certified by lupon or pangkat chairman.
Exceptions to above rule:
S408, LGC
1. where one party is the government or any subdivision or instrumentality thereof
2. where one party is a public officer or employee, and the dispute relates to performance of his official functions
offenses punishable by imprisonment exceeding 1 year or a fine exceeding 5k pesos
3. offenses where there is no private offended party
4. where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon
5. disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
amicable settlement by an appropriate lupon
6. such other classes of disputes which the President may determine in the interest of justice
7. where one of the parties is a juridical entity
8. where accused is under police custody or detention
9. where the person has otherwise been deprived of personal liberty calling for habeas corpus proceeding
10. where the actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendent lite
where the action may otherwise be barred by the statute of limitations
11. in case of labor disputes
12. action to annul a judgment upon a compromise
13. CARL disputes
14. Disputes involving traditions of an indigenous cultural community
Does the Exclusive Original Jurisdiction of the RTC on actions involving those incapable of pecuniary estimation include provisional remedies as falling within the category?
No, because provisional remedies are merely ancillary to the main action. The category of actions incapable of pecuniary estimation refers only to main actions.
Purpose of Barangay Proceedings:
Reduce the number of litigations and prevent the deterioration of the quality of justice which has been brought about by indiscriminate filing of cases in the courts. (Zamora vs Heirs of Izquierdo)
Venue of Barangay Conciliation Proceedings:
S409, LGC
Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the lupon of said barangay
Those involving actual residents of different barangays within the same city or munipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complainant
All disputes involving real property or any interest therein shall be brought in the barangay where the real property or the larger portion thereof is situated
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located
Rules on appearance before Barangay Proceedings:
S415, LGC
In all katarungang pambarangay proceedings, the parties must appear in person without the assistance of counsel or representative, except for minors and incompetents who may be assisted by their next of kin who are not lawyers.
Effect of Amicable Settlement and Arbitration Award:
S416, LGC
The amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration of 10 days from the date thereof, unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court.
However, this provision shall not apply to court cases settled by the lupon under last paragraph of S408 of this Code, in which case the compromise settlement agreed upon by the parties before the lupon shall be submitted to the court and upon approval thereof, have the force and effect of a judgment of said court.
Rules on execution of judgment in Barangay Proceedings:
S417, LGC
The amicable settlement or arbitration award may be enforced by execution by the lupon within 6 months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court.
Remedies of the parties in case of failure of amicable settlement before the lupon:
1. File the case before the proper court
2. Repudiate the agreement (S418, LGC)
3. File a petition before the MTC to nullify the agreement (basis?)
Remedy in case of failure to comply with Barangay Conciliation:
As defendant, file a motion to dismiss under R16 S1j on the ground that a condition precedent has not been complied with.
Motion to dismiss was granted, remedy of plaintiff?
Re file the case with the certification of having undergone Barangay conciliation proceedings, as the dismissal is without prejudice.
Motion to dismiss was denied, remedy of defendant?
R16 S4 states that if the motion is denied, movant shall file his answer within the balance of the period granted by Rule 11 to which he was entitled at the time of serving his motion, but not less than 5 days in any event, computed from his receipt of the notice of the denial. Proceed with the trial, and when the decision is adverse, file an appeal raising as error the ground for denial of the motion to dismiss. When the denial is tainted with grave abuse
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
of discretion amounting to lack or excess of jurisdiction, file petition for certiorari under Rule 65.
** In between Barangay conciliation and filing of complaint, if real property is involved, plaintiff can file adverse claim over the property, or can file notice of lis pendens
Notice of Lis Pendens
- buyer beware
- Notice to buyer of existence of an adverse claim
o It is not a pleading
o There is need to register it with the register of deeds
II. COMPLAINT
Complaint (R6 S3)
The complaint is the pleading alleging the plaintiffs cause or causes of action.
Undergone Barangay Conciliation Proceedings
NOTE: If the case undergone Barangay conciliation proceedings first, there must be a specific allegation in the complaint that there is compliance with Barangay Conciliation proceedings
Pag wala, patay (?)- M2D S1j OR amend the complaint (?)
