Civil Procedure 2017

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REMEDIAL LAW CIVIL PROCEDURE Bar Review Guide 2017 Justice Magdangal M de Leon I. General Princip les A. Concept of Remedial law Procedure in general

The means whereby the court reaches out to restore rights and remedy wrongs, and includes every step which may be taken from beginning to the end of a case (Maritime Company of the Philippines vs. Paredes, 19 SCRA 569 [1967]). Kinds of procedure 1. As

to purpose a. civil procedure refers to the enforcement of a pr ivate right b. criminal procedure refers to the prosecution of an offense

2.

As to formality a. formal procedure requires a set and definite process to be observed in order that the remedy can issue b. summary procedure where remedy sought is granted without delay, and without the necessity of observing the procedure fixed for ordinary cases

What is civil procedure?

The method of conducting a judicial proceeding to resolve disputes involving private parties for the purpose of enforcing private rights or obtaining redress for the invasion of rights. Action and suit

In the Philippines, the terms action and suit are synonymous (Lopez vs. Campania de Seguros (16 SCRA 855 [1966]) B. Substantive law as Distinguished from Remedial law 1. Substantive law

the law that creates, defines regulates and extinguishes rights

and obligations 2. Remedial law

the law that provides the procedure or remedy for enforcement of rights and obligations through the courts of justice.

C. Rule-making Power of the Supreme Court

The Supreme Court has the constitutional power to promulgate rules concerning pleading, practice and procedure in all courts (Art. VIII, Sec. 5(5], Constitution). The power of Congress under the 1935 and 1973 Constitutions to repeal, alter or supplement rules concerning pleading, practice and procedure was taken away in the 1987 Constitution (Echegaray vs. Secretary of Justice, G.R. No. 132601, January 19, 1999). 1. limitations on the rule-making power of the Supreme Court (SUN]

(a) The rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, (b) The rules shall be uniform for all courts of the same grade, and (c) The rules shall not diminish, increase, or modify substantive rights. (Art. VIII, Sec. 5[5], Constitution). [DIM] In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the

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rule really regulates procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an existing right then the rule deals merely with procedure. (Fabian vs. Desierto, G.R. No. 129742, September 16, 1998, 295 SCRA 40.) Procedural and substantive rules Test whether rule really regulates procedure, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction thereof. If it takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal substantive. If it operates as a means of implementing an existing right procedural, Exs. where to prosecute an appeal or transferring venue of appeal (a) appeals from decisions of Ombudsman in administrative cases be made to CA, or (b) requiring that review of NLRC decisions be filed with CA (St. Martin Funeral Home vs. NLRC, 295 SCRA 494 [1998]) 2. Power of the Supreme Court to amend and suspend procedural rules Inherent power of SC to SUSPEND its own rules or to EXEMPT a particular case from the operation of said rules (pro hac vice) whenever demanded by justice (Rep. vs. CA, 107 SCRA 504 [1981]; De la Cruz vs. Court of Appeals, 510 SCRA 103 ). The right to create rules necessarily carries with it the power to suspend the effectivity of its creation. The power to suspend or even disregard rules can be so pervasive and compelling as to alter even that which the Court itself had already declared to be final (Apo Fruits Corp. vs. Land Bank of the Philippines, G.R. No. 164195, October 12, 2010). D. Nature of Philippine Courts 1. Meaning of a court A court is a tribunal with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law. The system of courts that interpret and apply the law are collectively known as the judiciary 2. Court as distinguished from a judge A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The judge conducts the trial impartially and in an open court. The judge hears all the witnesses and any other evidence presented by the parties of the case, assesses the credibility of the parties, and then issues a ruling on the matter at hand based on his or her interpretation of the law and his or her own personal judgment. 3. Classification of Philippine courts 1. Regular Courts Courts authorized to engage in the general administration of justice. These courts derive their powers from the Constitution. At the apex is the Supreme Court. Below the Supreme Court are three tiers of lower level courts that initially decide controversies brought about by litigants in the first instance. a. Supreme Court b. Court of Appeals c. Regional Trial Court d. Municipal Trial Court 2 www.chanroblesbar.com : www.chanroblesbar.com.ph

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2. Special Courts Tribunals that have limited jurisdiction over certain types of cases or controversies that special courts can hear are limited only to those that are specifically provided in the special law creating such special courts. Outside of the specific cases expressly mentioned in the provisions of the statute creating the special court, these courts have no authority to exercise any powers of adjudication. a. Sandiganbayan b. Court of Tax Appeals c. Sharia Court 3. Quasi Judicial Agencies Technically, judicial powers pertain to and are exercised only by courts. However, the Philippine system of government allows administrative agencies to exercise adjudicatory powers in certain types of controversies, particularly if same would facilitate the attainment of the objectives for which the administrative agency had been created. Unlike regular and special courts, quasi courts do not possess judicial powers. Instead they possess and in fact, exercise what are termed as quasi judicial powers. 4. Courts of original and appellate jurisdiction a. Court of original jurisdiction one where a case is originally commenced 1) Municipal Trial Court 2) Regional Trial Court 3) Court of Appeals 4) Supreme Court b. Court of appellate jurisdiction one which has power or review over the decisions or orders of a lower court 1) Regional Trial Court 2) Court of Appeals 3) Supreme Court 5. Courts of general and special jurisdiction a. General jurisdiction courts which take cognizance of all kinds of cases, civil or criminal, except those assigned to special courts and courts of limited jurisdiction 1) Regional Trial Court b. Special jurisdiction courts which have the power to hear only certain types of cases, or are clothed with special powers for the performance of specified duties beyond which they have no authority of any kind. 1) Sandiganbayan 2) Court of Tax Appeals 3) Sharia Court 6. Constitutional and statutory courts a. Constitutional those created by the Constitution 1) Supreme Court b. Statutory those created by the legislature 1) Court of Appeals 2) Regional Trial Court 3) Municipal Trial Court 4) Sandiganbayan 5) Court of Tax Appeals 3 www.chanroblesbar.com : www.chanroblesbar.com.ph

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6) Sharia Court 7. Courts of law and equity Philippine courts are both courts of law and equity. Hence, both legal and equitable jurisdiction is dispensed with in the same tribunal. (. U.S. vs. Tamparong, 31 Phil. 321) However, equity does not apply when there is a law applicable to a given case (Smith Bell Co. vs. Court of Appeals, 267 SCRA 530). It is availed of only in the absence of a law and is never availed of against statutory law or judicial pronouncements (Velez vs Demetrio, G.R. No. 128576, August 13, 2002). 8. Principle of judicial hierarchy Pursuant to this doctrine, direct resort from the lower courts to the Supreme Court will not be entertained unless the appropriate remedy cannot be obtained in the lower tribunals. Rationale: (a) to prevent inordinate demands upon the SCs time and attention which are better devoted to those matters within its exclusive jurisdiction, and (b) to prevent further overcrowding of the SCs docket. Thus, although the SC, CA and the RTC have CONCURRRENT jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give the petitioner unrestricted freedom of choice of court forum. The SC will NOT ENTERTAIN DIRECT RESORT to it unless the redress desired cannot be obtained in the appropriate courts, and exceptional and compelling circumstances, such as cases of national interest and of serious implications, justify the extraordinary remedy of writ of certiorari, calling for the exercise of its primary jurisdiction (Heirs of Bertuldo Hinog vs. Melicor,455 SCRA 460 [2005]). 9. Doctrine of non-interference or doctrine of judicial stability This principle holds that courts of equal and coordinate jurisdiction cannot interfere with each other’s orders (Lapu lapu Dev and Housing Corp vs. Group Management Corp, 338 SCRA 493). Hence, a RTC has no power or authority to nullify or enjoin the enforcement of a writ of possession issued by another Regional Trial Court (Suico Industrial Corp vs; CA, 301 SCRA 212). The principle also bars a court from reviewing or interfering with the judgment of a co equal court over which it has no appellate jurisdiction or power of review (Villamor vs. Salas, 203 SCRA 540). Exc. Third party claim The doctrine of judicial stability or non interference in the regular orders or judgments of a co equal court, as an accepted axiom in adjective law, serves as an insurmountable barrier to the competencia of the Makati court to entertain the habeas corpus case on account of the previous assumption of jurisdiction by the Cavite court, and the designation of petitioners as guardians ad litem of the ward. This is based on the policy of peaceful co existence among courts of the same judicial plane. (Panlilio vs. Salonga, G.R. No. 113087, June 27, 1994). II. General Principles on Jurisdiction Juris and dico I speak by the law. Power or capacity conferred by the Constitution. or by law to a court or tribunal to entertain, hear and determine certain controversies, and render judgment thereon A. Jurisdiction over the parties 1. How jurisdiction over the plaintiff is acquired Over person of plaintiff acquired upon filing of complaint or initiatory pleading and paying docket or filing fees; 2. How jurisdiction over the defendant is acquired Over person of defendant service on him of coercive process in the manner provided by law (summons) or his voluntary submission to the jurisdiction of the court or tribunal (voluntary appearance). What is the effect of voluntary appearance? The defendants voluntary appearance in the action shall be equivalent to SERVICE OF SUMMONS. 4 www.chanroblesbar.com : www.chanroblesbar.com.ph

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However, inclusion in a motion to dismiss on other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance (Rule 14, Sec. 20). NOTE: a. Filing of a motion for reconsideration and appeal is tantamount to voluntary submission to the jurisdiction of the court. b. Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons, absent any indication that the appearance of counsel was precisely to protest the jurisdiction of the court over the person of defendant (Delos Santos vs. Montesa, 221 SCRA 15 [1993]). B. Jurisdiction over the subject matter 1. Meaning of jurisdiction over the subject matter a. subject matter 1. The power to hear and determine cases of the general class to which the proceeding in question belongs. 2. Determined by the LAW IN FORCE at the time of its institution. Once the court acquires jurisdiction, it may not be ousted by any subsequent law placing jurisdiction in another tribunal, except (a) when the law itself so provides or (b) the statute is clearly intended to apply to actions pending before its enactment. 3. Matter of legislative enactment which none but the legislature can change. 4. Once jurisdiction is acquired, court RETAINS it until the final determination of the case 5. Never acquired by consent or acquiescence of the parties or by laches, nor by unilateral assumption thereof by a tribunal. 6. Determined by the ALLEGATIONS in the complaint and the CHARACTER of the relief sought. 7. Does not depend on pleas or defenses of defendant in an answer or motion to dismiss. 2. Jurisdiction versus the exercise of jurisdiction Jurisdiction is the authority to decide a cause, and not the decision rendered therein. Where there is jurisdiction over the person and the subject matter, the decision in all other questions arising in the case is but an exercise of such jurisdiction. The errors which the court may commit in the exercise of jurisdiction are merely errors of judgment which are the proper subject of an appeal. The errors raised by petitioners in their petition for annulment of judgment assail the content of the decision of the trial court and not the courts authority to decide the suit. In other words, they relate to the courts exercise of its jurisdiction, but petitioners failed to show that the trial court did not have the authority to decide the case. (Tolentino vs. Leviste, 443 SCRA 274 [2004]). 3. Error of jurisdiction as distinguished from error of judgment An error of judgment is one in which the court may commit in the exercise of its jurisdiction, and which error is reversible only by an appeal. Error of jurisdiction is one where the act complained of was issued by the court without or in excess of jurisdiction and which error is correctible only by the extraordinary writ of certiorari. Certiorari will not be issued to cure errors by the trial court in its appreciation of the evidence of the parties, and its conclusions anchored on the said findings and its conclusions of law. As long as the court acts within its jurisdiction, any alleged errors committed in the exercise of its discretion will amount to nothing more than mere errors of judgment. (Julies Franchise Corporation vs. Ruiz, G.R. No. 180988, August 28, 2009, 597 SCRA 463.) 4. How jurisdiction is conferred and determined Conferred by the LAW IN FORCE at the time of its institution. Determined by the ALLEGATIONS in the complaint and the CHARACTER of the relief sought 5 www.chanroblesbar.com : www.chanroblesbar.com.ph

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5. Doctrine of primary jurisdiction The doctrine of primary jurisdiction precludes the courts from resolving a controversy over which jurisdiction has initially been lodged with an administrative body of special competence. (Fajardo vs. Flores, G.R. No. 167891, January 15, 2010) 6. Doctrine of adherence of jurisdiction Once jurisdiction attaches it cannot be ousted by the happening of subsequent events although of such a character which should have prevented jurisdiction from attaching in the first instance [the rule of adherence of jurisdiction] (Ramos vs. Central Bank of the Philippines, 41 SCRA 565;. Lee vs. Presiding Judge, MTC of Legaspi City, Br I, 145 SCRA 408). Once the court acquires jurisdiction, it may not be ousted by any subsequent law placing jurisdiction in another tribunal, except (a) when the law itself so provides or (b) the statute is clearly intended to apply to actions pending before its enactment. Once jurisdiction is acquired, court RETAINS it until the final determination of the case 7. Objections to jurisdiction over the subject matter When can the issue of jurisdiction be raised? General rule jurisdiction over the subject matter or nature of the action may be challenged AT ANY STAGE of the proceedings. Exception when there is ESTOPPEL. Party assailing jurisdiction of court must raise it at the first opportunity. While an order or decision rendered without jurisdiction is a total nullity and may be assailed at any stage, a party’s ACTIVE PARTICIPATION in the proceedings. without questioning the jurisdiction until later, especially when an adverse judgment has been rendered (Soliven vs. Fastforms Phils., Inc., 440 SCRA 389 [2004]). A party cannot invoke the jurisdiction of the court to secure affirmative relief against his opponent and after failing to obtain such relief, repudiate such jurisdiction (Salva vs. CA, 304 SCRA 632 (1999).This includes the filing of a counterclaim. Such practice cannot be tolerated for reasons of public policy (Oca vs. CA, 278 SCRA 642 [2002]). The earliest opportunity of a party to raise the issue of jurisdiction is in a motion to dismiss filed before the filing or service of an answer. Lack of jurisdiction over the subject matter is a ground for a motion to dismiss (Sec. 1[b], , Rule 16). If no motion to dismiss is filed, the defense of lack of jurisdiction may be raised as an affirmative defense in the answer (Sec. 6, Rule 16). Under the omnibus motion rule, a motion attacking a pleading like a motion to dismiss shall include all grounds then available, and all objections not so included shall be deemed waived, except lack of jurisdiction over the subject matter (Sec. 8, Rule 15). Jurisdiction over the subject matter may be raised at any stage of the proceedings, even for the first time on appeal (Francel Realty Corporation vs. Sycip, 469 SCRA 424 [2005]) Courts may take cognizance of the issue even if not raised by the parties themselves. No reason to preclude the CA, for example, from ruling on this issue even if the same had not been resolved by the trial court (Asia International Auctioneers, Inc. vs., G.R. No. 163445, December 18, 2007). 8. Effect of estoppel on objections to jurisdiction Heirs of Bertuldo Hinog vs. Melicor, G.R. No. 140954, April 12, 2005 After recognizing the jurisdiction of the trial court by seeking affirmative relief in their motion to serve supplemental pleading upon private respondents, petitioners are effectively barred by estoppel from challenging the trial court’s jurisdiction. If a party invokes the jurisdiction of a court, he cannot thereafter challenge the court’s jurisdiction in the same case. To rule otherwise would amount to speculating on the fortune of litigation, which is against the policy of the Court.

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Salva vs. CA, 304 SCRA 632 (1999) Facts: Squatters around San Jose Airport in Occidental Mindoro were relocated in NFA lot. Actual occupants of lot filed forcible entry complaint against relocated families and Mindoro Governor Josephine Sato. Plaintiffs won in MTC. RTC affirmed. Sato filed notice of appeal. CA dismissed appeal for being wrong remedy and ordered entry of judgment. MTC issued writ of execution. Sato filed certiorari and prohibition with CA which was dismissed. Sato filed MR on the ground that MTC had no jurisdiction because the squatters were relocated on a different lot. CA granted MR and dismissed plaintiffs complaint for forcible entry. Ruling: SC reversed CA decision issue of jurisdiction never raised before MTC, RTC and CA. Raised for the first time in MR. .Party assailing jurisdiction of court must raise it at the first opportunity. While an order or decision rendered without jurisdiction is a total nullity and may be assailed at any stage, a party’s ACTIVE PARTICIPATION in the proceedings. without questioning the jurisdiction until an adverse resolution is issued will bar or estop such party from attacking the court’s jurisdiction. Settled rule: a party cannot invoke the jurisdiction of the court to secure affirmative relief against his opponent and after failing to obtain such relief, repudiate such jurisdiction. In Tijam vs. Sibonghanoy (G.R. No. L 21450 April 15, 1968) the defense of lack of jurisdiction of the court that rendered the questioned ruling was held to be barred by estoppel by laches. It was ruled that the lack of jurisdiction having been raised for the first time in a motion to dismiss filed almost fifteen (15) years after the questioned ruling had been rendered, such a plea may no longer be raised for being barred by laches In Calimlim vs. Ramirez (G.R. No. L 34362 November 19, 1982) ,despite the fact that the one who benefited from the plea of lack of jurisdiction was the one who invoked the court's jurisdiction, and who later obtained an adverse judgment therein, we refused to apply the ruling in Sibonghanoy. The Court accorded supremacy to the time-honored principle that the issue of jurisdiction is not lost by waiver or by estoppel. C. Jurisdiction over the issues 1. Authority to try and decide the issues raised by the pleadings of the parties. 2. Conferred by the PLEADINGS or EXPRESS CONSENT of the parties. 3. An issue not duly pleaded may be tried and decided if no timely objection is made by the parties. 4. In certain cases, as in probate proceedings, jurisdiction over the issues is conferred by law. D. Jurisdiction over the res or property in litigation Acquired by the court over the property or thing in contest, and is obtained by seizure under legal process of the court. May result either from the SEIZURE of thing under legal process whereby it is brought into actual custody of law, or INSTITUTION of legal proceedings whereby the power of the court over the thing is recognized and made effective. E. Jurisdiction of Courts 1. Supreme Court A. Original Jurisdiction 1. Exclusive Petitions for issuance of writs of certiorari, prohibition, and mandamus against the following: a. Court of Appeals b. Commission on Elections En Banc c. Commission on Audit (Sec. 7, Art. IX A, 1987 Constitution) d. Sandiganbayan 7 www.chanroblesbar.com : www.chanroblesbar.com.ph

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e. Court of Tax Appeals En Banc f. Ombudsman in criminal and non administrative disciplinary cases 2. Concurrent a. with Court of Appeals 1) Petitions for writs of certiorari, prohibition, and mandamus against the Civil Service Commission 2) Petitions for writs of certiorari, prohibition and mandamus against the National Labor Relations Commission under the Labor Code (Sec. 9, Batas 129 [1983], as amended by Rep. Act No. 7902 [1995], St. Martins Funeral Homes vs. National Labor Relations Commission, G.R. No. 130866, September 16, 1998, 295 SCRA 494) b. with Court of Appeals and Regional Trial Courts 1) Petitions for habeas corpus and quo warranto 2) Actions brought to prevent and restrain violations of laws concerning monopolies and combinations in restraint of trade (Sec. 17, Rep. Act No. 296 [1948], as amended by Rep. Act No. 5440 [1968]) c. with Court of Appeals, Sandiganbayan and Regional Trial Courts 1) Petitions for certiorari, prohibition and mandamus relating to an act or omission of a municipal trial court, or of a corporation, a board, an officer or person 2) Petitions for issuance of writ of amparo (Sec. 3, A.M. No. 07 9 12 SC or The Rule on the Writ of Amparo, effective October 24, 2007) 3) Petitions for issuance of writ of habeas data (Sec. 3, A.M. No. 08 1 16 SC effective February 2, 2008) d. with Regional Trial Courts Actions affecting ambassadors and other public ministers and consuls (Sec. 5[1], Article VIII, 1987 Constitution; Sec. 21[2], Batas Blg. 129 [1983]) B. Appellate Jurisdiction 1. Ordinary Appeal From the Court of Appeals, in all criminal cases involving offenses for which the penalty imposed is reclusion perpetua or life imprisonment; or a lesser penalty is imposed for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more severe offense for which the penalty of death is imposed (Sec. 13[c], Rule 124, as amended by A.M. No. 00 5 03 SC, effective October 15, 2004, Sec. 13[b], Rule 124) 2. Petition for Review on Certiorari a. Appeals from Court of Appeals (Sec. 17, Rep. Act No. 296 [1948], as amended by Rep. Act No. 5440 [1969]; Sec. 5[2], Article VIII, 1987 Constitution; Rule 45, 1997 Rules of Civil Procedure) b. Appeals from the Sandiganbayan on pure questions of law, except where the penalty imposed is reclusion perpetua, life imprisonment, or death (Sec. 7, Pres. Decree No. 1606 [1979], as amended by Rep. Act No. 8249 [1997]; Nunez vs. Sandiganbayan, Nos. L 50581 50617, January 20, 1982, 111 SCRA 433; Rule 45, ibid. ) c. Appeals from judgments or final orders of Regional Trial Courts exercising original jurisdiction in the following: 1) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, 8 www.chanroblesbar.com : www.chanroblesbar.com.ph

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proclamation, order, instruction, ordinance, or regulation is in question; 2) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto; 3) All cases in which the jurisdiction of any lower court is in issue; 4) All cases in which only an error or question of law is involved. (Sec. 5[2 a, b, c, and e], Article VIII, 1987 Constitution; Sec. 17, Rep. Act No. 296 [1948], as amended; Sec. 9[3], Batas Pambansa Blg. 129 [1983]; Rule 45, ibid. ; Sec. 2[c], Rule 41; Sec. 3[e], Rule 122) d. Appeals from decisions or final resolutions of the Court of Tax Appeals en banc (Rule 16, Sec. 1, A.M. No. 05 11 07 CTA or The Revised Rules of the Court of Tax Appeals; Sec. 1, Rule 45, as amended by A.M. No. 07 7 12 SC dated December 12, 2007; See also Rep. Act No. 9282 [2004]) 3. Petition for certiorari filed within thirty (30) days from notice of the judgment/ final order/ resolution sought to be reviewed against the following: (Rule 64, 1997 Rules of Civil Procedure) a. Commission on Elections (Sec. 7, Article IX A, 1987 Constitution; Aratuc vs. COMELEC, No. L 49705 09, February 8, 1979, 88 SCRA 251) b. Commission on Audit (Ibid., 1987 Constitution) 2. Court of Appeals A. Original Jurisdiction 1. Exclusive a. Actions for annulment of judgments of Regional Trial Courts (Sec. 9[2], Batas Blg. 129 [1983]; Rule 47, 1997 Rules of Civil Procedure) b. Petitions for certiorari, prohibition, and mandamus involving an act or omission of a quasi judicial agency, unless otherwise provided by law (Sec. 4, Rule 65, as amended by A.M. No. 07 7 12 SC dated December 12, 2007) 2. Concurrent a. with Supreme Court 1) Petitions for writs of certiorari, prohibition, and mandamus against the Civil Service Commission (Rep. Act No. 7902 [1995]) 2) Petitions for writs of certiorari, prohibition and mandamus against the National Labor Relations Commission under the Labor Code (Sec. 9, Batas 129 [1983], as amended by Rep. Act No. 7902 [1995], St. Martins Funeral Homes vs. National Labor Relations Commission, G.R. No. 130866, September 16, 1998, 295 SCRA 494) b. with Supreme Court and Regional Trial Courts 1) Petitions for habeas corpus and quo warranto 2) Actions brought to prevent and restrain violations of laws concerning monopolies and combinations in restraint of trade (Sec. 17, Rep. Act No. 296 [1948], as amended by Rep. Act No. 5440 [1968]) c. with Supreme Court, Sandiganbayan, and Regional Trial Courts 1) Petitions for certiorari, prohibition and mandamus relating to an act or omission of a municipal trial court, or of a corporation, a board, an officer, or person 2) Petitions for issuance of writ of amparo (Sec. 3, A.M. No. 07 9 12 SC or The Rule on the Writ of Amparo, effective October 24, 2007) 3) Petitions for issuance of writ of habeas data (Sec. 3, A.M. No. 08 1 16 SC, effective February 2, 2008) B. Appellate Jurisdiction 1. Ordinary Appeal 9 www.chanroblesbar.com : www.chanroblesbar.com.ph

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a. Appeals from Regional Trial Courts, except those appealable to the Supreme Court under b. Appeals from Regional Trial Courts on constitutional, tax, jurisdictional questions involving questions of fact which should be appealed first to the Court of Appeals (Sec. 17, subparagraph 4 of the fourth paragraph of Rep. Act No. 296 [1948] as amended, which was not intended to be excluded by Sec. 9[3], Batas Pambansa Blg. 129 [1983]) c. Appeals from decisions and final orders of the Family Courts (Sec. 14, Rep. Act No. 8369 [1997]) d. Appeals from Regional Trial Courts in criminal cases, where the penalty imposed is reclusion perpetua, or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of reclusion perpetua or life imprisonment is imposed (Sec. 3[c], Rule 122, as amended by A.M. No. 00 5 03 SC, effective October 15, 2004; People vs. Mateo, G.R. Nos. 147678 87, July 7, 2004, 433 SCRA 640) e. Direct Appeal from land registration and cadastral cases decided by metropolitan trial courts, municipal trial courts, and municipal circuit trial courts based on their delegated jurisdiction 2. Petition for certiorari against decisions and final resolutions of the National Labor Relations Commission (A. M. No. 99 2 01 SC; St. Martin Funeral Homes vs. National Labor Relations Commission, G.R. No. 13086, September 16, 1998, 295 SCRA 494; Torres, et. al. vs. Specialized Packaging Development Corp., et. al. , G.R. No.149634, July 6, 2004, 433 SCRA 455) 3. Automatic review in cases where the Regional Trial Courts impose the death penalty (Secs. 3[d] and 10, Rule 122, as amended by A.M. No. 00 5 03 SC, effective October 15, 2004; People vs. Mateo, supra) 4. Petition for review a. Appeals from Regional Trial Courts in cases decided by the RTC in the exercise of its appellate jurisdiction (Sec. 22, Batas Blg. 129 [1983]; Rule 42, 1997 Rules of Civil Procedure; Sec. 3[b], Rule 122) b. Appeals from decisions of the Regional Trial Courts acting as Special Agrarian Courts in cases involving just compensation to the landowners concerned (Land Bank of the Philippines vs. De Leon, G. R. No. 143275, September 10, 2002, 388 SCRA 537) c. Appeals from awards, judgments, final orders, or resolutions of, or authorized by, quasi judicial agencies in the exercise of their quasi judicial functions. Among these are: CSC, GSIS, NEA, CIAC, SEC, DAR, OP, CBAA, BPTTT, ERC, LRA, CAB, BOI, PAEC, SSS, IC, ECC, Voluntary Arbitrator d. Appeals from the Office of the Ombudsman in administrative disciplinary cases (A.M. No. 99 2 02 SC; Fabian vs. Desierto, G.R. No. 129742, September 16, 1998, 295 SCRA 470) 3. Court of Tax Appeals A. Exclusive appellate jurisdiction 1. Decisions of the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the National Internal Revenue or other laws administered by the Bureau of Internal Revenue; 2. Inaction by the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relations thereto, or other matters arising under the National Internal Revenue Code or other laws administered by the Bureau of Internal Revenue, where the National Internal Revenue Code provides a specific period of action, in which case the inaction shall be deemed a denial; 10 www.chanroblesbar.com : www.chanroblesbar.com.ph

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3. Decisions, orders or resolutions of the Regional Trial Courts in local tax cases originally decided or resolved by them in the exercise of their original or appellate jurisdiction; 4. Decisions of the Commissioner of Customs in cases involving liability for customs duties, fees or other money charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or other matters arising under the Customs Law or other laws administered by the Bureau of Customs; 5. Decisions of the Central Board of Assessment Appeals in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals; 6. Decisions of the Secretary of Finance on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs which are adverse to the Government under Sec. 2315 of the Tariff and Customs Code; 7. Decisions of the Secretary of Trade and Industry, in the case of nonagricultural product, commodity or article, and the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping and countervailing duties under Sec. 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures under Republic Act No. 8800, where either party may appeal the decision to impose or not to impose said duties. B. Jurisdiction over cases involving criminal offenses: 1. Exclusive original jurisdiction over all criminal offenses arising from violations of the National Internal Revenue Code or Tariff and Customs Code and other laws administered by the Bureau of Internal Revenue or the Bureau of Customs: Provided, however, That offenses or felonies mentioned in this paragraph where the principal amount of taxes and fees, exclusive of charges and penalties, claimed is less than One million pesos (P1,000,000.00) or where there is no specified amount claimed shall be tried by the regular courts and the jurisdiction of the CTA shall be appellate. Any provision of law or the Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability for taxes and penalties shall at all times be simultaneously instituted with, and jointly determined in the same proceeding by the CTA, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filling of such civil action separately from the criminal action will be recognized. 2. Exclusive appellate jurisdiction in criminal offenses0 a. Over appeals from the judgments, resolutions or orders of the Regional Trial Courts in tax cases originally decided by them, in their respective territorial jurisdictions. b. Over petitions for review of the judgments, resolutions or orders of the Regional Trial Courts in the exercise of their appellate jurisdiction over tax cases originally decided by the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in their respective jurisdiction. C. Jurisdiction over tax collection cases 1. Exclusive original jurisdiction in tax collection cases involving final and executory assessments for taxes, fees, charges and penalties: Provided, however, That collection cases where the principal amount of taxes and fees, exclusive of charges and penalties, claimed is less than One million pesos (P1,000,000.00) shall be tried by the proper Municipal Trial Court, Metropolitan Trial Court and Regional Trial Court. 2. Exclusive appellate jurisdiction in tax collection cases: a. Over appeals from the judgments, resolutions or orders of the Regional Trial Courts in tax collection cases originally decided by them, in their respective territorial jurisdictions. b. Over petitions for review of the judgments, resolutions or orders of the Regional Trial Courts in the exercise of their appellate jurisdiction over tax collection cases originally decided by the Metropolitan Trial Courts, Municipal Trial Courts and Municipal 11 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Circuit Trial Courts, in their respective jurisdiction. (Sec. 7, RA 1125, amended by RA 9282) 4. Sandiganbayan A. Original Jurisdiction 1. Exclusive a. Violation of Rep. Act No. 3019 [1960] (Anti Graft) , Rep. Act No. RA 1379 [1955] and Chapter II, Sec. 2, Title VII of Revised Penal Code; and other offenses committed by public officials and employees in relation to their office, and private individuals charged as co principals, accomplices, and accessories including those employed in government owned or controlled corporations, where one or more of the accused are officials occupying the following positions in government, whether in a permanent, acting, or interim capacity, at the time of the commission of the offense: a. Officials of the Executive Branch xxx classified as salary grade 27 or higher xxx specifically including xxx b. Members of Congress xxx c. Members of the Judiciary xxx d. Members of Constitutional Commissions xxx e. All other national and local officials classified as salary grade 27 and higher In cases where none of the accused is occupying the above positions, the original jurisdiction shall be vested in the proper Regional Trial Court or Metropolitan Trial Court, etc., as the case may be, pursuant to their respective jurisdictions. (Sec. 2, Rep. Act No. 7975 [1995], as amended by Rep. Act No. 8249 [1997] In cases where there is no specific allegation of facts showing that the offense was committed in relation to the public office of the accused, the original jurisdiction shall also be vested in the proper Regional Trial Court or Metropolitan Trial Court, etc., as the case may be. (Lacson vs. Executive Secretary, G.R. No. 128096, January 20, 1999, 310 SCRA 298) b. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14, and 14 A. (Sec. 2, Rep. Act No. 7975 [1995] as amended by Rep. Act No. 8249 [1997]). c. Violations of Rep. Act No. 9160, or Anti Money Laundering Act of 2001, as amended by Rep. Act No. 9194, when committed by public officers and private persons who are in conspiracy with such public officers. 2. Concurrent with Supreme Court Petitions for issuance of writs of certiorari, prohibition, mandamus, habeas corpus, and injunction and other ancillary writs in aid of its appellate jurisdiction, including quo warranto arising in cases falling under said Executive Order Nos. 1, 2, 14, and 14 A. (Ibid., as amended by Rep. Act No. 8249 [1997]) 3. Concurrent with Supreme Court, Court of Appeals and Regional Trial Courts a. Petitions for writ of amparo and writ of habeas data when action concerns public data files of government offices (Sec. 3, A.M. No. 07 9 12 SC or The Rule on the Writ of Amparo, effective October 24, 2007; Sec. 3, A.M. No. 08 1 16 SC, effective February 2, 2008) b. Petitions for certiorari, prohibition, and mandamus, relating to an act or omission of a Municipal Trial Court, corporation, board, officer, or person (Sec. 4, Rule 65, as amended by A.M. No. 07 7 12 SC dated December 12, 2007) B. Appellate Jurisdiction Decisions and final orders of Regional Trial Courts in the exercise of their original or appellate jurisdiction under Pres. Decree No. 1606 [1979], as amended, shall be appealable to the Sandiganbayan in the manner provided by Rule 122 of the Rules of Court. (Sec. 5, Rep. Act No. 8249 [1997])

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5. Regional Trial Courts A. Original Jurisdiction 1. Civil a. Exclusive 1) Subject of the action not capable of pecuniary estimation; Actions not capable of pecuniary estimation 1. Where it is primarily for the recovery of a SUM OF MONEY, the claim is considered capable of pecuniary estimation jurisdiction, whether in the MTC or RTC, would depend on the AMOUNT of the claim. 2. Where the basic issue is other than the right to recover a sum of money, or where the money claim is purely incidental to, or a consequence of the principal relief sought, the subject of litigation may not be estimated in terms of money jurisdiction exclusively of RTC. Exs. Expropriation specific performance support foreclosure of mortgage annulment of judgment actions questioning the validity of a mortgage annulment of deed of conveyance rescission 3. While actions under Sec. 33(3) of B.P. 129 are also incapable of pecuniary estimation, the law specifically mandates that they are cognizable by the MTC, METC, or MCTC where the assessed value of the real property involved does not exceed P20,000.00 in Metro Manila, or P50,000.00, if located elsewhere. (Russel vs. Vestil, G.R. No. 119347, March 17, 1999). 2) Actions involving title to, or possession of real property or any interest therein where assessed value of property exceeds P20,000.00 (P50,000.00 in Metro Manila) , excluding forcible entry and unlawful detainer 3) Actions in admiralty and maritime jurisdiction where demand or claim exceeds P300,000.00 (P400,000.00 in Metro Manila) 4) Matters of probate, testate and intestate where. gross value of estate exceeds P300,000.00 (P400,000.00 in Metro Manila) 5) Cases not within exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi judicial functions. 6) All other cases where demand exclusive of interests, damages of whatever kind, attorney’s fees, litigations expenses and cost, or value of property in controversy exceeds P300,000.00 (P400,000.00 in Metro Manila)

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7) Additional original jurisdiction transferred under Sec. 5.2. of the Securities Regulation Code. 8) Application for issuance of writ of search and seizure in civil actions for infringement of intellectual property rights (Sec. 3, A.M. No. 02 1 06 SC, effective February 15, 2002) 9) Violations of Rep. Act No. 9160 or Anti Money Laundering Act of 2001, as amended by Rep. Act No. 9194. b. Concurrent 1) with Supreme Court Actions affecting ambassadors and other public ministers and consuls (Sec. 21[1], Batas Blg. 129 [1983]) 2) with Supreme Court and Court of Appeals Petitions for habeas corpus and quo warranto (Sec. 5 [1], Article VIII, 1987 Constitution) 3) with Supreme Court, Court of Appeals, and Sandiganbayan a) Petitions for certiorari, prohibition, and mandamus, if they relate to an act or omission of a municipal trial court, corporation, board, officer, or person (Sec. 4, Rule 65, as amended by A.M. No. 07 7 12 SC, dated December 12, 2007) b) Petitions for writ of amparo and writ of habeas data (Sec. 3, A.M. No. 07 9 12 SC or The Rule on the Writ of Amparo, effective October 24, 2007; Sec. 3, A.M. No. 08 1 16 SC, effective February 2, 2008) 4) with metropolitan trial courts, municipal trial courts, and municipal circuit trial courts Application for Protection Order under Sec. 10, Rep. Act No. 9282, unless there is a Family Court in the residence of petitioner. 5) with Insurance Commission Claims not exceeding PhP 100,000.00 (Sec. 416, Insurance Code [1974], Pres. Decree No. 612 [1975]. Applicable if subject of the action is not capable of pecuniary estimation; otherwise, jurisdiction is concurrent with Metropolitan Trial Court, etc. 2. Criminal A. Exclusive Criminal cases not within the exclusive jurisdiction of any court, tribunal, or body. (Sec. 20, Batas Blg. 129 [1983]). These include criminal cases where the penalty provided by law exceeds six (6) years imprisonment irrespective of the fine. (Rep. Act No. 7691 [1994]). These also include criminal cases not falling within the exclusive original jurisdiction of the Sandiganbayan, where none of the accused are occupying positions corresponding to salary grade 27 and higher. (Rep. Act No. 7975 [1995] and Rep. Act No. 8249 [1997]). But in cases where the only penalty provided by law is a fine, the Regional Trial Courts have jurisdiction if the amount of the fine exceeds PhP 4,000. (Rep. Act No. 7691 [1994] as clarified by Administrative Circular No. 09 94 dated June 14, 1994). B. Appellate Jurisdiction All cases decided by lower courts (metropolitan trial courts, etc.) in their respective territorial jurisdictions. (Sec. 22, Batas Blg. 129 [1983])

