Civ Pro Tips for Finals 2

Civil Procedure | 1 of 48  

Jurisdiction

Civil Procedure Compilation of Past Exam Questions

Distinguish between Question of Fact and Question of Law. What is the jurisdiction of the Supreme Court as to the findings of fact of the CA?

1

There is a question of law when the doubt or difference arises as to what the law is on a certain set of facts. There is a question of fact when the doubt or difference arises as to the truth or falsehood of the alleged facts.

2 B

General Principles

Generally, the Supreme Court is not a trier of facts and as such, only questions of law may be entertained by the Court in petitions for review under Rule 45. Under this rule, questions of fact are not reviewable.

Jurisdiction and Venue

However, factual issues may be delved into and resolved where the findings and conclusions of the trial court or the quasi-judicial bodies are functionally inconsistent with the findings of the CA. 2014 Riano (1) 101, 108

Objective/General

What is jurisdiction?

Up to what stage of a civil action may the issue of jurisdiction be raised?

Jurisdiction is the power of the court to hear, try and decide a case. In its complete aspect, jurisdiction includes not only the power to hear and decide a case, but also the power to enforce judgment. 2012 Inigo (1) 9

Jurisdiction is the power or authority of the court to hear, try and decide a case. Exercise of jurisdiction involves the actions involved to arrive at a decision. 2012 Inigo (1) 10

It depends. If it involves an issue of jurisdiction over the subject matter, it may be invoked at any stage of the proceedings even for the first time on appeal as provided in Calimlim v. Ramirez. If it involves jurisdiction over the person of the defendant, the object must be raised either in the motion to dismiss or by way of affirmative defense in the answer. Failure to do so at this stage of the action would constitute a waiver of the same. Rule 16, Sec. 16; 2014 Riano (1) 88, 97

What is original, concurrent and exclusive jurisdiction?

What is the jurisdiction of the RTC and MTC in civil cases?

Original jurisdiction is the power of the court to take cognizance of a case at its inception or commencement. Concurrent jurisdiction is that possessed by the court together with another court over the same subject matter, the court obtaining jurisdiction first retains it to the exclusion of the others. But the choice of court is lodged in those persons duly authorized to file the action. Exclusive jurisdiction is the authority possessed by a court to take cognizance of a case to the exclusion of other courts. 2012 Inigo (1) 13-14

Regional Trial Courts shall exercise exclusive original jurisdiction: (1) Actions where subject of litigation is incapable of pecuniary estimation; (2) Actions involving title to, or possession of, real property where the assessed value of the property exceeds 20k (outside MM) or 50k (in MM), except actions for FE and UD which jurisdiction is with the MTC; (3) Admiralty and maritime actions where claim or demand exceeds 300k (outside MM) or 400k (inside MM); (4) Matters of probate, both testate and intestate, where gross value of estate exceeds

Distinguish jurisdiction from exercise of jurisdiction.

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Civil Procedure | 2 of 48   300k (outside MM) or 400k (in MM); (5) In all cases not within the exclusive jurisdiction of any court, tribunal or person exercising judicial or quasijudicial functions; (6) All other cases in which demand, exclusive of interests, damages, fees, litigation expenses and costs or value of property exceeds 300k (outside MM) or 400k (in MM).

In the MTC. The law provides that the MTC shall have jurisdiction where the value of the personal property in controversy does not exceed 200k. Since the case at bar is for the recovery of personal property, it is within the jurisdiction of the MTC. P corporation filed an action against D in the RTC to collect certain amounts of money amounting to P 2 million on its claim that D, while president of P corporation and by using his position as such president and through fraud and misrepresentation, misappropriated and diverted to his personal use these corporate funds. D moved to dismiss the complaint on the ground that it falls within the jurisdiction of the Securities and Exchange Commission (SEC). Rule on the motion to dismiss.

The Municipal Trial Courts exercise exclusive original jurisdiction: (1) Civil actions and probate proceedings, testate or intestate where the value of estate does not exceed 300k (outside MM) or 400k (in MM), exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, costs; (2) Cases of FE and UD, with authority to pass on issue of ownership to determine the issue of possession if possession cannot be resolved without deciding the issue of ownership; (3) Cases involving title to, or possession of, real property or any interest therein where the assessed value of the property does not exceed 20k (outside MM) or 50k (in MM). BP 129 Sec. 19

Motion to dismiss denied. In the Securities Regulation Code of 2000, cases enumerated in Sec. 5 of PD no. 902-A have been transferred to the Courts of general jurisdiction or the RTC. RTC has now the jurisdiction to try cases involving boards of directors, business associates, officers or partnership committing fraud and misrepresentation. Sec. 5.2, Securities Regulation Code of 2000.

Jurisdiction over the person

P filed an action in the CA for mandamus against D and also prayed for moral and exemplary damages. Does the CA have jurisdiction over the action?

A filed an action against B to recover real property located in Cogon Market, CDOC. When the Sheriff served the summons on B, he discovered that the tenant of the house which B rented from C was no longer B but D who informed the Sheriff that B left the premises eleven months before. The Sheriff went to C, the owner of the apartment, who gave the sheriff the same information. After one month, on the basis of these facts, A filed a motion to declare B in default for failure to file his answer. The court granted the motion and allowed A to present his evidence ex parte. Afterwards, the court rendered judgment in A’s favor. Seven months after, B, who had already resided in Batac, Ilocos Sur because of his wife who was a native of said place, spent his vacation in CDOC, and he learned from his friends that a decision was rendered against him in a case involving his real property located in Cogon Market, CDOC. (a) B’s lawyer filed an action with the RTC to annul the judgment on the ground that the court did not acquire jurisdiction over his

Yes. The law confers upon the CA original and concurrent jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction.

Jurisdiction over Subject matter A, a Manila resident, bought a color TV set at the price of 15k on 24 monthly installments from B Co., a Manila-based appliance company. The transaction was covered by a conditional sale contract. A defaulted in his monthly installment payments after having paid 5 such installments. In what court may B Co. bring the action to recover the TV set? Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 3 of 48   person. Do you agree with B’s lawyer? Explain. (b) Could B still file a petition for relief of judgments? Reasons. (c) Was the order of the Court in declaring B in default tenable? Why? (d) Assume that B spent his vacation in CDO 20 days after A filed his action. B immediately filed a motion to dismiss on the ground that the court did not acquire jurisdiction over his person and on the ground that A had no cause of action because A had already sold the land to B which sale was evidenced by an absolute deed of sale executed by A in favor of B and a copy of the document was attached to the motion. If you were the judge, how would you resolve the motion.

the same does not constitute voluntary appearance. In La Naval Drug Corp v. CA, the Court ruled that a defendant may raise as many defenses, alternatively or hypothetically and that it should not be the invocation of available additional defenses that should be construed as a waiver of the defense of lack of jurisdiction over the person of the defendant, but the failure to raise the defense.

docket fees What is the legal effect of the non-payment of the docket fees in full? Generally, the court does not acquire jurisdiction over the subject matter of the case. Therefore, the entire proceedings of the case are null and void. This is because the payment of docket fees vest a trial court with jurisdiction over the subject matter. There were however instances when the court has relaxed the rule and held that the non-payment of docket fees does not automatically cause the dismissal of the case as long as the fee is paid within the applicable prescriptive or reglementary period. Also, if the amount of docket fees is insufficient, the party filing the case will be required to pay the deficiency, but jurisdiction is not automatically lost.

(a) Yes, I agree with B’s lawyer. The law provides that whenever the whereabouts of a defendant are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and in such time as the court may order. In the case at bar, the jurisdiction over the person of B was not acquired because of the improper service of summons. Since the trial court did not acquire jurisdiction over the defendant, the action should be annulled.

Action by P against D in the RTC for a sum of money was sought to be dismissed by D on the ground of prescription. The motion to dismiss was denied and D brought a special civil action for certiorari in the CA against the order of denial of his motion to dismiss. The CA dismissed the petition. Then, D filed his answer, after which trial was held and judgment rendered against D. On appeal from this judgment to the CA, D filed a motion to dismiss the complaint on the ground of lack of jurisdiction, alleging htat P had not paid the appropriate docketing fees in the trial court. Rule on the motion to dismiss.

(b) No, B may not file a petition for relief from judgment. The Rules provide that the remedy of petition for relief of judgment is only available where the judgment was entered through fraud, accident, mistake or excusable negligence and the same must be filed within 60 days after petitioner learns of the judgment but not more than 6 months after the judgment was entered. The facts show that the grounds for petition for relief are not available in the instant case and that 7 months has already elapsed since the judgment was rendered. Hence, petition for relief is not a remedy available to B.

Motion to dismiss denied. Although the payment of the proper docket fees is a jurisdictional requirement, the court may allow the plaintiff in an action to pay these fees within a reasonable time before the expiry of the applicable prescriptive or reglementary period. It is when the plaintiff fails to comply with this requirement that the defendant should timely raise the issue of jurisdiction or he would be considered in estoppel.

(c) No, the order of default is not tenable. Given that jurisdiction over the person of the defendant, B, was not acquired in the instant case, it is void. (d) [Bance] I will grant the motions. The facts show that jurisdiction over the person of the defendant has not been acquired. Hence, there is a valid ground to grant the motion to dismiss. It is immaterial that B raised another ground to dismiss the action for Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 4 of 48   Here, D filed an answer and participated in the proceedings before the TC. It was only after judgment was rendered against him that he raised the issue of jurisdiction. While the lack of jurisdiction may be raised at any stage of an action, the party raising such question may be estopped if he has actively taken part in the very proceedings which he questions and he only objects to the court's jurisdiction because the judgment or decision subsequently rendered is adverse to him. National Steel Corp. v CA

amount of the appellate court docket and other lawful fees. Proof of payment thereof shall be transmitted to the appellate court together with the original record or the record on appeal, as the case may be. Non-payment of such fee is a ground for the dismissal of the appeal by the trial court Rule 40, Sec. 5 and Rule 41, Sec. 4, Riano (1), 650-651

Venue

P sued D to compel the latter to execute a deed of sale to him over a parcel of land the purchase price of which had allegedly already been fully paid by P. After his motion to dismiss on the ground of prescription was denied, D filed his answer in due course and thence trial was held. After trial, judgment was rendered against D who then filed a motion to dismiss for lack of jurisdiction on the ground that P did not pay the correct docket fees which should have been assessed on the basis of the value of the property and damages sought and not on the basis of the action as one for specific performance when it was actually for recovery of property. Rule on the motion to dismiss.

What is the venue of actions against nonresident defendants? If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found. Rule 4, Sec. 3 A entered into a lease contract with B whereby A leased his house in CDO to B. It was stipulated in the lease contract that if A should violate the contract, he should be sued in Opol, Misamis Oriental, and if B should violate the contract, he should be sued in Tagoloan, Misamis Oriental. One year after the contract of lease was executed, B failed to pay the rentals for 6 months, so A filed an action for unlawful detainer in MTC of Tagoloan. B’s lawyer believes that the MTC of Tagoloan has no jurisdiction over the case because the property is located in CDO, and the stipulation is contrary to Section 1, Rule 4 of the Rules of Court as amended, therefore, it is void. Is B’s lawyer correct? Explain.

Motion to dismiss denied. In the first place, the action is really for recovery of real property and not for specific performance since P's primary objective is to regain the ownership and possession of the parcel of land. In the second place, it was held that while the payment of the required docket fee is a jurisdictional requirement, even the nonpayment at the time of filing does not automatically cause the dismissal of the case, as long as the fee is paid within the applicable prescriptive or reglementary period. If the amount of docket fees is insufficient considering the amount of the claim, the party filing the case will be required to pay the deficiency, but jurisdiction is not automatically lost. Thirdly, the motion to dismiss came too late. D is already estopped from raising the issue of jurisdiction after he had actually taken part in the very proceedings which he questions and after the court had rendered a judgment adverse to him. Riano (1) 350; National Steel Corp. v. CA

No, B’s lawyer is not correct. Jurisprudence provides that when parties agree on the venue of actions other than those found in the Rules, the stipulated venue is considered merely an additional to that already prescribed by law, unless the stipulations contain restrictive words which show the intention of the parties to limit the place stipulated as the exclusive venue. In the case at bar, the parties did not use restrictive words to signify their intention to make the stipulated venues exclusive. Therefore, the action may filed in any of the three venues: Tagoloan or Opol, as stipulated and CDO. 2012 Inigo (1) 132; Polytrade v. Blanco

In civil cases, where should the appellant pay the appellate court docket fee and what is the effect of non-payment of such fee? The appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from the full Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 5 of 48   A and B, both residents of Batangas, entered into a Contract of Lease over a parcel of land belonging to B located in Cebu City. A filed a complaint before the RTC in Batangas for the rescission of the lease. B filed a motion to dismiss on the ground that the Batangas Court did not have jurisdiction over the subject matter, the land being located in Cebu City. Resolve the motion.

set up the counterclaim that his contract with B be rescinded for B’s failure to pay the entire amount of the purchase price. Is the counterclaim set up by A permissive or compulsory? Explain. (g) The action referred to above was filed with the RTC, but at the time it was filed the balance of 20% amounted to 100k. A filed a motion to dismiss on the ground that the court had no jurisdiction since the balance of the purchase price was only 100k. Is the motion tenable? Why? Would your answer be the same if at the time the action was filed the balance was 300k? Why?

The motion is tenable. The Rules provide that actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property or a portion thereof is situated. Although the action brought by A is captioned as one for rescission, it is fundamentally one that involves an interest over a real property and hence, may only be instituted in the place where the real property or a portion thereof is located. Rule 4, Sec. 1

(h) Suppose that after the execution of the contract to sell, B immediately occupied the land and built a beach house. Suppose also that after B demanded the reduction of the purchase price by 20%, A wanted to file an action first to recover possession of the land. Suppose also that the 20% balance amounted to 100k. In what court should the action be filed? Explain.

A agreed to sell to B for 500k on installment basis a parcel of land located in Camiguin. A is a resident of Malaybalay and B of CDOC. In the contract to sell executed by A and B among the stipulations were that title to the land should pass to B only after the purchase was fully paid and that after full payment, A would execute a deed of absolute sale in B’s favor. After paying 2 installments but before full payment of the purchase price, B requested that the land be resurveyed to determine the actual area of the land which was along the beach. A agreed and after resurvey, it was found that because of natural erosion caused by the waves of the sea, the area of the land described in the Certificate of Title was reduced by 20%. B wanted that the purchase price be reduced also by 20%. And the trouble began.

(i) Referring to question d, after A filed an action to recover possession of the land , B filed an answer with counterclaim set up prayed that A be ordered to execute the deed of absolute sale mentioned in the contract to sell. Is the counterclaim permissive or compulsory? Explain. (j) Referring to question A above, after B filed his complaint, the sheriff served the summons on A through A’s brother who lived in Hubangon. A’s brother after receiving the summons left for Russia and stayed there for 6 months. Apparently, A’s brother forgot about the summons because one month after, B, with notice to A, filed a motion to declare A in default for failure to file an answer and to render judgment on the basis of the complaint. The judge granted the two motions, and in the judgment of the judge ordered A to return to B all the payments made by him plus interest of 30% per annum until the entire amount shall have been fully paid.

(e) After paying 80% of the purchase price, B demanded that A execute a deed of absolute sale as agreed upon in the contract to sell. A refused saying that B should pay first the balance of 20%. B filed in Camiguin an action against A for the latter to execute the absolute deed of sale. A filed a motion to dismiss on the ground of improper venue arguing that the motion was in personam therefore must be filed in Bukidnon where he resided. Supposing you were the Judge, how would you rule on the motion?

1) Was the order of the judge declaring A in default valid? Explain.

(f) Instead of filing a motion to dismiss, A filed his answer and Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 6 of 48   2) Assuming that the order was valid, was the judgment rendered by the court valid? Explain.

of whom the court cannot acquire jurisdiction. Since B’s claim arises out of the same transaction and only involves A and B, then the claim is compulsory.

(a) The motion to dismiss should be denied. While the action may seem like an action for specific performance to compel A to execute a Deed of Sale, the facts show that the ultimate purpose of the action is title to the real property. Hence, this is a real action for it affects title to or interest in real property which under the Rules must be commenced and tried in the place where the real property or a portion thereof is situated. The property being located in Camiguin, the RTC of Camiguin is thus the proper venue for the action.

(f) (1) Yes, the order of the judge in declaring A in default was valid. The Rules provide that if the defending party fails to answer within the time allotted 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. (2) No, the judgment rendered by the court is not valid. The Rules provide that a judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. There being no showing that the 30% interest was prayed for, the judgment should not have included the same.

(b) It is a compulsory counterclaim. A compulsory counterclaim is one which arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties. Since A’s counterclaim arises out of the same transaction – the transaction covered by the Contract to Sell – and only involves A and B, his counterclaim is compulsory.

Comment [Bance]: This question was probably asked before the 1997 Rules, meaning, during such time when actions involving title to real property is within the exclusive jurisdiction of the RTC. Hence, this question would have been easily answered by emphasizing that this is a real action, not a personal action, and hence within the jurisdiction of the RTC. The problem with the question now is that it only provides that the parties agreed to pay P500k. Under the present rules, the assessed value is needed to determine jurisdiction. P500k is not the assessed value, it is merely the fair market value which can’t be the basis for determining jurisdiction. Bottomline: the facts really do not provide which court has jurisdiction. Advice: Read with extra caution.

(c) No, the motion is not tenable. In real actions, it is the assessed value of the land which determines jurisdiction. The action was not for the recovery of the unpaid balance but for the execution of the sale which would have the effect of ownership of the property. Therefore, the assessed value of the land would determine which court has jurisdiction and not the unpaid balance. The value of the land being 500k, it is well within the jurisdiction of the RTC and the fact that the unpaid balance is only 100k is immaterial. Yes, my answer would be the same even if the balance is 300k as it is the assessed value of the land which is the basis for determining jurisdiction in real actions. (d) The action should be filed in the RTC of Camiguin. The Rules provide that the RTC has exclusive and original jurisdiction over actions involving title to or possession of real property where the assessed value exceeds 20k.

P sues D in RTC Manila to recover 100k and a parcel of land located in Manila. P is a resident of Manila while D is a resident of Quezon City. D moves to dismiss on the ground of lack of jurisdiction. Decide.

(e) The counterclaim is compulsory for it arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties

Motion should be denied. The Rules provide that a party may assert in one pleading as many causes of action provided that, among others, where the causes of action are between different venues or jurisdictions, the joinder may be allowed in the RTC provided one of the

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Civil Procedure | 7 of 48   causes of action falls within its jurisdiction and the venue lies therein. Since the action involves the recovery of a real property, this is a real action which must be instituted in the place where the property is found. The claim for 100k may be properly joined with the claim for recovery of real property. Hence, the action is properly filed with the RTC of Manila.

