civpro finals reviewer- jdl - butch ramiro

Civpro Reviewer [Justice de Leon]. Finals. by Butch Ramiro 2C

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1. RULE MAKING POWER OF THE SC:

Art 8 Sec 5(5) of the Consti:

Promulgate rules concerning the protection and enforcement of

constitutional rights, pleading, practice and procedure in: o All courts

o The admission to the practice of law

o The Integrated Bar o And Legal assistance to the underprivileged

Guidelines on the rules: o They must provide a simplified and speedy disposition of cases

o The rules shall be uniform for all courts of the same grade o The rules shall not diminish, increase, or modify substantive rights

These powers may not be reduced by Congress but Congress may add more

Art 6 Sec 30 of the Consti:

No law shall be passed increasing the appellate jurisdiction of the SC as provided in this Constitution without its advice and concurrence

2. PROCEDURAL AND SUBSTANTIVE

Procedural and Substantive Rules

Procedural law: the body of legal rules that govern the process for

determining the rights of parties Substantive law: body of rules that determine the rights and obligations of

persons

3. FORCE AND EFFECT OF RULES OF COURT

Rules of Courts, promulgated by authority of law, have the force and effect of

law; and rules of court prescribing the time within which certain acts must be done, or certain proceedings taken are considered absolutely indispensable to the

prevention of needless delays and to the orderly and speedy discharge of judicial business. (Shioji vs. Harvey, 43 Phil., 333)

4. POWER OF THE SC TO SUSPEND RULES OF COURT

Nonetheless, it is also true that procedural rules are mere tools designed to facilitate the attainment of justice. Their strict and rigid application should be

relaxed when they hinder rather than promote substantial justice. Public policy dictates that court cases should, as much as possible, be resolved on the

merits not on mere technicalities. Substantive justice trumps procedural rules

It is within the court's sound discretion to relax procedural rules in order to fully

adjudicate the merits of a case. This Court will not interfere with the exercise

of that discretion absent grave abuse or palpable error. Section 6, Rule 1 of the 1997 Rules of Civil Procedure even mandates a liberal construction of

the rules to promote their objectives of securing a just, speedy, and

inexpensive disposition of every action and proceeding.

5. PROCEDURAL RULES THAT PARTIES MAY CHANGE

a. Venue (may be agreed upon by the parties) b. Court’s discretion in the interest of substantial justice

c. Waiver

6. JURISDICTION

Jurisdiction: Capacity or power conferred by the Constitution or law to a court or

tribunal to entertain, hear and determine controversies and render judgment thereon.

How is jurisdiction acquired?

OVER

PLAINTIFF/PETITIONER

Acquired by the filing of the complaint, petition or

initiatory pleading before the court by the plaintiff or petitioner.

OVER

DEFENDANT/RESPONDENT

1. Voluntary appearance

2. Submission by the defendant to the court 3. Coercive process issued by the court (summons)

OVER SUBJECT MATTER Conferred by law

OVER THE ISSUES 1. Determined by the pleadings

2. Determined by agreement in a pre-trial order/stipulation

3. Implied consent: failure of a party to object to evidence on an issue not covered by the pleadings

OVER THE RES (PROPERTY

WHICH IS THE SUBJECT OF

LITIGATION)

Acquired by actual/constructive seizure by the court of

the thing e.g. attachment, garnishment, provision of law

(like in land registration proceedings)

7. ESTOPPEL TO DENY JURISDICTION

Hinog v. Melicor: Party motioned to serve a supplemental pleading. It was considered as seeking affirmative relief from the courts.

If a party invokes the jurisdiction of a court, he cannot thereafter

challenge the court’s jurisdiction in the same case because of estoppel.

8. JURISDICTION IS DETERMINED AT THE TIME OF FILING ACTION

WHEN IS A CIVIL

ACTION

COMMENCED?

By the filing of the original complaint in court

WHAT IF AN The action is commenced with regard to him on the date of the


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ADDITIONAL

DEFENDANT IS

IMPLEADED IN A

LATER PLEADING?

filing of the later pleading

This is irrespective of whether the motion for its admission, if

necessary, is denied.

People v. Cawaling

Once the court acquires jurisdiction, it may not be ousted from the case by a

new law placing such proceedings under the jurisdiction of another tribunal o Exceptions:

An express provision in the statute The statute is clearly intended to apply to actions pending

before its enactment

9. COURTS

Art 8 Sec 1:

The 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

To determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or

instrumentality of the Government

BP 129: Pertinent Provisions:

CA:

CA Power:

Note: CA is also a trier of facts.

Power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual

issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new

trials or further proceedings.

Trials or hearings in the Court of Appeals must be continuous and must be completed within 3 months,

unless extended by the CJ

Original Jurisdiction To issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxilliary writs or processes,

whether or not in aid of its appellate jurisdiction

Exclusive original

jurisdiction

Actions for annulment of judgments of RTCs (Rule 47!)

Exclusive appellate

jurisdiction

ALL final judgments, decisions, resolutions, orders or awards

of

1. RTC 2. Quasi judicial agencies, instrumentalities, boards or

commissions, SEC, Social Security Commission,

the Employees' Compensation Commission and the

Civil Service Commission

RTC:

Exclusive original jurisdiction

1. Civil actions in which the subject of litigation is incapable of pecuniary estimation (e.g. specific

performance, support, rescission)

2. Civil actions which involved the title to or possession of real property or any interest therein (e.g. accion

publiciana) NOTE: unlawful detainer and forcible entry jurisdiction with MTC

a. Metro Manila: assessed value of property exceeding 50,000

b. Outside MM: assessed value of property exceeding 20,000

3. All actions of admiralty and maritime jurisdiction a. MM: demand or claim exceeds 400k

b. Outside MM: exceeds 300k 4. All matters of probate (testate/intestate)

a. MM: gross value of estate exceeds 400k b. Outside MM: exceeds 300k

5. In all actions involving the contract of marriage/martial relations (Family courts are RTCs: see below)

6. In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising

judicial/qj functions 7. In all civil actions and special proceedings falling within

the EOJ of a juvenile and domestic relations court and of the court of agrarian relations as now provided by

law 8. In all other cases in which the demand (exclusive of

interest, damages of whatever kind, atty’s fees, litigation expenses and costs) OR the value of the

property in controversy (basically if demand or value of prop exceeds the amounts below)

a. MM: exceeds 400k b. Outside MM: exceeds 300k

Original jurisdiction 1. Issuance of writs of certiorari, prohibitions, mandamus, quo warranto, habeas corpus and injunction which may

be enforced in any part of their respective regions 2. In actions affecting ambassadors and other public

ministers and consuls

Appellate jurisdiction Over all cases decided by MeTC, MuTC, MCTC in their respective territorial jurisdictions


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Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:

Exclusive Original

Jurisdiction

1. Civil actions and probate proceedings + grant of

provisional remedies in proper cases a. MM: value of the personal property or

estate or the amount of demand does not exceed 400k

b. Outside MM: value of the personal property or estate or the amount of demand does

not exceed 300k Note: interest, damages, atty’s fees, litigations expenses

and costs are NOT included in the determination of jurisdiction but are INCLUDED in the determination of filing

fees

2. Cases of forcible entry and unlawful detainer

Note: when defendant raises questions of ownership in his pleadings and the question of possession cannot be resolved

w/o deciding the issue of ownership, the issue of ownership shall be resolved ONLY to determine the issue of possession

3. Civil actions which involved the title to or possession

of real property or any interest therein a. MM: assessed value does not exceed 50k

b. Outside MM: assessed value does not exceed 20k

Note: Exclusive of interest, damages of whatever kind,

atty’s fees, litigation expenses and costs

Note: In case of land not declared for tax purposes, the

value of the property shall be determined by the assessed

value of the adjacent lots.

Family Courts:

Exclusive original

jurisdiction

1. Criminal cases where one or more of the accused is

below eighteen (18) years of age but not less than nine (9) years of age but not less than nine (9) years of age

or where one or more of the victims is a minor at the

time of the commission of the offense: Provided, That if the minor is found guilty, the court shall promulgate

sentence and ascertain any civil liability which the accused may have incurred. The sentence, however,

shall be suspended without need of application pursuant to Presidential Decree No. 603, otherwise known as the

"Child and Youth Welfare Code";

2. Petitions for guardianship, custody of children, habeas corpus in relation to the latter;

3. Petitions for adoption of children and the revocation

thereof;

4. Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status

and property relations of husband and wife or those living together under different status and agreements,

and petitions for dissolution of conjugal partnership of gains;

5. Petitions for support and/or acknowledgment; 6. Summary judicial proceedings brought under the

provisions of Executive Order No. 209, otherwise known as the "Family Code of the Philippines";

7. Petitions for declaration of status of children as

abandoned, dependent o neglected children, petitions

for voluntary or involuntary commitment of children; the suspension, termination, or restoration of parental

authority and other cases cognizable under Presidential Decree No. 603, Executive Order No. 56, (Series of

1986), and other related laws; 8. Petitions for the constitution of the family home;

9. Cases against minors cognizable under the Dangerous Drugs Act, as amended;

10. Violations of Republic Act No. 7610, otherwise known as the "Special Protection of Children Against Child Abuse,

Exploitation and Discrimination Act," as amended by

Republic Act No. 7658; and 11. Cases of domestic violence against:

a. Women - which are acts of gender based violence that results, or are likely to result in

physical, sexual or psychological harm or suffering to women; and other forms of

physical abuse such as battering or threats and coercion which violate a woman's personhood,

integrity and freedom movement; and b. Children - which include the commission of all

forms of abuse, neglect, cruelty, exploitation, violence, and discrimination and all other

conditions prejudicial to their development.

Sandiganbayan:

A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-

graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Sec. 2, Title


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VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government whether in a

permanent, acting or interim capacity, at the time of the commission of the

offense:

(1) Officials of the executive branch occupying the positions of regional

director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No.

6758), specifically including:

"(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors,

engineers and other provincial department heads;

"(b) City mayors, vice-mayors, members of the sangguniang

panlungsod, city treasurers, assessors engineers and other city

department heads;

"(c) Officials of the diplomatic service occupying the position of consul and higher;

"(d) Philippine army and air force colonels, naval captains, and all

officers of higher rank;

"(e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior

superintendent or higher;

"(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and

special prosecutor;

"(g) Presidents, directors or trustees, or managers of

government-owned or -controlled corporations, state universities or educational institutions or foundations;

(2) Members of Congress and officials thereof classified as Grade'27'and up

under the Compensation and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairmen and members of Constitutional Commissions, without

prejudice to the provisions of the Constitution; and

(5) All other national and local officials classified as Grade'27'and higher under the Compensation and Position Classification Act of 1989.

B. Other offenses or felonies whether simple or complexed with other crimes

committed by the public officials and employees mentioned in Sec. a of this Sec. in relation to their office.

C. Civil and criminal cases filed pursuant to and in connection with Executive Order

Nos. 1, 2, 14 and 14-A, issued in 1986.

In cases where none of the accused are occupying positions corresponding to salary grade '27' or higher, as prescribed in the said Republic Act No. 6758, or

military or PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court,

municipal trial court and municipal circuit trial court ' as the case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg.

129, as amended. "The Sandiganbayan shall exercise exclusive appellate jurisdiction over final

judgments, resolutions or orders or regional trial courts whether in the exercise

of their own original jurisdiction or of their appellate jurisdiction as herein

provided. "The Sandiganbayan shall have exclusive original jurisdiction over petitions for

the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate

jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order

Nos. 1,2,14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court.

The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may

hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the

Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through

its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.

In case private individuals are charged as co-principals, accomplices or

accessories with the public officers or employees, including those employed in govemment-owned or controlled corporations, they shall be tried jointly with

said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.

Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil

liability shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate

courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action

separately from the criminal action shall be recognized: Provided, however, That where the civil action had therefore been filed separately but judgment

therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be

transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the

separate civil action shall be deemed abandoned."


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Quasi Judicial Bodies

SEC: Securities and Exchange Commission

Section 5. Powers and Functions of the Commission.–

5.1. The commission shall act with transparency and shall have the powers and

functions provided by this code, Presidential Decree No. 902-A, the Corporation Code, the Investment Houses law, the Financing Company Act and other existing

laws. Pursuant thereto the Commission shall have, among others, the following powers and functions:

(a) Have jurisdiction and supervision over all corporations, partnership or associations who are the grantees of primary franchises and/or a license or

a permit issued by the Government;

(l) Issue subpoena duces tecum and summon witnesses to appear in any proceedings of the Commission and in appropriate cases, order the

examination, search and seizure of all documents, papers, files and records, tax returns and books of accounts of any entity or person under

investigation as may be necessary for the proper disposition of the cases before it, subject to the provisions of existing laws;

(n) Exercise such other powers as may be provided by law as well as those

which may be implied from, or which are necessary or incidental to the carrying out of, the express powers granted the Commission to achieve the

objectives and purposes of these laws.

5.2. The Commission’s jurisdiction over all cases enumerated under section 5 of

Presidential Decree No. 902-A is hereby transferred to the Courts of general jurisdiction or the appropriate Regional Trial Court:Provided, That the

Supreme Court in the exercise of its authority may designate the Regional Trial Court branches that shall exercise jurisdiction over the cases. The

Commission shall retain jurisdiction over pending cases involving intra-corporate disputes submitted for final resolution which should be resolved

within one (1) year from the enactment of this Code. The Commission shall retain jurisdiction over pending suspension of payment/rehabilitation

cases filed as of 30 June 2000 until finally disposed.

CSC:

Magpale, Jr vs. Civil Service Commission

The extent of the authority of CSC to review decision of the MSPB is now a settled manner. Under Sec 47, EO 292, CSC shall decide on appeal all

administrative cases involving the imposition of:

1. A penalty of suspension for more than 30 days

2. Fine in an amount exceeding 30 days salary 3. Demotion in rank or salary or transfer

4. Removal or dismissal from office Settled is the rule that a tribunal, board or officer exercising judicial functions

acts without jurisdiction if no authority has been conferred by law to hear and decide the case.

HLURB: House and Land Use Regulatory Board

Sandoval vs. Cañeba

the National Housing Authority (NHA), now known as House and Land

Use Regulatory Board (HLURB), it has exclusive jurisdiction to hear and decide a complaint for collection of unpaid installments against a

subdivision lot buyer, not the regular courts.

10. KINDS OF ACTION

As to CAUSE OF ACTION: -> Important in determining venue

Real Action An action affecting title to, possession of and interest in real

property

VENUE: place where the property lies

Personal Action Brought for 1. recovery of personal property

2. for the enforcement of some contract or recovery of damages for its breach

3. for the recovery of damages for the commission of

an injury to the person or property

VENUE:

1. place where the plaintiff or any of the principal

plaintiffs resides 2. the defendant or any of the principal defendants

resides, at the election of the plaintiff

As to the OBJECT -> Important in determining how one will be served summons

Action in Rem An action against the thing itself Judgment is binding against the whole world

Example: Accion Publiciana, Land registration proceedings

Action in An action against a particular person on the basis of his


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Personam personal liability

Jurisdiction over the defendant (and SM) is necessary

Example: Collection case

Action quasi in rem

An individual is named as defendant, and the purpose of the proceeding is to subject his interest therein to the

obligation or lien burdening the property

However, jurisdiction over the defendant is NOT required to confer jurisdiction over the court as lonjg as the court acquires

jurisdiction over the thing itself.

Example: Proceeding where the sole object is the sale of the

property of the defendant by attachment, foreclosure, etc. The

judgment entered in these proceedings is binding only between the parties. Also, quieting of title.

11. COMMENCEMENT OF ACTION: CONDITION PRECEDENT

Lumbuan v. Ronquillo

The prime objective of the Katarungnang Pambarangay Rules is to reduce the

number of court litigations In this case, the Lupon/Pangkat Chairman and Lupon/Pangkat Secretary signed

the Certificate to File Action stating that no settlement was reached by the parties.

While admittedly no pangkat was constituted, it was not denied that the parties met at the office of the Barangay Chairman for possible

settlement. o The efforts of the Barangay Chairman, however, proved futile as

no agreement was reached. Although no pangkat was formed

o There was substantial compliance with the law.

o It is noteworthy that under the aforequoted provision, the confrontation before the Lupon Chairman or the pangkat is sufficient

compliance with the precondition for filing the case in court

12. COMMENCEMENT OF ACTION: PAYMENT OF FILING FEE

Hinog v. Melicor (reiterating Sun Insurance)

GR: Payment of the prescribed docket fee is a jurisdictional requirement

EX: However, its non-payment at the time of filing does not automatically cause the dismissal as long as the fee is paid within the applicable reglementary

period

Sun Insurance Office, Ltd (SIOL) vs. Asuncion

Permissive counter-claims, third-party claims and the like shall not be considered filed until and unless the prescribed filing fee is paid. When the

judgment of the courts awards a claim not specified in the pleading, the additional filing fee shall constitute a lien on the judgment.

In the case at bar, a more liberal interpretation of the rules is called for considering Tiong demonstrated his willingness to abide by the rules

and pay the additional docket fees

13. CAUSE OF ACTION: RULE 2

Rule 2

Cause of Action A cause of action is the act or omission by which a party

violates a right of another

Elements of cause of action

Right, Obligation

to respect right, Violation of right

1. a right in favor of the plaintiff by whatever means and under whatever law it arises or is created;

2. an obligation on the part of the named defendant to respect or not to violate such right; and

3. an act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a

breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action

for recovery of damages.

SPLITTING a

cause of action

A party mat not institute more than one suit for a single cause

of action

Effects of

SPLITTING

The filing of one or a judgment upon merits in any one is

available as a ground for the dismissal of the others

Rule 16: MTD:

a. Bar by prior judgment (RES JUDICATA) b. Another action pending between the same parties for

the same cause (LITIS PENDENTIA)

JOINDER of

CAUSES of

ACTION

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:

1. The party joining the causes of action shall comply with the rules on joinder of parties;

2. The joinder shall not include special civil actions or actions governed by special rules;

3. Where the causes of action are between the same parties but pertain to different venues or


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jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of

action falls within the jurisdiction of said court and

the venue lies therein

4. Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed

shall be the test of jurisdiction

Effect of MISJOINDER of

causes of action

In this situation, there are actually two causes of action which were mistakenly joined.

Remedy: On motion of a party or in the court’s initiative, the

misjoined cause of action may be severed and proceeded with separately

Joseph v. Bautista: One injury = One cause of action

It is true that a single act or omission can be violative of various rights at the

same time. However, when there is only one delict or wrong, there is but a single cause of

action regardless of the number of rights that may have been violated belonging to one person

The singleness of a cause of action lies in the singleness of the delict or wrong vilating the rights of one person.

In the case at bar, there is no question that Joseph sustained a single injury on his person AND that vested him a single cause of action, even with the

correlative rights of action against the different respondents

Progressive v. CA:

P leased to W a parcel of land. W failed to pay rentals so P repossessed the leased premises. W then filed a complaint against P for forcible entry in the

MeTC. In the MeTC, the parties compromised and agreed that W would pay. W didn’t pay but it still filed an action for damages in the RTC against P.

Issue: Should an action for damages filed with the RTC by the lessee against the lessor be dismissed on the ground of the pendency of another action of forcible

entry with damages with the MeTC? YES

The RoC clearly provides that no claim for damages arising out of forcible entry or unlawful detainer may be filed separately and independently of

the claim for restoration of possession More importantly, the restoration of possession and demand for actual

damages in the MeTC and the demand from the RTC both arise from the same cause of action namely: the forcible entry of P into the leased

premises

Basically, the damages case was also based on the forcible entry, which was

W’s only cause of action. It was split so it was indeed a ground for dismissal.

CGR Corporation v. Treyes

C occupied a parcel of land and used it as his fishpond. T allegedly forcibly entered the premises. After dispossessing C, T carted away a lot of fish and

even defaced the chapel in the premises.

C filed with the MTC a complaint for forcible entry. Also, C filed a complaint for

damages in the RTC alleging that the intrusion caused him damage

Issue: Can C independently file a case for damages in the RTC for acts that were done by T after C was disposed? YES.

This is because the recoverable damages in forcible entry and detainer

cases refer to rents of the reasonable compensation for the use and occupation of the premises.

The only form of damages that may be recovered in a forcible entry action is the fair rental value or the reasonable compensation for the use and

occupation of the properties

In this case, C’s claim for damages have no direct relation to the loss of

possession of the premises because it had to do with T’s alleged harvesting and carting away several tons of milkfish in the fishponds, the destruction of the

chapel AFTER the act of dispossession There was no splitting of a cause of action in this case.

Uniwide Holdings, Inc vs Cruz

U, doing business in PARANAQUE, entered into a franchise agreement with C,

wherein C was granted a 5 year franchise agreement. In the agreement, it was stipulated that QC will be the venue of any action involving the agreement.

C bought goods from A. A assigned this receivable back to U. C failed to pay certain fees arising from the franchise agreement with U and arising from its

transaction with A. In response, U filed a case in RTC Paranaque to collect both on the transaction

arising from the FRANCHISE AGREEMENT and on the receivable that was ASSIGNED to it. C filed a MTD claiming that the courts of QC had exclusive

jurisdiction as per the agreement.

Issue: Should the case be dismissed on the ground of improper venue? NO

There are two causes of action here. One is U’s cause of action arising from C’s

breach of the franchise agreement. The second is U’s cause of action arising from the receivable that A assigned to it.

In this case, Rule 2 Sec 5 was applied to wit: Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the

joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein

This is PRECISELY what happened: cause of action 1 pertains to QC as per the venue agreement, cause of action 2 is covered by the general rule on venue:

place where the plaintiff resides. U was in its right to file the case in the RTC Paranaque (The joinder is allowed in this case)


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14. TOTALITY RULE: PERMISSIVE JOINDER OF PARTIES

Flores v. Mallare-Phillips (Made it conform to the present figures)

On Jan 2, in MM, A bought 154k worth of plastic from M. On Jan 3, B bought

255k worth of plastic from M. A and B refused to pay. M then filed a case against A and B (they were joined) in the RTC. M’s argument: totality of his

claims = 409k so its within RTC jurisdiction. A and B filed a motion to dismiss on the ground of RTC’s lack of jurisdiction,

alleging that the totality rule is inapplicable.

Issue: Does the RTC have jurisdiction? NO

A and B’s joinder was merely permissive.

To apply the totality rule: Requisites:

1. The cause of action in favor of a plaintiff against two or more defendants must arise out of the SAME TRANSACTION/SERIES of

TRANSACTIONS

2. There must be a COMMON QUESTION OF LAW ANF FACT In this case, M’s claim against A and B are borne out of separate transactions

so RTC did not have jurisdiction. Othewise put: where a claim in all causes of action in one pleading are

PRINCIPALLY for the recovery of money, the aggregate amount claimed shall be the test of jurisdiction, but the requisites must be fulfilled in case it is

against two or more defendants HOWEVER when one plaintiff sues one defendant and it is principally for

recovery of money, even if he has 10 causes of action, the totality of the claims the determining factor in jurisdiction.

Exercise:

a. A has a 299k money claim against B. In his complaint, A also asked for

1M in damages. Where should it be filed?

i. Answer: MTC. This is because the money claim is the main

of cause of action b. In Greenhills, D bought an ipod from F for 20k. D then bought an LCD

TV worth 200k from F. D again bought a computer for 300k from F. D failed to pay. Where should F file his collection case?

i. Answer: RTC. This is because the aggregate amount claimed is the test of jurisdiction. Amount: 520k. It does not matter

that it arose from the same transaction in this case.

PARTIES TO A CIVIL ACTION: RULE


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PARTIES TO A CIVIL ACTION

WHO MAY BE PARTIES

IN A CIVIL ACTION?

1. Natural Person

2. Juridical person (corporations, parts, State and its political subdivisions)

3. Entity authorized by law

WHO IS CONSIDERED

THE PLAINTIFF?

1. Claiming party

2. Counter-claimant 3. Cross-claimant

4. Third party plaintiff

THE DEFENDANT? 1. Original defending party

2. Defendant in counterclaim 3. Cross-defendant

4. Third party defendant

5. 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

o The party entitled to the avails of the suit General Rule: Every action must be prosecuted or defended in the name of

the real party in interest o Exception: Unless provided by law or these rules

6. PERSONALITY OR STANDING TO SUE

Evangelista v. Santiago: A was considered to lack personality to file action for

quieting of title because he had no legal or equitable title to the subject property

Domingo v. Carague

The petitioners in this case assail the legality of a resolution of the Commission on Audit providing for Organizational Restructuring Plan for being void and

lacking an enabling law. Petitioners Domingo and others are retired Chairmen/Commissioners of the

COA and they are assailing the resolution as concerned taxpayers Co-petitioners Matib and Sanchez are incumbent officers of the COA. They

allege that they were divested of their designations and ranks and subsequently caused financial prejudice

Issue: Do the petitioners have standing to sue? No.

The SC started to discuss the litany of political law cases wherein they held that

the petitioners in these various cases had standing to sue based on their constitutional rights (Chavez v. PEA) and that they had direct and substantial

interests to protect In this case, petitioners (the retired/former COA officers) have no shown any

direct and personal interest in the COA restructuring plan because there is no showing that they have sustained or are in imminent danger of sustaining

some direct injury as a result of the implementation of the plan

o In fact, they admitted that they did not seek affirmative relief from COA. They clearly have no standing

o As the incumbent COA officers, it was held that they were not demoted

7. REPRESENTATIVE PARTIES

REPRESENTATIVE

PARTIES

Where the action is allowed to be prosecuted or defended by a

representative or someone acting in a fiduciary capacity

The beneficiary shall be included in the title of the case and shall be deemed the real party in interest

WHO IS A

REPRESENTATIVE?

1. Trustee of express trust

2. Guardian 3. Executor/Administrator

4. Party authorized by law/these rules 5. Agent acting in his own name and for the benefit of an

undisclosed principal a. Except when the contract involves thing belonging

to the principal

Oposa v. Factoran

The plaintiffs in this case are all minors duly represented and jointed by their respective parents and the defendant is Sec Alcala of the DENR

o They also claim to represent their generation as well as generation yet unborn

In this class suit, they pray for the DENR to cancel all existing timber license agreements in the country and as their cause of action, they cite the

Constitution recognizing the right of the people to a balanced and healthful ecology

The DENR Sec argues that the plaintiffs have no standing

Issue: Do the plaintiffs have standing?

The SC ruled that the civil case was indeed a class suit because the subject matter of the complaint is of common and general interest to all citizens of the

Philippines Doctrine: The SC also ruled that the plaintiffs are within their right to file a

class suit for their generation and for the succeeding generations This is based on the concept of intergenerational responsibility insofar as the

right to a balanced and healthful ecology is concerned

The complaint also has a cause of action for the petitioners detailed that their right to a balanced and healthful ecology was/is clearly violated by the TLAs

Sec 4: Spouses as parties: Husband and wife shall sue or be sued jointly, except

as provided by law Sec 5: Minor/Incompetents: A minor or a person alleged to be incompetent may

sue or be sued, with the assistance of his father, mother, guardian or guardian ad litem.


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8. INDISPENSABLE PARTIES AND NECESSARY PARTIES

INDISPENSABLE PARTY

NECESSARY PARTY

Definition One whose interest will be

affected by the court’s action in the litigation, and without whom

no final determination of the case can be had. They have to be

included

One who is not indispensable

but ought to be joined as a party if complete relief is

to be accorded as those already parties, or for a

complete determination/settlement

of the claim subject of the action

Effect if not included

The absence of an indispensable party renders all subsequent

actions of the court null and void.

HOWEVER Non-joinder of indispensable parties is NOT a

ground for dismissal because parties may be added upon order

of the court or upon motion at ANY STAGE of the proceedings

The court can still validly proceed even in the absence

of a necessary part

Remedy The remedy in a case of non-joinder of an indispensable party

is to implead the non-party claimed to be indispensable.

This has the curing effect.

Implead the proper party!

9. PERMISSIVE JOINDER OF PARTIES

Sec 6: Permissive Joinder of Parties:

All persons in whom or against whom any right to relief in respect to or

arising out of the same transaction or series of transactions is alleged to exist, whether 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 such 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

Permissive joinder of parties requires that: (Regalado Compendium)

(a) the right to relief arises out of the same transaction or series of transactions;

(b) there is a question of law or fact common to all the plaintiffs or defendants; and

(c) such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue

10. EFFECTS OF MISJOINDER AND NON-JOINDER OF PARTIES

Sec 11: Misjoinder and non-joinder of parties:

Neither misjoinder nor non-joinder of parties is ground for dismissal of an

action. Parties may be dropped or added by order of the court on motion of any party

or on its own initiative at any stage of the aftion and on such terms as are just Any claim against a misjoined party may be severed and proceeded with

separately

11. CLASS SUITS

Elements of Class suit

1. That the subject matter of the controversy be one of common or general interest to many persons

2. That such persons be so numerous as to make it impracticable to bring them all to court

Mathay v. Consolidated Bank

An action does become a class suit merely because it is designated as such for it depends on the attending facts and the complaint

In this case, the complaint did not state the number of said CMI subscribing stockholders so that the trial court could not infer that the parties actually

before it were sufficiently numerous and representative

Further, each one of the appellants and the CMI stockholders had determinable interest for each one had a right only to his respective

portion of the stocks. Not one of them had any right to the stock to which another was entitled.

Also, ―separate wrongs to separate persons” although committed by similar means and even pursuant to a single plan do not create a

general interest as to entitle them to a class suit.

12. DEFENDANTS

Sec. 10. Unwilling co-plaintiff.

If the consent of any party who should be joined as plaintiff cannot be obtained, he may be made a defendant and the reason therefor shall be stated in the

complaint.


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Sec. 13. Alternative defendants.

Where the plaintiff is uncertain against who of several persons he is entitled

to relief, he may join any or all of them as defendants in the alternative, although

a right to relief against one may be inconsistent with a right of relief against the other.

Sec. 14. Unknown identity or name of defendant.

Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the case

may require; when his identity or true name is discovered, the pleading must be

amended accordingly

Sec. 15. Entity without juridical personality as defendant.

When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by

which they are generally or commonly known.

In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed.

13. DUTY OF COUNSEL WHEN PARTY DIES + EFFECT OF NON-SUBSTITUTION OF

DECEASED PARTY

Sec. 16. Death of party; duty of counsel.

Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within

thirty (30) days after such death of the fact thereof, and to give the

name and address of his legal representative or representatives.

Failure of counsel to comply with this duty shall be a ground for disciplinary action.

The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or

administrator and the court may appoint a guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice.

If no legal representative is named by the counsel for the deceased

party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time,

to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and

on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing

party, may be recovered as costs.

Hinog v. Melicor:

In this case, it must be remembered that Bertuldo Hinog died and he was

substituted by his heirs However, no formal substitution of the parties was effected within 30 days from

Bertuldo’s death as required by the RoC. o This rule on substitution is based on the right to due process. It is

to ensure that the deceased party would continue to be properly represented in the suit through his duly appointed legal representative

o Non-compliance with the rule on substitution would render the proceedings infirm because the court acquires no jurisdiction

over the persons of the legal representative on whom the trial and judgment would be binding

De la Cruz v. Joaquin

Doctrine: The general rule is that proceedings wherein no substitution is made

upon death of the original party are null and void Doctrine: However, a formal substitution by heirs is NOT necessary

when they themselves voluntarily appear, participate in the case and present evidence.

o These actions negate any claim that the right to due process was violated

Doctrine: Strictly speaking, the rule on the substitution by heirs is not a matter of jurisdiction but a requirement of due process. Thus, when due

process is not violated, as when the right of the representative is protected, non-compliance or belated formal compliance with the rules cannot affect the

validity of a promulgated decision. o Mere failure to substitute for a deceased plaintiff is not a

sufficient ground to nullify a trial court’s decision. N.B. as compared with the Hinog ruling, I think the SC wants to reiterate that

the rule on substitution is for the deceased party. Whether or not right to due

process was violated. Depends on the case.

Limbauan v. Acosta

It is well settled that the failure of counsel to comply with his duty under Section 16 to inform the court of the death of his client and no substitution of

such party is effected, will not invalidate the proceedings and the judgment thereon if the action survives the death of such party.

14. OTHERS: ROUNDING OUT RULE 3

Sec. 17. Death or separation of a party who is a public officer.

When a public officer is a party in an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office,


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o The action may be continued and maintained by or against his successor IF within thirty (30) days after the successor takes office

or such time as may be granted by the court,

It is satisfactorily shown to the court by any party that:

there is a substantial need for continuing or maintaining it AND

that the successor adopts or continues or threatens to adopt or continue the action of his

predecessor. Before a substitution is made, the party or officer to be affected shall be

given reasonable notice of the application therefor and accorded an opportunity to be heard.

o unless the party/officer affected assents to the substitution

Sec. 18. Incompetency or incapacity Keyword: The action may be allowed to

continue

If a party becomes incompetent or incapacitated,

o The court, upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated

person assisted by his legal guardian or guardian ad litem.

Sec. 19. Transfer of interest Keyword: The action may be continued against the original party

In case of any transfer of interest,

o The action may be continued by or against the original party, unless the court upon motion directs the person to

whom the interest is transferred to be substituted in the action or joined with the original party.

Sec. 20. Action on contractual money claims.

When the action is for recovery of money arising from contract, express or implied

And the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death,

o It shall not be dismissed but shall instead be allowed to continue until entry of final judgment.

A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the

estate of a deceased person.

Sec. 21. Indigent party. Keyword: Court must be satisfied that the party is poor

A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied

that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family.

Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court

may order to be furnished him.

o The amount of the docket and other lawful fees which the indigent was

exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise

provides. Any adverse party may contest the grant of such authority at any time before

judgment is rendered by the trial court. If the court should determine after hearing that the party declared as an

indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court.

If payment is not made within the time fixed by the court, execution shall issue for the payment thereof, without prejudice to such other sanctions as the court

may impose.

Sec. 22. Notice to the Solicitor General.

In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations,

o The court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through a

representative duly designated by him.

15. VENUE: RULE 4

Venue: place where the action is to be commenced/instituted and tried. The place

of trial and geographical location on which an action should be brought.

Jurisdiction Venue

Power and authority of court to hear and

try the case

Place/Geographic location where the

case is to be tried, the locality or where

the suit may be had

Goes into the substance of the case Touches more on the convenience of the parties

Jurisdiction over the SM cannot be

waived, only conferred by law AND jurisdiction over the nature of the action

is also not waivable

May be waived and agreed upon

Venue of Actions

REAL PERSONAL: RESIDENCE

AND NOT DOMICILE AGAINST NON-

RESIDENTS

Court which has jurisdiction over the area

where the property, or a portion thereof is situated

1. Where the plaintiff or any of the principal

plaintiffs resides 2. Where the defendant/

1. commenced and tried in the court

of the place where the


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any of the principal defendant resides

(at election of plaintiff)

plaintiff resides 2. Where the

property/any

portion thereof is

found

Conditions:

1. Defendant: non-

resident 2. Not found in the

Philippines 3. Action affects

personal status of plaintiff

OR

The property of defendant is in the

Philippines

These rules are INAPPLICABLE when:

a. A law/rule provides otherwise b. Where the parties have validly agreed in writing on the exclusive

venue BEFORE the filing of the action

Diaz vs. Adiong: Improper venue is waivable but it is a ground for dismissal

Unless and until the defendant objects to the venue in a motion to dismiss prior to a responsive pleading, the venue cannot truly be said

to have been improperly laid. In this case, the motion to dismiss was belatedly filed and could no longer

deprive the court of its jurisdiction. Well-settled is the rule that improper venue may be waived and such

waiver may occur by laches.