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6. Family Courts A. Exclusive and Original Jurisdiction 1. Criminal cases where one or more of the accused is below eighteen (18) years of age but not less than nine (9) years of age, when one or more of the victims is a minor at the time of the commission of the offense: Provided, That if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may have incurred. The sentence, however, shall be suspended without need of application pursuant to Presidential Decree No. 1903, otherwise known as The Child and Youth Welfare Code; (RA 8369 [Family Courts Act of 1997]) 2. Petitions for guardianship, custody of children, habeas corpus in relation to the latter; (Sec. 3, A.M. No. 03 04 04 SC, effective May 15, 2003; Sec. 3, A.M. No. 03 02 05 SC, effective April 15, 2003) 3. Petitions for adoption of children and the revocation thereof; (Secs. A.20 and B.28, A.M. No. 02 6 02 SC, effective August 22, 2002; See also Rep. Act No. 9523 or An Act Requiring Certification of the Department of Social Welfare and Development to Declare A Child Legally Available for Adoption as a Prerequisite for Adoption Proceedings, Amending for this Purpose Certain Provisions of Republic Act No. 8552, otherwise known as The Domestic Adoption Act of 1998, Republic Act No. 8043, otherwise known as The Inter Country Adoption Act of 1995, Presidential Decree No. 603, otherwise known as The Child and Youth Welfare Code, and for Other Purposes, approved on March 12, 2009) 4. Complaints for annulment of marriage, declaration of nullity of marriage, and those relating to marital status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains; (Sec. 2, A.M. No. 02 11 10 SC, effective March 15, 2003) 5. Petitions for involuntary commitment of a child, for removal of custody against child placement or child caring agency or individual, and for commitment of disabled child; (Secs. 4[b], 5[a][ii], 6[b], A.M. No. 02 1 19 SC, effective April 15, 2002) 6. Cases against minors cognizable under Rep. Act No. 9165, or The Comprehensive Dangerous Drugs Act of 2002; (See also A.M. No. 07 8 2 SC, effective November 5, 2007) 7. Violation of Rep. Act No. 7610 [1991], otherwise known as the Special Protection of Children Against Child Abuse, Exploration and Discrimination Act, as amended by Rep. Act No. 7658 [1993] and as further amended by Rep. Act No. 9231 [2003]; 8. (RA 9775 [Anti Child Pornography Act of 2009] 9. Cases of violence against women and their children under Rep. Act No. 9262, otherwise known as Anti Violence Against Women and their Children Act of 2004, including applications for Protection Order under the same Act; 10 Criminal cases involving juveniles if no preliminary investigation is required under Sec. 1, Rule 112 of Revised Rules on Criminal Procedure (Sec. 1, A.M. No. 02 1 18 SC, effective April 15, 2002) 7. Municipal Trial Courts/ Metropolitan Trial Courts A . Original Jurisdiction 1. Civil a. Exclusive 1) Actions involving personal property valued at not more than PhP 300,000.00 (PhP 400,000.00 in Metro Manila) 15 www.chanroblesbar.com : www.chanroblesbar.com.ph

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2) Actions demanding sums of money not exceeding PhP 300,000.00 (Php4000,000.00 in Metro Manila) ; in both cases, exclusive of interest, damages, attorney’s fees, litigation expenses and costs, the amount of which must be specifically alleged, but the filing fees thereon shall be paid. These include admiralty and maritime cases; 3) Actions involving title or possession of real property where the assessed value does not exceed PhP 20,000.00 (Php 50,000.00 in Metro Manila) ; 4) Provisional remedies in principal actions within their jurisdiction, and in proper cases, such as preliminary attachment, preliminary injunction, appointment or receiver and delivery of personal property (Rule 57, 58, 59, and 60) ; 5) Forcible entry and unlawful detainer, with jurisdiction to resolve issue of ownership to determine issue of possession; 6) Probate proceedings, testate or intestate, where gross value of estate does not exceed PhP 300,000.00 or in Metro Manila PhP 400,000.00; (Sec. 33, Batas Blg. 129 [1983] as amended by Rep. Act No. 7691 [1994]) 7) Inclusion and exclusion of voters. (Sec. 38, Batas Blg. 881, Omnibus Election Code of the Philippines [1985]). b. Delegated Cadastral and land registration cases assigned by Supreme Court where there is no controversy or opposition and in contested lots valued at more than PhP 100,000 (Sec. 34, Batas Blg. 129 [1983] as amended by Rep. Act No. 7691 [1994]) c. Special Petition for habeas corpus in the absence of all Regional Trial Court judges. (Sec. 35, Batas Blg. 129 [1983]) 2. Criminal a. Exclusive 1) All violations of city or municipal ordinances committed within their respective territorial jurisdictions; 2) All offenses punishable with imprisonment of not more than six (6) years irrespective of the fine and regardless of other imposable accessory or other penalties and the civil liability arising therefrom; provided, however, that in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction. (Sec. 32, Batas Blg. 129 [1983] as amended by Rep. Act No. 7691 [1994]) 3) All offenses committed not falling within the exclusive original jurisdiction of the Sandiganbayan where none of the accused is occupying a position corresponding to salary grade 27 and higher. (As amended by Rep. Act No. 7975 [1995] and Rep. Act No. 8249 [1997]) 4) In cases where the only penalty provided by law is a fine not exceeding PhP 4,000, the Metropolitan Trial Courts, etc. have 16 www.chanroblesbar.com : www.chanroblesbar.com.ph

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jurisdiction. (Administrative Circular No. 09 94, dated June 14, 1994) b. Special Applications for bail in the absence of all Regional Trial Court judges. (Sec. 35, Batas Blg. 129 [1983]) 8. Shariah Courts Presidential Decree (P.D.) No. 1083 created the Sharia Courts, which have limited jurisdiction over the settlement of issues, controversies or disputes pertaining to the civil relations between and among Muslim Filipinos. Specifically, these controversies require the interpretation of laws on Persons, Family Relations, Succession, Contracts, and similar laws applicable only to Muslims. Despite the seeming exclusivity of the jurisdiction of the Sharia Courts with regard to controversies involving Muslims, the Supreme Court retains the power of review orders of lower courts through special writs (R.A. 6734, Art. IX, Sec.1). This review extends to decisions made by the Sharia Courts F. Jurisdiction over small claims; cases covered by the rules on Summary Procedure and Barangay Conciliation Small Claims Cases(A.M. No. 08 8 7 SC, effective October 1, 2008) All actions which are: (a) purely civil in nature where the claim of relief prayed for by the plaintiff is solely for payment or reimbursement or sum of money, and (b) the civil aspect of the criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule 111 of the Revised Rules of Criminal Procedure, where the value of the claim does not exceed Two Hundred Thousand Pesos (P200,000.00) , exclusive of interest and costs. Rule on Summary Procedure A. Civil Cases 1. All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where attorney's fees are awarded, the same shall not exceed twenty thousand pesos (P20,000.00). 2. All other cases, except probate proceedings, where the total amount of the plaintiff's claim does not exceed one hundred thousand pesos (P100,000.00) or, two hundred thousand pesos (P200,000.00) in Metropolitan Manila, exclusive of interest and costs. " (A.M. No. 02 11 09 SC, which took effect on November 25, 2002) B. Criminal Cases: 1. Violations of traffic laws, rules and regulations; 2. Violations of the rental law; 3. Violations of municipal or city ordinances; 4. Violations of Batas Pambansa Bilang 22 (Bouncing Checks Law) (A.M. No. 00 11 01 SC, which took effect on March 30, 2003) 5. All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding six months, or a fine not exceeding one thousand pesos (P1,000.00) , or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided, however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed ten thousand pesos (P10,000.00). Barangay Conciliation All disputes are subject to Barangay conciliation pursuant to the Revised Katarungang Pambarangay Law [formerly P. D. 1508, repealed and now replaced by Secs. 399 422, Chapter VII, Title I, Book III, and Sec. 515, Title I, Book IV, R.A. 7160, otherwise known as the Local Government Code of 1991], and prior recourse thereto is a pre condition before filing a complaint in court or any government offices, except in the following disputes: 17 www.chanroblesbar.com : www.chanroblesbar.com.ph

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[1] Where one party is the government, or any subdivision or instrumentality thereof; [2] Where one party is a public officer or employee and the dispute relates to the performance of his official functions; [3] Where the dispute involves real properties located in different cities and municipalities, unless the parties thereto agree to submit their difference to amicable settlement by an appropriate Lupon; [4] Any complaint by or against corporations, partnerships or juridical entities, since only individuals shall be parties to Barangay conciliation proceedings either as complainants or respondents [Sec. 1, Rule VI, Katarungang Pambarangay Rules]; [5] Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon; [6] Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one [1] year or a fine of over five thousand pesos (P5,000.00) ; [7] Offenses where there is no private offended party; [8] Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically the following: [a] Criminal cases where accused is under police custody or detention [See Sec. 412 (b) (1) , Revised Katarungang Pambarangay Law]; [b] Petitions for habeas corpus by a person illegally deprived of his rightful custody over another or a person illegally deprived of or on acting in his behalf; [c] Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support during the pendency of the action; and [d] Actions which may be barred by the Statute of Limitations. [9] Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice; [10] Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) [Secs. 46 & 47, R. A. 6657]; [11] Labor disputes or controversies arising from employer employee relations [Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended, which grants original and exclusive jurisdiction over conciliation and mediation of disputes, grievances or problems to certain offices of the Department of Labor and Employment]; [12] Actions to annul judgment upon a compromise which may be filed directly in court [See Sanchez vs. Tupaz, 158 SCRA 459]. G. Totality Rule [Note: This is out of place here] III. Civil Procedure A. Actions 1. Meaning of ordinary civil actions Civil action one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong (Rule 1, Sec. 3) May either be ordinary (Rules 1 56) or special (Rules 62 71) ; both are governed by the rules for ordinary actions, subject to the specific rules prescribed for special civil actions. 18 www.chanroblesbar.com : www.chanroblesbar.com.ph

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2. Meaning of special civil actions One by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong, but subject to specific rules. Examples: interpleader, declaratory relief, certiorari, prohibition, mandamus, quo warranto, eminent domain, foreclosure or mortgage, partition, forcible entry, unlawful detainer and contempt. 3. Meaning of criminal actions One by which the State prosecutes a person for an act or omission punishable by law. 4. Civil actions versus special proceedings Special proceedings a remedy by which a party seeks to establish a status, a right or a particular fact. 5. Personal actions and real actions[distinction important in determining venue] Kinds of civil action (As to cause or foundation) a. personal Seeks the recovery of personal property, enforcement of a contract or the recovery of damages. Venue: place where defendant or any of defendants resides or may be found, or where plaintiffs or any of plaintiffs resides, at the election of plaintiff. Transitory may be filed in any place or places where parties may reside. b. real Seeks the recovery of real property, or an action affecting title to property or for recovery of possession, or for partition, or condemnation of, or foreclosure of mortgage on real property. Venue: province or city where property or any part thereof lies. Local may be filed in a fixed place, where property or any part thereof lies. 6. Local and transitory actions Local Action One which is required by the Rules to be instituted in a particular place in the absence of an agreement to the contrary. Ex. Real action. Transitory One the venue of which is dependent generally upon the residence of the parties regardless of where the cause of action arose. Ex. Personal action. 7. Actions in rem, in personam and quasi in rem [distinction important in service of summons] Kinds of civil action (As to object) a. in personam Action against a person on the basis of his personal liability, or one affecting the parties alone, not the whole world, and the judgment thereon is binding only against the parties properly impleaded. Exs. forcible entry or unlawful detainer, recover ownership of land, recover damages, specific performance. b. in rem Action against the res or thing itself, instead of against the person. A real action may at the same time be an action in personam and not necessarily an action in rem. In rem to determine title to land, and the object of the suit is to bar indifferently all who might be minded to make an objection against the right sought to be established. Seeks judgment with respect thereto against the whole world. In personam concerns only the right, title and interest of the parties to the land, not the title of the land against the whole world. Exs. probate proceeding, cadastral proceeding, action affecting personal status of plaintiff (Rule 14, Sec. 15) , insolvency proceeding, land registration proceeding (not necessary to give personal notice to owners or claimants to vest court with 19 www.chanroblesbar.com : www.chanroblesbar.com.ph

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jurisdiction publication of notice brings in the whole world as a party in the case and vests court with jurisdiction to hear and decide the case). Contrast: in personam (a) cases involving auction sale of land for collection of delinquent taxes are in personam mere publication of notice not sufficient; (b) action to redeem, recover title to or possession of real property (not an action against the whole world). c. quasi in rem Differs from true action in rem individual is named as defendant, and purpose of proceeding is to subject his interest therein to the obligation or lien burdening the property. Neither strictly in personam nor in rem but it is an action in personam where a res is affected by the decision. Exs. partition, accounting under Rule 69 actions essentially for the purpose of affecting defendants interest in the property and not to render a judgment against him (Valmonte vs. CA, 252 SCRA 92 [1996]). INDEPENDENT CIVIL ACTION - Art. 33, Civil Code. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. B. Cause of Action 1. Meaning of cause of action Cause of action defined a cause of action is the act or omission by which a party violates a right of another (Rule 2, Sec. 2). Elements of cause of action: 1. legal right of plaintiff 2. corresponding obligation of defendant to respect or not to violate such right 3. act or omission of defendant which violates the legal right of plaintiff constituting a breach of the obligation of defendant to plaintiff 2. Right of Action versus Cause of action 1. Cause of action a. reason for bringing an action b. formal statement of the operative facts that give rise to remedial rights. c. matter of procedure and is governed by the pleadings filed by the parties d. not affected by affirmative defenses (fraud, prescription, estoppel, etc.) 2. Right of action a. remedy for bringing an action b. the remedial right to litigate because of the operative facts c. matter of right and depends on substantive law d. affected by affirmative defenses (fraud, prescription, estoppel, etc.) 3. Failure to state a cause of action Elements of a Cause of Action A cause of action exists if the following elements are present: 1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; 2) an obligation on the part of the named defendant to respect or not to violate such right; and 3) act or omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff 20 www.chanroblesbar.com : www.chanroblesbar.com.ph

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for which the latter may maintain an action for recovery of damages. (Parañaque Kings Enterprises, Inc. vs. Court of Appeals, G.R. No. 11538; February 16, 1997.) The fundamental test for failure to state a cause of action is whether, admitting the veracity of what appears on the face and within the four corners of the complaint, plaintiff is entitled to the relief prayed for. Stated otherwise, may the court render a valid judgment upon the facts alleged therein? Indeed, the inquiry is into the SUFFICIENCY, not the veracity of the material allegations. If the allegations in the complaint furnish sufficient basis on which it can be maintained, it should not be dismissed regardless of the defenses that may be presented by defendants. (AC Enterprise vs. Frabelle Properties Corp., G.R. No. 166744, November 2, 2006.) 4. Test of sufficiency of a cause of action How to determine cause of action by the FACTS ALLEGED in the complaint. Only issue: ADMITTING such alleged facts TO BE TRUE, may the court render a VALID JUDGMENT in accordance with the prayer in the complaint? In determining whether the complaint states a cause of action, the ANNEXES ATTACHED to the complaint may be considered, they being part of the complaint. 5. Splitting a single cause of action and its effects Rule 2, Sec. 4. Splitting a single cause of action; effect of. If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. Basic rule in filing of action (Rule 2, Secs. 3 4) 1. For one cause of action (one delict or wrong) , file only ONE ACTION or suit. Generally, NO SPLITTING A SINGLE CAUSE OF ACTION. Reasons: a. to avoid multiplicity of suits; b. to minimize expenses, inconvenience and harassment. 2. Remedy against splitting a single cause of action (two complaints separately filed for one action) defendant may file: a. motion to dismiss on the ground of (1) litis pendentia, if first complaint is still pending (Rule 16, Sec. 1 [e]) (2) res judicata, if first complaint is terminated by final judgment (Rule 16, Sec. 1 [f]) b. answer alleging either of above grounds as affirmative defense (Rule 16, Sec. 6) If defendant fails to raise ground on time, he is deemed to have WAIVED them. Splitting must be questioned in the trial court; cannot be raised for the first time on appeal. Splitting a cause of action prohibited May a lessee file with MeTC an action for forcible entry and damages against the lessor and a separate suit with RTC for moral and exemplary damages plus actual and compensatory damages based on the same forcible entry? NO. Claims for damages sprung from the main incident being heard before MeTC. Unlawful taking or detention of property of another is only one single cause of action regardless of number of rights that may have been violated. All such rights should be alleged in a single complaint as constituting one single cause of action (Progressive Development Corp. vs. CA, 301 SCRA 637 [1999]) The cause of action in the earlier Annulment Case is the alleged nullity of the REM (due to its allegedly falsified or spurious nature) which is allegedly violative of Good lands right to the mortgaged property. It serves as the basis for the prayer for the nullification of the REM. The Injunction Case involves the same cause of action, inasmuch as it also invokes the nullity of the REM as the basis for the prayer for the nullification of the extrajudicial foreclosure and for injunction against consolidation of title. While the main relief sought in the Annulment Case (nullification of the REM) is ostensibly different from the main relief sought in the Injunction Case (nullification of the extrajudicial foreclosure and injunction against consolidation of title) , the 21 www.chanroblesbar.com : www.chanroblesbar.com.ph

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cause of action which serves as the basis for the said reliefs remains the same the alleged nullity of the REM. Thus, what is involved here is the third way of committing forum shopping, i.e., filing multiple cases based on the same cause of action, but with different prayers. (Asia United Bank vs. Goodland Company, Inc., G.R. No. 191388, March 9, 2011) 6. Joinder and misjoinder of causes of action Joinder of causes of action is the assertion of as many causes of action as a party may have against an opposing party in one pleading alone. It is not compulsory, but merely permissive. (Rule 2, Sec. 5) What are the requisites for joinder of causes of action? (Rule 2, Sec. 5) 1. Compliance with the rule on permissive joinder of parties under Rule 3, Sec. 6. Must arise out of the same transaction or series of transactions AND there is a common question of law or fact. Ex. A, owner of a property, can file an ejectment complaint against B, C and D who are occupying his property without his consent. 2. A party cannot join in an ordinary action any of the special civil actions. Reason: special civil actions are governed by special rules. Ex. P500,000 collection cannot be joined with partition because the latter is a special civil action. 3. Where the causes of action are between the SAME PARTIES but pertain to DIFFERENT VENUES OR JURISDICTIONS, the joinder may be allowed in the RTC, provided ONE OF THE CAUSES OF ACTION falls within the jurisdiction of the RTC and the venue lies therein. Exception: ejectment case may not be joined with an action within the jurisdiction of the RTC as the same comes within the exclusive jurisdiction of the MTC. Unless the defendant did not object thereto, answered the complaint, and went to trial because he is precluded from assailing any judgment against him on the ground of estoppel or laches (Valderrama vs. CA, 252 SCRA 406 [1996]). N.B. An action for recovery of possession of property is a real action. Thus, it should be filed in the place where the property is located, pursuant to Rule 4, Section 1. (Decena vs. Piquero, G.R. No. 155736, March 31, 2005). N.B. As to joinder in the MTC, it must have jurisdiction over ALL THE CAUSES OF ACTION and must have common venue. 4. Where the claims in all the causes of action are principally for recovery of money, jurisdiction is determined by the AGGREGATE OR TOTAL AMOUNT claimed (totality rule). N.B. The totality rule applies only to the MTC totality of claims cannot exceed the jurisdictional amount of the MTC. There is no totality rule for the RTC because its jurisdictional amount is without limit. Exc. In tax cases where the limit is below P1 million. Amounts of P1 million or more fall within the jurisdiction of the CTA. Misjoinder of causes of action not ground for dismissal of an action A misjoined cause may, on motion of a party or on the initiative of the court, be severed and proceeded with separately (Rule 2, Sec. 6). Note: Unlike splitting of a cause of action, a misjoinder is NOT a ground for the dismissal of an action. C. Parties to Civil Actions 1. Real Parties in interest; Indispensable parties; Representatives as parties; Necessary parties; Indigent Parties; Alternative defendants Real Parties in interest;

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Who are real parties in interest? A real party in interest is the party who stands to be BENEFITED or INJURED by the judgment in the suit or the party entitled to the avails of the suit. Unless authorized by law or the Rules of Court, every action must be prosecuted and defended in the name of the real party in interest. (Rule 3, Sec. 2). A real party in interest PLAINTIFF is one who has a LEGAL RIGHT, while a real party in interest DEFENDANT is one who has a correlative LEGAL OBLIGATION whose act or omission violates the legal right of the former. Real interest a present substantial interest, as distinguished from a mere expectancy, or a future, contingent, subordinate or consequential interest. Minors represented by their parents were held as real parties in interest to file an action to annul timber licenses issued by the state, under the following principles: a. inter generational responsibility b. inter generational justice c. right of the people to a balanced and healthful ecology d. minors represent themselves and the generations to come (Oposa vs. Factoran, G.R. No. 101083, July 30,1993) An action must be brought in the name but not necessarily by the real party in interest. In fact, the practice is for an attorney in fact to bring action in the name of the plaintiff. Standing to sue or locus standi one who is directly affected by and whose interest is IMMEDIATE AND SUBSTANTIAL in the controversy has the standing to sue. In other words, he is a real party in interest. He has a personal stake in the outcome of the controversy. In a case involving constitutional issues, standing or locus standi means a personal interest in the case such that the party has sustained or will sustain DIRECT INJURY as a result of the government act that is being challenged. Who are allowed to sue under this concept of locus standi? (Kilosbayan, Inc. vs. Morato, 246 SCRA 540 [1995]) 1. Taxpayers where there is a claim of illegal disbursement of public funds. 2. Voters to question the validity of election laws because of their obvious interest in the validity of such laws. 3. Concerned citizens if the constitutional question they raise is of transcendental importance which must be settled early. 4. Legislators to question the validity of official action which they claim infringes on their prerogatives as legislators. Indispensable parties; Indispensable parties (Rule 3, Sec. 7) An indispensable party is one without whom NO FINAL DETERMINATION can be had of an action. He shall be joined either as plaintiff or defendant. His interests in the subject matter of the suit and in the relief sought are so bound up with that of the other parties that his LEGAL PRESENCE as party to the proceeding is an ABSOLUTE NECESSITY. Without the presence of indispensable parties to a suit or proceeding, the judgment of the court cannot attain real finality (Servicewide Specialists, Inc. vs. CA, 251 SCRA 70 [1997]). Examples of indispensable parties: 1. Vendors in an action to annul the sale 2. Lot buyers in an action for reconveyance of parcels of land which had already been subdivided 3. Co owners in an action for partition 23 www.chanroblesbar.com : www.chanroblesbar.com.ph

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4. Possessor of land in an action for recovery of possession Where the obligation of the parties is solidary, either of the parties is indispensable, and the other is not even a necessary party because complete relief is available from either. (Cerezo vs. Tuazon, G.R. N0. 141538, March 23, 200 Representatives as parties; Representative parties (Rule 3, Sec. 3) A representative party is one who represents or stands IN THE PLACE OF ANOTHER and who is allowed to PROSECUTE OR DEFEND an action for the beneficiary. The beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. Who are the representatives? 1.Trustee of an express trust 2. Guardian 3. Executor or administrator 4. Party authorized by law or the Rules of Court 5. Agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal. Necessary parties; Necessary parties (Rule 3, Sec. 8) A necessary or proper party is one who is not indispensable but who ought to be joined as party a. if COMPLETE RELIEF is to be accorded as to those already parties, or b. for a COMPLETE DETERMINATION or SETTLEMENT of the claim subject of the action. Their presence is necessary to adjudicate the whole controversy but whose interests are so far SEPARABLE that a final decree can be made in their absence without affecting them. Non inclusion of a necessary party does not prevent the court from proceeding in the action and the judgment is WITHOUT PREJUDICE to the rights of such necessary party. Examples of necessary parties: 1. Co debtor in a joint obligation 2. Subsequent mortgagees or lien holders in judicial foreclosure of mortgage 3. Possessor (tenant, etc.) in an action for recovery of ownership of land (the owner is the indispensable party) 4. Owner in an action to recover possession of land (the possessor is the indispensable party) Indigent Parties; Rule 3, Sec. 21. Indigent party. A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. The authority to litigate as an indigent party includes an exemption from the payment of: 1. Transcript of stenographic notes 2. Docket fees and other lawful fees Note: The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a LIEN on any judgment rendered in the case favorable to the indigent, unless otherwise provided (Rule 3, Sec. 21). 24 www.chanroblesbar.com : www.chanroblesbar.com.ph

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The guidelines for determining whether a party qualifies as an indigent litigant are provided for in Section 19, Rule 141, which reads: Sec. 19. Indigent litigants exempt from payment of legal fees. Indigent litigant (a) whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee and (b) who do not own real property with a fair market value as stated in the current tax declaration of more than three hundred thousand pesos (P300,000.00) shall be exempt from the payment of legal fees. Alternative defendants Rule 2, Sec. 13. Alternative defendants. Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other. Parties to an action(Rule 3, Sec. 1) 1. Plaintiff the claiming party, the counter claimant or the third (fourth, etc.) party plaintiff. 2. Defendant the original defending party, the defendant in a counterclaim (plaintiff) , the cross defendant (defendant in a cross claim) , or the third (fourth, etc.) party defendant. Parties to an action must be natural or juridical persons, possessed of LEGAL PERSONALITY, otherwise, no suit can be lawfully prosecuted by or against said persons. A dead person cannot be a plaintiff or defendant in an action, as he possesses NO LEGAL PERSONALITY to sue or be sued. In general, who may be party plaintiff or party defendant? 1. Natural persons a. Must be of legal age and with capacity to sue (Art. 37, Civil Code) b. Husband and wife shall sue and be sued jointly (Rule 3, Sec. 4) c. Minor or incompetent with the assistance of the father, mother, guardian, or if he has none, a guardian ad litem (Rule 3, Sec. 5) d. Non resident 2. Juridical persons Who are juridical persons? Art. 44, Civil Code 1) State and its political subdivisions 2) Other corporations, institutions and entities for public interest and purpose, created by law (government owned or controlled corporations) 3) Corporations, partnerships and entities for private interest and purpose to which the law grants a juridical personality. 4) Entities authorized by law (even if they lack juridical personality) the persons who organized such entity may be sued under the name by which they are generally or commonly known (Rule 3, Sec. 15) Classification of parties The parties to civil actions are classified as follows: 1. Real parties in interest (Rule 3, Sec. 2) 2. Representative parties (Sec. 3) 3. Indispensable parties (Sec. 7) 4. Necessary parties (Sec. 8)

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Lack of legal capacity to sue plaintiffs general disability to sue, such as on account of minority, insanity, incompetence, lack of juridical personality or any other general disqualifications of a party (Columbia Pictures, Inc. vs. CA, 261 SCRA 144 [1996]) Plaintiffs lack of legal capacity to sue is a ground for motion to dismiss (Rule 16, Sec. 1[d]). Ex. A foreign corporation doing business without a license lacks legal capacity to sue. Note: A sole proprietorship is not vested with juridical personality and cannot sue or file or defend an action. There is no law authorizing sole proprietorship to file a suit. A sole proprietorship does not possess a judicial personality separate and distinct from the personality of the owner of the enterprise. (Berman Memorial Park, Inc. vs. Francisco Cheng, G.R. No. 154630, May 6, 2005) As such, the proper caption should have been "Gerino Tactaquin doing business under the name and style of G.V.T. Engineering Services", as is usually done in cases filed involving sole proprietorships. (Tanvs. G.V.T. Engineering Services, Acting through its Owner/ Manager Gerino V. Tactaquin, G.R. No. 153057 August 7, 2006) Lack of personality to sue the fact that plaintiff is not the real party in interest. Plaintiffs lack of personality to sue is a ground for a motion to dismiss based on the fact that the complaint, on its face, states no cause of action (Rule 16, Sec. 1 [g]). (Evangelista vs. Santiago, 457SCRA 744 [2005]) 2. Compulsory and permissive joinder of parties Rule 3, Sec. 6. Permissive joinder of parties. All persons in whom or against whom any right to relief in respect to or arising out of the SAME TRANSACTION or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any QUESTION OF LAW OR FACT COMMON to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest. Rule 3, Sec. 7. Compulsory joinder of indispensable parties. Parties in interest without whom NO FINAL DETERMINATION can be had of an action shall be joined either as plaintiffs or defendants. 3. Misjoinder and non-joinder of parties Rule 3, Sec. 9. Non joinder of necessary parties to be pleaded. Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a WAIVER of the claim against such party. The non inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be WITHOUT PREJUDICE to the rights of such necessary party. JOINDER OF PARTIES Compulsory joinder of parties What is the effect of failure to include indispensable parties? The failure to include indispensable parties results in DISMISSAL of the action. Parties in interest without whom there can be no final determination of an action SHALL be joined either as plaintiffs or defendants (Rule 3, Sec. 7). Absence of indispensable parties renders all subsequent actions of the court NULL AND VOID. It results in lack of authority to act not only as to the party absent but also as those present (Domingo vs. Scheer, 421 SCRA 468 [2004]). 26 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Is failure to implead an indispensable party a ground for automatic dismissal of the action? NO. Neither misjoinder or non joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party on its own initiative at any stage of the action and on such terms as are just . Any claim against a misjoined party may be severed and proceeded with separately (Rule 3, Sec. 11). Procedure for dismissal if indispensable party is not impleaded a. The responsibility of impleading all the indispensable parties rests on the plaintiff. To avoid dismissal, the remedy is to implead the non party claimed to be indispensable. b. If plaintiff REFUSES to implead an indispensable party despite the order of the court, the complaint may be dismissed upon motion of defendant or upon the courts own motion. c. Only upon unjustified failure or refusal to obey the order to include is the action dismissed (Domingo vs. Scheer, supra). Permissive joinder of parties (Rule 3, Sec. 6) Persons may join as plaintiffs or may be joined as defendants when there is: 1. Right to relief by or against said persons in respect to or arising out of the SAME TRANSACTION or series of transactions (connected with the same subject matter of the suit) and 2. Question of law or fact COMMON to all such plaintiffs or to all such defendants in the action. Ex. In a damage suit by heirs of airline passengers who perished in a plane crash, all the heirs of the dead passengers may join as plaintiffs against the airline company. There is here a common question of fact and of law, although each has a SEPARATE, DISTINCT and DIFFERENT CLAIM as to amount from the others. They cannot file a class suit, where there is only ONE RIGHT OR CAUSE OF ACTION pertaining or belonging in common to many persons, not separately or severally to distinguish the individual. What are the effects of non-inclusion of a necessary party? (Rule 3, Sec, 9) The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a WAIVER of the claim against such party. Said non inclusion does not a. prevent the court from proceeding in the action, and b. the judgment rendered therein shall be c. WITHOUT PREJUDICE to the rights of such necessary party Third party complaint (Rule 6, Sec. 11) A third party complaint is a claim that a defending party may, with leave of court, file against a person NOT A PARTY to the action, called the third (fourth, etc.) party defendant for a. contribution b. indemnity c. subrogation or d. any other relief in respect of his opponents claim. > A third party complaint is an action actually independent of, and separate and distinct from plaintiffs complaint. Were it not for the Rules of Court, it would be necessary to file the action separately from the original complaint by the defendant against the third party (Associated Bank. vs. CA, 233 SCRA 137 [1994]) > A third party plaintiff may assert a cause of action against the third party defendant on a THEORY DIFFERENT from that asserted 27 www.chanroblesbar.com : www.chanroblesbar.com.ph

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by the plaintiff against the defendant. Ex. a defendant in a contract may join as third party defendant those liable to him in tort for the plaintiffs claim against him or directly to the plaintiff (Samala vs. Victor, 170 SCRA 453 [1989]). Special joinder modes Parties may also be joined in an action through three special joinder modes: a. class suits b. intervention c. interpleader Class suits and interpleader parties are joined at the inception of the suit. Involuntary because parties joined may or may not know that they are being joined. Intervention party is joined after the suit has been filed. Voluntary because a party asks for leave of court to be allowed to intervene. Intervention (Rule 19, Sec. 1) An act or proceeding by which a THIRD PERSON is permitted to become a party to an action or proceeding between other persons, and which results merely in the addition of a new party or parties to an original action. Purpose: to hear and determine at the same time all conflicting claims which may be made to the subject matter in litigation. Nature: It is not an independent proceeding, but merely an ancillary and supplemental one, which must be subordinate to the main proceedings. An intervenor is limited to the field of proceeding open to the main parties. Interpleader (Rule 62, Sec. 1) A remedy asking that the persons who claim the personal property or who consider themselves entitled to demand compliance with the obligation be required to LITIGATE AMONG THEMSELVES in order to determine finally who is entitled to one or the other. Indispensable element: conflicting claims upon the same subject matter are or may be made against the plaintiff interpleader who CLAIMS NO INTEREST in the subject matter or an interest which in whole or in part is NOT DISPUTED by the claimants. 4. Class Suit Class suit (Rule 3, Sec. 12) An action filed or defended by one or more parties for the benefit of parties who are so numerous that it is impracticable to bring them all before the court, involving a matter which is of common or general interest to such numerous persons. There should be only ONE RIGHT OR CAUSE OF ACTION pertaining or belonging in common to many persons, not separately or severally to distinguish the individuals. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. (Oposa vs. Factoran, G.R. No. 101083, July 30, 1993, 224 SCRA 792). The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen suit in environmental cases. The provision on citizen suits in the Rules collapses the traditional rule on personal and direct interest, on the principle that humans are stewards of nature. (Arigo vs. Swift, G.R. No. 206510, September 16, 2014)

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Individual suit, class suit, derivative suit (1) Where a stockholder or member is denied the right of inspection, his suit would be individual because the wrong is done to him personally and not to the other stockholders or the corporation. (2) Where the wrong is done to a group of stockholders, as where preferred stockholders rights are violated, a class or representative suit will be proper for the protection of all stockholders belonging to the same group. (3) Whenever officials of the corporation refuse to sue or are the ones to be sued or hold the control of the corporation, an individual stockholder is permitted to institute a derivative suit on behalf of the corporation wherein he holds stock in order to protect or vindicate corporate rights. (Ching vs. Subic Bay Golf and Country Club, G.R. No. 174353, September 10, 2014) 5. Suits against entities without juridical personality Rule 3, Sec. 15. Entity without juridical personality as defendant. When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed. 6. Effect of death of party litigant Rule 3, Sec. 16. Death of party; duty of counsel. Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. Rule 3, Sec. 17. Death or separation of a party who is a public officer. When a public officer is a party in an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it and that the successor adopts or continues or threatens to adopt or continue the action of his predecessor. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to be heard. Rule 3, Sec. 20. Action on contractual money claims. When the action is for recovery of money arising from contract, express or implied, and the defendant dies before the entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until the entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person. The last sentence above refers to Rule 86 (Claims Against Estate). Sec. 5 thereof refers to Claims which must be filed under the notice. If not filed, barred. 29 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Death of a party and duty of counsel to inform court 1. Construed together, Secs. 16 and 20 of the Rules of Court mean that ONLY PURELY PERSONAL ACTIONS, i.e., legal separation involving nothing more than bed and board separation of the spouses, action for support, and the right of the offended party to institute criminal action DO NOT SURVIVE the death of the accused. Such cases will be DISMISSED and the deceased CANNOT BE SUBSTITUTED by his legal representative. 2. ALL OTHER ACTIONS SURVIVE the death of a party litigant. In all such cases, substitution by the legal representative is proper. Examples of claims NOT extinguished by death: a. Recovery of real and personal property against the estate, such as ejectment case b. Enforcement of liens on such properties; c. Recovery for an injury to person or property by reason of tort committed by the deceased. d. Actions for the recovery of money, arising from a contract, express or implied (Rule 3, Sec. 20) What is the effect of failure by counsel to inform the court of death of a party on the judgment against the party and writ of execution against his sole heir? It will render the judgment and writ of execution VOID for lack of jurisdiction and lack of due process. If counsel had notified the court of the party’s death, the court would have ordered the substitution of the deceased by the sole heir (Rule 3, Sec. 16). The court acquired no jurisdiction over the sole heir upon whom the trial and the judgment are not binding (Lawas vs. CA, 146 SCRA 173). What is the effect of non-substitution of a deceased party? Non compliance with the rule on substitution would render the proceedings and judgment of the trial court infirm because the court acquires no jurisdiction over the persons of the legal representatives or of the heirs on whom the trial and the judgment would be binding. Thus, proper substitution of heirs must be effected for the trial court to acquire jurisdiction over their persons and to obviate any future claim by any heir that he was not apprised of the litigation against Bertuldo or that he did not authorize Atty. Petalcorin to represent him. No formal substitution of the parties was effected within thirty days from date of death of Bertuldo, as required by Section 16, Rule 3 of the Rules of Court. Needless to stress, the purpose behind the rule on substitution is the protection of the right of every party to due process. It is to ensure that the deceased party would continue to be properly represented in the suit through the duly appointed legal representative of his estate. (Hinog vs. Melicor, 455 SCRA 460 [2005]) The Rules require the legal representatives of a dead litigant to be substituted as parties to a litigation. This requirement is necessitated by due process. Thus, when the rights of the legal representatives of a decedent are actually recognized and protected, noncompliance or belated formal compliance with the Rules cannot affect the validity of the promulgated decision. After all, due process had thereby been satisfied. When a party to a pending action dies and the claim is not extinguished, the Rules of Court require a substitution of the deceased. The procedure is specifically governed by Section 16 of Rule 3. (Dela Cruz vs. Joaquin, G.R. No. 162788, July 28, 2005). Failure of counsel to comply with his duty under Section 16 to inform the court of the death of his client and no substitution of such party is effected, will not invalidate the proceedings and the judgment thereon if the action survives the death of such party. Moreover, the decision rendered shall bind his successor in interest. The instant action for unlawful detainer, like any action for recovery of real property, is a real action and as such survives the death of Faustino Acosta. His heirs have taken his place and now represent his interests in the instant petition. (Limbauan vs. Acosta, G.R. No. 148606, June 30, 2008) 30 www.chanroblesbar.com : www.chanroblesbar.com.ph

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While it is true that a decision in an action for ejectment is enforceable not only against the defendant himself but also against members of his family, his relatives, and his privies who derived their right of possession from the defendant and his successors in interest, it had been established that petitioner (defendants wife) had, by her own acts, submitted to the jurisdiction of the trial court. She is now estopped to deny that she had been heard in defense of her deceased husband in the proceedings therein. (Vda. De Salazar v. CA, G.R. No. 121510, November 23, 1995) D. Venue Venue defined - the place where the action is triable, whether real or personal. Relates to place of trial. Touches more of convenience of the parties rather than the substance of the case. Procedural and not substantive. 1. Venue versus Jurisdiction 1. Venue locality or place where the suit may be had. Relates to jurisdiction over the person rather than subject matter. Provisions relating to venue establish a relation between plaintiff and defendant. 2. Jurisdiction power of the court to decide the case on the merits. Provisions on jurisdiction establish a relation between the court and the subject matter. A court cannot motu proprio dismiss a complaint on the ground of improper venue since improper venue may be WAIVED for failure to object to it (Decoycoy vs. IAC, 195 SCRA 641 [1991]). 2. Venue of real actions (Rule 4, Sec. 1) Court which has jurisdiction over area where property or any part thereof is located. Real actions actions affecting title to or possession of real property, or interest therein. Examples: a. recovery of possession b. partition or condemnation c. foreclosure of mortgage d. annulment or rescission of sale of real property (actually for recovery) Forcible entry and detainer are real actions, regardless of amount of damages involved. N.B. But venue may be changed and transferred to another place by agreement of the parties, and such agreement is valid and enforceable (Villanueva vs. Mosqueda, 115 SCRA 904 [1982]). 3. Venue of personal actions (Rule 4, Sec. 2) Where plaintiff or any of principal plaintiffs reside, or where defendant or any of the principal defendants resides, or in the case of a non resident defendant, where he may be found, at the election of the plaintiff. Meaning of residence ACTUAL RESIDENCE or place of abode, which may not necessarily be his legal residence or domicile, provided he resides therein with continuity and consistency. Must be more than temporary. Personal action where plaintiff seeks the recovery of personal property, enforcement of contract or recovery of damages. 4. Venue of actions against non-residents (Rule 4, Sec. 3) What is the venue of actions against nonresident defendant who is not found in the Philippines? 1. If action affects PERSONAL STATUS of plaintiff, such as a legal personal relationship which is not temporary nor terminable at the mere will of the parties (annulment of marriage, recognition of a natural child) venue is the court of place where PLANTIFF RESIDES.