Jurisdiction
IF, court has no jurisdiction, M2D R16 S1b
(importance of knowing BP129 as amended by RA7691 Rules on Jurisdiction)
Granted- Refile
Denied- State R16 S4 (yung BUONG SAGOT na Gusto ni Boss Atty Tan)
Summary Procedure:
Cases covered:
1. All cases of FE and UD, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where AF are awarded, the same shall not exceed 20k
2. All other civil cases, except probate proceedings, where the total amount of the plaintiffs claim does not exceed 100k OMM or 200k MM exclusive of interests and costs (as amended by AM 2-11-9-SC)
3. Civil cases not higher than 100k- Subject to the Rule on Small Claims
GENERAL RULE on Summary Procedure: No Motion to Dismiss is allowed (Prohibited Pleading)
EXCEPT:
1. Lack of jurisdiction over the subject matter of the claim
2. Lack of jurisdiction over the person of the defendant
3. Failure to comply with Barangay Conciliation Proceedings
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
HOWEVER, with respect to SMALL CLAIMS CASES,
ABSOLUTE RULE: motion to dismiss is not allowed
Reason: defeats the purpose of Small Claims Proceedings
Venue
- Can be subject to stipulation of the parties
State: Rules on venue
R4 S1
Actions affecting title to or possession of real property or interest therein shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved or a portion thereof is situated.
Forcible entry and unlawful detainer actions shall be commenced and tried in the MTC of the municipality or city wherein the real property involved or a portion thereof is situated.
R4 S2
All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, where the defendant or any of the defendants resides, or in case of a non resident defendant he may be found at the election of the plaintiff.
R4 S3
If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found
EXCLUSIVITY OF VENUE- NOTE: Rule 4 SHALL NOT APPLY... if
R4 S4
1. The parties have validly agreed in writing
2. The agreement in writing was made before the filing of the action
3. Exclusive venue is stipulated
Atty Tans comment:
Rule 4 of the Rules of Court did not provide for MAY, but SHALL
Suppose, Real property is subject of dispute (real action). A lives in Pasay, B lives in Manila, the real property is located in Davao. Following Rule 4 S1, the suit should be filed in Davao, being the place where the property or portion thereof is situated. However, the parties can exclusively agree that the venue can be filed in Baguio, provided that the requisites of R4 S4 as to exclusivity of venue are complied with
So, it means that Rule 4 S1 can be the subject of agreement, and that the suit can be filed somewhere else other than what S1 provides? (Parang ok lang sana kung concern e personal action under R4 S2- can be subject of agreement, pero venue of REAL ACTION CAN BE SUBJECT OF AGREEMENT?! Labo ata...)
Seems there is a loophole in Rule 4
If the venue is permissive,
Then the venue is in addition to the rules on venue
Action was filed in the wrong venue:
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
I will file motion to dismiss under R16 S1c on the ground that the venue is improperly laid
The motion was granted (court issues not a judgment but an ORDER). Counsel for plaintiff. Remedy?
I will refile the case in the court of the proper venue, because the order of dismissal is without prejudice (R16).
EXCEPT: if there exists grave abuse of discretion amounting to lack or excess of jurisdiction, Certiorari Rule 65 is the proper remedy
Motion to dismiss was denied. Remedy for defendant?
Rule 16 S4
File an answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion but not less than 5 days in any event, computed from his receiving of notice of denial. Then, go to trial. When the decision is adverse, file an appeal raising as error the denial of the motion to dismiss. If the denial of the motion is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, file petition for certiorari under Rule 65.
Motion to dismiss on the ground of improper venue IS A PROHIBITED PLEADING under the Rules on Summary Procedure, and more so in Small Claims
Remedy: raise the ground as an affirmative defense
Parties
(R3 S1)
Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term plaintiff may refer to the claiming party, the counterclaimant, cross claimant, or the 3rd 4th etc party plaintiff. The term defendant may refer to the original defending party, the defendant in the counterclaim, the cross defendant, or the 3rd 4th etc party defendant.