Legsapi v. Republic

As regards restrictive stipulations on venue, jurisprudence instructs that it must show that such stipulation is exclusive.

In the case at bar, the venue is specific (Quezon City) and accompanied by the words ―the Contractor hereby expressly waiving any other venue‖ which

connotes exclusivity. The terms clearly stipulate exclusively the venue where action arising from the

Construction Agreement should be filed.

16. WAIVER OF IMPROPER VENUE

Express Waiver or Implied Waiver

Dacoycoy vs. IAC

It also had jurisdiction over Dacoycoy the moment he filed his complaint for

annulment and damages.

Dismissing the complaint on the ground of improper venue is not the right course of action, particularly because venue in inferior courts as well as RTC,

may be waived expressly or impliedly. Where defendant fails to challenge timely the venue in a motion to dismiss as

provided in Sec 4, Rule 4 Rules of Court and allows the trial to be held and a decision to be rendered, he cannot appeal or in a special action be permitted to

challenge belatedly the wrong venue, which is deemed waived. So, unless the defendant objects to the venue in a motion to dismiss, the venue

cannot truly be said to have been improperly laid, as for all intents and purposes, the venue, though technically wrong may be acceptable to the

parties.

The court cannot pre-empt the defendant’s prerogative to object to the

improper laying of the venue by motu proprio dismissing the case, as what happened in this case

Rules Involved:

Rule 6: Kinds of pleadings Rule 7: Parts of a pleading

Rule 8: Manner of making allegations in pleadings Rule 9: Effect of Failure to Plead

Rule 11: When to File Responsive Pleadings

What is a pleading? (Rule 6, Sec 1)

It is a written statement of the respective claims and defenses of the parties submitted to the court for appropriate judgment (It’s basically the paper

filed to either BEGIN or ANSWER a civil action)

What is a motion? (Rule 15, Sec 1)

On the other hand, a motion is an application for relief other than a pleading.

(Basically, a motion is a request made to the Court for an Order compelling the other side to do something or compelling the court to do something)

Where can parties assert their claim? (Rule 6 Sec 2)

1. Complaint (this is the pleading alleging the plaintiff’s cause of action, more on

this below) 2. Counterclaim

3. Cross-claim

4. Third (fourth) party complaint

5. Complaint in intervention

What are the parts of the pleading? (Rule 7, Sec 1-5)


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Caption: Sets forth: The name of the court

Title of the action

This shall indicate the names of the parties

HOWEVER in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an

indication that there are other parties (Juan Cruz et al v. John Doe et al)

Docket # if assigned Body: Sets forth:

The designation of the pleading (is it a complaint, counterclaim etc?) The allegations of the party’s claims or defenses

The relief prayed for Date of the pleading

The RoC sets some guidelines as regards the organization/formatting

Paragraphs The allegations in the body must be divided into numbered

paragraphs as to be readily identified

Headings When two or more causes of action are joined, the statement of the first shall be prefaced by the words ―first cause of action‖ and

so forth. The same goes for answers. ―answer to first cause of action‖

Relief The pleading shall specify the relief sought and a general prayer for other relief

Dated Every pleading must be dated

Signature Every pleading must be signed by the party or his counsel, stating

in either case his address which must not be a post office box

Effect of unsigned pleading: USELESS. No legal effect

Exception: The court may allow this to be remedied if it shall appear that the failure to sign was only due to inadvertence

and not intended for delay

Verification An affiant asserts in an affidavit that he has read the pleading and that the allegations therein are true and correct based on his

personal knowledge or authentic record

GR: pleadings need not be under oath and verified EX: when specifically required by law to be verified ((Petition to

take deposition before action, Petition for certiorari, Prohibition or Mandamus, Pleadings in summary procedure, etc: the list is

comprehensive: http://lawinnovations.wordpress.com/2009/11/19/verifiedpleadin

gs/

If not verified when required, the pleading can be dismissed out right.

Certification against

Required only for the complaint or initiatory pleading

forum shopping

Forum Shopping: Undertaking of certification

1. That he has not 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

action or claim is pending therein 2. If there is such an action/claim, he must completely state its

present status 3. If he should learn that the same or similar action or claim has

been filed or is pending, he shall report that fact w/in 5 days to the court where his complaint or initiatory pleading has

been filed

Effect of failure to compl

FORUM SHOPPING

Forum

Shopping:

As a result of an adverse decision in one forum, or in anticipation

thereof, a party seeks a favorable opinion in another forum through means other than appeal or certiorari

Effect of lack of or failure

to comply with the

certification

Failure to comply is not curable by mere amendment of the complaint/initiatory pleading.

Instead, it is a cause for DISMISSAL of the case without

prejudice, unless otherwise provided, upon motion and after hearing (not summary, unlike if it is willful and deliberate)

Effect of

submission of false

certification or non-

compliance

Indirect contempt of court and possible administrative and

criminal actions

If willful, it is a ground for summary dismissal with prejudice and shall constitute direct contempt

Rule 8: Manner of making allegations in pleadings

How are allegations

made in pleadings

Every pleading shall contain a plain, methodical, plain, concise and direct statement of the ultimate facts on

which the party relies for his claim or defense

Evidentiary facts should be omitted.

If a defense relied on is based on law, the provisions thereon and their applicability to him shall be clearly and concisely stated.

Ultimate facts Facts which directly form the basis of the right sought to be enforced, or the defense relied upon.

http://lawinnovations.wordpress.com/2009/11/19/verifiedpleadings/

http://lawinnovations.wordpress.com/2009/11/19/verifiedpleadings/


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Capacity Facts showing the capacity of a party to do the following must be averred:

a. To sue or be sued

b. Authority to sue or be sued in a representative

capacity c. Legal existence of an organized association of

persons

A party desiring to raise an issue as to the legal existence of any party or the capacity of the party to sue or be sued in

a representative capacity shall do so by specific denial (include supporting particulars that are within the pleader’s

knowledge)

Alternative

claims or

defenses

A party may set forth two or more statements of a claim or

defense alternatively or hypothetically either in one cause of

action or defense OR in separate causes of action or defenses

When two or more statements are made in the alternative and

one of them if made independently would be sufficient, the

pleading is not made insufficient by the insufficiency of one or more of the alternative statements

Alternative pleading permits a party in a court action to argue

multiple possibilities that may be mutually exclusive by making use of legal fiction.

Pleading in the alternative: sets forth multiple claims or

defenses either hypothetically or alternatively such that if one of the claims or defenses are held invalid, the others should still

have to be answered

Performance of condition

precedent

In any pleading, a general statement of the performance or occurrence of all conditions precedent shall be sufficient.

Averments of

fraud, mistake or condition of

mind

In all averments of fraud or mistake, the circumstances

constituting fraud or mistake must be stated with particularity.

However, malice, intent, knowledge or other condition of the mind of a person may be generally averred

Pleading judgments

In pleading a judgment or decision of a domestic/foreign court, judicial, quasi judicial tribunal, or of a board or officer, it is

SUFFICIENT to aver the judgment or decision w/o setting forth

matter showing jurisdiction to render it.

Official

documents

In pleading an official document/act, it is sufficient to aver that

the document was issued or the act done in compliance with law.

Action or

defense based on document

(Actionable

Whenever an action or defense is based on a written

instrument/document, the substance of such instrument shall be set forth in the pleading.

Document)

Need to bring

in new parties

in

counterclaim or cross claim

When the presence of parties other than those to the original

action is required for the granting of complete relief in the

determination of a counterclaim or cross-claim, the court shall

order them to be brought in as defendants, if the court can get jurisdiction over them.

17. SUBSTANTIAL REQUIREMENTS OF PLEADINGS: THE COMPLAINT

Complaint: The complaint is the pleading alleging the plaintiff’s cause/s of action.

The names and residences of the plaintiff and defendant must be stated in he complaint. As stated beforehand, the complaint must be organized, concise and

straight to the point, only including the ultimate facts relied upon. Further, the capacity of parties to sue/be sued must be averred.

Reyes v. RTC of Makati: Allegations in complaint determine jurisdiction of

the court

However, the rule provides that in all averments of fraud or mistake, the circumstances must be stated with particularity.

o Rodrigo alleged the following in his complaint: ―This is a complaint to determine the shares of stock of the

deceased spouses Reyes that were arbitrarily and fraudulently appropriated for himself x x x‖

Oscar through other schemes of fraud, unilaterally took possession and control of the management of Zenith‖

By some manipulative scheme, the shares of the mother was transferred solely in Oscar’s name‖

It is clear that these allegations of fraud are not properly supported by the required factual allegations. They are not particular enough to

confer jurisdiction on RTC Makati, a special commercial court. Rodrigo failed to show that the corporation’s nature, structure or powers were

used to facilitate the fraudulent scheme.

In essence, Oscar, as an individual, was alleged to have transferred the shares

of Anastacia to his name, allowing him to become the majority stockholder. The complaint should’ve shown on its face what are claimed to be the

fraudulent corporate acts in order to invoke RTC Makati’s jurisdiction. Unfortunately, Rodrigo was given the opportunity to amend his complaint but

he refused. The court’s function in resolving issues of jurisdiction is limited to the

review of the allegations of the complaint, and on the basis of

allegations, to the determination of whether they fall within the terms of law defining the court’s jurisdiction. Therefore, RTC does NOT have

jurisdiction.

http://en.wikipedia.org/wiki/Mutually_exclusive

http://en.wikipedia.org/wiki/Legal_fiction


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18. SUBSTANTIAL REQUIREMENTS OF PLEADINGS: THE ANSWER

Answer (Rule 6 Sec 4-5) It is a pleading wherein a defending party sets forth his

defenses

What are the types of defenses?

1. Negative: A specific denial of the material facts/facts alleged in the pleading of the claimant essential to his cause/s of action

How are negative defenses alleged:

SPECIFIC DENIAL a. A defendant must specify what material allegation he denies and state his basis therefore

b. If he wishes to deny only a part of an averment, he shall specify what’s true and what he denies

c. If he is without knowledge/information sufficient to form a belief as to the truth of a material averment, he shall

state this and this shall operate as a denial

Effect of failure to deny: ADMISSION

QUESTIONING

CAPACITY OF

PLAINTIFF TO SUE

A party desiring to raise an issue as to the legal existence

of any party or the capacity of the party to sue or be sued in a representative capacity shall do so by specific

denial (include supporting particulars that are within the pleader’s knowledge)

QUESTIONING THE

GENUINENESS OF

THE DOCUMENT

The genuineness and due execution of the instrument shall be deemed admitted when an action or defense is founded

upon a written instrument (an actionable document)

UNLESS: the adverse party, under oath, specifically denies them and sets forth what he claims to be the facts -> this

denial must be verified

Requirement of oath not needed when:

a. The adverse party does not appear to be a party to he instrument

b. When compliance with a court order for an inspection of the original instrument is refused

NEGATIVE

PREGNANT:

A denial pregnant with the admission of the substantial facts

in the pleading responded to which are NOT squarely denied.

Memita v. Masongsong

M supplied RM with chicken on credit. M then filed a complaint alleging that RM’s credit has already reached 600k and that RM refused to pay.

RM did not deny that he purchased goods on credit BUT his refusal to pay was due to questionable deliveries and such. RM failed to show a sales invoice which

substantiated his claim of questionable/short deliveries.

The sales invoices were presented as evidence by M and their genuineness and

due execution were deemed admitted for RM’s failure to deny them. The SC ruled that RM’s answer failed to deny or contest the

genuineness/due execution of any of the receipts or any of the signatures. RM, in alleging questionable and short deliveries,

essentially alleges that M committed fraud. o However, he failed to substantiate it as he chose to present

evidence which did not set forth the facts nor substance of matters upon which to support his denial as required by Rule 8

Sec 8. (RM only presented the load order and issue form, which cannot be considered as his order as he can still call up SMC for

more orders)

The best evidence of their transactions were the sales invoices because it

showed that RM acknowledged receipt of M’s deliveries without protest. He failed to prove fraud. The lower courts did not err in admitting the evidence.

Philippine American general Insurance Co. v Sweet Lines

A maritime suit was commenced by petitioner Philippine American General

Insurance (Philamgen) and Tagum Plastics against respondents Sweet Lines and (carrier) Davao Veterans Arrastre and Port Services (arrastre operator)

seeking recovery of cost of lost or damaged goods COMPLAINT: It is alleged that Tagum Plastics ordered shipments of

Polythylene. Only 5.8k bags out of the 7k bags, however, were in good condition.

ANSWER: SLI, in its answer, raised the defense of prescription as per the bill of lading which provided:

o Bill of lading provides that claims for misdelivery, loss or damage must be filed within 30 days from accrual. Suits arising from shortage,

damage, or loss, etc shall be instituted within 60 days. Failure to file

claims or institute judicial proceedings constitutes a waiver of right of action

o Further, even if the bills of lading were not formally offered in evidence, the CA ruled that the litigation obviously depended on them

and that Sweet Lines seasonably raised prescription in its answer. REPLY: Petitioners stated that these were contracts of adhesion so they should

be declared null and void for being against public policy The RTC ruled in favor of the petitioners and ordered the respondents to pay.

The CA however dismissed the complaint on the ground of prescription, as provided in the bill of lading.

Petitioners argue that the CA erred in upholding, without proof of the existence of the so-called prescriptive period and hypothetically, even if there was, it is

null and void, and even if it was valid, that they complied therewith

Issue: Can Sweet Lines maintain prescription as a defense?


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In its reply, petitioner failed to specifically deny the existence of the bills of lading. This amounts to an admission. Judicial admissions made by parties in

the pleadings/course of the trial are conclusive, no evidence being required to

prove the same.

Moreover, when the due execution and genuineness of an instrument are deemed admitted because of the adverse party’s failure to make a specific

verified denial thereof, the instrument need not be formally presented as evidence .

Even granting that petitioner’s averment in its reply amounts to a denial, it is a pleading called a negative pregnant, a denial with the admission of the

substantial facts in the pleading responded to which are not squarely denied. While petitioners objected to the validity of the agreement for being

contrary to public policy, the existence of the bills of lading/stipulations were nevertheless impliedly admitted by them.

It follows therefore that the non-inclusion of the bills of lading in the formal

offer of evidence cannot, be considered a fatal procedural error as to bar Sweet

Lines from raising the defense of prescription. Also, it was proven that petitioner failed to file a notice of clam within the

prescribed period and did not even allege that it did. CA affirmed.

d. Affirmative: An allegation of a new matter which, while hypothetically admitting the material allegations in the claimant’s pleading, would

nevertheless prevent recovery by him.

Examples: FRIED-PP a. Fraud

b. Prescription c. Release

d. Payment e. Illegality

f. Estoppel g. Discharge in bankruptcy

h. Any other matter by way of confession/avoidance

e. Implied Admissions (Rule 9 Sec 1)

General Rule Defenses and objects not pleaded either in a motion to dismiss

or in an answer are deemed waived

Exception: The court will DISMISS the claim if it appears from the

pleadings or the evidence on the record that:

a. The court has no jurisdiction over the subject matter

b. That there is another action pending between the parties for the same cause

c. That the action is barred by prior judgment d. That the action is barred by prescription

f. Periods to plead (Rue 11 Sec 1-3)

ANSWER OF

DEFENDANT Within 15 days after service of summons UNLESS a different period is fixed by the court

ANSWER OF A

DEFENDANT

FOREIGN PRIVATE

JURIDICAL ENTITY

Must be filed within 30 DAYS after receipt of such summons by

such entity

ANSWER TO AN

AMENDED

COMPLAINT

1. When plaintiff files an amended complaint AS A MATTER OF RIGHT: defendant has 15 days after being served a copy of

the amended complaint 2. When plaintiff files an amended complaint and it’s not a

matter of right: defendant has 10 days from notice of the

order admitting the amended complaint

Note: An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed.

g. Waiver of defenses (Rule 9 Sec 2): A compulsory counterclaim, or a cross-

claim, not set up shall be barred

19. SUBSTANTIAL REQUIREMENTS OF PLEADINGS: COUNTERCLAIM

Counterclaim (Rule 6 Sec 6): A counterclaim is any claim which a defending party

may have against the opposing party

How is a counterclaim raised?

Included in the

answer

A counterclaim may be asserted against an original counter

claimant (counter-counter claim)

A cross-claim may also be filed against an original cross

claimant

After the answer A counterclaim or a cross-claim which either matured or was

acquired by a party after serving his pleading may, with the

court’s permission, be presented as a counterclaim or a

cross-claim by supplemental pleading before judgment

What should the plaintiff do when a counterclaim is filed?

He should file an answer, because against the counterclaim, he is the defendant. He

has 10 days from service. (Rule 11 Sec 4)

20. KINDS OF COUNTERCLAIMS

COMPULSORY COUNTERCLAIM PERMISSIVE

COUNTERCLAIM

DEFINITION It is one which, being cognizable by the regular courts of justice,

arises out of or is connected with the transaction or

The permissive counterclaim arises from

an event unrelated to the matter on which


18

occurrence constituting the subject matter of the

opposing party’s claim and

does not require for its

adjudication the presence of third parties of whom the

court cannot acquire jurisdiction

Note: The counterclaim must

also be within the jurisdiction of the court both as to the amount

and to the nature thereof, except that in an original action

before the RTC, the counterclaim

may be considered regardless of

the amount.

the plaintiff's suit is based.

This is not barred even if

not pleaded

ELEMENTS: a. It arises out of or is

necessarily connected with,

the transaction or occurrence which is not the

subject matter of the opposing party’s claim

b. It does not require for its adjudication the presence of

third parties of whom the court cannot acquire

jurisdiction c. The court must have

jurisdiction to entertain the claim

Questions to test if its

compulsory/permissive:

a. Are the issues of fact/law raised by the

counterclaim the same?

b. Would res judicata bar a subsequent suit

on defendant’s claim even without the

compulsory counterclaim rule?

c. Will substantially the same evidence

support/refute plaintiff’s claim as

well as defendant’s counterclaim?

d. Is there any logical relation between the

claim and the counterclaim?

IF NO, then its

permissive.

REMEDY FOR

FAILURE TO RAISE

GR: a compulsory counterclaim

not set up is barred

EX: when the pleader fails to set up the counterclaim/cross-claim

through the following,

a. Oversight

File an independent action

since it involves different issues anyway

b. Inadvertence c. Excusable neglect

d. When justice requires

He may, by leave of court, set the counterclaim/cross by

amendment BEFORE judgment

NATURE: Generally: A compulsory

counterclaim is auxiliary to the proceeding in the original suit

and merely derives it jurisdictional support therefrom

Not auxiliary as it arises

from an unrelated event to the basis of plaintiff’s

suit

Note: A plaintiff sues a defendant in a civil action. A defendant, as per the RoC has the right to assert a legal claim of his own against the plaintiff. This is the

counterclaim. This makes assertions that the defendant could have made if the plaintiff did not sue first. This is different from a defense because a defense merely

seeks to DEFEAT the plaintiff’s law suit. The compulsory counterclaim arises from the same transaction or occurrence that forms the basis of the plaintiff’s suit.

Maceda v. CA

V leased his house to M and let him remodel it, subject to reimbursement. V

died and M was informed that the house was sold to G but M did not want to leave. G filed an ejectment case against M in the MeTC.

M insisted on being reimbursed for the value of his improvements and set up a counterclaim for 240k. MeTC granted the counterclaim and ordered

reimbursement

Issue: Did the MeTC, in an ejectment case (over the lessee’s counterclaim for the value of improvements), exceed the court’s jurisdictional limit of P20k?

SC held that the MeTC did not have jurisdiction over the counterclaim as it

exceeded 50k. A counterclaim in the MeTC/MTC beyond its jurisdictional limit may be pleaded

ONLY by way of defense, but not to obtain affirmative relief.

21. REPLY

Reply: It is a pleading which denies or alleges facts in denial or avoidance of

new matters alleged by way of defense in the answer. It joins/makes issue as

to the new matters.

If a party does not file such reply, all the new matters alleged in the answer are deemed controverted/challenged

If the plaintiff wishes to interpose any claims arising out of the new matters so

alleged, such claims shall be set forth in an amended/supplemental complaint.

Is a reply required?


19

It is generally optional.

But it is required when an action/defense is founded upon a written

instrument BECAUSE the written instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them and sets

forth what he claims to be the facts (Rule 8 Sec 8)

Casent Realty v. Philbanking (Instance when a reply has to be made in order to specifically deny the authenticity of an actionable document)

C issued a PN in favor of R. R couldn’t collect so he filed a collection case.

C answered he and R already executed a dacion as regards his loan and C even presented supporting documents for this.

SC ruled that because R did not reply and specifically deny the supporting

documents of the dacion, its genuineness and due execution was deemed

admitted. This is an instance when a reply has to be made in order to deny the answer which is based on an actionable document.

22. THIRD/FOURTH PARTY COMPLAINT

3rd/4th Party Complaint (Rule 6 Sec 11): A claim that a defending party may, with leave of court, file against a person not a party to the action (called the third,

fourth party defendant for): CISA Contribution

Indemnity Subrogation

Any other relief o In respect of his opponent’s claim

What is done in response to a third/fourth party complaint?

Rule 6 Sec 13: A third/fourth-party defendant may allege in his answer

his: i. Defenses

ii. Counterclaims/cross claims iii. Defenses that that the 3rd/4th party plaintiff may have against

the original plaintiff’s claim iv. In proper cases, he may also assert a counterclaim against

the original plaintiff in respect of the original plaintiff’s claim against the third party plaintiff

1. The answer must be filed 15 days after service of summons

Remedy if dismissed: If the original plaintiff appeals the dismissal of his

complaint, the defendant-third party plaintiff must also appeal to get affirmative relief

Extension of time to plead (Rule 11 Sec 11): Court may extend upon motion and on such terms as may be just. Court may also allow a

pleading/answer to be filed beyond the fixed time.

23. FORMAL REQUIREMENTS: FILING AND SERVICE OF PLEADINGS, MOTIONS AND

ORDERS

Verification (Rule 7 Sec 4): A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his

personal knowledge OR based on authentic records

Forum shopping: (reiterated): Forum shopping consists of filing multiple suits involving the same parties for the same cause of action, either simultaneously or

successively for the purpose of obtaining a favorable judgment

Elements of Forum Shopping: (Ao-As v. CA)

1. Identity of parties

2. Identity of rights asserted/relief prayed for 3. Identity of two preceding particulars, such that any judgment rendered in the

other action will amount to res judicata in the action under consideration

How is forum shopping committed?

1. Litis Pendentia: Filing multiple cases based on the same action and with the same prayer, the previous case not having been resolved yet

2. Res Judicata: Filing multiple cases based on the same cause of action/prayer, the previous case having been finally resolved

3. Splitting: Filing multiple cases based on the same cause of action but with different prayers

PAL v. Flight Attendants and Stewards Assoc of the Phils (FASAP)

FASAP and Bhagwani filed a case against PAL for unfair labor practice, illegal

suspension and dismissal in NLRC. NLRC ruled in favor of FASAP and ordered payment of damages. NLRC then modified the finding that PAL was guilty of unfair

labor practice. PAL appealed to the CA. The certificate of non-forum shopping that accompanied this appeal is what is at issue in this case. The CNFS was

signed by the VP of Human Resources and the AVP of Cabin Services of PAL without showing that they had authority to sign for PAL. Because of this, the

appeal was dismissed. An MR was filed but with this time accompanied by a board resolution which showed that he two had authority. This was again dismissed. The

SC held that only individuals vested with authority by a valid board resolution may sign the CNFS in behalf of the corporation. The belated submission of the

resolution was sufficient ground for dismissal. Further, at the time the

CNFS was filed, the two really didn’t have authority. An invalid CNFS cannot

be remedied by the subsequent submission of the Resolution

24. FILING AND SERVICE OF PLEADINGS


20

Rule 13: Filing and Service of Pleadings, Judgments and other Papers

Rule 13 governs the filing of all pleadings and other papers as well as the service

thereof, except those for which a diff mode of service is prescribed.

Filing Act of presenting the pleading/other paper to the clerk of court. The manner would be presenting the original copies of

the papers personally to the clerk of court or through registered mail.

Service The act of providing a party with a copy of the pleading/paper concerned. If a party has counsel, service

must be made on the counsel UNLESS the court orders the service to be made to the party himself.

Service is done either: (R13 S11: Whenever practicable, the service and filing of pleadings shall be done PERSONALLY. A resort to other means

must be accompanied by an explanation)

Personally: 1) personally delivering a copy to the party or his counsel

2) leaving a copy in his (party/counsel) office with

a person having charge thereof

3) if no one is at the office, then at the party’s/counsel’s

residence, with a person of sufficient age/discretion

residing therein

Complete upon actual delivery

Mail: deposit a copy in the post office complete upon actual

receipt of addressee or 5 days from the date when

he received first notice from postmatster, which

is earlier

Substituted Service

If service cannot be made personally or by mail and the office

or residence of the party/counsel is unknown, it may be made by

delivering the copy to the clerk of court.

Upon party in default R9 S3:

If the defending party 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. The court

twill then proceed to render judgment granting the claimant such relief as his pleading my warrant

a) Effect of order of default: A party in default shall be entitled to notice of subsequent proceedings but NOT to take part in trial

b) 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 the default upon showing of FAME c) 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 on the evidence presented

d) Extent of relief awarded: A judgment rendered agaisn ta party in default shall not exceed the amount or be different in kind from that

prayed for nor award liquidated damages

Notice of Lis Pendens R13 S14: It is recording of a notice of pendency of an

action affecting the title/right of possession of real property in the RD in which the

property is situated. The plaintiff or the defendant may file this if an affirmative relief is claimed as regards the land The filing of such notice will operate to be

the constructive notice of the action as against any purchaser/encumbrancer and against parties designated in the notice. It

may be cancelled upon order of the court. (Basically, it’s telling everyone that the property is currently under litigation. It’s also for determination of good/bad faith)

25. RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS

How are pleadings

amended?

1. Adding/striking out an allegation or a name of any

party 2. Correcting a mistake in the name of a party or a mistaken

or inadequate allegation of description in any other respect

Purpose So that the actual merits of the controversy may speedily be determined, without regard to technicalities

Effect of

amendment

Amended pleading supersedes the original pleading

HOWEVER, admissions in superseded pleadings may be

received in evidence and claims or defenses alleged therein not incorporated in the amended pleading shall

be deemed waived.

Barfel Development Corp. vs. CA

Petitioner Barfel, as sellers, and Private respondent Reginas Industries, as buyer, entered into an Agreement to Buy/Sell 2 parcels of land. The agreement

stated that the seller will apply the payment of cash to the removal of any lien on the properties. Barfel warranted that except for a mortgage in favor of BPI,

there are no other liens on the properties. However, Reginas Industries discovered that the properties were subject to an second mortgage with

PISO/Central Bank


21

Subsequently. PSB informed Reginas Industries that its loan application with which to pay the properties has been approved. This was secured by a real

estate mortgage on the said properties. PSB undertook to pay the mortgage

due to BPI.

Barfel, in bad faith and breach of contract, failed and refused to comply with their obligation of securing releasing the second mortgage on the

subject properties, preventing the consummation of the sale. Thus, Reginas Industries filed a complaint for specific performance and damages

against Barfel. During Barfel’s presentation of evidence, Reginas Industries filed an

amended complaint which consisted of impleading PISO Bank as additional party defendant and compel it to accept payment of the

existing second mortgage. This was admitted by the court.

Issue: Was the admission of the amended complaint proper notwithstanding the

provisions Sec 3 Rule 10 which states that ―After the case is set for hearing,

substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to

delay the action or that the cause of action or defense is substantially altered?

The reason for the amendment impleading PISO is to compel the latter to

accept Regina’s payment and release the second mortgage. However, PISO

bank is not a party to the contract subject of the action for specific performance and damages between Reginas and Barfel. Thus, it is not an

indispensable party. The action for specific performance by Reginas against Barfel is not the proper

venue for releasing all liens the subject property, thus allowing such inclusion would delay proceedings on the original case.

Also, the amendment sought by private respondents, which is to include a new party defendant at a late stage in the proceeding is a substantial

one. Thus, Reginas will have to present additional to the effect that it would be a new trial

Kinds of Amendments:

Formal amendment Defects in the designation of the parties or

clerical/typographical errors may be corrected by the court at its own initiative or upon motion PROVIDED no prejudice

is caused to the adverse party

Substantial

amendment

1. As a matter of right: ONCE as a matter of right

a. at any time before a responsive pleading is served

b. in case of a reply, at any time within 10 days after it is served

2. As a matter of discretion of the court: A substantial amendment after a responsive pleading has been filed

may be made only upon leave of court and after

notice to adverse party and an opportunity to be heard. This may be denied if the motion to amend was

only for delaying tactics

Amendment to conform to or

authorize presentation of

evidence

When issues not raised by the pleadings are tried with the consent of the parties, they shall be treated as if they

were raised in the pleadings.

To conform to the evidence presented, amendments to the pleadings may be made upon motion of any party at

any time, even after judgment.

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the COURT

may allow the pleadings to be amended and shall do so with

liberality if the presentation of the merits and the ends of

justice will be subserved thereby.

Supplemental pleadings: A pleading that is always by leave court, and upon

motion and upon notice, that seeks to include transactions, occurrences or events which have happened since the date of the filing of the pleading sought to be

supplemented.

Amended Supplemental

It seeks to include facts already existing

at the date of the original pleading sought to be amended but were not

pleaded due to inadvertence/mistake

It seeks to include facts that occurred

since the date of the pleading sought to be supplemented

A matter of right before a responsive

pleading is filed

Always be leave of court

New copy of entire pleading needed No new copy needed

Original superseded by the amended Original pleading stands and now

includes the supplemental


22

Rule 12: Bill of Particulars

WHAT IS A BILL

OF

PARTICULARS?

A more definite statement of any matter which is NOT

averred with sufficient definiteness or particularity. It

becomes part of the pleading to which it is intended. When

a pleading is couched in general/vague terms, file for a BoP

PURPOSE To enable the opposing party to properly prepare his

responsive pleading

Virata v. Sandiganbayan: Function is to limit a pleading,

specify more particularly a claim or defense set up in

general terms, give information to the opposite party and

the court as to the precise nature, character, scope and

extent of the cause of action.

WHEN FILED Before responding to a pleading, a party may move for a bill

of particulars

EFFECT WHEN

FILED

Clerk will bring it to the attention of the court and court has

three options:

1. Grant

2. Deny

3. Allow the parties an opportunity to be heard

EFFECT OF NON-

COMPLIANCE

1. The court may order the striking out of the pleading or

the portions thereof to which the order was directed

2. Make another order as it may deem just

INTERRUPTING

EFFECT

After service of the BoP or after notice of denial of his

motion,

The moving party (party who asked for BoP) may file his

responsive pleading within the period to which he was

entitled at the time of filing his motion which shall be at

least 5 days at any event

NOTICE AND

HEARING

REQUIREMENTS:

This is a motion so it requires notice of hearing with proof of

service to the other party

Doctrines:

1. Virata v. Sandiganbayan:

a. It is not the office of a BoP to:

i. supply material allegations necessary to the validity of the

pleading

ii. to change a cause of action or defense stated in the

pleading

iii. to state a new cause of action

Rule 19: Intervention

WHAT IS

INTERVENTION

It is an act or proceeding by which a third person is permitted

to become a party to an action or proceeding between other

persons. Its purpose is to determine all conflicting claims

regards all the parties involved.

WHO MAY

INTERVENE?

M-S-B-A

1. One who has a legal interest in the matter of litigation

2. One who has legal interest in the success of either of the

parties

3. One who has an interest against both parties

4. One who is so situated as to be adversely affected by a

distribution or other disposition of property in the custody

of the court or of an officer thereof

REQUIREMENTS

FOR

INTERVENTION

TO BE ALLOWED:

Saw v. CA:

1. Legal interest of the movant in the SM of litigation or

otherwise qualified (basically, LEGAL INTEREST)

2. Court must give consideration as to whether:

3. the adjudication of the rights of the original parties

may be:

a. delayed or prejudiced, or

b. whether intervenor’s rights may be

protected in a separated proceeding or not

MANDATORY OR

DISCRETIONARY?

Intervention is discretionary upon the court for an intervening

party requires the leave of court.

Intervention can only be remedied by mandamus if the denial

was due to GADLEJ

PLEADINGS TO

BE FILED:

1. Complaint-in-intervention: If he asserts a claim

against either or all of the original parties

2. Answer-in-intervention: If he unites with the defending

party in resisting a claim against the plaintiff

WHEN FILED: Motion to intervene must be filed BEFORE trial court renders

judgment

Doctrines:

1. Saw v. CA and Metropolitan Bank v. Presiding Judge

a. General Rule: Intervention is just an ancillary and supplemental

one which, in the nature of things, unless otherwise provided by

law, is subordinate to the main action. (Basically, if the main

action is dismissed, complaint-in-intervention is dismissed)

b. Exception: If the original action is dismissed and it had not

affected the rights of intervenor, the intervenor’s petition

showing it to be entitled to affirmative relief will be

preserved.


23

Rule 14: Summons

WHAT IS

SUMMONS?

It is a writ directed to a defendant, notifying him of the civil

complaint filed against him.

WHO ISSUES THE

SUMMONS?

The clerk of court issues the summons upon the filing of the

complaint and the payment of fees

PURPOSE OF

SUMMONS

To acquire JURISDICTION over the person of the

defendant

CONTENTS OF

SUMMONS

1. Name of the court and names of parties to the action

2. A direction that the defendant should answer within the

time fixed

3. A notice that unless defendant answers, he shall be

declared in default

WHO SERVES

SUMMONS

1. The sheriff

2. Sheriff’s deputy

3. Other proper court officer: bailiff, subpoena server,

warrant officer

4. Any other suitable person authorized by the court

EFFECT OF

DEFECTIVE

SUMMONS

Defendant can file a motion to dismiss on the ground of lack

of jurisdiction over his person

EFFECT OF

VOLUNTARY

APPEARANCE

If defendant voluntarily appears, it shall be equivalent to

service of summons.