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While the court acquires jurisdiction over person of defendant, it does not preclude the court from rendering valid judgment over the issue regarding the personal status of plaintiff in relation to defendant. This is an action quasi in rem. 2. If action affects any PROPERTY of defendant located in the Philippines venue is the court in the area where PROPERTY or portion thereof is SITUATED. While court acquires no jurisdiction over person of defendant, valid judgment may be rendered against the property which is the one impleaded and is the subject of judicial power (ex. where plaintiff is already in possession of a lien sought to be enforced or by attachment of the property). This is an action in rem. 5. When the Rule on Venue Does not Apply (Rule 4, Sec. 4) 1. Where a specific rule or law provides otherwise. Example: An offended party who is at the same time a public official can only institute an action for damages arising from libel in two venues: (a) the place where he holds office (if private individual, where he resided at the time of the commission of the offense) and (b) the place where the alleged libelous articles were printed and first published. N.B. applies also to the criminal case. a. Unless and until the defendant OBJECTS to venue in a motion to dismiss prior to a responsive pleading, venue cannot truly be said to have been improperly laid. b. A motion to dismiss belatedly filed could no longer deprive the trial court of jurisdiction to hear and decide the civil action for damages. Improper venue may be waived and such waiver may occur by laches. c. Objections to venue in such actions may be waived as it does not relate to jurisdiction over the subject matter but rather over the person. Laying of venue is PROCEDURAL and not substantive (Diaz vs. Adiong, 219 SCRA 631 (1993) d. A court cannot motu proprio dismiss a complaint on the ground of improper venue since improper venue may be WAIVED for failure to object to it (Dacoycoy vs. IAC, 195 SCRA 641 [1991]). NOTE: 1) Under Sec. 1 of Rule 16, objections to improper venue must be made in a motion to dismiss before responsive pleading is filed. [Responsive pleading is one that seeks affirmative relief and sets up defenses]. 2) Improper venue (Sec. 1 (c) that venue is improperly laid) may now be raised as an AFFIRMATIVE DEFENSE in the answer if no motion to dismiss has been filed (Rule 16, Sec. 6). 3) Under the old rule, when improper venue is not objected to in a motion to dismiss, it is deemed WAIVED. This provision has been deleted in the new rule. 2. Where parties have validly agreed in writing before filing of the action on exclusive venue thereof. 6. Effects of Stipulations on Venue Provision that We hereby expressly submit to the jurisdiction of the courts of Valenzuela any legal action which may arise out of this promissory note is PERMISSIVE stipulation only. It does not require the laying of venue in Valenzuela exclusively or mandatorily. No qualifying or restrictive words like must, only or exclusively. Hence no intent by parties to restrict the venue of actions arising out of the promissory notes to the courts of Valenzuela only (Phil. Banking Corp. vs. Tensuan, 228 SCRA 385 (1993} The case at bar involves petitioners mortgaged real property located in Parañaque City over which respondent bank was granted a special power to foreclose extra judicially. Thus, by express provision of Section 2, Act 3135, the sale can only be made in Parañaque City. 32 www.chanroblesbar.com : www.chanroblesbar.com.ph

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The exclusive venue of Makati City, as stipulated by the parties and sanctioned by Section 4, Rule 4 of the Rules of Court, cannot be made to apply to the Petition for Extrajudicial Foreclosure filed by respondent bank because the provisions of Rule 4 pertain to venue of actions, which an extrajudicial foreclosure is not. (Sps. Ochoa vs. ChinaBanking Corporation, G.R. No. 192877, March 23, 2011) Complaint for unlawful detainer may be filed outside the municipality or city where the real property is located, pursuant to the venue stipulation in the contract Maunlad Homes questioned the venue of Union Banks unlawful detainer action which was filed in Makati City while the contested property is located in Malolos, Bulacan. Citing Section 1, Rule 4 of the Rules of Court, Maunlad Homes claimed that the unlawful detainer action should have been filed with the municipal trial court of the municipality or city where the real property involved is situated. Union Bank, on the other hand, justified the filing of the complaint with the MeTC of Makati City on the venue stipulation in the contract which states that "the venue of all suits and actions arising out of or in connection with this Contract to Sell shall be at Makati City. " While Section 1, Rule 4 of the Rules of Court states that ejectment actions shall be filed in "the municipal trial court of the municipality or city wherein the real property involved x x x is situated," Section 4 of the same Rule provides that the rule shall not apply "where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. (Union Bank of the Philippines vs. Maunlad Homes Inc., G.R. No. 190071, August 15, 2012) TO SUMMARIZE: Waiver of improper venue may be made through: 1. express waiver through written agreement. 2. implied waiver through failure to seasonably object to improper venue in a motion to dismiss or answer Improper venue may be questioned through: 1. motion to dismiss (Rule 16, Sec. 1[c]) if denied, file with the higher court a petition for prohibition with prayer for TRO and preliminary injunction, as lower court has no power to enforce its orders in said case, the same being outside the territorial jurisdiction of the judge before whom it was filed. 2. affirmative defense in answer (Rule 16, Sec. 6). E. Pleadings 1. Kinds of Pleadings (Rule 6) What is a pleading? Written statements of the respective CLAIMS and DEFENSES of the parties submitted to the court for appropriate judgment. Pleadings allowed under the Rules of Court a. Complaint b. Answer c. Counterclaim d. Cross claim e. Reply f. Third party (fourth party, etc.) complaint (Rule 2, Sec. 6) g. Complaint in intervention, answer in intervention (Rule 19. Sec. 3) a. Complaint Rule 6, Sec. 3. Complaint. 33 www.chanroblesbar.com : www.chanroblesbar.com.ph

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The complaint is the pleading alleging the plaintiff's cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint. b. Answer 1. What is an answer? An answer is a pleading in which a defending party sets forth his defenses (Rule 6, Sec. 4). It may be an answer to the complaint, third party (fourth party, etc.) complaint, counterclaim, or cross claim. Time to Plead a. Answer to Complaint and Third Party (Fourth Party, etc.) Complaint fifteen (15) days after service of summons, unless a different period is fixed by the court (Rule 11, Sec. 1) However, under Rule 16, Section 4, if a motion to dismiss is denied, the movant shall file his answer within the balance of the period provided by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. . b. Answer of a defendant foreign private juridical entity (1) when summons is served upon a resident agent fifteen (15) days after service of summons; (2) when summons is served on the government official designated to receive the same thirty (30) days from receipt by the latter of the summons. c. Answer to Amended Complaint, Amended Counterclaim, Amended Cross Claim and Amended Third Party (Fourth Party, etc.) Complaint: (1) amended complaint was filed as a matter of right (Rule 10, Section 2) fifteen (15) days after being served with a copy thereof; and (2) amended complaint was filed with leave of court (Rule 10, Section 3) ten (10) days from notice of order admitting the amended complaint. Strict Observance of the Period While the rules are liberally construed, the provisions on reglementary periods are strictly applied for they are deemed indispensable to the prevention of needless delays and necessary to the orderly and speedy discharge of judicial business. Strict compliance with said periods is mandatory and imperative. (1) Negative defenses SPECIFIC DENIAL of the material fact or facts alleged in the pleading or the claimant essential to his cause of action. (Rule 6, Section 5) (2) Negative pregnant A negative pregnant is a form of negative expression which carries with it in affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language and the words of the allegation as so qualified or modified are literally denied, it has been held that the qualifying circumstances alone are denied while the fact itself is admitted. (Guevarra vs. Eala, A.C. No. 7136, August 1, 2007) A negative pregnant (sometimes called a pregnant denial) refers to a denial which implies its affirmative opposite by seeming to deny only a qualification of the allegation and not the allegation itself. For example, "I have never consumed shabu while on duty" might imply that the person making the statement had consumed shabu on other occasions, and was only denying that he had done so while on duty. (3) Affirmative Defenses Allegation of a NEW MATTER which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless PREVENT OR BAR RECOVERY by him. 34 www.chanroblesbar.com : www.chanroblesbar.com.ph

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The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. (Rule 6, Sec. 5). Note that some of these grounds are also grounds for motion to dismiss. What are the two kinds of defenses that may be set forth in the answer? 1. Affirmative defenses allegation of a new matter which while hypothetically admitting the material allegations in the pleading would nevertheless prevent or bar recovery by the claiming party. It is in the nature of confession and avoidance 2. Negative defenses specific denial of the material facts or facts alleged in the pleading essential to establish the plaintiffs cause of action (Rule 6, Sec. 5). c. Counterclaims A counterclaim is any claim which a DEFENDING PARTY may have against an opposing party. (Rule 6, Sec. 6) (1) Compulsory counterclaim What is a compulsory counterclaim? (1) One which, being cognizable by the regular courts of justice, (2) ARISES OUT OF or is CONNECTED WITH the transaction or occurrence constituting the subject matter of the opposing party’s claim and (3) does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. (4) Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, (5) except that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount (Rule 6, Sec. 7) , meaning its amount need not be under RTC jurisdiction. Examples: (1) damages claimed to have been suffered as a consequence of the action; (2) a claim for attorney’s fees; (3) in a possessory action, the defendants claim of ownership (2) Permissive counterclaim What is a permissive counterclaim? a. One which is not barred even if not set up and which has NO LOGICAL RELATION with the transaction or occurrence that is the subject matter of the opposing party’s claim, or b. even when there is such a connection, the court has no jurisdiction to entertain the claim or it requires for its adjudication the presence of third persons of whom the court cannot acquire jurisdiction (National Marketing Corp. vs. Federation of United Namarco Distributors, Inc., 49 SCRA 248 [1973]). What is the difference between permissive and compulsory counterclaims? a. In a permissive counterclaim, the docket and other lawful fees should be paid and the same should be accompanied by a certificate against forum shopping and certificate to file action issued by the proper Lupon Tagapamayapa. It should also be answered by the claiming party. It is NOT BARRED even if not set up in the action. b. In a compulsory counterclaim, no docket fee is paid and the certificates mentioned above are not required. If it is not raised in the answer, it shall be BARRED. (Rule 9, Sec. 2) Examples of compulsory and permissive counterclaims: . A filed a suit for collection of P350,000 against B in the RTC of Cebu City. Aside from alleging payment as a defense, B in his answer, set up counterclaims for P120,000 as damages and P25,000 as attorney’s fees as a result of the

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baseless filing of the complainant, as well as for P230,000 as the balance of the purchase price of the 28 units of refrigerators he sold to A. The RTC has jurisdiction over the compulsory counterclaims in the total amount of P145,000 because in an original action before the RTC, the counterclaim may be considered COMPULSORY regardless of amount (Rule 6, Sec. 7, 2nd sentence). This means that even a compulsory counterclaim not exceeding P300,000 or P400,000 may be filed in the RTC. But the RTC has no jurisdiction over the PERMISSIVE counterclaim of P230,000 because it does not exceed P300,000. ** In an action for recovery of land, the counterclaim for reimbursement of the value of the improvements is in the nature of a compulsory counterclaim in . Thus, the failure by private respondents to set it up bars their right to raise it in a subsequent litigation. The rule on compulsory counterclaim is designed to achieve resolution of the whole controversy at one time and in one action to avoid multiplicity of suits (Baclayon vs. Court of Appeals, G.R. No. 89132, February 26, 1990) N.B. : (1) A compulsory counterclaim that merely reiterates special defenses which are deemed controverted even without a reply, or raises issues which are deemed automatically joined by the allegations of the complaint need not be answered. However, a compulsory counterclaim which raises issues not covered by the complaint should be answered. (2) If the defendant has a compulsory counterclaim, he should not file a motion to dismiss but an answer with a counterclaim, with the ground for the motion to dismiss being asserted as an affirmative defense pursuant to Rule 16, Sec. 6. The compulsory counterclaim is deemed waived when defendant filed a motion to dismiss the complaint instead of answering the same (Financial Building Corp. vs. Forbes Park Association, Inc., G.R. No. 133119, August. 17, 2000). (3) If the counterclaim is based on an ACTIONABLE DOCUMENT attached to or copied in the counterclaim, the genuineness and due execution of the instrument shall be DEEMED ADMITTED unless the adverse party through a reply specifically DENIES UNDER OATH its genuineness and due execution (Rule 8, Sec. 8) (3) In an action before the first level court (MTC, MeTC, MTCC, MCTC) the amounts demanded in the counterclaim, cross claim, third party complaint must fall WITHIN THE JURISDICTION of said court, which should not exceed P300,000.00 (outside Metro Manila) and P400,000.00 (within Metro Manila) , ***(3) Effect on the Counterclaim when the complaint is dismissed 1. If no motion to dismiss has been filed, any of the grounds for dismissal under Rule 16 may be pleaded as an affirmative defense in the answer, and in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed The dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in the same or separate action (Rule 16, Sec. 6). . 2. When the plaintiff himself files a motion to dismiss his complaint after the defendant has pleaded his answer with a counterclaim. If the court grants the motion, the dismissal shall be limited to the complaint. It 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, manifests his preference to have his counterclaim resolved in the same action(Rule 17, Sec. 2). 3. When the complaint is dismissed through the fault of the plaintiff and at a time when a counterclaim has already been set up, the dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in the same or separate action(Rule 17, Sec. 3) d. Cross-claims (Rule 6, Sec. 8) What is a cross-claim? a. Any claim by any party against a co party 36 www.chanroblesbar.com : www.chanroblesbar.com.ph

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b. arising out of the transaction or occurrence c. that is the subject matter of either the original action or of a counterclaim therein. Such cross claim may include a claim that the party against whom it is asserted is or may be liable to the cross claimant for all or part or a claim asserted in the action against the cross claimant (Rule 6, Sec. 8). A cross claim is allowed to be interposed by a party against a co party to enable the former to RECOVER from the latter whatever he might be made liable to pay the plaintiff. Ex. If ABC Bank sues X and Y to collect a loan, Y, who merely acted as an accommodation party, may file a cross claim against X by claiming that X is the actual debtor and should be liable for the payment of the loan (Bar 1997). The dismissal of the complaint carries with it the dismissal of the cross claim which is purely defensive, but NOT a cross claim seeking affirmative relief (Torres vs. CA, 49 SCRA 67 [1973]). A cross claim that a party has at the time the answer is filed shall be contained in said answer (Rule 11, Sec. 8). If not set up, it shall be barred (Rule 9, Sec. 2). Hence, a cross claim cannot be set up for the first time on appeal (Loadmasters Customs Services, Inc. vs. Glodel Brokerage Corporation, 639 SCRA 69) A cross claim that shall be barred if not asserted is one already existing at the time the answer is filed, but not a cross claim that may mature or may be acquired after service of the answer. Such cross claim may, with permission of the court, be presented by supplemental pleading before judgment (Rule 11, Sec. 9) A cross claim omitted through oversight, inadvertence or excusable neglect, or when justice requires, may, by leave of court, be set up by amendment before judgment (Rule 11, Sec. 10) Distinguish a cross-claim from a counterclaim. a. A cross claim is a claim against a co party while a counterclaim is a claim against an opposing party. b. A cross claim requires that filing fee be paid and that there be certification against forum shopping while only permissive counterclaim requires the same. c. A cross claim must be answered, otherwise there might be default while a compulsory counterclaim need not be answered. e. Third (fourth, etc.) party complaints Rule 6, Sec. 11. Third, (fourth, etc.) party complaint. A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. Ex. If the passenger of a bus sues the operator for breach of contract of carriage because of injuries sustained by him in an accident, the operator may file a third-party complainant against the driver for reimbursement M assembles an owner type jeep for O, who in turn rents it to P. Due to faulty brakes, P meets a vehicular accident, causing him injuries. P files an action for damages against O and M. O cannot file a third party complaint against M because both are already parties. Instead, O should file a cross claim against M (Bar 1996) Tests to determine whether the third party complaint is in respect of plaintiffs claim: 1. Whether it arises out of the same transaction on which the plaintiffs claim is based, or, although arising out of another or different transaction, is connected with the plaintiffs claim;

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2. Whether the third party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiffs claim against the original defendant; and 3. Whether the third party defendant may assert any defenses which the third party plaintiff has or may have to the plaintiffs claim. (Capayas vs. CFI of Albay, 77 Phil 181). Leave of court is necessary in filing a third (fourth, etc.) party complaint in order to obviate delay in the resolution of the complaint, such as when the third party defendant cannot be located, or when unnecessary issues may be introduced, or when a new and separate controversy is introduced. Leave of court is not required in filing a counterclaim or cross claim because the parties involved are already parties to the case. Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third party complaint, regardless of the amount involved as a third party complaint is merely auxiliary to and is a continuation of the main action. (Republic v. Central Surety & Insurance Co., G.R. No. L 27802, Oct. 26, 1968) The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross claim, counterclaim, or third party complaint, or of any separate issue or of any number of claims, cross claims, counterclaims, third party complaints or issues. But a separate trial may be denied if a party is thereby deprived of his right to be heard upon an issue dealt with and determined in the main trial. (Metropolitan Bank and Trust Company vs. Sandoval, G.R. No. 169677, February 18, 2013) LPB f. Complaint-in-intervention INTERVENTION - a legal proceeding by which a person who is not a party to the action is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirements of the Rules of Court. If the purpose of the motion for intervention is to assert a claim against either or all of the original parties, the pleading shall be called a COMPLAINT-IN-INTERVENTION The intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties, or an answer-in-intervention if he unites with the defending party in resisting a claim against the latter. (Rule 19, Sec. 3) The answer to the complaint-in-intervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court. (Rule 19, Sec. 4) g. Reply Rule 6, Sec. 10. Reply. A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, ALL the new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint. N.B. The filing of a reply is not necessary, because even if a party does not file a reply, all the new matters that were alleged in the answer are deemed controverted. (Rule 6, Sec. 10) Exception: ***1. Where the defense in the answer is based on an actionable document, a reply under oath must be made, otherwise, the genuineness and due execution of the document shall be deemed admitted (Rule 8, Sec. 8) (Veluz vs. Court of Appeals, G.R. No. 139951, November 23, 2000) 2. Where the plaintiff files an action to recover a loan with interest and the defendant in his answer alleges that the interest charged by the plaintiff in is usurious, there is no need to file a reply to deny such allegation. It is necessary to deny allegations of usury only if such allegations are made in a complaint to recover usurious interest. (Rule 8, Sec. 11) 38 www.chanroblesbar.com : www.chanroblesbar.com.ph

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2. Pleadings allowed in small claims cases and cases covered by the rule on summary procedure Small Claims a. Pleadings allowed 1. Statement of Claims (complaint) 2. Response (answer) Secs 5 and 11, Rule of Procedure for Small Claims Cases 3. Permissive counterclaim - The defendant may also elect to file a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence, provided that the amount and nature thereof are within the coverage of this Rule and the prescribed docket and other legal fees are paid. (Sec. 13, RPSCC) b. Prohibited pleadings, motions and petitions 1. Motion to dismiss 2. Motion for a bill of particulars. 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial. 4. Petition for relief from judgment. 5. Motion for extension of time to file pleadings, affidavits, or any other paper. 6. Memoranda. 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court. 8. Motion to declare the defendant in default. 9. Dilatory motions for postponement. 10. Reply. 11. Third party complaints. 12. Interventions (Sec. 14, RPSCC). Summary Procedure a . Pleadings allowed. 1. Complaint 2. Compulsory counterclaim 3. Cross claims pleaded in the answer 4. Answer to these pleadings (Sec. 3, Rule on Summary Procedure) b. Prohibited pleadings, motions and petitions Same as in Small Claims Cases, except that motion to dismiss is allowed on the ground of lack of jurisdiction over the subject matter, or failure to comply with barangay conciliation (Sec. 19, RSP). 3. Parts of a pleading (Rule 7) a. Caption The Caption contains the following: 1. Name of the court 2. Title of the action 3. Docket number, if assigned (Rule 7, Sec. 1) The Body sets forth: 1. Designation 2. Allegations of the party’s claims and defenses 39 www.chanroblesbar.com : www.chanroblesbar.com.ph

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3. Relief prayed for (may add a general prayer for such further or other relief as may be deemed just and equitable) 4. Date of the pleading (Rule 7, Sec. 2) b. Signature and address Rule,7 Sec. 3. Signature and address. Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box. The signature of counsel constitutes a CERTIFICATE by him that (a) he has read the pleading; (b) to the best of his knowledge, information, and belief there is good ground to support it; and (c) it is not interposed for delay. An unsigned pleading produces NO LEGAL EFFECT. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who (a) deliberately files an unsigned pleading, or (b) signs a pleading in violation of this Rule, or (c) alleges scandalous or indecent matter therein, or (d) fails to promptly report to the court a change of his address, shall be subject to appropriate DISCIPLINARY ACTION. c. Verification and certification against forum shopping (1) Requirements of a corporation executing the verification/certification of non-forum shopping Verification How is verification made? It is verified by an affidavit. This affidavit declares that the: 1. Affiant has READ the pleading; and 2. Allegations therein are TRUE AND CORRECT of his PERSONAL KNOWLEDGE or BASED ON AUTHENTIC RECORDS (Rule 7, Sec. 4) A pleading required to be verified which contains a verification based on information and belief or upon knowledge, information and belief, or lacks a proper verification shall be treated as an UNSIGNED pleading (Rule 7, Sec. 4). What is the significance of verification? It is intended to secure an assurance that the allegations in a pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. The absence of a proper verification is cause to treat the pleading as unsigned and dismissible. (Chua vs. Torres, G.R. No. 151900, August 30, 2005) Is verification a jurisdictional requirement? NO. The requirement regarding verification of a pleading is a FORMAL, nor jurisdictional. Such requirement is simply a condition affecting the form of a pleading, non compliance with which does not necessarily render the pleading fatally defective (Uy vs. Land Bank of the Phils., 336 SCRA 419 [2000]). The absence of the signature of the person misjoined as a party plaintiff in either the verification page or certification against forum shopping is not a ground for the dismissal of the action(Chua vs. Torres, G.R. No. 151900, August 30, 2005) Forum Shopping Certification against forum shopping is required in filing a complaint and other initiatory pleadings asserting a claim or relief (Rule 7, Sec. 5). This rule applies as well to special civil actions since the rules for ordinary civil action are suppletory.

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When is there forum shopping? There is forum shopping when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion, other than by appeal or certiorari in another. There can also be forum shopping when a party institutes two or more suits in different courts, either simultaneously or successively, in order to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same reliefs on the supposition that one or the other court would make a favorable disposition or increase a party’s chances of obtaining a favorable decision or action. (Huibonhoa v. Concepcion, G.R. No. 153785, August 3, 2006) Test to determine forum-shopping: To determine whether a party violated the rule against forum shopping, the most important question to ask is whether the elements of litis pendentia are present or whether a final judgment in one case will result to res judicata in another. Thus, the test is whether in the two or more cases pending, there is identity of: 1. Parties 2. Rights or causes of action 3. Reliefs sought (Huibonhoa v. Concepcion, supra) Who executes certification against forum-shopping? It is the plaintiff or principal party who executes the certification under oath (Rule 7, Sec. 5). It must be signed by the party himself and cannot be signed by his counsels. The reason the certification against forum shopping is required to be accomplished by petitioner himself is because only the petitioner himself has actual knowledge of whether or not he has initiated similar actions or proceedings in different courts or agencies. (Digital Microwave Corp. vs. CA, G.R. No. 128550, March 16, 2000). What are the undertakings of a party under the certification against forum shopping? 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; 3. That if he should therefore learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed (Rule 7, Sec. 5) In what ways may forum shopping be committed? 1. Filing multiple cases based on the same cause of action and with the same prayer, the previous case not having been resolved yet (litis pendentia) 2. Filing multiple cases based on the same cause of action and the same prayer, the previous case having been finally resolved (res judicata) 3. Filing multiple cases based on the same cause of action but with different prayers (splitting causes of action) where the ground for dismissal is also either litis pendentia or res judicata). Effect of forum shopping 1. If the forum shopping is NOT considered WILFUL and DELIBERATE, the subsequent cases shall be DISMISSED WITHOUT PREJUDICE on one of the two grounds mentioned above Non compliance with the rule on certification against forum shopping is not curable by mere amendment and shall be a cause for the dismissal of action without prejudice, unless otherwise provided, upon motion and after hearing (Rule 7, Sec.5) 2. If the forum shopping is WILFUL and DELIBERATE, both (or all, if there are more than two actions) shall be DISMISSED WITH PREJUDICE (Ao As vs. CA, 491 SCRA 353 [2006]) 41 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Willful and deliberate forum shopping of the party or his counsel shall be a ground for summary dismissal. This dismissal is with prejudice and shall constitute DIRECT CONTEMPT as well as cause for administrative sanctions on the part of counsel. (Rule 7, Sec. 5) What are the requirements of forum shopping certificate for a corporation? The lack of certification against forum shopping is generally not curable by the submission thereof after the filing of the petition. Section 5 of Rule 45 provides that the failure of the petitioner to submit the required documents that should accompany the petition, including the certification against forum shopping, shall be sufficient ground for the dismissal thereof. The same rule applies to certifications against forum shopping signed by a person on behalf of a corporation which are unaccompanied by proof that said signatory is authorized to file a petition on behalf of the corporation. In certain exceptional circumstances, however, the Court has allowed the belated filing of the certification. (Mediserv, Inc. vs. Court of Appeals (special former 13th division) and Landheights Development Corporation, G.R. No. 161368, April 5, 2010) No proof of authority necessary The following officials or employees of the company can sign the verification and certification without need of a board resolution: (1) the Chairperson of the Board of Directors, (2) the President of a corporation, (3) the General Manager or Acting General Manager, (4) Personnel Officer, and (5) an Employment Specialist in a labor case. In Corazon’s affidavit, she stated that she is the "office manager and resident interpreter of the Manila Bureau of Fuji Television Network, Inc. " and that she has "held the position for the last twenty three years. " As the office manager for 23 years, Corazon can be considered as having knowledge of all matters in Fuji’s Manila Bureau Office and is in a position to verify "the truthfulness and the correctness of the allegations in the Petition. " Thus, Fuji substantially complied with the requirements of verification and certification against forum shopping. (Fuji Television Network, Inc. vs. Espiritu, G.R. No. 204944 45, December 3, 2014) d. Effect of the signature of counsel in a pleading The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. (par. 2, Rule,7 Sec. 3.) 4. Allegations in a pleading (Rule 8) a. Manner of making allegations Rule 8, Sec. 1. In general. Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ULTIMATE FACTS on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. (1) Condition precedent In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient. (Rule 8, Sec. 3.) (2) Fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments, official documents or acts Rule 8, Sec. 5. Fraud, mistake, condition of the mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with PARTICULARITY. Malice, intent, knowledge or other condition of the mind of a person may be averred GENERALLY. b. Pleading an actionable document Rule, 8, Sec. 7. Action or defense based on document. Whenever an action or defense is based upon a written instrument or document, the actionable document shall be pleaded by setting forth: 1. The substance of such document in the pleading and attaching the original or copy thereof as an exhibit 2. Said document copied verbatim in the pleading (Sec. 7, Rule 8). 42 www.chanroblesbar.com : www.chanroblesbar.com.ph

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c. Specific denials Rule 8, Sec. 10. Specific denial. A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial. (1) Effect of failure to make specific denials Rule 8, Sec. 11. Allegations not specifically denied deemed admitted. Material averments in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. N.B. 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 plaintiff may file a motion for judgment on the pleadings under Rule 34 (2) When a specific denial requires an oath Rule 8, Sec. 8. How to contest such documents. When an action or defense is founded upon a written instrument (like a promissory note which is the basis of a complaint for collection of sum of money) , copied in or attached to the corresponding pleading as provided in the preceding section, the GENUINENESS AND DUE EXECUTION of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply (a) when the adverse party does not appear to be a party to the instrument or (b) when compliance with an order for an inspection of the original instrument is refused. 5. Effect of failure to plead (Rule 9) 1. Failure to plead defenses and objections (implied admissions) Defenses not pleaded in a motion to dismiss or in the answer are deemed WAIVED. Exceptions: These defenses may be raised at any stage of the proceedings even for the first time on appeal: 1. Lack of jurisdiction over the subject matter (Note: This may, however, be barred by laches Tijam v. Sibonghanoy, G.R. No. L 21450, April 15, 1968) 2. Litis pendentia 3. Res judicata 4. Prescription (LLRP) (Rule 9, Sec. 1) Relate to omnibus motion rule (Rule 15, Sec. 8) Laches need not be specifically pleaded and may be considered by the court on its own initiative in determining the rights of the parties. (Heirs of Valientes v. Ramas, G.R. No. 157852; December 15, 2010) 2. Failure to plead a compulsory counterclaim and cross-claim Rule 9, Sec. 2. Compulsory counterclaim, or cross claim, not set up barred. A compulsory counterclaim, or a cross claim, not set up shall be barred. 6. Default (Rule 9, Sec. 3) a. When a declaration of default is proper What are the grounds for the declaration of default?

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a) Failure of a defending party to answer within the time allowed (Rule 9, Sec. 3). This includes failure to answer a complaint, permissive counterclaim, cross claim, third party complaint, etc. b) Willful failure to appear before an officer to make a deposition, after being served with a proper notice, or failure to serve answers after proper service of interrogatories (Rule 29, Sec. 3) c) Failure to appear at pre trial (Rule 18, Sec. 5) NOTE: 1. A declaration of default cannot be made by the court motu proprio; there must be a motion to that effect (The Philippine British Co., Inc. vs. De Los Angeles, 63 SCRA 50 [1975]). 2. If no motion to declare defendant in default is filed, the complaint should be dismissed for failure to prosecute. 3. A defendants answer should be admitted where it had been filed before it was declared in default, and no prejudice is caused to plaintiff (Indiana Aerospace University vs. CHED. 356 SCRA 367 [2001]) b. Effect of an order of default a. A party in default LOSES HIS STANDING in court. He cannot appear therein, adduce evidence and be heard nor take part in trial. He cannot file a motion to dismiss without first filing a motion to set aside the order of default. He loses his right to present evidence, control the proceedings and examine the witnesses or object to plaintiffs evidence. b. A motion to declare the defending party in default should be served upon him. A party in default, however, shall be entitled to NOTICE of subsequent proceedings but not to take part in the trial. c. Being declared in default does not constitute a waiver of all rights. What is waived is only the RIGHT TO BE HEARD and to PRESENT EVIDENCE during trial while default prevails. A party in default is still entitled to notice of final judgments and orders and proceedings taken subsequent thereto. He may be cited and testify as a witness. d. A party VALIDLY declared in default irreparably loses the right to participate in the trial. A defendant IMPROVIDENTLY declared in default may retain and exercise such right to participate in the trial after the order of default and the subsequent judgment by default are annulled and the case remanded to the court of origin. The former can only appeal. The latter may file a petition for certiorari (Indiana Aerospace University vs. CHED, supra). c. Relief from an order of default Summary of the Remedies in Default a. From notice of the order of default but BEFORE JUDGMENT (1) motion to set aside order of default under Rule 9, Sec. 3(b) (2) in a proper case, petition for certiorari under Rule 65. b. AFTER JUDGMENT BUT BEFORE FINALITY (1) motion for reconsideration under Rule 37, Section 1 (2) motion for new trial under Rule 37, Section 1 (3) appeal under Rule 41, Section 1 c. AFTER FINALITY OF JUDGMENT (1) petition for certiorari under Rule 65 (2) petition for relief from judgment under Rule 38 (3) petition for annulment of judgment under Rule 47. 44 www.chanroblesbar.com : www.chanroblesbar.com.ph

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d. Effect of a partial default Rule 9, Section 3(c). Effect of partial default. When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. e. Extent of relief Two (2) kinds of Proceedings after Declaration of Default and the Extent of Relief that may be Granted (a) Without hearing The Court may immediately render judgment granting the claimant such relief as his pleading may warrant. Such relief however shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (Rule 9, Sec. 3) (b) With Hearing The Court may, in its discretion, allow or require the claimant to submit evidence. Such reception of evidence may be delegated to the Clerk of Court. After the reception of claimants evidence, the court may render judgment granting the reliefs prayed for as established by the evidence. It may also award unliquidated damages without exceeding the amounts prayed for. (Rule 9, Sec. 3) f. Actions where default is not allowed a. Action for declaration of nullity of marriage; action for annulment of marriage; action for legal separation (Rule 9, Sec. 3 [e]) NOTE: If the defending party fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion exists between the parties, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. b. Actions governed by the Rule on Summary Procedure and Rule of Procedure for Small Claims Cases, where a motion to declare defendant in default is not allowed. c. Special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed. 7. Filing and Service of pleadings (Rule 13) I. Payment of docket fees What are the rules on payment of docket fees? Manuel Uy Po Tiong filed complaint with RTC QC against Sun Insurance Office Ltd. for refund of premiums, with damages that can be inferred from body of complaint to be around P50M, but paid only P210 as docket fee. Later re amended complaint and supplemental complaint total claim of P64,601. Paid total docket fee of P182,824. But petitioner claims he should pay P257,810. Ruling: a. Amount of damages prayed for should be specified not only in the body of the pleading but also in the prayer, and said damages shall be considered in the assessment and payment of filing fees. b. It is not simply the filing of complaint or initiatory pleading but also payment of prescribed docket fee that vests a trial court with jurisdiction over subject matter or nature of the action. c. Without payment of correct docket fee, no original complaint or similar pleading is considered filed. Hence, amendment of such complaint of similar pleading, or payment of docket fee based on the amounts sought in the amended pleading will not vest jurisdiction in the court. d. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of deficient docket fee within a 45 www.chanroblesbar.com : www.chanroblesbar.com.ph

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reasonable period but not beyond the applicable prescriptive or reglementary period. Conclusion: if the complete amount of docket fee is not paid, prescriptive period continues to run as the complaint is deemed not filed. e. The same rule applies to permissive counterclaims, third party claims and similar pleadings, which shall not be considered filed unless the filing fee is paid. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the court awards a claim not specified in the pleadings, such as damages arising after the filing of the complaint or similar pleading, the additional filing fee therefor shall constitute a lien on the judgment. (Sun Insurance Office, Ltd. vs. Asuncion, 170 SCRA 274 (1989) , reiterated in Tacay vs. RTC of Tagum, Davao del Norte, 180 SCRA 433 (1989) and Heirs of Bertuldo Hinog vs. Melicor, 455 SCRA 460 (2005) ). II. Filing versus service of pleadings What is filing? It is the act of PRESENTING the pleading or other paper to the clerk of court (Rule 13, Sec.2) What is service? It is the act of PROVIDING A PARTY WITH A COPY of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. When a party is represented by counsel, service of notice should be made upon counsel and not upon the party, unless service upon the party himself is ordered by the court. (Rule 13, Sec. 2). May a pleading be filed by ordinary mail? No. Pleadings may only be filed personally or by registered mail. (Rule 13, Sec. 3) What papers are required to be filed and served? Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected(Rule 13, Sec.4). III. Periods of filing of pleadings (Rule 11) 30 days

Answer foreign entity.

15 days

10 days

1. Answer to amended complaint (NOT a matter of 1. Answer to the complaint. right) of a defendant 2. Answer to amended 2. Answer to counterclaim or private juridical complaint (matter of right) cross claim 3. Answer to third (fourth, 3. Answer etc.) party complaint. complaint.

to

supplemental

4. Reply.

Answer to the complaint.

within fifteen (l5) days after service of summons, unless a different period is fixed by the court.

Answer of a defendant foreign private (30) days after receipt of summons by such entity juridical entity. Answer to amended complaint (matter of within fifteen (l5) days after being served with a right) copy thereof

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ten (10) days from notice of the order admitting Answer to amended complaint (NOT a the same. (An answer earlier filed may serve as the matter of right) answer to the amended complaint if no new answer is filed.) Answer to counterclaim or cross claim.

ten (l0) days from service

Answer to third (fourth, etc.) complaint.

same rule as the answer to the complaint (within fifteen (l5) days after service of summons, unless a different period is fixed by the court.)

party

Reply.

within ten (l0) days from service of the pleading responded to

Answer to supplemental complaint.

ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court.

* Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. * The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules IV. Manner of filing Rule 13, Sec. 3. Manner of filing. The FILING of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of the court or by sending them by registered mail. In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. V. Modes of service (Rule 13, Sec. 5) Service of pleadings, motions, notices, orders, judgments and other papers shall be made either PERSONALLY or by MAIL. (1) Personal service Rule 13, Sec. 6. Personal service. Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein. (2) Service by mail Rule 13, Sec. 7. Service by mail. Service by registered mail shall be made by depositing the copy in the post office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully pre paid, and with instructions to the postmaster to return the mail to the sender after ten (l0) days if undelivered. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail. (5a) 47

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May service be done by ordinary mail? Yes. Service may be done either by registered or ordinary mail. (3) Substituted service Rule 13, Section 8. Substituted Service. If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections (personal service and service by mail) , the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery. (4) Service of judgments, final orders or resolutions Rule 13, Sec. 9. Service of judgments, final orders or resolutions. Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. (5) Priorities in modes of service and filing Rule 13, Sec. 11. Priorities in modes of service and filing. Whenever practicable, the service and filing of pleadings and other papers shall be done PERSONALLY. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A VIOLATION OF THIS RULE MAY BE CAUSE TO CONSIDER THE PAPER AS NOT FILED. Rule 13, Sec. 11 requires personal service of petitions and other pleadings. This is the general rule, while recourse to alternative modes of service and filing is the exception. Where recourse is made to the exception, a written explanation of why personal service was not effected is indispensable, even when such explanation by its nature is acceptable and manifest. Where no explanation is offered to justify resort to other modes, the court may expunge the pleading. (Zulueta vs. Asia Brewery, Inc., G.R. No. 138137, March 8, 2001) (6) When service is deemed complete Rule 13, Sec. 10. Completeness of service. Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier. When service is deemed complete 1. PERSONAL SERVICE - Upon actual delivery 2. ORDINARY MAIL Upon expiration of 10 days after mailing 3. REGISTERED MAIL - Upon actual receipt by the addressee OR five (5) days from the date he received first notice from postmaster 4. SUBSTITUTED SERVICE At the time of such delivery of the copy to the clerk of court (7) Proof of filing and service Rule 13, Sec. 12. Proof of filing. The FILING of a pleading or paper shall be proved by its existence in the record of the case. If it is not in the record, but is claimed to have been filed PERSONALLY, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; if filed by REGISTERED MAIL, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered.

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Rule 13, Sec. 13. Proof of service. Proof of PERSONAL SERVICE shall consist of a (a) written admission of the party served, or (b) official return of the server, or (c) affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ORDINARY MAIL, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by REGISTERED MAIL, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. What is a notice of lis pendens? It is a notice of the pendency of a real action which the plaintiff or defendant may record in the office of the register of deeds where the property subject of the action is situated. What is the purpose of a notice of lis pendens? To serve as constructive notice to those not parties to the case that the real property is the subject of a pending litigation (Rule 13, Sec. 14) 8. Amendment Amended and Supplemental Pleadings (Rule10) Amendments in general (See below) a. Amendment as a matter of right Rule 10, Sec. 2. Amendments as a matter of right. 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 within ten (l0) days after it is served. NOTES: 1. The filing by the defendant of a motion to dismiss does not affect the plaintiffs right to amend his complaint without first securing leave of court because a motion to dismiss is NOT a responsive pleading. 2. Leave of court is necessary AFTER the filing of a responsive pleading. However, even substantial amendments may be made under this Rule. 3. But such leave may be refused, if it appears to the court that the motion was made with intent to delay. b. Amendments by leave of court Rule 10, Sec. 3. Amendments by leave of court. Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon (a) motion filed in court, and after (b) notice to the adverse party, and an (c) opportunity to be heard. c. Formal amendment Rule 10, Sec. 4. Formal amendments. A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. d. Amendments to conform to or authorize presentation of evidence Rule 10, Sec. 5. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at ANY TIME, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is OBJECTED to at the trial on the ground that it is not within the issues made by the pleadings, the 49 www.chanroblesbar.com : www.chanroblesbar.com.ph

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court may allow the pleadings to be amended and shall do so with liberality if the (a) presentation of the MERITS of the action and the (b) ends of SUBSTANTIAL JUSTICE will be subserved thereby. The court may grant a continuance to enable the amendment to be made. Amendments to Conform to or Authorize Presentation of Evidence When issues not raised by the pleadings are tried with the express or implied consent of the parties 1. They shall be treated in all respects as if they had been raised in the pleadings; 2. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence may be made upon motion of any party at any time, even after judgment; 3. BUT failure to amend does NOT affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings 1. The court may allow the pleadings to be amended; 2. It shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby; 3. The court may grant a continuance to enable the amendment to be made. e. Different from supplemental pleadings Rule 10, Section 1. Amendments in general. Pleadings may be amended by (a) adding or striking out an allegation or the name of any party, or by (b) correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. Rule 10, Sec. 6. Supplemental pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. NOTES: 1. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. 2. A supplemental pleading incorporates matters arising AFTER the filing of the complaint. A supplemental pleading is always filed with leave of court. It does not result in the withdrawal of the original complaint. f. Effect of amended pleading Rule 10, Sec. 8. Effect of amended pleadings. An amended pleading SUPERSEDES the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. What happens to the admissions in the original pleading? They cease to be judicial admissions. Thus, they are to be considered as extrajudicial admissions and may be proved by the party relying thereon by formal offer in evidence of such original pleading. (Ching vs. CA, G.R. No. 110844, April 27, 2000) F. Summons (Rule 14) 1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem 50 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Contents. The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain: (a) the name of the court and the names of the parties to the action; (b) a direction that the defendant answer within the time fixed by these Rules; (c) a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the summons. (Rule 14, Sec. 2) SUMMONS is a writ by which the defendant is notified of the action brought against him. Service of such writ is the means by which the court may acquire jurisdiction over his person. NON-SERVICE OR IRREGULAR SERVICE OF SUMMONS may be a ground for dismissal for lack of jurisdiction over the person of the defending party. What is the effect of lack of summons? The trial court does not acquire jurisdiction and renders NULL AND VOID all subsequent proceedings and issuances in the actions from the order of default up to and including the judgment by default and the order of execution. However, lack of summons may be WAIVED as when the defendant fails to make any seasonable objection to the courts lack of jurisdiction over the person of the defendant. Summons May be Served ONLY by 1. Sheriff; 2. Sheriffs deputy; or 3. Other proper court officers; or 4. For justifiable reasons, by any suitable person authorized by the court issuing the summons (Rule 14, Sec. 3) ALIAS SUMMONS one issued by the clerk of court on demand of the plaintiff when the original summons was returned without being served on any or all of the defendants, or when summons has been lost. When issued, it supersedes the first summons. 2. Voluntary appearance Rule 14, Sec. 20. Voluntary appearance. The defendant's voluntary appearance in the action shall be equivalent to service of summons. 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 a voluntary appearance. Voluntary appearance cures the defect in the service of summons. Exc.: Special appearance in court to challenge its jurisdiction over the person of the defendant and the inclusion in a motion to dismiss of other grounds shall not be deemed a voluntary appearance (La Naval Drug Corp. vs. CA, G.R. No. 103200, August 31, 1994). SUMMONS Modes of Service of Summons There are four (4) modes of serving summons: 1) personal service; 2) substituted service; 3) constructive service (by publication) ; and 4) extraterritorial service. What are the purposes of summons? 1. Actions in personam a. To acquire jurisdiction over the person of the defendant; and 51 www.chanroblesbar.com : www.chanroblesbar.com.ph

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b. To give notice to the defendant that an action has been commenced against him (Umandap vs. Sabio, Jr., G.R. No. 140244,August 29, 2000) 2. Actions in rem and quasi in rem not to acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process (Gomez vs. CA, G.R. No. 127692,March 10, 2004). 3. Personal service Rule 14, Sec. 6. Service in person on defendant. Whenever practicable, the summons shall be served by HANDING a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by TENDERING it to him. If there are two (2) or more defendants, each one of them should be served a copy of the summons and the complaint (Bello vs. Ubo, 117 SCRA 91 [1982]) 4. Substituted service Rule 14, Sec. 7 If for justifiable causes, the defendant cannot personally be served with summons within a reasonable time, service may be effected: 1) by leaving copies of the summons at the defendants RESIDENCE with some person of suitable age and discretion then residing therein, or 2) by leaving the copies at the defendants OFFICE or regular place of business with some competent person in charge thereof. In substituted service, it is immaterial that the defendant does not in fact receive actual notice. This will not affect the validity of the service. For substituted service to be justified, the following circumstances must be clearly established: (a) personal service of summons within a reasonable time was impossible; (b) efforts were exerted to locate the party; and (c) the summons was served upon a person of sufficient age and discretion residing at the party’s residence or upon a competent person in charge of the party’s office or place of business. Failure to do so would invalidate all subsequent proceedings on jurisdictional grounds (Robinson vs. Miralles, G.R. No. 163584, December 12, 2006) For substituted service of summons to be available, there must be several attempts by the sheriff to personally serve the summons within a reasonable period [of one month] which eventually resulted in failure to prove impossibility of prompt service. Several attempts means at least three (3) tries, preferably on at least two different dates. In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of service can be confirmed or accepted. (Manotoc vs. Court of Appeals, G.R. No. 130974, August 16, 2006, 499 SCRA 21) If diligent efforts were undertaken by the Sheriff to serve summons upon the defendant but he was PREVENTED from effecting such service by the DEFENDANT HIMSELF, summons shall be deemed PROPERLY served and that the court has acquired jurisdiction over the person of the defendant. (Robinson v. Miralles, supra) To warrant the substituted service of the summons and copy of the complaint, the serving officer must first attempt to effect the same upon the defendant in person. Only after the attempt at personal service has become futile or impossible within a reasonable time may the officer resort to substituted service. Petitioners insistence on personal service by the serving officer was demonstrably superfluous. They had actually received the summonses served through their substitutes, as borne out by their filing of several pleadings in the RTC, including an answer with compulsory counterclaim ad cautelam and a pre trial brief ad cautelam. They had also availed themselves of the modes of discovery available under the Rules of Court. Such acts evinced their voluntary appearance in the action. (Macasaet vs. Co, G.R. No. 156759, June 05, 2013) LPB Defendants filing of a motion for resetting of the hearing of the motion for execution effectively cured the defect of the substituted service of summons. Although the substituted service of summons on defendant is patently defective as the sheriffs return does not contain any statement with regard to the impossibility of personal service, said defect was cured by his voluntary appearance therein. An appearance in whatever form without expressly objecting to the jurisdiction of the court over the person, is a submission to the jurisdiction of the court over 52 www.chanroblesbar.com : www.chanroblesbar.com.ph

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the person of the defendant or respondent. (Cezar vs. Ricafort Bautista, G.R. No. 136415,. October 31, 2006. ) In a proceeding in rem or quasi in rem , jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. Nonetheless, summons must be served upon the defendant not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process requirements. A resident defendant who does not voluntarily appear in court, must be personally served with summons as provided under Section 6, Rule 14 of the Rules of Court. (Biaco vs. Philippine Countryside Rural Bank, G.R. No. 161417, February 8, 2007, 515 SCRA 106.) 5. Constructive service (by publication) a. Service upon a defendant where his identity is unknown or where his whereabouts are unknown Rule 14, Sec. 14. Service upon defendant whose identity or whereabouts are unknown. In ANY ACTION where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts 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 for such time as the court may order. N.B. When the defendant is a resident of the Philippines, service of summons by publication is allowed in any action, even in actions in personam. Hence, this can be allowed in a suit for collection of sum of money, which is an in personam action. b. Service upon residents temporarily outside the Philippines Rule 14, Sec. 16. Residents temporarily out of the Philippines. When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. In ANY suit against a resident of the Philippines temporarily absent from the country, the defendant may be served by SUBSTITUTED service because he still leaves a definite place of residence where he is bound to return. In addition, EXTRATERRITORIAL service [by personal service effected out of the Philippines OR by publication in a newspaper of general circulation in such places and for such time as the court may order] MAY be resorted to WITH LEAVE OF COURT. 6. Extra-territorial service, when allowed Rule 14, Sec. 15. Extraterritorial service. Extraterritorial service of summons is allowed where the action is against a NON RESIDENT DEFENDANT who is NOT FOUND in the Philippines and the action: 1) affects the personal status of plaintiffs; 2) relates to or subject of which is property in the Philippines (real or personal) , in which the defendant has claim, lien or interest, actual or contingent; or 3) in which relief demanded consists wholly, or in part, in excluding the defendant from any interest therein; or 4) property of defendant has been attached within the Philippines A filed a complaint to collect a loan from B, who is a resident of Singapore. May extraterritorial service of summons be effected? No, since the action is in personam. However, if A attaches property of B in the Philippines, the attachment would convert As action into one quasi in rem. Extraterritorial service may then be effected. To be effective, extraterritorial service of summons must be with LEAVE OF COURT and only through any of the following means: 53 www.chanroblesbar.com : www.chanroblesbar.com.ph

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1. Personal service; 2. By publication (and copy of the summons and order of the court must be sent by registered mail to the last known address) ; 3. Any other manner which the court may deem sufficient. (Rule 14, Sec. 15). *** May summons be validly served by telefax or email? Yes. Extraterritorial service may be in any other manner the court may deem sufficient. NOTE: a. The three modes of service of summons upon a non resident must be made OUTSIDE the Philippines, such as through the Philippine Embassy in a country where defendant resides (Valmonte vs. CA, 252 SCRA 92 [1996]). b. Service of summons on husband is not binding on wife who is a non resident (ibid.) Gemperle v. Shenker (G.R. No. L 18164, January 23, 1967) (In contrast to Valmonte): The lower court had acquired jurisdiction over defendant husband, through service of the summons addressed to him upon his wife, Mrs. Schenker, it appearing from said answer that she is the representative and attorney in fact of her husband in the aforementioned civil case, which apparently was filed at her behest, in her representative capacity. . c. Substituted service or extraterritorial service of summons by leave of court on a resident defendant who is temporarily outside of the Philippines is valid. (Rule 14, Sec. 16). NOTE: a. Extraterritorial service of summons is proper only in actions in rem or quasi-in-rem. this is so because in in rem and quasi in rem actions, jurisdiction over the person of the defendant is not a pre requisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. In rem action against the thing itself instead of against the person Quasi in rem individual is named as defendant since the purpose of the proceeding is to subject his interest therein to the obligation or loan burdening the property. b. Any relief granted in in rem or quasi in rem actions must be confined to the res, and the court cannot lawfully render a personal judgment against the defendant. c. Where the action is in personam, such as where the plaintiff seeks to recover damages for the alleged commission of an injury to the person or property of the plaintiff, personal, or if not possible, substituted service of summons, and NOT EXTRATERRITORIAL SERVICE, is necessary to confer jurisdiction upon the person of defendant (Banco do Brasil vs. CA, June 16, 2000). Extraterritorial Service only applies to action in rem or quasi in rem, but not if an action is in personam. The complaint to declare the loan and Hedging Contracts between the parties void with a prayer for damages is an action in personam. Therefore Section 15 is inapplicable. However, the Court ruled that the petitioner, by seeking affirmative reliefs from the trial court, is deemed to have voluntarily submitted to the jurisdiction of the said court. A party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and after obtaining or failing to obtain such relied, repudiate or question that same jurisdiction. (NM Rothschild & Sons (Australia) Limited v. Lepanto Consolidated Mining Company, G.R. No. 175799, November 28, 2011) Can summons be served by mail? NO. It cannot be served by mail but it can be done as a complementary to service of summons by publication, but it does not mean that service by registered mail alone would suffice. (Regalado, Remedial Law Compendium, Vol. I, p. 242, 2005 ed) 7. Service upon prisoners and minors Rule 14, Sec. 9. Service upon prisoners. 54 www.chanroblesbar.com : www.chanroblesbar.com.ph

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When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. Rule 14, Sec. 10. Service upon minors and incompetents. When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother. Rule 14, Sec. 11. Service upon domestic private juridical entity. When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in house counsel. Service on domestic private juridical entity Service may be made on the: a. president b. managing partner c. general manager d. corporate secretary e. treasurer, or f. in-house counsel. Service on an agent of the corporation is not permitted. The designation of persons or officers who are authorized to accept summons for a domestic corporation is limited and more clearly specified. The rule states general manager instead of only manager, corporate secretary instead of secretary and treasurer instead of cashier. Service of summons upon the Branch Manager of petitioner at its branch office in Cagayan de Oro City instead of upon the general manager at its principal office in Davao City is improper. Consequently, the trial court did not acquire jurisdiction over the person of the petitioner. Any proceeding undertaken by the trial court will consequently be null and void (E. B. Villarosa & Partner Co., Ltd. vs. Benito, 312 SCRA 65 [1999]). Clearly, the summons was not served personally on the defendant (respondent) through any of the officers enumerated in Section 11 of Rule 14; rather, summons was served by substituted service on the defendants staff member, Romel Dolahoy. Substituted service was resorted to on the servers first attempt at service of summons, and there was no indication that prior efforts were made to render prompt personal service on the defendant. (B. D. Long Span Builders, Inc. vs. R. S. Ampeloquio Realty Development, Inc., G.R. No. 169919, September 11, 2009. Service upon foreign private juridical entity (Rule 14, Sec. 12). When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its 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 officers or agents within the Philippines. If the foreign private juridical entity is not registered in the Philippines or has no resident agent, service may, with leave of court, be effected out of the Philippines through any of the following means: a) By personal service coursed through the appropriate court in the foreign country with the assistance of the Department of Foreign Affairs; b) By publication once in a newspaper of general circulation in the country where the defendant may be found and by serving a copy of the summons and the court order by registered mail at the last known address of the defendant; c) By facsimile or any recognized electronic means that could generate proof of service; or d) By such other means as the court may in its discretion direct. (As amended by A.M. No. 11 3 6 SC, March 15, 2011) 55 www.chanroblesbar.com : www.chanroblesbar.com.ph

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This will be allowed only if there are well pleaded allegations of having transacted or doing business in the Philippines. The fact of DOING BUSINESS in the Philippines must be established by appropriate allegations in the complaint. The court need not go beyond the allegations of the complaint in order to determine whether it has jurisdiction. A determination that the foreign corporation is doing business is only tentative and is made only for the purpose of enabling the local court to acquire jurisdiction over the foreign corporation through service of summons pursuant to Rule 14, Section 12. Such determination does not foreclose a contrary finding should evidence later show that it is not transacting business in the country. Rule 14, Sec. 13. Service upon public corporations. When the defendant is the Republic of the Philippines service may be effected on the Solicitor General. When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General. The DPWH and its regional office are merely agents of the Republic which is the real party in interest. Hence, the summons should have been directed to the Republic through the OSG. Since the lower court was not able to send summons to the OSG, it was not able to acquire jurisdiction over the Republic. Therefore, the proceedings before the trial court and its decision are hereby declared void. (Republic of the Philippines v. Alberto A. Domingo, G.R. No. 175299; September 14, 2011) 8. Proof of service Rule 14, Sec. 18. Proof of service. The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy. Rule 14, Sec. 19. Proof of service by publication. If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. G. Motions (Rule 15) 1. Motions in general a. Definition of a motion Rule 15, Section 1. Motion defined. A motion is an application for relief other than by a pleading. b. Motions versus pleadings Rule 6, Section 1. Pleadings defined. Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. c. Contents and form of motions Rule 15, Sec. 2. Motions must be in writing. All motions shall be in writing except those made in open court or in the course of a hearing or trial. Rule 15, Sec. 3. Contents. A motion shall state the (a) relief sought to be obtained and the (b) grounds upon which it is based, and if required by these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. d. Notice of hearing and hearing of motions - HNP 56 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Rule 15, Sec. 4. Hearing of motion. Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days BEFORE the date of hearing, unless the court for good cause sets the hearing on shorter notice. Rule 15, Sec. 5. Notice of hearing. The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days AFTER the filing of the motion. Rule 15, Sec. 6. Proof of service necessary. No written motion set for hearing shall be acted upon by the court without proof of service thereof. > e. Omnibus motion rule Rule 15, Sec. 8. Omnibus motion. Subject to the provisions of section 1 of Rule 9, a MOTION attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed WAIVED. Gen. Rule: All available grounds for objection in attacking a pleading, order, judgment, or proceeding [POJP] should be invoked at one time; otherwise, they shall be deemed waived Exc. The court may dismiss the case motu proprio based on: 1. Lack of jurisdiction over the subject matter; 2. Litis pendentia 3. Res judicata; and 4. Prescription [LLRP] (Rule 9, Sec. 1) f. Litigated and ex parte motions Litigated motion compliance with Rule 15 necessary. A litigious motion is one which the court may not act upon without prejudicing the rights of the adverse party. Ex. Motion for reconsideration, motion to dismiss, motion to declare defendant in default, motion for execution, motion for judgment on the pleadings and motion for summary judgment Ex parte motions While a motion may be allowed to be filed ex parte and is an exception to the 3 day notice rule, it does not necessarily mean that the hearing thereof shall be dispensed with. The court may still hear the same ex parte, that is, in the absence of the opposing party, since the court can very well see to it that the latter’s interests will be duly protected. An ex parte proceeding merely means that it is taken for granted at the instance and for the benefit of one party, and without notice to or contestation by any party adversely affected. Ex. motion for extension of time to file answer; motion for postponement; motion for extension of time to file record on appeal; motion to set case for pre trial. g. Pro-forma motions A motion that does not comply with Rule 15, particularly Sections 4, 5 and 6 (hearing, notice of hearing, proof of service) , is a mere scrap of paper, should not be accepted for filing and is not entitled to judicial cognizance and does not affect any reglementary period involved for the filing of the requisite pleading. As to Sections 4, 5, and 6, Rule 15 of the Rules of Court, they provide that the notice of hearing shall be directed to the parties concerned, and shall state the time and place for the hearing of the motion, are mandatory. If not religiously complied with, they render the motion pro forma. As such, the motion is a useless piece of paper that will not toll the running of the prescriptive period. However, jurisprudence such as the case of Philippine National Bank v. Paneda, 515 SCRA 639 (2007) have allowed for the liberal interpretation of such rules when there is substantial compliance. Thus, even if the motion may be defective for failure to address the notice of hearing of said motion to the parties concerned, the defect was cured by the (a) courts taking cognizance thereof and the fact that the (b) adverse party was otherwise notified (thru 57 www.chanroblesbar.com : www.chanroblesbar.com.ph

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registered mail) of the existence of said pleading. (Dumaguete v. Philippine Ports Authority, G.R. No. 168973; August 24, 2011) 2. Motion for Bill of Particulars (Rule 12) Options available to the defendant upon receipt of the complaint 1. Filing of a motion for bill of particulars 2. Filing of a motion to dismiss 3. Filing of an answer to the complaint a. Purpose and when applied for What is the purpose of a bill of particulars? Its purpose is to aid in the preparation of a responsive pleading. An action cannot be dismissed on the ground that the complaint is vague or indefinite (Galeon v. Galeon, G.R. No. L 30380, Feb. 28, 1973). It is a motion which seeks to clarify matters in the complaint which are vague, ambiguous, or not averred with sufficient definiteness. It applies to ANY PLEADING which in the perception of the movant contains ambiguous allegations. What is the nature of and procedure for a bill of particulars? a. When filed. Before responding to a pleading. If the pleading is a reply, the motion must be filed within ten (10) days from service. b. Grounds. A party may move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularly to enable him properly to prepare his responsive pleading. The motion shall point out 1. The defects complained of; 2. The paragraphs wherein they are contained; 3. The details desired. (Rule 12, Sec. 1) The motion must comply with the requirements for motions under Rule 15. Otherwise, it shall be treated as a pro forma motion which shall not stop the running of the period for filing the requisite pleading b. Actions of the court (1) Grant the motion, or (2) Deny it outright, or (3) Hold a hearing therein. (Rule 12, Sec. 2) c. Compliance with the order and effect of noncompliance Rule 12, Sec. 3. Compliance with order. If the motion is GRANTED, either in whole or in part, the compliance therewith must be effected within ten (l0) days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party What is the effect of non-compliance with order for bill of particulars? a. If the order directing the plaintiff to submit a bill of particulars is not complied with, or in case of insufficient compliance, b. the court may order c. the STRIKING OUT of the pleading or the portion thereof to which the order was directed or, d. MAKE SUCH ORDERS as it DEEMS JUST. (Rule 12, Sec. 4)

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d. Effect on the period to file a responsive pleading Rule 12, Sec. 5. Stay of period to file responsive pleading. After SERVICE of the bill of particulars or of a more definite pleading, or after NOTICE OF DENIAL of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event. 3. Motion to Dismiss (Rule 16) Four general types of motion to dismiss under the Rules 1. Motion to dismiss before answer (Rule 16) 2. Motion to dismiss by plaintiff (Rule 17) 3. Motion to dismiss on demurrer to evidence after plaintiff has rested his case (Rule 33) 4. Motion to dismiss appeal either in RTC (Rule 41, Sec. 13) , CA (Rule 50, Sec. 1) or SC (Rule 56, Sec. 5) When may a court motu proprio dismiss a case? 1. When it appears from the pleadings or the evidence on record that the following grounds for dismissal are present: lack of jurisdiction over the subject matter; litis pendentia; res judicata and prescription (Rule 9, Sec. 1) LLRP 2. 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 complaint for an unreasonable length of time, or to comply with the Rules of Court or any order of the court (Rule 17, Sec. 3) ;and 3. After an examination of the allegations in the complaint and such evidence attached thereto, the court may dismiss the complaint outright on any of the grounds apparent therefrom [ex. lack of jurisdiction] (Revised Rule on Summary Procedure, Sec. 4) a. Grounds What are the grounds for a motion to dismiss?(Rule 16, Section 1) a. That the court has no jurisdiction over the person of the defending party; b. That the court has no jurisdiction over the subject matter of the claim; c. That venue is improperly laid; d. That the plaintiff has no legal capacity to sue; e. That there is another action pending between the same parties for the same cause; f. That the cause of action is barred by a prior judgment or by the statute of limitations; g. That the pleading asserting the claim states no cause of action; h. That the claim or demand set forth in plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished; i. That the claim on which the action is founded is unenforceable under the provisions of the Statute of Frauds; and j. That a condition precedent for filing the claim has not been complied with. NOTES: 1. The motion must comply with Rule 15. The court is without authority to act on the motion without PROOF OF SERVICE of the notice of hearing. 2. Waiver of defenses. Defenses and objections not pleaded whether in a motion to dismiss or in the answer are deemed waived (Rule 9, Sec. 1, 1st sentence).

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Defenses and objections not waived even if not raised in a motion to dismiss or answer. The court shall motu proprio dismiss the claim when it appears from the pleadings or the evidence on record that: a. The court has no jurisdiction over the subject matter (lack of jurisdiction) b. There is another action pending between the same parties for the same cause (litis pendentia) c. The action is barred by prior judgment (res judicata) d. The action is barred by the statute of limitations (prescription) (Rule 9, Sec. 1, 2nd sentence). [LLRP] Discussion of individual grounds The court has no jurisdiction over the person of the defending party The court has no jurisdiction over the subject matter of the claim. The venue Is Improperly laid. a. Venue of an action depends upon the: (1) nature of the action (2) residence of the parties (3) stipulation of the parties (4) law b. Test to determine nature of action The nature of the action is determined from the allegations of the complaint, the character of the relief, its purpose and prime objective. When the prime objective is to recover real property, it is a real action. Plaintiff Has No Legal Capacity To Sue a. Legal capacity to sue means that a party is not suffering from any disability such as minority, insanity, covertures, lack of juridical personality, incompetence, civil interdiction or does not have the character or representation which he claims or with respect to foreign corporation, that it is doing business in the Philippines with a license. b. In Pilipinas Shell Petroleum Corporation v. Dumlao, the Supreme Court held that a person who has no interest in the estate of a deceased person has no legal capacity to file a petition for letters of administration. With respect to foreign corporations, the qualifying circumstances of plaintiffs capacity to sue being an essential element must be affirmatively pleaded. The qualifying circumstance is an essential part of the element of the plaintiffs capacity to sue. The complaint must either allege that it is doing business in the Philippines with a license or that it is a foreign corporation not engaged in business and that it is suing in an isolated transaction. Pendency Of Another Action Between The Same Parties For The Same Cause (Litis Pendentia) a. Rationale of the Rule: Like res judicata as a doctrine, litis pendentia is a sanction of public policy against multiplicity of suits. The principle upon which a plea of another action pending is sustained is that the latter action is deemed unnecessary and vexatious. b. Requisites of Litis Pendentia: (1) Identity of parties, or at least such as representing the same interest in both actions; (2) Identity of rights asserted and prayed for, the relief being founded on the same facts; and 60 www.chanroblesbar.com : www.chanroblesbar.com.ph

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(3) The identity on the preceding particulars should be such that any judgment which may be rendered on the other action will, regardless of which party is successful, amount to res judicata in the action under consideration. Bar by prior judgment(Res Judicata) a. Requisites of Res Judicata: (1) the former judgment or order must be final; (2) it must be a judgment or order on the merits; (3) the court which rendered it had jurisdiction over the subject matter and the parties; and (4) there must be, between the first and second actions, identity of parties, of subject matter and of cause of action. b. Two aspects of Res Judicata (1) Bar by Former Judgment when, between the first case where the judgment was rendered, and the second case where the judgment is invoked, there is identity of parties, subject matter and cause of action. (2) Conclusiveness of Judgment when there is an identity of parties but not cause of action, the judgment being conclusive in the second case only as to those matters actually and directly controverted and determined, and not as to matters invoked thereon. c. A judicial compromise has the effect of res judicata and is immediately executory and not appealable. The ultimate test in ascertaining the identity of causes of action whether or not the same evidence fully supports and establishes both the present cause of action and the former cause of action. Only substantial, and not absolute, identity of parties is required for res judicata. Bar by Statute of Limitations (Prescription of Actions) An action prescribes by the lapse of time fixed in the Civil Code (Articles 1139 to 1155). 1. Eight years a. actions to recover movables 2. Thirty years a. real actions over immovables 3. Ten years a. written contract b. obligation created by law c. judgment 4. Six years a. oral contract b. quasi contract 5. One year a. forcible entry and unlawful detainer b. defamation 6. Five years All other actions whose periods are not fixed in the Civil Code or other laws NOTES: a. Prescription and estoppel cannot be invoked against the State (Delos Reyes vs. CA, January 27, 1998, 285 SCRA).

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b. Even if the defense of prescription has not been raised in a motion to dismiss or an answer, if the plaintiffs complaint or evidence shows that the action had prescribed, the action shall be dismissed. (Rule 9, Sec. 1) c. Prescription cannot be invoked as a ground if the contract is alleged to be void ab initio but where prescription depends on whether contract is void or voidable, there must be a hearing. The Claim States No Cause of Action a. Elements of a Cause of Action (1) a RIGHT in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an OBLIGATION on the part of the named defendant to respect or not to violate such right; and (3) an ACT OR OMISSION on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages. b. General rule: a motion to dismiss for failure to state a cause of action HYPOTHETICALLY ADMITS the material allegations of the complaint. Exceptions: (1) allegations of which the court will take judicial notice are not true (2) legally impossible facts (3) facts inadmissible in evidence (4) facts which appear by record or document included in the pleadings to be unfounded (5) matters of evidence (6) surplusage and irrelevant matters (7) scandalous matters (8) averments contradicted by more specific averments (9) conclusions or interpretations of law (10) allegations of fact the falsity of which is subject to judicial notice (Tan vs. Director of Forestry, 125 SCRA 302 [1982]) What is the issue in a motion to dismiss on the ground that the complaint states no cause of action? Admitting the allegations of the complaint, may the court render VALID JUDGMENT in accordance with its prayer and the law? NOTE: a. The insufficiency of the cause of action must appear on the FACE OF THE COMPLAINT to sustain a dismissal on that ground. b. No extraneous matter may be considered nor facts alleged which would require evidence and therefore, must be raised as defenses and await the trial. The trial court may elect to hold a preliminary hearing on affirmative defenses as raised in the answer under Section 6 of Rules 16 of the Rules of Court. Such a hearing is not necessary when the affirmative defense is failure to state a cause of action, and that it is, in fact, error for the court to hold a preliminary hearing to determine the existence of external facts outside the complaint. The reception and the consideration of evidence on the ground that the complaint fails to state a cause of action, has been held to be improper and impermissible. Thus, in a preliminary hearing on a motion to dismiss or on the affirmative defenses raised in an answer, the parties are allowed to present evidence except when the motion is based on the ground of insufficiency of the statement of the cause of action which must be determined on the basis 62 www.chanroblesbar.com : www.chanroblesbar.com.ph

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only of the facts alleged in the complaint and no other. (Aquino vs. Quiazon, G.R. No. 201248, March 11, 2015) For the ground to be effective, the insufficiency of the complaint must appear on the face of the complaint, and nowhere else. It will be unfair to the plaintiff, indeed, to determine the sufficiency of his cause of action from facts outside of those pleaded in the complaint. A complaint should not be dismissed for insufficiency unless it appears to a certainty, from the face of the complaint, that plaintiff would be entitled to no relief under any state of facts which could be proved within the facts alleged therein. (Sotto vs. Palicte, G.R. No. 159691, February 17, 2014) LPB The Claim or Demand Has Been Paid, Waived, Abandoned, or Otherwise Extinguished. Under Art. 1231 of the Civil Code, obligations are extinguished: (1) by payment or performance; (2) by the loss of the thing due; (3) by the condonation or remission of the debt; (4) by the confusion or merger of rights of debtor and creditor; (5) by compensation; and (6) by novation Obligations may also be extinguished by annulment, rescission, fulfillment of a resolutory condition and prescription. The Claim is Unenforceable Under the Statute of Frauds The statute of frauds is governed by Art. 1403 (2) of the Civil Code, which provides that a. certain contracts therein enumerated, unless IN WRITING and SUBSCRIBED by the party charged or by his agent, b. are UNENFORCEABLE and EVIDENCE on the agreement CANNOT BE RECEIVED without the writing or secondary evidence of its contents. NOTES: a. Where applied: The statute of frauds applies only to EXECUTORY CONTRACTS and in actions for their SPECIFIC PERFORMANCE, not to those which have been totally or partially performed. Performance, which must be proved, takes the contract out of the operation of the principle (Tankiko vs. Cesar, 302 SCRA 559 [1999]) b. Purpose: To prevent fraud and perjury in the enforcement of obligations depending for their evidence on the unassisted memory of witnesses by requiring certain contracts and transactions to be in writing (Claudel vs. CA, 119 SCRA 113 [1999]). A Condition Precedent For Filing The Claim Has Not Been Complied With Where a condition precedent for filing the claim in court has not been complied with, the cause of action has not accrued. A complaint may be dismissed for FAILURE TO STATE A CAUSE OF ACTION if: a. the case is between or among members of the SAME FAMILY and there is no allegation that earnest efforts towards a COMPROMISE has been exerted, or b. the claim is referable to the Katarungang Pambarangay and prior recourse to barangay CONCILIATION has not been made, or c. the case involves a matter which the law requires that there be EXHAUSTION of ADMINISTRATIVE REMEDIES before a litigant is allowed to resort to court for reliefs, except where the complaint alleges facts which bring the case under any of the exceptions thereto (Sunville Timber Products, Inc. vs. Abad, 206 SCRA 582 [1992]). b. Resolution of Motion 63 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Rule 16, Sec. 3. After the hearing, the court may 1) dismiss the action or claim, 2) deny the motion, or 3) order the amendment of the pleading. The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor. c. Remedies of plaintiff when the complaint is dismissed a. APPEAL the order granting the motion or b. REFILE the complaint, except where grounds for dismissal are: (1) that the cause of action is barred by prior judgment [res judicata] (2) that the cause of action is barred by the statute of limitations [prescription] (3) that the claim or demand has been paid, waived, abandoned or otherwise extinguished [extinguishment] (4) that the claim is unenforceable under the statute of frauds [statute of frauds] [RPES] (Rule 16, Sec. 5) d. Remedies of the defendant when the motion to dismiss is denied a. File his ANSWER (within the balance of the 15 day period to which he was entitled at the time of serving the motion, but not less than 5 days in any event, computed from his receipt of the order of denial Rule 16, Sec. 4) and proceed with the hearing before the trial court. b. if the decision is adverse, APPEAL therefrom. The denial of the motion to dismiss being interlocutory, cannot be questioned by certiorari; it cannot be the subject of appeal until judgment is rendered (Casil vs. CA, January 28, 1998). c. Exception: where the court denying the motion acts without or in excess of jurisdiction or with grave abuse of discretion, the defendant may question the denial by petition for CERTIORARI under Rule 65. Reason: it would be unfair to require the defendant to undergo the ordeal and expense of trial under such circumstances because the remedy of appeal then would not be plain and adequate (Drilon vs. CA, March 20, 1997). ***e. Effect of dismissal of complaint on certain grounds Rule 16, Sec. 5. Effect of dismissal. Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f) , (h) and (i) of section 1 hereof shall BAR the refiling of the same action or claim. These are: (1) that the cause of action is barred by prior judgment [res judicata] (2) that the cause of action is barred by the statute of limitations [prescription] (3) that the claim or demand has been paid, waived, abandoned or otherwise extinguished [extinguishment] (4) that the claim is unenforceable under the statute of frauds [statute of frauds] [RPES] (Rule 16, Sec. 5) f. When grounds pleaded as affirmative defenses Rule 16, Sec. 6. Pleading grounds as affirmative defenses. 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 a motion to dismiss had been filed. The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. 64 www.chanroblesbar.com : www.chanroblesbar.com.ph