Plaintiff includes:
- Counter counterclaimant
- Counter cross claimant
Defendant includes:
- Defendant in counter counterclaim
- Defendant in counter cross claim
- An unwilling co plaintiff or one who should be joined as plaintiff but refuses to give consent thereto (R3 S10)
- A person necessary to a complete determination or settlement of the questions involved therein
Plaintiff
A person having an interest in the matter of the action or in obtaining the relief demanded
Defendant
A person claiming an interest in the controversy or the subject thereof adverse to the plaintiff
3 rd party plaintiff
A defending party who may with leave of court file against a third person not party to the action called the 3rd 4th etc party defendant a claim for contribution,
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
indemnity, subrogation, or any other relief in respect of his opponents claim (R6 S11)
Cross Claimant
A party to an original action who has a claim against a co party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein (R6 S8)
Real Party In Interest
A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise provided by law or these rules, every action must be prosecuted or defended in the name of the real party in interest(R3 S2)
Indispensable Party
An indispensable party is a party in interest without whom no final determination can be had of an action who shall be joined either as plaintiff or defendant (R3 S7)
Necessary Party
A necessary party is a party who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action (R3 S8)
Who is a proper party?
A proper Party is the same as a necessary party, a party who is not indispensable but who is ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action (R3 S8)
Party those presence is necessary to adjudicate the whole controversy, but those whose interests are so far separable that final decree can be made in their absence without affecting them (Quisumbing vs CA GR 93335 9/13/1990)
Representative party
R3 S3
Party acting in a fiduciary capacity. The beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. It may be:
- Trustee of an express trust
- Guardian
- Executor
- Administrator
- A party authorized by law or these rules
o (agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal)
Pro Forma Party
Parties who are required to be joined as co parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule
EXAMPLE: Spouses- husband and wife shall sue or be sued jointly, except as provided by law (R3 S4)
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Quasi Party
Parties in whose behalf a class or representative suit is brought
Not a real party in interest: Remedy?
MOTION TO DISMISS on the ground of failure to state cause of action
Granted- refile
Denied:
I will file an answer within the balance of the period prescribed by Rule 11 to which i am entitled at the time of serving my motion, but not less than 5 days in any event, computed from my receipt of notice of denial. Then, proceed with the trial. In case of adverse decision I will appeal the judgment and assign as error the denial of the motion to dismiss.
However, if the denial is tainted with GAD amounting to lack or excess of jurisdiction, then I will file petition for certiorari under Rule 65.
JOINDER OF PARTIES
Requisites:
1. Right to relief arises out of the same transaction or series of transactions
2. Jurisdiction over plaintiffs and defendants can be obtained
3. There is question of law or fact common to all plaintiffs or defendants
4. Such joinder is not otherwise proscribed by the provisions of the rules on jurisdiction and venue
R3 S6
All persons in whom or against whom any right to relief in respect to or arising out of the same or series of transactions is alleged to exist, either jointly, severally, or in the alternative, may, except as otherwise provided in these rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest.
Non joinder/Misjoinder of parties- not a ground for motion to dismiss
IF so, remedy:
Amendment of the pleading (Rule 3 in relation to Rule 10
Cause of Action
Act or omission by which a party violates a right of another (R2 S2)
What are the elements of a cause of action?
1. Plaintiff exercises a legal right
2. Correlative obligation the part of defendant to respect plaintiffs legal right
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
3. Defendant violates plaintiffs legal right in a manner contrary to law, morals, good customs, public order, public policy
*STATE ALL CAUSES OF ACTION in the PLEADING!
IF NOT, remedy:
M2D R16 S1g- failure to state cause of action
GRANTED: refile; amend pleading
Denied:
I will file an answer within the balance of the period prescribed by Rule 11 to which i am entitled at the time of serving my motion, but not less than 5 days in any event, computed from my receipt of notice of denial. Then, proceed with the trial. In case of adverse decision I will appeal the judgment and assign as error the denial of the motion to dismiss.
However, if the denial is tainted with GAD amounting to lack or excess of jurisdiction, then I will file petition for certiorari under Rule 65.