HOWEVER, the inclusion in a MTD of other grounds aside

from lack of jurisdiction shall not be deemed voluntary

appearance

Modes of Service

PERSONAL 1. Personally handing a copy to the defendant in

person

2. If he refuses, by tendering it to him

SUBSTITUTED If, for justifiable reasons, the defendant cannot be

served, it can be effected by:

1. Leaving a copy of the summons at defendant’s

residence with some person of suitable age and

discretion residing therein

2. Leaving copies at defendant’s office or regular place

of business with some competent person in charge

PUBLICATION See Sec 14

EXTRATERRITORIAL See Sec 15: Not allowed in personal actions

ON WHOM SUMMONS

SERVED SPECIFICALLY HOW IT IS SERVED

Normal person-

defendant (and

generally)

1. Personal service

2. Substituted service

3. Publication (with leave of court)

Entity without juridical personality,

when sued in the name they are

generally/commonly

known:

1. Any one of the associated persons

2. All of the associated persons

3. Person in charge of the

office

1. Personal service 2. Substituted service

BUT: such service shall

not individually bind any

person whose connection with the entity has, upon

due notice, been severed before the action was

brought

Domestic private

juridical entity

1. President

2. Managing Partner 3. General manager

4. Corporate Secretary 5. Treasurer

6. In-house counsel

1. Personal service to

any one of them 2. Substituted service

Foreign private

juridical entity

1. Resident Agent

2. If none, on the

government official

designated by law

3. Any of its

officers/agents within

the Philippines

1. Personal service


Public Corporation 1. Solgen

2. If province, city,

municipality:

Executive Head

3. Other officers as

law/court may direct

1. Personal service


Minors 1. Upon the minor AND

his guardian/parent

1. Personal

2. Substituted

Insane,

incompetent

1. Upon the insane and

his legal guardian

1. Personal

2. Substituted

Prisoners 1. Upon the officer

having management

of the jail who is

deemed deputized

1. Personal

2. Substitute

Unknown

defendant: If his

identity and location

CANNOT be

1. Publication in a

newspaper or in

such places as the

court may order


24

ascertained with

diligent inquiry

Resident

temporarily out of

the country

1. Extra-territorial

service with leave of

court


with leave of court

3. Service by

publication with

leave of court (with

order sent to the

last known address

of defendant)

4. Any other manner

court deems proper

Non-resident:

Requirements:

QUASI in REM and

IN REM actions

Does not reside/not

found in the

Philippines

The action affects

personal status of the

plaintiff

OR

The subject of the

action is property in

the Philippines where

defendant has interest

and plaintiff seeks to

include him

OR

Properties of

defendant were

attached

1. Extra-territorial

service with leave of

court


with leave of court

3. Service by

publication with

leave of court (with

order sent to the

last known address

of defendant)

4. Any other manner

court deems proper

Doctrines:

1. Valmonte v. CA:

a. If the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res. If the defendant is a

nonresident and he is not found in the country, summons may be served exterritorially in accordance with Sec 15

b. In such cases, what gives the court jurisdiction in an action in rem or quasi in rem is that it has jurisdiction over the res, i.e. the

personal status of the plaintiff who is domiciled in the Philippines or the property litigated or attached.

c. Service of summons in the manner provided in Sec 15 is not for

the purpose of vesting it with jurisdiction but for complying with the requirements of fair play or due process, so that he will

be informed of the pendency of the action against him and the possibility that property in the Philippines belonging to him or in which

he has an interest may be subjected to a judgment in favor of the plaintiff and he can thereby take steps to protect his interest if he is so

minded. 2. Cezar v. Ricafort-Bautista and Lhullier v British Airways:

a. General Rule: Appearance cures defective summons: A voluntary

appearance is a waiver of the necessity of summons.

b. Exception: If a defendant appears and questions the court’s

jurisdiction, it is not considered a voluntary appearance

3. Montefalcon v. Vasquez:

a. For residents temporarily out of the country, the primary mode is

substituted service.

4. Valmonte v. CA:

a. When it comes to non-residents who are not found in the

Philippines and the action is in-rem/quasi-in-rem, service must be

made extra-territorially

b. Problem: A is in the US and resides there. B sues A for partition

(quasi in rem) To properly serve A, the three methods as provided

for in Sec 15 have to be used and they all have to be done

OUTSIDE the country:

i. Personal service, with leave of court

ii. Publication in newspaper of GC with copy of the

summons/order of the court to be sent by registered mail

to the last known address of defendant

iii. Any other manner which the court deems sufficient (i.e.

by service through the Phil Embassy in the foreign country

where the defendant resides)


25

Rule 15: Motions

WHAT IS A

MOTION?

It is an application for relief other than by a pleading

FORM In writing

Except: those made in open court/course of trial

CONTENTS 1. Relief sought to be obtained

2. Grounds relied upon

3. Supporting affidavits and other papers if required by the

rules or necessary to prove alleged facts

NOTICE AND

HEARING

REQUIREMENTS:

General Rule: every written motion shall be set for hearing

by the applicant

Exception: Motions which the court may act upon without

prejudicing the rights of the adverse party

REQUISITES: Victory Liner v. Malinianas:

1. Generally written

2. Relief must be stated

3. Notice of hearing (a date must have been set) to be

addressed to ALL parties concerned

4. Proof of service required

WHAT IS AN

OMNIBUS

MOTION?

A motion attacking a pleading, order, judgment or

proceeding (POJP) shall include ALL objections then

available, and all objections not included shall be deemed

waived

Exception: (Rule 9 Sec 1) Defenses and objections not

pleaded either in a motion to dismiss OR in an answer are

deemed waived

However, the court will DISMISS the claim when it appears

from the pleadings or on evidence on record of these

situations:

a. No jurisdiction over SM

b. Litis Pendentia

c. Res Judicata

d. Prescription

MOTION DAY GR: All motions shall be schedules for hearing on Friday

afternoons

Ex: If Friday is a non-working day, in the afternoon of the

next working day

Doctrines:

1. Compare and contrast Victory Liner, Lanto and Vlason

Victory Liner Lanto Vlason

In this case, the losing

party filed a motion for

reconsideration but did

not set the date for

hearing in the motion.

The MR was dismissed

and it was deemed not

have tolled the period

for appeal.

In this case, A contested a

resolution abolishing his

position. He went to court.

The members of the board

(who issued the resolution)

filed a motion to dismiss

and set the hearing for the

motion. A was unable to

attend the hearing but he

was able to file his written

opposition to the motion to

dismiss. The judge granted

the MTD, BUT took into

consideration A’s

arguments in his written

opposition.

Vlason was not

informed of any

cause of action

against it and it was

NOT validly

summoned. Despite

of that, Vlason was

ordered to be liable in

the case. Vlason filed

an MR but it was

dismissed for lack of

notice of time and

date of hearing.

GR: A motion without a

notice of hearing (with a

time and date set) is

useless

EX: When the adverse

party had an opportunity

to oppose, notice of

hearing is unnecessary.

EX: When a rigid

application would

result into

miscarriage of

justice/manifest

injustice

Reason why motion

must set the time and

place for hearing:

Unless the movant sets

the time and place of

hearing, the court will be

unable to determine

whether the adverse

party agrees or objects

to the motion and if he

objects, to hear him on

his objection, since the

rules themselves DO

NOT fix any period

within which he may file

his reply/opposition (to

a motion

The SC ruled that the

essence of requiring a

hearing for a motion is

DUE PROCESS.

In this case, A was able to

file his written opposition

and the order of dismissal

took into consideration his

arguments.


26

Rule 16: Motion to dismiss (Before answer)

WHEN IS THE

MTD FILED?

Within the time for but BEFORE filing the answer to the

complaint or to the pleading asserting a claim

*Note: Defendant given 15 days to answer

WHO FILES

THIS MTD?

The defendant

GROUNDS FOR

MTD

J2VC-LRC-

EUC

1. Court has no jurisdiction over the PERSON of the

defending party

2. Court has no jurisdiction over the SM

3. Improper venue

4. Plaintiff has no legal capacity to sue

5. There is another action pending between the same

parties for the same cause (litis pendentia)

6. That the cause of action is barred by a prior judgment

or by statute of limitations (res judicata+prescription)

7. That the pleading asserting the claim states no cause of

action

8. That the claim/demand of plaintiff has been paid,

waived, abandoned or extinguished

9. That the claim is unenforceable

10. A condition precedent has not been complied with

HEARING At the hearing of the motion, parties shall submit their

arguments and evidence on the questions of law and fact

involved.

If the case goes to trial, the evidence presented during the

hearing = part of the evidence of the party presenting the

same

HOW IS

MOTION

RESOLVED?

1. Court will DISMISS the action or claim (grant MTD)

2. Court will DENY the motion

3. Court will ORDER amendment of the pleading (of the

plaintiff)

All with reasons.

IF MTD IS

DENIED, WHAT

WILL MOVANT

DO?

The movant shall file his answer within the balance of the

period to which he was entitled at the time of serving his

motion.

However, this shall be at least 5 days in any event,

computed from his receipt of the notice of denial.

WHAT IF THE

PLEADING IS

ORDERED TO BE

AMENDED?

He shall file his answer within 15 days counted from service

of the amended pleading unless the court provides a longer

period

WHAT IS THE

EFFECT OF

DISMISSAL?

A MTD based on:

a. Res Judicata/Prescription

b. Extinguishment of claim

c. Unenforceability

Will bar the re-filling of the same action or claim.

However, this is still subject to the right of the

plaintiff/claiming party to appeal.

CAN THE

GROUNDS BE

PLEADED AS

AFFIRMATIVE

DEFENSES?

Affirmative Defense: Allegation of a new matter, which,

while hypothetically admitting the material allegations of the

pleading, would nevertheless prevent or bar recovery by him.

YES. If no MTD has been filed, any of the grounds provided

for may be pleaded as an affirmative defense in the answer

AND in the DISCRETION of the court, a preliminary

hearing may be had thereon as if a MTD has been filed.

However, the dismissal of the complaint under this section

(Sec 6: pleading grounds as affirmative defenses) shall

be without prejudice to the prosecution in the same or

separate action of a PERMISSIVE counterclaim pleaded

in the action (because mandatory counterclaims are

generally constrained to the main action)

IS

PRELIMINARY

HEARING

MANDATORY?

NO. Preliminary hearing when MTD grounds are pleaded as

affirmative defense is DISCRETIONARY upon the court.

Further, it was held in Municipality of Binan v. CA, that a

preliminary hearing is NOT necessary when the affirmative

defense is failure to state cause of action because the courts

only have to look at the allegations in the complaint anyway

(no need to hear the parties when the court has to look at

the complaint anyway)

REMEDIES AS

REGARDS THE

MTD

If MTD is GRANTED:

Plaintiff may appeal/MR

Re-file the case

If MTD is DENIED:

File an answer, go to trial, reiterate issues on appeal

If RTC committed GADLEJ, petition for certiorari

under rule 65


27

Case Doctrines:

1. Boticano v. Chu

a. A party cannot question jurisdiction over his person for the first

time on appeal -> Note: BUT jurisdiction over the subject matter

can be questioned at any time because it is conferred by law

b. Instances considered as voluntary appearance:

i. filing a notice of appeal

ii. appearing in person in the hearing

iii. filing notice of appeal, appeal bond, motion for extension

to file record on appeal

2. Del Rosario v. Far East Bank and Trust: ELEMENTS OF RES

JUDICATA:

a. Final former judgment

b. Court which rendered judgment had jurisdiction

c. Judgment must be on the merits

d. There must be identity of parties, SM and causes of action

3. Halimao v. Villanueva: Defendant filed a motion to dismiss based on res

judicata. Plaintiff argues that this operates as a hypothetical admission of

the alleged facts. VS. Tan v. CA

a. SC ruled that if the ground for motion to dismiss is RJ, it does not

operate as a hypothetical admission of the alleged facts.

b. General Rule: A MTD based on lack of cause of action operates

as a hypothetical admission of all the facts alleged in the

complaint (Basically saying, fine, even if all that is true, you still

don’t have a cause of action)

i. In this case, the hypothetical admission is limited to the

facts alleged in the complaint. From there, the court will

determine if there is a cause of action.

c. Exception: The court should not be constrained to the

consideration of facts alleged in the complaint and inferences fairly

deducible therefrom. Courts may consider facts within the range of

judicial notice and other relevant laws and jurisprudence, along

with examining records/documents incorporated in the complaint.

4. Asia Production v. Pano

a. SoF applies only to executory contracts and in actions for their

specific performance. It does NOT apply to actions which are

neither for violation of a contract nor for the performance thereof.

5. Sunville Timber v. Abad:

a. Non-observance of exhaustion of administrative remedies can be a

ground to dismiss (because it results into a lack of cause of action)

b. Examples of non-compliance with condition precedents:

i. Conciliation proceedings in the barangay level

ii. Suits between members of the family and no earnest

efforts for compromise were sought


28

Rule 17: Dismissal of actions (Dismissal due to plaintiff)

UNDER RULE 17,

WHO CAUSES THE

DISMISSAL?

This time, it’s the plaintiff

APPLICATION TO

COUNTERCLAIMS,

CROSS-CLAIMS OR

THIRD PARTY

COMPLAINT

The provisions of this rule apply to the dismissal of any

counterclaim, cross-claim or any third party complaint.

A voluntary dismissal by the claimant by notice shall be

made BEFOE a responsive pleading/motion for summary

judgment is served OR if there is none, before the

introduction of evidence at the trial or hearing

First Method (R17 S1): Upon notice by plaintiff

HOW IS IT DONE? By filing a notice of dismissal before the court. This is a

MATTER of RIGHT. No ground needed.

WHEN MUST IT BE

DONE?

Before the service of the answer (on the plaintiff)

Before service of motion for summary judgment

EFFECT OF FILING

NOTICE

Upon filing of the notice, the court shall issue an ORDER

confirming the dismissal. Court has no discretion.

IS THE DISMISSAL

WITH OR WITHOUT

PREJUDICE?

GR: It is a dismissal without prejudice

EX: With prejudice ONLY if stated

EX: Two-dismissal rule: If the plaintiff already filed a

notice concerning an action based on or including the

same claim, the SECOND FILING OF THE NOTICE

operates as an adjudication upon the merits

*Two-dismissal rule is IMPORTANT as it fulfills the

second element of Res Judicata!

Second Method (R17 S2): Upon motion of the plaintiff

HOW IS IT DONE? Motion to dismiss filed by the plaintiff + Court approval

WHEN MUST IT BE

DONE?

After service of the answer

After service of motion for summary judgment

EFFECT OF MOTION If granted, GR: Without prejudice to refiling,

EX: When specified that it is with prejudice

WHAT IF

DEFENDANT PLEADS

A COUNTERCLAIM

BEFORE HE IS

SERVED NOTICE OF

PLAINTIFF’S MTD?

The dismissal shall only be limited to the complaint.

The defendant can still prosecute his separate claim in a

separate action UNLESS within 15 day from notice of the

motion, he manifests his preference to have his

counterclaim resolved in the same action

WHAT ABOUT CLASS

SUITS

A class suit shall not be dismissed/compromised w/o

approval of the court

Third Method (R17 S3): Dismissal due to plaintiff’s fault

HOW IS IT DONE? Motion filed by:

1. Defendant

2. By the Court

GROUNDS FOR THE

MOTION?

(A-P-R-O)

1. Failure of the plaintiff to appear on the date of

the presentation of his evidence in chief

2. Failure of the plaintiff to prosecute his action

for an unreasonable length of time

3. Failure of the plaintiff to comply with Rules of

Court (failure to comply with discovery rules

r24-29 or failure to appear at pre-trial)

4. Failure of the plaintiff to comply with any order

of the court

EFFECT OF

DISMISSAL

Without prejudice to the right of the defendant to

prosecute his counterclaim in the same/separate action

IS THE DISMISSAL

WITH OR WITHOUT

PREJUDICE?

GR: It is with prejudice of refilling because it has the

effect of an adjudication upon the merits

EX: If the court declares that it is not

*Also important in determining existence of the second

element of RJ

REMEDIES OF

PLAINTIFF IF

DISMISSAL IS

UNDER THIS RULE

AND WITH

PREJUDICE

1. Motion for reconsideration (for

reinstatement/dismissal be made w/o prejudice)

2. Ko v. PNB: If denied, ordinary appeal under

rule 41 (not under rule 45)

3. If judgment final, a petition for relief from

judgment due to FAME under rule 38

CD:

1. Cruz v. CA: If the lower court orders dismissal due to the fault of the

plaintiff and does not qualify it, it has the effect of adjudication on the

merits. The dismissal will operate as fulfillment of the second element of

res judicata

2. Pinga v. Heirs of Santiago: Plaintiffs filed a case. Defendant had a

counterclaim. The case was dismissed due to the plaintiff’s fault.

a. In this case, defendant can still prosecute his counterclaim even

after the dismissal of the main case. This is of course with the

condition that the counterclaim is with merit or suffers any

jurisdictional flaws (otherwise, court can dismiss it on these

defects)

b. It does not matter whether it be a permissive or a mandatory

counterclaim.


29

Rule 9 Sec 3: Law on Default

WHO MAY BE

DECLARED IN

DEFAULT?

The defending party: original defending party, defendant

in counterclaim, the cross-defendant, the 3rd/4th/etc

party defendant

WHEN MAY A

DEFENDANT BE

DECLARED IN

DEFAULT?

1. If he fails to file an answer (within the time

allowed)

2. If he fails to furnish a copy of the answer

3. If he fails to appear at a pre-trial

4. If he fails to comply with modes of discovery

WHAT IS THE

PROCEDURE?

*court cannot motu

proprio declare

party in default

1. Claiming party files a motion to declare the

defending party in default

2. Defending party must be given notice of the motion

3. At the hearing, claiming party must show WHY the

defending party is in default (in this rule, prove that

defendant FAILED to answer)

4. Court will issue the order of default

5. Court will render judgment by default granting the

claimant such relief his pleading may warrant

UNLESS the court requires the claimant to submit

evidence (clerk of court can receive this evidence)

WHAT IS THE

EFFECT OF ORDER IN

DEFAULT?

1. Defaulted party still entitled to notice of subsequent

proceedings

2. Defaulted party CANNOT present evidence

3. Defaulted party LOSES right to be heard

WHAT IS THE

EFFECT OF PARTIAL

DEFAULT?

When a pleading asserting a claim states a common

cause of action against several defending parties, and

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 based on the evidence

presented

WHAT IS THE

LIMITATION ON THE

RELIEF GRANTED?

A judgment in default shall not exceed the amount or be

different in kind from that prayed for.

It can also not award liquidated damages.

WHEN IS DEFAULT

NOT ALLOWED

In an action for annulment, declaration of nullity or legal

separation: Instead, prosecuting attorney will check if

there is collusion and if none, will intervene

REMEDIES of DEFAULTED PARTY

Rule 9 Sec 3(b):

Motion to set aside

At any time AFTER notice of default and BEFORE

judgment, he may file a motion to set aside the order of

default with the showing of two grounds (both must

concur)

1. His failure to answer was due to FAME

2. He has a meritorious defense

Rule 40-41: Appeal

from the MTC to

the RTC and Appeal

from

Before finality, by filing a notice of appeal

Rule 37: Motion for

reconsideration or

new trial

After judgment BUT before finality, he may file an MR or

for new trial upon showing of FAME

Rule 38: Petition

for relief from

judgments, orders

other proceedings

After finality of judgment, if defaulted defendant

discovered the default, he may file a petition for relief

Rule 47:

Annulment of

judgments or final

orders and

resolutions

When new trial, appeal and petition for relief or other

appropriate remedies are not available through no fault

of the defaulted party, he may file for annulment of the

order of default based only on:

1. Extrinsic fraud (Fraud that couldn’t have been

discovered in trial and which prevented

defaulted party from participating)

2. Lack of jurisdiction of the court

Default Judgment Order of Default

This is used by the court, on motion

of the plaintiff, for failure of the party

to file a responsive pleading on time

Issued by the court after the

defending party has been declared in

default, or after the evidence of the

claimant has been received ex parte if

required by the court

1. Gajudo v. Traders Royal:

a. Just because the opposing party was declared in default, it doesn’t

mean that the plaintiff will automatically win. The burden of proof

falls upon him to substantiate his claim in his pleadings with

evidence (preponderance)

2. Vlason: No order of default against a party, no default judgment allowed

against that party

a. The court CANNOT render a default judgment against a party who

was not declared in default in the first place. The presentation of

evidence ex-parte against this party is INVALID.

3. Martinez v. Republic


30

a. Even though it is not expressly provided for in the RoC, a party

declared in default can still appeal the default judgment

against it

4. Jao & Co and Indiana Aerospace University:

a. GR: Default judgment is an adjudication on the merits and is thus

appealable/mr. Rule 65 is not the appropriate remedy

b. EX: Purely legal issues, public interest, extreme urgency, special

circumstances


31

Rule 18: Pre-Trial

WHEN IS PRE-

TRIAL

CONDUCTED?

After the last pleading has been served and filed Basically,

the REPLY by the plaintiff to the answer

WHAT IS THE

NATURE AND

PURPOSE OF

PRE-TRIAL?

Pre trial is MANDATORY. The court will consider the ff:

1. Possibility of an amicable settlement

2. Simplification of issues

3. Necessity of amendments to the pleadings

4. The possibility of obtaining stipulations/admissions of

facts and of documents to avoid unnecessary proof

5. The limitation of the number of witnesses

6. The advisability of a preliminary reference of issues to a

commissioner

7. The propriety of rendering judgment on the

pleadings/summary judgment/dismissal

8. The necessity of suspending the proceedings

9. Other matters that will aid in the disposition of the case

WHO HAS THE

DUTY TO SET THE

CASE FOR PRE-

TRIAL?

The plaintiff

He has 5 days to move ex-parte within 5 days from the

date of filing of the reply.

Effect of failure of plaintiff to set: The clerk of court

shall issue the notice of pre-trial

WHO SHOULD

THE NOTICE OF

PRE-TRIAL BE

SENT TO?

The notice of pre-trial shall be served on:

1. The counsel (he has the duty of notifying his client)

2. The party who has no counsel

WHAT IS THE

PRE-TRIAL

BRIEF?

The parties are required by the court to serve on each

other at least 3 days before the date of the pre-trial,

their respective pre-trial briefs. It shall contain:

1. A statement of their willingness to enter into an

amicable settlement or alternative modes of dispute

resolution

2. A summary of admitted facts

3. The issues to be tried/resolved

4. The documents or exhibits to be presented

5. A manifestation of their having availed or their

intention to avail themselves of discovery

procedures/referral to commissioners

6. The number and names of the witnesses, and the

substance of their respective testimonies

WHAT IS THE

EFFECT OF

FAILURE TO

Depends.

1. If plaintiff fails to appear: Cause for dismissal

APPEAR AT PRE-

TRIAL AND TO

FILE PRE-TRIAL

BRIEF?

a. GR: With prejudice

b. EX: If court orders that its not

2. If defendant fails: Plaintiff may present evidence ex

parte and the court may render judgment on the

basis thereof (like default)

WHEN MAY

FAILURE TO

APPEAR BE

EXCUSED?

1. If there is a VALID CAUSE

2. If a representative appears in the absent party’s

behalf fully authorized in writing to (depends)

a. Enter into an amicable settlement

b. To submit to alternative modes of dispute

resolution

c. To enter into stipulations or admissions of

facts and documents

CD:

1. LCK Industries v. Planters: A obtained a loan from B secured by a REM.

B foreclosed upon default. In the pre-trial, A’s defense/claim of

overpayment was not taken up. However, the SC ruled that this issue was

included because it only required simple math (Selling price at auction

sale-A’s obligation=overpayment)

a. A pre-trial order does not have to state each and every issue that

may be taken up during trial. Issues that are IMPLIEDLY

included are included in the pre-trial order as those

expressly stipulated

2. Calalang v. CA: Counsel of plaintiff was 15 minutes late for pre-trial. His

case was dismissed due to this

a. Absent any negligent or irresponsible conduct by the party (in this

case, the plaintiff), the court should consider lesser sanctions than

dismissal.

3. Spouses Corpuz v. Citibank

a. To constitute excusable negligence:

i. The absence must be due to counsel’s failure to take the

proper steps at the proper time and NOT in consequence

of his carelessness, inattention or willful disregard of the

court processes

ii. It must be due to some UNEXPECTED or UNAVOIDABLE

hindrance/accident


32

Rule 20: Calendar of Cases

WHO KEEPS THE

CALENDAR OF

CASES?

The clerk of court

WHAT CASES? 1. Pre-trial

2. Trial

3. Postponed/adjourned cases

4. Motions to set for hearing

WHAT CASES

ARE GIVEN

PREFERENCE?

1. Habeas corpus

2. Election

3. Special civil actions

4. Those required by law

HOW ARE CASES

ASSIGNED?

EXCLUSIVELY by raffle.

Raffle is done in open session with notice given to interested

parties to watch

Rule 22: Computation of time

How is a period

computed?

Basically, first day excluded and last day included

If the last day falls on a Saturday, Sunday or a legal

holiday, the time shall not run until the next working day

What is the

effect of

interruption?

Should an act be done which effectively interrupts the

running of the period, the allowable period after such

interruption shall start to run on the day AFTER the notice

of the cessation of the cause thereof

The day of the act which caused the interruption shall be

EXCLUDED in the computation of the period

EXAMPLES:

Basic 1: Plaintiff files case on May 2. Defendant given notice May 10.

Defendant has until May 26 to file answer.


33

Rule 30: Trial

WHEN IS TRIAL

CONDUCTED?

Upon entry of the case in the trial calendar, the clerk of

court shall notify the parties of the date of the trial to

ensure that the parties receive the notice at least 5

days before the date of trial

HOW IS A CASE

ADJOURNED/

POSTPONED?

A court may adjourn a trial from day to day and to any

stated time as the case may be

LIMITATION: However, the court shall not have the power

to adjourn a trial for more than one month (for each

adjournment) and the court cannot adjourn for more than 3

months in all -> except when authorized in writing by the

Court Admin of the SC

WHAT ARE THE

REQUISITES OF

THE MOTION TO

POSTPONE TRIAL

FOR ABSENCE OF

EVIDENCE?

1. Upon affidavit showing the importance of such evidence

2. AND the due diligence has been used to procure the

evidence

HOWEVER, if the adverse party admits the facts to be

given in evidence EVEN if he objects or reserves the

right to object to their admissibility, the trial shall not

be postponed.

WHAT ARE THE

REQUISITES OF A

MOTION TO

POSTPONE THE

TRIAL FOR

ILLNESS OF

PARTY/COUNSEL

1. Upon affidavit/sworn certification that the presence of

the party/counsel is indispensable

2. AND that the character of his illness is such as to

excuse his evidence

HOW ARE

PARTIES

COMPELLED TO

GO TO TRIAL?

By subpoena! Rule 21

1. Subpoena: A process directed to a person requiring

him

a. to attend and to testify at the hearing/trial of

an action

b. or any investigation conducted by

competent authority

c. or for taking his deposition

2. Subpoena duces tecum: A person will be required to

bring with him any books, documents or any things

under his control

WHO ISSUES THE

SUBPOENA?

1. The court before whom the witness is required to

attend

2. The court of the place where the deposition is to be

taken

3. The officer or body authorized by law to do so in

connection with investigations conducted by the

said officer/body

4. Any justice of the SC or of the CA in ANY case or

investigation pending within the Philippines

Note: A prisoner sentenced to death, RP or life and who is

confined in any penal institution shall not be brought

outside the penal institution for appearance/attendance

unless authorized

Note: A subpoena is made in the same manner as

personal/substituted service

CAN A SUBPOENA

BE QUASHED?

Yes. On these instances:

1. Upon motion

2. If it is unreasonable and oppressive

3. The relevancy of the books, documents is not

apparent

4. If the person who asks for the subpoena fails to

advance the reasonable cost for the production of

the books, docs, etc

5. A subpoena ad testificandum can be quashed on the

ground that the witness is not bound by it

6. The witness fees and kilometrage allowed were not

tendered when the subpoena was served

WHAT IF THE

WITNESS FAILS

TO ATTEND?

ARREST: The judge, upon proof of service and failure of

the witness, may issue a warrant of arrest for the witness

CONTEMPT: It is also considered contempt of court if the

witness fails to obey the subpoena

EXCEPTION: Arrest and contempt does not apply to:

1. a witness who resides more than 100km from his

residence to the place where is to testify

2. a prisoner who is not given permission by the court

WHAT IS THE

ORDER OF

TRIAL?

Rule: Trial limited to the issues stated in the pre-trial order

and shall proceed as follows UNLESS the court for special

reasons otherwise directs

1. Plaintiff: adduce evidence in support of his

complaint

2. Defendant: adduce evidence in support of his

defense, counter-claim, cross-claim and third party

complaint

3. Third party defendant (if any): adduce evidence of

his defense, counterclaim, cross-claim and fourth


34

party complaint

4. Fourth party and so forth: adduce evidence of the

material facts pleaded by them

5. Party against whom any counterclaim/cross-claim

has been pleaded: adduce evidence n support of his

defense

6. Afterwards, the parties may then respectively

adduce rebutting evidence ONLY

a. UNLESS the court, for good

reasons/justice, allows them to adduce

more evidence upon their original case

7. Upon admission of the evidence, the case shall be

deemed submitted for decision

a. UNLESS the court directs the parties to

argue or to submit their respective

memoranda or any further pleadings

CAN THE

PARTIES AGREE

TO A STATEMENT

OF FACTS?

Yes. The parties to any action may agree in writing, upon

the facts involved in litigation and submit the case for

judgment on these statement of facts, without having to

introduce evidence

If parties agree to ONLY some of the facts, the trial shall be

held as to the disputed facts

WHEN MAY A

CIVIL ACTION BE

SUSPENDED?

ART 2030

1. If the willingness to discuss a possible compromise

is expressed by one or both

2. If it appears that one of the parties, before the

commencement of the action, offered to discuss a

compromise and the other party refused the offer

WHAT CANNOT

BE

COMPROMISED?

ART 2035

1. Civil status of persons

2. Validity of marriage/leg sep

3. Any ground for legal separation

4. Future support

5. Jurisdiction of courts

6. Future legitime

WHO GENERALLY

RECEIVES THE

EVIDENCE?

Generally, the judge personally receives the evidence

HOWEVER, in:

1. Default hearings

2. Ex-parte hearings

3. Cases where the parties agree in writing

The clerk of court may receive the evidence. However, he

cannot rule on objections. The objections still have to be

resolved by the court

CD:

1. Swagman Hotels: Generally, the lack of cause of action may be

cured by evidence presented during trial but it can only happen when

the complaint indeed states a cause of action. If there is really none,

then it cannot be cured by evidence presented during trial.

Basically, a cause of action must EXIST but the complaint just failed to

allege the essential facts making up the cause of action

Rule 32: Trial by commissioner

FIRST WAY: With Consent: By written consent of both parties, the

court may order any or all of the issues in a case to be referred to a

commissioner to be agreed upon by the parties or to be appointed by the

court

o Commissioner: referee, auditor, examiner

SECOND WAY: Without Consent: When the parties do not consent, the

court may, upon the application of either party or of its own motion, direct

a reference to a commissioner in the following cases:

o When the trial of an issue of fact requires the examination of a

long account on either side

o When the taking of an account is necessary for the information of

the court before judgment, or for carrying a judgment or order

into effect

o When a question of fact, other than upon the pleadings, arises

upon motion or otherwise, in any stage of a case, or for carrying a

judgment or order into effect

Rule 31: Consolidation:

CONSOLIDATION JOINDER OF CAUSES OF

ACTION: RULE 2, SEC 5

PERMISSIVE JOINDER OF

PARTIES: RULE 3, SEC 6

When actions involving

a common question of

law or fact are pending

before the court, it may

order a joint

hearing/trial or any

or all the matters in

issue in the actions

The court may order all

the actions consolidated

A party in one pleading,

assert, in the alternative

or otherwise, as many

causes of action as he

may have

All persons in whom or

against whom any right

to relief in respect to

or arising out of the

same transaction or

series of transactions

is alleged to exist,

may join as

plaintiffs/defendants in

one complaint, where

any question of law or

fact common to all

such

plaintiffs/defendants

may arise in the


35

action

NOTE: Here, the

ACTIONS are

consolidated

NOTE: Here, the party

just asserts the causes

of action he has in ONE

pleading in that ONE

action

NOTE: Here, the parties

just join together

basically as

defendants/plaintiffs

Also, remember here

the two requisites:

1. Same transaction

2. Common question of

law/fact

Rule 33: Demurrer to evidence

WHEN IS THE DEMURRER

FILED?

After plaintiff has completed the presentation of his

evidence, the defendant may move for dismissal

ON WHAT GROUND? Upon facts and the law, the plaintiff has shown NO

RIGHT TO RELIEF

WHAT IF THE MOTION OF

THE DEFENDANT IS

DENIED?

The defendant will then present evidence

WHAT IF THE MOTION IS

GRANTED BUT THEN

REVERSED ON APPEAL (BY

PLAINTIFF)

The defendant shall be deemed to have waived the

right to present evidence

CD:

1. Republic v. Tuvera:

a. GR: Upon the dismissal of the demurrer in the appellate court, the

defendant loses the right to present his evidence and the appellate

court shall then proceed to render judgment on the merits on the

basis of the plaintiff’s evidence

2. Manila Banking Corp v. University of Baguio: IMPT: essential

difference of LACK of CAUSE of ACTION and FAILURE TO STATE CAUSE OF

ACTION

LACK OF CAUSE OF ACTION FAILURE TO STATE CAUSE OF

ACTION

Governing

rule

Demurrer to evidence

(R33)

Motion to dismiss (Rule 16)

Situation Where the evidence does

not sustain the cause of

action that is alleged

The basis here is the

Where the complaint does not

allege a sufficient cause of

action

Determined from the

evidence the plaintiff has

presented

allegations in the initiatory

pleading and not from

evidentiary matters

What is

done

AFTER plaintiff rests his

case, demurrer is filed

BEFORE a responsive pleading

is filed, a MTD is filed

Nature Here, the judge has already

received the evidence and

if he grants the demurrer,

then it means that the

evidence is lacking to

support the cause of action

Keyword: EVIDENCE

INSUFFICIENT to SUPPORT

COA

The judge here is not concerned

with the truth/falsity of the

allegations. He only looks at the

pleading.

Keyword: PRELIMINARY

OBJECTIONS before START of

TRIAL

Rule 34: Judgment on the Pleadings & Rule 35: Summary judgment

Note: Both are

motions

RULE 34: J ON PLEADINGS RULE 35: SUMMARY

JUDGMENTS

Ground/Requisites 1. When an answer fails

to tender an issue

2. When answer admits

material allegations of

the adverse party’s

pleadings

1. No genuine issue

on any material

fact, except for the

amount of damages

2. Moving party must be

entitled to a

judgment as a

matter of law

What is done? Adverse party moves for

the court to direct

judgment on the pleading

(the answer which failed to

tender an issue/the answer

that admitted)

Claimant:

At any time after the

pleading in answer has

been served, claimant

will move with support

affidavits, depositions,

admissions for a

summary judgment in

his favor

Defendant:

At any time, defendant

may move with

supporting affidavits,

depositions or


36

admissions for a

summary judgment in his

favor

Nature Here, there is actually NO

ISSUE at all.

It is a judgment on the

facts as pleaded

Only the CLAIMANT can file

for judgment on the

pleadings

Here, although the

pleadings on their face

appear to raise issues of

fact (like a denial/conflict

of factual allegations), if

it is shown by the support

affidavits, depositions or

admissions that those

issues are FAKE, the

court shall render

judgment for whoever

asks for it

Basically, it is a

judgment on the facts

as summarily proven

by the A/D/A

Case Doctrines:

1. Ontimare v. Elep:

a. Issues in a summary judgment ARE APPARENT but in fact

proven to be fake as per the affidavits, depositions or

admissions

b. An issue is ONLY genuine when it requires the presentation of

evidence

c. If a summary judgment is rendered AFTER the presentation of

evidence of the parties in a full blown trial, then the rules on

summary judgment does not apply since obviously, the judgment

was on the merits

2. Asian Construction v. PCIB:

a. The determinative factor in a motion for summary judgment is the

presence/absence of a genuine issue as to any material

fact

b. When the facts as pleaded appear uncontested or undisputed,

then there is no real or genuine issue as to the facts and summary

judgment is proper

c. When the facts as pleaded by the parties are disputed,

proceedings for summary judgment cannot take the place of trial

Rule 36: Judgments, Final Orders and Entry thereof

WHAT IS THE FORM

OF

JUDGMENTS/FINAL

ORDERS?