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But no hearing if ground is failure to state a cause of action. g. Bar by dismissal See e above h. Distinguished from demurrer to evidence under Rule 33: After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is DENIED, he shall have the right to present evidence. If the motion is GRANTED but on appeal the order of dismissal is reversed, he shall be deemed to have WAIVED the right to present evidence. (Rules of Court, Rule 33, Sec. 1.) A demurrer to evidence is differentiated from a motion to dismiss in that the former can be availed of only after the presentation of plaintiffs evidence while the latter is instituted as a general rule before a responsive pleading is filed. Distinction between motion to dismiss for failure to state a cause of action and to dismiss based on lack of cause of action. The first is raised in a motion to dismiss under Rule 16, Sec. 1 (g) before a responsive pleading is filed and can be determined only from the ALLEGATIONS of the pleading and not from evidentiary matters. The second is raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case and can be resolved only on the basis of the EVIDENCE he has presented in support of his claim(The Manila Banking Corp. vs. University of Baguio, Inc., G.R. No. 159189, February 21, 2007) When the motion for a demurrer to evidence is granted, the judgment of the court is considered on the merits and so it has to comply with Rule 36, Section 1, regarding the requirement that judgment should clearly and distinctly state the facts and the law on which it is based. If the motion is denied, the order is merely interlocutory. (Nepomuceno vs. Commission on Elections, G.R. No. 60601, December 29, 1983, 126 SCRA 472.) BAR QUESTION (1992) : Is a motion to dismiss with counterclaim sanctioned by the Rules of Court? a. If your answer is YES state your reasons. b. If your answer is NO, give your reasons and state what the defendant should instead file in court to preserve his counterclaim while maintaining the ground asserted in his motion to dismiss as an issue that should be the subject of a preliminary hearing, ANSWER: No, because a counterclaim is contained in an answer and not in a motion to dismiss. What the defendant should do is to plead the ground of his motion to dismiss as an affirmative defense in his answer, together with his counterclaim, and ask for a preliminary hearing on his affirmative defense as if a motion to dismiss has been filed. In the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed. The dismissal of the complaint after preliminary hearing shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer (Rule 16,Sec. 6). NOTE: The counterclaim mentioned here apparently refers to a PERMISSIVE counterclaim, as it allows its prosecution in the same or separate action. Only a permissive counterclaim, and not a compulsory counterclaim, may be separately or independently prosecuted. H. Dismissal of Actions (Rule 17) 1. Dismissal upon notice by plaintiff; Two-dismissal rule 1. NOTICE OF DISMISSAL OF COMPLAINT A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. (Rule 17, Sec. 1). General rule: the dismissal of the complaint under this rule is WITHOUT PREJUDICE. 65 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Exceptions: a. where the notice of dismissal so provides; b. where the plaintiff has previously dismissed the same case in a court of competent jurisdiction; c. even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claims involved. For the notice of dismissal to be effective, there must be an order confirming the dismissal. 2. Dismissal upon motion by plaintiff; effect on existing counterclaim Rule 17, Sec. 2. Dismissal upon motion of plaintiff. Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal, the dismissal 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 fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. 3. Dismissal due to the fault of plaintiff Rule 17, Sec. 3. Dismissal due to fault of plaintiff. 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. 4. Dismissal of counterclaim, cross-claim or third-party complaint Rule 17, Sec. 4. Dismissal of counterclaim, cross claim, or third party complaint. The provisions of this Rule shall apply to the dismissal of any counterclaim, cross claim, or third party complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing. DISMISSALS What dismissals are WITH prejudice? a. Dismissal upon mere NOTICE without order of the court when filed by a party who was once dismissed in a competent court an action based on or including the same claim (Rule 17, Sec. 1). b. Dismissal by order of the court upon a party’s MOTION which specifies that the same shall be with prejudice to the filing of a subsequent action based on or including the same claim (Rule 17, Sec. 2). c. Dismissal upon motion of a defendant or on the courts motion upon plaintiffs FAILURE TO PROSECUTE his claim (Rule 17, Sec. 3). d. Dismissal as a result of plaintiffs FAILURE TO APPEAR during the pre trial, unless otherwise ordered by the court (Rule 18, Sec. 5). What dismissals are WITHOUT prejudice? a. Dismissal for the first time by plaintiff upon mere NOTICE without order of the court (Rule 17, Sec. 1). b. Dismissal by order of the court upon plaintiffs own MOTION (Rule 17, Sec. 2). 66 www.chanroblesbar.com : www.chanroblesbar.com.ph

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c. Dismissal upon motion of defendant or upon the courts own motion upon FAILURE TO PROSECUTE by plaintiff and the court SPECIFIES that the same shall be without prejudice (Rule 17, Sec. 3). When is an action dismissed for failure to prosecute? a. If the plaintiff fails to appear at the time of trial; b. If he fails to prosecute his action for an unreasonable length of time; c. If he fails to comply with the Rules of Court or any order of the court (Rule 17, Sec. 3) NOTE: Effect of dismissal for failure to prosecute Once a case is dismissed for failure to prosecute, this has the effect of an ADJUDICATION ON THE MERITS and is understood to be WITH PREJUDICE to the filing of another action unless otherwise provided for in the order of dismissal (De Knecht vs. CA, May 20, 1998). Dismissal for failure to prosecute is an adjudication on the merits. Therefore, such dismissal should be challenged by APPEAL within the reglementary period. (3A Apparel Corporation vs. Metropolitan Bank and Trust Co. , G.R. No. 186175, Aug. 25, 2010) I. Pre-trial (Rule 18) 1. Concept of pre-trial Pre trial is a procedural device by which the Court is called upon after the filing of the last pleading to compel the parties and their lawyers to appear before it, and negotiate an amicable settlement or otherwise make a formal statement and embody in a single document the issues of fact and law involved in the action, and such other matters as may aid in the prompt disposition of the action, such as the number of witnesses the parties intend to present, the tenor or character of their testimonies, their documentary evidence, the nature and purpose of each of them and the number of trial dates that each will need to put on his case. One of the objectives of pre trial procedure is to take the trial of cases out of the realm of surprise and maneuvering. (Permanent Concrete Products, Inc. vs. Teodoro, G.R. No. 29776, November 29, 1968, 26 SCRA 332 ) Pre trial also lays down the foundation and structural framework of another concept, that is, the continuous trial system. (Circular No. 1 89, Administrative Circular No. 4, September 4, 1988) Pre trial is mandatory but not jurisdictional. (Martinez vs. de la Merced, G.R. No. 82309, June 20, 1989, 174 SCRA 18) Note: Section 4, Rule 18 imposes the duty on litigating parties and their respective counsel to appear during pre trial. The provision also provides for the instances where the non appearance of a party may be excused. Nothing, however, in Section 4 provides for a sanction should the parties or their respective counsel be absent during pre trial. Instead, the penalty is provided for in Section 5. Notably, what Section 5 penalizes is the failure to appear of either the plaintiff or the defendant, and not their respective counsel (Paredes vs. Verano, G.R. No. 164375, October 12, 2006). ) 2. Nature and purpose What is the nature of pre-trial? It is mandatory (Rule 18, Sec. 2). Note: Pre trial is mandatory in civil cases. In criminal cases, it is mandatory in cases cognizable by the following: 1. Sandiganbayan 2. RTC 3. MeTC, MTCC, MTC, MCTC It is also mandatory in both criminal and civil cases under the Rule on Summary Procedure. The Courts authority is confined to a mere determination of the propriety of rendering a judgment on the pleadings or a summary judgment 67 www.chanroblesbar.com : www.chanroblesbar.com.ph

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What are the purposes of pre-trial? The court shall consider the following purposes: 1. Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; 2. Simplification of the issues; 3. Necessity or desirability of amendments to the pleadings; 4. Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; 5. Limitation of the number of witnesses; 6. Advisability of a preliminary reference of issues to a commissioner; 7. Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist; 8. Advisability or necessity of suspending the proceedings; and 9. Such other matters as may aid in the prompt disposition of the action (Rule 18, Sec. 2). 3. Notice of pre-trial Rule 18, Sec. 3. Notice of pre trial. The notice of pre trial shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him. On whom must notice of pre-trial be served? (Rule 18, Sec. 3) a. On counsel who is charged with the duty of notifying his client, or b. On the party who has no counsel Plaintiff required to move that the case be set for pre-trial Under Rule 18, Sec. 1, after the last pleading has been served and filed, the plaintiff has the duty to promptly move ex parte that the case be set for pre trial. If he does not file such motion within a reasonable period, the court may dismiss the case for his failure to prosecute pursuant to Rule 17, Sec. 3 (failure to prosecute his action for an unreasonable length of time). This has been superseded by A.M. No. 03 1 09 SC (Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre Trial and Use of Deposition Discovery Measures) which took effect on August 29, 2006. . Under I.A.1.2 Within 5 days after filing of the reply, the plaintiff must promptly move ex parte that the case by set for pre trial conference. If the plaintiff fails to file such motion within the given period, the Branch Clerk of Court SHALL ISSUE A NOTICE OF PRE-TRIAL. Binding effect of admissions or stipulations Admissions or stipulations made during the pre trial and stated in the pre trial order are BINDING upon the party making the admissions (Alano vs. CA, 383 SCRA 269 [1997]). 4. Appearance of parties; effect of failure to appear Parties and their counsel BOTH have the duty to appear at pre trial Non-appearance may be excused only if: 1. A valid cause is shown; or 2. A representative appears fully authorized in writing a) to enter into an amicable settlement, b) to submit to alternative modes of dispute resolution and c) to enter into stipulations or admissions of facts and of documents. (Rule 18, Sec. 4) The authorization in writing must be in the form of a SPECIAL POWER OF ATTORNEY.

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What is the effect of failure of the parties to appear at the pre-trial? 1. If the plaintiff fails to appear the action shall be dismissed with prejudice, unless otherwise ordered by the court (Rule 18, Sec. 5, 1st and 2nd sentences). 2. If the defendant fails to appear plaintiff shall be allowed to present his evidence ex parte and the court shall render judgment on the basis thereof (Rule 18, Sec. 5, 3rd sentence). 5. Pre-trial brief The pre-trial brief(to be filed at least three days before the pre trial) shall contain the following: 1. Statement of the parties willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms 2. A summary of admitted facts and proposed stipulation of facts 3. Issues to be tried or resolved 4. Documents or exhibits to be presented, stating the purpose thereof (No evidence shall be allowed to be presented and offered during the trial in support of a party's evidence in chief other than those that had been earlier identified and pre marked during the pre trial, except if allowed by the court for good cause shown (A.M. No. 03 1 09 SC) 5. A manifestation of their having availed OR their intention to avail themselves of discovery procedures or referral to commissioners; 6. The number and names of witnesses and the substance of their testimonies (Rule 18, Sec. 6) Parties are bound by the representations and statements in their respective pre trial briefs as such are in the nature of judicial admissions. What is the effect of failure to file a pre-trial brief? Same effect as failure to appear at the pre trial (Rule 18, Sec. 6). As to plaintiff

his complaint may be dismissed or he is non suited.

As to defendant he may be considered as in default, and plaintiff may be authorized to present evidence ex parte against him. (Rule 18, Sec. 5) Distinction between pre-trial in civil case and pre-trial in criminal case Civil Case

Criminal Case

1. it is set when the plaintiff moves ex parte to set 1. it is ordered by the court and no motion the case for pre trial. to set the case for pre trial is required from either the prosecution or the defense. 2. the motion to set case for pre trial is made after 2. the pre trial is ordered by the court the last pleading has been served and filed. after arraignment and within 30 days from the date the court acquires jurisdiction over the person of the accused. 3. considers the possibility of an amicable 3. does not include the considering of the settlement as an important objective. possibility of amicable settlement of criminal liability as one of its purposes. 4. the agreements and admissions made in the 4. there is a stricter procedure required. pretrial are not required to be signed by both the All agreements or admissions made or parties and their counsels. They are to be entered during the pretrial conference 69 www.chanroblesbar.com : www.chanroblesbar.com.ph

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contained in the record of pre trial and the pre trial shall be reduced in writing and signed by order. However, A.M. No. 03 1 09 SC dated July 13, both the accused and counsel, otherwise, 2004 now requires the proceedings during the they cannot be used against the accused. preliminary conference to be recorded in the Minutes of Preliminary Conference to be signed by both parties and/or counsel. The rule allows either the party or his counsel to sign the minutes. 5. the sanction for non appearance in a pre trial 5. the sanction are imposed upon the are imposed upon the plaintiff and the defendant counsel for the accused or the in a civil case. prosecutor. 6. a pre trial brief is required to be submitted

6. pre trial brief is not required to be submitted. (Civil Procedure, A Restatement of the Bar, Willard B. Riano, 2009 Edition pp. 373 374)

Pre-Trial Order The order of the court is issued upon the termination of the pre trial. The order shall contain 1. The matters taken up in the conference; 2. The action taken thereon; 3. The amendments allowed to the pleadings; and 4. The agreements or admissions made by the parties. The pre trial order shall define and limit the issues to be tried and shall control the subsequent course of the action except if it is modified before trial to prevent manifest injustice (Rule 18, Sec.7) 7. Alternative Dispute Resolution (ADR) A.M. No. 01-10-5-SC-PHILJA, 0ctober 16, 2001 Coverage: 1. All civil cases, settlement of estates, and cases covered by the Rule on Summary Procedure, except those which by law may not be compromised; 2. Cases cognizable by the Lupong Tagapamayapa under the Katarungang Pambarangay Law; 3. The civil aspect of BP 22 cases; and 4. The civil aspect of quasi offenses under Title 14 of the Revised Penal Code The trial court, after determining the possibility of an amicable settlement or of a submission to alternative modes of dispute resolution, shall issue an Order referring the case to the Philippine Mediation Center (PMC) Unit for mediation and directing the parties to proceed immediately to the PMC Unit. The Order shall be personally given to the parties during the pre trial. Copy of the Order together with a copy of the Complaint and Answer/s, shall be furnished the PMC Unit within the same date The Supervisor of the PMC Unit shall assist the parties select a mutually acceptable Mediator from a list of duly accredited Mediators and inform the parties about the fees, if any, and the mode of payment. If the parties cannot agree on a Mediator, then the Supervisor shall assign the Mediator. The trial court shall immediately be notified of the name of the Mediator, and shall thereafter confirm the selection/appointment of the Mediator. The Mediator shall immediately commence the mediation proceedings unless both parties agree to reset the mediation within the next five (5) working days, without need of further notice. The Mediator shall be considered as an officer of the court 70

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Lawyers may attend the mediation proceedings and shall cooperate with the Mediator towards the amicable settlement of the dispute The period during which the case is undergoing mediation shall be excluded from the regular and mandatory periods for trial and rendition of judgment in ordinary cases and in cases under summary procedure. The period for mediation shall not exceed (30) days, extendible for another 30 days, in order to allow the parties sufficient time to reach a compromise agreement and put an end to litigation In case of SUCCESSFUL settlement, the trial court shall immediately be informed and given (a) the original Compromise Agreement entered into by the parties as basis for the rendition of a judgment by compromise which may be enforced by execution or, (b) a withdrawal of the Complaint or, (c) a satisfaction of the claim. If the mediation is NOT SUCCESSFUL, the Mediator shall issue a Certificate of Failed Mediation for the purpose of returning the case for further judicial proceeding Since mediation is part of Pre Trial, the trial court shall impose the appropriate sanction including but not limited to censure, reprimand, contempt and such sanctions as are provided under the Rules of Court for failure to appear for pre trial, in case any or both of the parties absent himself/themselves, or for abusive conduct during mediation proceedings J. Intervention(Rule 19) INTERVENTION is a legal proceeding by which a person who is NOT a party to the action is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirement set by the Rules of Court. 1. Requisites for intervention Requisites For Intervention (Rule 19, Sec. 1) 1. There must be a motion for intervention filed BEFORE rendition of judgment. 2. Movant must show in his motion that a. he has legal interest in the matter in litigation, in the success of either of the parties in the action, or against both parties. b. he is situated as to be adversely affected by a distribution or other disposition of property in the custody of the court 3. Intervention must not unduly delay or prejudice the adjudication of the rights of the original parties. 4. Intervenors rights may not be fully protected in a separate proceeding. LEGAL INTEREST one that is actual and material, direct and of an immediate character, not merely contingent or expectant. Intervention is NOT an absolute right (nor is it compulsory or mandatory) , as it is within the courts discretion to grant the same. Intervention is an ancillary and supplemental proceeding to an existing litigation. Thus, the final dismissal of the principal action results in the denial for the motion to intervene. 2. Time to intervene (Rule 19, Sec. 2) Motion for intervention may only be filed BEFORE judgment is rendered by the trial court. The motions for intervention were filed after judgment had already been rendered, indeed when the case was already final and executory. Certainly, intervention can no longer be allowed in a case already terminated by final judgment. Intervention is merely collateral or accessory or ancillary to the principal action, and not an independent proceeding; it is an interlocutory proceeding dependent on or subsidiary to the case between the original parties. Where the main action ceases to exist, there is no pending proceeding wherein the intervention may be based. (Looyuko vs. Court of Appeals, G.R. No. 102696, July 12, 2001)

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However, in some cases, the Supreme Court has allowed intervention after judgment, and in one case even after the judgment had become final and executory, to serve the ends of justice and equity. (Office of the Ombudsman vs. Miedes, Sr., G.R. No. 176409, February 27, 2008) Although Rule 19 of the Rules of Court is explicit on the period when a motion to intervene may be filed. This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also been granted to afford indispensable parties, who have not been impleaded, the right to be heard even after a decision has been rendered by the trial court, when the petition for review of the judgment has already been submitted for decision before the Supreme Court, and even where the assailed order has already become final and executory. (Deogenes O. Rodriguez vs. Court of Appeals, G.R. No. 184589, June 13, 2013) 3. Remedy from the denial of motion to intervene The remedy of the aggrieved party is APPEAL The allowance or disallowance of a motion to intervene is addressed to the sound discretion of the court hearing the case. This discretion, once exercised, is not reviewable by certiorari or mandamus save in instances where such discretion is exercised in an arbitrary or capricious manner. (Gallego vs. Galang, G.R. No. 130228, July 27, 2004) Note: Rule 20 (Calendar of Cases) and Rule 22 (Computation of Time) not included. K. Subpoena (Rule 21) 1. Subpoena duces tecum Rule 21, Section 1. Subpoena and subpoena duces tecum. Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum. 2. Subpoena ad testificandum A process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. (Rule 21, Section 1) Who issues subpoena? 1. The court before whom the witness is required to attend; 2. The court of the place where the deposition is to be taken; 3. The officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or 4. Any Justice of the SC or of the CA in any case or investigation pending within the Philippines (Rule 21, Sec. 2) What are the contents of subpoena? It shall state the name of the court and the title of the action or investigation, shall be directed to the person whose attendance is required, and in the case of a subpoena duces tecum, it shall also contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant (Rule 21, Sec. 3) 3. Service of subpoena Rule 21, Sec. 6. Service. Service of a subpoena shall be made in the same manner as personal or substituted service of summons. The original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one days attendance and the kilometrage allowed by these Rules, except that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of 72 www.chanroblesbar.com : www.chanroblesbar.com.ph

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attendance. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be tendered. 4. Compelling attendance of witnesses; Contempt Rule 21, Sec. 8. Compelling attendance. In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required, and the cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without just excuse. Rule 21, Sec. 9. Contempt. Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule. 5. Quashing of subpoena Rule 21, Sec. 4. Quashing a subpoena. The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. The court may quash a subpoena ad testificandum on the ground that the witness is not bound thereby. In either case, the subpoena may be quashed on the ground that the witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served. L. Modes of Discovery (Rules 23-29) What are the different modes of discovery? 1. Depositions pending action (Rule 23) 2. Depositions before action or pending appeal (Rule 24) 3. Interrogatories to parties (Rule 25) 4. Admission by adverse party (Rule 26) 5. Production or inspection of documents and things (Rule 27) 6. Physical and mental examination of persons (Rule 28) What is the purpose of the modes of discovery? The various modes or instruments of discovery are meant to serve as a (1) device, along with pre trial under Rule 118, to NARROW and CLARIFY the basic issues between the parties, and (2) device for ASCERTAINING the facts relative to those issues. Purpose: to enable the parties, consistent with recognized privileges, to obtain the fullest possible knowledge of the issues and facts before civil trials and thus prevent that said trials be carried on in the dark. What modes of discovery may be availed of without leave of court and generally without court intervention? a. depositions (whether by oral examination or written interrogatories) under Rule 24) b. interrogatories to parties under Rule 25 c. requests for admission under Rule 26. Under the Rules of Court, leave of court is not necessary to avail of said modes of discovery after an answer to the complaint has been served. It is only when an answer has not yet been filed (but after jurisdiction has been obtained over the defendant or property subject of the action) that prior leave of court is needed, the reason being that at that time the issues are not yet joined and the disputed facts are not clear. 73 www.chanroblesbar.com : www.chanroblesbar.com.ph

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What modes of discovery cannot be availed of without leave of court? a. production or inspection of documents or things under Rule 27 b. physical and mental examination of persons under Rule 28, which may be granted upon due application and showing of due cause. 1. Depositions pending action; Depositions before action or pending appeal (Rules 23-24) a. Meaning of deposition What is deposition? A deposition is the taking of the testimony of any person, whether he be a party or not, but at the instance of a party to the action. This testimony is taken out of court. Deposition may be: a. An oral examination b. Written interrogatories (Rule 23, Sec 1,) What is the dual function of deposition? a. A method of discovery Deposition is chiefly a mode of discovery. This purpose is evident from Section 2 of Rule 23 on the broad scope of examination regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, the only requirement is that it be relevant and not privileged. b. An alternative mode of testimony Section 4 of Rule 23 on the use of deposition is clearly indicative of the use of deposition as an alternative mode of testimony in view of distance, death or disability of the deponent. When can depositions be availed of? : a. During a pending action (Rule 23) deposition de benne esse b. Before action or Pending appeal (Rule 24) deposition in perpetuam rei memoriam Before whom may depositions be taken? 1. If within the Philippines a. Judge; b. Notary public (Rule 23, Sec. 10,) ; or c. Any person authorized to administer oaths, as stipulated by the parties in writing (Rule 23, Sec. 14,). 2. If outside the Philippines a. On notice, before a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the Philippines (Rule 23, Sec. 11,) ; b. Before such person or officer as may be appointed by commission or letters rogatory; or c. Any person authorized to administer oaths, as stipulated by the parties in writing (Rule 23, Sec. 14) , What is the requirement in taking deposition upon oral examination? A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action (Rule 23, Sec. 15) What shall the notice state? It shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs (Rule 23, Sec. 15).

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How is deposition upon written interrogatories done? A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within ten (10) days thereafter, a party so served may serve cross interrogatories upon the party proposing to take the deposition. Within five (5) days thereafter, the latter may serve re direct interrogatories upon a party who has served cross interrogatories. Within three (3) days after being served with re direct interrogatories, a party may serve recross interrogatories upon the party proposing to take the deposition (Rule 23, Sec. 25). Note: The duties of the officer under Secs. 17, 19, 20, 21 & 22 of Rule 23 shall also be followed on deposition upon written interrogatories (Rule 23, Secs. 26 & 27). Who may file a petition for deposition before action? Any person who wants to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines (Rule 24, Sec. 1) What are the contents of the motion for deposition pending appeal? The motion shall state: 1. The names and addresses of the persons to be examined 2. The substance of the testimony which he expects to elicit from each 3. The reason for perpetuating their testimony (Sec. 7, Rule 24). Note: If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed under Rule 23 (Rule 24, Sec. 7. b. Uses; Scope of examination Scope of Examination May be any matter not privileged and which is relevant to the subject of the pending action, including: 1. Claim or defense of any other party; 2. Existence, description, nature, custody, condition and location of any books, documents, or other tangible things; and 3. Identity and location of persons having knowledge of relevant facts (Rule 23, Sec. 2) Examination and cross-examination. Examination and cross examination of deponents may proceed as permitted at the trial under sections 3 to 18 of Rule 132. A deposition is not generally supposed to be a substitute for the actual testimony in open court of a party or witness. If the witness is available to testify, he should be presented in court to testify. If available to testify, a party’s or witness deposition is inadmissible in evidence for being hearsay. The exceptions however to the inadmissibility of such deposition are provided for in Rule 23, Section 4. (Rule 23, Sec. 3) Effect of taking deposition A party shall NOT be deemed to make a person his own witness for any purpose by taking his deposition (Rule 23, Section 7) , EXCEPT when the deposition is introduced in evidence, then he will be deemed to have made the deponent his witness (Rule 23 , Section 8). The exception will NOT apply if the deposition used is that of an opposing party or the deposition is used to impeach or contradict the deponent still NOT a witness of the party taking the deposition. Use of depositions Any part or all of the deposition, so far as admissible under the rules of evidence, may be used 75 www.chanroblesbar.com : www.chanroblesbar.com.ph

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1) Against any party who was present or represented at the taking of the deposition; or 2) Against one who had due notice of the deposition. The deposition may be used for the following purposes: 1. BY ANY PARTY For the purpose of contradicting or impeaching the testimony of the deponent as witness 2. BY AN ADVERSE PARTY for any purpose - If the deponent is a party or anyone who was at the time of the deposition was an officer, director, or managing agent of a public or private corporation, partnership or association which is a party, his deposition can be used 3. BY ANY PARTY for any purpose If the deponent is a witness, whether or not a party to the case, if the court finds a) That the witness is dead; or b) That the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines (UNLESS it appears that his absence was procured by the party offering the deposition) ; or c) That the witness is unable to attend or testify because of age, sickness, infirmity or imprisonment; or d) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or e) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice to allow the deposition to be used. (Rule 23, Sec. 4) Note: If only part of a deposition is offered in evidence by a PARTY, the ADVERSE PARTY may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. c. When may objections to admissibility be made Objections may be made at the trial or hearing to receive in evidence any deposition or part thereof. Any reason which would require the exclusion of the evidence if the witness where then present and testifying may be used as a reason for objection. (Rule 23, Sec. 6). All objections made at the time of the examination to the qualifications of the officer taking the deposition, manner of taking it, to evidence presented, conduct of any party and any other objection to the proceedings shall be NOTED by the officer taking the deposition. He has NO authority to rule on such objections. (Rule 23, Sec. 17) When may the court make orders for the protection of parties and deponents? After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make orders for the protection of parties and deponents (Rule 23, Sec. 16,). d. When may taking of deposition be terminated or its scope limited 1. Upon motion or petition of any party or of the deponent; and 2. Upon showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass or oppress the deponent or party, 3. The court may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided in Rule 23, Sec. 16. (Rule 23, Sec. 18).

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This section refers to protection orders during examination either by the court in which the action is pending or where the deposition is being taken. When the constitutional privilege against self incrimination is invoked by deponent or his counsel, the trial court may stop the examination to protect the deponents constitutional right. Other grounds, such as bad faith which unreasonably annoy, embarrass or harass deponent or party may likewise be invoked. 2. Written interrogatories to adverse parties (Rule 25) Purpose and nature Written interrogatories elicit material and relevant facts from any adverse party (Note: answers may also be used as admissions of the adverse party). (Rule 25, Section 1) Answer to interrogatories The interrogatories shall be ANSWERED FULLY in writing and shall be signed and sworn to by the person making them. Such answer shall be filed and served to the party submitting the interrogatory within fifteen (15) days from service of such interrogatories UNLESS the court on motion and for good cause extends or shortens the time. (Rule 25, Sec. 2) Objections to interrogatories 1. May be presented to the court within 10 days after service thereof, with notice as in the case of motions. 2. Answers shall be deferred until objections are resolved, which shall be at the earliest possible time. (Rule 25, Sec. 3) 3. Grounds for objections: (a) They require the statements of conclusions of law or answers to hypothetical questions or opinions, or mere hearsay, or matters not within the personal knowledge of the interrogated party. (b) Frivolous interrogatories need not be answered. a. Consequences of refusal to answer The court, on motion and notice may 1. Strike out all or any part of any pleading of that party; or 2. Dismiss the action or proceeding or any part thereof made if it was the PLAINTIFF who refused to answer; 3. Enter judgment by default against the defendant, if it was the DEFENDANT who refused to answer; 4. Order that party who refused to answer to pay reasonable expense incurred by the other party and attorney’s fees (Rule 29, Section 5) If a party refuses to answer the WHOLE written interrogatory, Rule 29, Section 5, shall apply. However, where a party refuses only to answer a PARTICULAR question, Rule 29, Section 3 [c], shall apply (the main difference being that in Section 3[c], there is no provision on payment of reasonable expenses/penalty) b. Effect of failure to serve written interrogatories General Rule A party not served with written interrogatories may NOT be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. Exception when allowed by the court for good cause and to prevent a failure of justice. (Rule 25, Sec. 6) 3. Request for Admission (Rule 26) Scope a. Admission of the genuineness of any material and relevant document described in and exhibited with the request; b. Admission of the truth of any material and relevant matter of fact set forth in the request; 77 www.chanroblesbar.com : www.chanroblesbar.com.ph

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c. A matter of fact not related to any documents may be presented to the other party for admission or denial. (Rule 26, Sec. 1) Objections to any request for admission shall be submitted to the court WITHIN the period for and PRIOR to the filing of the sworn statement Fifteen (15) days after service of request. Compliance shall be deferred until such objections have been resolved by the court. (Rule 26,Sec. 2) a. Implied admission by adverse party (1) There is an IMPLIED ADMISSION of each of the matters of which an admission is requested (2) if the party to whom the request is made does NOT file and serve a sworn statement EITHER a) denying specifically the matters of which an admission is requested OR b) setting forth the reasons why he cannot either admit or deny those matters (3) within fifteen (15) days after service thereof or with such further time as the court may allow on motion Objections to any request for admission shall be submitted to the court by the party requested within the period for and prior to the filing of his sworn statement as contemplated in the preceding paragraph (15 days). His compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable. (Rule 26 Sec. 2) The request for admission must be SERVED directly upon the PARTY REQUESTED. Otherwise, that party cannot be deemed to have admitted the genuineness of any relevant matters of fact set forth therein on account of failure to answer the request for admission. (Nestle Philippines, Inc. and Santos vs. Court of Appeals and Sps. Hemedez, G. R. No. 102404, February 1, 2002). b. Consequences of failure to answer request for admission See above. c. Effect of admission Any admission made pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose. The admission may NOT be used against the party who made it in any other proceeding. (Rule 26, Sec. 3) d. Effect of failure to file and serve request for admission The party who fails to request for admission of material and relevant facts which are or ought to be within the personal knowledge of such party shall NOT be permitted to present evidence on such facts UNLESS otherwise allowed by the court for good cause shown and to prevent failure of justice. (Rule 26, Sec. 5). 4. Production or inspection of documents or things(Rule 27) UPON MOTION for good cause shown, the court may order any party (a) to produce and permit the inspection and copying of documents, papers, books, accounts, letters, photographs, objects or tangible things or (b) to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying or photographing the property or designated relevant object or operation therein. (Rule 27, Sec. 1) This is essentially a mode of discovery limited to the parties to the action. This is to be differentiated from a subpoena duces tecum which is a means to compel the production of evidence which may be directed to a person who may or may not be a party to the action. For a document to be produced 1. It should not be privileged; 2. It should constitute or contain evidence material and relevant to any matter involved in the action; and 78 www.chanroblesbar.com : www.chanroblesbar.com.ph

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3. It must be within the party’s possession, custody or control. (Rule 27, Sec. 1) The production or inspection of documents or things as a mode of discovery sanctioned by the Rules of Court may be availed of by any party upon a showing of good cause therefor before the court in which an action is pending. The court may order any party: a) to produce and permit the inspection and copying or photographing of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, which are not privileged; which constitute or contain evidence material to any matter involved in the action; and which are in his possession, custody or control; or b) to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. (Air Philippines Corporation vs. Pennswell, Inc., G.R. No. 172835, December 13, 2007 This mode of discovery does not mean that the person who is required to produce the document or the thing will be deprived of its possession even temporarily. It is enough that the requesting party be given the opportunity to inspect or copy or photograph the document or take a look at the thing. 5. Physical and mental examination of persons (Rule 28) When the mental or physical condition of a party is in controversy, the court, UPON MOTION FOR GOOD CAUSE SHOWN and upon notice to the party to be examined and to all other parties, may order the party to submit to a physical or mental examination by a physician. (Rule 28, Secs. 1 and 2) Requisites to obtain an Order for Examination: 1. A motion must be filed for the physical and mental examination; 2. The motion must show good cause for the examination; 3. Notice to the party to be examined and to all other parties; 4. The motion shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is made. 5. There must be a pending action; and 6 A party’s mental or physical condition is in controversy. Exs. a. action involving physical injury b. blood grouping test c. annulment of marriage on the ground of impotency d. guardianship over an incompetent or mentally retarded person e. probate of a will by one claimed not to be in full possession of his or her mental capacity Since the results of the examination are intended to be made public, the same are not covered by the physician-patient privilege (Sec 24(c) , Rule 130). Also, unlike the privilege, the examination is not done to treat or cure the patient. The party examined MAY request the party causing the examination to be made to deliver to him a copy of a detailed report of the examining physician setting out his findings and conclusions (Rule 28, Sec. 3). Waiver of Privilege By requesting and obtaining a report of the examination or by taking the deposition of the examiner, the party examined WAIVES any privilege he may have in that action or any other involving the same controversy regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination (Rule 28, Sec. 4).

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6. Consequences of refusal to comply with modes of discovery (Rule 29) Consequences of Refusal Under Sec. 3 If any party REFUSES TO OBEY 1. The order directing him to answer designated questions under Sec. 1 of Rule 29; 2. The order to produce any document or other thing for inspection, copying or photographing or to permit it to be done under Rule 27; or 3. The order to submit to physical or mental examination under Rule 28, or The court may issue any of the following orders: a. Making the FACTS OR DOCUMENTS or MENTAL OR PHYSICAL CONDITION sought to be discovered as ESTABLISHED for purposes of the action; b. REFUSING to allow the disobedient party to support or oppose CLAIMS or DEFENSES c. PROHIBITING the disobedient party from INTRODUCING in evidence designated documents or items of testimony; d. PROHIBITING the disobedient party from INTRODUCING evidence of physical or mental condition; e. STRIKING OUT all or any part of the pleading of the disobedient party; f. STAYING further proceedings until order is obeyed; g. DISMISSING the action or proceeding or any part thereof; h. Rendering DEFAULT JUDGMENT against the disobedient party; i. Directing the ARREST of the party concerned, except in a refusal to submit to a physical or mental examination; j. Directing PAYMENT of REASONABLE EXPENSES incurred by the other, including attorney’s fees. Under Sec. 5 If a party 1. FAILS TO APPEAR before the officer who is to take his deposition; 2. FAILS TO SERVE ANSWERS to interrogatories submitted under Rule 25 The court may issue any of the following orders: a. STRIKING OUT all or any part of the pleading of the disobedient party b. DISMISSING the action or proceeding or any part thereof; c. Rendering DEFAULT JUDGMENT against the disobedient party; d. Directing PAYMENT of REASONABLE EXPENSES incurred by the other, including attorney’s fees. M. Trial (Rule 30) 1. Adjournments and postponements Rule 30, Sec. 2. Adjournments and postponements. A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require, but shall have no power to adjourn a trial for a longer period than one month for each adjournment, nor more than three months in all, except when authorized in writing by the Court Administrator, Supreme Court.