Joinder of Causes of Action (R2 S5)
A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions:
A. That the party joining the causes of action shall comply with the rules on joinder of parties
B. The joinder shall not include special civil actions and actions governed by Special Rules
Special Civil Actions:
1. Interpleader (R62)
2. Declaratory Relief (R63)
3. Review of Judgments and Final orders or resolutions of COMELEC, CoA (R64)
4. Certiorari, Prohibition, Mandamus (R65)
5. Quo Warranto (R66)
6. Expropriation (R67)
7. Foreclosure of Real Estate Mortgage (R68)
8. Partition (R69)
9. Forcible Entry and Unlawful Detainer (R70)
10. Contempt (R71)
INCLUDES: SPECIAL PROCEEDINGS (SEGTARHHCVJCDC +)
Sum of money + Foreclosure of Mortgage = CANNOT BE JOINED! (latter is a special civil action)
Hence, sue in alternative / either or
C. Where the claims pertain to different venues or jurisdictions, the joinder shall be allowed in the RTC provided that it falls within the jurisdiction of said court and the venue lies therein
D. Where the claims in all causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction
If you are counsel for plaintiff, and the causes of action are not joined, remedy?
File a motion to amend the complaint (as a matter or right before a responsive pleading is filed, or with leave of court after a responsive pleading is filed if the amendment is substantialHere, di ko alam kung substantial to...) R10 S2 and 3
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Splitting a Single Cause of Action:
It is the act of dividing or indivisible cause of action into several causes of actions and bringing several actions thereon
R2 S3
A party may not institute more than one suit for a single cause of action
R2 S4
If 2 or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for dismissal of the others.
Supposing, the plaintiff split a single cause of action, remedy?
As defendant, I will file a motion to dismiss on the ground of litis pendencia or res judicata (R16 S1 e or f)
GRANTED, remedy: APPEAL (dismissal is with prejudice)
DENIED:
I will file an answer within the balance of the period prescribed by Rule 11 to which i am entitled at the time of serving my motion, but not less than 5 days in any event, computed from my receipt of notice of denial. Then, proceed with the trial. In case of adverse decision I will appeal the judgment and assign as error the denial of the motion to dismiss.
However, if the denial is tainted with GAD amounting to lack or excess of jurisdiction, then I will file petition for certiorari under Rule 65.
PLEADING / PARTS OF A PLEADING
Rule 7 S1
The caption sets forth:
a. Name of the court
b. Title of the action
c. Docket number if assigned
The title of the action indicates the names of the parties. They shall be named in the original complaint or petition. But in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated.
R7 S2
The body of the pleading shall set forth its:
1. Designation
2. Allegation of the claims or defenses
3. Relief prayed for
4. Date of the pleading
Paragraph
The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified each of which shall contain a statement of a single act of circumstances so far as can be done with convenience.
A paragraph may be referred to by its number in all succeeding pleadings.
Headings
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
When 2 or more causes of action are joined, the statement of the first shall be prefaced by the words first cause of action, of the second by second cause of action and so on for the others.
When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words answer to the second cause of action or answer to the second cause of action and so on; and when one or more paragraphs are addressed to several causes of action, they shall be prefaced by words to that effect.
Relief
The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just and equitable.
Date
Every pleading shall be dated
R7 S3
Every pleading must be signed by the party or counsel representing him stating in either case his address which should not be a post office box. The signature of counsel constitutes a certification by him that
1. he has read the pleading,
2. that to the best of his knowledge, information or belief there is good ground to support it, and
3. that it is not interposed for delay
An unsigned pleading produces no legal effect
However, the court may, in its discretion, allow such deficiency to be remedied if it appear that the same was due to mere inadvertence and not intended for delay.
1. Counsel who deliberately files unsigned pleading
2. Signs a pleading in violation of these rule,
3. or alleges scandalous or indecent matter therein,
4. Or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action
R7 S4
Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified, or accompanied by affidavit.
A pleading is verified by an affidavit that
1. the affiant has read the pleading
2. 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
1. on information and belief or
2. upon knowledge, information and belief
3. or lacks a proper verification
shall be treated as an unsigned pleading
Is a jurat a part of a pleading?