It is in writing, personally and directly prepared by the

judge, stating clearly and distinctly the facts and the

law on which it is based, signed by him, and filed by the

clerk of court

WHAT IS THE

NATURE OF A FINAL

JUDGMENT/FINAL

ORDER?

BA Finance:

A judgment/ final order disposes of the whole SM or

terminates a particular proceeding or action, leaving

nothing to be done but to execute what has been

determined

WHEN DOES A

JUDGMENT BECOME

FINAL?

When no appeal, MR, motion for new trial is filed within

the reglementary period, the judgment shall be entered

by the clerk of court

The date of finality of the judgment/final order shall be

deemed to be the date of its entry

JUDGMENT

FOR/AGAINST ONE

OR MORE SEVERAL

PARTIES AND

SEPARATE

JUDGMENTS

Judgment may be for one or more several

plaintiffs/defendants

Separate Judgments: When more than one claim for

relief is presented in an action, the court at any stage,

upon a determination of the issues material to a

particular claim and all counterclaims arising out of the

transaction or occurrence, may render a separate

judgment disposing of such claim.

The judgment will terminate the action with respect to

the claim so disposed of and the action shall proceed as

to the remaining claims.

When this happens, the court by order may stay the

enforcement of the separate judgment until the

rendition of a subsequent judgment or judgments and

Judgment against entity w/o juridical personality:

The judgment will set out their individual/proper names

if known.

SEVERAL

JUDGMENTS:

In an action against several defendants, the court may,

when a several judgment is proper, render judgment

against one or more of them, leaving the action to

proceed against the others

KINDS OF 1. Judgment on the pleadings


37

JUDGMENTS 2. Judgment on demurrer

3. Summary judgment

4. Judgment on default

5. Judgment after ex parte presentation of evidence

(failure to appear at pre-trial)

KINDS OF ORDERS 1. Order to dismiss under rule 16

2. Order to dismiss under rule 17

3. Order to dismiss under rule 18 (failure to appear at

pre-trial)

4. Order to dismiss under rule 29 sec 5

KINDS OF ORDERS AS

TO CLAIMS

1. Judgment disposing of the entire claim

2. Judgment only disposing of a certain claim (out of

others)

KINDS OF ORDERS AS

TO HOW EXECUTED

Judgments not stayed on appeal (rule 39 Sec 4)

a. Judgments that cannot be stayed on

appeal: actions for:

i. Injunction

ii. Accounting

iii. Support

iv. Other judgments declared

immediately executory

2. Judgments for money (rule 39 sec 9)

3. Judgments for specific acts (rule 39 sec 10)

4. Special judgments

EFFECTS OF

JUDGMENTS AND

FINAL ORDERS

1. Local (rule 39 sec 47)

a. If judgment/final order is against:

i. A specific thing

ii. In respect to the probate of a will

iii. The administration of the estate of

a deceased person

iv. In respect to the

personal/political/legal condition of

a person or his relationship to

another

The judgment/final order is conclusive upon the title to

the thing, the will or the condition or status of the

person

b. In other cases, the j/fo is conclusive

between the parties and their

successors in interest by title

subsequent to the commencement of the

action/special proceeding, litigating for the

same thing and under the same title and

capacity with respect to the matter directly

adjudged or with respect to any matter

that could’ve been raised in relation thereto

c. In any other litigation between the

parties/successors in interest, that only is

deemed to have been adjudged in a former

judgment/final order which appears upon

its face to have been so adjudged, or which

was actually and necessarily included

therein/necessary thereto

2. Foreign: (foreign tribunal’s judgment)

a. If its upon a specific thing, the judgment/fo

is conclusive upon the title to the thing

b. If its against a person, the judgment/fo is

presumptive evidence of a right as between

the parties and their successors in interest

by subsequent title

In any case, the judgment/fo may be repelled by

evidence of:

a. Lack of jurisdiction

b. Lack of notice to the party

c. Collusion

d. Clear mistake of law or fact

WHEN MAY A

JUDGMENT BE

AMENDED?

1. Judgments may be amended BEFORE it becomes

final and executory

a. Judgments become final and executory 15

days after notice of judgment is received: it

is by operation of law

Example:

A filed a collection case against B. B lost. Court entered

judgment on April 3, 2010. B received notice of

judgment on April 10, 2010. In this case, if B does not

appeal, the judgment will become final and executory

on April 26, 2010.

GR: When a judgment becomes final and executory, it

cannot be amended anymore even if it is perceived

to be wrong (In law or in fact)

EX:

1. Judgments nunc pro tunc: Correction of errors

in the judgment (like the non entry of the

judgment in the entry book)

2. Void judgments

3. In the interest of justice (In Industrial Timber,

it was a labor case so the court carved out an

exception)

WHAT IS A

SUPPLEMENTAL

Remember, an amended judgment is an entirely new

decision and supersedes the original decision


38

JUDGMENT?

However, a supplemental judgment only serves to

bolster or add something to the main decision.

CD:

1. Del Rosario v. far East Bank and Trust: Difference of Bar by prior

judgment and conclusiveness of judgment

Bar by prior judgment Conclusiveness of judgment

Makes the judgment rendered in the

first case an absolute bar to the

subsequent action because the

judgment is conclusive not only as

to matters offered and received to

sustain it but also as to any other

matter which might have been

offered for that purpose

Situation where the judgment in the

prior action operates as an estoppel

only as to the matters ACTUALLY

determined or which were

necessarily included therein

This is a ground for a motion to

dismiss

This is not a ground for a MTD

Requisites of res judicata (bar by prior judgment)

1. Finality of the former judgment

2. Court had jurisdiction over the SM and the parties

3. It must be a judgment on the merits

4. There must be identity of parties, subject matter and causes of action

as between the two actions


39

REMEDIES against Judgments or final orders (to be edited for finals)

1st remedy: Before finality: Rule 37: New Trial/Reconsideration

Motion for

Reconsideration

Motion for New Trial

GROUNDS 1. Excessive damages

awarded

2. Insufficient evidence to

justify decision/final

order

3. Decision or final order

contrary to law

Shall point out specifically

the findings or conclusions

of the judgment or final

order

1. FAME which ordinary

prudence could not

have guarded against

Fraud: Extrinsic fraud

(happened outside of the

trial) -> Party prevented

Accident: Actual surprise

that prevented one from

appearing at trial

Mistake: Must be of fact

Excusable Negligence

Supported by: affidavits of

merits

2. Newly discovered

evidence which movant

could not have with

reasonable diligence,

have discovered and

produced at trial and

which if presented,

would probably alter

the result

Supported by: affidavits of

the witness by whom such

evidence is expected to be

given or duly authenticated

documents which are

proposed to be introduced

in evidence

WHEN FILED (BEFORE FINALITY) Within the period for taking an appeal

NOTE: Appeal period is interrupted by a timely motion for

new trial/reconsideration

NOTE: A motion for extension of time to file a motion for

new trial/reconsideration is not allowed

SECOND MR?

SECOND MNT?

Second MR:

GR: Generally, not allowed

EX: Equitable grounds (see

PCI Leasing)

Second motion for new

trial:

GR: A motion for new trial

shall include ALL grounds

then available and those

not included are deemed

waived.

As an exception, a second

one is allowed: Requisite:

1. Must be based on a

ground not

existing/available when

the first motion was

made

Time to file:

Before finality, excluding

the time during which the

first motion had been

pending

ACTIONS UPON THE

MOTION FOR

RECON/NEW TRIAL

1. Grant: TC may amend

the judgment

accordingly

2. Deny: unappealable:

Remedy: an appeal

from the

judgment/final order

itself

1. Grant: judgment will be

set aside and a new

trial will be granted

a. The original

judgment will

be vacated

b. The recorded

evidence taken

upon the

former trial

shall be used

at the new trial

if its important

to establish the

issues

2. Deny: unappealable:

Remedy: an appeal

from the


itself


40

PARTIAL GRANT 1. The court may order a new trial/grant

reconsideration as regards the severable issues

without interfering with the judgment or final

order

2. The court may:

a. Enter a judgment or final order as to the

rest of the issues

b. Stay the enforcement of the final

order/judgment until after the new trial

PRO FORMA

MR/Motion for

new trial:

An MR/New Trial is deemed pro forma if it does not

specify the finding or conclusions in the judgment

which are not supported by evidence/contrary to law,

making express reference to the pertinent

evidence/legal provisions

If it is pro forma, then it does not interrupt the period

to appeal

Marina Properties: Although an MR may reiterate

issues already passed upon, that by itself does not

make it pro forma

o However, where the circumstances of a case

do not show an intent on the part of the

pleader to merely delay and his motion

reveals a bona fide effort to present

additional matters/reiterate his arguments,

the courts should not swiftly declare the

motion pro forma

Rule 40: From MTC to RTC

Where to appeal An appeal from a judgment/final order of a MTC may be

taken to the RTC exercising jurisdiction over the area to

which the MTC pertains

Note:

APPELLANT: appealing (yung talo)

APPELLEE: adverse (yung panalo)

Title remains (if it was Uy v. Sy in MTC, then its going to

be Uy v. Sy in the RTC on appeal)

When to appeal Within 15 days after notice to the appellant of the


Within 30 days after notice to the appellant if a record on

appeal is required (special proceedings/in other cases)

How to appeal Filing a notice of appeal with the court that rendered the

judgment (with the MTC)

IMPT: docket fees must also be paid within the period for

taking an appeal

Effect of

perfection of

appeal

IF APPEAL BY NOTICE: A party’s appeal by notice is

deemed perfected as to him upon the filing of the

notice in due time

o The court loses jurisdiction over the case

upon perfection of the appeals filed in due

time and the expiration of the time to appeal

of other parties

IF APPEAL BY RECORD: If its appeal by record, the

appeal is deemed perfected as to the appealing party

with respect to the SM thereof upon the approval of

the record on appeal

o The court loses jurisdiction only over the SM

thereof upon the approval of the records on

appeal filed in due time and the expiration of

the time to appeal of other parties

In either case, prior to the transmittal of the original

record/record on appeal, the court (lower court) may:

o issue orders for the protection/preservation

of the rights of the parties which do not

involve any matter litigated by the appeal

o approve compromises

o permit appeals of indigent litigants

o order execution pending appeal (r39 s2)

o Allow withdrawal of appeal

Procedure in the

RTC

Upon the receipt of the complete record/record on

appeal, the clerk of court of the RTC shall notify the

parties of such fact

Within 15 days from such notice, it shall be the duty

of the appellant to submit a memorandum which shall

briefly discuss the errors imputed to the lower court,

a copy of which shall be furnished by him to the

adverse party

o FAILURE OF APPELLANT TO SUBMIT

MEMORANDUM: ground for appeal’s dismissal

Within 15 days from receipt of the memorandum, the

adverse party may file his memorandum

Upon the filing of the memorandum of the appellee,

or the expiration of the period to do so, the case shall

be considered submitted for decision. RTC will then

decide


41

Appeal from MTC

order of

dismissal

1. If an appeal is taken from an order of the lower court

dismissing the case without a trial on the merits,

the RTC may either affirm or reverse it as the case

may be

a. If the RTC affirmed dismissal based on lack of

jurisdiction (of the MTC) and the RTC had

jurisdiction, the RTC shall try the case on the

merits (it’s as if it was filed there)

b. If the RTC affirmed dismissal based on some

other grounds, Rule 42 (?)

c. If the RTC reverses the MTC, then the case

will be remanded to the MTC for further

proceedings

2. If the case was tried on the merits by the lower court

without jurisdiction over the SM, the RTC on appeal

shall not dismiss the case if it has original

jurisdiction thereof but it shall decide the case

without prejudice to the admission of amended

pleadings/additional evidence


42

Rule 41 (RTC to CA)

WHAT IS THE SUBJECT

OF APPEAL?

Taken from a:

1. Final order that completely disposes of the case

2. A particular matter in the case

WHEN IS AN APPEAL

NOT ALLOWED?

O (order)

Denying petition for relief

Interlocutory order Dismissing Appeal Denying a motion to

set aside a judgment by

Consent Execution

Dismissing an action without

prejudice Against one or more several parties

1. An order denying a petition for relief or any similar

motion seeking relief from judgment

2. An interlocutory order

3. An order disallowing or dismissing an appeal

4. An order denying a motion to set aside a judgment by

consent, confession or compromise on the ground of fraud,

mistake, duress or any other ground vitiating consent

5. An order of execution

6. A judgment or final order for or against one or more

several parties or in separate claims, counterclaims, cross-

claims and third-party complaints, while the main case is

pending, unless the court allows an appeal therefrom

7. An order dismissing an action without prejudice

In these circumstances, what is the remedy?

File an appropriate civil action under rule 65

EFFECT OF AM 07-7-

12-SC

Rule 37 Sec 9 now applies to an order denying a MNT or an MR

Remedy: When an order denying a MNT or an MR is made, the

remedy is an appeal from the judgment itself or final order

(which is the subject of the MR/MNT)

Exception (when you can’t appeal an order denying an MR): If

the subject of the MR is interlocutory (ex: When you’re the

defendant in a case, in case of filing an answer, you file a MTD,

when MTD is denied, defendant can file an MR.) -> Here, if the

MR is denied, the order denying the MTD is merely an

interlocutory order. It’s not a final order. Your remedy is rule 65

certiorari, and not appeal.

MODES OF APPEAL 1. Ordinary Appeal

RTC decision in the exercise of its original jurisdiction to

CA

How done? Filing a notice of appeal with the court which

rendered the judgment and serving a copy of it to the adverse

party

Record on appeal required only in special proceedings and/r or

separate appeals when required.

2. Petition for review

RTC decision in the exercise of its appellate jurisdiction

How done? Filing a petition for review (Rule 42)

3. Appeal by certiorari

How done?

When questions of law are raised or involved, it shall be to the SC

under rule 45

WHAT IS THE PERIOD

FOR AN ORDINARY

APPEAL?

15 days from notice of the judgment or final order appealed from

INTERRUPTION: a timely motion for new trial or reconsideration

NO EXTENSION FOR MR/MNT: can’t file a motion for extension

of time to file MNT or MR

*Note: If habeas corpus cases are appealed, it shall be taken 48

hours from notice of the judgment or final order.

WHEN PERFECTED IF by notice of appeal: perfected upon the filing of the notice

(with the RTC) and payment of lawful fees

IF by record on appeal: upon approval of the record on appeal

filed in due time (with the RTC)

LOSS OF

JURISDICTION

NOA: P+EXP

ROA: A+EXP

IF by notice of appeal: the court (RTC) loses jurisdiction over the case upon the perfection and the expiration of the time to

appeal of other parties

IF by record: the court loses jurisdiction ONLY over the subject

matter thereof upon the approval of the records on appeal

and the expiration of time to appeal of the other parties

RESIDUAL POWERS

I-A-P-O-A

In both instances (notice/record), the court (lower court) has

residual powers prior to the transmittal of the original record

(NoA) or record on appeal (RoA):

1. Issue orders for the protection and preservation of

rights of the parties which do not involve any matter

litigated by the appeal

2. Approve compromises

3. Permit appeals of indigent litigants

4. Order execution pending appeal (Sec 2 R39)

5. Allow withdrawal of appeal

DISMISSAL OF APPEAL Prior to the transmittal of the original record or record on

appeal to the appellate court, the trial court may dismiss:

a. Taken out of time

b. Non-payment of docket-other lawful fees

Note: The trial court may do this motu proprio or on motion

Remedy of aggrieved party: Rule 65

WHAT HAPPENS

WHEN APPEAL IS NOT

FILED IN TIME?

Judgment becomes final and executory

WILL JUDGMENT BE

STAYED?

Yes. Perfected appeal under Rule 41 will stay the judgment.


43

Cases (important cases, he loves questions about appeal)

1. Silverio Jr v. CA: The denial of an MR of an order dismissing a complaint is

NOT an interlocutory order. It is a final order. It is therefore appealable. If

appeal is not proper, like when it’s interlocutory, it’s rule 65.

Quick facts of the case: In the settlement of S’s estate, RTC issued an omnibus order requiring N to vacate the property belonging to S’s estate. N filed an MR

against the order which was denied. N filed a notice of appeal. The RTC denied it and the CA reversed. SC agreed with the RTC, reasoning that N availed of the

wrong remedy because you can’t appeal an interlocutory order. The remedy was rule 65. The estate wasn’t partitioned yet and the order was just for N to vacate.

Difference of final order and interlocutory order

Interlocutory Order Final order

one which does not dispose of the case completely but leaves something to be

decided upon

one that disposes of the subject matter in its entirety.

Generally non-appealable: BUT if rendered with GADLEJ: Rule 65 may lie.

Appealable

2. Manila Memorial Park v. CA: Effect when MR is filed on last day of 15 day

period: Imaginary 1 day left -> BUT this is changed by Neypes (as discussed below)

3. Neypes v. CA: FRESH PERIOD RULE

A filed a case against B. It was dismissed on April 10, 2007.

A received a copy of the order of dismissal on April 12, 2007. On April 27, 2007 (the last day), A filed an MR. It was dismissed.

Thereafter, A appealed on May 3, 2007. CA dismissed the appeal on the ground that it was too late. It ruled that

the 15 day period to appeal should have been counted from April 12, 2007, the day they received the order dismissing the complaint.

SC ruling: Now you get a fresh 15 day period once your MR/MNT is denied. 15 days from the receipt of the order of the court dismissing a

MNT/MR. o However, this 15 day fresh period to appeal is non-

extendible 40, 41, 42, 43, 45 -> when your MR is denied, you also have new 15 day

period except that under 40 and 41, the fresh period is non-extendible

4. Trans International v. CA: The court may extend the time or allow the

perfection of the appeal beyond the prescribed period if it be satisfactorily shown that there is justifiable reason, such as fraud, accident, mistake or

excusable negligence, or similar supervening casualty, without fault of

the appellant, which the court may deem sufficient reason for relieving him from the consequences of his failure to comply strictly with the law.

5. Kho v. Camacho (Notice of appeal does not require approval)

The RTC cannot dismiss an appeal on the ground that there are only

questions of law

This is because whether an appeal involves only a question of law and/or fact is left to the determination of the appellate court, and not by

the court which rendered the subject decision appealed from. The role of the judge who issued the order appealed from (in the RTC) is to

approve or disapprove the record on appeal (when required) and the appeal bond, but not a notice of appeal since a notice of appeal DOES

NOT REQUIRE the approval of the judge.

6. Custodio v. CA: An appellee (the one who won in the lower court), who has not himself appealed may not obtain from the appellate court any affirmative

relief other than what was granted in the lower court’s decision

a. EXCEPTION: (Citytrust) A and B, as solidary debtors, lost a

collection case to D. A appealed but it was dismissed. B appealed successfully and because of that, the interest rate as regards B

was reduced. The SC held that even if A did not successfully appeal, the reduced interest rate should also be applicable to it,

under the principle of equity


44

Rule 42: Petition for Review from the RTC to the CA

WHEN TAKEN? When the decision of the RTC is in the exercise of its appellate

jurisdiction file verified petition for review in the CA

Ross Rica Sales: A filed a case of unlawful detainer against B

in the MTC. B lost. B appealed the decision to the RTC (Rule 40). B lost in the RTC. His remedy is under Rule 42.

Note: The peculiar thing in this case is that when B lost in the

RTC, he filed a notice of appeal with the RTC (Rule 41) then he filed an MR with the RTC too. SC stated that the MR cured the

defective remedy initially availed of by B.

N.B. If case starts with MTC, Rule 42 comes into play because

the RTC will exercise its appellate jurisdiction

Grounds:

1. Error of fact 2. Error of law (pure questions of law may be raised)

3. Mixed errors of fact and law

PERIOD 15 days either

from notice of the decision sought to be reviewed OR from notice of the denial of petitioner’s MNT or MR

Note: (2 extensions)

Upon motion: 15 days additional extension can be availed of THEN another 15 day extension after that (for the most

compelling reasons) CAUSE FOR

DISMISSAL Note: The RoC provides that these constitute sufficient ground

for dismissal.

1. Failure to pay docket/lawful fee/costs 2. Failure to comply with proof of service of the petition

3. Failure to comply with certification for non-forum shopping

Sec 4 also provides that CA may dismiss the petition upon filing

when its: (PPQ)

1. Patently without merit 2. Prosecuted for delay

3. Questions raised are too unsubstantial WHEN IS PETITION

GIVEN DUE

COURSE?

When the CA finds prima facie that the lower court has

committed an error of fact or law that will warrant a reversal

or modification

Note: Sec 4 provides also that when the petition is filed, CA may require respondent to file a comment within 10 days from

notice. Just because CA required respondent to file a comment doesn’t mean it gave the petition due course

WHEN PERFECTED? Upon timely filing and the payment of corresponding docket

and other lawful fees

LOSS OF

JURISDICTION RTC loses jurisdiction over the case upon perfection of the appeal and the expiration of the time to appeal of the other

parties

RESIDUAL POWERS RTC has residual powers before the CA gives the petition due course

(IAPOA)

1. Issue orders for the protection and preservation of rights

of the parties which do not involve any matter litigated

by the appeal

2. Approve compromises

3. Permit appeals of indigent litigants

4. Order execution pending appeal (Sec 2 R39)

5. Allow withdrawal of appeal

WILL A PETITION

UNDER RULE 42

STAY THE

JUDGMENT?

(Situation: B lost a collection case in the MTC. He lost on

appeal to the RTC. He filed a petition for review under rule 42 to the CA. In this case, the judgment can’t be executed while

he is appealing it)

GR: Yes. When appeal is perfected, it shall stay the judgment or final order

EX: 1. Civil cases decided under rules of summary procedure (e.g.

forcible entry, unlawful detainer) 2. When CA, law or RoC provide otherwise

Case:

1. Ditching v. CA: The CA can dismiss a petition when it’s filed beyond the

reglementary period EVEN IF it already gave the petition due course. This is because perfection of an appeal within the reglementary period is a

jurisdictional requirement.


45

Rule 43: Quasi Judicial Agencies to CA

WHEN TAKEN? When judgment or final order is by the following quasi-judicial

agencies (Note: CTA not included anymore and look at RoC for complete list, will only note down the important/easy to

remember)

1. CSC 2. SEC

3. Office of the President 4. Land Registration Authority

5. Social Security Commission 6. GSIS

7. Board of Investments

8. Voluntary Arbitrators authorized by law

Grounds:

1. Question of fact 2. Question of law

3. Mixed question of fact and law

DECISIONS UNDER

THE LABOR CODE REMEDY for decisions under the Labor Code (by NLRC, Secretary of Labor, Director of Bureau of Labor Relations):

Petition for certiorari to the CA under Rule 65

DECISION OF DOJ

SEC REMEDY for decisions of DOJ Sec in petitions for review of prosecutor’s resolutions:

Petition for Certiorari to the CA under Rule 65

PERIOD 15 days either

from notice of the decision sought to be reviewed OR from notice of the denial of petitioner’s MNT or MR

Note:

Only one MR shall be allowed (2 extensions)

Upon motion: 15 days additional extension can be availed of THEN another 15 day extension after that (for the most

compelling reasons Cause for

dismissal Note: The RoC provides that these constitute sufficient ground

for dismissal.

1. Failure to pay docket/lawful fee/costs

2. Failure to comply with proof of service of the petition

3. Failure to comply with certification for non-forum

shopping

Sec 8 also provides that CA may dismiss the petition upon filing when its: (PPQ)

1. Patently without merit

2. Prosecuted for delay

3. Questions raised are too unsubstantial

WHEN IS PETITION

GIVEN DUE

COURSE?

When the CA finds prima facie that the QJ agency concerned has committed an error of fact or law that will warrant a

reversal or modification. If no prima facie showing, dismissed.

Finding of fact of QJ agency: When supported by substantial evidence, it shall be binding on the CA.

Effect of rule 43

on judgment

GR: The filing of a petition under rule 43 will NOT stay the

judgment, award, or final order (as compared to Rule 41, which does)

EXC: when CA directs otherwise or when law directs otherwise

Remedy to stay judgment: Apply for TRO

Samaniego doctrine: an appeal will not prevent the OMB

decision from being executory (penalty is not material anymore) even if appellant gets an injunction

1. Fabian v. Desierto and Lanting a. Appeals from the decisions of the Office of the Ombudsman in

administrative disciplinary cases should be taken to the Court of Appeals under the provisions of Rule 43 (OMB administrative

disciplinary decisions -> Rule 43 to the CA) b. Remedy from decision of OMB finding PC (through a resolution) in

criminal cases -> Rule 65 to the SC


46

Rule 45: Appeal by certiorari to the SC

WHEN TAKEN? Decisions of these courts:

1. CA 2. Sandiganbayan

3. CTA 4. RTC

PERIOD 15 days from notice of judgment or decision or denial of MNT or MR

Extension: Upon motion for extension, only a one time 30 day

extension. However, SC can do what it wants and relax this.

Grounds: Only PURE QUESTIONS OF LAW (See CRBC v. CA

below)

OTHER REMEDIES

TO BE INCLUDED IN

THE PETITION?

Petitioner may include

1. A writ of preliminary injunction 2. Other provisional remedies

CAUSE FOR

DISMISSAL Note: The RoC provides that these constitute sufficient ground for dismissal.

1. Failure to pay docket/lawful fee/costs

2. Failure to comply with proof of service of the petition 3. Failure to comply with certification for non-forum

shopping

Sec 5 also provides that SC may dismiss the petition upon filing when its: (PPQ)

1. Patently without merit

2. Prosecuted for delay 3. Questions raised are too unsubstantial

IS REVIEW A

MATTER OF RIGHT? No. This will be granted only if there are special and important reasons therefore. The following, even if not controlling, are the

guidelines

1. When lower court decided a question of substance not yet determined by the SC

2. When lower court decided a question of substance not in accordance with the law or jurisprudence

3. When the lower court departed from the accepted and

usual course of judicial proceedings 4. When the lower court allowed a departure from the

accepted and usual course of judicial proceedings

ADDITIONAL

PLEADINGS AND

DOCUMENTS

IN deciding whether to dismiss, deny or give due course to the

petition, the SC may require or allow the filing of such pleadings, briefs, documents, etc as it may deem necessary

APPLICABILITY Rule 45 applicable to both civil and criminal cases

Not applicable in criminal cases where the penalty imposed is death, RP or life imprisonment

1. Nunez v. GSIS Family Bank

The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. (Filing of one will be a bar to the other)

The distinctions between Rules 45 and 65 are far and wide. The most apparent is that errors of jurisdiction are best reviewed in a special

civil action for certiorari under Rule 65 while errors of judgment can only be corrected by appeal in a petition for review under Rule

45. However, this Court, in the interest of justice, may treat a petition

for certiorari as having been filed under Rule 45 if the same was

filed within the reglementary period for filing a petition for review.

Nunez filed the petition on time both under Rules 45 and 65 therefore it can still be given due course

2. CRBC v. CA: When motion to dismiss is based on failure to state cause of action, there is no question of fact. It only raises questions of law. The proper

remedy for the aggrieved party is rule 45 and not rule 41 when this motion to dismiss is denied.

Question of Fact Question of Law

Doubt or difference arises as to the truth or falsehood of facts OR when the

question requires the study of the whole evidence, considering the credibility of

witnesses, relevancy of surrounding circumstances and the like.

KEYWORD: review of evidence to

determine truth/falsity of facts

exists when there is doubt or controversy as to how the law is applied

to a certain state of facts

examples:

determining if complaint states a cause of action (Note: Under Rule

16 MTD) issue of jurisdiction like w/n a court

has jurisdiction determining if a petition for relief

from judgment was properly granted


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Rule 38: Petition for relief from judgment

WHAT ARE THE

REMEDIES AFTER

FINALITY?

1. Petition for relief from judgment (Rule 38)

2. Annulment of judgment (Rule 47)

3. Petition for certiorari (Rule 65) WHEN IS THIS

REMEDY AVAILABLE FINAL JUDGMENT: If a court enters a judgment against a

party through fraud, accident, mistake or excusable negligence (FAME)

LOSS OF APPEAL: When court enters judgment against a

party and the party is prevented from taking an appeal through FAME

In both cases, he will file the petition in the court that rendered the decision

Example: A filed a collection case against B in RTC Manila. A

won and the decision became final. If grounds are present, B must file the petition for relief in RTC Manila, the court that

rendered the judgment

Note: You can only file petition for relief from judgment in the

RTC or the MTC (not in the CA or SC)

Valencia v. CA: A petition for relief from judgment is only available against a final and executory judgment.

If the RTC/MTC decision subject of the petition for relief from

judgment has not yet attained finality because of a timely appeal or MR, then this remedy is NOT available.

PERIOD TO FILE Within 60 days after petition learns of the judgment, final order or other proceeding but NOT more than 6 months after such

judgment was entered or such proceeding was taken

“Since the proceeding was taken vs. entry of judgment”

Not all decisions are entered. For example, a compromise judgment requires no entry of judgment. From the time it is

rendered, it is already executory. In this case, the period shall be counted from the time the compromise judgment was made.

Victory Liner v. Malinias: Time for filing is strictly followed. If

it elapses, the petition CANNOT be given due course. GROUNDS 1. FAME

Fraud: must be extrinstic, the kind which prevented the

aggrieved party from having a trial or presenting his case to court.

Accident: Must be fortuitous, without any fault on part of the one asking for relief

Mistake: Must be a mistake of fact

Negligence to be excusable must be one which ordinary

diligence and prudence could not have guarded against.

2. Meritorious defense COURT ACTION REQUIRE ANSWER: Once the petition is filed and it is

sufficient in form and substance to justify relief, the court shall an issue order requiring the adverse parties to file an answer

(15 days)

AFTER ANSWER IS FILED: The court will hear the petition and if it finds that the allegations in it are not true, it shall

dismiss the petition.

IF COURT FINDS MERIT: It shall set aside the judgment or final order or other proceedings. Thereafter, the case will stand

as if it was never taken. The court shall then proceed to

hear and determine to the case as if a MNT/MR was granted.

WHERE DENIAL OF AN APPEAL IS SET ASIDE: The lower

court shall be required to give due course to the appeal and to elevate the record of the appealed case as if a timely and

proper appeal was made. PRELIMINARY

INJUNCTION The court, which the petition for relief was filed, may grant a

preliminary injunction as may be necessary upon filing by the petition of a bond in favor of the adverse party, conditioned

that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all

damages and costs that may be awarded to him by reason of the issuance of the injunction.

HOWEVER, the injunction shall not operate to discharge or

extinguish any lien which the adverse party may have acquired upon the property of the petitioner.

1. Gomez v. Montalban

Gomez filed a collection caseagainst Montalban in RTC. Montalban was declared in default for failing to file her answer on time. Court ruled in favor of Gomez

Montalban filed a petition for relief from judgment, alleging that there was defective summons because the summons was served on a certain dela Torre,

who allegedly was not authorized to receive summons (which led to her not

being able to answer)

o She claimed she had valid defenses and even claimed that the RTC did not have jurisdiction as the amount was only cognizable by the MTC

(40k was the principal amount claimed) The petition for relief was


48

granted. RTC set aside its decision for lack of jurisdiction without prejudice to re-filing in the MTC

Gomez went to the SC under rule 65

Issue: Did the RTC have jurisdiction? Was Montalban’s remedy proper given the fact that it was filed within the period for filing a motion for reconsideration/appeal?

Yes, RTC had jurisdiction. The principal loan was 40k with 15% interest but it

already grew to 239k. When it grew to 239k (because of interest), that’s when Gomez filed the complaint. (Back then, it was 200-300 for RTC)

o assuming that RTC had no jurisdiction on account of the defective service, the remedy of Montalban should have been an MR/MNT or

maybe even under rule 65

In Montalban’s petition for relief, she contended that judgment as entered

against her through mistake or fraud due to alleged defective summons.

A petition for relief from judgment is an equitable remedy that is

allowed only in exceptional cases where there is no other available or adequate remedy. In this case, she had so many other remedies available.

When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial court, and

he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this

petition. Indeed, relief will not be granted to a party who seeks avoidance from the

effects of the judgment when the loss of the remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the right to

appeal which had been lost thru inexcusable negligence

It also noteworthy that Montalban did not avail of the remedies of a defaulted

party In addition, 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.

What is the remedy when a petition for relief from judgment is granted?

Rule 45: If questions of law involved Rule 41: If there also questions of fact involved


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Rule 47: Annulment of Judgments or final orders and resolutions

WHEN TAKEN?

Purcon v. MRM:

Only MTC/RTC

decisions can be

subject of

Annulment of

Judgment

Decisions/Final orders of RTC: This remedy is still available

even if the judgment has been final and executory

Who annuls? The CA annuls.

However, Sec 10 provides for this:

Judgments and final orders of MTCs shall be annulled in the RTC

having jurisdiction over the MTC. (meaning, if MTC decision is sought to be annulled, file it with the RTC)

Reliefs Available (Sec 9)

The judgment of annulment may include the award of damages,

attorney’s fees and other relief.

If the questioned judgment or final order or resolution has already been executed, the court may issue such orders of

restitution or other relief as equity may warrant.

GROUNDS

(COMBINED

SECTION 1 AND 2)

1. When ordinary remedies of MNT, appeal or petition for relief are no longer available through no fault of the

petitioner 2. Either EXTRINSIC FRAUD or LACK OF JURISDICTION (of

the RTC)

Note: Extrinsic fraud shall not be a valid ground IF it was already availed of OR could have been availed of in a motion for

new trial or petition for relief

Extrinsic Fraud: any fraudulent act of the prevailing party in the litigation which is committed outside of the trial of the case.

PERIOD FOR FILING 1. IF based on extrinsic fraud: Within 4 years from the discovery of the fraud

2. IF based on lack of jurisdiction: Before laches or estoppel bars its filing

PARTIES AND

CONTENTS Islamic Da’Wah: A non-party to the judgment may file this petition as long as he can prove his allegation that the

judgment was obtained through FAME or that the court did not have jurisdiction.

It must be verified and also include a certification for non-forum

shopping

COURT ACTION If there is no substantial merit to the petition, it can be

dismissed outright.

IF prima facie merit is found, it shall be given due course and

respondent will be served summons EFFECT OF IF GROUND IS LACK OF JURISDICTION: A judgment of

ANNULMENT OF

JUDGMENT annulment shall set aside the questioned judgment or final order or resolution and render the same null and void WITHOUT

prejudice to the original action being re-filed in the proper court

IF GROUND IS EXTRINSIC FRAUD: The court may on motion, order the trial court to try the case as if a timely motion

for new trial has been granted (CA will tell the RTC to try it again or RTC will tell MTC to try it again)

SUSPENSION OF

PRESCRIPTIVE

PERIOD

The prescriptive period for re-filing of the original action shall be deemed suspended from the filing of such original action

until the finality of the judgment of annulment.

HOWEVER the period will not be tolled where the extrinsic fraud is due to the plaintiff in the original action.

Victory Liner v. Malinias

Malianas’ car collided with Victory Liner’s bus. Malianas sued Victory Liner for damages to his truck. MTC ruled in favor of Malianas.

Victory Liner filed an MR but it was declared to be a mere scrap of paper for failure to

include notice of hearing therefore it did not toll the period to appeal (therefore it

was final and executory) He then went to the RTC by certiorari assailing the denial of

his MR. Also dismissed.

Victory Liner filed a petition for relief from judgment against the MTC denial of his

MR. It was denied for being filed out of time.