Banta was an operator and owner of JB Buslines. He resided in Iligan City but the offie was in CDO. Dongo was a Filipino and a resident of Butuan before he went to America. In December 1996, Dongo went to Butuan for a vacation. During the vacation, he went to Iligan City driving his own car. While he was in Marcos Bridge in CDO, a bus of Banta bumped him causing damages to the car and to him. Dongo, represented by his attorneyin-fact because he had already returned to America, filed an action for damages against Banta in the RTC of Butuan. Banta filed a motion to dismiss on the ground of improper venue contending that the action should have been filed in Iligan City where he resided. Rule on the motion.

Comment [Bance]: Caution. This problem does not state the assessed value of the real property. This was probably asked before the 1997 Rules. If the assessed value is given, it should be within the jurisdictional amount of the RTC or MTC to confer jurisdiction.

The motion is tenable. The Rules provide that all personal actions may be commenced and tried in the court where the plaintiff or any principal plaintiff resides or where the defendant or any of the principal defendant resides, at the election of the plaintiff. In the case at bar, the plaintiff is a non-resident, having been in Butuan only for a vacation. Since the plaintiff is a nonresident, the proper venue for the action is in Iligan City where the defendant resides. Baritua v. CA

Last February 1990, T died in Quezon City, his place of residence, leaving a will. May the RTC of Bulacan take cognizance of the petition for the probate of his will even if he left no property in Bulacan? No. While the Rules allow for parties to stipulate on venue, the Rules however expressly provide that in the settlement of the estate of the deceased, the same shall be filed at the place where the deceased was a resident at the time of his death, or in the case of an inhabitant of a foreign country, in the place where he has any estate.

[Note] This was already asked in Midterm Exam.

P, a resident of Manila, sued D, also a resident of Manila, in the RTC-QC to collect P500,000.00 based on a promissory note. The RTC-QC dismissed the action motu proprio on the ground that the parties, being both residents of Manila, it has no jurisdiction over the case. Is the dismissal correct?

3 1

No, the matter of residence is one of venue only and not of jurisdiction. A court may not dismiss an action motu proprio on the ground of improper venue as it is not one of the grounds wherein the court may dismiss an action motu proprio on the basis of the pleadings. Unless and until the defendant objects to the venue in a motion to dismiss, the venue cannot be truly said to be improperly laid, because the venue, although technically wrong, may be acceptable to the parties for whose convenience the rules on venue have been devised. Riano (1) 208-209; Guzman v Batario

Objective/General

Define the following: (a) Civil action (b) Special proceeding (c) Action in personam (d) Action in rem (e) Action quasi in rem (f) Real action (g) Personal action (h) Mixed action (i) Transitory action (j) Local action (k) Right of action (l) Cause of Action (m) Venue

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Actions, Causes of Action and Parties

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Civil Procedure | 8 of 48   (a) A civil action is one by which a party sues another for the enforcement of a right, or the prevention or redress of a wrong.

An in personam or an in rem action is a classification of actions according to the object of the action. A personal and real action is a classification according to foundation.

(b) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact.

Hence, an action to recover title to or possession of real property is a real action but it is an action in personam for it is brought against the person upon whom the claim is made and not the whole world. While an action for the declaration of nullity of marriage is a personal action because it is not founded on real property but it is an in rem action because the issue of the status of a person is one directed against the whole world.

(c) An action in personam is one which seeks to enforce personal rights and obligations brought against the person. In an action in personam, no one, other than the defendant, not the whole world, is sought to be held liable. (d) An action in rem is an action where the object of the suit is to bar indifferently all who might be minded to make an objection of any sorts against the right sought to be established. The judgment is binding against the whole world.

Distinguish cause of action and right of action. (a) A cause of action refers to the act or omission committed by the defendants, while right of action refers to the right of the plaintiff to institute the action; (b) A cause of action is determined by the pleadings, whereas a right of action is determined by the substantive law; (c) A right of action may be taken away by running of the statute of limitations, by estoppel or other circumstances; which do not at all affect the cause of action; (d) There is no right of action where there is no cause of action.

(e) An action quasi in rem is one directed against an individual named as defendant and the purpose of which is to subject his property to the obligation or lien burdening it. (f) A real action is one affecting title to, or possession of, real property. (g) A personal action is one which does not involve title to, or possession of, real property. (h) A mixed action is one where there is a mixture of real and personal action, but is reducible to neither of them.

What are the elements of cause of action? (i) A transitory action is one which generally depends on the residences of the parties, usually at the option of the plaintiff.

The elements are as follows: (a) the legal right of the plaintiff; (b) the correlative obligation of the defendant to respect that right; (c) an act or omission on the part of the defendant constituting a violation of said legal right. 2012 Inigo (1) 82; 2014 Riano (1) 232

(j) A local action is one which has to be instituted in a particular place independently of the residences of the parties. (k) A right of action is the right of the plaintiff to bring an action and to prosecute that action to final judgment.

State the totality rule in determining the jurisdiction of civil actions.

(l) A cause of action is an act or omission committed by which a party violates a right of another.

The totality rule states that where claims in all the causes of action are principally for the recovery of money, the aggregate amount claimed shall be the test of jurisdiction. Rule 2, Sec. 5(d)

(m) Venue is the place, or the geographical area in which a court with jurisdiction may hear and determine a case. May a personal action be an action in rem? May a real action be an action in personam?

Actions

Yes. A personal action is not necessarily an action in personam. Nor is a real action, necessarily an action in rem. Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 9 of 48   misjoinder of causes of action. The Rules provide that joinder of causes of action is allowed provided that the joinder shall not include special civil actions or actions governed by special rules. The action for UD being a special civil action, it should not be joined with the collection for sum of money.

In rem v. In personam

X filed an action for reconveyance and cancellation of Torrens Title against Y, who had been living abroad for many years and who was already six feet under the ground when the suit was filed. Summons by publication to Y or to his estate was directed by the trial court. Despite the publication, Y did not file his answer. A decision was rendered in favor of X and it was served by publication. A son of Y learned of the case and filed a petition to set aside as null and void the decision for lack of jurisdiction. X oppose the petition contending that an action for cancellation of title was quasi in rem and that service of summons by publication could be allowed considering that Y was a non-resident of the Philippines. Is the contention tenable? Explain.

May P properly and correctly file a complaint in the RTC against D to recover P1 Million based on a promissory note and another P1 Million based on tortious interference with contract, and for foreclosure of a real estate mortgage to secure a loan of P5 Million? No, P may only join the actions arising out of the PN and the contract, but not the foreclosure of real estate mortgage. The Rules provide that a party may plead as many causes of action as he may have against an opposing party but that the joinder shall not include special civil actions or actions governed by special rules. In the case at bar, P may join the complaint to recover 1M based on the promissory note and the 1M based on the tortious interference with a contract. However, the foreclosure of a real estate mortgage is misjoined, since foreclosure is governed by special rules, and should be severed and proceeded with separately. Rule 2, Sec. 5-6

The contention is untenable. An action to recover a parcel of land is a real action since it involves title to or possession of real property but it is also an action in personam for it binds only a particular individual. The action being in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide a case against him. Summons by publication in actions in personam will not enable the court to acquire jurisdiction over the person of the defendant, except when: (a) the identity and/or whereabouts of the defendant are unknown or (b) if he is a resident defendant temporarily out of the country. In the case at bar, Y does not fall in any of the exceptions, as he is a nonresident defendant. Hence, jurisdiction over his person could not have been acquired through summons by publication. Furthermore, as enunciated in Ching v. CA, a defendant who has already died could not have been validly served with summons as he has no more civil personality. It was lost through his death. 2014 Riano (1) 229-231; Ching v. CA

Suppose you are the counsel for D who is sued in the MTC for unlawful detainer and on a P50,000 PN, what would be your proper and effective procedural recourse?

P, a resident of Manila, filed a complaint against D, a resident of Iloilo, in the RTCManila. This complaint contains 2 causes of action, one for money, and the other for title to real property in Baguio, both causes of action arising out of the same transaction between the parties. Is there anything procedurally wrong with the complaint? Yes. While the Rules allow for the joinder of causes of action, the same requires that where the causes of action pertain to different venues or jurisdictions, the joinder may be allowed in the RTC provided that one of the causes of action falls within the jurisdiction of said court and the venue lies therein. While joinder of causes of action is allowed, it is however subject to the rules on jurisdiction and venue. In the case at bar, the action for money may be tried in Manila or Iloilo, the residence of the plaintiff or defendant at the plaintiff’s election; while the action for title to real property may only be brought in Baguio where the real property is located. Hence, joining the causes of action is procedurally infirm. Mijares v. Piccio

I will move for the severance of one cause of action given that there is a

In an action of recovery of sum of money based on obligation, the prayer included

Causes of Actions Joinder of CoA

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Civil Procedure | 10 of 48   payment of 2nd obligation which has not yet expired. Proper?

(a) No, the motion will not prosper. Litis pendencia, as a ground for dismissal, exist where there is another action pending between the same parties for the same cause of action. While indeed there is a pending action between the same parties in the instant case, this is not for the same cause of action. Quieting of title is founded on ownership, while forcible entry tackles with possession. Hence, there is no same cause of action in the instant case to warrant dismissal of the same.

No, it is not proper. If the obligation has not yet expired, no cause of action accrues. Praying to include payment of the obligation which has not yet expire is premature, which should be dismissed by the court upon proper motion seasonably filed by the defendant. However, if the 1st obligation and the 2nd obligation arose from a single contract with an acceleration clause, then the prayer including the 2nd obligation is proper. Inigo(1) 84, 90

(b) The motion will still be dismissed. There is still no splitting of cause of action as the causes of action of Aga and Nino are different – one is founded on possession, and the other on ownership. The two actions are distinct and separate and thus, may continue irregardless of the existence of the other action.

Splitting cause of action Hibok-Hibok Corporation had a contract with Mantique Corporation under which Hibok-Hibok would construct for Mantique a hotel and restaurant in Mahinog. Mantigue required Hibok-Hibok to put up a performance bond with Catarman Insurance as the surety. Hibok-Hibok however, failed to finish the hotel restaurant on time, and besides Mantique discovered that materials used were substandard. Mantique filed two actions: one action was for breach of contract and damages against Hibok-Hibok and lodged with Branch 1 of RTC Camiguin. The other was against Catarman Insurance on its liability under the performance bond, and lodged with Branch 2 of the same court. If you were the lawyer of Catarman Insurance, what would you do?

(c) The action for forcible entry shall be filed in the MTC of CDO since the law provides that MTCs shall have exclusive and original jurisdiction over actions involving forcible entry and unlawful detainer. Given that the subject matter falls within the jurisdiction of the MTC, the case should be filed therewith regardless of the amount of the property. The action for quieting of title however, being in the nature of an action involving title or possession of a real property, requires perusal of the assessed value to determine jurisdiction. Given that the assessed value exceeds 20k, the same is within the jurisdiction of the RTC of CDO.

If I were the lawyer of Catarman Insurance, I would move for the dismissal of the case

[Note] This was already asked in Midterm Exam.

Parties

Aga filed an action for forcible entry against Nino. During the pendency of the case, Nino filed an action against Aga to quiet title on the property involved in the forcible entry case. Nino then filed a motion to dismiss the forcible entry case on the ground of litis pendencia because of his action to quiet title filed against Aga.

Real Party in Interest

Juan Tiu imported a fertilizer from Taiwan. The fertilizer was shipped on board and this was insured by Luxury Insurance against all risk at the port of departure under a marine policy with a note at a lower left side stamped the name of Bell Corp. as claim agent. When the cargo arrived at Manila, some portion was in bad condition. Tiu then filed with Bell Corp. a formal statement of claim with proof of loss and demanded for settlement corresponding to the value of the damage portion. After conveying the claim to its principal who refused to pay the claim, Bell Corp.

(a) Rule on the motion. (b) Supposing it was Aga who filed the motion to dismiss, will the same prosper? (c) Supposing the property involved in these cases for forcible entry and quieting of title was located in Velez, CDO and its value was not less than 16M. In what court should the two cases be filed? Explain. Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 11 of 48   informed Tiu could not be paid. Tiu filed an action against Luxury and Bell. Bell filed a motion to dismiss contending that it was merely a claim agent of the insurance company and therefore, was not a real party in interest. Bell Corp also contended that Tiu had no cause of action against it because it did not take part in the marine insurance. Are the two contentions tenable?

Joinder of Parties

A brought an action against X and Y in one complaint before the RTC of CDO. As his first cause of action, A alleges that X purchased from him on various occasions premium rice worth 150k but refused to pay the said amount despite several demands. As his second cause of action, A alleges that Y likewise purchased from him on various occasions ordinary rice worth 180k but refused to pay the said amount despite repeated demands. The total amount of A’s demand against X and Y is 330k. Both X and Y now separately move to dismiss the complaint on the ground that the RTC has no jurisdiction over the case. How would you resolve the two motions?

Yes, the contentions of Bell Corp. are tenable. Under the Rules, every action must be prosecuted or defended in the name of the real party in interest. In the case of Smith-Bell v. CA, the Court ruled that Smith-Bell being a mere agent and representative, it is not the real party in interest. As can be gleaned from the facts, Bell Corp. was not even party to the contract of insurance and was merely the claim agent. Bell Co. is improperly impleaded in the action and should be dropped from the case.

I will grant the motions to dismiss. The Rules provide that a party joining the causes of action must comply with the rules on joinder of parties which require for permissive joinder of parties, the right to relief must arise out of the same transaction or series of transactions and there must be a question of law or fact common to all such defendants. In the case at bar, the joinder may not be permitted because the cause of action arose from two different transaction and involves questions of facts that is not common to X and Y. Since X and Y may not be joined as parties, the case must proceed separately and the totality rule may not be applied. Thus, the individual amount of demand and not the aggregate amount would determine jurisdiction. The claim against X and Y both not exceeding 300k, the case is not within the jurisdiction of the RTC but the MTC. Rule 3, Sec. 5

A, owner of an improved city lot, leased the same to B. While B is in possession, he was dispossessed by C. B, therefore, filed an action against C to recover possession. C contested upon the ground that B, not being the owner of the land, is not the real party in interest. Is C's contention correct? If the action filed is for forcible entry wherein the issue is only possession de facto, B, as the lessee, has a right of action against C to recover the same. B is a party in interest in the sense that he has a present substantial interest in the land, the possession of which he had been deprived. A complaint entitled “A as attorney-in-fact for X, plaintiff, versus B, defendant” was filed to recover a car in B’s possession. A’s power of attorney expressly authorized A to sue for the recovery of the car. B files a motion to dismiss the complaint for lack of capacity to sue. Rule on the motion.

P, a Manila resident, filed a collection action against C and D in RTC Manila, alleging a total claim of P230,000 (P180.,000 for principal and P50,000 for attorney's fees) against C based on a promissory note and a claim of P100,000 against D based on the unpaid purchase price of goods delivered. Both C and D moved to dismiss for lack of jurisdiction. Rule on both motions to dismiss.

The motion to dismiss on the ground of lack of capacity to sue is an incorrect ground to invoke; hence it should denied. The correct ground would be is that the claim states no cause of action. The real party in interest is the principal, the owner of the property. A is only an attorney-in-fact. An attorney-in-fact cannot use in his own name because he is not the real party in interest. There is no cause of action in favor of the agent as the cause of action is with the principal. 2012 Inigo (1) 325

The motions should be granted. While the totality rule allows for the aggregate amount claimed to be the test of jurisdiction, the two causes of action however cannot be joined. The Rules state that the joinder of causes of action must comply with the rules on joinder of parties. For there to be a joinder of parties,

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Civil Procedure | 12 of 48   the right to relief must arise out of the same transaction or series of transaction and there must be a question of law or fact common the persons being joined. Given that both requisites are absent, the actions cannot be joined and must be proceeded with separately. The actions must be instituted in the MTC, not the RTC, which has jurisdiction over actions or claims not exceeding 300k. D purchased a car from P, a car dealer, on installments and secured the purchase price balance (covered by a promissory note) with a chattel mortgage on the car. While the purchase price was not yet fully paid and the mortgage on the car still existing, D sold the car to E. With D having defaulted on the payments, P, seeking to foreclose the chattel mortgage, sued out a writ of replevin against D and E, but since D could no longer be served with summons, P moved to drop D as defendant. Rule on P's motion to drop D.

of the petition, Ara killed her playmate, Alma. Alma’s parents sued Spouses Lucy and Richard and Spouses Morato and Armina for damages. (a) Are Lucy and Richard indispensable parties? (b) Are Morato and Armina indispensable parties? (a) No, Lucy and Richard are not indispensable parties. The law provides that a minor may sue or be sued only with the assistance of his father, mother or guardian, or if he has none, a guardian ad litem. In the case at bar, the spouses have not yet been judicially declared the parents or guardians of Ara. Hence, they are not indispensable parties. (b) Yes, Morato and Armina are indispensable parties. As the Rules require that a minor may only be sued with the assistance of his father, mother, guardian, or if he has none, guardian ad litem, the parents of the minor are then indispensable parties to the action. Given that there was no judicial approval of the petition for adoption yet, Ara remains under the care and custody of her parents, who are, in contemplation of law, indispensable parties which must be included in the case.

The motion to drop D as defendant cannot be granted without dismissing the complaint because D is an indispensable party. The replevin suit is anchored on P’s alleged right to possess the car and which right in turn is founded on the alleged default of D. If the case against D is dismissed, there would be no remaining cause of action against E. P’s right to possess the car is conditioned on D’s actual default and this default cannot be established in D’s absence. Servicewide Specialists v. CA

What is the effective recourse of the defendant where the plaintiff did not implead an indispensable party? Defendant should move for an order directing the plaintiff to amend its complaint by impleading the indispensable party. Upon plaintiff’s failure or refusal to obey this order, the action should be dismissed. Rule 17, Sec. 3; National Dev. Corp v. CA

P sued A, B, C and D to recover from each of them different pieces of jewelry which were allegedly delivered to each of them as a commission agent of the plaintiff. The jewelries were delivered on different dates. If you were counsel for all the defendants, what would be your proper recourse?

Substitution of parties

I would ask that all but one defendant be dropped from the complaint because the defendants are misjoined. The plaintiff's claim against each of the defendants did not arise from the same transaction or series of transactions and there is no question of fact or law common to each of them. Each claim therefore is a separate cause of action. Gacula v Martinez, 88 Phil 142

Plaintiff filed a petition for mandamus to compel the then municipal mayor to issue to him the municipal license and permit to resume operations of his cockpit. Pending the action, the mayor was dismissed from office. After trial, the court issued the writ of mandamus and adjudged defendant mayor liable for damages. In due course, the sheriff levied execution of the judgment for damages on defendant mayor's properties. Is the levy valid?