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2. requisites of motion to postpone trial a. for absence of evidence Rule 30, Sec. 3. Requisites of motion to postpone trial for absence of evidence. A motion to postpone a trial on the ground of absence of evidence can be granted only upon affidavit showing the materiality or relevancy of such evidence, and that due diligence has been used to procure it. But if the adverse party admits the facts to be given in evidence, even if he objects or reserves the right to their admissibility, the trial shall NOT BE POSTPONED. b. for illness of party or counsel Rule 30, Sec. 4. Requisites of motion to postpone trial for illness of party or counsel. A motion to postpone a trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit or sworn certification that the presence of such party or counsel at the trial is indispensable and that the character of his illness is such as to render his non attendance excusable. 3. Agreed statement of facts Rule 30, Sec. 6. Agreed statement of facts. The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe. 4. Order of trial; reversal of order Rule 30 Sec. 5. Order of trial. Subject to the provisions of Section 2 of Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre trial order and shall proceed as follows: (a) The plaintiff shall adduce evidence in support of his complaint; (b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross claim and third party complaint; (c) The third party defendant, if any, shall adduce evidence of his defense, counterclaim, cross claim and fourth party complaint; (d) The fourth party, and so forth, if any, shall adduce evidence of the material facts pleaded by them; (e) The parties against whom any counterclaim or cross claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court; (f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and (g) Upon admission of the evidence, the case shall be deemed SUBMITTED FOR DECISION, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. If several defendants or third party defendants, and so forth, having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence. When is a reverse order of trial allowed? Where the defendant, in his answer, relies upon an affirmative defense, a reverse order of trial shall take place. Since the defendant admits the plaintiffs claim but seeks to avoid liability based on his affirmative defense he shall proceed first to prove his exemption. 5. Consolidation or Severance of hearing or trial (Rule 31) 81 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Rule 31, Section 1. Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Rule 31, Sec. 2. Separate trials. The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross claim, counterclaim, or third party complaint, or of any separate issue or of any number of claims, cross claims, counterclaims, third party complaints or issues. 6. Delegation of reception of evidence Rule 30, Sec. 9. Judge to receive evidence; delegation to clerk of court. The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. However, in default or ex parte hearings, and in any case where the parties agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the bar. The clerk of court shall have no power to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his report and the transcripts within ten (10) days from termination of the hearing. 7. Trial by commissioner (Rule 32) a. Reference by consent or ordered on motion Rule 32, Section 1. Reference by consent. By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court. As used in these Rules, the word "commissioner" includes a referee, an auditor and an examiner. Rule 32, Sec. 2. Reference ordered on motion. When the parties do not consent, the court may, upon the application of either or of its own motion, direct a reference to a commissioner in the following cases: (a) When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue or any specific question involved therein; (b) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect; (c) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or order into effect. b. Powers of the commissioner Rule 32, Sec. 3. Order of reference; powers of the commissioner. When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the order of reference. The order may specify or limit the powers of the commissioner, and may direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only, and may fix the date for beginning and closing the hearings and for the filing of his report. Subject to the specifications and limitations stated in the order, the commissioner has and shall exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the order of reference, he may rule upon the admissibility of evidence. The trial or hearing before him shall proceed in all respects as it would if held before the court. c. Commissioners report; notice to parties and hearing on the report Rule 32, Sec. 9. Report of commissioner. Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference. 82 www.chanroblesbar.com : www.chanroblesbar.com.ph

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When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report. He shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him. Rule 32, Sec. 10. Notice to parties of the filing of report. Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed ten (l0) days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court unless they were made before the commissioner. Rule 32, Sec. 11. Hearing upon report. Upon the expiration of the period of ten (l0) days referred to in the preceding section, the report shall be set for hearing, after which the court shall issue an order adopting, modifying, or rejecting the report in whole or in part, or recommitting it with instructions, or requiring the parties to present further evidence before the commissioner or the court. N. Demurrer to Evidence (Rue 33) 1. Ground Rule 33, Section 1. Demurrer to evidence. After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. 2. Effect of denial If his motion is denied, he shall have the right to present evidence. 3. Effect of grant If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. 4. Waiver of right to present evidence If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. 5. Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case Civil Case

Criminal Case

defendant does not waive his if the court denies the motion to dismiss, the accused may right to offer evidence in the adduce evidence in is defense provided there was leave of event his motion is denied court in filing the motion. When the accused files such motion If the motion is granted but to dismiss without express leave of court, he waives the right on appeal the order of to present evidence and submits the case for judgment on the dismissal is reversed he shall basis of the evidence of the prosecution. (Section 15, Rule 19) be deemed to have waived the right to present evidence in case of reversal, the appellate court shall render judgment for the plaintiff based on his evidence alone. (Rule 33, Sec. 1 ) DEMURRER TO EVIDENCE What is a motion for judgment on demurrer to evidence? A motion to dismiss filed by the defendant after plaintiff has presented his evidence on the ground of INSUFFICIENCY OF EVIDENCE. 83 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Effects of filing a motion for judgment on demurrer to evidence: a. If the motion is GRANTED, the order granting it is a judgment on the merits, which entitles the plaintiff to appeal. b. if on appeal, the appellate court REVERSES the order granting the motion, the defendant LOSES the right to present his own evidence and loses the case. c. If the motion is DENIED, the order of denial is an interlocutory order and the defendant is entitled to present his own evidence. Distinction between motion to dismiss for failure to state a cause of action and motion to dismiss based on lack of cause of action. The first is raised in a motion to dismiss under Rule 16, Sec. 1 (g) before a responsive pleading is filed and can be determined only from the allegations of the pleading and not from evidentiary matters. The second is raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case and can be resolved only on the basis of the evidence he has presented in support of his claim(The Manila Banking Corp. vs. University of Baguio, Inc., G.R. No. 159189, February 21, 2007) O. Judgments and Final Orders (Rule 36) 1. Judgment without trial Kinds of Judgment and Definitions a. Without Reception of Evidence (1) Judgment on the Pleadings Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading, the court may, on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved. (Rule 36, Sec. 1) (2) Summary Judgment Summary judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on filed, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law (Rule 35, Sec. 3) b. With Partial Reception of Evidence (1) Judgment by Default If the defending party fails to answer within the time allowed therefore, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (Rules of Court, Rule 9, Sec. 3.) (2) Judgment on Demurrer to Evidence: After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed, he shall be deemed to have waived the right to present evidence. (Rules of Court, Rule 33, Sec. 1.) A demurrer to evidence is differentiated from a motion to dismiss in that the former can be availed of only after the presentation of plaintiffs evidence while the latter is instituted as a general rule before a responsive pleading is filed.

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When the motion for a demurrer to evidence is granted, the judgment of the court is considered on the merits and so it has to comply with Rule 36, Section 1, regarding the requirement that judgment should clearly and distinctly state the facts and the law on which it is based. If the motion is denied, the order is merely interlocutory. (Nepomuceno v. Commission on Elections, G.R. No. 60601, December 29, 1983, 126 SCRA 472.) 2. Contents of a judgment Rule 36 Section 1. Rendition of judgments and final orders. A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court. [WPSSF] Memorandum Decision Incorporation by reference of a decision of a lower court or portion thereof in the decision of a higher court if only to avoid the cumbersome reproduction of the decision of the lower court. The memorandum decision authorized under Section 40 of B.P. Blg. 129 should actually embody the findings of fact and conclusions of law of the lower court in an annex attached to and made an indispensable part of the decision. (Solid Homes, Inc. vs. Laserna, G.R. No. 166051, April 8, 2008) 3. Judgment on the pleadings (Rule 34) What is a judgment on the pleadings? Judgment by the court upon motion of a plaintiff, counterclaimant, cross claimant, or third party plaintiff, where an answer a. Fails to enter an issue, or b. Otherwise admits the material allegations of the complaint, counterclaim, cross claim or third party claim (Rule 34, Sec. 1). NOTES: 1. The plaintiff must file a motion for judgment on the pleadings. The court cannot motu proprio render judgment on the pleadings. (Pineda vs. Guevara, G.R. No. 143188, February 14, 2007) 2. In an action for annulment of judgment on the ground of psychological incapacity, even if the defendant files an answer ADMITTING all the allegations in the complaint, the plaintiff may not move for judgment on the pleadings. The court should order the prosecutor to investigate whether or not a COLLUSION exists between the parties. If there is collusion, the case should be dismissed. If there is no collusion, the prosecutor should intervene for the State in order to see if the evidence submitted is not fabricated (Rule 9, Sec. 3 (e). If there is no controverted matter in the case after the answer is filed, the trial court has the discretion to grant a motion for judgment on the pleadings filed by a party. Where there are actual issues raised in the answer, such as one involving damages, which require the presentation of evidence and assessment thereof by the trial court, it is improper for a judge to render judgment based on the pleadings alone. (Spouses Hontiveros v. Regional Trial Court of Iloilo, Br. 25, G.R. No. 125465, June 29, 1999, 309 SCRA 340.) The trial court may render a judgment on the pleadings upon motion of the claiming party when the defending party's answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading. For that purpose, only the pleadings of the parties in the action are considered. It is error for the trial court to deny the motion for judgment on the pleadings because the defending party's pleading in another case supposedly tendered an issue of fact. (Fernando Medical Enterprises, Inc. vs. Wesleyan University Philippines, Inc., G.R. No. 207970, January 20, 2016) LPB 4. Summary judgments (Rule 35) What is a summary judgment? One granted by the court, upon motion of either party, for an expeditious settlement of the case, there appearing from the pleadings, depositions, admissions and affidavits that NO GENUINE 85 www.chanroblesbar.com : www.chanroblesbar.com.ph

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ISSUES OF FACT are involved (except the determination of the amount of damages) and that therefore the moving party is entitled to a judgment as a matter of law. It is also proper where the facts appear undisputed and certain from the pleadings, depositions, admissions and affidavits, so that the ONLY ISSUE is ONE OF LAW. What are the bases of summary judgment? 1. Affidavits made on personal knowledge; 2. Depositions of the adverse party or a third party under Rule 23; 3. Admissions of the adverse party under Rule 26; and 4. Answers to interrogatories under Rule 25. All intended to show that: a. There is no genuine issue as to any material fact, except damages which must always be proved; and b. The movant is entitled to a judgment as a matter of law. NOTES: 1. Genuine issue issue of law which calls for the PRESENTATION OF EVIDENCE as distinguished from an issue which is sham, fictitious, contrived, set up in bad faith and patently unsubstantial so as not to constitute a genuine issue for trial (Paz vs. CA, 181 SCRA 26 [1990]). 2. Although an answer may on its face tender issues requiring trial, yet if its demonstrated by affidavits, depositions or admission is that those issues are NOT GENUINE but sham or fictitious, the court is justified in DISPENSING WITH THE TRIAL and rendering judgment for plaintiff. a. for the claimant Rule 35 Section 1. Summary judgment for claimant. A party seeking to recover upon a claim, counterclaim, or cross claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof. b. for the defendant Rule 35, Sec. 2. Summary judgment for defending party. A party against whom a claim, counterclaim, or cross claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof. c. when the case not fully adjudicated Rule 35, Sec. 4. Case not fully adjudicated on motion. If on motion under this Rule, judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. The facts so specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly. d. affidavits and attachments Rule 35, Sec. 5. Form of affidavits and supporting papers. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith. (5a, R34) Rule 35, Sec. 6. Affidavits in bad faith. 86 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including attorney’s fees. It may, after hearing, further adjudge the offending party or counsel guilty of contempt. In a motion for summary judgment, the crucial question is: are the issues raised in the pleadings genuine, sham or fictitious, as shown by affidavits, depositions or admissions accompanying the motion? A GENUINE ISSUE means an issue of fact which calls for the presentation of evidence. The plaintiff cannot be said to have admitted the averments in the defendants motion for partial summary judgment and its supporting affidavit just because he failed to file an opposing affidavit. Section 3, Rule 35 did not make the submission of an opposing affidavit mandatory. (Manufacturers Hanover Trust Co. vs. Guerrero, G.R. No. 136804, February 19, 2003) When, on their face, the pleadings tender a genuine issue, summary judgment is not proper. (Evadel Realty and Development Corporation vs. Soriano, G.R. No. 144291, April 20, 2001). The test for the propriety of a motion for summary judgment is whether the pleadings, affidavits and exhibits in support of the motion are sufficient to overcome the opposing papers and to justify the findings that, as a matter of law, there is no defense to the action or the claim is clearly meritorious. (Estrada vs. Consolacion, No. L 40948, June 29, 1976) In summary judgments, the trial court can determine a genuine issue on the basis of the pleadings, admissions, documents, affidavits or counter affidavits submitted by the parties. When the facts as pleaded appear uncontested or undisputed, then there is no real or genuine issue or question as to any fact, and summary judgment is called for (Bitanga vs. Pyramid Construction Engineering Corp., G.R. No. 173526, August 28, 2008). Mere denials, unaccompanied by any fact which would be admissible in evidence at a hearing, are not sufficient to raise a genuine issue of fact sufficient to destroy a motion for summary judgment even though such issue was formally raised by the pleadings. (Warner, Barnes & Co., Ltd. v. Luzon Surety Co., Inc., 95 Phil. 924 [1954].) Courts are without discretion to deny a motion for summary judgment where there is no genuine issue as to a material fact. Summary judgment is available even if the pleadings ostensibly show genuine issue which by depositions or affidavits are shown not to be genuine. (Diman v. Alumbres, G.R. No. 131466, November 27, 1998, 299 SCRA 459) A partial summary judgment may be rendered (Rule 35, Sec. 4) but the same is interlocutory and not appealable. (Guevarra v. Court of Appeals, Nos. L 49024, August 30, 1983, 124 SCRA 297.) 5. Judgment on the pleadings versus summary judgments a. In judgment on the pleadings, the answer either does not tender an issue or otherwise admits all the allegations in the complaint, while the answer in summary judgment tenders some issues but these issues are not genuine so they require no judicial determination. b. It is the plaintiff, counterclaimant, cross claimant or third party plaintiff who avails of the remedy of a judgment on the pleadings while summary judgment may be asked by the claimant or defending party. c. Judgment on the pleadings is based only on the pleadings while summary judgment is based not only on the pleadings but also on affidavits, admissions, depositions and other documents d. In judgment on the pleadings there is no specific requirement when the notice shall be served on the opposing party, hence it should be served at least three (3) days before the date of the hearing which in turn must not be later than ten (10) days after filing of the motion, while a motion for summary judgment shall be served at least ten (10) days before the date specified for hearing which in turn must not be later than ten (10) days after filing of the motion. 6. Rendition of judgments and final orders Rule 36 Section 1. Rendition of judgments and final orders.

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A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court. [ WPSSF] 7. Entry of judgments and final orders Rule 36, Sec. 2. Entry of judgments and final orders. If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. The date of finality of the judgment or final order shall be deemed to be the date of its entry. The record shall contain the dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment or final order has become final and executory. P. Post Judgment Remedies 1. Motion for New Trial or reconsideration (Rule 37) a. Grounds What are the grounds for a motion for new trial? One or more of the following causes affecting the substantial rights of the aggrieved party: a. Fraud, accident, mistake or excusable negligence (FAME) which ORDINARY PRUDENCE could not have guarded against and by reason of which such aggrieved party had probably been IMPAIRED IN HIS RIGHTS; or b. Newly discovered evidence (NDE) which he could not, with REASONABLE DILIGENCE, have discovered and produced at the trial, and which if presented would probably ALTER THE RESULT (Rule 37, Sec. 1). a. Fraud, accident, mistake, excusable negligence [FAME] (1) Fraud must be extrinsic or collateral, the kind of fraud which prevented the aggrieved party from having a trial or presenting his case to the court, or was used to procure the judgment without fair submission of the controversy. Examples: acts intended to keep the unsuccessful party away from the court by a false promise of compromise, or purposely keeps him in ignorance of the suit, or where the attorney fraudulently pretends to represent a party and connives at his defeat, or corruptly sells out his clients interest. (Magno v. Court of Appeals, N. L 28486, September 10, 1981, 107 SCRA 819.) Distinguished from intrinsic fraud which refers to the acts of a party at the trial which prevented a fair and just determination of the case (Palanca v. American Food Manufacturing Co., Inc., No. L 22822, August 30, 1968, 24 SCRA 819.) and which could have been litigated and determined at the trial or adjudication of the cases, such as falsification, false testimony and so forth, and does not constitute a ground for new trial. (Tarca v. Vda. De Carretero, 99 Phil. 419 [1956]; Conde v. Intermediate Appellate Court, No. L 70443, September 15, 1986, 144 SCRA 144) (2) Mistake generally refers to mistakes of fact but may also include mistakes of law where, in good faith, the defendant was misled in the case. Thus, a mistake as to the scope and extent of the coverage of an ordinance, (City of Iloilo v. Pinzon, 97 Phil.968 [Unreported] [1955].) or a mistake as to the effect of a compromise agreement upon the need for answering a complaint, (Salazar v. Salazar, 8 Phil. 183 [1907].) although actually constituting mistakes of law, have been considered sufficient to warrant a new trial. (3) Negligence must be excusable and generally imputable to the party but the negligence of counsel is binding on the client just as the latter is bound by the mistakes of his lawyer. (Gaba v. Castro, No. L 56171, January 1, 1983, 120 SCRA 505; Ayllon v. Sevilla, No. L 79244, December 10, 1987, 156 SCRA 257.) However, negligence of the counsel may also be a ground for new trial if it was so great such that the party was prejudiced and prevented from fairly presenting his case. (People v. Manzanilla, 43 Phil. 167 [1922]; cf. Republic v. Arro, No. L 48241, June 11, 1987, 150 SCRA 625.) 88 www.chanroblesbar.com : www.chanroblesbar.com.ph

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A motion for new trial based on FAME shall be supported by affidavits of merits which may be rebutted by affidavits. An affidavit of merits is one which states: a) the nature or character of the fraud, accident, mistake or excusable negligence on which the motion for new trial is based; b) the facts constituting the movants good and substantial defenses or valid causes of action (Ferrer v. Yap Sepeng, No. L 39373, September 30, 1974, 60 SCRA 149.) An affidavit of merits should state facts and not mere opinions or conclusions of law. (Malipol v. Tan, No. L 27730, January 2, 1974, 55 SCRA 202). Affidavits of merits may be dispensed with when the judgment is null and void as where the court has no jurisdiction over the defendant or the subject matter (Republic v. De Leon, 101 Phil. 773 [1957]) or is procedurally defective as where judgment by default was rendered before the reglementary period to answer had expired, as when no notice of hearing was furnished him in advance. (Solaria v. Cruz, G.R. No. 20738, January 31, 1966, 16 SCRA 114). Affidavits of merits are not required in motions for reconsideration (Mendoza v. Bautista, No. L 45885, April 8, 1983, 121 SCRA 760). b. Newly discovered evidence [NDE] To warrant a new trial, newly discovered evidence must have been discovered after trial; could not have been discovered and produced at the trial despite reasonable diligence; if presented would probably alter the result of the action. (National Shipyards and Steel Corporation vs. Asuncion, 103 Phil. 67 [1958].) Mere initial hostility of a witness at the trial does not constitute his testimony into newly discovered evidence. (Arce vs. Arce, 106 Phil. 630 [1959].) Is a second motion for new trial allowed? Yes. A second motion for new trial is authorized. A motion for new trial shall include all grounds then available and those not so included are deemed waived. However, when a ground for a new trial was not existing or available when the first motion was made, a second motion for new trial may be filed within the period allowed but excluding the time during which the first motion had been pending (Rule 37, Sec. 5). What are the grounds for a motion for reconsideration? a. the damages awarded are excessive; b. the evidence is insufficient to justify the decision; or c. the decision is contrary to law (Rule 37, Sec. 1). [DED] Is a second motion for reconsideration allowed? NO. A second motion for reconsideration of a judgment or final order is not allowed. (Rule 37, Sec. 5). However, there may be second motion for reconsideration of an interlocutory order. Is a motion for extension of time to file a motion for new trial or reconsideration allowed? NO. A motion for extension of time to file a motion for new trial or reconsideration is not allowed(Rule 40, Sec. 2; Rule 41, Sec. 3). Exception: Said motion can be filed in the SUPREME COURT (Habaluyas Enterprises vs. Japson, 142 SCRA 208 [1988]; Argel vs. CA, 316 SCRA 511 [1999]). What is a pro forma motion for reconsideration and its effect? When sufficient in form and substance, a motion for reconsideration satisfies the requirements of Rule 37 and interrupts the running of the period of appeal. A motion for reconsideration that does not comply with the requirements will be treated as pro forma intended merely to delay the proceedings and thus will NOT STAY OR SUSPEND the reglementary period (Marikina Valley Development Corporation vs. Flojo, 251 SCRA 87 [1995]). 89 www.chanroblesbar.com : www.chanroblesbar.com.ph

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A pro forma motion for new trial and reconsideration does not toll the reglementary period (Rule 37, Sec. 2, last sentence). Although a motion for reconsideration may merely reiterate issues already passed upon by the court, that by itself does not make it pro forma. Otherwise, after the decision is rendered, the losing party would be confined to motions for reopening and new trial (Marina Properties Corporation vs. CA, 294 SCRA 273 [1998]). b. When to file 1. Time to File A motion for reconsideration or new trial may be filed within the period for taking appeal. Note that a pro forma motion for new trial or reconsideration shall not toll the reglementary period. A pro forma motion for reconsideration or new trial is one which does not comply with the requirements of Rule 37 and does not toll the reglementary period to appeal. (Cledera vs. Sarmiento, Nos. L 32450 51, June 10, 1971, 39 SCRA 552; Firme vs. Reyes, No. 35858, August21, 1979, 92 SCRA 713.) 2. A motion for reconsideration or new trial suspends the running of the period to appeal but if denied, the movant has only the balance of the reglementary period within which to take his appeal. (Rule 41, Sec. 3 ). This is subject to Neypes vs. CA ruling. c. Denial of the motion; effect Rule 37, Sec. 9. Remedy against order denying a motion for new trial or reconsideration. An order denying a motion for new trial or reconsideration is NOT APPEALABLE, the remedy being an appeal from the judgment or final order. d. Grant of the motion; effect Rule 37, Sec. 6. Effect of granting of motion for new trial. If a new trial is granted in accordance with the provisions of this Rule, the original judgment or final order shall be vacated, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial, in so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same. Rule 39, Sec.7. Partial new trial or reconsideration. If the grounds for a motion under this Rule appear to the court to affect the issues as to only a part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. Rule 37, Sec. 8. Effect of order for partial new trial. When less than all of the issues are ordered retried, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial. e. Remedy when motion is denied, Fresh 15-day period rule Rule 37, Sec. 9. Remedy against order denying a motion for new trial or reconsideration. An order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order. In ordinary appeal under Rules 40 and 41, a party is now given a fresh period of 15 days from denial of motion for reconsideration or new trial within which to file notice of appeal (Neypes vs. CA, G.R. No. 141524, September 14, 2005) 2. Appeals in General a. Judgments and final orders subject to appeal What can be appealed? Only a final order or judgment on the merits may be the subject of an appeal. 90 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Final order one which disposes of the whole subject matter or terminates a particular proceeding or action, leaving nothing to be done but to enforce by executing what has been determined. Interlocutory order one which does not dispose of the case completely but leaves something to be done upon its merits. Remedies against Judgments or Final Orders Remedies BEFORE finality of judgment 1. Motion for reconsideration Motion for new trial 2. Appeal a. Ordinary appeal Rule 40 Rule 41 b. Petition for review Rule 42 Rule 43 c. Petition for review on certiorari Rule 45 Remedies AFTER finality of judgment 1. Petition for certiorari 2. Petition for relief from judgment 3. Petition for annulment of judgment APPEAL AND REVIEW Election of proper mode of appeal or review depends on whether or not subject judgment or order has become final and unappealable. A. Not Yet Final and Unappealable there are three modes of reviewing on appeal a judgment or final order: 1. Ordinary Appeal a. perfected by filing a notice of appeal in the trial court within the period specified in the Rules of Court. b. appeal will be upon errors or questions of fact and law. c. this mode applies to final judgments or orders: of MTC to RTC (Rule 40) of RTC (rendered in the exercise of original jurisdiction) to CA (Rule 41) of RTC to SB (PD 1606, am. by RA 8249) of RTC to CA (Rule 122, as am. by A.M. No. 00 5 03 SC, Oct. 15, 2004) of SB to SC (P.D. 1606, as am. by RA 8249) of CA to SC (Rule 124, as am. by A.M. No. 00 5 03 SC, Oct. 15, 2004) 2. Petition for Review a. to CA b. from RTC if judgment to be appealed from is rendered in the exercise of its appellate jurisdiction (Rule 42) c. from quasi judicial agency (Rule 43) 91 www.chanroblesbar.com : www.chanroblesbar.com.ph

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3. Petition for Review on Certiorari a. to SC under Rule 45 b. upon pure questions of law c. from RTC, CA, SB or CTA B. Final and Unappealable An already UNAPPEALABLE judgment or final order which can no longer be subject to review on its merits may still be ANNULLED OR SET ASIDE thru any of the following modes: 1. Petition for Certiorari under Rule 65. ground: judgment rendered without or in excess of jurisdiction, or grave abuse of discretion amounting to lack of jurisdiction 2. Petition for Relief FROM JUDGMENT under Rule 38. grounds: fraud, accident, mistake, excusable negligence 3. Petition for Annulment OF JUDGMENT under Rule 47 grounds: extrinsic fraud or lack of jurisdiction b. Matters not appealable What are the orders not subject to appeal? Sec. 1, Rule 41 expressly prohibits taking an appeal from certain orders, by expressly providing that the remedy of the aggrieved party is to file an appropriate special civil action under Rule 65: Those which cannot be appealed: 1) An order denying a motion for new trial or reconsideration; (Deleted by A.M. No. 07-7-12-SC dated December 4, 2007, which took effect on December 27, 2007, governing amendments to Rules 41, 45, 58 and 65. Effect: neither appeal nor certiorari is a remedy. The remedy is appeal from the judgment or final order [Sec. 9, Rule 37]. However, certiorari may be availed of if the order subject of the motion for reconsideration is an interlocutory order) Exceptions: 1. The denial of the motion for reconsideration of an order of dismissal of a complaint is not an interlocutory order, however, but a final order as it puts an end to the particular matter resolved, or settles definitely the matter therein disposed of, and nothing is left for the trial court to do other than to execute the order. Not being an interlocutory order, an order denying a motion for reconsideration of an order of dismissal of a complaint is effectively an appeal of the order of dismissal itself. If the proscription against appealing an order denying a motion for reconsideration is applied to any order, then there would have been no need to specifically mention in both above quoted sections of the Rules "final orders or judgments" as subject of appeal. In other words, from the entire provisions of Rules 39 and 41, there can be no mistaking that what is proscribed is to appeal from a denial of a motion for reconsideration of an interlocutory order. (Quelnan vs. VHF Philippines, G.R. No. 145911, July 7, 2004) The same ruling was made in Neypes vs. Court of Appeals (G.R. No. 141524, September 14, 2005). 2. What therefore should be deemed as the "final order," receipt of which triggers the start of the 15 day reglementary period to appeal the February 12, 1998 order dismissing the complaint or the July 1, 1998 order dismissing the MR? We sustain petitioners view that the order dated July 1, 1998 denying their motion for reconsideration was the final order contemplated in the Rules . Shell and Tabangaos appeal, albeit seemingly directed only at the October 5, 1999 denial of their motion for reconsideration, was proper. Thus, we sustain the CAs denial for being in accord with the rules and pertinent precedents. We further point out that for petitioners to insist that the appeal was limited only to the assailed resolution of October 5, 1999 was objectively erroneous, because Shell and Tabangao expressly indicated in their appellants brief that their appeal was directed at both the 92 www.chanroblesbar.com : www.chanroblesbar.com.ph

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February 3, 1998 decision and the October 5, 1999 resolution (Mendiola vs. Court of Appeals, G.R. No. 159746, July 18, 2012) LPB 3. Rule 41, Section 1, paragraph (a) of the Rules of Court, which provides that "[n]o appeal may be taken from [a]n order denying a x x x motion for reconsideration," is based on the implied premise in the same section that the judgment or order does not completely dispose of the case. The pertinent portion of Rule 41, Section 1 provides: Section 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. In other words, what Section 1 of Rule 41 prohibits is an appeal taken from an interlocutory order. An interlocutory order or judgment, unlike a final order or judgment, does "not completely dispose of the case [because it leaves to the court] something else to be decided upon. Appeals from interlocutory orders are generally prohibited to prevent delay in the administration of justice and to prevent "undue burden upon the courts. Orders denying motions for reconsideration are not always interlocutory orders. A motion for reconsideration may be considered a final decision, subject to an appeal, if "it puts an end to a particular matter," leaving the court with nothing else to do but to execute the decision. "An appeal from an order denying a motion for reconsideration of an order of dismissal of a complaint is effectively an appeal of the order of dismissal itself. " It is an appeal from a final decision or order. The trial courts order denying petitioner Republic of the Philippines motion for reconsideration of the decision granting respondent Ortigas the authority to sell its property to the government was not an interlocutory order because it completely disposed of a particular matter. An appeal from it would not cause delay in the administration of justice. (Republic vs. Ortigas and Company Limited Partnership, G.R. No.171496, March 3, 2014) *** The denial of a motion for reconsideration of an order granting the defending party’s motion to dismiss is not an interlocutory but a final order because it puts an end to the particular matter involved, or settles definitely the matter therein disposed of, as to leave nothing for the trial court to do other than to execute the order. Accordingly, the claiming party has a fresh period of 15 days from notice of the denial within which to appeal the denial. The prohibition against appealing an order denying a motion for reconsideration refers only to a denial of a motion for reconsideration of an interlocutory order. (Alma Jose vs. Javellana, G.R. No. 158239, January 25, 2012) LPB 1) An order denying a petition for relief or any similar motion seeking relief from judgment; 2) An interlocutory order; 3) An order disallowing or dismissing an appeal; 4) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; 5) An order of execution; 6) 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 main case is pending, unless the court allows an appeal therefrom; and 7) An order dismissing an action without prejudice. The remedy against a dismissal of an action without prejudice is to file another action, unless there are grounds for commencing a special civil action for certiorari. Under Sec. 5, Rule 18 (Pre trial) , failure of plaintiff to appear at the pre trial conference shall be a cause for dismissal of the action. This dismissal shall be with prejudice unless otherwise ordered by the court.

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If the dismissal is expressly stated to be without prejudice, plaintiff cannot appeal because he can file another action. If the dismissal is with prejudice, remedy of plaintiff is to appeal from the order of dismissal, which, being with prejudice, is a final resolution of the case. c. Remedy against judgments and orders which are not appealable In all of the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. (Rule 41, Sec. 1.) Final Judgment Rule; Exceptions Amendment of judgment before it becomes final and executory Courts have inherent power to amend their judgments, to make them conformable to the law applicable provided that said judgments have not yet attained finality. In fact, motions for reconsideration are allowed to convince the court that their rulings are erroneous and improper (Eternal Gardens Memorial vs. IAC, 165 SCRA 439 [1988]). When it finds that the ends of justice would be better served, the court may disregard technicalities and amend its order or process that had not become final (Villanueva vs. CFI of Oriental Mindoro, 119 SCRA 288) A final judgment cannot be modified anymore. When a final judgment becomes executory it becomes immutable and unalterable. The judgment may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is to be made by the court rendering it or by the highest court of the land. Any amendment or alteration which substantially affects a final and executory judgment is null and void for lack of jurisdiction, including the entire proceedings held for that purpose (Nunal vs. CA, 221 SCRA 26 [1993]). Instances where a court has authority to amend judgments that are already final a. Correction of clerical errors; nunc pro tunc entries which cause no prejudice to any party; where judgment is void (Nunal vs. CA, supra). b. Where there is an AMBIGUITY caused by an omission or mistake in the dispositive portion of a decision, the court may clarify such ambiguity by an amendment even after the judgment had become final. For this purpose, it may resort to the pleadings filed by the parties and the courts findings of fact and conclusions of law expressed in the body of the decision (Presbiterio vs. CA, 129 SCRA 450). c. Where FACTS AND CIRCUMSTANCES transpire which render its execution IMPOSSIBLE AND UNJUST and it therefore becomes necessary in the interest of justice, to direct its modification in order to harmonize the disposition with the prevailing circumstances. Example: As observed by the Solicitor General, it may be true that the amount of backwages and other benefits due to the private respondents as recomputed, is not in harmony with the literal import of the dispositive portion of the decision subject of execution. However, at the time the recomputation was made in 1992, 5 years had already elapsed from the time the labor arbiter rendered his decision on February 26, 1987. Thus, a recomputation was necessary to arrive at a just and proper determination of the monetary awards due the private respondents. (Industrial Timber Corp. vs. NLRC, 233 SCRA 597 [1994]) Once a judgment becomes immutable and unalterable by virtue of its finality, its execution should follow as a matter of course. A supervening event, to be sufficient to stay or stop the execution, must alter or modify the situation of the parties under the decision as to render the execution inequitable, impossible, or unfair. The supervening event cannot rest on unproved or uncertain facts. The contention of petitioners that the sale by Jimmy Flores to them of his 1/4 share in the western portion of the 402 square meter lot under the deed of sale dated March 4, 1998 was a supervening event that rendered the execution inequitable is devoid of merit. (Abrigo vs. Flores, G.R. No. 160786, June 17, 2013) LPB 94 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Petitioners claim that their former counsel was guilty of gross negligence for letting the CA decision lapse into finality by not filing a motion for reconsideration or by not appealing in due course to the Court. The Court will not override the finality and immutability of a judgment based only on the negligence of a party’s counsel in timely taking all the proper recourses from the judgment. To justify an override, the counsels negligence must not only be gross but must also be shown to have deprived the party the right to due process. (Sofio vs. Valenzuela, G.R. No. 157810, February 15, 2012) LPB Where judgment has become final, what is the remedy for inclusion of a partyheir? After the decision became final and executory, the trial judge lost jurisdiction over the case. Any modification that he would make, i.e., the inclusion of Mary Lyon Martin would be in excess of his authority. The remedy of Mary is to file an INDEPENDENT SUIT against the parties and all other heirs for her share in the subject property, in order that all the parties in interest can prove their respective claims (Nunal vs. CA, supra). What is a judgment nunc pro tunc? Literally, it means judgment now for then. One issued by a court as though it was done when it ought to have been done, as when a judgment rendered some years back which had not been recorded in the entry of judgment is ordered to be so recorded, so that a writ of execution could be issued upon motion of the prevailing party within the reglementary period. It can only be issued when the thing ordered has previously been made, but by inadvertence has not been entered. It cannot be issued to make material change or amendment in a final decision What is a supplemental judgment? A supplemental judgment does not take the place or extinguish the original judgment. It only serves to bolster or add something to the primary decision. A supplement EXISTS SIDE BY SIDE with the original. It does not replace that which it supplements What is an amended judgment? The lower court makes a study of the original judgment and renders the amended and clarified judgment only after considering all the factual and legal issues. It is an entirely new decision which SUPERSEDES the original decision. What is obiter dictum? It is an opinion expressed by a court, which is not necessary to the decision of the case before it. It is neither enforceable as a relief nor a source of a judicially actionable claim. What is the principle of stare decisis et non quieta movere? It holds that a point of law, once established by the court, will generally be followed by the same court and by all courts of lower rank in subsequent cases involving a similar legal issue. This proceeds from the legal principle that, in the absence of powerful countervailing considerations, like cases ought to be decided alike. It is founded on the necessity of securing certainty and stability in the law and does not require identity of or privity of parties d. Modes of appeal (1) Ordinary appeal ORDINARY APPEAL -- RULES 40 and 41 Rule 40 from MTC to RTC Rule 41 from RTC to CA What Rules 40 and 41 have in common Same period to appeal 15 days from notice of judgment or final order; 30 days where record on appeal is required (in certain sp. proc. and other cases of multiple or separate appeals). How appeal taken

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1. filing notice of appeal(indicating parties to the appeal, judgment or final order or part thereof appealed from, specify court to which appeal is being taken {applies to appeal from RTC} and state material dates showing timeliness of appeal) or notice of appeal plus record on appeal with the court that rendered judgment or final order. 2. service of copy on adverse party 3. payment of full amount of appellate court docket and other lawful fees [Secs. 3 & 5, Rule 40; Secs. 2 & 5, Rule 41] NOTES: 1. Period to file notice of appeal cannot be extended. No motion to that effect shall be allowed. 2. 15 or 30 day period interrupted by timely filing of motion for new trial or reconsideration. 3. Filing of motion for new trial and reconsideration cannot be extended (exc. by the Supreme Court). 4. Appellant has only remaining period to file notice of appeal after denial of motion for new trial or reconsideration. WHEN MOTION FOR RECONSIDERATION FILED ON LAST DAY OF 15 DAY PERIOD That day should be excluded so that when he received copy of order denying his MR, he still has 1 day within which to perfect his appeal, excluding the day of receipt and including the next day (BPA Data Systems Corp. v. CA, 254 SCRA 56 [1996]; Manila Memorial Park Cemetery Inc. v. CA, 344 SCRA 769 [2000]) Same effect filed on 14th day. N.B. not less than 5 days in any event rule applies only to filing of answer after denial of motion to dismiss (Rule 16, Sec. 4) ; denial of motion for bill of particulars or service of BOP (Rule 12, Sec. 5) ; denial of motion to dismiss in interpleader (Rule 62, Sec. 4) ; and filing of petition for certiorari against COA and COMELEC decisions (Rule 64, Sec. 3). 5. Fresh period of 15 days from denial of motion for reconsideration or new trial (Neypes vs. CA, 469 SCRA 633 [2005]). Same manner of perfection Perfection of appeal and effect thereof in both appeals from MTC to RTC and RTC to CA governed by Sec. 9, Rule 41. When is appeal deemed perfected? Appeal by NOTICE OF APPEAL deemed perfected as to him upon filing of NOA in due time. Appeal by RECORD ON APPEAL deemed perfected as to him with respect to subject matter thereof upon approval of ROA filed in due time. Payment of docket fees mandatory for perfection of appeal (Yambao vs. CA, 346 SCRA 141). The general rule is that the perfection of an appeal in the manner and within the period prescribed by law is, not only mandatory, but jurisdictional, and failure to conform to the rules will render the judgment sought to be reviewed final and unappealable. By way of exception, unintended lapses are disregarded so as to give due course to appeals filed beyond the reglementary period on the basis of strong and compelling reasons, such as serving the ends of justice and preventing a grave miscarriage thereof. In this case, the last day for filing the petition for review was on September 13, 2006. The petitioners entrusted the drafting of their petition with their counsel, who in turn entrusted the attaching of the required annexes to the petition with her secretary. The secretary resigned from her job sometime later to avoid giving her employer "problems for unexpected absences in the future. " Aside from this, the petitioners also submitted an Affidavit from the secretary, who narrated her ordeal that day and why she was not able to inform her employer of the whereabouts of the petition. A certification from the doctor of one of the secretary’s children was also submitted to prove that the secretary indeed brought her children to the doctor on September 14, 2006, the deadline for filing the petition for 96 www.chanroblesbar.com : www.chanroblesbar.com.ph

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review with the Court of Appeals. (Heirs of Rodolfo Crisostomo vs. Rudex International Development Corporation, G.R. No. 176129, August 24, 2011) When does the court lose jurisdiction? Appeal by NOTICE OF APPEAL upon perfection of appeals filed in due time and expiration of time to appeal of other parties. Appeal by RECORD ON APPEAL only over subject matter thereof upon approval of records on appeal filed in due time AND expiration of time to appeal of other parties. Residual powers Sec. 9, last par., Rule 41, applicable to MTC pursuant to Sec. 9, Rule 40 (Other provs. of Rule 41 shall apply to appeals provided for herein insofar as they are not inconsistent with or may serve to supplement the provisions of this Rule. ) Prior to transmittal of original record or record on appeal, the court may 1. Issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated in the appeal. 2. Approve compromises 3. Permit appeals of indigent parties 4. Order execution pending appeal in acc. with Sec. 2, Rule 39. 5. Allow withdrawal of appeal [IAPOA] Power to dismiss appeal Sec. 13, Rule 41. Dismissal of appeal Prior to transmittal of original record or record on appeal to appellate court, trial court may dismiss the appeal for: a. Having been taken out of time. b. Non payment of docket and other lawful fees within reglementary period. . NOTES: 1. Payment of prescribed docket fees within the prescribed period, both mandatory and jurisdictional, noncompliance with which is fatal to an appeal. Without such payment, the appeal is not perfected (Cu Unjieng vs. CA, 479 SCRA 594 [2006]) 2. Non payment of docket fees within prescribed period ground for dismissal of an appeal; rules relaxed only for the most persuasive and weighty reasons (Far Corporation vs. Magdaluyo, 443 SCRA 218 [2004]). Regional trial courts have jurisdiction over complaints for recovery of ownership or accion reivindicatoria. Section 8, Rule 40 of the Rules on Civil Procedure nonetheless allows the RTC to decide the case brought on appeal from the MTC which, even without jurisdiction over the subject matter, may decide the case on the merits. In the instant case, the MTC of Mambajao should have dismissed the complaint outright for lack of jurisdiction but since it decided the case on its merits, the RTC rendered a decision based on the findings of the MTC. (Provost vs. CA, G.R. No. 160406,June 26, 2006). The RTC should have taken cognizance of the case. If the case is tried on the merits by the Municipal Court without jurisdiction over the subject matter, the RTC on appeal may no longer dismiss the case if it has original jurisdiction thereof. Moreover, the RTC shall no longer try the case on the merits, but shall decide the case on the basis of the evidence presented in the lower court, without prejudice to the admission of the amended pleadings and additional evidence in the interest of justice. (Encarnacion vs. Amigo, G.R. No. 169793, September 15, 2006). (2) Petition for review PETITION FOR REVIEW RULES 42 and 43 Rule 42 governs petitions for review of decisions of RTC in exercise of appellate jurisdiction over cases decided by MTC. Special Agrarian Court decisions (LBP vs. De Leon, 388 SCRA 537; LBP vs. De Leon, 399 SCRA 376). 97 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Rule 43 petition for review of decisions, final orders, resolutions of quasi judicial agencies such as CSC, SEC, OP, LRA, SSS, GSIS, NEA, ERC, ECC, CAB, CIAC, BOI, PAEC, etc. 1. DARAB decisions (Valencia vs. CA, 401 SCRA 666) exc. grave abuse of discretion (Fortich vs. Corona, 289 SCRA 624). 2. Voluntary arbitrators (Sevilla Trading Co. vs. A.V.A. Tomas E. Semana, et al., 428 SCRA 239). 3. Ombudsman resolutions or orders in administrative disciplinary cases Fabian v. Desierto (295 SCRA 470) Sec. 27, RA 6770 providing appeal direct to SC from administrative disciplinary cases unconstitutional as no concurrence of SC. All appeals from decisions of the Ombudsman in administrative disciplinary cases may be taken to the Court of Appeals under Rule 43 of the 1997 Rules of Civil Procedure. (Francisco, Jr. vs. Ombudsman, G.R. No. 154117, October 2, 2009 TDC) ; Cortes vs. Office of the Ombudsman (Visayas) , G.R. No. 187896, June 10, 2013) v However, the decision, resolution or order of the Ombudsman in an administrative case is final and unappealable: (1) where the respondent is absolved of the charge; and (2) in case of conviction, where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary. The remedy is a petition for certiorari to the Court of Appeals under Rule 65. (Dagan vs. Office of the Ombudsman, G.R. No. 184083, November 19, 2013) Ombudsman resolutions or orders in criminal cases petition for certiorari to SC under Rule 65 (Sec. 14, 2nd par., RA 6770) ; . De Chavez vs. Ombudsman, G.R. No. 168830, February 6, 2007; Lanting vs. Ombudsman, G.R. No. 141426, May 6, 2005; Garcia Rueda vs. Pascasio, G.R. No. 118141 September 5, 1997). 4. Decisions of the Board of Commissioners of the Bureau of Immigration (Agus Dwikarna vs. Domingo, 433 SCRA 748) 5. Decisions and final orders of commercial courts under RA 8799 (A.M. No. 04 9 07 SC, Oct. 15, 2004). ***The rule providing that a petition for review under Rule 43 of the Rules of Court is the proper mode of appeal in intra corporate controversies, as embodied in A. M. No. 04 9 07 SC, has been in effect since October 15, 2004. Hence, the filing by POTC and PHC (Nieto Group) of the petition for certiorari on March 21, 2007 (C.A. G.R. SP No. 98399) was inexcusably improper and ineffectual. By virtue of its being an extraordinary remedy, certiorari could neither replace nor substitute an adequate remedy in the ordinary course of law, like appeal in due course. (Philippine Overseas Telecommunications Corporation (POTC) vs. Africa, G.R. No. 184622, July 3, 2013 ) LPB N.B. Under Rule 6, Sec. 2 of the Financial Rehabilitation Rules of Procedure (2013) , an order approving or disapproving a rehabilitation plan can only be reviewed through a petition for certiorari under Rule 65 within 15 days from notice of the decision or order. No motion for reconsideration required. 5. CIAC decisions (Metro Construction, Inc. vs. Chatham Properties, Inc., 365 SCRA 697 [2001]; Megaworld Globus Asia, Inc. vs. DSM Construction and Development Corp., 424 SCRA 179 [2004]). Excluded from Rule 43: 1. Judgments and final orders issued under the Labor Code (Sec. 2). NLRC decisions (St. Martin Funeral Home vs. NLRC, 295 SCRA 494) petition for certiorari to CA under Rule 65.