Victory Liner also filed a petition for annulment of judgment under rule 47 (with the

CA) CA ruled that the extrinsic fraud grounds raised by Victory Liner had already

been availed of in its earlier petition for relief from judgment. Determined, Victory

Liner went to the SC under Rule 45

Issue: Should Victory Liner’s petitions be granted?

First, what should have petitioner done?

o It could have assailed MTCs denial of the MR under rule 65 alleging

GADLEJ.

o It could’ve filed under rule 38, seeking that the MTC allow the appeal

despite the finality of judgment on the ground that it was prevented from

taking an appeal due to FAME

What he did was file a notice of appeal even if it was stated that the decision was

already final and executory due to the defective MR. This was wrong. Also, it was

only after the notice of appeal was denied that VL pursued rule 38. Unfortunately,

this was filed 16 months after the rendition of the judgment sought to be set aside

and 14 months after the judgment was declared final and executory

As regards the Rule 47 petition, VL went to the CA to annul the RTC ruling as regards

its petition for certiorari with a half-hearted attempt to also include the MTC ruling.

However, this is incorrect because an action to annul a judgment or final order of the

MTC should be filed with the RTC and NOT the CA.

o Possible remedy for RTC dismissal of petition for certiorari: Rule 41 appeal

As regards CA’s reasoning in dismissing the rule 47, the SC stated that the rule 38

was for the MTC decision (dismissing his notice of appeal) while the rule 47 was for

the RTC decision.

Rule 65: Certiorari


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Rule 65: Petition for CERTIORARI

Certiorari:

Original civil

action to correct errors

of jurisdiction

Grounds:

1. No jurisdiction/GAD: When any tribunal, board or officer

exercising judicial or quasi-judicial functions has acted without/excess of its jurisdiction OR with grave abuse of

discretion amounting to lack or excess of jurisdiction 2. No appeal or any plain speedy and adequate remedy

in the ordinary course of law

Grave abuse of discretion: The judgment is rendered in a capricious, whimsical arbitrary or despotic manner

What is being asked of the court to do? To annul or modify

Where can it be

filed

1. If the petition relates to an act or omission of a MTC

or of a corporation, board, officer: RTC exercising

jurisdiction over the territorial area (or also CA or Sandiganbayan, w/n it is in the aid of the court’s appellate

jurisdiction)

2. If petition involves act or omission of a quasi-judicial agency: CA

3. If election cases involving an act or omission of a MTC/RTC: COMELEC in aid of its appellate jurisdiction

4. Remember, however, that Rule 56 provides that the SC also has original jurisdiction over petitions for mandamus,

prohibition and certiorari. SC will generally dismiss if originally filed in it unless there are special reasons.

Period for filing 60 days from notice of the judgment or resolution

In case an MR/MNT is timely filed, whether such motion is required or not, the petition shall be filed not later than 60 days

counted from the notice of the denial of the motion

1. Jamer v NLRC: A filed a labor case in NLRC. She lost. She went to the SC under rule 65 without filling an MR in NLRC.

a. When an MR is an adequate remedy, a petition for certiorari will not prosper.

Error of Judgment Error of Jurisdiction

Not within the ambit of Rule 65 Within the ambit of Rule 65

When court exercises its jurisdiction and commits an error. The decision is VALID

even if wrong and the remedy is APPEAL. Examples would be errors of

procedure or mistake in the court’s

findings.

When court is without jurisdiction and renders a decision. The decision is void

even if correct and the remedy is CERTIORARI. Remember, Rule 65 is only

a remedy to correct errors of

JURISDICTION.

2. Day v. RTC of Zamboanga: A filed an ejectment case against B in the MTC. B

lost. B went to the RTC of Zamboanga under Rule 65. RTC granted petition for

certiorari. RTC was incorrect because appeal was available. Also, RTC cannot entertain questions of fact in a rule 65 proceeding

a. Courts cannot correct (petitioners cannot raise) questions of fact in a

certiorari case. The proper remedy is to assign questions of fact as an

error in a properly taken appeal. b. Errors in the application of the law and the appreciation of evidence

committed by a court after it has acquired jurisdiction over a case are correctible ONLY by appeal.

3. Romy’s Freight Service v. Castro: A filed a complaint for illegal dismissal against B before the labor arbiter. B lost. B appealed to the NLRC. NLRC ruled

in favor of B. A went to the CA under Rule 65 ascribing GADLEJ. CA ruled in favor of A, reasoning that the finding of the labor arbiter was supported by

substantial evidence. B went to the SC under Rule 65. SC ruled that it couldn’t entertain questions of fact and law under Rule 65, and could only correct errors

of jurisdiction.

a. As a general rule, a motion for reconsideration is needed before a

petition for certiorari under rule 65 can be resorted to. However, there are exceptions (many, like when the order is a patent nullity because

the lower court did not have jurisdiction, where the MR would be useless these have to be proven first to justify not filing an MR)

b. In a certiorari proceeding, questions of fact and questions of law are NOT entertained. The sole object of the writ is to correct errors of

jurisdiction or grave abuse of discretion. 4. Gerardo v. de la Pena

a. The SC possesses no authority to rule upon non-jurisdictional issues in a certiorari proceeding. The only question involved in certiorari is

jurisdiction. b. In this case, the lower court correctly dismissed the complaint in CIVIL

CASE 2 based on res judicata considering the prior judgment in CIVIL CASE 1. All the requisites were present.

5. Banco Filipino v. CA

a. GENERALLY: IF petition for review under Rule 45 is available, Rule 65 CANNOT be availed of

b. HOWEVER, although the SC may treat a petition for certiorari as having been filed under Rule 45 (even if originally filed under 65), the

petition must STILL BE FILED within the reglementary period for filing petition for review (15 days from notice/within 30 day extension pd)

6. Fajardo v. Bautista: Jareno, as developer of land, sold lots to Fajardo under a contract to sell. However, Jareno also sold the lot to Habacon. Aggrieved,

Fajardo went to the RTC to annul the contract to sell. RTC dismissed stating that it did not have jurisdiction, as the HLURB had jurisdiction. Fajardo did not

file an MR and instead went to the SC under R65, alleging GADLEJ of the RTC. SC ruled that Fajardo used Rule 65 as a substitute for the lost remedy of

appeal. Also, HLURB really did have jurisdiction and the RTC didn’t. RTC was correct in dismissing.

a. Generally, an order of dismissal, whether right or wrong, is a final order and hence a proper subject of appeal, NOT CERTIORARI.

GENERALLY, the remedies of appeal and certiorari are mutually exclusive and not alternative or successive


51

b. Accordingly, although the special civil action of certiorari is NOT proper when an ordinary appeal is available, it may granted where it is

shown that the appeal would be inadequate, slow, insufficient.

c. Nevertheless, certiorari CANNOT substitute for the lost or lapsed

remedy of appeal, where such loss is through the neglect or error in the choice of remedies.

7. Lansang v. CA and Jaca v. Davao Lumber a. The availability of appeal DOES NOT AUTOMATICALLY

PRECLUDE the filing of a petition for certiorari when the appeal is NOT an ADEQUATE REMEDY or EQUALLY BENEFICIAL, SPEEDY

OR SUFFICIENT. It is the inadequacy, and not the mere absence of all other legal remedies, and the danger of failure of justice without

the writ, that must usually determine the propriety of certiorari 8. Tan v. CA:

a. GR: MR must first be filed before resorting to Rule 65

b. EXC:

i. The order is a patent nullity, as where the lower court has no jurisdiction

ii. Where the questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court

iii. When there is an urgent necessity for the resolution of the question and further delay would prejudice the interests of

the Government iv. Where petitioner was deprived of due process

v. Where an MR would be useless vi. Where the issue raised is one purely of law or where public

interest requires


52

Discovery

Epigraphs:

Rule 23: Depositions pending action Rule 24: Depositions before action or pending appeal

Rule 25: Interrogatories to Parties Rule 26: Admission by Adverse Party

Rule 27: Production or inspection of documents or things Rule 28: Physical and mental examination of persons

Rule 29: Refusal to comply with modes of discovery

WHAT IS A

DEPOSITION? A deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for

discovery purposes.

WHAT IS

DISCOVERY?

Discovery is the pre-trial phase in a lawsuit in which each

party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices

including requests for answers to interrogatories, requests for

production of documents, requests for admissions and depositions

Modes of discovery:

1. Depositions pending action (Rule 23) 2. Depositions before action or pending appeal (Rule 24)

3. Interrogatories to Parties (Rule 25) 4. Request for admission (Rule 26)

5. Motion for production or inspection of documents or things (Rule 27)

6. Submission to a physical or mental examination by a doctor (Rule 28)

RULE 23: DEPOSITIONS

PENDING ACTION:

When can depositions pending action be taken? 1. With leave of court after jurisdiction has been

obtained over any defendant (through summons/voluntary submission) or over property that

is subject of the action a. If a person is in prison, deposition must

always been taken with leave of court 2. Without leave of court after an answer has been

served

Scope of examination: Any matter not privileged which is relevant to the subject of the pending action

RULE 23 SEC 4

(IMPORTANT) At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition may be used against

any party who was present or represented at the taking of the deposition or who had due notice thereof in accordance with

the following:

1. Any deposition may be used by any party for the purpose

of contradicting or impeaching the testimony of deponent as a witness

2. The deposition of a party or of any one, who at the time of

taking the deposition was an officer, director or managing

agent of a public or private corporation, partnership or association which is a party may be used by an adverse

party for any purpose 3. WHEN A DEPOSITION OF A WITNESS, WHETHER OR

NOT A PARTY, MAY BE USED BY ANY PARTY FOR ANY PURPOSE deposition may be used without the

deponent actually being called to the witness stand: when the court finds that (D-A-A-S-E-100)

a. The witness is dead b. The witness resides more than 100km from the

place of trial or hearing

c. The witness is abroad UNLESS it appears that his

absence was procured by the party offering the deposition

d. The witness is unable to attend or testify because of age, sickness, infirmity or imprisonment

e. That the party offering the deposition has been unable to procure the attendance of the

witness by subpoena

f. Upon application and notice, in exceptional circumstances wherein the testimony of the

witness is important 4. If only part of a deposition is offered in evidence by a

party, the adverse party may require him to introduce all of it which is relevant to the part introduced and any party

may introduce any other parts

OTHER SECTIONS

OF RULE 23

1. Sec 5: Substitution of parties does not affect the right to

use depositions previously taken and when an action has been dismissed and another action involving the same

subject is afterward brought between the same parties/representatives/successors-interest, all depositions

lawfully taken and duly filed in the former action may be used as if it was originally taken

2. Sec 6: Objection may be made at the trial or hearing to receiving in evidence any deposition/part thereof for any

reason which would require the exclusion of the evidence if the witness were then present and testifying

3. Sec 7: A party shall not be deemed to make a person his own witness for any purpose by taking his deposition

4. Sec 8: The introduction in evidence of the deposition/any part thereof for any purpose OTHER THAN THAT OF

CONRADICTING or IMPEACHING THE DEPONENT makes the deponent the witness of the party introducing the

deposition a. HOWEVER this shall not apply to the use by an

adverse party of a deposition against an officer of

http://en.wikipedia.org/wiki/Lawsuit

http://en.wikipedia.org/wiki/Civil_procedure


53

a corporation etc (The deposition of a party or of any one, who at the time of taking the deposition

was an officer, director or managing agent of a

public or private corporation, partnership or

association which is a party may be used by an adverse party for any purpose)

5. Sec 9: At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether

introduced by him or by any other party 6. Sec 10: Persons before whom depositions may be taken

within the Philippines a. Any judge

b. Any notary public c. If agreed upon by parties in writing, with any

person authorized to administer oaths. This can

be done at any time or place

7. Sec 11: Persons before whom depositions may be taken in foreign countries:

a. On notice: Before a secretary of embassy or legation, consul general, consul, vice consul or

consular agent of the Republic of the Philippines (in that foreign country)

b. Before such person or office as may be appointed by commission or under letters rogatory

c. If agreed upon by parties in writing, with any person authorized to administer oaths. This can

be done at any time or place

8. Sec 12: Commission/letters rogatory (referred to in (b) of above: A commission or letters rogatory shall be issued

when necessary and convenient on application and notice. Through this, officers may be designated in

notices/commissions to take the depositions 9. Sec 13: Person taking deposition cannot be a

a. relative of the deponent (6th degree of consanguinity/affinity)

b. employee or counsel (and employee of counsel) of deponent

c. person financially interested in the action 10. Sec 15: A party must give reasonable notice in writing to

every other party in the action when he wants to take the deposition of any person upon oral examination

11. Sec 16: After notice is served for taking a deposition by oral examination and a motion is filed by any party or by

the person sought to be examined, the court may issue orders to protect the deponent or other parties

12. Sec 17: The officer who will take the deposition shall put the witness on oath and shall personally record the

testimony of the witness 13. Sec 25: Deposition upon written interrogatories: A party

desiring to take the deposition of any person upon written

interrogatories shall serve upon every other party notice of such. A party so served may serve cross-interrogatories

upon the party proposing to take the deposition within 10

days. Within 5 days, the latter may serve re-direct

interrogatories upon a party who has served cross interrogatories

14. Sec 29: Effect of errors or irregularities in depositions: a. As to notice: All E/I for taking a deposition are

waived unless written objections are promptly made

b. As to DQ of an officer: objection deemed waived unless objection is promptly made before

the taking begins or as soon thereafter as the dq becomes known to or could be discovered with

reasonable diligence

c. As to competency or relevancy of evidence:

objections as to this are not waived by failure to make them before or during the taking of the

deposition unless the ground for objection is one which might have been obviated or removed if

presented at that time d. As to oral examination/other particulars:

deemed waived unless objected to at the taking of the deposition

e. As to form of written interrogatories: objections waived unless objection served in

writing

f. As to manner of preparation: waived unless a motion to suppress deposition is promptly made

RULE 24: DEPOSITIONS

BEFORE ACTION

OR PENDING

APPEAL

1. Sec 1: BEFORE ACTION: A person who desires to perpetuate his own testimony or that of another

person regarding any matter that may be cognizable in any court of the Philippines may file a verified petition in

the court of the place of the residence of any expected adverse party

2. Sec 7: PENDING APPEAL (leave of court required): If an appeal has been taken from a judgment of a court

(including the CA in some cases) OR before taking of an appeal before the time expires,

The court in which the judgment was rendered may allow

the taking depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the

said court. In this case, the person desiring to perpetuate the testimony may file a motion for leave to take the

depositions

RULE 25:

INTERROGATORIES

TO PARTIES

(QUESTIONS!)

When can interrogatories to parties be made?

1. With leave of court after jurisdiction has been obtained over any defendant (through

summons/voluntary submission) or over property that


54

is subject of the action a. If a person is in prison, deposition must

always been taken with leave of court

2. Without leave of court after an answer has been

served

How is it made? When a party desires to elicit material and facts from any adverse parties, he shall file and serve upon

them written interrogatories to be answered. If the party served is a corporation/partnership/association, the officer

allowed to testify in its behalf will answer.

Time to answer: 15 days from service unless the court extends (on motion)

Time to file objections: Objections to any interrogatories must

be made 10 days after service. Answers deferred until objections resolved

Effect of failure to answer: No admission. You’re just being

asked questions.

Limit: No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party

Effect of failure to serve written interrogatories: Unless

thereafter allowed by the court for good cause shown and to

prevent failure ot justice, a party not served with written interrogatories may not be compelled by the adverse party to

give testimony in open court, or to give a deposition pending appeal

RULE 26: ADMISSION BY

ADVERSE PARTY

1. Sec 1: Request for admission: At any time after issues have been joined, a party may file and serve upon any

other party a written request for the admission by the latter of the genuineness of any material and relevant

document described in and shown with the request or of the truth of any material and relevant matter

2. Sec 2: Implied admission: (Basically, party must specifically deny or explain why he cannot admit nor deny

the request for admission. Otherwise, it will be deemed admitted) Each of the matters of which an admission is

requested shall be deemed admitted UNLESS within a period designated in the request (which shall be at least 15

days from service) or within a longer time as the court may allow upon motion, the party to whom the request is

directed files and serves upon the party requesting admission, a sworn statement specifically denying the

matters of which an admission is requested or explain why he cannot admit nor deny them.

3. Sec 3: Effect of admission: Any admission made by a

party pursuant to such request is for the purpose of the pending action ONLY and shall not constitute an admission

by him for any other purpose nor may the same be used

against him in any other proceeding

4. Sec 4: The court may allow the party making an admission under this rule, to expressly or impliedly withdraw the

admission

N.B. Serve the request for admission on the party you’re asking. You can’t serve it on the counsel alone. There is no

implied admission if you do that.

RULE 27: MOTION

FOR INSPECTION

Upon motion of any party showing good cause, the court in

which an action is pending may

1. Order any party to produce and permit the inspection

and copying/photographing of any documents, papers,

books, accts, letters, photographs, objects NOT privileged, which constitute or contain evidence

material to any matter involved in the action and

which are in the possession and control of the party ordered

2. Order any party to permit entry upon designated land or other property in his possession or control for the

purpose of inspecting, measuring ,surveying, etc.

RULE 29: SANCTIONS FOR

REFUSAL TO

COMPLY WITH

MODES OF

DISCOVERY

1. REFUSAL TO ANSWER (by party/deponent) Ask the other questions and then get an order to have party

compelled to answer: If a party/other deponent refuses to answer any question upon oral examination, the

examination may be completed on other matters or adjourned, depending on the proponent. The proponent

may then apply to the court of the place where the deposition is being taken for an order to compel an

answer.

This can also be done when a witness refuses to answer any interrogatory submitted under rule 23/25

If application is granted, court will order the refusing party

or deponent to answer the question or interrogatory. Court may also order deponent or refusing party to pay

proponent his expenses.

If application denied, court will require the proponent to pay the refusing party expenses + atty’s fees

2. CONTEMPT OF COURT: If a party or other witness refuses to answer any question after being directed to do

so by the court of the place in which the deposition is being taken, the refusal may be taken as contempt of court.

3. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS:


55

a. If a party or an officer or managing agent of a party willfully fails to appear before the officer

who is to take the deposition OR fails to serve

answers to interrogatories, the court, on motion

and notice may: i. Strike out all or any part of any pleading

of that party ii. Dismiss the action or proceeding or any

part thereof (if party is plaintiff) iii. Enter a judgment by default against that

party (if party is defendant) iv. Order him to pay reasonable expenses

Cases in modes of discovery

Dasmarinas v. Reyes (When depositions are taken)

American President Lines (APL) sued Dasmarinas Garments to recover 53k. In

its answer, Dasmarinas garments simply denied any liability and set up

counterclaims. During the trial, APL presented its first witness and it was thereafter completed.

The case was reset to a later date (May 3) for reception of the testimony of two more witnesses for APL. At the May 3 hearing, instead of presenting the

witnesses, APL filed a motion praying that it wanted to take the depositions of Lee and Yeh in Taiwan and prayed that for this purpose, a letters rogatory be

issued addressed to the diplomatic officials of the Philippines in Taipei. However, since this could not be done since there was no consulate office in

Taiwan, they asked that Director Joaquin Roces of the Asia Exchange Center to hear and take the oral depositions of the two Taiwanese. Dasmarinas naturally

opposed. RTC allowed the deposition to be taken by Roces, opining that the Asian

Exchange Center was the authorized Philippine representative in Taiwan and that it may take the testimonies of the two witnesses residing there by

deposition, but only upon written interrogatories so that Dasmarinas can cross-examine them

Dasmarinas went to the CA but it was denied.

Issue: Can a party, during the trial of a case, present its evidence by taking the deposition of its witnesses in a foreign jurisdiction before a private entity not

authorized by law to take depositions?

Depositions are a mode of discovery. They are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person

which are relevant in some suit or proceeding in court. They are meant to enable a party to learn all material and relevant facts, not only known to him

and his witnesses but also those known to the adverse party and the latter’s own witnesses

In fine, the object of discovery is to make it possible for all the parties to a case to learn all the material and relevant facts from whomever may have

knowledge thereof so that they the facts can be clearly be laid before the court through their pleadings or motions.

Depositions are principally made available by law to the parties as a means of

informing themselves of all the relevant facts; they are not therefore generally

meant to be a substitute for the actual testimony in open court of a party or witness. The deponent must as a rule be presented for oral examination in open

court at the trial or hearing. Indeed, any deposition offered to prove the facts therein set out during a trial

or hearing, in lieu of the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground that it is hearsay; the party

against whom it is offered has no opportunity to cross-examine the deponent at the time that his testimony is offered. It does not matter that that opportunity

for cross-examination was afforded during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a party at

the time that the testimonial evidence is actually presented against him during

the trial or hearing.

However, depositions may be used without the deponent being actually called to the witness stand by the proponent, under certain conditions and for certain

limited purposes. These exceptional situations are governed by (now Sec 4, Rule 23 of the ROC)

Sec. 4. Use of depositions. — At the trial or upon the hearing of a motion of an

interlocutory proceeding, any part or all of a deposition, so far as admissible under

the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in

accordance with any of the following provisions: (a) Any deposition may be used by any party for the purpose of contradicting or

impeaching the testimony of deponent as a witness; (b) The deposition of a party or of any one who at the time of taking the deposition

was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for

any purpose; (c) The deposition of a witness, whether or not a party, may be used by any

party for any purpose if the court finds: (1) that the witness is dead; or

(2) that the witness if out of the province and at a greater distance than fifty

(50) kilometers from the place of trial or hearing, or is out of the Philippines,

unless it appears that his absence was procured by the party offering the

deposition; or

(3) that the witness is unable to attend to testify because of age, sickness,

infirmity, or imprisonment; or

(4) that the party offering the deposition has been unable to procure the

attendance of the witness by subpoena; or

(5) upon application and notice, that such exceptional circumstances exist as to

make it desirable, in the interest of justice and with due regard to the

importance of presenting the testimony of witnesses orally in open court, to

allow the deposition to be used;


56

(d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and

any party may introduce any other parts.

It is apparent then that the deposition of any person may be taken wherever he

may be, in the Philippines or abroad. o If the party or witness is in the Philippines, his deposition "shall be

taken before any judge, municipal or notary public" (Sec. 10, Rule 23, Rules of Court).

o If in a foreign state or country, the deposition shall be taken:

(a) on notice before a secretary or embassy or legation, consul general, consul, vice-consul, or

consular agent of the Republic of the Philippines, or (b) before such person or officer as may be

appointed by commission or under letters rogatory" Leave of court is not necessary where the deposition is to be taken before "a

secretary or embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines," and the defendant's answer

has already been served After answer, whether the deposition-taking is to be accomplished within the

Philippines or outside, the law does not authorize or contemplate any intervention by the court in the process, all that is required being that

"reasonable notice" be given "in writing to every other party to the action . . . (stating) the time and place for taking the deposition and the name and

address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or

group to which he belongs. . . . " (Sec. 15, Rule 24). o The court intervenes in the process only if a party moves

1. to "enlarge or shorten the time" stated in the notice (id.), 2. "upon notice and for good cause shown," to prevent the

deposition-taking, or impose conditions therefor, e.g., that "certain matters shall not be inquired into" or that the taking

be "held with no one present except the parties to the action

and their officers or counsel," etc. or 3. to terminate the process on motion and upon a showing that

"it is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent

or party" Where the deposition is to be taken in a foreign country where the Philippines

has no "secretary or embassy or legation, consul general, consul, vice-consul, or consular agent," then obviously it may be taken only "before such person or

officer as may be appointed by commission or under letters rogatory. Section 12, Rule 23 provides as follows:

Sec. 12. Commission or letters rogatory. — A commission or letters rogatory shall

be issued only when necessary or convenient, on application and notice, and on such terms and with such directions as are just and appropriate. Officers may be

designated in notices or commissions either by name or descriptive title and letters

rogatory may be addressed "To the Appropriate Judicial Authority in (here name the country)."

COMMISSION: A commission may be defined as "(a)n instrument issued by a

court of justice, or other competent tribunal, to authorize a person to take depositions, or do any other act by authority of such court or tribunal"

LETTERS ROGATORY: Letters rogatory, on the other hand, may be defined as "(a)n instrument sent in the name and by the authority of a judge or court to

another, requesting the latter to cause to be examined, upon interrogatories filed in a cause pending before the former, a witness who is within the

jurisdiction of the judge or court to whom such letters are addressed"."

What matters is that the deposition is taken before a Philippine official acting by authority of the Philippine Department of Foreign Affairs and in virtue of a

commission duly issued by the Philippine Court in which the action is pending, and in accordance, moreover, with the provisions of the Philippine Rules of

Court pursuant to which opportunity for cross-examination of the deponent will be fully accorded to the adverse party

Dasmariñas also contends that the "taking of deposition is a mode of pretrial discovery to be availed of before the action comes to trial." Not so.

o Depositions may be taken at any time after the institution of any action, whenever necessary or convenient. There is no rule that limits

deposition-taking only to the period of pre-trial or before it; no prohibition against the taking of depositions after pre-trial. Indeed, the

law authorizes the taking of depositions of witnesses before or after an appeal is taken from the judgment of a Regional Trial Court "to

perpetuate their testimony for use in the event of further proceedings in the said court" and even during the process of execution of a final

and executory judgment Dasmariñas further claims that the taking of deposition under the

circumstances is a "departure from the accepted and usual judicial proceedings of examining witnesses in open court where the demeanor could be observed

by the trial judge;" that it is "inherently unfair" to allow APL, "a foreign entity suing in the Philippines, to present its evidence by mere deposition of its

witnesses away from the 'penetrating scrutiny' of the trial Judge while petitioner is obligated to bring and present its witnesses in open court subject

to the prying eyes and probing questions of the Judge." o Of course the deposition-taking in the case at bar is a "departure from

the accepted and usual judicial proceedings of examining witnesses in open court where their demeanor could be observed by the trial

judge;" but the procedure is not on that account rendered illegal nor is the deposition thereby taken, inadmissible.

o It precisely falls within one of the exceptions where the law permits such a situation, i.e., the use of deposition in lieu of the actual

appearance and testimony of the deponent in open court and without being "subject to the prying eyes and probing questions of the Judge."

o This is allowed provided the deposition is taken in accordance with the applicable provisions of the Rules of Court and the existence of any of

the exceptions for its admissibility — e.g., "that the witness if out of the province and at a greater distance than fifty (50) kilometers from

the place of trial or hearing, or is out of the Philippines, unless it


57

appears that his absence was procured by the party offering the deposition; or . . . that the witness is unable to attend to testify

because of age, sickness, infirmity, or imprisonment, etc."— is first

satisfactorily established

The Regional Trial Court saw fit to permit the taking of the depositions of the witnesses in question only by written interrogatories, removing the proponent's

option to take them by oral examination, i.e., by going to Taipei and actually questioning the witnesses verbally with the questions and answers and

observations of the parties being recorded stenographically. The imposition of such a limitation, and the determination of the cause thereof,

are to be sure within the Court's discretion. The ostensible reason given by the Trial Court for the condition — that the deposition be taken "only upon written

interrogatories" — is "so as to give defendant (Dasmariñas) the opportunity to cross-examine the witnesses by serving cross-interrogatories."

o The statement implies that opportunity to cross-examine will not be

accorded the defendant if the depositions were to be taken upon oral

examination, which, of course, is not true. For even if the depositions were to be taken on oral examination in Taipei, the adverse party is

still accorded full right to cross-examine the deponents by the law, either by proceeding to Taipei and there conducting the cross-

examination orally, or opting to conduct said cross-examination merely by serving cross-interrogatories.

People v. Webb

Hubert Webb was one of the accused in the famous rape case. In the trial, he

filed a motion to take the testimony by oral deposition praying that he be allowed to take the testimonies of several personnel of the US Department of

Justice, Department of Motor Vehicles before the diplomatic officials of the Philippines in the US in lieu of presenting them as witnesses in court. He alleges

that their testimonies are crucial to establish his innocence. His basis of Sec 4 of Rule 23 of the ROC

The prosecution opposed, alleging that Rule 23 Sec 4 has no application in

criminal cases. The RTC denied Webb’s motion. Webb went to the CA by certiorari. CA ruled in favor of Webb, allowing the diplomatic officials of the

Philippines to take the depositions. Petitioner (prosecution) went to the SC via rule 65

Issue: Was the CA correct in allowing the diplomatic officials to take the oral

deposition? NO. CA INCORRECT.

SC first labored to define what a deposition is: It is the testimony of a witness taken upon oral question or written interrogatories, not in open court,

but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly

authenticated, and intended to be used in preparation and upon the trial of a civil or criminal prosecution.

It is a pre-trial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other

party. The person who is deposed is called the deponent. The deposition is

conducted under oath outside of the court room, usually in one of the lawyers offices. A transcript - word for word account - is made of the deposition. The

testimony of a witness is taken in writing, under oath or affirmation, before

some judicial officer in answer to questions or interrogatories

o The PURPOSE OF TAKING DEPOSITIONS: 1.] Give greater assistance to the parties in ascertaining the

truth and in checking and preventing perjury; 2.] Provide an effective means of detecting and exposing

false, fraudulent claims and defenses; 3.] Make available in a simple, convenient and inexpensive

way, facts which otherwise could not be proved except with great difficulty;

4.] Educate the parties in advance of trial as to the real value of their claims and defenses thereby encouraging

settlements;

5.]Expedite litigation;

6.] Safeguard against surprise; 7.]Prevent delay;

8.] Simplify and narrow the issues; and 9.] Expedite and facilitate both preparation and trial.

o As can be gleaned from the foregoing, a deposition, in keeping with its nature as a mode of discovery, should be taken before and not

during trial. In fact, rules on criminal practice - particularly on the defense

of alibi, which is respondents main defense in the criminal proceedings against him in the court below - states that when

a person intends to rely on such a defense, that person must move for the taking of the deposition of his witnesses within

the time provided for filing a pre-trial motion. A circumspect scrutiny of the record discloses that the evidence to be obtained

through the deposition-taking would be superfluous or corroborative at best. A careful examination of Exhibits 218 and 219 readily shows that these are of the

same species of documents which have been previously introduced and

admitted into evidence in a previous trial court order It need not be overemphasized that the foregoing factual circumstances only

serves to underscore the immutable fact that the depositions proposed to be taken from the five U.S. based witnesses would be merely corroborative or

cumulative in nature and in denying respondents motion to take them, the trial court was but exercising its judgment on what it perceived to be a

superfluous exercise on the belief that the introduction thereof will not reasonably add to the persuasiveness of the evidence already on record.

Republic v. Sandiganbayan

PCGG filed a complaint for reconveyance, reversion, etc against Tantoco

Santiago and the Marcoses. After being served, Tantoco and Santiago, instead of filing answer, filed a motion to strike out some portions of the complaint and

for a bill of particulars. They then presented a motion for leave to file interrogatories under the ROC.

Basically, the sought an answer to the question as regards who among the


58

PCGG commissioners approved or authorized their (Santiago and Tantoco) their inclusion. The Sandiganbayan denied the motion for BOP and the motion for

leave to file interrogatories opining that service of interrogatories before joinder

of issues and without leave of court is premature.

Therafter, Tantoco and Santiago filed with the SB a pleading denominated ―Interrogatories to Plaintiff‖, seeking factual details relative to specific

averments of the PCGG complaint (what specific acts were committed) and a motion for production of documents (seeking the records on the basis of which

the verification of the complajnt was made) Sandiganbayan admitted the interrogatories and granted the motion for production. PCGG opposed and went

to the SC

Issue: Was the SB correct in admitting the interrogatories? YES. Leave of court not required anymore.

Involved in the present proceedings are two of the modes of discovery provided

in the Rules of Court: interrogatories and inspection and production of things

The various modes or instruments of discovery are meant to serve o (1) as a device, along with the pre-trial hearing under Rule 20, to

narrow and clarify the basic issues between the parties, and o (2) as a device for ascertaining the facts relative to those issues.

The field of inquiry that may be covered by depositions or interrogatories is as broad as when the interrogated party is called as a witness to testify orally at

trial. The inquiry extends to all facts which are relevant, whether they be ultimate or evidentiary, excepting only those matters which are privileged.

The objective is as much to give every party the fullest possible information of all the relevant facts before the trial as to obtain evidence for use upon said

trial. The principle is reflected in Section 2, Rule 24 (governing depositions) which generally allows the examination of a deponent —

1) regarding any matter, not privileged, which is relevant to the subject of the

pending action, whether relating to the claim or defense of any other party

2) as well as:

(a) "the existence, description, nature, custody, condition and location of any

books, documents, or other tangible things" and (b) "the identity and location of persons having knowledge of relevant facts."

WHEN LEAVE OF COURT NOT REQUIRED: such modes of discovery as (a) depositions (whether by oral examination or written interrogatories) under Rule

24, (b) interrogatories to parties under Rule 25, and (c) requests for admissions under Rule 26, may be availed of without leave of court, and generally, without

court intervention. o The Rules of Court explicitly provide that leave of court is not

necessary to avail of said modes of discovery after an answer to the complaint has been served. It is only when an answer has not yet

been filed (but after jurisdiction has been obtained over the defendant or property subject of the action) that prior leave of

court is needed to avail of these modes of discovery, the reason being that at that time the issues are not yet joined and the

disputed facts are not clear.

WHEN LEAVE OF COURT REQUIRED: On the other hand, leave of court is required as regards discovery by (a) production or inspection of documents or

things in accordance with Rule 27, or (b) physical and mental examination of

persons under Rule 28, which may be granted upon due application and a

showing of due cause. The petitioner's (prosecution’s) objections to the interrogatories served on it in

accordance with Rule 25 of the Rules of Court cannot be sustained. o It should initially be pointed out that Tantoco/Santiago’s motion for

leave to file interrogatories was correct since leave of court was required when discovery is being availed of before an answer is

served. But there was no need for the private respondents to seek such leave to serve their Interrogatories to Plaintiff after they had filed

their answer to the PCGG's complaint, just as there was no need for the Sandiganbayan to act thereon.

there is also good cause for the production and inspection of the documents

subject of the motion for production. Some of the documents are, according to

the verification of the amended complaint, the basis of several of the material allegations of said complaint. Others, admittedly, are to be used in evidence by

the plaintiff. It is matters such as these into which inquiry is precisely allowed by the rules of discovery, to the end that the parties may adequately prepare

for pre-trial and trial. The only other documents sought to be produced are needed in relation to the allegations of the counterclaim. Their relevance is

indisputable; their disclosure may not be opposed.

RECAP

When leave of court required When not required

Depositions under Rule 24: depositions pending action when answer

to complaint has been served

Depositions under Rule 24: depositions pending action when answer

has not been filed but after jurisdiction has been obtained over defendant

Depositions under Rule 25: interrogatories to parties when answer

to complaint has been served

Deposition PENDING appeal under Rule 24

Request for admission under Rule

26: request for admission does not require court approval

Depositions under Rule 25:

interrogatories to parties when answer has not been filed but after jurisdiction

has been obtained over defendant

Rule 27: Motion for production of

inspection of documents or things

Rule 28: Motion for physical and mental examination of person

PO v. CA: A request for admission is redundant when the party from whom it is

sought has already admitted the same facts in his pleading. Additionally, he does

not have to make a second denial of those already denied in his answer to the

complaint.


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Execution: Rule 39

WHAT KIND OF

JUDGMENT IS

READY FOR

EXECUTION?

Final and executory judgments/orders

Final: when the order has completely disposed of the case and there’s nothing left to be done

Executory: The order can now be enforced because the appeal period has already expired.