Indispensable/Necessary Parties

The levy is void because the judgment is void and without any legal effect. The judgment is void because there was no substitution, pursuant to the Rules of the defendant mayor and the filing of a

Spouses Lucy and Richard filed a petition for the adoption of Ara, the minor child of Spouses Morato and Armina. After the filing Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 13 of 48   supplemental pleading showing that the defendant mayor’s successor had adopted or continued the defendant mayor’s policy to deny the cockpit license. Galvez v. CA

A pleading is verified by an affidavit that the affiant has: (a) read the pleading; and (b) that the allegations therein are true and correct a. of his personal knowledge or b. based on authentic records.

P filed an action against D for unlawful detainer with the MTC on the ground of non-payment of rent. After D filed his answer, and while the case was still pending, D died. Thereafter, D’s heirs continued, without any formal substitution, with the case and presented their position paper for the defendant. After due hearing, the MTC rendered judgment, ordering D’s heirs to vacate the premises. After this judgment became final and executory, D’s heirs filed an action in the RTC to annul the judgment on the ground that it was rendered without jurisdiction over D’s heirs, there having been no formal substitution of parties. Is the petition to annul the MTC decision tenable?

A pleading required to be verified which contains: (a) a verification based on “information and belief” or upon knowledge, information and belief; or (b) lacks a proper verification shall be treated as an unsigned pleading. Rule 7, Sec. 4 State the rule on forum shopping. The certification against forum shopping is a sworn statement certifying to the following: 1) That the party has not commenced or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending; 2) That if there is such other pending action or claim, a complete statement of the present status thereof; and 3) That if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within 5 days to the court where his complaint or initiatory pleading has been filed.

No. Jurisdiction over the person was acquired by the voluntary appearance of D’s heirs in the action. The lack of a formal substitution does not invalidate the judgment where the heirs themselves appeared before the trial court, participated in the proceedings therein, and presented evidence in defense of the deceased defendant. Vda de Salazar v. CA

4 3 1

Pleadings and Motions Objective/General

Failure to comply with the requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing.

What does the signature of counsel in a pleading constitute? The signature of counsel constitutes a certificate by him: (a) That he has read the pleading; (b) That to the best of his knowledge, information and belief, there is good ground to support it; and (c) That it is not interposed for delay. Rule 7, Sec. 3

The submission of a false certification or non-compliance with any of the undertakings shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as cause for administrative sanctions. Rule 7, Sec. 5

State the rule on verification of a pleading. Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by an affidavit. Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 14 of 48   petitioner was the fact that the year for which the contract should have been made had passed without the resolution of the case. The supervening event was cited not to reinforce or aid the original demand, which was for the execution of the contract, but because of that his demand could no longer be enforced, thus justifying petitioner in changing the relief sought to one for recovery of damages. The supplemental complaint filed by petitioner should simply be treated as embodying amendments to the original complaint or petitioner may be required to file an amended complaint.

PleadIngs Sufficiency of complaint

The complaint simply alleges that D is legally liable to P for damages in a named amount. D moves to dismiss this complaint for failure to state a cause of action. Resolve the motion to dismiss.

Superclean Services Inc. v. CA; 2012 Iñigo (1) 241

The motion to dismiss is tenable. The Rules provide that a complaint or pleading asserting a claim may be dismissed on the ground that it states no cause of action. The mere existence of a cause of action is not sufficient for a complaint to prosper. Even if the plaintiff has a cause of action against the defendant, the complaint may be dismissed if the complaint of pleading asserting the claim “states no cause of action”. This means that the cause of action must be unmistakably be stated or alleged in the complaint or that all the elements of the cause of action required by substantive law must clearly appear from the mere reading of the complaint. Riano (1) 240.

P sues D for P300,000.00 in RTC-Manila. Before D could answer, P amends his complaint to allege an alternative cause of action for specific performance. D moves to dismiss the complaint. Rule. P can amend the complaint once as a matter of right at any time before answer. The fact that the original complaint did not plead a cause of action within the RTC's jurisdiction is of no moment. While the amendment has the effect of curing this defect, this is okay because no leave of court is sought so that there is no conceptual contradiction as no affirmative action is sought from the court. But while an action for specific performance is within the RTC's jurisdiction since it is not capable of pecuniary estimation, the alternative cause of action for P300,000.00 puts such an estimate and brings the case within the MTC's jurisdiction because of the amount involved. Cruz v. Tan, 87 Phil. 627 Action by P against D in the RTC for a sum of money wherein D impleaded X as a thirdparty defendant on the claim that X is liable to plaintiff by way of subrogation to D's liability. Judgment was rendered ordering D to pay P and X to indemnify D for this payment. X timely appealed the judgment to the CA, but D did not appeal and so P sued out a writ of execution against him after the lapse of the 15-day period for D to appeal. Is the writ of execution valid?

Complaints 'In May 1996 P sued D for mandamus alleging that he was the lowest or best bidder forI janitorial services for 1996 but that D unjustifiably refused to award the contract to him and prayed that the judgment be rendered compelling D to award him the contract. The year 1996 lapsed, P moving for the admission of a supplemental complaint alleging that he should instead be awarded damages for unrealized profits. Should P’s motion to admit supplemental complaint be admitted?

Yes. The third-party complaint is independent of and distinct from the complaint, but is allowed in the original and principal case to avoid multiplicity of suits. An appeal by any party from such judgment does not inure to the benefit of the other party who has not appealed nor can it be deemed to be an appeal of such other party from the judgment against him. Firestone v. Tempongko

No. The petitioner’s remedy was not to supplement, but rather to amend its complaint. The transaction, occurrence or event happening since the filing of the pleading, which is sought to be supplemented, must be pleaded in aid of a party's right of defense as the case maybe. In the case at bar, the supervening event is not invoked for that purpose but to justify the new relief sought. What was alleged as a supervening event causing damage to Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 15 of 48   The Rules provide that a compulsory counterclaim is one which is cognizable by the regular courts of justice and that the counterclaim must be within the counterclaim must be within the jurisdiction of the court as to the amount and the nature thereof. In ejectment cases, like forcible entry and unlawful detainer, MTC has the exclusive original jurisdiction as provided in the Rules of Court. Thus, RTC cannot entertain the defendant lessor's counterclaim for the ejectment of plaintiff lessee on the ground of the expiry of the stipulated term in the lease contract for it has no jurisdiction over the said issue. Rule 6, Sec.7

Counterclaim, cross-claim, complaint-intervention, etc.

In an action concerning the fire policy against an insurance company which insured it, the defendant insurer filed a third party complaint against a re-insurer which set up in his answer the defense alleged by the defendant insurer that the loss was caused by the willful act of connivance of the plaintiff insured. May the third-party defendant re-insurer counterclaim against the plaintiff? Yes, provided that the counterclaim be in respect to the plaintiff’s claim against the third-party plaintiff. Rule 6, Sec. 13

In an unlawful detainer suit by P against D, the MTC Malolos rendered judgment ordering D to vacate the premises and to surrender their possession to P. Thereafter, a writ of execution of the judgment and a writ of demolition , were issued. During the grace period allowed D under the writ of demolition, D filed a separate action in RTC-Bulacan against P and the provincial sheriff for specific performance on the ground that D is entitled to receive the value of the improvements on the lot subject of the ejectment case because he was a builder in good faith. The RTC Bulacan issued a TRO and then later a preliminary injunction, enjoining the enforcement of MTC Malolos' writ of execution and order of demolition. Did the RTC Malolos act correctly?

L sued C to annul a deed of sale of a lot and for L to be declared the owner thereof. Judgment went to C, and this judgment became final. Thereafter, C filed an action against L, A and B for damages for the use and occupancy of the same lot, A and B being L's transferees of the house built on the lot, this house having been transferred by L to A and B even before the filing of the annulment action. L, A and B moved to dismiss C's complaint on the ground that it is barred by the judgment in the first action. Resolve the motion to dismiss. Motion to dismiss granted. The second motion is barred by the "compulsory counterclaim rule" because the complaint for damages is necessarily connected with the transaction subject matter of the first action. Had the same been annulled in the first action then C would have no right to collect rents from the occupants of the lot and house, while if the court sustained the validity of the same (as it did) then C would have had such right. The addition of A and B as additional defendants does not detract from the res judicata effect of the judgment in the first case because these parties should have been impleaded by C on his compulsory counterclaim in the first auction. Rule 6, Section 7; 2014 Riano (1) 380 Carpena v. Manalo

No. D’s claim is in the nature of a compulsory counterclaim which he should have raised in the ejectment case. The main action having already been resolved, D cannot bring up the issue in another action. The adjudication of the issued joined by the parties in the earlier case constitutes res judicata, the theory being that what is barred by prior judgment are not only the matters actually raised and litigated upon, but also such other matters as could have been raised but were not. Furthermore, the Rules emphasize that the judgment in an ejectment case is immediately executory unless the defendant appeals. The TRO and the PI were improper. Cojuangco v. Villegas

In an action in the RTC by the lessee against the lessor to fix a period for his lease, may the RTC entertain the defendant lessor's counterclaim for the ejectment of plaintiff lessee on the ground of the expiry of the stipulated term in the lease contract?

P sues your client D, to recover possession of a parcel of land. D tells you that his wife acquired this parcel of land from its former owner, X. Is there a way by which D may cause X to be impleaded?

No. This is not a compulsory counterclaim because it is not within the jurisdiction of the RTC as to its nature.

Yes. D should have his wife intervene in the case and once admitted as

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Civil Procedure | 16 of 48   intervenor, the wife should move to be allowed to a file a third-party complaint against X. D himself cannot file this thirdparty complaint against X because he has no privity with X. Morada v. Caluag

connected with, the transaction or occurrence that is the subject matter of the opposing party’s claim; (2) it does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction; and (3) the court has jurisdiction to entertain the claim. Tested by these requirements, the petitioner’s counterclaim was clearly compulsory. The petitioner itself so denominated it. There is no doubt that the same evidence needed to sustain it would also refute the cause of action alleged in the private respondent’s complaint; in other words, the counterclaim would succeed only if the complaint did not. It is obvious from the very nature of the counterclaim that it could not remain pending for independent adjudication, that is, without adjudication by the court of the complaint itself on which the counterclaim was based. Int'l Container Services, Inc. v. CA

When is a cross-claim permissive? Never. A claim is permissive when it may be raised in the same or a separate action. A cross-claim however depends on the life of the main action. If the main action is dismissed, the cross-claim will have to be dismissed. A cross-claim could not be the subject of an independent adjudication once it lost the nexus upon which its life is depended. A cross-claimant cannot claim more rights than the plaintiffs themselves, on whose cause of action the cross-claim depended. The dismissal of the complaint divested the cross-claimant of whatever appealable interest they might have had before and also made the cross-claim itself no longer viable. Rule 6, Sec. 8; 2012 Inigo (1) 162, 171

Alternative answer: Motion must be granted. It is also arguable that the case is similar to one where the principal case was dismissed for lack of jurisdiction in which no claim for damages could have been presented in that case so that this independent action for damages for the illegal injunction is not abated Santos v. CA, 95 Phil. 360 [1954]

Does dismissal of a complaint on plaintiff's motion carry with it the dismissal of defendant's compulsory counterclaim? No. The Rules provide that dismissal upon motion of plaintiff shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within 15 days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Rule 17, Sec. 2

Answer May the trial court extend the period for filing an answer after this period had already expired? Yes.

In an action by P against D for prohibition, P obtained a writ of preliminary injunction against D. On certiorari to the SC, the writ of preliminary injunction was nullified on the ground that the petition was premature because P had not exhausted his administrative remedies. Taking his cue from the SC decision, D filed a motion to dismiss the complaint for failure to state a cause of action and the motion was granted. After this dismissal order became final, D filed an action against P to recover damages resulting from the issuance of the preliminary injunction in the first case. P now moves to dismiss the damage action on the ground that it is barred for not having been set up as a compulsory counterclaim in the prohibition case. Rule on P's motion to dismiss.

Section 11 of Rule 11 of the Rules of Court provides that “Upon motion and on such terms as may be just, the court may extend the time to plead provided in the Rules. The Court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these rules.” The Trial Court has the discretion not only to extend the time for filing an answer to be filed after the reglementary period. Rule 11, Section 11; 2014 Riano (1) 366, 2012 Inigo (1) 249; Sablas v. Sablas May lack of jurisdiction over the person be pleaded as an affirmative defense and a preliminary hearing had thereon?

Motion must be denied. (?) A counterclaim is compulsory where: (1) it arises out of, or is necessarily

Yes.

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Civil Procedure | 17 of 48   Rule 16, Sec. 6, provides that “ if no motion to dismiss has been filed, any of the grounds for dismissal provided for in this rule 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 motion to dismiss had been filed.” In the case at bar, the lack of jurisdiction over the person is one of the grounds for a motion to dismiss in Rule 16, Rule 1 of the ROC. Rule 16, Sec. 6; 2014 Riano (1) 361

By admitting the same, the party is precluded from raising the defense which is inconsistent with his admission. The denial not being verified, Y Corp is deemed to have admitted that the document was signed for him and with his authority. However, this does not mean that the case should be automatically subjected to a summary judgment because the defendant can still put up other defenses as long as they are not inconsistent with his admission of the Promissory Note, such as payment, illegality of consideration, fraud, mistake, compromise, etc. Hibberd v. Rhode

Is a motion to dismiss with counterclaim sanctioned by the rules? a. If yes, state your reasons. b. If no, give your reason and state what should instead file in the court to preserve his counterclaim while maintaining the ground asserted in his motion to dismiss as an issue that should be subject of a preliminary hearing?

[Bance] Even granting arguendo that judgment may be rendered due to the implied admission of Y Corp, the same should be a judgment on the pleadings and not summary judgment. The Rules provide that if the allegations are deemed admitted, there is no more triable issue between the parties and if the admissions appear in the answer of the defendant, the court may, upon motion, render a judgment on the pleadings. 2014 Riano (1) 354

No, a motion to dismiss with counterclaim is not sanctioned by the Rules of Court. The counterclaim is included in the answer although it is not intrinsically a part of the answer but is never contained in a motion to dismiss. A counterclaim is a pleading while a motion is not. The defendant should instead file an “answer with counterclaim” and plead his affirmative defenses in the answer. Even if no motion to dismiss is filed, any of the grounds for dismissal provided under the Rules may be pleaded in the answer and, the defendant may ask for a preliminary hearing on said defenses as if a motion to dismiss has been filed. 2005 Riano 563

A filed a suit against B and C for the recovery of personal property which, according to the complaint had been sold to him by the defendants’ father during the latter’s lifetime under a Deed of Sale. The substance of the document was pleaded in the complaint and a copy was attached to the complaint. B and C filed an answer which disclaimed the nature thereon and claiming that the signature of their father appeared to be a forgery. At the trial of the case, B and C by means of expert witness adduced evidence to prove that the seller’s signature in the Deed of Sale was a forgery. A objected saying that the genuineness and due execution of the Deed of Sale was deemed admitted because the answer was unverified inasmuch as the verification was made only on the express basis of best information and belief. Resolve the objection with reasons.

Specific Denials

X Corporation filed an action for collection against Y Corp. and a promissory note was attached to the complaint. In its answer, Y Corp. specifically denied the allegations of the complaint and alleged that the person who contracted and obtained the loan from X Corp was not authorized by Y Corp. Y Corp’s answer, however, was not verified. The RTC, upon motion, rendered summary judgment in favor of X Corp. On appeal, the CA affirmed the decision. The case is now with the SC. Decide.

The objection of A is untenable. The Rules provide that the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for inspection of the original instrument is refused. Thus, B and C having been sued as a substitute party under a document signed by their deceased father may make a specific denial without the same being verified for they were not a party to the document. 2014 Riano (1) 339

The summary judgment must be annulled. The Rules provide that where an action or defense founded upon a written instrument is not specifically denied under oath, the genuineness and due execution of such document shall be deemed admitted. Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 18 of 48   In his answer to the complaint, X alleged that he does not owe Y any sum of money, that he executed the PN attached to the complaint to enable Y to show to her husband and explain about the disappearance of the amount from the conjugal funds as Y lost the same in the casino. The answer was not verified. At the trial, the lawyer of Y objected to the testimony of X as to his accommodation story because, as the answer was not verified, he was deemed to have admitted the genuineness and due execution of the PN. Rule on the objections.

The Rules provide that when an action or defense is founded upon an actionable document, the genuineness and due execution shall be deemed admitted unless there is a specific denial oath. By failing to make a specific denial under oath, D Company has admitted the genuineness and due execution of the document such that it is precluded from asserting that the person who signed the note had no authority to do so. 2014 Riano (1) 338-339 P company , a foreign insurance company, sued in the RTC-Manila and alleged that it is duly authorized to do business in the Philippines, but defendant in his answer denied this allegation as to P's capacity to sue for lack of knowledge or information. What is the effect of defendant's denial? It is deemed an admission. The denial is ineffective for being a general denial and therefore is inadequate to attack p's capacity to sue. The Rules provide that a party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge. Rule 8, Sec. 4

Suggested Answer: The objection of Y’s lawyer is correct. The Rules provide that defenses on an actionable document must specifically deny under oath the genuineness and due execution of the instrument, failure of which would be tantamount to the implied admission of the genuineness of such document. Since the specific denial of X was not verified, then he is precluded from denying the genuineness and due execution of the PN. Rule 8, Sec. 8 Alternative Answer [Bance]: The lawyer of Y is incorrect. Indeed, the Rules provide that failure to make a specific denial under oath in contesting actionable documents is tantamount to an implied admission of the genuineness and due execution of the instrument. However, there are certain defenses which may still be interposed because they are not inconsistent with the admission of genuineness and due execution of the instrument and are therefore, not barred. These defenses, to name a few, are: payment or non-payment, want of consideration, illegality of consideration, etc. X alleges being an accommodation party, or one who has issued an instrument without receiving value therefrom for the purpose of lending his name to Y. There is, between X and Y want of consideration and thus, X is not precluded from raising this defense. 2014 Riano (1) 340-341

Certificate of Non-Forum Shopping

Suppose that a complaint is dismissed for failure to attach thereto a sworn certification against forum-shopping, can the omission be cured by an amendment of the complaint? No. The Rules provide that, failure to comply with the requirement of Certification against non-forum shopping shall not be curable by mere amendment of the complaint or other initiatory pleading but shall cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. Rule 7, section 5 (2), Inigo (1) 192 May a complaint which had been dismissed for failure to attach a certification against forum shopping be re-filed?

An action on a promissory note by P against D Company, copy of the note being attached to the complaint as an annex. D Company answered by denying liability and alleging that the person who signed the note had no authority to do so, but this answer was not verified. May D Company prove its defense?