The general rule is that pleadings need not be verified. However, if the law or the Rules require that a pleading be verified, verification is done by way of affidavit. In an affidavit, there is a need for jurat to be present. Hence, in a verified pleading, a jurat becomes part of a pleading.
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
What are the pleadings that need to be verified?
Petition for relief from judgment or order (R38 S3)
Petition for review from RTC to CA (R42 S1)
Petition for review from CTA and q-j agencies to the CA (R43 S5)
Appeal by certiorari from the CA to SC (R45 S4)
Petition for annulment of judgment or final orders and resolutions (R47 S4)
Complaint for injunction (R58 S4)
Application for appointment of receiver (R59 S1)
Application for support pendent lite (Rule 61 S1)
(all initiatory pleadings)
Original Complaint
Permissive Counterclaim
Cross Claim
3rd 4th etc party complaint
Complaint in intervention
Petition
(all Special Civil Actions)
Interpleader (R62)
Declaratory Relief and Similar Remedies (R63)
Review of Judgments and Final Orders or
Resolutions of COMELEC, CoA (R64)
Petitions for certiorari, prohibition, mandamus (R65)
Quo Warranto (R66)
Expropriation (R67)
Foreclosure of Real Estate Mortgage (Rule 68)
Partition (R69)
Forcible Entry and Unlawful Detainer (R70)
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Contempt (R71)
(all Special Proceedings)
Settlement of Estate of Deceased (R73-90)
Escheat (R91)
Petition for guardianship of minors (AM __-__-__-SC)
Petition for guardianship of incompetents (R92-97)
Petition for custody of minors in relation to habeas corpus, AM __-__-__-SC)
Trusteeship (R98)
Petition for Domestic Adoption (Domestic Adoption Act, )
Petition for inter country adoption (Inter Country Adoption Act, )
Habeas Corpus (R102)
Writ of Amparo ( )
Writ of Habeas Data ( )
Change of Name (R103)
Clerical Error Act ( )
Cancellation or Correction of Entries in the Civil Registry (R108)
Voluntary Dissolution of Corporations (Corporation Code )
Judicial Approval of Voluntary Recognition of Minor Natural Children (Family Code,
)
Constitution of the Family Home (Family Code, )
Declaration of Absence and Presumptive
Death (R107 in relation to Civil and Family Code )
Petition for declaration of Nullity and Annulment of Marriage ( )
Petition for legal separation ( )
Pleadings not required be verified in the manner and form prescribed by S4 of this Rule but the same must be under oath:
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Denial of genuineness and due execution of actionable document (R8 S8)
Denial of allegations of usury (R8 S11)
Motion to set aside default order (R9 S3b)
Answer to written interrogatories (R25 S2)
Answer to request for admission (R26 S2)
The following pleadings or motion with affidavit or affidavits of merit:
Motion to postpone for absence of evidence (R30 S3)
Motion to postpone for illness of a party or counsel (R30 S4)
Motion for summary judgment or opposition thereto (R35 S1,2,3,5)
Motion for new trial on the ground of fraud, accident, mistake, or excusable negligence or opposition thereto (r37 S2)
Petition for relief from judgment or order (R38 S3)
Third party claim (R39 S16)
Proof required of a redemptioner (R39 S30)
Motion for preliminary attachment (R57 S3)
Motion for dissolution of preliminary injunction (R58 S6)
Application for writ of replevin (R60 S2)
Claim against estate of a decedent (R86 9)
Motion for new trial on the ground of newly discovered evidence in criminal cases (R121 S4)
Does the answer need to be verified?
As a general rule, answers need not be verified, save for following instances:
Answer to allegations of usury in a complaint to recover usurious interests (R8 S11)
When the answer is based on an actionable document (R8 S8)
Answer under the Revised Rules on Summary Procedure
Answer in Small Claims Cases
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
If the pleading is not verified, as counsel for plaintiff, remedy?