Office of Court Admin v. Corpuz: Losing party must first

receive notice of judgment before the judgment can be executed [due process]

EXECUTION

ACCORDING TO

NATURE

As a matter of right: upon motion

When the judgment is final and executory

This is enforceable by mandamus because it is merely a ministerial function

As a matter of discretion (Sec 2)

1. Execution pending appeal: may only issue upon good grounds

Requisites:

a. Prevailing party must file motion b. Notice must be given to the adverse party

c. The trial court must still have jurisdiction over the case

d. The trial court must still be in possession of either the original record or the record on appeal, as the case

may be

If these are all done, the court of origin [tc] at its discretion, may order the execution of the final judgment or order before

the expiry of the period to appeal.

HOWEVER, when trial court loses jurisdiction, the motion for execution pending appeal may be filed in the appellate court.

To reiterate:

Before an appeal is perfected: Prevailing party must file the motion with the trial court that rendered the

judgment/final order After it has been perfected: with the appellate court

2. Partial, separate or several judgments: may be executed

on the same terms.

Immediately executory judgments: (meaning they are not

stayed by appeal) MTC judgment in forcible entry and unlawful detainer, RTC judgment on appeal against defendant,

judgment in action for injunction, receivership, accounting,

support.

Example:

A filed a forcible entry case in MTC against B. B lost so he appealed it to the RTC. RTC affirmed. Even if B appeals to the

CA, the judgment is already immediately executory.

EXECUTION

ACCORDING TO

MODE OF

ENFORCEMENT

1. Execution by motion: A final and executory judgment or

order may be executed on motion within 5 years from the date of its entry.

2. Execution by action: You must file an action if the 5 year period has already lapsed.

CAN ORDER OF

EXECUTION BE

APPEALED?

No. As per Rule 41, you have to file an appropriate civil action

under Rule 65.

CAN YOU STAY

EXECUTIONS AS A

MATTER OF RIGHT?

No. However, executions as a matter of discretion may be stayed.

Requisites:

a. Court approval of a supersedeas bond filed by the

(judgment debtor aka losing party) b. The bond must be conditioned upon the performance

of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part.

Ex: A won a collection case against B in a trial court. Within

the 15 day period for appeal, A motioned for execution pending appeal. B can file a supersedeas bond to stay

execution (pending appeal)

What is a supersedeas bond? Basically, it is a bond that a defendant/losing party puts up if he wants to defer

payment/compliance with a judgment until the appeal is over.

WHAT IS THE

EFFECT OF THE

REVERSAL OF AN

EXECUTED

JUDGMENT ON

APPEAL?

Where the executed judgment is reversed totally/partially or is

annulled on appeal or otherwise, the trial court, upon motion,

may issue orders of restitution or reparation of damages as equity and justice may warrant

Basically, court will tell the winning party to return what he

already got

WHAT ARE THE

MODES OF

EXECUTION?

1. By motion within 5 years from date of entry of judgment

2. By independent action called ―revival of judgment‖ after 5

years and before it has prescribed

WHAT ARE THE

RULES IN

EXECUTION IN CASE

OF DEATH OF A

1. When judgment creditor (winner) dies: His executor, administrator of successor-in-interest must apply for the

writ of execution 2. When judgment debtor (loser) dies AND it is for


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PARTY? recovery of personal/real property: a. The writ shall be enforced/directed against

his executor, administrator or successor in

interest

b. The lien on the property may also be enforced

3. When judgment debtor dies AND execution has actually levied upon any of his property: the

properties may be sold for the satisfaction of the judgment obligation.

WHAT IS THE

LIFETIME OF THE

WRIT OF

EXECUTION?

As per Sec 14, it is 5 years because you have 5 years to file the motion for the writ to issue.

HOW ARE

EXECUTIONS FOR

JUDGMENTS FOR

MONEY ENFORCED?

IMMEDIATE

PAYMENT + LEVY +

GARNISHMENT

1. Immediate payment on demand: Basically, the

judgment debtor will be ordered to pay the full amount stated in the writ of execution. It can be through cash,

certified bank check payable only to the judgment creditor or through any other means acceptable to

the judgment creditor. 2. Satisfaction by levy: This arises when the judgment

debtor cannot pay all or part of the obligation in cash, bank check or other mode of payment. The sheriff will

levy upon the properties of the judgment obligor of every kind and nature.

Dagooc v. Erlina: You can’t use a promissory note to satisfy

a money judgment.

What is the meaning of levy?

It is the act whereby a sheriff sets apart or appropriates for the purpose of satisfying the writ of the execution, a part or

the whole of the judgment debtor’s property

What are the three different kinds of sales under the law?

Ordinary execution sale

Judicial foreclosure sale Extra-judicial foreclosure sale

Rules to keep in mind:

a) Judgment debtor may choose what will be levied upon b) If he does not choose, the sheriff shall levy on personal

property first if any and then the real properties if the personal properties are insufficient.

c) The sheriff must only sell so much of the property as is sufficient to satisfy the debt and lawful fees.

3. Garnishment of debts and credits: Another way of executing a judgment for money. It is a species of

attachment for reaching credits belonging to the judgment

debtor and owing to him from a stranger in litigation. It is

an attachment by which the plaintiff seeks to subject to his claim property of the defendant in the hands of a third

person or money owed by such third person or garnishee to the defendant.

Examples:

Credits (receivables), bank deposits, financial interests, royalties, commissioners and other personal property not

capable of manual delivery in the possession or control of third parties.

However, you can’t garnish public funds and wages. Also,

when bank deposits are garnished, it is not a violation of the bank secrecy law.

Rules to keep in mind:

a) The garnishment shall be made by notifying the third

party owing such debts or having in his possession or control such credits to which the judgment creditor is

entitled. b) In case there are two or more garnishees holding

deposits/credits sufficient to satisfy the judgment, the

judgment debtor, if available, may choose the garnishees. Otherwise, the judgment creditor will choose.

WHAT HAPPENS

WHEN THE

PROPERTY LEVIED

ON IS CLAIMED BY

ANOTHER PERSON?

RULE 39 SEC 16

Situation: Sheriff levies on a property that is claimed by a third party.

What must the third party do? Make an affidavit of his title

or right to possession, stating the grounds and serve it upon the officer making the levy.

When this is done, the sheriff/officer making the levy will not

be bound to keep the property.

However, when the judgment creditor (winner), upon the demand of the officer, files a bond approved by the court to

indemnify the third party at an amount not less than the value of the levied property, the officer can still keep it.

Also, the judgment creditor can claim for damages against a

third-party claimant who filed a spurious claim.

What are the remedies of the third party claimant if his claim is disapproved


61

1. File a separate action to determine title or right of possession

2. File complaint for damages against the bond filed by the

judgment creditor

Other rules/nuances:

a) The officer is not liable for damages for the

taking/keeping of the property to any third-party claimant if the judgment creditor files a bond.

b) However, an action may be filed by the judgment creditor against the sheriff/levying officer as long as it is filed

within 120 days from the filing of the bond c) When the writ of execution is issued in favor of the

Republic of the Philippines or any officer representing it,

the filing of such bond (indemnity bond) is not required

d) In case the sheriff is sued for damages as a result of the levy, he shall be represented by the Solicitor General and

if he is held liable, the National Treasurer will pay for it.

SALE ON

EXECUTION

(NOTICE

REQUIREMENTS)

1. If perishable property: by posting written notice of time and place of sale at 3 public places for a reasonable time

2. If other personal property: posting in 3 public places for at least 5 days

3. In real property, by posting in 3 public places. If the value of the property is more than 50k, notice must be

published once a week for 2 straight weeks in one newspaper in circulation in the provine or city

4. In ALL cases, notice must be given to the judgment debtor at least 3 days before the sale except if it is

perishable. If it’s perishable, notice shall be given any time before the sale

Rules:

a) All execution sales must be made at a public auction to

the highest bidder. b) The judgment debtor, if present, may direct the order in

which the property shall be sold (remember, if enough has been sold to satisfy the judgment, no more should be

sold. If there is any excess, it shall go to the judgment debtor)

c) The judgment creditor can join in the auction. If he joins and no third party claim has been filed, he doesn’t have to

pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall pay the

excess.

CONVEYANCE OF

THE PROPERTY

1. When it’s personalty and it is capable of manual

delivery: After payment, the officer making the sale must deliver it to the purchaser and execute a certificate of a

sale if required.

2. When it’s not personalty and it is not capable of manual delivery: After payment, the officer making the

sale must execute and deliver to the purchase a certificate

of sale. The certificate transfers all the rights that the

judgment debtor may have had (as of the date of levy/prelim attachment) to the buyer

3. If real property: A certificate of sale must be given upon payment showing the description of the property, the

price paid. The certificate must be registered 4. If property claimed by third-person: The certificate to

be issued shall state that there is a third-party claim

REDEMPTION Who may redeem real property sold?

1. The judgment debtor, his successor in interest in whole or in part of the property

2. A creditor having a lien by virtue of an attachment,

judgment, or mortgage on the property sold. He is called

the redemptioner

Period to redeem

1. Judgment debtor (or successor in interest): IF he is

exercising redemption ahead of the redemptioner within 1 year from the date of registration of certificate of

sale with the RD 2. Redemptioner exercising redemption ahead of

judgment debtor Also within 1 year from the date of registration

3. Redemptioner redeeming from another redemptioner Within 60 days from the last

redemption

The purchaser/last redemptioner entitled to:

1. Execution of final deed of sale by the sheriff: This is to enable purchaser or last redemptioner to consolidate his

title to the property and for the issuance by the RD of new title in his name

2. Physical possession of the property by means of writ of possession against judgment debtor or his successor

interest or against any occupant. This can be availed of AFTER filing of a case in which the judgment was

rendered and a writ of execution was issued.

WHEN WRIT OF

POSSESSION MAY

BE ISSUED

1. Sale at a public auction Where 12 month period has

already lapsed without any redemption

2. Land registration proceedings

3. Judicial foreclosure Debtor must be in possession and

no third person intervenes 4. EJ foreclosure

SATISFACTION OF

JUDGMENT This is where the case ends. The clerk of court enters the satisfaction of the judgment. When does he do this?


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1. Upon the return of a writ of execution showing full

satisfaction

2. Upon the filing of an admission to the satisfaction by the

judgment creditor/counsel 3. Endorsement of such admission by the judgment creditor

or his counsel

Cases:

Fiestan:

The formalities of a levy, as an essential requisite of a valid execution sale under Section 15 of Rule 39 and a valid attachment lien under Rule 57 of the

Rules of Court, are not basic requirements before an extrajudicially foreclosed

property can be sold at public auction.

At the outset, distinction should be made of the three different kinds of sales under the law, namely: an ordinary execution sale, a judicial foreclosure sale,

and an extrajudicial foreclosure sale, because a different set of law applies to

each class of sale mentioned. o An ordinary execution sale is governed by the pertinent provisions of

Rule 39 of the Rules of Court. o Rule 68 of the Rules of Court applies in cases of judicial foreclosure

sale. o On the other hand, Act No. 3135, as amended by Act No. 4118

otherwise known as "An Act to Regulate the Sale of Property under Special Powers Inserted in or Annexed to Real Estate Mortgages"

applies in cases of extrajudicial foreclosure sale. Levy, as understood under Section 15, Rule 39 of the Rules of Court in relation

to execution of money judgments, has been defined by this Court as the act whereby a sheriff sets apart or appropriates for the purpose of satisfying the

command of the writ, a part or the whole of the judgment-debtor's property

Manila Remnant:

Garnishment is a species of attachment for reaching credits belonging to the judgment debtor and owing to him from a stranger to the litigation. It is an

attachment by means of which the plaintiff seeks to subject to his claim property of the defendant in the hands of a third person or money owed by

such third person or garnishee to the defendant. The rules on attachment also apply to garnishment proceedings

A garnishment order shall be lifted if it established that:

(a) the party whose accounts have been garnished has posted a counterbond or has

made the requisite cash deposit; (b) the order was improperly or irregularly issued as where there is no ground for

garnishment 7 or the affidavit and/or bond filed therefor are defective or insufficient;

(c) the property attached is exempt from execution, hence exempt from preliminary attachmen9 or chanrobles virtual law library

(d) the judgment is rendered against the attaching or garnishing creditor.

Partial execution of the judgment is not included in the above enumeration of the legal grounds for the discharge of a garnishment order.

Campillo: A notice of levy on execution cannot prevail over an existing adverse

claim inscribed on the title. This is because the judgment creditor’s title is subject to the title of the judgment debtor.


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Rule 57: Preliminary Attachment

NATURE OF

PRELIMINARY

ATTACHMENT

Olib v. Pastoral/Davao Light

Attachment is defined as a provisional remedy by which the property of an adverse party is taken into legal custody, either at

the commencement of the action or at any time thereafter, as a security for the satisfaction of any judgment (keyword: S-S-J)

that may be recovered by the plaintiff or any other proper party.

AUXILIARY: It is an AUXILIARY remedy that cannot have an independent existence apart from the main suit or claim

instituted by the plaintiff against the defendant. Thus, the attachment must fail if the suit itself cannot be maintained.

USUALLY INCORPORATED in COMPLAINT: The

plaintiff/other proper party incorporates the application for

attachment in the complaint or other appropriate pleading. CAN BE ISSUED EVEN BEFORE ACQUIRING

JURISDICTION OVER DEFENDANT: as long as the action has been properly commenced.

NOTICE AND HEARING REQUIREMENTS: notice and hearing is not mandatory for the issuance of a writ of

attachment. The only requisite is that the court is satisfied upon consideration of the affidavit of the applicant that a

sufficient cause of action exists and that the case is one mentioned in Sec 1 of Rule 57.

EFFECT OF APPEAL: The consequence is that where the main

action is appealed, the attachment which may have been issued as an incident of that action is also considered appealed

AND so removed from the jurisdiction of the court appealed from.

NO PRINCIPAL CASE FOR ATTACHMENT: The attachment itself cannot be the subject of a separate case independent of

the principal action because of its auxiliary nature. ORDER OF JUDGE DENYING A MOTION FOR ANNULMENT

OF WRIT OF PRELIM ATTACHMENT IS INTERLOCUTORY: Hence, it cannot be appealed. Rule 65 is the remedy.

HOWEVER when the writ of prelim attachment becomes final by virtue of a final judgment in the principal case, the

writ itself is subject to appeal (jointly with the judgment rendered in the main case)

A bond is not deemed extinguished by reason alone of its non-payment (see below)

Order of attachment is considered discharged ONLY where the judgment has become final and executory and not when it is

still in appeal.

WHEN FILED? 1. At the commencement of the action (filing of the complaint OR

2. At any time before entry of judgment

GROUNDS 1. An action for recovery of specified amount of money or damages (but not moral and exemplary damages)on a cause

of action arising from a contract, quasi-contract, delict, quasi-

delict against a party who is about to depart from the

Philippines with intent to defraud creditors (usually a collection case or damages case)

2. An action for embezzled money/property: a. OR money/ property fraudulently misapplied (to his

own use) by a public officer, officer of a corporation, 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 willful violation of duty

3. An action to recover property fraudulently or unjustly taken, detained, or converted when the property or any part

thereof has been concealed, removed or disposed to prevent

its being found or taken

4. An action involving fraud in contracting or performing obligations

5. An action against a party who has removed or disposed of his property or about to do so with intent to defraud his

creditors 6. An action against a party who does not reside and is not

found in the Philippines or on whom summons may be served by publication

ISSUANCE AND

CONTENTS OF

ORDER

Sec 2 provides that:

An order of attachment may be issued either ex-parte OR

upon motion with notice and hearing in the court where the action is pending, or by the CA, or the SC.

Contents: Court will order sheriff to attach so much of the property in the Philippines of the party against whom it is

issued as may be sufficient to satisfy the applicant’s demand o BUT the party against whom it is issued MAY make a

DEPOSIT or file a bond, the amount of which should be enough to satisfy the amount in the order

bond vs. the ORDER of attachment

Sec 3 provides for the requirements for a writ of attachment to be issued: (AFFIDAVIT + BOND filed with the court)

1. AFFIDAVIT: by applicant or by another person who

personally knows the facts must show: a. a sufficient cause of action

b. one/more enumerated grounds are present c. there is no other sufficient security for the claim

sought to be enforced by the action d. the amount due to the applicant, or the value of

the property the possession of which he is entitled to recover, is as much as the sum for

which the order is granted above all


64

counterclaims 2. BOND: applicant must give a bond executed to the adverse

party in the amount fixed by the court, with the condition that

the applicant will pay all the costs to the adverse party and all

damages which he may sustain by reason of the attachment if the court shall finally adjudge that the applicant was not

entitled thereto

WHEN ISSUED

EX-PARTE, REQUIREMENTS

WHEN ISSUED

EX-PARTE

BACKGROUND FIRST:

3 stages in writ of attachment

1. Grant of application for writ of attachment (no jurisdiction over

defendant is required) 2. Issuance of writ of attachment (no jurisdiction over defendant

is required)

3. Execution/implementation of writ of attachment (jurisdiction

over defendant is required he must be served summons)

Sec 5 provides for the following: manner of enforcing + provision

for counterbond

The sheriff enforcing the writ shall without delay attach, to await judgment and execution in the action, only so much of the

property in the Philippines of the party against whom the writ is issued as may be sufficient to satisfy applicant’s demand UNLESS

the attachee makes a deposit or gives a counter-bond executed to the applicant in an amount equal to the bond fixed by the court

in the order of attachment or to the value of the property to be attached bond to prevent attachment

IMPORTANT: There can be no levy on attachment unless it is

preceded or contemporaneously accompanied by service of summons

HOWEVER service of summons is not required where:

1. The summons could not be served personally or by substituted service despite diligent efforts

2. Defendant is a Philippine resident who is temporarily abroad

3. The defendant is a non-resident 4. The action is one in rem/quasi in rem (like in

Valmonte)

DISCHARGE OF

ATTACHMENT

1. Sec 12 (upon giving counterbond): After the writ of

attachment has been enforced, the attachee may move for the discharge wholly or in part upon filing a counterbond or cash

deposit to the attaching party in an amount equal to the

order of attachment 2. Other grounds (Sec 13)

a. BEFORE or AFTER Levy (kahit bago makuha): attachee may motion for an order to discharge

the attachment on the ground that it was improperly issued or irregularly enforced or that

the bond filed by attaching party is insufficient

3. If attaching party loses the case (judgment rendered

against him): all the proceeds of sales and money collected or received by the sheriff under the order of attachment AND

all property attached remaining ith the sheriff shall be delivered to the attachee and the order of attachment shall be

discharged

WHEN 3RD

PARTY CLAIMS

THE PROPERTY

ATTACHED

PROCEDURE:

1. Third party must make an affidavit showing his title to the

property OR right to possess it. 2. He must then serve the affidavit upon the sheriff while sheriff

has POSSESSION or BEFORE PUBLIC AUCTION

3. Once the sheriff is served the affidavit, he is no longer bound

to keep the property under attachment UNLESS the attaching party makes a bond to indemnify the third party claimant in a

sum not less than the value of the property levied upon. This

bond will protect the sheriff from liability for damages. 4. In case of disagreement as to such value, it shall be decided

by the court issuing the writ of attachment. 5. For a claim for damages by the third party/attachee against

the bond due to the taking or keeping of the property to prosper, it must be filed within 120 days from the date of

the filing of the bond (of the attaching party referred to in #3)

6. When attacher is RP, the filing of the bond in #3 is NOT required.

SATISFACTION

OF JUDGMENT

OUT OF

PROPERTY

ATTACHED

If attacher wins and gets a writ of execution on the judgment, the sheriff may sell the attached property to satisfy the judgment in

the following manner:

1. Paying to judgment creditor the proceeds of all sales of perishable or other property

2. If there’s a balance (if kulang), by selling so much of the property necessary to satisfy the balance

3. By collecting from all persons having in their possession credits belonging to the judgment debtor OR from collecting

debts due to the judgment debtor.

CLAIM FOR

DAMAGES ON

ACCOUNT OF IMPROPER,

IRREGULAR OR

EXCESSIVE

ATTACHMENT

When must it be filed?

IF in RTC/MTC

1. Before trial 2. Before appeal is perfected

3. Before judgment becomes executory


65

Such damages may be awarded only after proper hearing and shall be included in the judgment on the main case (even if attachee

loses in main case, he may still be awarded damages for improper,

irregular or excessive attachment)

IF in APPELLATE COURT

If appellate court judgment is in favor of attachee, he must claim

damages sustained during the pendency of the appeal by filing an application in the appellate court before the judgment of the

appellate court becomes executory.

The appellate court may allow the application for damages to be heard and decided by the trial court.

HOWEVER attachee is not prevented from recovering in the

same action the damages awarded him from any property of the attaching party not exempt from execution should the bond or

deposit given by the attaching property be insufficient

Davao Light and Power Co Inc, v. CA

Writs of attachment may properly issue ex parte provided that the Court is satisfied

that the relevant requisites therefor have been fulfilled by the applicant, although it may, in its discretion, require prior hearing on the application with notice to the

defendant; but that levy on property pursuant to the writ thus issued may not be validly effected unless preceded, or contemporaneously accompanied, by service on

the defendant of summons, a copy of the complaint (and of the appointment of guardian ad litem, if any), the application for attachment (if not incorporated in but

submitted separately from the complaint), the order of attachment, and the plaintiff's attachment bond


66

Rule 58: Preliminary Injunction

Prelim

injunction

defined

A preliminary injunction is a preventive remedy.

It is an order granted at ANY stage of an action or

proceeding PRIOR to the judgment or final order, requiring a party, court, agency or person to REFRAIN from

doing particular act/acts. PRELIMINARY MANDATORY INJUNCTION: Requires the

performance of a particular act or acts.

Nature and

Purpose of Prelim

injunction

To preserve the status quo of the things subject of the action

or the relations between the parties and thus protect the rights of the plaintiff during the pendency of the suit.

It cannot protect contingent or future rights. The possibility of irreparable damage, without proof of violation of an actual

or existing right, is not a ground of injunction.

Grounds for issuance

A preliminary injunction may be granted when it is established that:

1. The applicant is entitled to the relief demanded and the

relief consists in the 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

2. The commission, continuance or non-performance of the act or acts complained of during litigation would probably work

injustice to the applicant 3. That a party, court, agency, or a person is doing, threatening

or is attempting to do, or is procuring something 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

Technical Requirements: (verified+bond) 1. VERIFIED: The application in the action is verified and

shows facts entitling applicant to the relief demanded 2. BOND: UNLESS exempted by the court, the applicant files

with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an

amount fixed by the court, to the effect that the applicant will pay to such party/person ALL damages which he may

sustain by reason of the injunction/TRO if the court should finally decide that the applicant was not entitled thereto.

PROCEDURE IN MULTI-SALA COURT: When an application for

a writ of PI or TRO is included in a complaint or initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled

only after notice to and in the presence of the adverse party or person sought to be enjoined.

NOTICE IN CASE OF APPLICATION FOR PRELIM INJ IN MULTI-SALA COURT: In any event, the notice shall be preceded

or simultaneously accompanied by service of summons upon the

adverse party in the Philippines together with the

complaint/initiatory pleading

However, where the summons could not be personally served or by cannot be served by substituted service despite diligent efforts,

or the adverse party is a resident of the Phils and temporarily absent or when he is a non-resident, the requirement of PRIOR or

CONTEMPORANEOUS service shall not apply

WHEN BOND NOT REQUIRED: WHEN TRO is PRAYED FOR: The application for a TRO shall then be acted upon only after all

parties are heard in a summary hearing which shall be done

within 24 hours after the sheriff’s return of service and/or the

records are received by the branch selected by raffle and to which the records shall be transmitted immediately.

NOTE: In preliminary injunction, applicant’s bond is mandatory.

In TRO, applicant’s bond is not mandatory. Only summary hearing required.

Who may

grant preliminary

injunction

1. Where the action or proceeding is pending

As an example:

File in MTC (in cases of pending FEUD cases or actions not exceeding 20k/50k as the case may be

File in RTC (in cases of specific performance for example

2. If the action is already pending in the CA/SC, it may be issued by said court of any member thereof

HOWEVER you can’t file a petition for injunction as a main action

in the CA or SC (usually, actions under rule 65 get to the CA/SC and additionally, injunction is prayed for)

Sec 5: Preliminary

injunction not granted

without notice and its

exception

GR: No preliminary injunction shall be granted without hearing and prior notice to the party or persons sought to be enjoined.

EX:

1. 20 DAY TRO instead (by the TC): If it shall appear from

facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant

before matter can be heard on notice. In this case, the court may issue ex-parte a 20 day TRO (in this case, Prelim INJ

was prayed for but TRO will instead be granted) 2. 72 HOUR TRO in MULTI-SALA COURT: If matter is of

extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a

multi-sala court may issue a 72 hour TRO. After 72 hours, the


67

judge before whom the case is pending will then decide whether to extend the TRO until the application for PRELIM

INJ can be heard. However, in no case shall the 72 hour TRO

exceed 20 days (including the 72 hours already)

a. In the event that the application for preliminary injunction is denied or not resolved within the

said 20 day period, the TRO is deemed automatically vacated. Its effectivity is non-

extendible without need of any judicial declaration to that effect and no court shall have

authority to extend or renew it on the same ground it was issued (however, TRO life can be

extended if BOTH parties ask for it) 3. CA TRO: if CA or a member thereof issues a TRO, it shall last

for 60 days from service.

4. SC TRO: If SC issues, it is effective until further orders

IMPORTANT: the trial court, the CA, the SB or the CTA that

issued a writ of prelim inj against a lower court, board, officer, or QJ agency shall decide the main case or petition within 6

months from the issuance of the writ.

Objections to or dissolution

of injunction

The application for injunction or restraining order may be denied, upon a showing of its insufficiency.

It may also be denied or, if granted, may be dissolved, on other grounds upon affidavits of the party/person enjoined

COUNTERBOND: It may also be further denied or if granted, may be dissolved IF after hearing that although the applicant

is ENTITLED to injunction or restraining order, the issuance or continuance thereof, would cause irreparable damage to the

party/person enjoined and the party/person enjoined files a bond in an amount fixed by the court with the

condition that he will pay all damages which applicant may suffer by the denial or dissolution of the injunction

or restraining order.

When final

injunction granted

IF AFTER TRIAL, it appears that the applicant is entitled to

have the act/acts complained of permanently enjoined, the court shall grant a final injunction perpetually restraining the

party or person enjoined from the commission or continuance of the acts or acts OR confirming the preliminary mandatory

injunction

When

injunction IMPROPER

1. PD 605: cases involving licenses and other permits issued b

public administrative officials for exploitation of natural resources

2. PD 1818: cases involving infrastructure and natural resources projects of public utilities operated by government

3. PD 385: against any government financing institution taking foreclosure of loans of which at least 20% thereof are

outstanding

a. EXCEPTION to these laws: When it does not involve administrative acts that involve exercise of discretion

in technical cases as when mere questions of law are involved, injunction will lie against these cases.

When

injunction

proper

1. Petition for relief (38)

2. Petition for CPM (65) (to restrain respondent)

3. Actions for annulment of judgment 4. Restrain continued breach of valid negative (don’t do)

obligation 5. Restrain abatement of nuisance per accidens while

determination of nuisance is pending

Cases:

1. Decano v. Edu: D was dismissed from service (as a janitor) by E. He was

merely a temporary appointee of an administrative agency. D then filed a petition for injunction and mandamus in Pangasinan RTC to prevent his

dismissal. The official station however of E, is in Quezon City so E was arguing that the Pangasinan RTC did not have jurisdiction. The SC held that where the

main action is the annulment of the action of the respondent AND injunction is merely ancillary, the trial court of the locality where questioned act (the

dismissal) to be implemented has jurisdiction. In this case, the implementation of the dismissal order was to be made in Pangasinan hence the court had

jurisdiction. 2. Versoza v. CA:

a. F owned a parcel of land. He mortgaged it to V. F failed to pay so V foreclosed.

b. To prevent this, F filed a complaint against V for annulment of mortgage with prayer for writ of prelim inj. It was initially

dismissed because of improper verification but F’s MR was granted and the amended complaint was admitted.

c. V filed a petition for certiorari, alleging that the TC committed GADLEJ in admitting the complaint. Certiorari was denied.

d. However, auction proceeded and V won the auction sale. After expiration of the redemption period, a TCT was issued in V’s name. V

then sold it to M who was issued his own TCT. e. In the meantime, F applied for a prelim inj against M, the new owner

as per the title. Court granted the injunction INSOFAR as F’s right to possess the land is concerned

f. The issue is w/n F is entitled to injunction when the act complained of has already been consummated (in this case, F wanted to ANNUL the

mortgage STOP the foreclosure but it was already done) i. SC Ruling: In this case, F was still the owner and was in

possession of the property at the time the original complaint was filed (annulment of mortgage)

ii. GR: where the acts sought to be enjoined have already been performed prior to filing for injunction, the consummated acts

cannot be restrained iii. EX: However, where the acts are performed AFTER the

injunction suit is commenced, a defendant may not as a matter of right proceed to perform the acts sought to be

restrained. He proceeds at his own peril. In this case, he still


68

proceeded with the foreclosure and the eventual sale to M notwithstanding the fact that F already brought an injunction

suit to restrain him from doing so.


69

Rule 59: Receivership

WHAT IS

RECEIVERSHIP?

Normandy v. Duque: A receiver is a representative of the

court appointed for the purpose of preserving and conserving

the property in litigation and prevent its possible destruction or dissipation (if it was instead left in the possession of any othe

parties)

The receiver is not the representative of any of the parties but of all of them to the end that their interests may be equally be

protected.

PRELIMINARY

CONSIDERATIONS

An application for receivership must be VERIFIED.

This application is filed by one or more persons He/They must file it in the court where the action is

pending.

After which, they may be appointed by the court as

receivers where the action is pending, by the CA, or by the SC, or by a member of CA/SC

CASES WHERE

RECEIVERSHIP

MAY BE

APPOINTED

D-DANGER M-MORTGAGE

P-PENDENCY OF

APPEAL

A-AID EXECUTION C-CARRY OUT

JUDGMENT O-OTHERS

DAMPCO

The cases may be divided into three groups. First group would

be during a pending action (1&2). Second group would be AFTER judgment (3) and miscellaneous (4)

1. When it appears from the application that the party

applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action

or proceeding and that such property or fund is in danger of being lost, removed, or materially injured unless a

receiver be appointed to administer and preserve it 2. When it appears in an action by the mortgagee for the

foreclosure that the property is in danger of being wasted or dissipated or materially injured and that its

value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated

in the contract of mortgage 3. After judgment to preserve the property

a. during the pendency of the appeal, or b. to dispose of it according to the judgment, or

c. to aid execution when the execution has been returned unsatisfied or the judgment debtor

refuses to apply his property in satisfaction of the judgment

d. to carry out the judgment into effect 4. In other cases, when it appears that the appointment of a

receiver is the most convenient and feasible means of preserving, administering or disposing the property in

litigation

During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be

filed in and decided by the court of origin and the receiver

appointed be subject to the control of the said court

OTHER TYPES OF

RECEIVERSHIP

1. Receivership in aid of execution of judgment under Rule

39:

2. Bank receivership

3. Insolvency receivership

DUE PROCESS

REQUIREMENT

Notice and hearing is required before a receiver is appointed.

It is incumbent upon the applicant to present evidence to

establish the condition precedent that the property is in danger of being lost, removed or materially injured unless receiver is

appointed to preserve it.

Otherwise put, applicant must present evidence to prove that

the cases enumerated above are indeed existing.

ADDITIONAL

REQUIREMENTS

APPLICANT’S

BOND

RECEIVER’S OATH RECEIVER’S BOND

1. Before an order appointing a receiver is issued, the

applicant is required to file a bond executed to the party against whom thee application is presented

a. Purpose: If the applicant procured the receivership without sufficient cause, the party

against whom it is directed will be compensated by the bond for the damages he may suffer due to

the order 2. Before a receiver enters his duties, he shall swear to

perform his duties faithfully and also file another bond attesting that he will faithfully discharge his duties in the

action and obey the orders of the court

INSTANCES WHEN

APPLICATION FOR

RECEIVERSHIP IS

DENIED OR A

RECEIVER IS

DISCHARGED

1. DISCHARGE IF WITHOUT CAUSE: Receiver may be

discharged if it is shown that his appointment was obtained without sufficient cause. This requires a motion filed by

the adverse party with prior notice to the receiver 2. DENY OR DISCHARGE IF COUNTERBOND IS FILED: If

adverse party files a counterbond, application for receivership may be denied or receiver may be discharged.

a. Counterbond: The adverse party will pay the applicant all damages he (applicant) may suffer by

reason of the acts, omissions or other matters specified in the application as ground for such

appointment 3. IF APPLICANT/RECEIVER’s BOND is INSUFFICIENT:

If either the applicant’s or receiver’s bond is found to be insufficient or if the sureties thereon fail to justify, the

application shall be denied or the receiver will be

discharged as the case may be.

SERVICES OF

COPIES OF BONDS

Both the applicant and the adverse party may be required/may

file bonds in accordance with this rule. Any person filing a bond

in accordance with this rule shall serve a copy on each interest

party, who may challenge to the insufficiency of the bond or of the sureties thereon.

GENERAL POWERS

OF RECEIVER 1. Power to bring and defend in his capacity as receiver

actions in his own name


70

2. To take and keep possession of the property in controversy 3. To receive rents

4. To collect debts due to himself as receiver or to the fund,

property, estate, person or corporation of which he is a

receiver 5. To compound for or compromise the same

6. To make transfers 7. To pay outstanding debts

8. To divide money and other property that shall remain among the persons legally entitled to receive the same

9. Generally, to do such acts respecting the property as the court may authorized

What if the receiver wants to invest the funds in his

possession/control due to the receivership?

He must get a court order + written consent of all the parties to the action

IMPORTANT: No action may be filed by or against a receiver

without leave of court which appointed him.

WHEN CAN

RECEIVERSHIP BE

TERMINATED?

Whenever the court, on its own (motu proprio) or upon motion of either party, shall determine that the necessity of a receiver

no longer exists, it shall (after due notice to all parties and hearing them)

1. Direct the delivery of the funds and other property in the receiver’s possession to the person adjudged to be

entitled to receive them 2. Order the discharge of the receiver from further duty

as such 3. Allow the receiver reasonable compensation as the

circumstances may warrant


71

Rule 60: Replevin

ALL ABOUT

REPLEVIN

BA FINANCE +

CHIAO LIONG TAN

Replevin: It may refer to the action itself (action to regain

possession of chattels wrongfully detained) or a provisional

remedy (allow the plaintiff to retain the thing during the penedency of the action and hold on to it)

A writ of replevin is partly an action in rem and an action in

personam o In rem: insofar as the recovery of specific property

is concerned o In personam: insofar as the damages involved are

concerned The person in possession of the property sought to be

replevied is ordinarily the proper and only necessary party

defendant.

The 3rd parties claiming the property, but are not in possession thereof, is not required to be joined. However,

see digest of BA Finance below. It is different when 3rd party in possession is involved.

Primarily, the action for replevin is only possessory in character and determines nothing more than the right to

possession. HOWEVER when the title to the property is distinctly put in issue by the defendant’s plea, the question

of ownership may also be resolved in the same proceeding. Also, although a replevin action is one for recovery of

possession of personalty, the court can settle issues of

ownership, for the rerurn of the repleived property, or secure a judgment for the value of the property in the

case.