Yes, unless the dismissal order states that it is with prejudice. The Rules provide that,” Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the

No. Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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2nd Semester, 2014-2015

Civil Procedure | 19 of 48   case without prejudice, unless otherwise provided.” Rule 7, Sec 5, (2nd par)

Rule 10, Sec 3; Anastacio v Anastacio P sued D in the RTC to recover the sum of P20,000.00 plus interest. D answered alleging payment by set-off. After pre-trial but before the case could actually be tried, D filed a motion to dismiss on the ground that the RTC has no jurisdiction over the case. Instead of filing an opposition to D's motion to dismiss, P filed a motion for leave to amend his complaint by including an allegation of a cause of action for P5,000.00 attorney's fees. If you were the judge, how would you resolve D's motion to dismiss and P's motion for admission of his amended complaint?

What is plaintiff's best procedural recourse against an answer which pleads no more than negative pregnants? Move for judgment on the pleadings. A denial in the form of a negative pregnant is an ambiguous pleading, since it cannot be ascertained whether it is the fact or only the qualification that is intended to be denied. A negative pregnant does not qualify as a specific denial. It is conceded to be actually an admission. It refers to a denial which implies its affirmative opposite by seeming to deny only a qualification or an incidental aspect of the allegation but not the main allegation itself. Riano (1) 358-359.

Grant D's motion to dismiss. A motion to dismiss on the ground of lack of jurisdiction over the subject matter may be filed at any stage of the action. Rule 9, Sec. 2 of the Rules of Court provides that “A compulsory counterclaim, or a cross-claim not set up shall be barred. Deny P's motion to admit amended complaint.

Amendments

D already having answered, P must have to ask for leave of court to amend his complaint as provided in the Rules of Court, Rule 10, Sec. 2 , provides that “ A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time written 10 days after it is served”, and Section 3 provides that,” except as provided…substantial amendments may be made only by a leave of court…”

Husband filed a complaint in the RTC against his wife praying for custody of their children and that their support be determined, the complaint alleging that defendant-wife attempted to kill plaintiffhusband by kicking him twice on his genital. After answer, plaintiff was allowed by the trial court to amend his complaint by alleging that defendant attempted to kill him by placing poison on his food and praying for legal separation. Was the amendment properly allowed?

While P's proposed amendment may not alter his cause of action, still the amendment is not allowable because it would have the effect of conferring jurisdiction upon the court. Since the amount alleged in the original complaint does not exceed P20,000.00 excluding interest, the RTC did not acquire jurisdiction over the case, and so the RTC has neither the power nor the jurisdiction to act on the motion for the admission of the amended complaint, much less to allow such amendment, since the court must first acquire jurisdiction over the case in order to act thereon. Rule 9, Sec. 2; Rule10, Sections 2 and 3 Rosario v. Carangdang

Yes. There was no evidence that the amendment was made with intent to delay the action or that the cause of action was substantially altered. While the reliefs sought are different, as the original complaint prays for custody and support while the amended complaint prays for legal separation, what determines the nature and character of an action is not the prayer but the essential basic allegations of fact as set forth in the complaint. There is no substantial alteration of the cause of action because defendant is not required to answer for a liability or legal obligation wholly different from that which was stated in the original complaint. Even granting that the causes of action under the original and amended complains are different, still the amended complaint should be admitted because such causes of action, as legal separation, custody and support arose from the marital relationship between the parties, and a party is allowed to state in one pleading as many causes of action as may arise out of the same relation between the parties.

Comment [Bance]: Caution. This question was probably asked when the jurisdictional amount of the RTC was still at more than 200k. I think there was just a typo error and that should have originally been 200k plus interest. J Make sure to understand the concept and the reason, don’t rely on the amounts for these have already changed.

Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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2nd Semester, 2014-2015

Civil Procedure | 20 of 48   exception. Therefore, whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal service or filing is mandatory. Only when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by a written explanation as to why personal service was not practicable. The absence of such explanation is a violation of the rule and may be cause to consider the paper as not filed. Solar Team Entertainment, Inc. vs. Ricafort, Rule 13, Section 11

Prayer May the trial court grant a party relief in excess of or different in kind from that prayed for in his pleading? Yes. The Rules provide that a pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. Hence, the court can grant the relief warranted by allegations and the proof even if it is not specifically sought by the injured party for the inclusion of a general prayer may justify the grant of the same, if the facts alleged in the complaint and the evidence introduced so warrant. 2014 Riano (1) 307; Lorbes v. CA

Omnibus Motion A filed an action for collection against B. Upon receipt of the summons, B filed a motion to dismiss on the ground of lack of jurisdiction over the person because summon was served on his former wife and on the ground that he had already paid the debt to A. A filed an opposition saying that B could not anymore invoke the first ground since he had raised the issue of payment in the second ground. Rule on the opposition of A.

Can the court award the plaintiff damages prayed for in his complaint to be in an "amount as will be proved at the trial"? No. It is required for purposes of computation of the docketing fees payable, that the complaint specifies the amount of damages being prayed for not only in its body but also in its prayer. The court does not acquire jurisdiction over an unspecified claim for damages, except in respect to damages arising after the filing of the complaint or similar pleading the amount of which damages need not be specified but to which the additional filing fee shall be a lien on the judgment. Original Dev't. & Const. Corp. v CA 2014 Riano (1) 349

(a) Rule on the motion of A. (b) Suppose in the question above, the court, after hearing, dismissed the action on the ground that the debt had already been paid. Two years after, A found that in various accounts B was still indebted to A. Can the latter file an action on the basis of the claim. Explain. (a) The opposition of A is not tenable. Under the Omnibus Motion Rule, when you file a motion to dismiss, you have to invoke all the grounds then available and all not so included shall be deemed waived. When you file a motion to dismiss citing lack of jurisdiction over your person together with other grounds, there is no waiver on the defect of lack of jurisdiction. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed as voluntary appearance. La Naval Drug Corp vs CA 236 SCRA 78, Inigo(1)p320

Explanation as to mode of service In an action by P against D in the RTC for recovery of possession and damages, D filed an answer with counterclaims but furnished counsel for P a copy of this answer by registered mail and his answer did not contain any written explanation as to why service was not made personally upon P. So, P filed a motion to expunge the answer and to declare D in default on the ground that D did not observe the mandate requiring personal service or an explanation of its absence. Rule on D's motion.

(b) Yes, the latter can still file the action. Debts from different obligations gives rise to a different cause of action. The cause of action in this case is different from the cause of the previous case. Since they are two different causes of actions the principle of res judicata will not apply. Hence the action can still be filed. Inigo(1) p82

Motion granted. Under Sec. 11, Rule 13 of the 1997 Rules of Civil Procedure, personal service and filing is the general rule, and resort to other modes of service and filing, the Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 21 of 48   becoming members of it when they cannot also do it anymore. The association acquired real property in CDO. It conditionally sold the land to a pretty lass. Upon the happening of the condition, the lady demanded delivery of the possession of the land. The association refused. So the lady filed an action to recover possession of the land against AFS. Summon was served on General Mando (ret), a member of AFS, and a next door neighbor of the lady. No answer was filed. So the court upon motion declared AFS in default. Subsequently the President of AFS, Mr. Ugod-Ugod Na, filed a motion to lift the order of default on the ground that there was improper service of summons because as President of AFS the summons should be served on him and not on Gen. Mando. Resolve the Motion.

Default Where the defendant has been declared in default, does the plaintiff still have to present evidence to support his complaint in order for him to obtain judgment thereon? Generally no, unless the court in its discretion requires claimant to submit evidence. The Rules provide that when the defending party is declared in default, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. Rule 9, Sec. 3

The motion is untenable. The Rules provide that that an association or entity without juridical personality may be served with summons and sued in the name by which they are generally or commonly known and service may be effected upon all the defendants by serving upon any one of them or the person in charge of the office or place of business maintained in such name. In the case at bar, AFS is an association without juridical personality and hence, service to any of its members, i.e. Gen. Mando, is valid service. Rule 14, Sec. 8

Due to personal injuries suffered in a vehicular collision, P sued D for P300,000.00 in actual damages, P1 Million in moral damages, P1 Million in exemplary damages and P500,000.00 for attorney's fees. Assuming that D is declared in default, how much can the court properly award P? The Rules provide that a judgment rendered in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. Given that the defending party was declared in default, then the court, in its discretion may award all the reliefs prayed for by the plaintiff provided that the same is properly supported by evidence. The award however may not exceed the amount prayed for by plaintiff even if the same is supported by evidence, as the Rules expressly provide this to be so. Rule 9, Sec. 3; 2014 Riano (1) 378

5

Foreign Entity

X company, an American firm, engaged in the manufacture of athletic uniforms, imported soccer jerseys from P company, a Philippine textile mill, but refused to pay for them. Hence, P company filed in the RTC an action against X company for the collection of the price of the soccer jerseys, the complaint alleging that X company was doing business in the Philippines and that summons be served upon its agent in the Philippines. X company entered its special appearance and challenged the validity of the service of summons on the ground that it was not doing business in the Philippines and that the transaction sued upon was an isolated transaction. Was the summons validly served?

Summons No juridical personality

Association of Future Saints (AFS), a group of elderly and impotent men in CDO, is active promoting sexual morality among men whose sexual prowess has totally disappeared. It is a very well-known association and young men look forward to

Yes,

summons

was

validly

The Rules provide that that when the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its

Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

the

served.

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2nd Semester, 2014-2015

Civil Procedure | 22 of 48   resident agent designated in accordance with law for that purpose, or if there be no such agent, on the government official designated by law to that effect, or on any of its members or agents within the Philippines. In the case at bar, X Company is a foreign private juridical entity which has transacted business as evidenced by the purchase of the soccer jerseys. Neither can X Company argue that it was merely a single or isolated transaction as the court provides that the foreign company must have “transacted” in the Philippines which allows for even a single transaction to be a ground. Furthermore, it is clear that the purchase of the soccer jersey was in the ordinary course of its business considering that it was engaged in the manufacture of athletic uniforms. Litton Mills v. CA, 2012 Inigo (1) 304-305

Service to a non-resident defendant who is not found in the Philippines may be, by leave of court, effected by: (1) by personal service; (2) by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant; or (3) In any other manner the court may deem sufficient.

X Company, a corporation incorporated under the laws of Michigan, USA, entered into a "representative agreement" with Y Company, a domestic corporation, for the sale in the Philippines of X Company's electronics products in consideration for a stipulated commission. After the agreement was in force for a year, X Company terminated it and then brought an action in the RTC-Makati to enjoin Y Company from dealing in similar products as those of X's. Y Company moved to dismiss the action on the ground that X Company, being a foreign corporation not licensed to do business in the Philippines, has no capacity to sue. Rule on the motion to dismiss.

Only personally, when he is in the Philippines, even temporarily only. Extraterritorial service is not permissible since the action is in personam and D is not a Philippine Resident Rule 14, Sec. 15, 16; Riano (1) 450, 454-455,459-460

Action in RTC-Manila against D to collect a sum of money. D is a Filipino now permanently residing in the United States but comes to the Philippines during the Christmas holidays. How may the summons in this action be served on him?

D borrowed US $10,000 from the Guam Branch of a Philippine bank and executed therefore in Agana, Guam a promissory note. Upon D's default on the note, may the Philippine bank sue him in the Philippines to collect on this note? Yes. In the case of Philippine Commercial Bank, the Supreme Court held that in case the defendant does not reside in the Philippines, the remedy of the plaintiff in order to acquire jurisdiction is to try and convert the case into an action in rem or quasi in rem by attaching the property of the defendant. The service of summons in this case is no longer for the purpose of acquiring jurisdiction but for compliance with the requirements of due process. Plaintiff should file a suit with the provisional remedy of attachment since the party does not reside and is not found in the Philippines. After availing of the extra territorial service of summons, the property of the defendant would now be the object of judicial power. 2014 Riano (1) 464-465

X Company may well be said to be doing business in the PH because of the extensiveness and regularitiy of the sale of its products in this country where it made Y Company its mere agent in pursuit of its business. However, Y Company is estopped to challenge the personality of X after it has acknowledged the same by entering into a contract with it. This result is dictated by fair play. A person contracting with a foreign corporation cannot take advantage of the latter’s non compliance with the licensing requirement where such person has received the benefits of the contract. Communication Materials and Design v. CA Non-resident defendant/ Extraterritorial service

In an action for partition of real properties against a non-resident defendant who is not found in the Philippines, how may this defendant be served summons?

Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

 

6 7 6

Proceedings after service of summons and Dismissal of Actions

Pacamalan|Piquero| Ratilla, 2nd Semester, 2014-2015

Civil Procedure | 23 of 48   Rule 16. The ground is the failure of the complaint to state a cause of action which is obviously not the same as the plaintiff not having a cause of action. The lack of cause of action becomes evident during the course of the trial but whether the complaint states a cause of action is only limited to what the complaints says.

Objective/General

Distinguish "law of the case" from res judicata The “law of the case” does not have the finality of res judicata, Law of the case applies only to the same case, whereas res judicata forecloses parties or privies in one case by what has been done in another case. In law of the case, the rule made by an appellate court cannot be departed from in subsequent proceedings in the same case. Furthermore, law of the case relates entirely to questions of law, while res judicata is applicable to the conclusive determination of issues of fact. Although res judicata may include questions of law, it is generally concerned with the effect of adjudication in a wholly independent proceeding. Riano, (1) 603.

Municipality of Binan vs Garcia 2012 Inigo(1) p338

Litis Pendentia/ Res Judicata

A lessee filed an action in the RTC against his lessor praying for a decree fixing the period of his lease. Before pleading to the complaint, the lessor filed his own complaint for unlawful detainer in the MTC seeking the lessee's ejectment from the premises on the ground of expiry of the term of the lease contract. The lessee moved to dismiss the unlawful detainer complaint on the ground of litis pendentia. Rule on the motion.

Enumerate all the ways by which a civil case in our courts may be terminated, with binding and res judicata effect, without a full-dress evidentiary trial where the parties are enabled to present their respective testimonial and other evidence. 1. 2. 3. 4. 5. 6. 7. 8. 9.

Motion to dismiss denied. Both cases involve the common issue of the lessee's right to possession of the premises, and this issue is better resolved in an unlawful detainer action. What, then, ought to be dismissed is the RTC action and not the unlawful detainer case. The fact that the unlawful detainer action was filed later that the RTC action is of no moment, because section 1(e) of Rule 16 requires only another pending action not a prior pending action. (Teodoro vs. Mirasol, 99 Phil. 150 [1956]).

These are: judgment on the pleadings summary judgment dismissal on motion of the defendant voluntary dismissal by the plaintiff dismissal for plaintiff's failure to prosecute judgment by default judgment on confession or on compromise judgment on a complete stipulation of facts 2-dismissal rule

A is the owner of a parcel of land pending registration in the RTC of Rizal. He permitted B, a family friend, to construct a small house on the land and to live therein for a period of two years only. The twoyear period expired on 1 may 1994, but B failed and refused to vacate the land. Hence, on 15 June 1994, A filed an action against in the RTC of Rizal for the recovery of possession of the land. B filed a motion to dismiss the case on the ground that there is a pending land registration case involving the said property. Is the motion well founded?

May a court dismiss an action for failure of plaintiff’s lawyer to appear at the trial despite due notice? No. The Rules do not authorize a dismissal on the ground of absence of counsel. What the court should do is to grant the plaintiff and hour or two to engage the services of a new lawyer. Dayo v. Dayo; Rule 17, Sec. 3 Distinguish between failure of the complainant to state cause of action from lack of cause of action

No. Litis pendentia does not exist for there is no identity of causes of action or rights asserted and reliefs prayed for so that the judgment which may be rendered

The lack of cause of action is not a ground for the dismissal of an action under Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 24 of 48   in one case, would not necessarily result in res judicata in the other. An action for recovery of possession is distinct and different from an action for recovery of title or ownership. Moreover, an RTC, acting as a land registration court, has a limited and special jurisdiction confined to the determination of the legality and propriety of the issue of title. It has no power to entertain issues of rightful possession and claims for damages emanating from ownership. Medina and Bernal v. Valdellon

Thereafter, P demanded an increase in D's rentals, and upon D's failure to pay the increased rentals, P promptly filed a complaint against D in the RTC praying for his eviction and for damages; the RTC dismissed this complaint for lack of jurisdiction. With the RTC dismissal, P filed an action for unlawful detainer against D in the MTYC based on the same allegations as his complaint in the RTC. D now moves to dismiss this second unlawful detainer complaint on the ground that it is barred by prior judgment. Rule on the motion to dismiss.

P filed a complaint in the RTC-Isabela against D for the recovery of an alleged overpayment for a rice thresher. Later, but before the summons in the Isabela case could be served on D, D filed in RTC-Manila an action against P for collection of the alleged balance on the purchase price of the same rice thresher. P moved to dismiss the Manila case on the ground of litis pendentia. Rule on the motion.

Motion to dismiss should be denied. The second ejectment action is not barred by the decision in the first ejectment case; no identity of causes of action because the ground for ejectment in the second action is for non-payment of different rentals. Nor is the RTC judgment a bar because it is not on the merits. Rule 16,Section 1

Motion to dismiss granted. All the requisites for litis pendentia are present. The Isabela action was already a pending action at the time of the filing of the Manila action even though the summons had not yet been served. A civil action is commenced by the mere filing of the complaint in court. Rule 16,Section 1; (e );RIano (1) 482 Salacup vs. Maddela, Jr.

H, husband, filed an action against his wife, W, to have their marriage declared void due to the latter's alleged psychological incapacity to contract marriage. After trial, the action was dismissed. Then, H filed another action against W to have the same marriage declared void for alleged absence of a marriage license. Can the second action prosper over timely opposition? No. H was barred by prior judgment in raising the alleged absence of a marriage license he could have risen in filing the first action. Rule 39, Sec. 47 (b) of the Rules of Court provides that,” In other cases, the judgment or final order is, with respect to the mater directly adjudged or as to any other matter that could have been raised in relation thereto ,conclusive between the parties and their successor in interest by tittle subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity” Rule 39,Sec 47 (b)

Levy of execution of money judgment in Civil Case No. 12345 was made on property of D , this property was sold to plaintiff P. Title was consolidated in P after the lapse of the redemption period. Citing what is alleged to be equitable grounds, however, D filed a motion in the said Civil Case No. 12345 that he be allowed to redeem the property or his mother to purchase it; this motion was denied. D then filed another action in the RTC, Civil Case No. 67890, to recover the same property on the ground of promissory estoppel. If you were the counsel of P, what step would you take in Civil Case No. 67890? Move to dismiss Civil Case No. 67890 on the ground of res judicata. Both cases involve the same cause of action, the parties are the same, and the addition of D's mother in Civil Case No. 12345 does not militate against the identity of parties between the two cases because the mother represents the same interest as D. Santos v. CA; Rule 16, Section 1(f)

Relying on a document of sale, P sued D in the RTC to recover ownership of a parcel of land. For failure of P to amend his complaint conformably to an order of the court, the complaint was dismissed. A month thereafter, P re-filed the same complaint in the RTC, and this complaint is now met with a motion to dismiss by D on the ground of res judicata. Resolve the motion to dismiss.