File for judgment on the pleadings under Rule 34 S1, on the ground of admission of material allegations of the adverse partys pleadings. Ground is based on the fact that an answer is filed, but there is no genuine issue because the allegations are deemed admitted.
R34 S1
Grounds for judgment on the pleadings:
Answer fails to tender an issue
Answer admits the material allegations of the adverse partys pleading
Who can verify a pleading?
A party need not sign the verification.
The following may sign verification:
Party
Partys representative
Partys Lawyer
Any person who personally knows the truth of the facts alleged in the pleading
How about an authorized representative? Can he verify?
Yes, if armed with proper authority from the party (Through SPA?)
R7 S5- certification against forum shopping
Plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading assisting a
claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith,
1. 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 claim or action is pending therein
2. if there is no such other pending action or claim, a complete statement of the present status thereof
3. if he should thereafter learn that the same or similar action or claim is filed or is pending, he shall report that fact within 5 days therefrom to the court where his aforesaid complaint or initiatory pleading has been filed
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or pleading but shall be cause for dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing.
Submission of a false certification or non compliance with any of the undertakings therein shall constitute indirect contempt of court without prejudice to corresponding administrative and criminal actions.
If acts of party or counsel clearly constitute wilful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice, direct contempt, and cause for administrative sanctions.
Forum Shopping:
Forum shopping is an act of malpractice of filing multiple suits in different courts either simultaneously or successively, involving the same parties, and asking the courts to rule on the same or
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
related causes and/or to grant the same or substantially the same relief
3 ways of committing forum shopping:
Filing multiple cases based on the same cause of action and with the same prayer the previous not having been resolved (litis pendencia)
Filing multiple cases based on the same cause of action and with the same prayer, the previous having been resolved with finality (res judicata)
Filing multiple cases based on same causes of action but with different prayers (splitting cause of action on the ground of litis pendencia or res judicata)
Pleadings requiring certification against forum shopping:
Initiatory Pleadings
Original complaint
Permissive counterclaim
Cross claim
3rd 4th etc party complaint
Complaint in intervention
Petition
What is stated in certification against forum shopping:
R7 S5
The plaintiff or principal party shall certify 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:
1. 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
2. If there is such other pending claim or action, a complete statement of the present status thereof
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 days therefrom to the court wherein his aforeseaid complaint or initiatory pleading has been filed
States the effects of: (R7 S5)
Failure to attach certification against forum shopping
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or pleading but shall be cause for dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing.
Remedy is file motion to dismiss R16 S1j, and if granted, plaintiffs remedy is to refile the case with the required certification, unless if declared by the court as dismissal with prejudice, hence, remedy is appeal
Submission of a falser certification or non compliance of any of the undertakings therein
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Submission of a false certification or non compliance of any of the undertakings therein shall constitute indirect contempt of court without prejudice to corresponding administrative and criminal actions
Willful and deliberate forum shopping
If the acts of party or counsel clearly constitute wilful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice, direct contempt, and cause for administrative sanctions.
Serves as FINAL ORDER, hence, appeal is the proper remedy if motion to dismiss under R16 S1j is granted
Remedies in case of failure to attach certification against forum shopping:
As counsel for defendant, file motion to dismiss under Rule 16 S1j on the ground that a condition precedent has not been complied with.
Motion to dismiss was granted, remedy?
As plaintiff, refile the case, on the ground that the dismissal is without prejudice.
If the plaintiff committed wilful and deliberate forum shopping, and the complaint was dismissed, remedy?
As plaintiff, i will file notice of appeal under Rule 41, because the dismissal is without prejudice, hence, in the nature of a final order.
Define, enumerate, each pleadings:
Complaint (R6 S3)
The complaint is the pleading alleging the plaintiffs cause or causes of action.