APPLICATION A party praying for the recovery of possession of personal

property may apply for an order for the delivery of such property to him at the following instances:

1. At commencement of the action 2. Any time before the answer

AFFIDAVIT/BOND

REQUIREMENT AFFIDAVIT:

The applicant must show by his own affidavit or that of some other person who personally knows the facts the following:

1. That the applicant is the owner of the property claimed, particularly describing it or that the applicant

is entitled to the possession 2. That the property is wrongfully detained by the

adverse party, alleging the cause of detention thereof to the best of his knowledge, information and belief

3. That the property has not been distrained or taken for a tax assessment or a fine pursuant to law OR

seized under a writ of execution or preliminary attachment (if seized, it must be shown that it is

exempt from seizure or custody) or otherwise placed

under custodia legis 4. The actual market value of property

BOND:

The applicant must also give a bond, executed to the

adverse party. It must be DOUBLE the value of the property.

The bond is also for the return of the property to the adverse party if the return is adjudged by the court

CAN IT BE ISSUED

AGAINST

PROPERTY IN

CUSTODIAL EGIS?

No. However, under rule 57 (attachment), property in custodia legis may be attached

ORDER TO

DELIVER

PROPERTY

Upon the filing of affidavit and the bond, the court shall issue an

order and the corresponding writ of replevin

The writ describes the personal property to be wrongfully detained and requiring the sheriff to take such property into

custody

SHERIFF’S DUTY: Upon receiving the order, the sheriff must serve a copy to the adverse party and take the property if it is

in his possession and retain it in his custody. IF the property or any party thereof is concealed in a building or

enclosure, the sheriff must demand its delivery.

IF it is not delivered, he must break open the building or enclosure to take the property into his possession.

NOTICE AND

HEARING

REQUIREMENT

The order of the writ of replevin is issued ex parte (w/o hearing) as long as the requisites (affidavit + bond) are

present.

WHEN MAY

PROPERTY BE

RETURNED

IF THE ADVERSE PARTY OBJECTS TO THE SUFFICIENCY

OF THE BOND/SURETIES: he cannot immediately require the return of the property (the court will decide first)

IF HE DOES NOT OBJECT: At any time before the delivery of

the property to the applicant, he may require the return of the property by filing a counterbond (executed to the applicant,

also double the value of the property)

HOW DOES THE

SHERIFF DISPOSE

OF THE PROPERTY

The property shall be delivered to the applicant in the following instances:

If within 5 days after the taking of the property by the

sheriff, the adverse party does not object to the sufficiency

of the bond, or of the surety or sureties thereon

If the adverse party objects and the court affirms its approval of the bond or approves a new bond

If the adverse party requires the return of the property but his bond is objected to and found insufficient and he does


72

not file an approved bond

HOWEVER, if for some reason, the property is not delivered to

the applicant, the sheriff must return it to the adverse party

TAKE NOTE:

Property seized by the sheriff shall not to be delivered immediately to the applicant. Sheriff must retain in custody

for 5 days and shall return it to the defendant if he files a counterbond.

Counterbound must be filed within 5 days from the taking. The period is mandatory.

Cases:

1. BA FINANCE: A owed B 86k. A mortgaged his car (CM) and made a PN in

favor of B to secure the loan. B assigned the CM and the PN to C, a collection agency. B, mortgagor, failed to pay. The mortgaged car, however, was in the

possession of R, an adverse possessor and also a creditor of A. C filed for a writ

of replevin against R. This was denied because A, the original mortgagor-debtor, was not duly served summons hence no jurisdiction was

acquired over him. The SC held that he original mortgagor must be impleaded (hence is an indispensable party) in a case where a third party is

involved (in this case, R) to fully determine the rights of the parties. Applying it in the case at bar, A must be impleaded for C to properly maintain an action for

replevin against R, a third party adverse possessor. a. A chattel mortgagee, unlike a pledgee, need not be in possession of

the property unless and until the mortgagor defaults and the mortgagee seeks to foreclose. Since the mortgagee’s right of

possession is conditioned upon the actual fact of default, the inclusion of other parties (like the debtor or the mortgagor himself, may be

required in order to allow a full determination of the case) b. Hence, when a mortgagee seeks a replevin in order to effect the

eventual foreclosure of the mortgage, the default of the mortgagor must be shown by the mortgagee. The mortgagee must establish this

in order to avail of the writ of replevin. 2. Northern Motors v. Herrera

a. The mortgagee in a CM has a right to the possession of the property mortgaged upon default (or any breach of mortgage contract)

b. When the debtor defaults and the creditor wants to foreclose, he must take possession of the mortgaged property. By the debtor’s default

(once proven and substantiated), the mortgagee is entitled to possession of the mortgaged property.

c. However, if the debtor does not want to yield the property, the creditor must institute an action either effect judicial foreclosure, or

to secure possession (through writ of replevin) as a preliminary step to the sale.


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Comparison and Review of the 3 PROVISIONAL REMEDIES: PRELIMINARY ATTACHMENT, INJUNCTION and REPLEVIN

PRELIM

ATTACHMENT: Rule

57

REPLEVIN: RULE 60 INJUNCTION; RULE

58

GROUNDS One will suffice:

Action:

1.to recover specified

amount

2.involving

embezzled money

3.recover fraudulently

taken money

4.fraud in contracting

or performing

obligations

5.against party who

has removed or

disposed of property

to defraud creditors

6.non-resident

defendant

All must be

established:

1.That the applicant

is the owner of the

property claimed,

particularly describing

it or that the

applicant is entitled

to the possession

2.That the property is

wrongfully

detained by the

adverse party,

alleging the cause of

detention thereof to

the best of his

knowledge,

information and belief

3.That the property

has not been

distrained or taken

for a tax assessment

or a fine pursuant to

law OR seized under

a writ of execution or

preliminary

attachment (if seized,

it must be shown that

it is exempt from

seizure or custody) or

otherwise placed

under custodia legis

4. The actual market

value of property

One will suffice:

1. That the applicant

is entitled to the relief

demanded and the

relief consists in

restraining the

commission or

continuance of the act

or acts complained of

or in requiring the

performance of an

act/acts either for a

limited time or

perpetually

2.The commission,

continuance or non-

performance of the

act complained of

during litigation would

probably work

injustice to the

applicant

3.That a party, court,

agency or a person id

doing, threatening or

attempting to do, or

is procuring or

suffering to be done,

some act or acts

probably in violation

of the rights of the

applicant

AFFIDAVIT AND

BOND

Applicant must make

an affidavit and file a

bond (in favor of

adverse party)

Adverse party can file

a counterbond to discharge the

attachment

Applicant must make

an affidavit and file a

bond (in favor of

adverse party) BUT

bond must be double

the value

Adverse party can file

a counterbond to

have the property

returned

Verified application

and applicant must

file a bond (in favor of

adverse party)

NOTICE AND

HEARING

BEFORE

ISSUANCE

May be issued ex-

parte or upon motion

with notice and

hearing.

None required. Can

be issued ex parte

Notice and hearing

GENERALLY required.

However, if it is

shown that there is

possible great or

irreparable injury, a

20 day TRO may be

ordered

PROCEDURE AS

TO THIRD

PARTY CLAIM

Same.

What must third party (who’s claiming

attached property) do?

Make an affidavit stating his title and

grounds for his title/right to possess

Serve the affidavit on the sheriff when the sheriff still has possession of the property

A copy of the affidavit must be served on

the attaching property

What is the effect?

The sheriff shall not be bound to keep the

property under attachment

Remedy of attaching party

File a bond to indemnify the third party

claimant in a sum not less than the value of

the property levied

Not applicable

RECOVERY

AGAINST

SURETIES

Sec 20 of Rule 57 provides the following:

TRIAL COURT LEVEL: An application for damages on account of

improper, irregular or excessive attachment must be filed

o BEFORE the trial or

o BEFORE appeal is perfected or

o BEFORE the judgment becomes executory

(ALL) with due notice to the attaching party and his

surety/sureties

The damages may be awarded only after proper hearing and shall

be included in the judgment on the main case

APPELLATE LEVEL: Assuming the appeal as perfected IF the

judgment on the appellate court is favorable to the adverse party,

he must claim damages sustained during the pendency of the

appeal by filing an application in the appellate court, with notice to

the party in whose favor the remedy was issued or his

surety/sureties BEFORE the judgment of the appellate court

becomes executory

The adverse party MAY also recover in the same action the

damages awarded to him from any property of the attaching

property not exempt from execution should the bond or deposit

given by the attaching party is insufficient


74

Rule 61: Support Pendente Lite

WHEN CAN ONE

APPLY FOR

SUPPORT

PENDENT LITE

At the commencement of the action or proceeding OR

At any time prior to the judgment or final order

A verified application for support pendent lite may be filed by

any party stating the grounds for the claim and the financial conditions of both parties, and accompanied by affidavits,

depositions or other authentic documents in support thereof

COMMENT A copy of the application and all supporting documents shall be

served upon the adverse party who shall have 5 days to comment. Comment shall be verified.

HEARING

REQUIREMENTS

After comment is filed, or after expiration for period to file

comment, the application shall be set for hearing.

ORDER The court shall provisionally determine the facts and render

orders that justice may require.

IF application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should

be provided.

IF application is denied, the case shall be tried and decided as early as possible

ENFORCEMENT

OF ORDER IF the adverse party fails to comply with an order granting SPL, the court shall motu proprio or upon motion, issue an order of

execution against him.

This is without prejudice to being cited for contempt.

If a third person who furnished support to the applicant because the person ordered to do so did not, he may, after due notice

and hearing, obtain a writ of execution to enforce a right of reimbursement against the person ordered to provide such

support.

SUPPORT

PENDENT LITE IN

OTHER ACTIONS

1. Habeas corpus case filed by the mother on behalf of a minor child against the father, where the father has recognized the

child as his own and has not been giving him support 2. Rape cases for the offspring of the accused as a

consequence thereof.


75

(Special Civil Actions) Rule 62: Interpleader

WHEN IS

INTERPLEADER

PROPER?

1. Whenever conflicting claims upon the same subject matter

are or may be made against a person who claims no

interest (at all) in the subject matter OR 2. There are conflicting claims upon the same SM that

are/may be made against a person who claims an interest which is not disputed by the claimants

That person (called plaintiff-in-interpleader) may bring an

action against the conflicting claimants the compel them to interplead and litigate their several claims among themselves

(e.g. in lease contracts [two people claiming the right to collect rent], warehouseman)

Indispensable element of interpleader: conflicting claims

upon the same SM are/may be made against the plaintiff-in-interpleader who claims no interest whatsoever in the subject

matter.

Beltran v. People’s Homesite:

Purpose of Interpleader: A person who has property in his possession or has an obligation to render wholly or partially,

without claiming a right in both, comes to court and asks that the defendants (who have made upon him conflicting claims

upon the same property or who consider themselves entitled

to demand compliance with the obligation) be required to litigate among themselves in order to determine who is

entitled to the property or payment of an obligation.

In this case, the residents of Subdivision A filed a complaint for interpleader so that Corp A and Corp B could settle their

conflicting claims over the management and ownership of the land where Subdivision A sits. This was denied however,

because Corp A and Corp B did not have conflicting claims as regards the plaintiffs-in-interpleader. They only had conflicting

claims as between themselves. Corp A or Corp B did not make any claims (for rentals) against the residents of Subdivision A.

ORDER Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one

another.

If the interests of justice require, the court may also direct in such order that the SM be paid or delivered to the court

SUMMONS Summons shall be served on the conflicting claimants

MOTION TO

DISMISS

Within the time for filing an answer, each claimant may file a

motion to dismiss on the ground of the impropriety of the

interpleader citing the grounds mentioned in Rule 16. If MTD is granted, plaintiff-in-interpleader can appeal. If MTD is

denied, petition for certiorari rule 65.

IMPORTANT: ―5 days in any event” applies in interpleader.

How?

The period to answer shall be tolled and if the MTD is denied,

the movant may file his answer within the remaining period, which shall not be less than 5 days in any event, reckoned

from the notice of denial.

ANSWER/DEFAULT

/ PLEADINGS

Each claimant shall file his answer setting forth his claim within

15 days from service of summons.

If any claimant fails to plead within the time fixed, the court may, on motion, declare him in default and bar him from any

claim with respect to the SM.

Cross-claims, counterclaims, 3rd party complaints and responsive pleadings can be filed

After the pleadings of the conflicting claimants have been filed, and pre-trial has been conducted, the court shall proceed to

determine the rights of the claimants

FEES Docket/lawful fess shall be paid by the party who filed the

complaint


76

Rule 63: Declaratory Relief and Similar Remedies

WHO MAY FILE A

PETITION FOR

DECLARATORY

RELIEF?

Any person interested under the following may bring an action

in the appropriate Regional Trial Court (RTC has EXCLUSIVE

jurisdiction) to determine any question of construction or validity of AND for a declaration of rights and duties under

DISCRETIONARY [for court to take cognizance]

1. A deed (private docs) 2. A Will (private docs)

3. A Contract/written instrument (private docs) 4. A statute, EO or regulation, ordinance or any other

government regulation (public issuances)

An action for the following may also brought under this rule:

MANDATORY [for court to take cognizance] 1. Reformation of an instrument

2. To quiet title to real property and remove clouds 3. To consolidate ownership under CC Art 1607

Requisites:

1. Existence of justiciable controversy

2. The controversy is between persons whose interests are adverse

3. That the party seeking relief has a legal interest in the

controversy 4. The issue involved is ripe for judicial determination

Ollada v. Central Bank: A complaint for declaratory relief will

not prosper if filed after a contract, statute or right has been breached or violated.

PARTIES INVOLVED All persons who have or claim any interest which would be affected by the declaration shall be made parties. No

declaration, except as provided, prejudice the rights of persons who are not parties to the action

WHEN SOLGEN

REQUIRED In any action which involves the validity of a statute, EO or regulation, the Solgen shall be notified by the party assailing

the same and the Solgen shall be entitled to be heard

WHEN IT IS ABOUT

LOCAL

GOVERNMENT

ORDINANCES

When it is involving the validity of the local government

ordinance, the corresponding prosecutor/atty of the LGU shall be also heard and notified (like the Solgen)

However, if such ordinance is alleged to be unconstitutional,

the Solgen shall also be notified and entitled to be heard

IS COURT ACTION

DISCRETIONARY? Except in actions for reformation, quieting of title or consolidation of ownership, the court motu proprio or upon

motion, may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would

not terminate the controversy which gave rise to the action OR in any case where the declaration or construction is NOT

necessary and proper under the circumstances

WHEN CONVERTED

INTO AN ORDINARY

ACTION

If before the termination of the case for declaratory relief

(during pendency), a breach or violation of an instrument or statute, eo or regulation, ordinance should take place, the

action may be converted into an ordinary action and the parties shall be allowed to file such pleadings as may be

necessary or proper

*Note: Can’t nullify laws, contracts, etc.


77

Rule 64: Review of Judgments and Final Orders or Resolutions of the COMELEC and the COA

WHAT IS THE

REMEDY WITH

REGARD TO

JUDGMENTS, FINAL

ORDERS OR

RESOLUTIONS OF

THE COMELEC

AND COA?

Certiorari under Rule 65 to the Supreme Court

Garces v. CA: SC can only take cognizance of COMELEC/COA

Judgments, Final orders or Resolutions only when the COMELEC/COA makes the j, fo or r in the exercise of its

adjudicatory or quasi-judicial powers.

In this case, the question brought forth under rule 65 to the SC involved an administrative controversy. COMELEC’s

decisions, to be able to be brought to the SC, must be in the exercise of its quasi-juidical functions (like an election dispute)

CONCERNING MRS When COMELEC division renders a decision in the exercise of

its quasi-judicial or adjudicatory power, an MR must be made

first.

Order of Remedy:

COMELEC Division Decision -> MR -> COMELEC En Banc ->

Rule 65 to the SC (review of judgment)

HOWEVER (instance where rule 65 from division decision)

COMELEC Division Decision -> If made with GADLEJ, no more need for MR, can go directly to SC under petition for certiorari

Note: COMELEC Rules of Procedure provides that no MR of an

en banc decision is allowed except in election cases.

TIME TO FILE

PETITION

30 days from notice of the j, fo, r sought to be reviewed.

Filing of MR has interrupting effect.

IMPORTANT: at least 5 days in any event applies in Rule 64

If MR is denied, the aggrieved party may file the petition for

certiorari (not answer) within the remaining period, which shall not be less than 5 days in any event, reckoned from notice of

denial.

*Compare with Rule 65 (in rule 65, after your MR is denied you have new 60 day period)

COMMENT If the SC finds the petition sufficient in form and in substance, it shall order the respondents (COMELEC/COA) to file their

comment.

The SC may also dismiss the petition outright IF

1. Filed manifestly for delay

2. Questions raised are too unsubstantial to warrant further proceedings

EFFECT OF FILING The filing of the petition for certiorari shall not stay the

execution of the j, fo or r sought to be reviewed UNLESS the

SC deems otherwise


78

Rule 65: Prohibition and Mandamus

PROHIBITION The rule provides that when the proceedings of any tribunal,

corporation, board, officer or person whether exercising

judicial, QJ or ministerial functions acted in excess/without jurisdiction or committed GADLEJ and there is no appeal or

any other plain, speedy and adequate remedy in the ordinary course of law, an aggrieved party may file a petition for

prohibition, commanding the respondent to desist from further proceedings in the action or matter specified

Broken down into keywords:

1. Proceeding of tribunal, corp, board, officer, or person

exercising judicial, quasi-judicial or ministerial functions

2. Excess of jurisdiction or GADLEJ

3. No appeal OR any other plain, speedy and adequate remedy

4. Order is for the respondent to DESIST from doing an act to be done.

Difference of Excess of Jurisdiction and Grave Abuse of

Discretion

Excess of Jurisdiction: the court, board or officer has jurisdiction over a case but has transcended the same or acted

without authority

Grave abuse of discretion: the court, board or officer has

exercised its power in an arbitrary manner by reason of passion or personal hostility. It must be so patent and gross.

Purpose of Prohibition: To prevent the unlawful and

oppressive exercise of legal authority. It is not to correct error of judgment but a preventive remedy aimed to restrain the

doing of some act to be done

However, as stated in Holy Spirit Homeowners Assoc v. Defensor: Prohibition will lie against judicial or ministerial

functions, but not against legislative or quasi-legislative functions (when attacking the validity of an IRR of an

administrative agency) The proper remedy would be an ordinary action for its nullification, which falls under the

jurisdiction of the RTC. Other remedies available would be to ask the RTC to issue a writ of injunction or a TRO.

Note: Remember, as per the Constitution, the SC may review,

revise, reverse, modify or affirm on appeal or certiorari, final judgments and orders of lower courts in “all cases in which the

constitutionality/validity of any x x x law x x x or regulation is

in question”

MANDAMUS The rule provides that when any tribunal, corporation, board,

officer or person unlawfully neglects the performance of an act

which the law specifically enjoins/order as a duty resulting

from an office, trust, station OR unlawfully excludes another from the use and enjoyment of a right or office to which such

other is entitled, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law,

the aggrieved person may file a petition for mandamus, commanding the respondent, immediately or some other time

to be specified by the court, to do the act required to be done to protect the rights of the petitioner and to pay the damages

sustained by the petitioner by reason of the wrongful acts

Broken down into keywords:

1. TWO ASPECTS: a. Tribunal, corporation, board, officer or

person unlawfully neglects an act which

the law commands him to do OR b. T,B,C,O or P unlawfully excludes another

from the use and enjoyment of a right or office to which he is entitled

2. No appeal OR any other plain, speedy and adequate remedy

3. Mandamus cannot lie against discretionary functions (See Sharp v. LBP below)

4. Mandamus is available only to compel the doing of an act specifically commanded by law. Exception would

be if there is GADLEJ (See digests below) 5. Clear legal right of petitioner must be shown

6. The imperative duty of the respondent to perform the must also be shown

COMMON

REQUISITES OF

PROHIBITION AND

MANDAMUS

1. Petition must be verified 2. Petition must be filed within 60 days from notice of the

judgment, order or resolution. IF MR/MNT was filed and it was denied, another 60 days given from notice of denial

3. Petition must assign errors of jurisdiction and NOT errors of judgment

4. When and where filed (see below) 5. Petition must contain certification of non-forum shopping

6. R65 Sec 5: Respondents: When petition relates to acts/omissions of a judge, court, QJ agency, tribunal,

corporation, board, officer, or person, the petitioner shall join as private respondent, the person/persons interested

in sustaining the case.

The costs awarded in such proceedings awarded to petitioner shall be against the private respondents only.


79

Unless otherwise specifically directed by the court where the petition is pending, the public respondents shall not

appear in or file an answer or comment to the petition or

any pleading therein.

If the case is elevated to a higher court by either party,

the public respondents shall be included therein as nominal parties. However, they shall only appear in the

proceedings if directed by the court

Where filed? 1. If the petition relates to an act or omission of a MTC

or of a corporation, board, officer: RTC exercising jurisdiction over the territorial area (or also CA or

Sandiganbayan, w/n it is in the aid of the court’s appellate jurisdiction)

2. If petition involves act or omission of a quasi-

judicial agency: CA

3. If election cases involving an act or omission of a MTC/RTC: COMELEC in aid of its appellate jurisdiction

4. Remember, however, that Rule 56 provides that the SC

also has original jurisdiction over petitions for mandamus, prohibition and certiorari. Depends on the situation.

Cases:

1. Sharp International Marketing v. CA:

UCBP entered into a contract to sell a piece of land with Sharp. It would be

converted into a deed of absolute sale upon payment of 3M. However, before Sharp even acquired the land, Sharp offered to sell it to the

Government for 65M. The administrative agency involved approved the sale. A deed of sale was entered into by the President of Sharp and the

Secretary of Agarian Reform. All that was left was for the LBP President to sign the deed of sale, the bank being the one to release the public funds to

acquire the property. The President of LBP did not want to sign the deed of sale. The Secretary

even sent a team to reassess the land. Sharp filed a petition for mandamus to order LBP President to sign.

SC held that this was a discretionary function on the part of the LBP President since it was up to him to approve the compensation to be paid to

Sharp. Also, SC held that the action for mandamus cannot lie if what is sought to

be enforced is alleged contractual obligations under a disputed contract --- disputed not only on the ground that it had failed to reach perfection, but

on the ground that it was illegal and against public interest.

2. Henares Jr. v. LTFRB and First Philippine Holdings v. Sandiganbayan

GR: Mandamus does not lie to require anyone to fulfill contractual obligations or to compel a course of conduct or to control or review the

exercise of discretion. The law must specifically order the act to be done.

EX: When in the exercise of discretionary duty, there is GADLEJ. In the First Philippine Holdings Case, although the motion for intervention is

discretionary on the court, its denial was tainted with GADLEJ as movant

was able to prove its interest in the SM of the litigation and the court still

denied the motion for intervention. Intervention was allowed by the SC.

In Holy Spirit, what ordinary action should you file to assail the constitutionality of an IRR?


80

Rule 66: Quo Warranto

What is quo

warranto

A writ requiring the person to whom it is directed to show what

authority they have for exercising some right or power (or

"franchise‖) they claim to hold.

Against whom

can quo warranto be

filed

An action for usurpation of a public office, position or franchise

may be commenced by a verified petition brought in the name of the Republic of the Philippines AGAINST:

1. A person who usurps, intrudes into, or unlawfully

holds or exercises a public office, position or franchise

2. A public officer who does or suffers an act which, by law, constitutes a ground for the forfeiture of his office

3. An association which acts as a corporation within the

Philippines without being legally incorporated or without

lawful authority to act (SEC now has jurisdiction over this)

WHEN MUST SOLGEN/Public Prosecutor FILE THE CASE? 1. When directed by the President

2. Upon complaint when he has good reasons to believe that any case specified above (1-3) can be established

by proof. 3. By himself when he has good reasons to believe that

any case specified above (1-3) can be established by proof.

WHEN MAY SOLGEN/Public Prosecutor FILE THE CASE (w/

leave of court?) 1. At the request of another person but in this case, the

officer bringing the action may first require an indemnity for the expenses/costs of the action

WHEN MAY AN INDIVIDUAL FILE THE CASE?

1. When a person claiming to be entitled to a public

office/position usurped or unlawfully held or exercised by another may bring an action for quo warranto in his

own name. He must show that he is entitled to the office held by the respondent. Petitioner WANTS

respondent’s position. In contract, in mandamus, petitioner is merely excluded from an office by another,

and that person is not necessarily claiming title/intruding/usurping that office. Respondent has

clear legal duty to do something and he doesn’t.

Note: If petitioner wins quo warranto and respondent is ousted, he can immediately execute duties of the office. However, if

respondent refuses, he can file an action for damages by reason

of the usurpation OR have respondent held in contempt.

VENUE If SOLGEN commences:

1. RTC manila

2. CA

3. SC

If someone other than solgen like individual or public prosecutor 1. RTC exercising jurisdiction over the territory where

respondent resides 2. CA

3. SC

Period for filing

When against a public officer or employee it must be commenced within 1 year after the cause of

such ouster (of petitioner or the person the respondent ousted)

commenced within 1 year after the right of the petitioner to hold such office or position arose

When action for damages against respondent within 1 year after entry of judgment establishing

petitioner’s right to the office

EXC: When the delay to file action was caused by the State itself.

Inapplicable to intra-

corporate disputes

Rules of court does not apply to quo warranto cases against persons who usurp an office in a PRIVATE corporation. RA 8799

is the governing law for that action

http://en.wikipedia.org/wiki/Exclusive_right


81

Rule 67: Expropriation

DISTINCTION

BETWEEN

EMINENT

DOMAIN AND

EXPROPRIATION

Eminent Domain: inherent power of the State to take private

property upon payment of just compensation

Expropriation: The process by which government takes the

property

STAGES OF

EXPROPRIATION

1. Filing of verified complaint (purpose of expropriation, join

defendants owning/claiming title to the land, specify who are occupying in case it’s already titled to the State)

2. Entry: (Conditions) a. Upon filing or any time thereafter, plaintiff may

enter/take possession upon deposit of amount equal to assessed value of property for tax

purposes. It can be in money unless the court

authorizes a certificate of deposit of a government

bank of the Philippines payable on demand. b. When the government or its authorized agent

makes the required deposit, the TC has a

MINISTERIAL DUTY to issue a writ of possession. 3. Objections:

a. If defendant has any objection to the filing of or the allegations in the complaint, or any objection or

defense to the taking of his property, he shall serve his ANSWER within the time stated in summons.

b. In complaint for expropriation, ONE CAN’T FILE a MOTION TO DISMISS, CROSS-CLAIM,

COUNTERCLAIM or THIRD PARTY complaint c. A defendant waives ALL his defenses and objections

not so alleged BUT the court, in the interest of justice, may permit amendments to the answer to

be made not later than 10 days from the filing thereof.

4. Order of expropriation a. If objections/defenses overruled or no one comes

to defend, the court may issue an order of expropriation, declaring that plaintiff has lawful

right to TAKE the property sought to be expropriated

b. A final order sustaining the right to expropriate the property may be appealed by any party aggrieved

thereby. However, this appeal will not prevent the court from determining just compensation.

i. PERIOD: 30 days from notice notice of appeal

c. Further, this appeal will not delay the entry upon the property upon the order of expropriation

i. HOWEVER, if appellate court finds that plaintiff has NO RIGHT to expropriation,

judgment shall be rendered ordering the

RTC to enforce the restoration to defendant

5. Ascertainment of just compensation: will be done by

court appointed commissioners (max 3)

a. Objections to commissioners’ appointment shall be filed within 10 days from service and shall be

resolved 30 days after all commissioners received the copy

b. Report must be filed by commissioners 60 days from the date they were notified of appointment.

Defendants given 10 days to object to findings of report.

c. Upon expiration of 10 days to object, or even before as long as everyone filed their objections,

Court may render judgment based on the report,

recommit the same to the commissioners for

further report or set aside report and appoint new commissioners

d. Order of just compensation may be appealed. i. PERIOD: 30 days from notice record on

appeal

JUST

COMPENSATION Just Compensation: The equivalent for the value of the property at the time of its taking.

RA 8974 mandates immediate payment of the initial just

compensation PRIOR to the issuance of the writ of possession in favor of the government.

Municipality of Binan v. Garcia

There are two (2) stages in every action of expropriation.

o FIRST: Determination of authority of plaintiff to expropriate. Can end with either an order of expropriation or

dismissal. Both are FINAL orders. o SECOND: Determination of just compensation for the property

sought to be taken. Done with assistance not more than 3 commissioners.

This order is also FINAL.


82

Rule 68: Foreclosure of REM

MODES OF

FORECLOSURE

REM:

1. Judicial: Rule 68 2. EJ: Act 3135 as amended by Act 4118

CM

1. Judicial: Rule 68: Replevin under rule 60 may be

availed of to secure possession of property before its sale

2. EJ: Act 1508

COMPLAINT Complaint for foreclosure should set forth the details of the

mortgage, description of mortgaged property, amount claimed to

be unpaid thereon, names of all who have/claim to have interest

in the property et al

PARTIES Indispensable:

1. Mortgage debtor 2. Mortgagor or owner of the mortgaged property (IF the

mortgagor is NOT the debtor/the executor of the deceased mortgagor)

3. The executor/administrator of a deceased owner of the property mortgaged (with the approval of the court)

4. The heir to whom the mortgaged property was adjudicated

What happens when the above are not joined? Not a ground for

dismissal. Court will order plaintiff to implead them. If he doesn’t, then the action will be dismissed.

Necessary: All persons having/claiming an interest in the

property subordinate in right to that of the holder of mortgage

1. Junior (second) mortgagees 2. Subsequent attaching creditor

3. Purchaser of mortgaged property

What happens when necessary party is not joined? Foreclosure is ineffective as against them and they retain the equity of

redemption in their favor. A separate /independent foreclosure proceeding is required

WHAT IS THE

EQUITY OF

REDEMPTION?

It’s basically the period that the mortgagee has to pay his debt.

Sec 2 provides that: If upon the trial in such action, the court finds the facts set forth in the complaint to be true, it shall

ascertain the amount due to the plaintiff upon the mortgage debt

and shall render judgment for the sum so found due and ORDER THAT the same be paid to the court or to the judgment creditor

within a period of NOT LESS THAN 90 days NOR MORE THAN 120 DAYS from entry of judgment and that in default of such

payment, the property will be sold in public auction.

Right of Redemption: The right of the mortgagor in case of extrajudicial foreclosure to redeem the mortgage property

within a certain period (1 year) after it was sold for the satisfaction of the mortgage debt so generally, it follows that

there is NO right of redemption in judicial foreclosure except when mortgagee is a bank.

Equitable Right of Redemption: the right of the mortgagor in

case of judicial foreclosure to redeem the mortgaged property AFTER his default but BEFORE the confirmation of the sale

o NOTE: In this case however, after the confirmation,

it can still be redeemed if the mortgagee was a

bank

RIGHT OF

REDEMPTION IN

EJ

FORECLOSURE

Requisites for valid redemption: 1. Redemption within 1 year from registration of sale

2. Payment of purchase price plus 1% int per month thereon if any, paid by purchaser

3. Written notice of redemption served on officer who made the sale

WRIT OF

POSSESSION Upon finality of the order of confirmation or upon the expiration of the period of redemption allowed by law, the

purchaser or last redemptioner shall be entitled to possession of the property UNLESS a third party is actually holding the same

adversely to the judgment debtor. The said purchaser/last redemptioner may secure a writ of possession, upon motion,

from the court that ordered the foreclosure.

HOWEVER, if mortgagee is a bank, purchaser may enter upon and take possession of property immediately after confirmation

of the sale

Petition for writ of possession is not a new action. It is only incidental. It’s a mere motion. It is ministerial, ex-

parte and non-litigous. There is no need for notice to adverse party.

A bond is required to be filed for it be issued when it is within the 1 year period of redemption (EJ

FORECLOSURE)

APPEALABLE

ORDERS

1. Judgment on foreclosure (Sec 2)

2. Order of confirmation of sale (Sec 3) 3. Deficiency judgment

NOTICE OF APPEAL


83

Cases:

1. Banco Filipino v CA: Filing of court action to enforce redemption has effect of

preserving redemptioner’s rights and freezing expiration of one year period to

redeem (EJ FORECLOSURE) 2. De Vera v. Agloro: Under law on EJ Foreclosure, if mortgagor fails to redeem

within 1 year period, the buyer in the public auction may file a motion for the issuance of a writ of possession. On the strength of the sheriff’s certificate of

sale, the she sheriff is duty-bound to place the buyer at the public auction in actual possession of the foreclosed property after the consolidation of title in

the buyer’s name. for failure of the mortgagor to redeem 3. PNB v. Sanao: The judge to whom an application for writ of possession is filed

need not look into the validity of the mortgage or the manner of its foreclosure. In the issuance of a writ of possession, no discretion is left to the TC. Any

question regarding the cancellation of the writ in respect to the

validity/regularity of the foreclosure sale OR the mortgage should be

determined in a subsequent proceeding 4. REMEMBER, after the consolidation of title in the buyer’s name for failure of the

mortgagor to redeem, the writ of possession becomes a matter of right. Mandamus will lie.

PERIODS OF

REDEMPTION (RIGHT

OF REDEMPTION)

Judicial Foreclosure Extrajudicial

Foreclosure

Mortgagee banks non-

banks

banks non-

banks

Individual

debtors/mortgagors

1 year from

registration

of sale

X 1 year from

registration

of sale

1 year from

registration

of sale

Juridical persons as

debtors/mortgagors

1 year from

registration

of sale

X Until

registration

of

certificate

of sale or 3

months

from sale

whichever

is earlier

1 year from

registration

of sale


84

Rule 69: Partition

WHAT IS

PARTITION?

Partition, in general, is the separation, division and assignment

of a thing held in common among those to whom it may

belong.

The purpose of partition is to put an end to co-ownership or co tenancy, etc (it presupposes a co-ownership HENCE no co-

ownership, partition cannot lie)

It seeks a severance of the individual interests of each co-owner, vesting in each a sole estate in specific property

and giving to each one a right to enjoy his estate without supervision or interference from the other.

Action for partition raises to issues to wit:

1. Whether plaintiff is co-owner of the property 2. Assuming that he is, how will the property be divided

among the plaintiff and co-owners

Indispensable parties: all the co-owners

Rules of partition apply to PERSONAL PROPERTY also, as far as practicable.

NOTE: in an action for partition, a party shall recover from

another his just share of rents and profits received by such

other property from the real estate in question.

WHO HAS

JURISDICTION

OVER PARTITION?

RTC:

Personal Property: exceed 300/400 Real Property: exceed 20/50

MTC:

Personal Property: equal to or below 300k/400k (in/out MM)

Real Property: equal to or below 20k/50k (in/out MM)

ORDER OF

PARTITION

If after the trial, the court finds for plaintiff, it shall order the

partition of the real estate among all parties in interest.

Afterwards, if the parties agree, they make the partition among themselves through proper instruments of conveyance. The

court shall then confirm this agreed upon partition.

IS THE FINAL

ORDER DECREEING

PARTITION AND

ACCOUNTING

APPEALABLE?