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Decisions of Secretary of Labor (National Federation of Labor vs. Laguesma, 304 SCRA 407) and Director of BLR (Abbot Laboratories Phils. vs. Abbot Laboratories Employees Union, 323 SCRA 392 ) petition for certiorari to CA under Rule 65. 2. CTA decisions petition for review under Rule 45 (RA 9282). 3. Decisions of the DOJ Secretary in petitions for review petition for certiorari to CA under Rule 65 (Elma vs. Jacobi, G.R. No. 155996,June 27, 2012; Angeles vs. Gaite, G.R. No. 176596, March 23, 2011) N.B. Under DOJ Memorandum Circular No. 58 dated June 30, 1993, the resolution of the DOJ Secretary is appealable administratively to the Office of the President if the offense charged is punishable by reclusion perpetua to death. From the OP, the aggrieved party may file an appeal with the Court of Appeals under Rule 43. An appeal or petition not clearly falling within the jurisdiction of the Office of the President, as set forth above, shall be dismissed outright. What Rules 42 and 43 have in common 1. How appeal taken and time for filing a. Petition for review (3 legible copies with original copy indicated as such) within 15 days from notice of decision, final order, resolution, etc. or denial of MNT or MR (or from date of last publication, if publication acquired for its effectivity) Sec. 1, Rule 42; Sec. 4, Rule 43 b. Extendible 15 days, and no further extension except for the most compelling reason and not to exceed 15 days (Id.) c. Only one (1) MR allowed (Sec. 4, Rule 43). Deemed to apply also to Rule 42. 2. Service of copy of petition on lower court and adverse party of appeal. (Sec. 1, Rule 42; Sec. 5, Rule 43)

serves as notice

3. Payment to CA clerk of court of docketing and other lawful fees and deposit for costs. (Id.) 4. Perfection of appeal as to petitioner, upon timely filing of petition and payment of docket and other lawful fees. (Id.) Court or agency loses jurisdiction over case upon perfection of appeals filed in due time and expiration of time to appeal of other parties (Sec. 8, Rule 42). No similar provision in Rule 43, but apparently appeal also perfected in same manner. Mere filing of a motion for extension of time to file petition for review under Rule 42 is not sufficient. Unless the appeal is perfected by timely filing of the petition and payment of docket and other lawful fees, the Court of Appeals does not acquire jurisdiction over the case (Fernandez vs. CA, 458 SCRA 454 5. Effect of failure to comply with requirements shall be sufficient ground for dismissal (Sec. 3, Rule 42; Sec. 7, Rule 43). a. payment of docket and other lawful fees, deposit for costs b. proof of service of petition c. contents of and documents which should accompany petition (Sec. 2, Rule 42; Sec. 6, Rule 43) : state full names of parties without impleading court or agency as petitioner or respondent specific material dates showing filing within period concise statements of facts and issues involved and grounds relied upon 99 www.chanroblesbar.com : www.chanroblesbar.com.ph

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accompanied by clearly legible duplicate original or certified true copy of judgments or final orders of both lower courts and requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations in petition (Sec. 2, Rule 42) or of decision, award, judgment, final order or resolution together with certified true copies of such material portions of the record referred to therein and other supporting papers (Sec. 6, Rule 43). verification shopping

and

certification

against

forum

6. Appeal not a matter of right, acceptance discretionary on CA. Sec. 4, Rule 42; Sec. 8, Rule 43. Action on the petition CA MAY REQUIRE respondent to file COMMENT on the petition, within 10 days from notice, or DISMISS petition if it finds the same to be (a) patently without merit, (b) prosecuted manifestly for delay, or (c) questions raised too unsubstantial to require consideration. (PPQ) Sec. 6, Rule 42; Sec. 10, Rule 43. Due course Upon filing of comment or other pleadings which court may allow or require or expiration of period for filing thereof, petition may be given due course if CA finds prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed decision, award, judgment, final order or resolution. Otherwise, dismissed. 7. Appellate review solely of a pure question of law may be brought to CA exception to rule that it can only be brought to SC (Rule 42 , Sec. 2; Rule 43, Sec. 3). Rule 43 provides for an instance where an appellate review solely on a question of law may be sought in the CA instead of this Court. In the case at bar, the question on whether Santos can retire under RA 660 or RA 8291 is undoubtedly a question of law because it centers on what law to apply in his case considering that he has previously retired from the government under a particular statute and that he was re employed by the government. Thus, he availed of the proper remedy which is a petition for review under Rule 43. (Jose Santos vs. Committee on Claims Settlement, and Government Service Insurance System (GSIS) ,G.R. No. 158071, April 2, 2009) Where Rules 42 and 43 differ Rule 42 Sec. 8. Perfection of appeal; effect thereof. (b) Except in civil cases decided under the Rule on Summary Proceeding, the appeal SHALL STAY the judgment of final order unless the CA, the law, or these Rules shall provide otherwise. Sec. 21, Rule on Summary Procedure: The decision of the Regional Trial Court in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be IMMEDIATELY EXECUTORY, without prejudice to a further appeal that may be taken therefrom.

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Rule 43 Sec. 12. Effect of appeal The appeal SHALL NOT STAY the award, judgment, final order or resolution sought to be reviewed unless the CA shall direct otherwise upon such terms as it may deem just. N.B. Court of Appeals injunctive orders are not binding on the Ombudsman in administrative disciplinary cases. (Buencamino vs. CA, April 12, 2007, Office of the Ombudsman vs. Samaniego (Resolution dated October 5, 2010) and Facura vs. CA, February 16, 2011). Exhaustion of administrative remedies Appeal by petition for review under Rule 43 requires that petitioner has EXHAUSTED ALL ADMINISTRATIVE REMEDIES and that a final order or decision has been rendered by the administrative body in the exercise of its quasi judicial functions. If there is no exhaustion or administrative remedies, appeal by petition for review may not be the appropriate remedy but a special civil action under Rule 65 Distinction between ordinary appeal and petition for review. Ordinary appeal is a MATTER OF RIGHT Petition for review is DISCRETIONARY a. Failure to comply strictly with its requirements shall be sufficient ground for dismissal Rule 42, Sec. 3; Rule 43, Sec. 7 b. The fact that petitioner has complied with all its requirements is no assurance that the petition will be given due course, as CA will still have to be convinced that court or agency concerned has committed prima facie an error of fact or law that will warrant reversal or modification of the appealed decision before it may be given due course Rule 42, Sec. 6; Rule 43, Sec. 10 (3) Petition for review on certiorari PETITION FOR REVIEW ON CERTIORARI UNDER RULE 45 1. How appeal taken and time for filing a. Verified petition within 15 days from notice of decision, final order of resolution or denial of MNT or MR. (Secs. 1 & 2) On motion duly filed and served, with payment of full amount of docket and other lawful fees and deposit for costs before expiration of reglementary period extension of 30 days only for justifiable reasons. b. Docket and other lawful fees, deposit for costs (Sec. 3) c. Proof of service on lower court and adverse party (Id.) 2. Only questions of law may be raised (Sec. 1) a. Question of law when there is doubt or difference of opinion as to what the law is on a certain state of facts and which do not call for an examination of the probative value of the evidence presented by the parties. Exc. Petitions for review of decisions of RTC, Court of Appeals and Sandiganbayan in petitions for writs of amparo or habeas data, and of the Court of Appeals in petitions for writ of kalikasan, may raise questions of fact. 3. Dismissal or denial of petition (Sec. 5) Dismissal failure of petitioner to comply with requirements of Sec. 4 regarding payment of docket and other lawful fees deposit for costs proof of service of petition contents of and documents which should accompany petition shall be SUFFICIENT GROUND for dismissal thereof Denial on its own initiative or motu proprio, SC may deny petition on ground that appeal 101 www.chanroblesbar.com : www.chanroblesbar.com.ph

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patently without merit prosecuted manifestly for delay questions raised too unsubstantial to require consideration 4. When petition given due course (Sec. 6) When court a quo 1. has decided a question of substance not therefore determined by SC, or has decided it in a way probably not in accord with law or with applicable decisions of SC 2. has so far departed from accepted and usual course of judicial proceedings, or so far sanctioned such departure by the lower court, as to call for the power of supervision. SC may review matters not specifically raised. Once accepted by SC, THROWS ENTIRE CASE OPEN TO REVIEW. 5. Distinguished from certiorari as a special civil action As mode of appeal appellate or superior court has jurisdiction over subject matter and persons of the parties and can only review errors of judgment, i.e., questions or errors of law decided or committed by lower court appeal or continuation of the case either from CA, SB or CTA, or RTC parties are the same, appellant being the petitioner and appellee, the respondent appellate court renders its own decision affirming, reversing or modifying judgment or order appealed from As special civil action superior court can only review errors of jurisdiction, i.e., acts of respondent done without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction original or independent action, where inferior court, board or officer is made respondent, together with person or persons interested in sustaining the proceedings in the inferior court court cannot reverse inferior court’s decision and render a contrary one, but can only annul or modify act complained of and all proceedings flowing therefrom 6. Petition for Review under Rule 45 and special civil action under Rule 65 mutually exclusive These remedies are mutually exclusive and not alternative or successive. Where the first is available, the second cannot be resorted to. Special civil action under Rule 65 may not be allowed as a substitute for failure to file petition under Rule 45 (Linzag vs. CA, 291 SCRA 304 [1998]). However, in the interest of justice, SC may consider petition for certiorari under Rule 65 as a petition for review under Rule 45, provided latter is filed within the required period (Banco Filipino Savings and Mortgage Bank vs. CA, 334 SCRA 305 [2000]). Petition for review under Rule 45 may be treated as a petition for certiorari under Rule 65, in the interest of substantial justice. Dismissal of appeal purely on technical grounds is frowned upon where the policy of the courts is to encourage hearing of appeals on the merits. The rules of procedure ought not to applied in a very rigid technical sense, as they are used only to help, not override, substantial justice. The strict application of procedural technicalities should not hinder the speedy disposition of the case on the merits (Ramiscal vs. Sandiganbayan, 446 SCRA 166 [2004]). Callejo

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Petition for review can be considered as a petition for certiorari, in the interest of justice. Petitioner came to know of the judgment by default after it was promulgated by the trial court while appeal was still available. In fact, she filed a motion for reconsideration which was denied. What she should have done was to file an ordinary appeal with the Court of Appeals. Instead, she came directly to this Court via a petition for review on certiorari. However, in the interest of justice, we consider the instant petition, pro hac vice, a petition for certiorari under Rule 65, it appearing that the trial court committed grave abuse of discretion in rendering the judgment by default. (Tan vs. Dumarpa, 438 SCRA 659 [2004]) Petitioner cannot file an alternative petition, i.e., delegating to the Supreme Court the task of determining under which rule the petition should fall- petition for review on certiorari under Rule 45 or certiorari under Rule 65. In this case, appeal was not only available but also a speedy and adequate remedy. Petitioner should have filed a petition for review. Under Rule 56, Section 5 (f) , a wrong or inappropriate mode of appeal, as in this case, merits an outright dismissal. (Chua vs. Santos, 440 SCRA 365 [2004]) Callejo Petition for review on certiorari is the proper remedy to assail the Court of Appeals decision denying a petition for certiorari. Since petitioner filed instead a petition for relief from judgment, the CA decision became final. After the CA denied his petition for relief from judgment, petitioner filed a petition for review with the Supreme Court seeking a reversal and setting aside of both CA decisions. Futile because of the finality of the earlier decision and the fact that a petition for certiorari, not a petition for review, is the correct remedy against a denial of a petition for relief from judgment (Section 1 (b) , Rule 41) (Azucena vs. Foreign Manpower Services, Inc. 441 SCRA 346 [2004]). Carpio Morales Motion for reconsideration not a sine qua non for filing of a petition for review under Rule 45. We do not agree with the contention of respondent that a motion for reconsideration ought to have been filed before the filing of the instant petition (Commissioner of Internal Revenue vs. Hantex Trading Co., Inc., 454 SCRA 301 [2005]). Callejo) 7. Factual findings of CA binding on SC. 11 Exceptions: (a) When the findings are grounded entirely on speculation, surmises, or conjectures; (b) When the inference made is manifestly mistaken, absurd, or impossible; (c) When there is grave abuse of discretion; (d) When the judgment is based on a misapprehension of facts; (e) When the findings of facts are conflicting; (f) When in making its findings the CA went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (g) When the CAs findings are contrary to those by the trial court; (h) When the findings are conclusions without citation of specific evidence on which they are based; (i) When the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; (j) When the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; or (k) When the CA manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion(Abalos vs. Torio, G.R. No. 175444, December 14, 2011) Additional exception: Those filed under writs of amparo, habeas data, or kalikasan. Judicial Courtesy Rule of judicial courtesy, meaning holding in abeyance the execution of a judgment because of a pending petition for certiorari with the higher court, even without the issuance of a temporary restraining order. In Eternal Garderns Memorial Corp. vs. CA (164 SCRA 421 [1988]) , the role of 103 www.chanroblesbar.com : www.chanroblesbar.com.ph

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judicial courtesy would apply ONLY if there is a string probability that the issues before the higher court would be rendered MOOT AND MORIBUND as a result of the continuation of the proceedings in the lower court. e. Issues to be raised on appeal Errors of judgment committed by a court with jurisdiction over the subject matter and the persons of the parties. f. Period of appeal Period of time to appeal must be strictly enforced on considerations of public policy. The period is mandatory and jurisdictional (Government Service Insurance System v. Gines, G.R. No. 85273, March 9, 1993, 219 SCRA 724.) and the failure to do so renders the questioned decision final and executory that deprives the appellate court of jurisdiction to alter the final judgment much less to entertain the appeal (De Castro, Jr. v. Court of Appeals, No. L 36021, February 29, 1988, 158 SCRA 288.) or motion for new trial. (Velasco v. Ortiz, G.R. No. 51973, April 16, 1990, 184 SCRA 303) The decision of the Court of Appeals after expiration of the period to appeal is null and void. (Antonio v. Court of Appeals, No. L 77656, August 31, 1987, 153 SCRA 592.) g. Perfection of appeal Rule 41, Sec. 9 A party’s appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time. In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties. Effect of Perfection of Appeal The court which rendered the appealed decision loses its jurisdiction over the case. However, prior to the transmittal of the original record or record on appeal to the appellate court, it may still do the following: 1. issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal; 2. approve compromises; 3. permit appeals of indigent parties; 4. order execution pending appeal in accordance with Section 2, Rule 39; and 5. allow withdrawal of appeal. (Rule 41, Sec. 9) (IAPOA) Participation of the Solicitor General during appeal Under Presidential Decree 478, the Solicitor General shall represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings; represent the Government and its officers in the Supreme Court, the Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party. h. Appeal from judgments or final orders of the MTC Rule 40 i. Appeal from judgments or final orders of the RTC Rule 41 j. Appeal from judgments or final orders of the CA Rule 45 104 www.chanroblesbar.com : www.chanroblesbar.com.ph

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k. Appeal from judgments or final orders of the CTA Rule 45 l. Review of final judgments or final orders of the COA Rule 64 m. Review of final judgments or final orders of the COMELEC Rule 64 n. Review of final judgments or final orders of the CSC Rule 43 o. Review of final judgments or final orders of the Ombudsman Rule 43 p. Review of final judgments or final orders of the NLRC Rule 65 q. Review of final judgments or final orders of quasi-judicial agencies Rule 43 Dismissal, Reinstatement and Withdrawal of Appeal Dismissal of Appeal Court of Appeals Rule 50 SECTION 1. Grounds for dismissal of appeal. An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds: (a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; (b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules; (c) Failure of the appellant to pay the docket and other lawful fees as provided in section 4 of Rule 41; (d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule 44; (e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules; (f) Absence of specific assignment of errors in the appellant's brief, or of page references to the record as required in section 13, paragraphs (a) , (c) , (d) and (f) of Rule 44; (g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; (h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and (i) The fact that the order or judgment appealed from is not appealable. SECTION 2. Dismissal of improper appeal to the Court of Appeals. An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals 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 Regional Trial Court shall be dismissed. An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. 105 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Supreme Court Rule 56 SECTION 5. Grounds for dismissal of appeal. The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds: (a) Failure to take the appeal within the reglementary period; (b) Lack of merit in the petition; (c) Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs; (d) Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition; (e) Failure to comply with any circular, directive or order of the Supreme Court without justifiable cause; (f) Error in the choice or mode of appeal; and (g) The fact that the case is not appealable to the Supreme Court. SECTION 6. Disposition of improper appeal. Except as provided in section 3, Rule 122 regarding appeals in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment, an appeal taken to the Supreme Court by notice of appeal shall be dismissed. An appeal by certiorari taken to the Supreme Court from the Regional Trial court submitting issues of fact may be referred to the Court of Appeals for decisions or appropriate action. The determination of the Supreme Court on whether or not issues of fact are involved shall be final. Withdrawal of Appeal Court of Appeals Rule 50 SECTION 3. Withdrawal of appeal. An appeal may be withdrawn as of right at any time before the filing of the appellee's brief. Thereafter, the withdrawal may be allowed in the discretion of the court. Reinstatement of Appeal Petitioners' appeal should be reinstated in consonance with the dictates of justice and fair play. An appeal may be reinstated, even after the remand of the record to the trial court, where it appears that the dismissal of the appeal was made under the erroneous impression that the appellants had abandoned their appeal (Balajadia vs. Pineda, G.R. No. L 45335 January 31, 1978) *** Dual Function of Appellate Courts An appellate court serves a dual function. The first is the review for correctness function, whereby the case is reviewed on appeal to assure that substantial justice has been done. The second is the institutional function, which refers to the progressive development of the law for general application in the judicial system. The review for correctness function is concerned with the justice of the particular case while the institutional function is concerned with the articulation and application of constitutional principles, the authoritative interpretation of statutes, and the formulation of policy within the proper sphere of the judicial function. (Re: Letter Complaint Of Merlita B. Fabiana Against Presiding Justice Andres B. Reyes, Jr., Associate Justices Isaias P. Dicdican And Stephen C. Cruz, A.M. No. CA 13 51 J, July 2, 2013) LPB Harmless Error Rule in Appellate Decisions Rule 51, Section 6. Harmless error. No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect which does not affect the substantial rights of the parties.

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If there was an error committed by the RTC in ascribing to the petitioner the respondents testimony as adverse witness during cross examination by his own counsel, it constitutes a harmless error which would not, in any way, change the result of the case. In the first place, the delineation of a piece of evidence as part of the evidence of one party or the other is only significant in determining whether the party on whose shoulders lies the burden of proof was able to meet the quantum of evidence needed to discharge the burden. In civil cases, that burden devolves upon the plaintiff who must establish her case by preponderance of evidence. (Chua Gaw vs. Suy Ben Chua,G.R. No. 160855, April 16, 2008) 3. Relief from judgments, orders and other proceedings a. Grounds for availing of the remedy RELIEF FROM JUDGMENT RULE 38 Special remedy of equitable character, allowed only in exceptional cases, as when there is no other available or adequate remedy. It is a special remedy in which equity and justice justify the grant to give petitioner a last chance to defend his rights or protect his interest. When available 1. Available only after (a) decision or final order from which relief is sought has become final and executory, and (b) loss of the right to appeal. Not available where (a) a party has another adequate remedy available him (motion for new trial or appeal) and (b) he is not prevented from filing such motion or taking the appeal. 2. Relief will not be granted when a party’s loss of legal remedy is due to his own negligence or mistaken mode of procedure. Otherwise, petition will be tantamount to reviving the right of appeal which has already been lost because of inexcusable negligence or due to a mistake in the mode of procedure taken by counsel. Requisites: a. fraud, accident, mistake or excusable negligence same meaning as those used as grounds for new trial under Rule 37. fraud must be extrinsic or collateral What is extrinsic fraud? Fraudulent scheme executed by a prevailing party litigant outside the trial against the defeated party, his agents or attorneys or witnesses defeated party prevented from exhibiting fully his side of the case by fraud or deception practiced on him by his opponent. Examples: keeping him away from court false promise of compromise being kept ignorant of the case where his attorney fraudulently connives at his defeat b. presence of good and substantial cause of action or defense, as the case may be. * affidavit of merit must accompany petition showing: facts constituting fraud, accident, mistake or excusable negligence relied upon, and facts constituting petitioners good and substantial cause of action or defense. serves as jurisdictional basis for the court to entertain the petition. Exception may not be necessary (a) where decision is null and void for want of jurisdiction, 107 www.chanroblesbar.com : www.chanroblesbar.com.ph

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(b) where a default judgment was entered even before petitioners time to answer had expired, or (c) where applicant had no notice of the trial, etc. b. Time to file petition Time for filing (a) within 60 days after learns of judgment, order or other proceeding to be set aside, and (b) not more than 6 months after judgment or order entered, or such proceeding taken. 60 day period ordinarily counted from date of service of judgment or final order. If there is no indication of receipt of service by petitioner or his counsel, it is his duty to show that he received it within the 60 day period. 6 month period counted from the time judgment or final order is entered, meaning entry or recording thereof by the clerk of court in the book of entries of judgment after the same has become final or executory. If clerk of court failed to enter judgment or final order in the book of entries, 6 month period is counted from issuance of writ of execution, as the other proceeding taken against petitioner. Periods are non extendible and never interrupted. Exceptions exceptional circumstances when the period may be relaxed, for the SC, in the interest of substantial justice, has the power to suspend its rules and to consider petition filed beyond the period as seasonably filed. c. Contents of petition Rule 38, Sec. 3. Time for filing petition; contents and verification. A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be. 4. Annulment of Judgments or final orders and resolutions a. Grounds for annulment ANNULMENT OF JUDGMENT RULE 47 Governs annulment of judgments or final orders and resolutions in civil actions of RTCs for which ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available thru no fault of petitioner. Cannot be availed of (1) where party had availed of remedy of new trial, appeal, petition for relief or other appropriate remedy and lost therefrom; or (2) where he failed to avail of any such remedy thru his own fault or negligence. Grounds and period for filing: (1) Extrinsic fraud aggrieved party must show that he failed to avail of new trial, appeal, petition for relief or other appropriate remedy due to extrinsic fraud done against him. a. Fraud must be committed by adverse party Refers to acts outside the trial. prevents a party from having a trial, or a real contest, or from presenting all of his case in court

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operates upon matters not pertaining to the judgment itself but to the manner in which it was procured so that there is no fair submission of the controversy. b. In an ejectment case, the judge demanded and received money from plaintiff in order that the latter may secure the favorable outcome of the case. As a result of the acts of both plaintiff and the judge, defendant was prevented from receiving a fair and just trial. Judgment annulled (Joven vs. Calilung, 477 SCRA 470). c. Petition must be filed within four (4) years from discovery an action based on fraud prescribes in 4 years. (2) Lack of jurisdiction judgment rendered without jurisdiction is null and void. a. Nullity may be shown not only by what appears on the face of the decision but also by the documentary and testimonial evidence found in the record. b. Petition filed before it is barred by laches or estoppel. While a void judgment due to lack of jurisdiction is imprescriptible, the declaration of its nullity may be barred by laches or estoppel. Laches neglect or omission to assert a right with a reasonable time. CA has no jurisdiction to entertain a petition to annul a final decision of the SEC under Rule 47. Applies only to judgments or final orders of RTC in civil cases, per Sec. 1. MTC judgments and final orders can be annulled by RTC, per Sec. 10. CA can reverse or modify SEC decision under Rule 43 (Galang vs. CA, 472 SCRA 259 [2005]) The fact that the judgment or final order has been executed does not preclude the filing of the action for annulment of judgment. (3) Lack of due process (National Housing Authority vs. Evangelista, G.R. No. 140945, May 16, 2005; Pinlac vs. Court of Appeals, G.R. No. 91486, January 19, 2001) b. Period to file action See above c. Effects of judgment of annulment A judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being refiled in the proper court. However, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the trial court to try the case as if a timely a motion for new trial had been granted therein. (Rule 47, Sec. 7) 5. Collateral attack of judgments Direct attack made through an action or proceeding the main object of which is to annul or set aside or enjoin the enforcement of such judgment if not yet carried into effect. Exs. certiorari, annulment of judgment Collateral attack made when, in another action to obtain a different relief, an attack on the judgment is made as an incident in said action. Proper only when the judgment, on its face, is null and void, as where it is patent that the court which rendered said judgment has no jurisdiction (Co vs. Court of Appeals, 196 SCRA 705). Q. Execution, Satisfaction and Effect of Judgments (Rule 39) EXECUTION What is execution? Execution is a remedy afforded by law for the enforcement of a judgment, It is a juridical writ issued to an officer authorizing and requiring him to execute then judgment of the court (Pamantasan ng Lungsod ng Maynila vs. IAC, 143 SCRA 311 [1986]). Execution means its enforcement by writ of execution and/or writ of possession or demolition issued upon motion filed within 5 years from date of entry of the judgment or even after such 5 109 www.chanroblesbar.com : www.chanroblesbar.com.ph

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year period where the defeated party caused the delay in the execution of the judgment or by independent action within 5 years after said 5 year period (David vs. Ejercito, 71 SCRA 484 [1976]). 1. Difference between finality of judgment for purposes of appeal; for purposes of execution If the judgment does not order the doing of something or the payment of money, there is nothing in the judgment which needs to be enforced or executed. Exs. (a) judgment dismissing a case without pronouncement as to damages and costs; (b) judgment in an injunction case which orders the defendant not to do an act; (c) judgment declaring a contract null and void. If the appeal period has lapsed, the judgment becomes final and unappealable, not final and executory. 2. When execution shall issue a. Execution as a matter of right Requisites 1. On motion 2. Upon judgment or order that disposes of the action or proceeding and 3. Upon expiration of the period to appeal therefrom and no appeal has been duly perfected; or 4. When appeal has been duly perfected and resolved. Once the judgment has become final and executory, the prevailing party may, by motion, move for the issuance of a writ execution of the judgment in the court of origin. The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution. (Rule 39, Sec. 1) What is the remedy against the court’s refusal to issue writ of execution? Where the judgment or final order has become final and executory, notwithstanding which the trial court refuses to issue a writ of execution by denying the motion for execution without justifiable reason, the aggrieved party’s remedy is to file a petition for MANDAMUS (Valenzona vs. CA, 226 SCRA 306 [1993]). b. Discretionary execution How may discretionary execution or execution pending appeal be availed of? Requisites 1. Motion for execution filed by the prevailing party; 2. Notice of said motion to adverse party; 3. Good reasons stated in a special order after hearing. This must be done while trial court has jurisdiction over the case and is in possession of either the original record or record on appeal. The court may, in its discretion, order execution even before the expiration of the period for appeal. After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed with the appellate court. (Rule 39, Sec. 2(a) ). Several separate or partial judgments MAY be executed under the SAME terms and conditions as execution of judgment or final order pending appeal. (Rule 39, Sec. 2(b) ) Examples of good reasons:. (1) where there is danger of the judgment becoming ineffectual, such as where the losing party is disposing to its assets, or articles subject of the case would deteriorate; (2) where the judgment debtor is insolvent or in imminent danger of being insolvent What are the reasons that do not justify execution pending appeal? a. appeal is frivolous and dilatory it is not for the trial court to decide that question (Ong vs. CA, 203 SCRA 38 [1991])

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b. posting of a bond to answer for damages is not alone a sufficient reason, otherwise execution pending appeal could be obtained through the mere filing of such bond (BF Corp. vs. EDSA Shangri La Hotel and Resort, Inc., 294 SCRA 109 [1998]). c. the fact that the prevailing party is In financial distress (Intramuros Tennis Club, Inc. vs. Court of Appeals, 341 SCRA 90) How may discretionary execution be stayed? a. upon approval by the proper court b. of a sufficient SUPERSEDEAS BOND c. filed by the party against whom it is directed (1) conditioned upon the performance of the judgment or order allowed to be executed (2) in case it shall be finally sustained in whole or in part. d. The bond thus given may be proceeded against on motion with notice to the surety (Rule 39, Sec. 3). What is the remedy where the judgment subject to discretionary execution is reversed or annulled? The trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances (Rule 39, Sec. 5). 3. How a judgment is executed a. Execution by motion or by independent action When may a judgment be executed by mere motion? A final and executory judgment may be executed by mere motion within 5 years from the date of its entry (Rule 39, Sec. 6). When may a judgment be executed by action? (Revival of judgment) After the lapse of 5 years from the date of its entry, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by mere motion within 5 years from the date of its entry and thereafter by action before it is barred by the statute of limitations (Rule 39, Sec. 6). Venue of action for revival of judgment If the action for revival of judgment affects title to or possession of real property, or interest therein, then it is a real action that must be filed with the court of the place where the real property is located. Venue depends on nature of judgment sought to be revived. (Infante vs. Aran Builders, Inc., G.R. No. 156596, August 24, 2007) When is the 5-year period deemed extended? The 5 year period may be deemed extended where the delay is through no fault of the prevailing party but is due to the delay caused or occasioned by actions of the judgment obligor for his benefit or advantage (Camacho vs. CA, 287 SCRA 311 [1998]). Mandatory execution What judgments are immediately executory? a. Judgments in actions for injunction, receivership, accounting, support. (IRAS) Such judgments shall not be stayed by an appeal therefrom unless otherwise stated by the trial court. Also, on appeal, the appellate court may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting or award of support. (Rule 39, Sec. 4) b. In forcible entry and unlawful detainer, if judgment is rendered against the defendant, execution shall issue immediately upon motion unless defendant complies with the requisites for staying execution (Rule 70, Sec. 19). 111 www.chanroblesbar.com : www.chanroblesbar.com.ph

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c. In forcible entry and unlawful detainer, the judgment of the RTC in aid of its appellate jurisdiction against the defendant shall be immediately executory, without prejudice to further appeal to the CA or SC (Rule 70, Sec. 21). What is the remedy against improvident issuance of execution? CERTIORARI lies against an order granting execution pending appeal when it is not founded on good reasons. Appeal is not a speedy and adequate remedy that can relieve the losing party of the immediate effects of an improvident execution pending appeal (BF Corp. vs. EDSA Shangri La Hotel and Resort, Inc., supra). How shall the writ of execution be returned? a. If the writ is satisfied The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. b. If the writ is not satisfied If the judgment cannot be satisfied in full within 30 days after issuance of the writ, the officer shall report to the court and state the reasons therefor (Rule 39, Sec. 14). b. Issuance and contents of a writ of execution (Rule 39, Sec. 8) The writ of execution is issued in the name of the Philippines and shall state: 1. The name of the court which granted the motion; 2. The case number; 3. The dispositive portion of the judgment or order subject of the execution; and 4. Shall require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms, in the manner hereinafter provided: a) If the execution be against the property of the judgment obligor, to satisfy the judgment, with interest, out of the real or personal property of such judgment obligor; b) If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the judgment, with interest, out of such property; c) If it be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be recited in the writ of execution; d) If it be for the delivery of the possession of real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property; and e) In all cases, the writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movants What are the grounds to quash the writ of execution? 1. When the writ of execution varies the judgment; 2. When there has been a change in the situation of the parties making the execution inequitable or unjust; 3. When execution is sought to be enforced against a property exempt from execution; 112 www.chanroblesbar.com : www.chanroblesbar.com.ph

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4. When it appears that the controversy has never been submitted to the judgment of the court; 5. When the terms of the judgment are not clear enough and there remains room for interpretation thereof; 6. When it appears that the writ of execution has been improvidently issued 7. When it appears that the writ of execution is defective in substance, or is issued against the wrong party, or that the judgment debt has been paid or otherwise satisfied or the writ is issued without authority. (Reburiano v. CA, 301 SCRA 342). c. Execution of judgments for money (Rule 39, Sec. 9) Three ways to enforce a judgment for money: 1. Immediate payment on demand 2. Satisfaction by levy Note: The judgment obligor shall have discretion to choose which property to levy; if not exercised, the officer shall levy first on personal property, then on real property. The sheriff shall only sell property sufficient to satisfy the judgment and other lawful fees. 3. Garnishment of debts and credits. In executing a judgment for money, what steps shall the sheriff follow? 1. Immediate payment on demand. The officer shall demand from the obligor the immediate payment of the full amount stated in the judgment including the lawful fees in cash, certified check payable to the judgment obligee or any other form of payment acceptable to him; 2. Satisfaction by levy. If the judgment obligor cannot pay all or part of the obligation in cash, certified check or other mode of payment, the officer shall levy upon the properties of the judgment obligor. The judgment obligor shall have the option to choose which property or part thereof may be levied upon. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the personal judgment but the sheriff shall sell only so much of the property that is sufficient to satisfy the judgment and lawful fees; 3. Garnishment of debts and credits. The officer may levy on the debts due the judgment debtor including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or con troll of third parties. This is called garnishment. What is levy? Levy is the act whereby a sheriff sets apart or appropriates for the purpose of satisfying the command of the writ, a part or whole of the judgment debtors property. Levy and Garnishment Levy is the seizure of property, personal and/or real, belonging to the judgment debtor for subsequent execution sale to satisfy judgment. Garnishment is the process of notifying a third person called the garnishee to retain and attach the property he has in his possession or under his control belonging to the judgment debtor, to make disclosure to the court concerning the same, and to dispose of the same as the court shall direct to satisfy the judgment. (Rule 39, Sec. 9.) Rulings on Levy 1. A valid levy is essential to the validity of an execution sale, and levy is invalid if the notice of levy of real property is not filed with the office of the register of deeds, the purpose of which is to notify third parties who may be affected in their dealings with respect to such property. (Valenzuela v. De Aguilar, No. L 18083 84, May 31, 1963, 8 SCRA 212) Where a parcel of land levied upon execution is 113 www.chanroblesbar.com : www.chanroblesbar.com.ph

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occupied by a party other than a judgment debtor, the procedure is for the court to order a hearing to determine the nature of said adverse possession. (Guevara v. Ramos, No. L 24358, March 31, 1971, 38 SCRA 194.) 2. To effect a levy upon real property, the sheriff is required to do two specific things: (a) file with the register of deeds, a copy of the order and description of the attached property and notice of attachment; and (b) leave with the occupant of the property a copy of the same order, description and notice. (Delta Motors Corporation v. Court of Appeals, No. L 78012, November 29, 1988, 168 SCRA 206.) 3. Notice to the owner who is not the occupant does not constitute compliance with the statute. (Philippine Surety and Insurance Co., Inc. v. Zabal, No. L 21556, October 31, 1967, 21 SCRA 682. Rulings on Garnishment 1 The garnishment of property to satisfy a writ of execution operates as an attachment and fastens upon the property a lien by which the property is brought under the jurisdiction of the court issuing the writ. It is brought into custodia legis, under the sole control of such court. (De Leon v. Salvador, No. L 30871, December 28, 1970, 35 SCRA 567.) It is also known as attachment execution. 2 Money judgments are enforceable only against property unquestionably belonging to the judgment debtor. One man’s goods shall not be sold for another man’s debts, as the saying goes. (Ong v. Tating, No. L 61042, April 15, 1987, 149 SCRA 265.) 3 The prohibition against examination or an inquiry into a bank deposit under Rep. Act No. 1405 does not preclude its being garnished to insure satisfaction of judgment. (China Banking Corporation v. Ortega, No. L 34964, January 31, 1973, 49 SCRA 355.) 4. Government owned and controlled corporations have a personality of their own, separate and distinct from the government; their funds, therefore, although considered to be public in character, are not exempt from garnishment. (Philippine National Bank v. Pabalan, No. L 33112, June 15, 1978, 83 SCRA 595.) 5. All government funds deposited in an official depositary of the Philippine Government by any of its agencies or instrumentalities, whether by general or special deposit, remain government funds. Hence, they may not be subject to garnishment or levy, in the absence of corresponding appropriation as required by law (City of Naga vs. Asuncion, G.R. No. 174042, July 9, 2008, citing City of Caloocan v. Allarde, G.R. No. 107271, September 10, 2003, 410 SCRA 432, 439). d. Execution of judgments for specific acts (Rule 39, Sec. 10) What are the steps in executing a judgment for specific acts? 1. Conveyance, delivery of deeds, or other specific acts vesting title. If a party fails to comply with the time specified, the court may direct the act to be done at the cost of the disobedient party. 2. Sale of personal or real property. The officer shall sell such property, describing it, and apply the proceeds in conformity with the judgment. 3. Delivery or restitution of real properties. The officer shall demand the losing party to peaceably vacate the property within three working days, and restore possession to the judgment oblige; otherwise the officer shall oust such disobedient party. 4. Removal of improvements on property subject of execution. The officer shall not destroy, demolish or remove improvements except upon special order of the court. 114 www.chanroblesbar.com : www.chanroblesbar.com.ph

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5. Delivery of personal property. The officer shall take possession of the same and forthwith deliver it to the party entitled to satisfy any judgment for money as therein provided e. Execution of special judgments (Rule 39, Sec. 11) Special judgment is one which can only be complied with by the judgment obligor because of his personal qualifications or circumstances. Requires the performance of any act other than payment of money, or the sale or delivery of real or personal property. Failure to comply with special judgment under Section 11 is punishable by contempt by imprisonment. (Rule 39, Sec. 11) f. Effect of levy on third persons (Rule 39, Sec. 12) It creates a lien in favor of the judgment obligee over the right, title and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing (Rule 39, Sec. 12). 4. Properties exempt from execution (Rule 39, Sec. 13) Properties exempt from execution. Except as otherwise expressly provided by law, the following properties, and no other, shall be exempt from execution; (1) The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; (2) Ordinary tools and implements personally used by him in his trade, employment, or livelihood; (3) Three horses, or three cows, or three carabaos, or other beasts of burden such as the judgment obligor may select necessarily used by him in his ordinary occupation; (4) His necessary clothing and articles for ordinary personal use, excluding jewelry; (5) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos; (6) Provisions for individual or family use sufficient for four months; (7) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value; (8) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood; (9) So much of the salaries, wages, or earnings of the judgment obligor of his personal services within the four months preceding the levy as are necessary for the support of his family; (10) Lettered gravestones; (11) Monies benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; (12) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; (13) Properties specially exempt by law. But no article or species of property mentioned in his section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon.