P sued D in the MTC for ejectment on the ground of non-payment of rentals. After trial on the merits, judgment was rendered dismissing the complaint upon the finding that D has been paying his rentals on time.

Motion to dismiss granted. The dismissal of the first case was with prejudice pursuant to Section 3, Rule

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Civil Procedure | 25 of 48   17. Sec 3 Rule 17 provides that “If for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court’s own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court.” Therefore, all requisites for res judicata are present. 2014 Riano (1) 492; Enriquez v. Boyles

of land was acquired by their parents during the marriage, hence their father had no right to include in the sale the children’s interest in the property as heirs of their deceased mother, such children not having consented to the sale. C moved to dismiss the children’s complaint on the ground of bar by prior judgment. Resolve on the Motion. Explain. The motion to dismiss must be denied as the elements of res judicata are not present. In the case of Topacio v. Banco Filipino Savings and Mortgage Bank, res judicata applies in the concept of bar by prior judgment if the following requisites concur: that the former judgment or order must be final; that the judgment or order must be on the merits; the decision must have been rendered by a court having jurisdiction over the subject matter and the parties; and that there be, between the first and second action, identity of parties, subject matter and causes of action. In the situation, the subject matter of the 2 cases were not identical. The first case was based on a right a party can invoke so that the real intent of the parties may be embodied in the instrument. The second case however was based on the right of the heirs to question the validity of the sale of the property involved in the first case. Topacio v. Banco Filipino Savings and Mortgage Bank 635 SCRA 50

P sued D to recover possession and ownership of a parcel of land, but this action was dismissed (after the case was scheduled several times for trial) for P's failure to prosecute. After the dismissal order had become final, P brought another action against D for quieting of title over the same parcel of land. D moved to dismiss this 2nd action on the ground of res judicata. Rule on the motion. Motion to dismiss granted. Sec 3 Rule 17 provides that “If for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court’s own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court.” The judgment in the first case having become final and there being the requisite identity of parties, subject matter and causes of action, res judicata bars second action. Panado v Cortez, 94; Riano (1) 492.

Capacity How does the defendant raise the issue as to his legal capacity to be sued? By moving to dismiss on the ground that the court has no jurisdiction over his person as provided in Rule 16. If the motion is denied, he may raise it as an affirmative defense in the answer. The Rules provide that a party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge. Rule 16, Sec. 1; Rule 8, Sec. 4

A, the surviving husband of B, executed in favor of C a Deed entitled the “Contract of Sale a Retro” over a certain parcel of land registered under the Torrens System in which the owner is described as “A, married to B”. Subsequently, A sued C for the reformation of the contract, alleging that what was agreed upon was a really mortgage and not a sale a retro. A’s complaint was however dismissed for failure to prosecute, and the dismissal became final. A year later, the children of A and B sued C for the annulment of the sale a retro, alleging that the subject piece

Natasha filed a case with the RTC for a sum of money against Pierre whose charms are irresistible. At the time of trial of the case, both Natasha and Pierre did not appear, so the court dismissed the case. After 6 months, Natasha refilled the case against Pierre and after the raffle of the case was assigned to another branch of the same

Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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2nd Semester, 2014-2015

Civil Procedure | 26 of 48   court. Pierre filed a motion to dismiss on the ground of res judicata. (a) Could the judge in the first case dismiss the case for failure of the parties to appear on the day of the trial even without a motion from either party. Explain. (b) In the second case is the ground of res judicata tenable?

Effect of Dismissal Defendant Y filed a motion to dismiss plaintiff’s complaint before the RTC. (a) The court grants the motion to dismiss. Explain the remedies or procedure to be resorted to or be pursued by plaintiff to have the order of dismissal reversed and corrected finally. (b) The court denies the motion to dismiss. a. May Y appeal the denial? b. How and on what grounds may defendant Y bring the denial of his motion to dismiss to the appellate courts? Explain.

a) Yes, the judge in the first case can dismiss the case for failure of the parties to appear on the day of the trial even without a motion from either part. The Rules provide that if, for no justifiable cause, the plaintiff fails to appear on the date of the presentation ov his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court’s own motion.

(a) The plaintiff has several options: 1. Depending upon the ground for the dismissal of the action, the plaintiff may simply refile the complaint. 2. He may appeal from the order of dismissal where the ground relied upon is one which bars the refiling of the complaint, provided for in Sec 5 Rule 16. 3. Plaintiff may also avail of a petition for certiorari. Riano, (1) 484-486

b) Yes. The ground of res judicata is tenable provided that the previous court acquired jurisdiction over the subject matter of the case and the parties. Dismissal under this case shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. Rule 17, Sec 3 Inigo(1) p353-354 Action by P against D in the RTC for recovery of a parcel of land. After joinder of the issues but before actual trial, P filed a manifestation that he is no longer interested in prosecuting his complaint provided, however, the defendant foregoes with his counterclaim. D filed a countermanifestation agreeing to the dismissal of the complaint and his counter claim. Whereupon, the RTC issued an order dismissing plaintiff’s complaint and defendant’s counterclaim without costs. P’s successor-in-interest now sues to recover the same parcel, and D’s successorin-interest moves to dismiss this new complaint on the ground of res judicata. If you were the judge, would you grant the motion to dismiss?

(b) If the motion is denied: 1. No. The filing of an appeal from an order denying a motion to dismiss is not the remedy prescribed by existing rules. The order of denial, being interlocutory, is not appealable by express provision of Sec. 1 (b), Rule 41. Rule 41, Sec. 1(b) ;Riano, (1) 483 2. The only way to bring the denial of the defendant’s motion to dismiss to the appellate court is by certiorari. However, for the remedy to be available, it must be shown that the denial of the motion to dismiss must have been tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. Riano, (1) 484

No. Dismissal of the first case was without prejudice. A dismissal made by the filing of a notice of dismissal is a dismissal without prejudice, i.e., the complaint can be refilled. The dismissal having been at plaintiff's instance and not having specified that it was with prejudice, it is one "without prejudice" within the meaning of Sec. 2, Rule 17. Riano (1) 489; Vergara v. Ocumen

Jose filed a complaint against Maria to collect a loan of P50,000. Later, because of their intimate relationship in the past, Jose filed a notice of dismissal of his complaint. Subsequently, the two had a serious misunderstanding so that Jose again filed a complaint against Maria to collect another loan of P100,000. Jose and Maria reconciled, after which the former withdrew his complaint before the latter could file her answer or a motion for summary judgment.

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2nd Semester, 2014-2015

Civil Procedure | 27 of 48   Was the dismissal of the complaint with or without prejudice? Explain.

Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385 (1947, in which the U.S. Supreme Court held that statements of witnesses obtained by an attorney prior to trial were privileged and thus protected from discovery. The Court reasoned that to allow otherwise would be contrary to the public policy underlying the orderly and just prosecution and defense of claims. Hickman v. Taylor

It was with prejudice. The dismissal of the first case was without prejudice, but the dismissal of the second case is with prejudice. Under the Rules the dismissal upon notice of the plaintiff before service of the answer or a motion for summary judgment is without prejudice. The exception is when a notice of dismissal is filed by plaintiff who has once dismissed in a competent court an action based on or including the same claim. The later complaint includes the previous complaint making the exception applicable. Hence, the dismissal of the 100,000 complaint is with prejudice. Inigo(1) p 347

7 8 7 3 1

Pre–Trial Upon plaintiff’s failure to appear at the pre-trial despite notice, what is the proper recourse for the defendant who would like to pursue his compulsory counterclaim in the same proceeding? The Rules provide that the dismissal of the complaint due ot the fault of the plaintiff shall not prejudice the right of the defendant to prosecute his counterclaim in the same or separate action. The defendant should manifest his preference to have his counterclaim resolved in the same action within 15 days. Rule 17, Sec. 3; 2012 Inigo (1) 349-350

Pre-Trial and Modes of Discovery Objective/General

The complaint was dismissed for failure of the plaintiff to appear at the pre-trial despite due notice. May he re-file the complaint?

What is the effect of failure to serve written interrogatories under Rule 25? Unless thereafter allowed by the court for good cause and to prevent a failure of justice, a party not served with written interrogatories: (a) may not be compelled by the adverse party to give testimony in open court; OR (b) to give a deposition pending appeal. Rule 25, Sec. 6

Generally, no. The failure of the plaintiff to appear shall be cause for the dismissal of the action. The dismissal shall be with prejudice except when the court orders otherwise. Rule 18, Sec. 5; Riano (1) 500-501

What is the effect of failure to file and serve request for admission under Rule 26?

Modes of Discovery

Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts. Rule 26, Sec. 5

P sued D and E for reconveyance, with damages, of a parcel of land. After filing his answer, E served on P written interrogatories. Despite the lapse of 1/2 years, the written interrogatories remained unanswered. So on E’s Motion To Dismiss, the court issued an order directing P to answer the written interrogatories within 10 days from receipt of the order. This order having gone unheeded, the court issued another order dismissing the complaint against E. After the order of dismissal had become final, P filed a motion for admission of amended complaint in which E is again impleaded as a defendant on the same cause of action alleged in the original complaint, plus and additional cause of action impugning the

What is the “work product rule?” Work product is defined as documents and other tangible things prepared in anticipation of litigation or for trial. The work-product privilege or doctrine originated in the seminal case of Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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2nd Semester, 2014-2015

Civil Procedure | 28 of 48   order of dismissal as being null and void for allegedly having been obtained through fraud. E moves to dismiss amended complaint on the ground of res judicata. Rule on E’s Motion To Dismiss.

the general manager's reputation for truth and veracity is bad? Yes. When a party introduces a deposition or, any part thereof, the deponent is deemed a witness of the party introducing the deposition if used for the purpose other than that of contradicting or impeaching the deponent. However, this rule does not apply when the adverse party uses the deposition of the officer, director, managing agent of a public or private corporation, partnership, or association, at the time of the taking, of the other party. The witness in this case is D’s general manager, hence the impeachment of D’s witness by reputation is still open to P. Rule 23, Sec. 4 & 8; Riano (1) 516

Motion to dismiss should be granted. Under the Rules, if for no justifiable cause, the plaintiff fails to comply with the Rules or any order of the court, the complainant may be dismissed upon motion of the defendant or moto proprio. In the case at bar, dismissal was in effect due to failure to prosecute and/or comply with the orders of the Court and has the effect of being an adjudication on the merits. The dismissal of the first case being final, a new action based on the same cause of action would amount to res judicata.

Since a deposition officer cannot rule on objections to evidence, what would be the point of raising any objection to evidence at the deposition-taking?

Furthermore, the added cause of action in the amended complaint is improper because such an alleged cause of action can be raised only in a motion for new trial or in a petition for relief. Rule 17, Sec. 3; Rule 29, Sec. 5; Arellano v. CFI of Sorsogon

Errors and irregularities in the manner which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

Depositions (a) Can a party take the deposition of a person without any showing that the deponent will be unavailable as a witness at the trial? (b) If so, can such deposition be used in evidence?

Rule 23, Sec. 29 [f]

Admission

(a) Yes. Availability of the deponent as a witness at the trial will affect the party's right to use the deposition - not his right to take it. Dasmarinas Garments, Inc. v. Reyes

Where the defendant fails to answer a request for admission served on him by plaintiff asking for admission of all the material allegations of the complaint, what is the plaintiff's best procedural recourse?

(b) Yes, under the conditions and for the limited purposes stated in the Rules which essentially provide that if a deposition is to perpetuate testimony taken under the Rules or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter consequently brought in accordance with the Rules. Rule 24, Sec. 6; Riano (1), 514-515

He should file a motion for summary judgment. It is a settled rule that summary judgment may be granted if the facts which stand admitted by reason of a party’s failure to deny statements contained in a request for admission show that no material issue of fact exists. By its failure to answer the other party’s request for admission, the other party has admitted all the material facts necessary for judgment against itself. Allied Agri-business Dev’t Co vs. CA

Suppose P had introduced in evidence a pre-trial deposition of D's general manager which contained a statement that the company had no budget for the current year for repair of their vehicles, may P thereafter (i.e., after the general manager had testified for D) introduce evidence that

Discovery

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2nd Semester, 2014-2015

Civil Procedure | 29 of 48   May discovery still be resorted to by a party litigant even after the promulgation of final and executory judgment?

a) the court before whom the witness is required to attend; b) the court of the place where the deposition is to be taken; c) the officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines.

Yes. The Rules provide that when a writ of execution issued against the property of a judgment obligor remains unsatisfied in whole or in part, the judgment obligee is entitled to an order from the court requiring the judgment obligor to appear and be examined. The court may also compel a party or any other person to attend and be examined. Failure to obey may be punished for contempt. Rule 39, Sec. 36-38

When application for a subpoena to a prisoner is made, the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose. No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any penal institution shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the Supreme Court. Rule 23, Sec 2

Subpoena The court issued a subpoena duces tecum ordering the defendant "to bring with her whatever document is in her possession relative to this case." Is it possible to quash this subpoena duces tecum and, If so, on what grounds? Yes. On two grounds, to wit: 1) it is unreasonable and oppressive as it requires the production of numerous books, documents or things that are not properly described or identified; or, 2) if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. Rule 21, Sec 4; Uy v Aleonar

8 9 7 3 1

Objective/General

Distinguish Judgment on the Pleadings and Summary Judgment.

May a court order the immediate arrest of a witness who has failed to obey a subpoena in a case pending with it?

These may be distinguished as

follows:

No. Failure to obey subpoena constitutes indirect not direct contempt for which the alleged contemnor could not be adjudged guilty without hearing. Properly, the court should first issue an order requiring the alleged contemnor to show cause why he should not be punished for disobedience to its process in order to give him a chance to explain his failure to appear as witness. Gardones v. Delgado; Rule 21, Sec. 9 How can you, as a party to a civil action, access a document under the control of a non-party? Through a subpoena duces tecum as provided in Rule 21, Sec. 1 Who may issue subpoena? What shall the judge do when the application for a subpoena to a prisoner is made? The subpoena may be issued byBance|Benitez|Castañares|Flor Villones, A| Villones, H.

Trial, Demurrer and Judgment

(a) In judgment on the pleadings, the answer does not tender an issue; in summary judgment, there is an issue but it is not genuine or a real issue; (b) A motion for judgment on the pleadings is filed by a claiming party like a plaintiff or counterclaimant; while a motion for summary judgment may be filed by either the claiming or defending party; (c) A judgment on the pleadings is based on the pleadings alone; a summary judgment is based on the pleadings, affidavits, depositions and admission; and (d) In judgment on the pleadings, the movants must give a 3-day notice to the adverse party prior to the date of hearing the motion; while in summary judgment, the adverse party is given 10 days notice. 2014 Riano (1) 614; Rule 35, Sec. 1-3 Pacamalan|Piquero| Ratilla,

 

2nd Semester, 2014-2015

Civil Procedure | 30 of 48   main case is pending, unless the court allows an appeal therefrom; and (h) An order dismissing an action without prejudice

TrIal

Judgment

Demurrer

When is a judgment of a trial court considered to have been promulgated?

Action to collect on a promissory note. At the trial, plaintiff presented the note through its records custodian who had no personal knowledge of the transaction. After plaintiff rested, the defendant filed a demurrer to evidence on the ground that plaintiff's evidence was merely hearsay. The trial court granted the demurrer. On appeal, however, the CA reversed and remanded the case to the trial court for further proceedings. Did the CA act correctly?

In civil cases, a judgment is deemed promulgated when the signed decision is filed with the clerk of court. In criminal cases, judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. Rule 120, Sec. 6 An ejectment complaint was dismissed by the MTC for plaintiff's alleged failure to establish his pleaded cause of action. On appeal, the RTC affirmed in a decision which reasoned that defendant-tenant had not defaulted in the payment of rentals and that the lease had a fixed term. On reconsideration, the RTC reversed in a decision as follows: "Considering the grounds for plaintiff-appellant's motion for reconsideration, the defendant-appellee's opposition and reply to opposition, the decision of this court is hereby reconsidered, thereby reversing the decision of the court a quo and instead a decision is now rendered in favor of plaintiff-appellant and against the defendant-appellee as pryaed for in plaintiff-appellant's complaint." Is the decision valid?

No. CA should have rendered judgment on the basis of the evidence submitted by petitioner. The evidence was sufficient to support plaintiff's claim. Even if plaintiff's witness had no personal knowledge of the promissory note, this note is still admissible to prove its existence and its tenor as these facts are of independent relevance. Under section 1, Rule 33, defendant is deemed to have already waived his right to present evidence as, by filing a demurrer, he is deemed to have elected to stand on the insufficiency of plaintiff's evidence. Radiowealth Finance co. v. Del Rosario; Rule 33, Sec. 1

No. It does not, contrary to Section 1 of Rule 36 and Section 14 of Article VIII of the Constitution, state the law and facts on which it is based. Based on Anasco v. Judge of RTC-Pasig Rule 36, Sec. 1; Riano (1) 576 -578

Enumerate the final order which are not subject to appeal. No appeal may be taken from: (a) An order denying a motion for new trial or reconsideration; (b) An order denying a petition for relief or any similar motion seeking relief from judgment; (c) An interlocutory order; (d) An order disallowing or dismissing an appeal; (e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; (f) An order of execution; (g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the

In a suit on promissory notes which stipulated that the interest due shall be compounded quarterly, the RTC rendered judgment ordering D to pay P the notes with 18% interest per annum. After the judgment became final and executory, D tendered to P an amount in full payment of the judgment debt but P rejected this tender on the ground that per P’s computation the judgment debt was much more. The difference between the two amounts arises from the disagreement as to whether the judgment allowed quarterly compounding of interest; P said that it did, but D claimed it did not.

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2nd Semester, 2014-2015

Civil Procedure | 31 of 48   D then consigned the amount with the trial court under a motion praying for a ruling that the judgment did not allow quarterly compounding of interest, but P opposed the motion on the ground that the interest due must be compounded on a quarterly basis since such is the intention of the court and is necessarily implied from the findings of fact in the body of the decision. The trial court issued an order denying the “Consignation and Motion” filed by D and holding that P was entitled to compound interest quarterly even if the judgment did not provide for such compounding in its dispositive portion, the reason being that such ambiguity is clarified in the body of the decision. Is this order valid?

No. A judgment nunc pro tunc is one intended to enter into the record acts which had already been done, but which do not yet appear in the record. Without some visible data in the record of the issuance of such an order, a nunc pro tunc entry is not justified. Lichauco v. Tan Pho, 51 Phil. 662 [1923] On 01 July 1985, the RTC issued judgment, which was duly served on the parties one week later, based on compromise between P and D Corporation under which D was supposed to make payments to P. On 14 February 1992, due to D's alleged failure to make some of the payment required under the compromise judgment, P filed an action in the same RTC to compel D to make these payments. In answering the complaint, D admitted the promulgation of the compromise judgment but alleged that it was entered into by its then President without the requisite authority of the stockholders and that it was therefore ultra vires. Can this defense still be entertained?