Counterclaim (R6 S6)
Any claim which a defending party may have against an opposing party
Compulsory Counterclaim (R6 S7)
A counterclaim which being cognizable by the regular courts of justice arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing partys claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction
Permissive Counterclaim (R6 S7)
A counterclaim which being cognizable by the regular courts of justice does not arise out of or is connected with the transaction or occurrence constituting the subject matter of the opposing partys claim and may require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction
Cross claim (R6 S8)
Any claim by one party against a co party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein
3rd 4 th etc party complaint (R6 S11)
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
A claim that a defending party may, with leave of court, file against a person not a party to the action, called a 3rd 4th etc party defendant for contribution, indemnity, subrogation, or any other relief in respect of his opponents claim
Complaint in intervention (R19 S1)
Pleading filed by an intervenor if he answers a claim against either or all of the original parties
Answer in intervention (R19 S3)
Filed by intervenor if he unites with the defending party in resisting a claim against the latter
Answer (R6 S4)
Pleading in which a defending party sets forth his defenses
Counter counterclaim (R6 S9)
A counterclaim that may be asserted against an original counterclaimant
Counter crossclaim
A cross claim which may be filed against an original cross claimant
Counterclaim
Original complaint
A vs B
Counterclaim
Counter Counter Claim
Cross Claim
A vs B and C
(Original Complaint)
Cross Claim
Counter Cross Claim
Third Party Complaint
A vs B vs C (for CISA)
C is impleaded for CISA
Complaint In intervention
A vs B
C (or)
C wants to be impleaded in the action
THIRD PARTY COMPLAINT
COMPLAINT IN INTERVENTION
Rule 6 Rule 19
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
A claim that a defending party may, with leave of court, file against a person not a party to the action, called a 3rd 4th etc party defendant for contribution, indemnity, subrogation, or any other relief in respect of his opponents claim
Pleading filed by an intervenor if he answers a claim against either or all of the original parties
Intervenor is any person who has a legal interest in the matter in ligitation, or in the success of either of the parties, or who has an interest against both parties, or who is so situated as to be adversely affected by the distribution or other disposition of property in the custody of the court or of an officer thereof
Third party is impleaded in the suit for CISA
Third party has legal interest and wants to be impleaded in the suit
Initiatory Pleadings
Requires payment of docket fees
Permissive Counterclaim vs Compulsory Counterclaim (Simplified version)
Permissive CC Compulsory CC
Does not arise out of or is connected with the transaction or occurrence that is the subject matter of the opposing partys claim
Arises out of or is connected with the transaction or occurrence that is the subject matter of the opposing partys claim
Needs verification and certification against forum shopping
Not
Docket fee is required to be paid
Docket fees are suspended
Failure to file answer results in declaration of default
not
may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction
Does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction
Not barred even if not set up in the action
Barred if not set up in the action
Initiatory pleading Not an initiatory pleading
3PC vs Third party claim
Third Party Complaint Third Party Claim
Initiated by way of complaint
By way of affidavit
Filed before the court Filed before the sheriff
For CISA Terceria
Pleading Affidavit
Docket fees are required to be paid
Not
Lis Pendens vs Litis Pendencia
Lis Pendens Litis Pendencia
buyer beware Filing multiple suits in different courts involving same parties, same causes of action, same
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Notice to buyer of existence of an adverse claim
facts, same relief, the identity of the 2 cases such that any judgment that may be rendered in one case, regardless of which party is successful, would amount to res judicata in the other case
Notice A ground for motion to dismiss under Rule 16
Simultaneous or after filing of the original complaint/pleading asserting a claim,
PROVISIONAL REMEDIES may be availed of, ancillary to the main action for protection and preservation of rights while the main action is pending
PROVISIONAL REMEDIES
- Temporary, auxiliary, ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending
The following are the provisional remedies:
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)
NOTE: Not Exclusive!
Protection orders
Provisional orders
Production orders
Witness protection orders
See: RA 9262, Rules on Nullity/Annulment of Marriage/Legal Separation, Petition for Custody of Minors, Writ of Amparo, Writ of Habeas Data
NOTE ALSO:
Injunction and replevin can be main actions in themselves
PROVISIONAL REMEDIES
A. Preliminary Attachment (Rule 57)
When filed? (R57 S1)
At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of judgment that may be recovered in the following cases (See grounds)
Grounds for preliminary attachment (NOTE: TINATANONG SA BAR!)