YES. It may appealed 30 days from the date of entry of

judgment. (RECORD ON APPEAL because MULTIPLE APPEALS can occur)

The three stages in the action for partition that can be

appealed:

1. Order of partition where the propriety of partition is determined

2. Judgment as to the accounting of the fruits/income of the property

3. Judgment of partition

WHEN IT COMES

TO ESTATE OF A

DECEDENT, WHO

CAN EFFECT

PARTITION?

1. The heirs themselves extrajudicially

2. The court in an ordinary action for partition, or in the course of administration proceedings

3. The testator himself 4. The third person designated by the testator

WHAT HAPPENS

WHEN THE

PARTIES ARE

UNABLE TO AGREE

UPON THE

PARTITION?

Court will appoint at least 3 commissioners (competent and

disinterested) to make the partition

Job of Commissioners: to view, examine real estate, hear the parties as to their preference, set apart the same

to the parties in lots/parcels afterwards Binding force of report: Report to the court is not binding

until confirmed o Upon filing of the report, interested parties will be

given notice and allowed 10 days to file objects to the report

o When the 10 days expire, or even before it expires but the interested parties have filed their

objections, the court may, upon hearing, accept the report and render judgment

in accordance therewith remand it back to the commissioners for

further report set aside and appoint new

commissioners accept/reject report partially

Court can also assign the real estate/portion to just one of the co-owners: When the commissioners see that

partition cannot be effected without prejudice to the interests of the parties, the court may order the property

assigned to one of the parties willing to take the same o PROVIDED he pays the others

o PROVIDED further that if one the parties ask that the property be sold instead, then the

commissioners will sell the property in auction

Difference when partitioners don’t agree or agree.

If they agree -> give copy of partition to the courts and court will confirm

If they don’t agree, commissioner.

If there are 10 co-owners, only 8 were sued, the action will not be dismissed. Plaintiff must implead the other two!


85

Rule 70: Forcible entry and Unlawful Detainer

There are 3 different actions to recover possession of REAL

property

FORCIBLE

ENTRY AND

UNLAWFUL

DETAINER:

POSSESSION

ONLY

To be discussed more in detail below.

In a nutshell, it is an ejectment proceeding which is a summary action for recovery of physical possession where the

dispossession has not lasted more than year

Forcible entry: Prior possession is required (demand also required)

Unlawful detainer: Prior possession NOT required (demand not necessary all the time: when contract expires, etc)

Rules on summary procedure apply to FEUD no need for trial,

testimony, periods are different answer: 10 days ONLY

ACCION

PUBLICIANA:

REAL RIGHT

OF

POSSESSION

It is the plenary action for the recovery of the real right of possession, which should be brought in the proper court (as the

case may be) when the dispossession has lasted for more than one year

It is the proper remedy where

the cause of dispossession is not among the grounds for FEUD (F-I-S-T-S)

when dispossession has lasted for more than one year

It is an ordinary civil proceeding to determine the better right of possession independently of title.

ACCION

REIVINDICATOR

IA: OWNERSHIP

(INCLUDES

POSSESSION)

It is an action for the recovery of ownership

WHO MAY

INSTITUTE AN

ACTION FOR

FEUD

1. FORCIBLE ENTRY: A person deprived of any land or building

(real property) by force, intimidation, strategy, threat or stealth

2. UNLAWFUL DETAINER: (lawful at start, then it became unlawful) Lessor, vendor, vendee or other person against

whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to

hold possession, by virtue of any contract, express or implied a. OR the legal representatives or assigns of any such

lessor, vendor, vendee

BUT:

Unless stipulated, an action for FEUD by the lessor may be commenced only (one will suffice) count period from last

demand except: RACAZA v. GOZUM (see below) after demand to pay/comply with conditions of the lease

and to vacate is made upon the lessee OR

serving written notice of such demand upon the person

found on the premises OR if no person is found, by posting such notice on the

premises Lessee must fail to comply after 15 days in the case of land and 5

days in case of buildings (for lessor to be able to commence action)

JURISDICTION

OF COURTS 1. When filing an action for FEUD, go to MTC/MetC/MTCC

always holds true regardless of value of property

a. Exception: Laches: Where the FEUD suit was filed in the RTC but the defendant did not move to

dismiss the complaint for lack of jurisdiction and

instead filed his answer and went to trial, estoppel by laches set in.

2. When filing an action for accion publiciana, look at the value of the property first

a. If not exceeding 20k/50k as the case may be, go to MTC/MeTC/MTCC

b. If exceeds 20k/50k as the case may be, go to RTC

WHAT MUST BE

AVERRED

Complaint must aver facts constitutive of FEUD

This is important as these allegations confer jurisdiction on the

court. If the allegations don’t show facts constitutive of feud, the proper RTC may be the right court.

However, as held in Hilario v. CA, a complaint for unlawful

detainer is sufficient if it contains the allegation that the withholding of possession or refusal to vacate is unlawful, without

necessarily using the words of the law (example: ―Plaintiff verbally asked defendants to remove their houses on the lot of

the former but the latter refused and still refuse to do so without just and lawful grounds‖ SUFFICIENT for unlawful detainer)

EFFECT OF

CLAIM OF

OWNERSHIP ON

MTC

JURISDICTION

Hilario v. CA

At present, all FEUD cases have to be tried pursuant to the revised rule of summary procedure regardless of whether or

not the issue of ownership is alleged by a party Lower courts (MTC,METC,MCTC,MTCC) retain jurisdiction

over ejectment cases even if the question of possession

cannot be resolved without passing upon the issue ownership o The lower courts however, can only pass upon the

issue as to ownership for the sole purpose of

determining possession

o Hence, an adjudication made therein by the inferior court should be regarded as merely provisional in

nature IT DOES NOT BAR AN ACTION BETWEEN THE SAME PARTIES INVOLVING TITLE/OWNERSHIP


86

over the land

WHAT ARE

CASES THAT DO

NOT

PREJUDICE AN

EJECTMENT

SUIT

1. INJUNCTION: Injunction suits instituted in the RTC by

defendants in ejectment actions in the MTC do not abate the

ejectment suits (injunction as a principal action)

2. ACCION PUBLICIANA: An accion publicaina does not suspend an ejectment suit against the plaintiff in the (accion

publiciana case) 3. WRIT OF POSSESSION: A writ of possession case where

ownership is the principal issue before the RTC does not preclude the execution of the judgment in an unlawful

detainer suit where the only issue involved is the material possession of the premises

4. QUIETING OF TITLE: Not a bar to an ejectment suit involving the same property

5. SPECIFIC PERFORMANCE w/ DAMAGES: Does not affect

ejectment action (to compel renewal of lease conract)

6. REFORMATION: does not suspend ejectment suit (e.g. from deed of absolute sale to sale with right to repurchase)

7. RECONVEYANCE (accion reivindicatoria)

8. ANNULMENT OF SALE, TITLE OR DOCUMENT

POSSESION BY

TOLERANCE

Heirs of Magpily: Possession by tolerance is lawful BUT such

possession becomes unlawful when the possessor by tolerance refuses to vacate upon demand made by owner.

This is because a person who occupies the land of another at the

latter’s tolerance or permission, without any contract between them, is necessarily bound by an implied promise to vacate upon

demand. If he fails to vacate upon demand, an action for ejectment is the proper remedy.

WHEN TO

COUNT 1 YEAR

PERIOD OF

DISPOSSESSION

When it’s for forcible entry: From date of ACTUAL entry EXCEPT when there is stealth. In case of stealth, from discovery of the

entry

When it’s for unlawful detainer: From the date of the last demand to vacate

Exception: Date of original demand to vacate if the subsequent demands are merely in the nature of

reminders of the original demand (see Racaza v. Gozum below)

WHAT ARE THE

DAMAGES THAT

CAN BE

RECOVERED IN

A FEUD CASE?

Fair rental value or the reasonable compensation for the use and occupation of the leased property

Dumo v. Espinas: Considering that the only issue raised in ejectment is that of rightful possession, damages which could be

recovered are those which the plaintiff could have sustained as a

mere possessor, or those caused by the loss of the use and

occupation of the property AND NOT the damages which he may have suffered but which have no direct relation to his loss of

material possession.

IS THE Sec: 19 (appeal under section 40)

JUDGMENT

IMMEDIATELY

EXECUTORY?

GR: a judgment in a FEUD case is immediately executory

EX: (when it can be stayed: PERFECT APPEAL +

SUPERSEDEAS BOND + DEPOSIT) when defendant perfects

an appeal and the defendant who wants to stay execution files a sufficient supersedeas bond, approved by the MTC and

executed in favor of the plaintiff (in the FEUD case) to pay rents, damages, costs, etc and during the pendency of the appeal, the

defendant deposits with the appellate court the amount of rent de from time to time under the contract (if any) as determined by

the MTC judgment but if he fails to pay from time to time, execution will lie.

Sec 21: Immediate execution on appeal to CA/SC (appeal under

42 where RTC affirms MTC decision ruling for PLAINTIFF)

The judgment of the RTC against the defendant shall be immediately executory, without prejudice to a further appeal

that may be taken therefrom (RTC can immediately issue writ of execution without prejudice to an appeal being given due

course)

Benedicto v. CA: Even if RTC judgments in unlawful detainer

cases are immediately executory, preliminary injunction may still be granted to stay the immediate execution upon showing that

there exists a right to be protected and that the acts against which the writ is to be directed violate said right (in other words,

execution pending appeal can be enjoined through preliminary injunction)

INJUNCTION: Upon motion of the plaintiff, within 10 days from the perfection of the appeal to the RTC, the RTC may issue a writ of preliminary

mandatory injunction to restore the plaintiff in possession IF 1. the court is satisfied that the defendant’s appeal is

frivolous or dilatory 2. or that the appeal of the plaintiff is prima facie

meritorious

PLEADINGS

ALLOWED

1. complaint

2. Compulsory counterclaim and cross-claim pleaded in the answer (and answers to these cross/counter claims)

ACTION ON

COMPLAINT

UPON FILING

The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto, dismiss

the case outright on any of the grounds for the dismissal of

actions which are apparent therein.

If no ground for dismissal is found, court will issue summons.

TIME TO FILE

ANSWER

Defendant must file answer 10 days from service of summons

ANSWER Affirmative and negative defenses not pleaded in the answer

are deemed waived except lack of jurisdiction over SM (because it’s conferred by law)


87

Cross-claims and compulsory counterclaims not asserted in the answer are barred

The answer to counterclaims or cross-claims shall be served

and filed within 10 days from service

Upon failure to answer, the court, on its own or upon motion of

plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and to what is prayed for therein.

PRELIMINARY

CONFERENCE At least 30 days after the last answer is filed, a preliminary conference shall be held and the provisions on pre-trial will be

applicable.

The failure of the plaintiff to appear in the prelim conference shall be cause for dismissal.

o The defendant who appears in the absence of the

plaintiff shall be entitled to judgment on his

counterclaim o All cross claims shall be dismissed

If defendant fails to appear, the plaintiff will also be entitled

to judgment. However, this does not apply where one of two or more defendants sued under a common cause of action

who pleaded a common defenses shall appear

PROHIBITED

MOTIONS

(you can MR in interlocutory orders, you can rule 65 final order)

Difference of Labastida and Racaza (they were both lease contracts but the grounds for ejectment in Racaza and Labastida were different)

====================================================

When to count one year period?

1. Forcible entry: from actual entry except when there is stealth

2. Unlawful Detainer: from last demand to vacate a. Exception: Period counted from date of original demand if the

subsequent demands are merely in the nature of reminders or reiterations of the original demand

Labastida case v. Racaza case:

Racaza: expiration of the lease

Labastida: contract of lease did not expire yet, but there was a violation of the

terms and conditions of the lease (in this case, defendant is the lessee) exceptional situation

Quinagoran v. CA: Now as it stands, the RTC doesn’t ALWAYS have jurisdiction over cases of accion publiciana. You must still look at the relevant amount.

Hence, if the assessed value of the real property involved does not exceed P50k in Metro Manila, and P20k outside of Metro Manila, the MTC exercises jurisdiction over

actions to recover possession of real property. Moreover, the MTC exercises jurisdiction over all cases of forcible entry and unlawful detainer


88

Rule 71: Contempt

DIRECT

CONTEMPT

A person guilty of

a. misbehavior in the presence of or near a court as to obstruct or interrupt the proceeding before the same,

b. disrespect toward the court c. offensive personalities towards others

d. refusal to be sworn or to answer as a witness or to subscribe an affidavit or deposition when lawfully required to do so

May be summarily adjudged in contempt by such court

PUNISHMENT:

punished by fine or imprisonment (not exceeding 10 days) or both

IF it is RTC or higher

If it is lower court, then by fine or imprisonment not exceeding 1 day or both.

REMEDY: A person adjudged in direct contempt by any court

may not appeal therefrom but certiorari or prohibition is an available remedy. The execution of the judgment of contempt

shall be suspended pending resolution of such petition (for certiorari/prohibition) provided the person adjduged shall file a

bond

INDIRECT

CONTEMPT After a charge in writing has been filed and an opportunity to the respondent to comment thereon within a certain period, a person

guilty of the following acts may be held in indirect contempt:

a. misbehavior of an officer of a court in the performance of his official duties or in his official transactions

b. disobedience or resistance to a lawful writ, process, order or judgment of a court, including the act of a person who after

being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction,

enters into or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of

ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled

thereto c. Any abuse of or any unlawful interference with the processes

or proceedings of a court not constituting direct contempt d. Any improper conduct tending, directly/indirectly to impede,

obstruct or degrade administration of justice e. Assuming to be an attorney or an officer of a court, and

acting as such w/o authority f. Failure to obey a duly served subpoena

g. The rescue or attempted rescue of a person or property in the

custody of an officer by virtue of an order or process of a court held by him.

HOW COMMENCED:

1. Either motu proprio by the court against which the contempt

was committed OR 2. Any other formal charge requiring the respondent to show

cause why he should not be punished for contempt 3. By a verified petition with supporting particulars and upon full

compliance with the rules for filing initiatory pleadings in civil actions

WHERE FILED:

1. If against RTC or higher (or official thereof): with such court

2. If lower court: in the RTC of the place where the lower court

is BUT it may be initiated in the lower court also subject to appeal to the RTC.

PUNSIHMENT:

IF against RTC or higher: max 6 months or fine or both IF against lower: max 1 month or fine or both

CASE The use of falsified and forged documents constitutes indirect

contempt. (Dolores v. Formoso)


89

Rule 41: Appeal from RTC Rule 42: Petition for review

from RTC to CA

Rule 43: Appeal from QJ to

CA

Rule 45: Appeal by certiorari

to SC

From where RTC - CA RTC (appellate) - CA QJ Agency - CA RTC/SB/CTA/CA – SC

Grounds Nothing. Just file notice of appeal/record on appeal

Questions of fact, law or mixed Questions of fact, law or mixed Questions of law only

Review discretionary on SC.

Period (from NOTICE of judgment, award,

order)

15 days – notice 30 days - record

15 days 15 days 15 days

Extension to file (when it’s NOT from

MR/MNT but it’s from the decision itself)

RoC does not provide 2 extensions 15 days each 2 extensions 15 days each

*Only one MR allowed

One time extension of 30 days for justifiable reasons

Fresh period rule [of 15 days] (when

MR/MNT denied)

Yes. But non-extendible Yes. Extendible by 15 more days Yes. Extendible by 15 more days

Yes. Extendible by 15 more days

IAPOA? (residual

powers of lower court)

Yes Yes No No

PPQ? (denial motu proprio)

No (you’re just filing notice/record anyway)

Yes Yes Yes

Effect of appeal on judgment

Will stay GR: Will stay EX: Cases decided under

summary proceedings

Will not stay.

Remedy to stay: TRO

Depends on SC.


90

Situation Example Remedy

Aggrieved by final judgment or

order of MTC

A filed a case for unlawful detainer against B. B lost. Rule 40 (MTC-RTC)

Aggrieved by RTC final j/o in its

appellate jurisdiction

Upon B’s appeal to the RTC of his unlawful detainer case.

He still lost.

Rule 42 (RTC – CA)

Aggrieved by RTC final j/o in its

original jurisdiction

A filed a case for specific performance with damages

against B. B lost.

Rule 37 (MR/MNT if grounds present)

Rule 41(RTC-CA)

Aggrieved by denial of MR by RTC A filed a case for specific performance against B in RTC. B

lost. B filed an MR/MNT. Court denied.

Rule 41 (RTC – CA)

Note: Can’t file Rule 65. Must appeal the judgment itself

(the one that held that B lost and must do specific

performance)

Aggrieved by denial of MR/MNT by

RTC when the subject of denial is interlocutory

A filed a case for specific performance against B. B,

instead of filing answer, filed a Motion to Dismiss. It was denied so B filed an MR as against the denial of the motion

to dismiss. RTC still denied it.

Rule 65 (certiorari either in CA/SC)

Note: Why? Because the order denying the MTD is merely

an interlocutory order. The subject of the MR is interlocutory.

Aggrieved by the following: 1. An order denying a petition

for relief or any similar

motion seeking relief from

judgment

2. An interlocutory order

3. An order disallowing or

dismissing an appeal

4. An order denying a motion to

set aside a judgment by

consent, confession or

compromise on the ground of

fraud, mistake, duress or any

other ground vitiating consent 5. An order of execution

6. A judgment or final order for

or against one or more

several parties or in separate

claims, counterclaims, cross-

claims and third-party

complaints, while the main case

is pending, unless the court

allows an appeal therefrom

7. An order dismissing an action

without prejudice

Rule 65 certiorari to RTC/CA/SC as the case may be.

Aggrieved by j/fo of a QJ agency A was relieved from his post in an administrative agency.

He appealed to the CSC. CSC denied.

Rule 42 (QJ – CA)

Aggrieved by j/fo under Labor Code (NLRC, Sec of Labor,

Director of Bureau of labor Relations)

A was fired from his job. He argues that it was illegal dismissal. He goes to the NLRC. He lost.

Rule 65 (certiorari) to CA


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Aggrieved by DOJ Secretary decision in petition for review of

prosecutor’s resolution

Criminal charges were filed against A. Prosecutor found probable cause. A went to the DOJ Sec. DOJ Sec affirmed

prosecutor’s findings.

Rule 65 (certiorari) to the CA

PO aggrieved by OMB decision in

Administrative Cases

OMB suspended Mayor X. Rule 43 (QJ-CA)

PO aggrieved by OMB finding

probable cause to file information against him

OMB found probable cause to file information against

Mayor Y for violation of RA 3019.

Rule 65 (certiorari) to the SC

Aggrieved by RTC, CA, SB and

CTA decision and question of law is involved

Rule 45 (appeal by certiorari to SC)

Aggrieved by RTC or MTC final and executory judgment/order OR

appeal was lost (judgment OR loss of appeal was due to FAME)

Rule 38 (petition for relief from judgment in MTC/RTC as the case may be)

Aggrieved by RTC/MTC final order and MNT/Appeal/Petition for relief

and other remedies are not anymore available

Rule 47 (petition for annulment of judgments or final orders and resolutions)


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Civpro tips:

What are the provisional remedies and which ones can be issued ex-parte?

1. Rule 57: Preliminary attachment: can be issued ex-parte

2. Rule 58: Preliminary injunction: can be issued ex-parte 3. Rule 59: Receivership: can’t be issued ex-parte

4. Rule 60: Replevin: can be issued ex-parte 5. Rule 61: Support pendente lite: can’t be issued ex-parte

Basically, 57, 58 and 60.

Distinguish between levy and garnishment

Levy Garnishment

The act whereby a sheriff sets apart or appropriates for satisfying the command

of a motion of execution, a part of the

whole of the judgment debtor’s property

Species of attachment for reaching credits belonging to the judgment

debtor and owing to him from a stranger

to the litigation. It is an attachment by means of which the plaintiff seeks to

subject to his claim property in the hands of a third person or money owed

by such third person or garnishee to the defendant.

Discuss the rules on issuance of TRO by the MTC, RTC, CA and SC as to

periods and places of effectivity.

MTC RTC CA SC

Effectivity Within

territorial jurisdiction

of said court

Within territorial

jurisdiction of said court

Binding to

parties anywhere in

the Philippines

Binding to

parties anywhere in

the Philippines

Duration 20 day TRO 20 days [great or

irreparable injury]

OR

72 hour in multi-sala court [extreme

urgenc grave injustice/irreparable

injury]

60 day

duration

Effective

until further orders

A obtained a loan from Bank X, secured by a mortgage. He failed to pay so

the bank foreclosed. A failed to redeem thus title was issued under the

bank’s name. The court issued a writ of possession in favor of the bank. A

filed a complaint for annulment of the foreclosure with a prayer for injunction.

Will injunction lie? What is the effect of the action on the writ of

possession?

No. Injunction will not lie. The court, in this case, is not doing something probably in the violation of A’s rights as PNB was already entitled to possession of the property

as a matter of right. Further, A’s action has no effect on the writ of possession. As held in PNB v. Sanao, the judge to whom an application for writ of possesson is

filed need not look into the validity of the mortgage or the manner of its foreclosure.

No discretion is left to the TC in the issuance of a writ of possession. After the

consolidation of title in the buyer’s name for the failure of the mortgagor to redeem, writ of possession becomes a matter of right. It is enforceable by mandamus.

B, a student, filed an action for declaratory relief against her school to

determine whether she deserves to graduate with honors. Is this action tenable?

No. A petition for declaratory relief is an action which any person interested under a

deed, will, contract, or other written instrument, whose rights are affected by statute, executive order or regulation, or ordinance, may, before breach or violation

thereof, bring to determine any question of construction or validity arising from the instrument or statute and for a declaration of his rights or duties thereunder.

No. There is no justiciable controversy that is ripe for judicial determination. A

justiciable controversy is defined as adefinite and concrete dispute touching on the legal relations of parties having adverse legal interest which may be resolved by a

court of law through the application of a law.

The requisites for a petition for declaratory relief as held in jurisdprudence area as follows:

1. Existence of justiciable controversy

2. The controversy is between persons whose interests are adverse 3. That the party seeking relief has a legal interest in the controversy

4. The issue involved is ripe for judicial determination


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C obtained a loan from D. C defaulted in payment and refused to comply with D’s demand. D filed a collection case, especially after learning that C

was planning to go abroad and was selling her properties. What can D pray

for in the complaint? Aside from the amount of the loan, can D ask for

damages?

D can ask for a preliminary attachment. As provided in Rule 57 Sec 1, a plaintiff or any proper party may have the property of an adverse party attached as security

for the satisfaction of any judgment in an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of

action arising from contract against a party who is about to depart from the Philippines with intent to defraud his creditors. Therefore, D can ask for preliminary

attachment but not moral or exemplary damage.

Give the two stages in the action for expropriation. How are both appealed?

As held in Municipality of Binan v. Garcia

There are two (2) stages in every action of expropriation. FIRST: Determination of authority of plaintiff to expropriate.

o Can end with either an order of expropriation or dismissal. Both are FINAL orders.

o REMEDY: record on appeal within 30 days from notice SECOND: Determination of just compensation for the property sought to

be taken. Done with assistance not more than 3 commissioners. o This order is also FINAL.

o REMEDY: record on appeal 30 days from notice

F secured a judgment in a damage suit against D from the RTC. The judgment was entered on January 1, 2007. It has not been executed. On

April 15, 2007, F decided to enforce the judgment.

How will F enforce the judgment? If F wanted to execute on April 3, 2006,

what should she do?

Rule 39 Sec 6 provides the following:

BEFORE FIVE YEARS FROM ENTRY: may be executed on motion AFTER FIVE YEARS FROM ENTRY + BEFORE PRESCRIPTION BARS:

enforced by action (independent action for execution) o Note: This revived judgment may also be enforced by motion

within 5 years after the date of its entry and after 5 years, by action also.

G is a lessee of a building owned by L paying a rental of 100k a month. L died and since then, G has not paid rents amounting to 1M, because 2 heirs

of L are claiming both rental payments. What action should G take, before

what court and against whom in order to protect his interest?

G should file an action for interpleader against the two heirs in the RTC (the court is

dependent on the amount for it is an action that involves the title to or possession of real property or any interest therein) A complaint for interpleader is proper

whenever conflicting claims upon the same subject matter are made against a person who claims no interest whatever in the SM or an interest which in whole or

in part is not disputed by the claimants. He may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims

among themselves. In this case, he can bring an action against the two heirs to compel them to litigate their claims among themselves so that he will finally know

who he should pay the rents to.

F obtained a loan from X to buy machines for her garment factory. F executed a chattel mortgage over said machineries. However, F defaulted

in the payment of the loan. X sought the delivery of the machines so that they can be sold at foreclosure sale but F refused, contending that it would

result into a stoppage of business. What are X’s legal remedies?

As held in the case of Northern Motors v. Herrera: Because of F’s default, X, as the creditor and chattel mortgagee, has two remedies

1. Writ of Replevin: A party praying for the recovery of possession of personal

property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of property to him upon showing in

an affidavit that the applicant is entitled to the possession thereof, that the adverse party is wrongfully detaining the property, that the property has not

beein distrained or taken for a tax assessment or a fine or seized under a writ of execution or preliminary attachment or otherwise placed from custodial egis

and additionally, the market value of the property. Applicant must also give a

bond. This is to secure possession as a preliminary to the sale contemplated in the chattel mortgage law.

2. Effect judicial foreclosure of the mortgage


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M filed an unlawful detainer case before MTC of Rizal against T for refusing to vacate the leased premises after the expiration of the lease contract and for non-

payment of rentals. As counterclaim, T claimed moral damages in the amount of

1M.

a) May MTC proceed to try the case including the claim for 1M?

Yes. RoC provides that original exclusive jurisdiction over unlawful detainer cases.

The claim for damages is only incidental to the principal case of unlawful detainer. However, as held in the case of Maceda v. CA, a counterclaim in the MeTC/MTC

beyond its jurisdictional limit may be pleaded ONLY by way of defense, but not to obtain affirmative relief

b) In case T is adjudged to vacate the premises and to pay the accrued

rentals in arrears, how can she stay the execution?

The GR is that a judgment in a FEUD case is immediately executory. However, it can be stayed upon the execution of the following acts:

1. T must perfect his appeal (to the RTC under rule 40) within the reglementary period

2. T must file a sufficient supersedeas bond, approved by the MTC and executed in favor of M to pay rents, damages, costs, etc

3. T must also make periodical deposit with the appellate court the amount of rent due from time to time under the contract (if any) as

determined from the MTC judgment

Additionally, the case of Benedicto v. CA provides that preliminary injunction to be granted to stay the immediate execution upon showing that there exists a right to

be protected and that the acts against which the writ is to be directed violate said right.

c) Distinguish forcible entry from unlawful detainer

Forcible Entry Unlawful Detainer

The plaintiff has prior possession and

he is deprived thereof by FISTS

Defendant unlawfully withholds

possession of the property after the expiration of his right thereto under any

contract, express or implied.

No prior possession by plaintiff required!

No demand to vacate is required Demand to vacate is required

To count 1 year period of dispossession,

count from date of actual entry except when there is stealth

To count 1 year period of dispossession,

from the date of last demand to vaate.

d) If T raises questions of ownership, what is its effect on MTC’s jurisdiction?

None. As held in Hilario v. CA, all FEUD cases have to be tried pursuant to the

revised rule on summary procedure regardless of w/n the issue of ownership is alleged by a party. The lower courts retain jurisdiction over FEUD cases even if the

question of possession cannot be resolved without passing upon the issue of ownership. The lower courts however, can only pass upon the issue as to ownership

for the sole purpose of determining possession. Hence, an adjudication made by the lower court is merely provisional in nature.

F filed an ejectment case against G. G was ordered to vacate the property.

However, after leaving the property, G secretly re-entered the property and built a shanty thereon. What can F file against G? How must proceedings be

commenced and where should the charge be filed?

As provided in Rule 71, G’s acts fall squarely under the provisions on indirect contempt. Disobedience of or resistance to a lawful writ process order or judgment

of the court by a person who, after being dispossessed or ejected from any real property by the judgment of any court of competent jurisdiction, enters such real

property for the purpose of executing acts of ownership or possession, or if a person who, in any manner, disturbs the possession given to the person adjudged to be

entitled thereto is liable for indirect contempt. Hence, F can file indirect contempt charges against G.

Proceedings for indirect contempt can be initiated motu proprio by the court against

which the contempt was committed OR by a verified petition with supporting particulars involving documents or papers required. It shall be filed with the RTC of

the place where the lower court (MTC in this case) is sitting, but the charge may also be filed in the lower court itself.

In case of sum of money filed by B against P, the RTC granted ex-parte B’s

prayer for issuance of writ of attachment. The writ was immediately

implemented by the sheriff. P filed a motion to discharge the writ on the ground that it was issued or implemented without prior service of

summons. B opposed on the ground that the writ can be applied for and granted at the time of commencement of action or at any time thereafter,

and that, in any event, the summons eventually served cured whatever irregularity that might have attended the enforcement of the writ.

Rule on the conflicting contentions.

Davao Light v. CA

Writs of attachment may properly issue ex parte provided that the Court is

satisfied that the relevant requisites therefor have been fulfilled by the applicant, although it may, in its discretion, require prior hearing on the application with notice

to the defendant; but that levy on property pursuant to the writ thus issued may not be validly effected unless preceded, or contemporaneously

accompanied, by service on the defendant of summons, a copy of the


95

complaint (and of the appointment of guardian ad litem, if any), the application for attachment (if not incorporated in but submitted separately from the complaint),

the order of attachment, and the plaintiff's attachment bond.

Therefore, no levy on attachment pursuant to a writ of attachment shall be enforced UNLESS

1. It is preceded or contemporaneously accompanied by service of

summons 2. Service of summons together with a copy of the complaint, the

application for attachment, the applicant’s affidavit and bond nd the order and writ of attachment, on the defendant within the Philippines

However, don’t forget that service of summons is not required where:

1. The summons could not be served personally or by substituted service

despite diligent efforts 2. Defendant is a Philippine resident who is temporarily abroad

3. The defendant is a non-resident or 4. The action is one in rem/quasi in rem (like in Valmonte)

As to the argument that the service of summons was cured, it must be remembered

that in the implementation of a writ of attachment, jurisdiction over the defendant is mandatory.

May a petition for prohibition be filed to prevent the enforcement of the

implementing rules and regulations issued by a government agency, the ultimate relief sought being the nullification thereof.

In Holy Spirit Homeowners Association v. Defensor, a petition for prohibition is not

the proper remedy to assal an IRR issued in the exercise of quasi-legislative function.

Prohibition is an extraordinary writ directed against any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions,

ordering said entity or person to desist from further proceedings when said proceedings are without or in excess of said entity’s or person’s jurisdiction, or are

accompanied with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.

Prohibition lies against judicial or ministerial functions, but not against legislative or

quasi-legislative functions. Generally, the purpose of a writ of prohibition is to keep a lower court within the limits of its jurisdiction in order to maintain the

administration of justice in orderly channels. Prohibition is the proper remedy to afford relief against usurpation of jurisdiction or power by an inferior court, or when,

in the exercise of jurisdiction in handling matters clearly within its cognizance the inferior court transgresses the bounds prescribed to it by the law, or where there is

no adequate remedy available in the ordinary course of law by which such relief can be obtained. Where the principal relief sought is to invalidate an IRR, the remedy is

an ordinary action for its nullification, an action which properly falls under the jurisdiction of the Regional Trial Court.

The ordinary action for nullification was not specified by the SC.

Difference of Rule 45 and Rule 65

Rule 45 – Petition for review on

certiorari (appeal by certiorari)

Rule 65 – Petition for certiorari (special civil action of certiorari)

Involves correction of errors of judgment

Involves errors of jurisdiction

Mode of appeal Special civil action

Petition based on question of law

Petition raises issues as to w/n the

lower court acted w/o jurisdiction or in excess of jurisdiction or with

GADALEJ

Involves review of the judgment

award or final order on the merits

Directed against an interlocutory order of the court where there is

no appeal or any other plain, speedy and adequate remedy

Must be made within the

reglementary period

Filed not later than 60 days from

notice of judgment, order or resolution appealed from

Stays the judgment or order appealed from

Unless a writ of preliminary

injunction or TRO is issued, does not stay the challenged proceeding

Petitioner and respondent are

original parties to the action, lower court or quasi-judicial agency not

impleaded

Parties are the aggrieved party

against the lower court, quasi-

judicial bodies and prevailing party

MR not required

MR or MNT required. If MR or MNT

filed, period shall not be interrupted but another 60 days

shall be given to the petitioner

Court is in the exercise of appellate

jurisdiction and power of review Court exercises original jurisdiction


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Where the “at least 5 days in any event” applies

1. Bill of Particulars

2. Motion to dismiss

3. Interpleader 4. Review of judgments and final orders of COA

Two aspects of Mandamus. In the second aspect, when will the action be

mandamus and when will it be quo warranto?

The two aspects are as follows:

1. When one unlawfully neglects the performance of an act which the law specifically orders as a duty resulting from an office, trust or station

2. When one unlawfully excludes another from the use and enjoyment of a right or

office to which such other is entitled.

A quo warranto proceeding is a demand made by the state upon some individual or

corporation to show by what right they exercise some franchise or privilege appertaining to the State. An action for usurpation of a public office, position or

franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines AGAINST a person who usurps, intrudes into, or

unlawfully holds or exercises a public office, position or franchise.

Hence, it will be quo warranto when there is usurpation/unlawful exercise of a public office, position or franchise. In mandamus, the respondent doesn’t have to hold the

position and doesn’t have to claim title to it while in quo warranto, respondent must be unlawfully holding/exercising it.

Rule 65 Sec 7:

The court in which the petition is filed may issue orders expediting the proceedings,

and it may also grant a TRO or a writ of preliminary injunction for the preservation

of the rights of the parties pending such proceedings.

The petition (for certiorari, mandamus or prohibition) shall not interrupt the course of the principal case unless a TRO or injunction has been issued, enjoining the

public respondent from further proceeding with the case.

The public respondent (court/officer/agency) shall proceed with the principal case within 10 days from the filing of a petition for certiorari absent a TRO/injunction.

Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge.

Depositions

When leave of court required When not required


depositions pending action when answer to complaint has been served


depositions pending action when answer has not been filed but after jurisdiction



interrogatories to parties when answer to complaint has been served

Deposition PENDING appeal under

Rule 24

Request for admission under Rule

26: request for admission does not require court approval


interrogatories to parties when answer has not been filed but after jurisdiction


Rule 27: Motion for production of

inspection of documents or things

Rule 28: Motion for physical and mental

examination of person

WHEN A DEPOSITION OF A WITNESS, WHETHER OR NOT A PARTY, MAY BE USED BY ANY PARTY FOR ANY PURPOSE deposition may be used without

the deponent actually being called to the witness stand: when the court finds that (D-A-A-S-E-100)

a. The witness is dead b. The witness resides more than 100km from the place of trial or hearing

c. The witness is abroad UNLESS it appears that his absence was procured by the party offering the deposition

d. The witness is unable to attend or testify because of age, sickness, infirmity or imprisonment

e. That the party offering the deposition has been unable to procure the attendance of the witness by subpoena

f. Upon application and notice, in exceptional circumstances wherein the

testimony of the witness is important

A bought a lot from B. By mistake, A built a house on the adjoining lot

owned by C. C discovered the structure and she filed a case of forcible entry against A. Will it prosper?

No. FISTS must be a ground for forcible entry. If mistake is the reason for the

alleged wrongful intrusion, a case for forcible entry will not prosper.

civpro finals reviewer- jdl - butch ramiro

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