No. The settled doctrine is that if there is a conflict between the body of the decision and the dispositive part, the latter should prevail. It is only when there is an ambiguity in the dispositive part that the court may resort to the body of the decision to clarify the ambiguity. But this doctrine applies only when there is a conflict between the body and the dispositive portion. Here, however, the dispositive part is of the judgment is clear and unambiguous, so that there is nothing to interpret or clarify even if it is in conflict with the statements in the body. In such a case the rule is clear, it is the dispositive part that should prevail. The judgment here is clear for the payment of interest at 18% per annum; it cannot be taken to be an interest to be compounded quarterly. What actually happened may be an oversight on the part of the trial judge in not including in the judgment a provision for the payment of compound interest on a quarterly basis. There is a parallel neglect on the part of counsel for P in not seeking a modification of the judgment before it became final and executory. The error cannot be cured by amendment; it is not a mere clerical error but a judicial error. Garcia v. Amin 90 O.G. 2095 (CA, 1990) Riano (1) 578 - 579

No. The compromise judgment was immediately final and executory and its validity cannot be assailed collaterally unless the ground of attack is lack of jurisdiction or an irregularity apparent on the face of the record or because it is vitiated by fraud. Cadano v. Cadano, 49 SCRA 33 [1973] Can a party move to set aside a compromise judgment? If so, how and on what grounds? Yes. A compromise agreement is a judgment rendered by the court on the basis of an agreement entered by the parties to the action. When a compromise agreement was taken against a party through fraud, accident, mistake or excusable negligence, the same may be set aside by Rule 38. A Rule 37 motion, which presupposes a non-final judgment, is not available because a compromise judgment is immediately final and executory. Riano (1) 606-608; Samonte v. Samonte

Service of summons was made by a PNP policeman in the municipality where the defendant resides. At plaintiff's behest, an affidavit was executed by the former presiding judge of the issuing court that he had issued an order authorizing service of summons by the policeman but the court record showed no such approval. So, plaintiff, submitting this affidavit to the court, moves for the issuance of an order nunc pro tunc stating the requisite authority for service of summons by this policeman. Should this motion be granted?

Both plaintiff and defendant were duly served copies of the decision on July 1. Neither party appeals or files a motion for new trial or reconsideration. When does this decision become final? If no appeal or motion for new trial or reconsideration is filed within the time provided under the Rules, the judgment or final resolution shall forthwith be entered by the clerk in the book of entries of

Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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2nd Semester, 2014-2015

Civil Procedure | 32 of 48   judgments. The date when the judgment or final resolution becomes executory shall be deemed as the date of its entry. Rule 51, Sec. 10 May judgment alternative?

be

rendered

in

9

the

Yes such as that in a replevin case, after trial of the issues, the court shall determine who has the right of possession to and the value of the property and shall render judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be made, and also for such damages as either party may prove, with costs. Rule 60, Sec. 9

Is there any decision of the MTC in civil cases which is directly reviewable by the CA? None. An appeal from a judgment or final order of a Municipal Trial Court may be taken to the Regional Trial Court exercising jurisdiction over the area to which the former pertains.

Summary Judgment

Rule 40, Sec. 1; Riano (1) 657

Action by P against D in the RTC for damages allegedly suffered by P while a paying passenger in a vehicle owned and driven by D. During the pre-trial, the parties entered into such a comprehensive stipulation of facts that the judge was moved to decide the case on summary judgment. Proper?

New Trial/ MR

When is a Motion for Reconsideration of an RTC judgment considered pro forma, and what is the risk to the movant in filing such a motion?

No. The Rules require that for summary judgment to issue, it must be on motion of a party and after due hearing. Rule 35, Sec. 1,3

Under the Rules, a motion for reconsideration is pro-forma if it does not point out specifically the findings of conclusions in the judgment which are not supported by evidence or which are contrary to law, making express reference to the pertinent evidence or legal provisions.

Where there is an issue as to defendant's liability for exemplary damages, may the court render summary judgment in the case? No. Summary judgment is proper only when there is no triable issue of material fact except as to the amount of damages, not as to the liability for damages. Rule 35, sec 3

In the cases where motion for reconsideration was held to be pro forma, the same was so held because: 1. it was a second motion for reconsideration 2. it did not comply with the rule that the motion must specify the findings and conclusions alleged to be contrary to law or not supported by the evidence 3. it failed to substantiate the alleged errors 4. it merely alleged that the decision in question was contrary to law 5. the adverse party was not given notice thereof.

An appellant in a civil case pending in the CA filed a motion for the reception of specified evidence for the purpose of clarifying facts already in the record in order that the CA would be better able to resolve relevant factual issues raised in the appeal. Will the motion prosper? Why? Yes. Under Section 15, Rule 44 of the Rules of Court, whether or not the appellant has filed a motion for new trial, he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties. Rule 44, Section 15

A pro forma motion for reconsideration shall not toll the reglementary period of appeal. Alvero v. Dela Rosa; Riano (1) 621 Rule 37, Sec. 2

Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

Post-Judgment Remedies

Pacamalan|Piquero| Ratilla,

 

2nd Semester, 2014-2015

Civil Procedure | 33 of 48   fee. Appelle therefore moved to dismiss his appeal but appellant countered by saying that he neglected to pay the docket fee on time because he was too busy. Rule on the motion.

Is an order denying a motion for reconsideration of a final and appealable judgment itself appealable? No. Under Sec. 9 of Rule 37, an order denying a motion for new trial or reconsideration is not appealable. What a party must do is to appeal the judgment or final order.

Motion should be granted. The Rules provide that within the period for taking an appeal, the appellant shall pay to the clerk of court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees. Hence, the Rules require the payment of the docket fee within the reglementary period to perfect an appeal. Without such payment, the appellate court does not acquire jurisdiction over the subject matter of the action and the decision sought to be appealed from becomes final and executory.

Rule 37, Sec. 9; Riano (1) 630

In an action by P against D, the RTC rendered judgment which was served on P on 01 July 1995 and on D on 05 July 1995. On 20 July 1995, D filed his notice of appeal from this judgment to the CA, and on the same date P filed a motion for reconsideration of the same judgment. Is P's motion for reconsideration timely?

By sheer coincidence, Atty. Lopez was on the same day, 30 June 1991, served with adverse decisions of the Court of Appeals and the Regional Trial Court. In each case, he filed a motion for reconsideration simultaneously on 10 July 1991. He received notices of the denial of his two motions for reconsideration on 15 August 1991.

No. The decision had become final in respect to P. The clause "upon the expiration of the last day to appeal by any party" in Sec. 23 of the Interim Rules refers to D whose period to appeal has not yet expired, P's period to appeal having expired on 16 July 1995.

If Atty. Lopez decides to appeal in each of the two cases -

Abe Industries, Inc. v. CA Is there any case where an appeal may be made to the SC by notice of appeal?

(a) What mode of appeal should he pursue in each case? (b) How would he perfect each appeal? (c) Within what time should each appeal be perfected?

None. No appeal may be taken to the Supreme Court from a judgment of a Regional Trial Court by notice of appeal under Rule 41 of the Rules of Court, regardless of any statement in the notice that the Supreme Court is the court of choice; and no judge or clerk of a Regional Trial Court, shall elevate, or cause to be elevated, to the Supreme Court the records of a case thus erroneously appealed under pain of disciplinary action, said officials, no less than the attorney taking the appeal, being chargeable with knowledge that the appellate jurisdiction of the Supreme Court may properly be invoked only through petitions for review on certiorari. (No.4 [a], Circular No. 2-90)

A. (a) RTC to CA a. by ordinary appeal or appeal by writ of error where judgment was rendered by the court in the exercise of its original jurisdiction raising questions of fact or mixed questions of fact and law b. petition for review where judgment was rendered by the court in its appellate jurisdiction on questions of fact, questions of law or mixed questions of fact and law RTC to SC Petition for review on certiorari or appeal by certiorari to the SC where judgment was rendered by the court in the exercise of its original jurisdiction raising only questions of law.

Ordinary appeal

CA to SC Petition for review on certiorari or appeal by certiorari raising questions of law.

The appellant was delayed for one month in paying to the Court of Appeals his docket Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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2nd Semester, 2014-2015

Civil Procedure | 34 of 48   (b) RTC to CA - in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from, and serving a copy thereof upon the adverse party.

should also be filed together with a notice of appeal when required by the Rules of Court. A petition for review under Rule 42 is perfected by filing a verified petition for review with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy of the petition.

RTC to CA – in the exercise of its appellate jurisdiction shall be made by filing a verified petition for review with the CA, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing P500.00 for costs, and furnishing the RTC and the adverse party with a copy of the petition.

c) The period for appeal by certiorari under Rule 45 is within 15 days from notice of the judgment, final order or resolution appealed from, or within 15 days from notice of the denial of the petitioner’s motion for new trail or motion for reconsideration filed in due time. The ordinary appeal under Rule 41 shall be taken within 15 days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellants shall file a notice of appeal and a record on appeal Within 30 days from notice of the judgment or final order. " However, on appeal in habeas corpus cases shall be taken within 48 hours from notice of the judgment or final order appealed from. The petition for review under Rule 42 shall be filed and served within 15 days from notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment. Rule 41 Sec 2, Sec 3, Sec 4. Rule 42 Sec 1, Rule 45 Sec 1, Sec 2, Sec 3, Sec 5

RTC to SC/CA to SC – shall be made by filing a verified petition with the SC within the reglementary period ( c ) On or before 30 August 1991, or fifteen days from notice of the denial of the motion for reconsideration but where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days from notice of judgment or final order. Sec.3, Rule 41; Sec. 1, Rule 42; Sec. 2 Rule 45, ROC; Riano (1) 664, 667, 685 Rule 41, Sec. 2; Riano (1) 661 Rule 41, Sec. 2[a]; Riano (1) 664 Rule 42, Sec. 1; Riano (1) 668 Rule 41, Sec. 3; Rule 42, Sec. 1; Rule 45, Sec. 2; Riano (1) 664, 667, 685 Alternative answer: a) The mode of appeal of the case decided by the CA is an appeal by certiorari to the Supreme Court under rule 45. If the decision of the RTC is from the exercise of its original jurisdiction, the mode is a notice of review under Rule 41. If the decision of the RTC is in the exercise of their appellate jurisdiction, the mode is petition for review in accordance with Rule 42. In all case where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45.

On what grounds may the trial court dismiss an appeal taken from its decision? Prior to the transmittal of the original record or the record on appeal to the appellate court, the trial court may, muto proprio or on motion, dismiss the appeal for having been taken out of time or for non-payment of the docket and other lawful fees within the reglementary period. Rule 41, sec. 13 as amended A.M. No. 00-210-SC, effective 01 May 2000)

b) Appeal by certiorari under Rule 45 is perfected by filing verified a petition for review on certiorari and by paying the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for cost. Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition. An ordinary appeal is perfected by filing a notice of appeal and by paying to the clerk of court which rendered the decision of final order appealed from, the full amount of the appellate court docket and other lawful fees. A record of appeal

An appellant in a civil case pending in the CA filed a motion for the reception of specified evidence for the purpose of clarifying facts already in the record in order that the CA would be better able to resolve relevant factual issues raised in the appeal. Will the motion prosper? Why? Yes. Under Section 15, Rule 44 of the Rules of Court, whether or not the appellant has filed a motion for new trial, he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties.

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Civil Procedure | 35 of 48   Rule 44, Section 15

Yes. Except in civil cases decided under the Rule on Summary Procedure, the appeal as a rule, shall stay the judgment or final order, unless the CA, the law or the rules shall provide otherwise.

In an action for unlawful detainer by P against D in the MTC, judgment was rendered against D ordering him to yield the premises to P. On D’s timely appeal to the RTC, the latter found that he had been unlawfully withholding possession of the premises for more than one year prior to the filing of the complaint and that therefore the proper action was accion publiciana and not unlawful detainer, and the RTC thereby declared the MTC without jurisdiction over the case and nullified the proceedings therein. Now, P filed a Rule 65 petition for certiorari with the CA against this RTC decision. How should the CA resolve the certiorari petition?

Rule 42, Sec. 8[b]; Riano (1) 670

Rule 45 A sued B in RTC-Manila for breach of contract. B filed a motion to dismiss on the ground that the complaint fails to state a cause of action. Before the motion to dismiss was resolved, A filed an amended complaint. The RTC did not admit amended complaint, ruling that A failed to obtain leave of court. A's motion for reconsideration was denied; so, he filed a petition for certiorari in the Court of Appeals. B moves to dismiss the petition contending that the CA has no jurisdiction to issue certiorari, since only a question of law is involved. Is the RTC judge correct? Does the CA have jurisdiction to issue certiorari? Decide.

The CA should dismiss the certiorari petition. The RTC made an error of judgment not an error in jurisdiction to warrant a petition for certiorari under Rule 65. A distinction must be made between errors of judgment and errors of jurisdiction. An error of judgment is one which the court may commit in the exercise of its jurisdiction. An error in jurisdiction renders an order or judgment void or voidable. Errors of jurisdiction are reviewable on certiorari, errors of judgment, only by appeal.

Is the review by the SC of the decision of the CA a matter of right? Under what circumstances will the SC review the said decision.

Rule on Summary

No, review by the SC is not a matter of right but of sound judicial discretion. The Rules provide that it will be granted only when there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered: (a) When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; or (b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision.

Procedure Defendant, who was served the MTC's adverse judgment in an ejectment case on 01 June 2000 moved on 03 June 2000 for reconsideration of this adverse decision. The MTC's order denying the motion for reconsideration was served on defendant on 20 June 2000. Then, on 27 June 2000, defendant filed a notice of appeal from the ejectment decision to the RTC. Is the appeal timely filed? No. The ejectment decision having presumably been rendered by the MTC under the Revised Rule on Summary Procedure, a motion for reconsideration is a prohibited pleading. So, the filing of this motion did not suspend or toll the running of the period for finality of the ejectment decision which thus became final on 16 June 2000. 1991 revised Rule on Summary Procedure, Sec. 19 [c]

Petition for Certiorari Rule 65

Does an appeal from a final judgment of the RTC stay the enforcement of this judgment? Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 36 of 48   By what mode can a party seek the review of an order denying his petition for relief from judgment?

Its effect is that the officer shall not be bound to keep the property, unless the judgment obligee, on demand by the officer, files a bond approved by the court to indemnity the third-party claimant in a sum not less than the value of the property levied on.

Only by an appropriate special civil action for certiorari under Rule 65, and not by an appeal.

A obtained a judgment against X for the payment of money. For failure to appeal the judgment became final on July 5, 1975. Writs of Execution were returned unsatisfied for the sheriff was unable to find property of X subject to execution. On June 30, 1984, A located some property of X. Whereupon A immediately filed in July 1984 a motion for issuance of an alias writ of execution. If you were the judge, will you grant the writ?

Dismissal of Appeals

What should the CA do to an appeal by notice of appeal from the RTC to it when the appellant raises issues of law only, or to an appeal by notice of appeal from a judgment of the RTC in the exercise of its appellate jurisdiction?

The writ must not be granted. Under the Rules, a final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. In the given case, the judgment had been final and executory for more than five years. Therefore, following the Rules of court, the motion must not be granted, the proper course of action being to enforce the judgment by independent action and not by a mere motion. Section 6, Rule 39

An appeal under Rule 41 taken from the RTC to the CA raising only questions of law shall be dismissed, issues purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by petition for review from the appellate judgment of a RTC shall be dismissed. An appeal erroneously taken to the CA shall not be transferred to the appropriate court but shall be dismissed outright. Rule 50, Sec. 2; Riano (1) 665-666 When can you file petition for relief? It can be filed when a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence or when a judgment or final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal. Rule 38, Sec 1, Sec 2 Rules of Court

10

Distinguish Final judgment or order and final and executory judgment A final judgment or order is one that finally disposes of a case, leaving nothing more to be done by the court in respect thereto. Nothing more remains except to await the parties’ next move and ultimately of course to cause the execution of the judgment once it becomes final and executory. A final and executory judgment is a final judgment or order which has been rendered and no appeal has been taken at the time prescribed Phil Business Bank vs Chua Riano(1) 592

Execution and Satisfaction

A filed an action to recover possession of a parcel of land which had a building on it constructed by the possessor. The Court rendered a judgment in favor of A ordering the possessor to vacate the premises and deliver the possession of the property to A. After the judgment became final and executory, the possessor did not leave the premises. Upon motion, the Court issued a writ of execution to execute or enforce the judgment. In the process of implementing the writ, the Sheriff demolished the

Who may file a “terceria,” with whom is it filed and what is the effect of its filing? A “terceria” is a third-party claim filed by a third-party claimant or a stranger to the action with the officer making the levy. The third-party makes an affidavit of his title to the property or right to possession thereof, stating the grounds of such title, and serves the same upon the officer making the levy and a copy to the judgment oblige. Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 37 of 48   building constructed by the possessor on the land. Was the demolition valid? Why?

the order dismissing the case, Fred’s lawyer filed with the CA a petition for Certiorari under Rule 65. Do you agree with Fred’s lawyer? Why? (d) Was the order of the court dismissing the case final and executory? (e) Assume that the CA granted Fred’s petition for certiorari. Ping wanted to appeal the decision of the CA to SC. State the procedure of appeal from the CA to the SC, and state the reasons for which the SC may review the decision of the CA.