Rule 57 S1
a. In an action for recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi contract, delict or quasi delict against a party who is about to depart from the Phils with intent to defraud his creditors
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
b. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a wilful violation of duty
c. In an action to recover the possession of property unjustly or fraudulently taken, detained, or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person
d. In an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof
e. In an action against a party who has removed or disposed of his property, or is about to do so with intent to defraud his creditors
f. In an action against a party who does not reside and is not found in the Phils, or on whom summons may be served by publication
Requirements: (Rule 57 S3)
1. By way of motion or by way of complaint
2. Verified application through Affidavit attached to motion or complaint
- Stating the grounds
- That there is no sufficient security
3. Allegation of the ground necessitating the need for preliminary attachment
4. Posting of bond in an amount to be determined by the court
How is attachment applied for?
By way of motion? Or by way of complaint?
EITHER
HOW?
At the commencement of the complaint
- By verified complaint
At any time before judgment
- By verified motion
Cany you apply for writ of attachment before the MTC?
YES.
In all instances?
YES. Because under Summary Procedure, not a prohibited pleading
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
FE/UD- No
Amount 200k MM- yes
100k- no
Ordinary Civil Actions- yes
When is it necessary to issue summons?
In case of implementation of the preliminary attachment (3rd stage)
Stages:
- Publication
- Order/Execution
o BOTH ARE EX PARTE
- Implementation
o With Summons
How attached?
- Garnishment
- Levy on attachment
o Annotated on back of title, warning on subsequent buyer subject to outcome of the case
Remedy in case of issuance of writ of attachment:
R57 S12 and S13
S12- Motion to discharge attachment upon giving of counterbond
S13- Motion to quash the writ of attachment on the ff grounds:
- That the writ was improperly or irregularly issued or enforced
- That the bond is insufficient
If the attachment is excessive, the discharge shall be limited to the excess
Order of denial of motion to quash:
- INTERLOCUTORY, hence,
o M4R R65 S4
o Certiorari R65 S1, R41 S1b
Purpose of the bond:
- To answer for damages incurred by the adverse party in case writ of attachment is improperly or irregularly enforced
Writ of Preliminary Attachment
Writ of Replevin
Covers real or personal property
Covers only personal property
At the commencement of the action or at any time before entry of judgment
Commencement of the action or at any time before answer
Amount of the bond is the value of the obligation (fixed by the court)
Amount of the bond is double the amount of the personal property
May be resorted to even if property is in the possession of a third person
Can be sought only when defendant is in actual possession of the property
B. Preliminary Injunction (Rule 58)
Injunction
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
- Judicial writ, process, or proceeding whereby a party is ordered to do or refrain from doing a particular act
Preliminary Injunction
- An order granted at any stage of an action or proceeding prior to the judgment requiring a party or a court, agency, or a person to refrain a particular act or acts
Preliminary Mandatory Injunction
- An order requiring the performance of a particular act or acts
Denial- interlocutory
- Remedy: certiorari
If FJ- appeal
Can preliminary injunction be issued ex parte?
NO (?). TRO- yes
Writ of preliminary injunction
TRO
A writ granted at any stage of action or proceeding prior to the judgment or final order, requiring a party or a court, agency or person from a particular act or acts. It may also require performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction
An order to restrain particular act or acts of a party for a limited period of time
GROUNDS for preliminary injunction (R58 S3):
a. That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually
b. That the commission, continuance, or non performance of the act or acts complained of during the litigation would probably work injustice to the applicant, or
c. That a party, court, agency, or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual
Irreparable damage and injury
- Of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in court of law or where there is no standard by which their amount can be measured with reasonable accuracy
How do you avail?
By way of MOTION or by way of VERIFIED COMPLAINT
IF by verified complaint, at the commencement of the action or before entry of judgment, INCORPORATED IN THE BODY OF THE COMPLAINT
If by motion, then by an application for relief complying with the Rules on Motion:
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Remedial Law Review Notes under Atty Ferdinand TanCONSOLIDATED NOTES in CIVIL PROCEDURE
Notes
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