No, the demolition is not valid. The Rules provide that when the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment oblige after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court. In order to demolish the building a special court order is needed. In this case, no such special order was acquired thus making the demolition not valid. Rule 39, Sec. 14

I

(a) No, I will not grant the application for preliminary attachment since the instant case does not fall within any of the grounds wherein preliminary attachment may issue. Preliminary attachment is not available merely because the debtor is insolvent or unable to fulfill his obligation. PA is only available when: (a) there is intent to depart from the country with intent to defraud, (b) when it involves money or property embezzled or fraudulently misapplied; (c) when it is to recover possession of property unjustly or fraudulently taken; (d) when the party is guilty of fraud in contracting the debt or in the performance thereof; (e) when the debtor has removed or disposed of his property with intent to defraud and (f) when the debtor does not reside and is not found in the Philippines. All these grounds are not available in the instant case. Jurisprudence provides that “a man may be unable to pay his debts in full, and still be doing all in his power to pay them, and, so long as he furnishes no statutory cause of attachment against him, no attachment will be made against his property.” 2014 Riano (2) 23; Federal Farm v. Mulder

Provisional Remedies Preliminary Attachment

Ping and Fred were friends. The former lived in Iligan City and the latter in CDO. On March 15, 2000, Ping borrowed 100k from Fred and the loan was payable within 6 months. 4 months after, or On July 15, 2000, Ping borrowed another 150k from Fred, who willingly gave the loan because of their friendship. The second loan was also payable within 6 months. Because of their friendship Fred only charged an interests of 5% per month on both loans. The two loans were evidenced by a PN. Six months after the first loan was contracted, Ping was unable to pay it. Fred immediately demanded payment. Ping could not pay because after their puppies died, his wife left him and withdrew all their funds from the bank and went to South Africa for good. On October 15, 2000, Fred filed an action with the RTC for collection with PA against Ping praying that Ping be ordered to pay his total principal obligation of 250k, accumulated interest and attorney’s fees of 20k. (a) If you were the judge, and assuming that the bond was filed, would you grant the application for PA? (b) If you were Ping’s lawyer, would you file a motion to dismiss? Explain. (c) Assume that Ping’s lawyer filed a motion to dismiss and assume further that the judge was convinced with the lawyer’s argument, and accordingly dismissed the case. Immediately upon receipt of

(b) Yes, I will file a motion to dismiss on the ground of lack of jurisdiction over the subject matter. At the time the case was filed, the second loan has not yet matured. It was to become due and demandable after six months or on January 15, 2001. The second loan not being due and demandable at that time, the totality rule cannot apply. Hence, the amount that should be the basis for determining the jurisdiction of the action is 100k – the amount of the first loan that has become due and demandable. This amount falls under the jurisdiction of the MTC. Hence, motion to dismiss is proper. Comment [Bance] This question was probably asked during the time when the jurisdictional

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Civil Procedure | 38 of 48   amount of the RTC is for claims exceeding 200k. What is important to remember is that the totality rule cannot apply given that the second loan has not yet matured. As to the second loan, there is no cause of action yet.

The grant of the remedy is a matter of judicial discretion. It is not a matter of right. Attachment however may issue when: (a) in an action for recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasicontract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; (b) in an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer or a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (c) in an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; (d) in an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (e) in an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or (f) in 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.

(c) No. A special civil action for certiorari under Rule 65 lies only when there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law. Certiorari cannot be allowed when a party fails to appeal a judgment despite the availability of that remedy. What the counsel of Fred should have done is to elevate the matter by filing a notice of appeal under Rule 41. (d) No, the order was not yet final and executory. The Rules provide only when no appeal or motion for new trial or reconsideration is filed within the period to do so shall a judgment or final order become final and executory. Hence, Fred may still file an appeal during the reglementary period for perfecting an appeal and prevent the judgment from becoming final and executory. (e) A party desiring to appeal a final order or resolution of the CA to the Supreme Court may do so by filing a verified petition for review on certiorari under Rule 45. He must comply with the following: v The petition must be filed within 15 days from notice of judgment. v He must pay the corresponding docket and other lawful fees. A review is not a matter of right but of sound judicial discretion and will be granted only when there are special and important reason. The following, though not controlling, indicate the character of the reasons which will be considered: (1) the CA has decided a question of substance which the SC has not yet determined or the CA decided in a case not in accord with law or with the applicable decisions of the SC; or (2) when the CA has so far departed from the accepted and usual corse of judicial proceedings or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision. Rule 45, Sec. 1-3, 6

Preliminary Injunction B brought his wife to Russia for medical treatment. While B was abroad, A filed an action against B with application for TRO and PI. The notice could not be effected because the sheriff discovered after diligent efforts that there was nobody in the house of B. Upon filing of the complaint and receiving the report of the sheriff, the Executive Judge raffled the case and issued a TRO without requiring A to put up a bond. B was not notified of the raffling. After the case was raffled to a branch, the latter without holding a summary hearing extended the TRO issued by the Executive Judge.

When is it proper to grant a writ of preliminary attachment? Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 39 of 48   (a) Was the raffling of the case valid? (b) Was the issuance of the TRO without requiring applicant to put up a bond valid? (c) Was the extension of the validity of the TRO valid? Why?

appealed, what happens pending appeal to a writ of preliminary injunction issued by the trial court while the case was pending with it? The preliminary injunction is not ipso facto dissolved if the judgment of dismissal is silent on the matter as, otherwise, the case will become moot despite the appeal. So, the preliminary injunction is dissolved only if the court expressly says so. The rule is different in case of a permanent injunction, in which case Sec.4, Rule 39 expressly provides that the judgment granting, dissolving, or denying the injunction is immediately operative. Rule 39, Sec. 4; Dimaunahan v. Aranas

(a) No, the raffling of the case is not valid. The Rules provide that when an application for a writ of preliminary injunction or TRO is included in complaint or any initiatory pleading, the case, if filed in a multi-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. The facts show that the adverse party was not notified. Hence, the raffle was not valid. (b) No, although the bond requirement is upon the court’s discretion the issuance of the TRO is invalid because there is no showing that the matter is of extreme urgency and that the applicant would suffer from grave or irreparable injury if the desired TRO would not be issued.

P, a resident of San Juan, Metro Manila, entered into an agreement with D, a resident of Quezon City, respecting a piggery business in Marilao, Bulacan. They quarreled over the management and control of the business, and so P sued D in RTC-QC which issued a preliminary injunction restraining D, his nominees, and all persons claiming under him from entering the piggery compound in Marilao, Bulacan. D moved to lift the preliminary injunction on the ground that it is sought to be enforced beyond the territorial jurisdiction of the RTC-QC. Resolve the motion.

Alternative Answer [Bance] Generally, the applicant shall filed a bond but the Rules grant the court the discretion on the matter of posting a bond before granting a temporary restraining order or not. Given that the court did not require a bond to be posted, it may be reasonably presumed that, in its discretion, no damage will be suffered by the enjoined party.

Motion must be denied. Generally, an injunction under Section 21 of Batas Pambansa Bilang 129 is enforceable within the region. The reason is that the trial court has no jurisdiction to issue a writ of preliminary injunction to enjoin acts being performed or about to be performed outside its territorial boundaries. However, to avoid an irreparable prejudice the Supreme Court allowed in Dagupan Electric Corporation et al. v. Pano (95 SCRA 693) the enforcement of an injunction to restrain acts committed outside the territorial jurisdiction of the issuing court. In the said case the Court ruled that a Court of First Instance has jurisdiction to try a case although the acts sought be restrained are committed outside its territorial jurisdiction where the principal business addresses of the parties and the decisions on the acts to be restrained are located and originated within the court's jurisdiction. Embassy Farms, Inc. vs. CA

(c) No, the extension is not valid. The Rules require the judge before whom the case is pending to conduct a summary hearing to determine whether or not the TRO can be extended. Since no summary hearing was held, the extension is invalid. Can a temporary restraining order be issued ex-parte? Yes. The Rules provide that if the matter is of extreme urgency, and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multi-sala court or the presiding judge of a single-sala court may issue ex parte a TRO effective for only 73 hours from issuance, not service. There is also a need to immediately comply with the requirement on service ov summons and other documents as provided for in the preceding section. Riano (2) 101.

ReplevIn X obtained a loan to buy machineries for his garment business. He executed a chattel

Suppose the main case is dismissed by judgment after trial and this judgment is Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 40 of 48   mortgage over said machineries. Because of business reverses, he defaulted in the payment of his obligation. A, the mortgagee, sought the delivery of the machinery so that they can be sold at foreclosure sale but X refused contending that it would result to stoppage of his business. A seeks your advice regarding his problem. What is your legal opinion on the matter?

praying that Y be declared liable to pay B's claim against X in the event that B is not able to recover thereon against X. Defendants moved to dismiss the replevin complaint on the ground of the pendency of the interpleader action. Rule on the motion to dismiss. Motion to dismiss granted. There is identity of parties between the interpleader case and replevin case. In the interpleader case, the plaintiff is X and the defendants are Y, A and B, whereas in the replevin case, the plaintiff is B and the defendants are X and Y. In both cases therefore, B, X and Y are parties with the addition of A, but this addition does not retract from the requisite identity. In both cases, the rights spring from the deeds of assignment executed by Y in favor of A and B, covering the same debts of X owing to Y. The identity in both cases is such that any judgment that may be rendered in the interpleader case would amount to res judicata in the replevin case; if judgment in the interpleader case is that the assignment to A would prevail over the assignment to B, such judgment would be binding on the replevin case and undercut B's cause of action in the replevin case. Sanpiro Finance Corp. vs. IAC

A can seek an action for foreclosure of the chattel mortgage and avail of the provisional remedy of replevin. There can be no question that persons having a special right of property in the goods the recovery of which is sought, such as a chattel mortgagee, may maintain an action for replevin therefor. When the creditor desires to foreclose mortgage upon default of debtor, he must necessarily take the mortgaged property in his hands, but when the debtor refuses to yield the possession of the property, the creditor must institute an action, either to effect a judicial foreclosure directly, or to secure possession as a preliminary to sale contemplated under Section 14, Act 1508. Northern Motors Inc. v Herrera

II

Hibok2 Corp is the lessee of a building owned by Mr. Andrade paying rental 30k a month. The owner died on 11/10/1999, and since then the Corp has not paid the rentals now amounting to 150k because 3 women are both claiming to be widows of Andrade and are demanding the rental payments. What legal action may the corp. take, before what court, and against whom to protect the Corp’s interests?

Special Civil Actions Interpleader

When is an action for interpleader proper? Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in the subject matter, 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. Rule 63, Sec. 1(a)

Hibok2x’s counsel should file an action for interpleader before the Municipal Trial Court against the 3 women, who claim to be widows of Mr. Andrade, and pray that the court resolve their conflicting claims. 2014 Riano (2), 197

Declaratory Relief

X Bus Company purchased 10 buses from Y Motor Co. covered with promissory notes and deeds of chattel mortgage. Then, Y assigned these notes and deeds of chattel mortgage to A Bank and then subsequently assigned the same notes and chattel mortgages to B Finance Co. Then, when X defaulted on the notes, Y, A and B demanded payment. In view of their conflicting claims against it, X filed in the RTC an interpleader action against Y, A and B praying that the court determine which among them is entitled to payment on the notes. Three days later, B filed an action for replevin with damages against X and Y

May a third-party complaint be filed in an action for declaratory relief? No. A petition for declaratory relief seeks no positive or affirmative, much less any material, relief beyond the adjudication of the legal rights which are subject of the controversy between the parties. But in a third-party complaint, the defendant or third-party plaintiff is supposed to seek contribution, indemnity, subrogation or any other relief from the

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Civil Procedure | 41 of 48   third-party defendant in respect to the claim of the plaintiff against him. Commissioner of Customs vs. Cloribel, 77 SCRA 459 [1977]

(a) Yes, the special civil action for prohibition under Rule 65 is proper. The special civil action of prohibition will lie if the impugned act is that of a “tribunal, corporation, board, officer or person whether exercising judicial, quasi-judicial or ministerial functions” and that there is no plain, speedy and adequate remedy in the ordinary course of law. As A’s primary intention is to prevent the BJMP and the DILG from enforcing the law, a ministerial action on the part of the departments, the relief sought for by A is clearly to command the desistance of these departments from committing the acts.

Petition for Certiorari, Prohibition and Mandamus What is the “material date rule?” Material date rule or material data rule provides that there are three material dates that must be stated in a petition for certiorari brought under Rule 65:

(b) No, A was not correct in appealing the decision of the RTC to the CA by petition for review. The decision of the RTC in a petition for prohibition under Rule 65 is appealable to the CA by way of notice of appeal via Rule 41, not a petition for review. This is because the decision of the RTC is one made in the exercise of its original jurisdiction.

(1) the date when the notice of the judgment or final order or resolution was received; (2) the date when motion for new trial or for reconsideration was filed; (3) the date when notice of the denial thereof was received. This requirement is for the purpose of determining the timeliness of the petition. Rule 46, Sec. 3; Riano (1) 718

(c) Yes, A committed an error. An appeal from the judgment, final order or resolutions of the CA where the petition raises only a question of law should be brought to the Supreme Court via Appeal by Certiorari under Rule 45. The filing of a petition for certiorari under Rule 65 is an improper remedy which warrants outright dismissal.

Congress passed a law requiring convicted persons and those under prosecution for criminal offenses to blood sample to the jail authorities for DNA test and examination. A, a lawyer, was convicted for violation of anti-fencing law. In addition, A had a pending administrative case before the SC for disbarment for his refusal to support a child born out of wedlock. A filed before the RTC a special civil action for certiorari with application for PI against the Bureau of Jail Mgt and the DILG for requiring him to submit blood sample in compliance. A’s grounds were that the law violated his right to substantive due process and his right to equal protection of the law. The RTC decided against A, who appealed the the decision of the court to the CA by means of a petition for review. The CA affirmed in toto the decision of the RTC. A filed a special civil action for certiorari with the SC assailing the CA decision. (a) Do you agree with A when he chose the remedy of prohibition in assailing the action of the BJMP and DILG? Explain. (b) Was A correct in appealing the decision of the RTC to the CA by petition for review? (c) Was A in error when he resorted to an original action before the SC in assailing the decision of the CA?

P filed a complaint for the recovery of two barges from the possession of the Philippine Coast Guard seeking the issuance of a writ of replevin for the purpose. The trial court, after the filing by P of the requisite bond, issued a writ of replevin for the seizure of the two barges which in the meanwhile were sold to a third party. Meanwhile, X filed a motion for intervention, claiming ownership over the two barges which it allegedly acquired form P in a public auction sale. The trial court denied X's motion for leave to intervene and ordered the release of the barges to P. Dissatisfied with this order, X filed a petition for certiorari in the Court of Appeals contending that the trial court gravely abused its discretion in denying X's motion for leave to intervene. How should the Court of Appeals resolve the certiorari petition? The Court of Appeals should deny the certiorari petition because other adequate remedies were available to petitioner; for instance, a motion for reconsideration of the order for the issuance of writ of replevin, or X could have filed a third-party claim over the barges

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Civil Procedure | 42 of 48   under Section 7, Rule 60, or, of course, X could have instituted the proper action to vindicate its claim to these barges. But back to the merits of the motion for intervention, the Rules allow such intervention only where it will not unduly delay or prejudice the adjudication of the rights of the original parties and where the intervenor's rights may not be fully protected in a separate proceeding. Here, the barges had already been sold to a third party and to allow X to intervene in the replevin suit would merely make the proceedings unnecessarily complicated and new and unrelated issues on conflicting claims of ownership, authenticity of documents of title and regularity in the mode of acquisition thereof may be expected to be raised. Big Country Ranch Corp. v. CA

RTC, CA or SC

The RTC rendered a decision on January 15, 2002 against the defendant in an action for injunction. The defendant filed a motion for reconsideration of the decision on January 30, 2002. The court denied the motion. On February 16, 2002, the defendant filed a special civil action for certiorari alleging that the court in rendering the decision and in denying the motion for reconsideration committed grave abuse of discretion amounting to lack or excess of jurisdiction. The CA without giving due course to the petition required the respondents to file their answer. Only the private respondent, the plaintiff filed his answer praying that the petition be dismissed because it was filed out of time. (a) Is the prayer tenable? (b) The petitioner filed his reply to private respondent’s answer praying that since the public respondent, the judge, did not file his answer to the petition, the said answer was a mere scrap of paper. Do you agree?

Distinguish between a petition for certiorari as a special civil action and a petition for certiorari as a mode of appeal. Certiorari as a special civil action (Rule 65)

Certiorari as a mode of appeal (Rule 45)

Not part of the appellate process but an independent action. May be directed against interlocutory order or matters where no appeal may be taken from Raises questions of jurisdiction Shall be filed not later than (60) days from notice of judgment, order or resolution sought to be assailed. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the (60)-day period shall be counted from notice of denial of said motion. Requires , as a general rule, a prior motion for reconsideration Does not stay judgment or order subject of the petition, unless enjoined or restrained The tribunal, board, officer, exercising judicial or quasijudicial functions is impleaded as respondent

A continuation of the appellate process over the original case.

May be filed with the

(a) The petition was not filed out of time. The petitioner has 60 days within which to file his petition for certiorari. (b) The judge is not required as public respondent to appear or file an answer or comment to the pleading or petition therein, therefore, the judge is not impleaded as defendant. The law stresses that in an action elevated to a higher court, the public respondent is included therein only as nominal parties. The judge will only appear if specifically directed by the court.

Seeks to review final judgments or final orders Raises questions of law Shall be filed within (15) days from notice of judgment, final order or resolution appealed from

Ejectment P filed an action against D for UD in the MTC for failure to vacate premises being leased on a month-to-month basis after notice of termination. D answered, alleging as affirmative defense lack of jurisdiction of the MTC for failure of P to make on him a prior demand to vacate and counterclaiming for 10k as attorney’s fees. During the pre-trial ,it turned out that P sent his notice to vacate by registered mail but this was not effectively delivered to D, and so the MTC dismissed the case for lack of jurisdiction but awarded D attorney’s fees of P5k. Did the MTC act correctly?

Does not require a prior motion for reconsideration Stays the judgment appealed from

The parties are the original parties with the appealing party as the petitioner and the adverse party as respondent without impleading the lower court or its judge Filed only with the SC

Yes, for demand to vacate is required when the lease is on a month-tomonth basis to terminate the lease upon the expiration of the month. In the absence of such notice, the lease of the private respondent continues to be in force and

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Civil Procedure | 43 of 48   cannot be deemed to have expired as of the end of the month automatically. The court correctly ruled that there was no valid notice to vacate since the mail was not effectively delivered to D. Although the rules provide that service may be done by registered mail, the same is only completed upon actual receipt of the addressee or 5 days after receipt of the postmaster, whichever is earlier. Hence, the possession of D has not yet become unlawful to give rise to a cause of action. Rule 70, Sec. 2; 2014 Riano (2) 452-454

(a) perfect an appeal; (b) file a supersedeas bond to pay for the rents, damages and costs (c) deposit periodically with the RTC, during the pendency of the appeal, the adjudged amount of rend due under the contract of if there be no contract, the reasonable value of the use and occupation of the premises. Can the MTC issue a writ of preliminary mandatory injunction in an action of unlawful detainer?

Alternative answer [Castañares]

Yes. A possessor deprived of his possession through forcible from the filing of the complaint, may present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof. Rule 70, Sec. 15; Riano (2) 465

No. Since the MTC had no jurisdiction over the principal action for unlawful detainer, then it had no jurisdiction over the compulsory counterclaim for attorney's fees either. Defendant's claim for attorney's fees is in the nature of a compulsory counterclaim, and a compulsory counterclaim cannot remain pending for independent adjudication by the court. A compulsory counterclaim is merely auxiliary to the proceeding in the original suit and derives its jurisdictional support from this original suit. Besides, it was defendant himself who caused the dismissal of his counterclaim by moving for the dismissal of the complaint. Dalisay v Marasigan

In an ejectment case, the MTC ordered the defendant to vacate the leased premises and to pay a monthly rental plus atty's fees. On appeal, defendant deposited the current rentals with the RTC. But the RTC granted plaintiff's motion for execution on the ground of defendant's failure to file a supersedeas bond. Is the order of execution correct?

An ejectment action for non-payment of rentals was compromised by the parties. Their compromise agreement, which the MTC approved, provided for payment to the plaintiff by defendant of specified amounts every month for 14 consecutive months, and that the failure of defendant to pay 3 consecutive installments shall entitle the plaintiff to a writ of execution. Defendant having failed to pay the first 3 stipulated installments, the MTC, on plaintiff’s motion issued a writ of execution. Acting on this writ, the sheriff served on defendant a notice to vacate the premises. Is there any way for defendant to resist the implementation of the execution writ?

Yes. Part of Rule 70, Section 19 of the Rules of Court reads “If judgment is rendered against the defendant, execution shall issue immediately upon motion, unless an appeal has been perfected and the defendant to stay execution files a sufficient supersedeas bond, approved by the MTC and executed in favor of the plaintiff xxx” And, according to the court, “In a case where the defendant did not file any supersedeas bond or did not make any monthly deposit, then the plaintiff would be entitled as a matter of right to the immediate execution of the city court’s judgment both as to the restoration of possession and the payment of the accrued rentals or compensation for the use and occupation of the premises. In such a case the execution is mandatory xxx” Rule 70, Sec. 19; Riano, (2) 467, De Laureano v. Adil

There is. The Rules provide that if judgment is rendered against the defendant, execution shall issue immediately upon motion, unless an appeal has been perfected and the defendant to stay execution files a sufficient supersedeas bond, approved by the MTC and executed by the plaintiff to pay rents, damages, and costs. The defendant must take the following steps to stay the execution of the judgment:

A and B inherited from their father, C, a parcel of land in 1985. In 1992, D forcibly entered into and took possession of the property. May A by himself and without

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Civil Procedure | 44 of 48   including B as his co-plaintiff bring an action for ejectment against D?

jurisdiction over the case since the issue of ownership was inextricably involved in the case and the issue of possession could not be resolved without resolving this issue of ownership. The MTC denied D's motion for reconsideration and the denial order was served on D on 01 September 1995. The next day, 02 September 1995, D filed his notice of appeal to the RTC from the MTC ejectment decision.

Yes. According to Article 487 of the Civil Code, any of the co-owners may bring an action in ejectment. Hence, Article 487 of the Civil Code authorizes any co-owner to bring, in behalf of himself, and the other co-owners, an action in ejectment affecting the coownership, and the suit may proceed without impleading the other co-owners. Article 487 Civil Code, De Leon: Property 239

(a) (b)

May a person not in possession of the premises bring an action for unlawful detainer of these premises? Yes. In the case of Pangilinan vs Aguilar, the court said that prior physical possession in the plaintiff is not an indispensable requirement in an unlawful detainer case brought, by a vendee or other person against whom the possession of any land is unlawfully withheld after the expiration or termination of a right to hold possession and therefore the allegation of the same in the complaint is not necessary. Pangilinan v Aguilar, Jr.

(a) The RTC must dismiss the appeal for being without merit. The assertion of ownership [by the defendant] over the disputed property does not serve to divest the inferior court of its jurisdiction In providing for the jurisdiction of first level courts, Section 33 of BP 129 as amended by RA 7691 in part says that when the defendant raises the question of ownership in his pleading and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. This is incorporated in Section 16, Rule 70 of the Rules of Court. Riano, (2) 459; Rule 70 Sec 16 Rural Bank of Sta. Ignacia, Inc. v Dimatulac)

A is the owner of a parcel of land pending registration in the RTC of Rizal. He permitted B, a family friend, to construct a small house on the land and to live therein for a period of two years only. The twoyear period expired on 1 may 1994, but B failed and refused to vacate the land. Hence, on 15 June 1994, A filed an action against in the RTC of Rizal for the recovery of possession of the land. B filed a motion to dismiss the case on the ground that the proper action was for unlawful detainer and not for recovery of possession inasmuch as the alleged detainer of the property was for a period of less than one year at the time the action was commenced. Is the motion well founded?

Action in the MTC for unlawful detainer. Plaintiff rests his right to possession of the property in dispute upon his claim of ownership, which claim in turn is based on a purported contract of sale with right to repurchase admittedly executed by defendant but claimed by him to be a mere simulation to cloak a mortgage obligation tainted with usury. If this contract was really a sale subject to repurchase and the repurchase as, as alleged by plaintiff, not been made within the time stipulated, plaintiff would already be the owner of the property sold and, as such, entitled to its possession. On the other hand, if the contract was, as defendants claim, in reality a mere mortgage, then the defendants would still be a the owner of the property and could not, therefore, be regarded as mere lessees. After trial, the MTC dismissed the case for lack of jurisdiction on the ground that the case involves a question of ownership. Is the dismissal correct?

No. The court in Gumiran v Gumiran held that the plaintiff need not wait until the expiration of the one year period before commencing an action to be repossessed to the land and be declared the owner thereof. Gumiran v Gumiran, Jr. 21 Phil 174 In an action for ejectment by P against D in the MTC, judgment ordering D to vacate the premises and to pay all accrued and accruing rentals was served on both parties on 01 July 1995. On 10 July 1995, D filed a motion for reconsideration of the judgment on the ground that the MTC had no Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

How should the RTC resolve the appeal? Suppose the MTC had motu proprio and without any hearing, dismissed P’s ejectment complaint for lack of jurisdiction, and that it was P instead who timely appealed this dismissal order to the RTC, how should the RTC resolve the appeal?

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Civil Procedure | 45 of 48   Yes. In the case of Lindayag vs. Dana, the court held the action (just like the one instituted above) to be “clearly and action involving ownership over which the Justice of the Peace (now MTC) had no jurisdiction.” Lindayag v Dana

the MTC, it however has no jurisdiction to determine the issue of ownership of the residential building constructed by D which it did by granting the forfeiture in favor of P. In an action for unlawful detainer, only the issue of possession is resolved and the court should not decide the issue of ownership except when the question of possession cannot be resolved without deciding the issue of ownership. Even then, the adjudication on the issue of ownership is only provisional. Hence, it was not within the authority of the MTC to award ownership of the building constructed by D.

On 01 April 1999, P filed in the MTC an action for forcible entry against D alleging that on 15 March 1999, he purchased this parcel but that on 20 March 1999 he found out that D took possession of this parcel under the pretext that he is the owner thereof and that D refused to surrender possession of the land despite demands. D filed his answer denying the material allegations of the complaint and, by way of special and affirmative defenses, averred that the MTC has no jurisdiction over the subject matter of the action because it is not for forcible entry but an accion publiciana and that the deed of sale under which P claims ownership is a forgery. Does MTC have jurisdiction over the case?

Rosalinda, who is leasing an apartment in RER Subd., CDO from Fernando Jose, a resident in Iligan City, under a 5 - Year Contract expiring on June 30, 2002, is in arrears in her rent for 5 months as of March 15, 2000. Fernando’s lawyer sends a demand letter to Rosalinda to pay and vacate the apartment within 30 days. (a) Suppose that Rosalinda upon receipt of the letter immediately pays the back rentals claiming that she was so busy with her boyfriends that she neglected to pay her rent. May Fernando still file an unlawful detainer case against Rosalinda? (b) After the demand letter was sent to Rosalinda, she failed to comply with it, and consequently Fernando filed an ejectment case with the MTCC in CDO without going through the conciliation process at the barangay level. The amount due was P9,800, hence, summary procedure was followed. May Rosalinda file a motion to dismiss for non-compliance with the requirements of the barangay conciliation process?

No. For a complaint for forcible entry to fall within the jurisdiction of the MTC, it must allege plaintiff's prior physical possession of the property as well as that he was deprived of such possession. In the situation, P merely alleged that on 20 March 1999, he found out that D took possession of the parcel of land and refused to surrender its possession to him; P did not allege that he was in prior physical possession. Moreover, P's pretended right to the possession of the disputed property ultimately rests upon his claim of ownership, a claim based upon a purported contract of sale the genuineness of which is disputed by D, so that the case, in the final analysis, hinges on a question of ownership and is therefore not cognizable by the MTC. Rimando vs. Borebor

(a) Yes, Fernando may still file an unlawful detainer case. The failure to vacate after a demand to pay and vacate gave rise to a cause of action in favor of the lessor. The subsequent payment did not cure the unlawful withholding of possession of the premises. The essence of unlawful detainer involved in the case is the failure of the defendant to heed the demand to vacate, and not failure to pay the rentals in arrears. Riano(2) pp453-454

P filed a complaint for unlawful detainer against D in the MTC. In his complaint, P prayed for judgment ordering D to vacate the leased premises and to surrender them to P, declaring the residential building constructed on the lot by D as forfeited in favor of P and adjudging D liable to pay accrued rentals and P5,000 atty's fees to P. After D filed his answer, the MTC rendered a judgment on the pleadings granting all the reliefs prayed for in P's complaint. Is this judgment assailable on any jurisdictional ground?

(b) No, Rosalinda cannot file a motion to dismiss for non-compliance with the requirements of the Brgy Conciliation. Brgy conciliation under the Local Government Code applies only when a party is suing somebody who resides in the same city or municipality where he reside or in the event of different municipalities, they are adjacent. In the case at bar Fernando

Yes, the court has no jurisdiction over the issue of ownership of the building. While the action for unlawful detainer is well-within the jurisdiction of Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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Civil Procedure | 46 of 48   resides in CDO and Iligan and CDO are not adjacent. Hence, brgy conciliation is not a condition precedent to the present case. Inigo(1) p369

Is barangay conciliation process as prerequisite to filing the action applicable in ejectment cases? Yes . The law requiring barangay conciliation as a prerequisite to any action as written, makes no distinction whatsoever with respect to the classes of civil disputes that should be compromised at the barangay level.

While the ejectment case filed by A against B is pending the latter religiously deposits all current rentals. In due time, the judge ordered A to pay all the rents until he vacated the promises as well as Atty’s fees in the amount of P10,000. A moves for immediate execution on the ground that B did not deposit the Atty’s fees of P10,000 and that he did not put a supersedes bond for the award. (a) Should the court grant immediate execution? Decide with reasons. (b) Suppose B appeals the decision against him to the RTC which affirmed in toto the lower court’s decision. B then filed a motion for reconsideration. A moves to strike out the MR as it is a prohibited pleading under the Rules on Summary Procedure. Is this tenable? Decide with reasons. (c) Suppose that instead of filing a motion for reconsideration with the RTC, B filed a notice of appeal with the RTC stating that he is appealing to the CA on the ground that the judgment is contrary to the law and the facts of the case. As lawyer for A, on what procedural ground will you oppose the appeal? Explain your answer.

Damages Can a MTC award moral and exemplary damages in an unlawful detainer case? No. According to the Court in Felisilda v Villanueva, an award of moral and exemplary damages in an ejectment suit is manifestly erroneous. The only damages that can be recovered in an ejectment suit are the fair rental value or the reasonable compensation for the use and occupation of the real property. Other damages must be claimed in an ordinary action. Felisilda v Villanueva T was leasing his apartment from L at P5,000/month under a written contract for 1 year. One month before the expiration of the lease, L served a demand upon T to vacate the premises upon its expiry because he was going to demolish the building and erect in its place a new building. T refused to vacate. In consequence, L's building plans were delayed. So, L brought an action for unlawful detainer against T and obtained judgment therein directing T to pay him the P5,000 stipulated rental and P500 a day for every day of delay as damages until he finally vacates the premises plus P10,000 atty's fees. Is the decision objectionable in any way?

(a) No, the court should not grant immediate execution. A supersedeas bond covers rentals in arrears up to the time of the judgment. Since there are no unpaid rentals, there is no reason for the bond. Also, the rule does not require a deposit for attorney’s fees for execution to be stayed. Riano(2) p471 (b) No, the contention is not tenable. The Revised Rules on Summary Procedure does not apply in the RTC. When Y appealed the decision to the RTC the proceeding is not anymore summary in nature. The Rules on Summary Procedure finds no applicability in the present case hence the motion for reconsideration is not prohibited. Inigo(1) p143-144

Yes. It has been held that while damages may be adjudged in forcible entry and detainer cases, these “damages” mean “rents” or “the reasonable compensation for the use and occupation of the premises,” or “fair rental value of the property.” The award therefore of P500 for every day of delay as (temperate) damages, being neither rent nor reasonable compensation for the use and occupation of the premises, nor fair rental value, is improper as it is without basis in law. Reyes v CA G.R. L-28466 March 27, 1971

(c) I would oppose the appeal on the ground that the procedure is improper. The correct procedure is to file of a petition for review with the CA. The filing of a notice of appeal is proper if the case was decided pursuant to its original jurisdiction. The case at bar was actually decided by the RTC in its appellate jurisdiction. Hence, a petition for review should be filed and not a notice of appeal. Inigo Rule 41 p21

In an ejectment suit filed with MTCC, CDO the judge rendered a decision ordering the defendant to vacate the property of the

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Civil Procedure | 47 of 48   plaintiff, and to pay the plaintiff the amount of 10k a month as reasonable compensation for the use of the land starting from the time he occupied the same and until it is vacated by him; 100k as unrealized earnings; 50k as moral damages; 30k as exemplary damages and 20k as attorney’s fees. The defendant contends that the decision is improper. Decide.

In an ejectment case, the MTCC ordered A to vacate the nipa house standing on a residential lot, restore possession thereof to B and pay the sum of 5k as back rentals at the rate of 500 per month. A appealed to the RTC and posted a supersedeas bond of 10k. Subsequently, B filed a motion in the RTC for the execution of the judgment on the ground that A had not deposited the current rental of 500 a month. A opposed the motion alleging that the MTC did not fix in its judgment the monthly rental to be paid during his continued stay in the premises so that he is not duty bound to pay the same. Decide the motion for execution of judgment filed by B.

Yes. The decision is improper. The concept of damages in an action for forcible entry and detainer cases is well defined in several cases. These damages mean “rents” or “the reasonable compensation for the use and occupation of the premises,” or “fair rental value of the property.” Temperate, actual, moral and exemplary are neither rents nor reasonable compensation for the use and occupation of the premises, nor fair rental value, and are not recoverable in such case.

Yes, B’s motion for execution should be granted. Under sec 19 of Rule 70 in order to stop execution the defendant has to do three things - appeal, to file supersedeas bond approved by the MTC and to deposit periodically with the RTC, during the pendency of the appeal, the adjudged amount of rent due under the contract or if there be no contract, the reasonable value of the use and occupation of the contract. The adjudged amount in this case is 500 a month. B then is obligated to deposit with the RTC the amount of 500 a month. Such deposit, like the supersedeas bond is a mandatory requirement; hence if not complied with, execution shall issue as a matter of right.

Herrera vs Bollos

Execution Unlawful detainer action by P against D was decided in favor of P by the MTC. On P's motion, MTC granted execution pending appeal for D's failure to post a supersedeas bond. D challenged the validity of the immediate execution for having been issued without any previous notice to him. Rule on the validity of the order of execution.

Bugarin vs Palisoc, Antonio vs Geronimo 2014 Riano(2) p469

The order of execution was correct. The court in Delos Santos v Montesa, Jr. said that the court (referring to the MTC), is not “duty-bound to notify petitioners of the immediate enforcement of the appealed decision xxx.” Delos Santos v Montesa, Jr.

Contempt Distinguish indirect from direct contempt. Generally, direct contempt is committed in the presence or so near the court judge as to obstruct or interrupt the proceedings before the same. Indirect Contempt is one not committed in the presence of the court. It is an act done at a distance which tends to belittle, degrade, obstruct or embarrass the court and justice. Siy vs NLRC 468 SCRA 154, Riano (2) 480

When and under what conditions may a court issue a demolition order? Section 10(d) of Rule 39 however provides that when the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment oblige after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court. Stated otherwise, for a demolition order to issue: there must be a writ of possession issued in favor of the successful litigant. Rule 39 Section 10(d)

By virtue of an execution of the judgment in an ejectment case, defendant was successfully ousted from the property in litigation and plaintiff was lawfully placed in possession thereof. But 7 years later, defendant re-entered the property and forcibly took over possession. Plaintiff now moves that defendant be declared in indirect contempt. Rule on the motion. The motion should be granted.

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Civil Procedure | 48 of 48   The court said in Benedicto v Canada that under Rule 71, Sec 3b, the act of re-entry by a party into the land from which he was ordered by the court to vacate may be punished for contempt of court even after the lapse of five years from the date of the execution of judgment.

interrupt the proceedings before the same time. The court, however, in that case removed the imprisonment applying the doctrine that the power to punish for contempt is to be exercised on the preservative and not on the vindictive principle – it ought not to be utilized for the purpose of merely satisfying an inclination to strike back at a party for showing less than full respect for the dignity of the court. Wicker v Arcangel 252 SCRA 444

The re-entry is clearly a defiance of the authority of the court. As it is, the decision sought to be enforced had long become final and executory. And unless and until the said decision is annulled or set aside in a proper proceeding, the same must be given effect. (Patagan v. Panis 159 SCRA 507) Benedicto v Canada Rule 71, Section 3 Patagan v. Panis 159 SCRA 507 Atty. Lancelot, on behalf of his client, Lady Geneveve, filed a motion to inhibit Judge Merlyn from hearing the action filed by the lady to recover the key of her chastity belt, which was made of platinum from King Arthur. The motion alleged that Judge Gloucester had full grasped of the case but he was eased out of his station and was mysteriously replaced by Judge Merlyn. The motion stated that in one hearing Judge Merlyn had not yet reported to his station and in that hearing, counsel for King Arthur, who must have known that his honor was not reporting did not likewise appear while other counsels were present. Moreover, the motion alleged that Judge Merlyn was personally recruited by Atty. Braveheart who was at the time a member of the Judicial and Bar Council, against whom the lady filed an administrative case which resulted in Atty. Braveheart’s dismissal from the counsel. Judge Merlyn issued an order requiring Atty. Lancelot and the lady to appear before him to show cause why they should not be cited for contempt of court for their allegations in their motion which allegations were, to the mind of the judge, malicious, derogatory, and contemptuous. Atty. Lancelot and the lady appears and explained but judge Merlyn found their explanation unsatisfactory, and accordingly, hold them guilty of direct contempt and sentenced each to suffer imprisonment for 5 days in separate prison cells and to pay a fine of P100. Do you agree with the judge. Reasons. Yes, in the case of Wicker vs Arcangel, the court held that a case is one for direct contempt where it involves a pleading allegedly containing derogatory, offensive or malicious statements submitted to the court or judge in which the proceeding are pending. It is equivalent to misbehavior committed in the presence of or so near a court or judge as to Bance|Benitez|Castañares|Flor Villones, A| Villones, H.

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