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5. Proceedings where property is claimed by third persons (Rule 39, Sec. 16) What are the requisites for a claim by a third person? 1. The property is levied. 2. The claimant is a person other than the judgment obligor or his agent; Note: A stranger or third person is any person other than the judgment debtor or his agent. A party to the auction has no business filing a third party claim over property involved in the action and which he himself claims to belong to him (Tillson vs. CA, 197 SCRA 587 [1991]). The mere filing of a terceria, or an affidavit stating complainant Gos alleged title, under Sec. 16, Rule 39, or a motion to quash the writ of execution does not stay the auction sale scheduled by the sheriff. Complainants are not strangers or third persons within the meaning of Sec. 16, Rule 39. Hence, they have no requisite standing to file a terceria, much less a separate complaint to annul the execution sale which they inopportunely instituted before the RTC of Pasay City (Go vs. Abrogar, 398 SCRA 166 [2003]). 3. Makes an affidavit [terceria]; of his title thereto or right to the possession thereof stating the grounds of such right or title, and serves the same upon the officer making the levy and the judgment obligee (Rule 39, Sec 16). What is the duty of the officer if the property sought to be levied on is claimed by another person and proper proof of ownership or possession is served upon the officer making levy? The officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third party claimant in a sum not less than the value of the property levied on [Indemnity bond]. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose. The officer shall not be liable for damages for the taking or keeping of the property, to any third party claimant if such bond is filed (Rule 39, Sec. 16). Remedy of third party claimant; remedy of judgment obligee 1. The third party claimant may vindicate his claim to the property in a separate action, 2. The judgment obligee may claim damages in the same or a separate action against a third party claimant who filed a frivolous or plainly spurious claim. What is the remedy from the denial of a third-party claim? The third party claimant is not obligated to file an action for damages against the sheriff in case an indemnity bond was filed by the judgment creditor. The third party claimant may file a separate and independent action to establish ownership to the property levied upon by the sheriff. In that action, he may secure an injunction to restrain the sale of the attached property. (Arabay, Inc. vs. Salvador, G.R. No. L 31077 March 17, 1978). Neither an appeal nor a petition for certiorari is the proper remedy from the denial of a third party claim. Since the third party claimant is not one of the parties to the action, he could not, strictly speaking, appeal from the order denying its claim, but should file a separate reinvindicatory action against the execution creditor or a complaint for damages against the bond filed by the judgment creditor in favor of the sheriff. The rights of a third party claimant should be decided in a separate action to be instituted by the third person. (Solidum vs. CA, G.R. No. 161647, June 22, 2006)

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Money judgments are enforceable only against the property incontrovertibly belonging to the judgment debtor, and if the property belonging to any third person is mistakenly levied upon to answer for another man’s indebtedness, such person has all the right to challenge the levy through any of the remedies provided for under the Rules of Court. Section 16, Rule 39 specifically provides that a third person may avail himself of the remedies of either terceria, to determine whether the sheriff has rightly or wrongly taken hold of the property not belonging to the judgment debtor or obligor, or an independent "separate action" to vindicate his claim of ownership and/or possession over the foreclosed property. Before the court can exercise its supervisory power to direct the release of the property mistakenly levied and the restoration thereof to its rightful owner, the claimant must first unmistakably establish his ownership or right of possession thereon. [A] third person whose property was seized by a sheriff to answer for the obligation of the judgment debtor may invoke the supervisory power of the court which authorized such execution. Upon due application by the third person and after summary hearing, the court may command that the property be released from the mistaken levy and restored to the rightful owner or possessor. What said court can do in these instances, however, is limited to a determination of whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of judgment, more specifically, if he has indeed taken hold of property not belonging to the judgment debtor. The court does not and cannot pass upon the question of title to the property, with any character of finality. (Villasi vs. Garcia, G.R. No. 190106, January 15, 2014) a. in relation to third party claim in attachment and replevin In case of a third party claim in attachment (Rule 57, Sec. 14) and replevin (Rule 60, Sec. 7) , the third party claimant MAY STILL INTERVENE because there is still no judgment. That is why said provisions state that the third party claimant may vindicate his claim to the property in the same or separate action. The timing of the filing of the third party claim is important because the timing determines the remedies that a third party is allowed to file. A third party claimant under Section 16 of Rule 39 may vindicate his claim to the property in a separate action, because intervention is no longer allowed as judgment has already been rendered. A third party claimant under Section 14 of Rule 57, on the other hand, may vindicate his claim to the property by intervention because he has a legal interest in the matter in litigation. (Fort Bonifacio Development Corporation vs. Yllas Lending Corporation., G.R. No. 158997, October 6, 2008) 6. Rules on Redemption What is the right of redemption? The right of a judgment debtor or redemptioner to buy back from the purchaser of the property sold at public auction by virtue of a writ of execution at anytime within the reglementary period. Who may redeem? a. Judgment obligor or his successor in interest b. Creditor who is a redemptioner (Rule 39, Sec. 27) What is the time and manner of successive redemptions? (Rule 39,Sec. 28) a. Judgment debtor (or his successor in interest) , if exercising redemption ahead of mere redemptioner within 1 year from date of registration of sheriffs certificate of sale (with Register of Deeds) b. Redemptioner exercising redemption ahead of judgment debtor (or his successor in interest) within 1 year from date of registration of certificate of sale c. Redemptioner redeeming from another redemptioner within 60 days after the last redemption Deed and possession after expiration of redemption period When is the purchaser entitled to possession and conveyance of the property sold on execution? The purchaser is entitled to possession and conveyance of the property if no redemption is made within one (1) year from the date of the registration of the certificate of sale (Rule 39, Sec. 33). 117 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Purchaser or last redemptioner is entitled to: a. execution of final deed of sale by the sheriff to enable purchaser or last redemptioner to consolidate his title to the property and to issuance by the register of deeds of new title in his name. b. physical possession of the property by means of a writ of possession against the judgment obligor or his successor or interest or against any person who occupied the land after filing of the case in which judgment was rendered and writ of execution was issued. 7. Examination of Judgment Obligor When Judgment is unsatisfied Upon return of the writ of execution, and judgment is still unsatisfied, the creditor may ask the court to require the debtor to appear and his property or income be examined. Limitation No judgment obligor shall be required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. (Rule 39, Sec. 36) 8. Examination of Obligor of Judgment Obligor The court may order to be examined any person or corporation who has property of the debtor, or is indebted to the debtor in order to bind the credits due to the debtor. (Rule 39, Sec. 37). Satisfaction of judgment Rule 39, Sec. 44. Entry of satisfaction of judgment by clerk of court. Satisfaction of a judgment shall be entered by the clerk of court in the court docket, and in the execution book, upon the RETURN of a writ of execution showing the full satisfaction of the judgment or upon the FILING of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment obligee or by his counsel unless a revocation of his authority is filed, or upon the endorsement of such admission by the judgment obligee or his counsel on the face of the record of the judgment. Rule 39, Sec. 45. Entry of satisfaction with or without admission. Whenever a judgment is satisfied in fact, or otherwise than upon an execution, on demand of the judgment obligor, the judgment obligee or his counsel must execute and acknowledge, or indorse, an admission of the satisfaction as provided in the last preceding section, and after notice and upon motion the court may order either the judgment obligee or his counsel to do so, or may order the entry of satisfaction to be made without such admission. 9. Effect of Judgments or Final Orders (Rule 39, Sec. 47) Against a Specific Thing It is conclusive as to the title of the thing In a Probate of a Will or Administration of the Estate of a Deceased Person It is conclusive upon the will or administration but the probate of the will or the granting of letters of administration shall only be prima facie evidence of the death of the testator In Respect to the Personal, Political, or Legal Condition or Status of a Particular Person It will be conclusive as to the condition, status, or relationship of such person BAR BY PRIOR JUDGMENT In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; The judgment or decree of a court of competent jurisdiction concludes the litigation between the parties and their successors or privies and bars a new action or suit involving the same cause of action CONCLUSIVENESS OF JUDGMENT In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final 118 www.chanroblesbar.com : www.chanroblesbar.com.ph

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order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. Any right, fact or matter in issue which has been directly adjudicated upon or is necessarily involved in the determination of the action by a competent court is conclusively settled by the judgment or final order and CANNOT be litigated again by the parties and their privies.

10. Enforcement and Effect of Foreign Judgments or Final Orders (Rule 39, Sec. 48) Enforcement By filing an action based on said judgment; the foreign judgment is presumed to be valid and binding. Effect: 1. Against a specific thing conclusive upon title to the thing. 2. Against a person presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. In BOTH instances, the judgment may be repelled by evidence of want of jurisdiction, notice, collusion, fraud, or clear mistake of law or fact. Under the above Rule, a foreign judgment or order against a person is merely presumptive evidence of a right as between the parties. It may be repelled, among others, by want of jurisdiction of the issuing authority or by want of notice to the party against whom it is enforced. The party attacking a foreign judgment has the burden of overcoming the presumption of its validity. Respondent, in assailing the validity of the judgment sought to be enforced, contends that the service of summons is void and that the Singapore court did not acquire jurisdiction over it. . In the Philippines, jurisdiction over a party is acquired by service of summons by the sheriff, his deputy or other proper court officer either personally by handing a copy thereof to the defendant or by substituted service. in this case, the Writ of Summons issued by the Singapore High Court was served upon respondent at its office located at Mercure Hotel (formerly Village Hotel) , MIA Road, Pasay City. The Sheriff's Return shows that it was received on May 2, 1998 by Joyce T. Austria, Secretary of the General Manager of respondent company. But respondent completely ignored the summons, hence, it was declared in default. Considering that the Writ of Summons was served upon respondent in accordance with our Rules, jurisdiction was acquired by the Singapore High Court over its person. Clearly, the judgment of default rendered by that court against respondent is valid. (St. Aviation Services Co., Pte., Ltd., vs. Grand International Airways, Inc., G.R. No. 140288, October 23, 2006) How is a foreign judgment enforced? Foreign arbitral awards may be enforced under RA 9285 or the Alternative Dispute Resolution Act of2004. The award must first be confirmed by the RTC and when so confirmed shall be enforced in the same manner as final and executory judgments of Philippine Courts R. Provisional Remedies PROVISIONAL REMEDIES UNDER THE RULES OF COURT: a. Attachment (Rule 57) b. Preliminary Injunction (Rule 58) c. Receivership (Rule 59) d. Replevin or delivery of private property (Rule 60) e. Support Pendente Lite (Rule 61) f. Criminal Cases (Rule 127 in connection with the civil action deemed instituted with the criminal action)

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OTHER PROVISIONAL REMEDIES a. Temporary Protection Order [TPO] (RA 9262, Anti Violence Against Women and their Children; Rule on the Writ of Amparo) b. Witness Protection Order [WPO] (RA 6981; Rule on the Writ of Amparo) c. Inspection Order [IO] (AM 07 9 12, Rule on the Writ of Amparo) d. Production Order [PO] (AM 07 9 12, Rule on the Writ of Amparo) e. Administration of Common Property (AM 02 11 12, Rule on Provisional Orders) f. Inspection, Examination of Accounts and Freeze Order (RA 9372, Human Security Act) g. Freeze Order under RA 9160 as amended by RA 9194 (Anti Money Laundering Act) h. Seizure and Sequestration of Accounts and Assets (RA 9372, Human Security Act) i. Restriction of Travel (RA 9372, Human Security Act) j. Stay Order (AM 00 8 10, Rules of Procedure on Corporate Rehabilitation) k. Hold Departure Order (Criminal cases under Circular 39 97 and Family cases under AM 02 11 12) l. Temporary visitation rights (AM 02 11 12, Rule on Provisional Orders ) m. Guardian Ad Litem of Child (AM 02 1 19, Rule on Involuntary Commitment of Children) n. Temporary Custody of Child (AM 02 1 19 and AM 02 11 12) o. Spousal and Child Support (AM 02 11 12, Rule on Provisional Orders) COMMON REQUIREMENTS a. Affidavits are required to support the issuance of these remedies, except injunction and receivership. b. Bond is also required to answer for damages by reason of the improvident issuance of the writ. Exceptions: temporary restraining order, support pendente lite, inspection of accounts and freeze order (Human Security Act) , inspection and production orders (rule on the writ of amparo) , seizure and sequestration of accounts and assets (Human Security Act) , restriction of travel (Human Security Act) and hold departure order (Circular 39 97 and AM 02 11 12). Recovery of damages from the bond is governed by Rule 57, Section 20. 1. Nature of provisional remedies Provisional remedies are temporary, auxiliary and ancillary remedies available to a litigant for the protection of his rights while the main action is pending. They are writs and processes which are not main actions and they presuppose the existence of a main action. They are provisional because they constitute temporary measures availed of during the pendency of the action. They are ancillary because they are mere incidents in and are dependent upon the result of the main action. (Regalado 2008 ed.) When to apply and in what principal actions available: 1. Preliminary Attachment(Rule 57) at the COMMENCEMENT of the action or at any time before entry of judgment a. Recovery of a liquidated sum of money b. Recovery of possession of property unjustly or fraudulently taken, detained or converted 2. Preliminary Injunction(Rule 58) judgment or final order

at ANY STAGE of the action prior to the

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a. Action for injunction, whether or not coupled with other prayers b. Forcible entry and unlawful detainer 3. Receivership (Rule 59) at ANY STAGE of the proceedings and even up to the stage after the judgment has become final and executory as a means of enforcing the judgment a. Receivership action b. Real action involving title to or possession of realty c. Foreclosure of mortgage d. Dissolution of corporation 4. Replevin (Rule 60) before answer

at the COMMENCEMENT of the action OR at ANY TIME

a. Recovery of possession of personal property b. Recovery of personal property subject of chattel mortgage as a preliminary step to extrajudicial foreclosure 5. Support Pendente Lite (Rule 61) at the COMMENCEMENT of the proper action or proceeding, or at ANY TIME prior to the judgment or final order a. Support, whether as the main case or as one of several causes of action. b. Criminal actions where the civil liability includes support of the offspring as a consequence of the crime (rape, seduction). 2. Jurisdiction over provisional remedies The court which grants or issues a provisional remedy is the court which has jurisdiction over the main action. Even a municipal trial court may grant a provisional remedy in action pending with it and within its jurisdiction. Exs. writ of preliminary mandatory action, ancillary to the main action of ejectment (Rule 70, Sec. 15). But where the main action is for support, provisional remedy of support pendente lite may not be granted by a municipal trial court because the main action is within the jurisdiction of the family court. 3. Preliminary Attachment Preliminary attachment defined a. a provisional remedy b. issued upon order of the court where the action is pending, c. to be levied upon the property of the defendant therein, d. the same to be held thereafter by the sheriff e. as SECURITY for the satisfaction of a judgment in said action f. in favor of the attaching creditor against the defendant. (Virata vs. Aquino, September 10, 1973) Ancillary to principal proceeding The attachment must fail if the suit itself cannot be maintained as the purpose of the writ can no longer be satisfied. When the main action is appealed the attachment is also considered appealed, It cannot be the subject of an independent action (Olib vs. Pastoral, 188 SCRA 692 [1990]). Writ of attachment may be issued ex parte An order of attachment may be issued either ex parte or upon notice and hearing by the court in which the action is pending, or by the Court of Appeals or Supreme Court (Rule 57, Sec. 2). It may be issued ex parte because to require notice to the adverse party would defeat the purpose of attachment and enable the adverse party to abscond or dispose of the property

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before the issuance of the writ (Mindanao Savings and Loan Association, Inc. vs. CA, 172 SCRA 480). v Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. (Sec. 2) Attachment and garnishment distinguished Garnishment is an attachment by which the plaintiff seeks to subject to his claim property of the defendant in the hands of a third person or money owed by such third person or garnishee to the defendant. The rules on attachment also apply to garnishment proceedings.

Attachment/Garnishment Property is usually in the possession Property is in the possession of a of the party litigant. third party Subject is real or personal property Subject is personal property, usually debts or security (1) Preliminary Attachment

(2) Garnishment

(3) Levy on Execution

Issued at the commencement of the action or at anytime before entry of the judgment as security for the satisfaction of any judgment that may be recovered in the cases provided for by the rules. Here the court takes custody of the property of the party against whom the attachment is directed.

It is a kind of attachment in which the plaintiff seeks to subject either the property of the defendant in the hands of the third person called the garnishee, to his claim or the money in which said third person owes the defendant. Garnishment simply impounds the property in the possession of the garnishee and maintains the status quo until the main action is finally decided. Further, by means of garnishment, the plaintiff reaches credits belonging to the defendant and owing to him from a third person who is a stranger to the litigation.

Writ issued by the court after judgment by which the property of the judgment obligor is taken into the custody of the court before the sale of the property on execution for the satisfaction of a final judgment. It is a preliminary step to the sale on execution of the property of the judgment debtor

Garnishment of bank deposits does not violate the bank secrecy law (RA1405) because it does not involve examination or inquiry into the deposit, but is merely to inform the court whether defendant has a deposit in the bank which may be garnished. When garnishment order lifted. A garnishment order shall be lifted if it is established that: (a) the party whose accounts have been garnished has posted a counterbond or has made the requisite cash deposit; (b) the order was improperly or irregularly issued as where there is no ground for garnishment or the affidavit and/or bond filed therefor are defective or insufficient; (c) the property attached is exempt from execution, hence exempt from preliminary attachment; or (d) the judgment is rendered against the attaching or garnishing creditor. Discharge of attachment 1. Posting of counterbond (Sec. 12). Even before actual levy, seizure may be prevented also under a counterbond (Sec. 5). 2. Showing of improper or irregular issuance (Sec. 13). 3. Judgment rendered against attaching party dismissal of principal action (Sec. 19).

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a. Grounds for issuance of writ of attachment Grounds for issuance (Rule 57, Sec. 1) 1. Action for recovery of specified amount 2. Action involving embezzled property 3. Action to recover property fraudulently taken 4. Action involving fraud in contracting or performing obligation 5. Action against party who has removed or disposed of property to defraud creditors 6. Action against non resident defendant b. Requisites Attachment bond (Rule 57, Sec.3) An attachment bond is a pre requisite to the issuance of a writ of attachment. Until the attachment is discharged or lifted in accordance with law, the bond continues to be valid even when the PREMIUM IS NOT PAID. c. Issuance and contents of order of attachment; affidavit and bond (Rule 57, Sec. 2) The order of attachment may be issued either ex parte or upon motion with notice and hearing by the court in which the action is pending, or by the Court of Appeals or the Supreme Court. must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, EXCEPT if such party makes a DEPOSIT or gives a BOND in an amount equal to that fixed in the order. Amount may be (a) sufficient to satisfy the applicant's demand or (b) the value of the property to be attached as stated by the applicant, exclusive of costs. Ex parte grant of the writ is allowed because it is possible that during the course of the hearing, the part against whom the writ is sought may dispose of his property or abscond before the writ is issued. (Filinvest Credit Corporation vs. Relova, G.R. No. L 50378, September 30, 1982) Affidavit and Bond (Rule 57, Secs. 3 and 4) 1. The AFFIDAVIT to be executed by the applicant himself or some other person who personally knows the facts must show that: a) There is a sufficient cause of action. The case is one of those mentioned in Rule 57, Sec. 1 b) There is no sufficient security for the claim sought to be enforced; and c) The amount claimed in the action is as much as the sum for which the order is granted above all legal counterclaims; 2. The BOND must be executed to the adverse party in an amount fixed by the judge, not exceeding the applicants claim, conditioned that the latter will pay the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto. d. Rule on prior or contemporaneous service of summons Prior or contemporaneous service of summons required An ORDER of attachment may be granted ex parte. Its grant or denial rests upon the sound discretion of the court. However, its ENFORCEMENT shall be preceded or contemporaneously accompanied by service of summons and copy of the complaint, order of attachment and bond posted by the applicant (Davao Light and Power Co., Inc. vs. CA, 204 SCRA 343 [1991]). 123 www.chanroblesbar.com : www.chanroblesbar.com.ph

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EXCEPTIONS TO PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS (Rule 57, Sec. 5) 1. Summons could not be served personally or by substituted service despite diligent efforts; 2. Defendant is a resident of the Philippines temporarily absent therefrom; 3. Defendant is a non resident of the Philippines; or 4. The action is in rem or quasi in rem.

e. Manner of attaching real and personal property; when property attached is claimed by third person The sheriff enforcing the writ shall without attach only so much of the property of the adverse party not exempt from execution, as may be sufficient to satisfy the applicant's demand, UNLESS the adverse party (a) makes a DEPOSIT with the court from which the writ is issued, or (b) gives a COUNTERBOND executed to the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of costs. No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced unless it is preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint, the application for attachment, the applicant's affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines. The rule on prior or contemporaneous service of summons shall apply, subject to the exceptions enumerated earlier. (Rule 57, Section 5) Rule 57, Sec. 7. Attachment of real and personal property; recording thereof. The sheriff executing the writ shall attach real and personal property in the following manner: 1. Real property, growing crops, or any other interest therein a) By filing with the registry of deeds a copy of the order, together with a description of the property attached and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached; and b) By leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. 2. Personal property capable of manual delivery a) By taking and safely keeping it in his custody, after issuing the corresponding receipt therefor 3. Stocks or shares, or an interest in stocks and shares, of any corporation or company a) By leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued, is attached pursuant to the writ 4. Debts and credits, including bank deposits, financial interest, royalties, commissions, and other personal property not capable of manual delivery a) By leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom the attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ 124 www.chanroblesbar.com : www.chanroblesbar.com.ph

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5. The interest of the party against whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee a) By serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice, that said interest is attached b) A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee, or devisee concerned.

6. If the property sought to be attached is in custodia legis a) A copy of the writ of attachment shall be filed with the proper court or quasi judicial agency, and notice of the attachment served upon the custodian of such property. Attachment of Debts, Credits, Similar Personal Property (Garnishment) Those who have in their possession or control any credits or other similar personal property which belongs to the party against whom the attachment is issued, or owing any debts to him, shall be liable to the applicant for the amount of such credits, debts or other similar property. Such liability shall accrue from the time of service upon him of the copy of the writ of attachment and until the attachment is discharged, or any judgment recovered by him is satisfied, unless such property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment. (Rule 57, Section 8) It is not necessary to serve summons upon the garnishee to acquire jurisdiction upon him. All that is required is service upon him of the writ of garnishment. When property attached is claimed by a third person Rules regarding terceria (third party claims) Rule 57, Sec. 14 The third person whose property was levied on must make an AFFIDAVIT of his title thereto, or right to the possession thereof, stating the grounds of such right or title, and serves such affidavit upon the sheriff while the latter has possession of the attached property and a copy thereof upon the attaching party The sheriff shall not be bound to keep the property as a general rule. The sheriff is bound to keep the property when the attaching party, on demand of the sheriff, files a BOND approved by the court to INDEMNIFY the third party claimant in a sum not less than the value of the property levied upon. (indemnity bond) In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The sheriff shall not be liable for damages for the taking or keeping of such property, to any such third party claimant, if such bond is filed. The proceedings set forth above shall not prevent such claimant or any third person from vindicating his claim to the property in the same or separate action. or prevent the attaching party from claiming damages against a third party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action. When the writ of attachment is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, 125 www.chanroblesbar.com : www.chanroblesbar.com.ph

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and in case the sheriff is sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose. x The third party CANNOT APPEAL NOR AVAIL OF CERTIORARI AS A REMEDY in the event that his claim is denied since HE IS A NON PARTY to the original action (Sierra vs. Rodriguez and Northern Motors vs. Coquia), x Aside from Rule 57, Sec. 14, the other provisions of the Rules of Court dealing with terceria or third party claims are Rule 39, Sec. 16 (execution) and Rule 60, Sec. 7 (replevin). Attachment bond under Sec. 3 is different from the bond under Sec. 14 (proceedings where property claimed by third person). Sec. 3 refers to the attachment bond to assure the return of defendants property or the payment of damages to the defendant if the plaintiffs action to recover possession of the same property fails, in order to protect the person’s right of possession of said property, or to prevent the defendant from destroying the same during the pendency of the suit. Under Sec. 14, the purpose of the bond is to indemnify the sheriff against any claim by the intervenor to the property seized or for damages arising from such seizure, which the sheriff was making and for which the sheriff was directly responsible to the third party (Fort Bonifacio Development Corporation vs. Yllas Lending Corporation, G.R. No. 158997, October 6, 2008). f. Discharge of attachment and the counter-bond After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given. Grounds for discharge: 1. Debtor has posted a COUNTER BOND or makes a CASH DEPOSIT in an amount equal to that fixed by the court in the order of attachment. But if the attachment is sought to be discharged with respect to a particular property, the counter bond shall be equal to the value of that property as determined by the court. In either case, the cash deposit or the counter bond shall secure the payment of any judgment that the attaching party may recover in the action (R57S12); 2. Attachment was improperly or irregularly issued or enforced, as where there is no ground for attachment under Section 1 (R57S13); 3 . The bond filed is defective or insufficient (R57S13); 4. Attachment is excessive but the discharge shall be limited to the excess (R57S13); 5. Property attached is exempt from execution (R57S2 and R57S5); 6. Judgment is rendered against the attaching creditor (R57S19). x A discharge of the attachment must be made only after hearing. Ex parte discharge is a disservice to the orderly administration of justice(Peroxide Philippines Corporation vs. Court of Appeals, 199 SCRA 882]. g. Satisfaction of judgment out of property attached If judgment be recovered by the attaching obligee and execution issue thereon, the sheriff may cause the judgment to be SATISFIED out of the property attached, if it be sufficient for that purpose in the following manner: 1. By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment;

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2. If any balance remain due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriffs hands, or in those of the clerk of the court; 3. By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the amount of such credits and debts as determined by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee. The sheriff shall forthwith make a return in writing to the court of his proceedings under the section and furnish the parties with copies thereof. (Rule 57, Sec. 15) If after realizing upon all the property attached, any balance shall remain due, the sheriff must proceed to collect such balance as upon ordinary execution. Whenever the judgment shall have been paid, the sheriff, upon reasonable demand, must return to the judgment obligor the attached property remaining in his hands, and any proceeds of the sale of the property attached not applied to the judgment. (Rule 57, Sec.16) When the judgment has become executory, the surety or sureties on the counter bond shall become charged on such counter bond and bound to pay the judgment oblige upon demand the amount due under the judgment, which may be recovered from such surety or sureties after notice and summary hearing in the same action. (Rule 57, Sec. 17) Where the party, against whom attachment had been issued, has deposited the money instead of giving counter bond, it shall be applied under direction of the court to the satisfaction of any judgment rendered in favour of the attaching party. The balance shall be refunded to the depositor or his assignee. If the judgment is in favor of the party against whom attachment was issued, the whole sum deposited must be refunded to him or his assignee. (Rule 57, Sec. 18) If judgment be rendered against the attaching party, all the proceeds of the sales and money collected or received by the sheriff, under the order of attachment, and all property attached remaining in any such sheriffs hands, shall be delivered to the party against whom attachment was issued, and the order of attachment discharged. (Rule 57, Sec. 19) Preference of levy on attachment duly registered over a prior unregistered sale The settled rule is that levy on attachment, duly registered, takes preference over a prior unregistered sale. The preference created by the levy on attachment is not diminished even by the subsequent registration of the prior sale. This is so because an attachment is a proceeding in rem. It is against the particular property, enforceable against the whole world. The attaching creditor acquires a specific lien on the attached property which nothing can subsequently destroy except the very dissolution of the attachment or levy itself. The lien continues until the debt is paid, or sale is had under execution issued on the judgment, or until the judgment is satisfied, or the attachment discharged or vacated in some manner provided by law. Thus, in the registry, the attachment in favor of respondents appeared in the nature of a real lien when petitioner had his purchase recorded. The effect of the notation of said lien was to subject and subordinate the right of petitioner, as purchaser, to the lien (Valdevieso vs. Damalerio, G.R. No. 133303, February 17, 2005, 451 SCRA 664, 670). No sale of property covered by writ of preliminary attachment before prior judgment; Exception A writ of attachment is a provisional remedy and its issuance does not have the effect of a final judgment over the property attached. Thus, the property cannot be sold before final judgment. Exception: An attached property may be sold after levy on attachment and before entry of judgment whenever it shall be made to appear to the court In which the action is pending, upon hearing with notice to both parties, that (a) the attached property is perishable or that (b) the interests of all the parties to the action will be subserved by the sale of the attached property (Rule 57, Sec. 11; China Banking Corporation vs. Asian Corporation and Development Corporation, G.R. No. 158271, April 8, 2008).

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4. Preliminary Injunction(Rule 58) a. Definitions and Differences: Preliminary Injunction and Temporary Restraining Order Temporary Restraining Order may be issued ex parte or without a hearing, and is effective for a limited period. Preliminary Injunction pending

may not be issued ex parte and is effective while the main case is

PRELIMINARY INJUNCTION There is no power, the exercise of which, is more delicate which requires greater caution, deliberation, and sound discretion, or (which is) more dangerous in a doubtful case than the issuing of an injunction. It is the strong arm of equity that never ought to be extended unless in cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. (University of the Philippines v. Catungal, Jr. G.R. No. 121863 May 5, 1997, 272 SCRA 221, 236) b. Requisites Essential Requisites for the Issuance of Preliminary Injunction 1. There must be a right in esse or the existence of a right to be protected. 2. The act against which the injunction is to be directed is a violation of such right. (Philippine Sinter Corporation et. al. vs Cagayan Electric Power and Light Co. Inc. GR No. 127371, April 25, 2002. 381 SCRA 582) a. A writ of preliminary injunction, as an ancillary or preventive remedy, may only be resorted to by a litigant to protect or preserve his rights or interests and for no other purpose during the pendency of the action. (China Banking Corporation v. Court of Appeals G. R. No.121158, December 5,1996,265 SCRA 327.) It should only be granted if the party asking for it is clearly entitled thereto. (Climaco vs. Macadaeg, 114 Phil.870 [1962]; Subido v. Gopengco, G.R. No. 25618, March 28,1969, 27 SCRA 455; Police Commission v. Bello, G.R. Nos. 29959 60, January 30, 1971, 37 SCRA 230; Capitol Medical Center, Inc. v. Court of Appeals, G.R. No. 82499, Oct. 13,1989, 178 SCRA 493.) b. An injunction will not issue to protect a right not in esse and which may never arise or to restrain an act which does not give rise to a cause of action. (Republic of the Philippines v. Villarama G.R. No. 117733, September 5, 1997, 278 SCRA 736; Buayan v. Quintillan, supra, note 315.) There must exist a clear and actual right to be protected and that the acts against which the writ is to be directed are violative of the established right. (G & S Transport Corporation vs CA 382 SCRA 262 GR No. 120287, May 28, 2002) c. Kinds of Injunction 1. Preliminary prohibitory injunction order granted at any stage of the action or proceeding prior to judgment or final order requiring a party or court, agency or person to refrain from a particular act or acts (Rule 58, Sec. 1) 2. Preliminary mandatory injunction order granted at any stage of the action or proceeding prior to the judgment or final order requiring the performance of a particular act or acts. 3. Final or permanent injunction one issued in the judgment in the case permanently restraining the defendant or making the preliminary injunction permanent. Under the Rules of Court, probability is enough basis for injunction to issue as a provisional remedy, which is different from injunction as a main action where one needs to establish absolute certainty 128 www.chanroblesbar.com : www.chanroblesbar.com.ph

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as basis for a final and permanent injunction. (Hernandez vs. NAPOCOR, G.R. No. 145328, March 23, 2006). d. When writ may be issued Rule 58, Sec. 3. Grounds for issuance of preliminary injunction. A preliminary injunction may be granted when it is established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (b) That the commission, continuance or non performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. e. Grounds for issuance of preliminary injunction PRELIMINARY INJUNCTI0N Purpose of preliminary injunction to preserve the status quo antelitem motam (status before the suit) until the trial court hears fully the merits of the case. Its primary purpose is not to correct a wrong already consummated or to redress an injury already sustained, or to punish wrongful acts already committed, but to preserve and protect the rights of the litigant during the pendency of the case (Bustamante vs. CA, April 17, 2002). Injunction is a preservative remedy Injunction is a preservative remedy for the protection of substantive rights or interests. It is not a cause action in itself but merely a provisional remedy, an adjunct to a main suit. Reason for injunction So that the court may thereby prevent a threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly investigated and advisedly adjudicated. The application of the writ rests upon an alleged existence of an emergency or of a special reason for such an order before the case can be regularly heard, and the essential conditions for granting such temporary injunctive relief are that (a) the complaint alleges facts which appear to be sufficient to constitute a cause of action for injunction and that (b) on the entire showing on both sides, it appears, in view of all the circumstances, that the injunction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation. (Estares vs. CA, 459 SCRA 604 [2005]). Status quo sought to be preserved the last actual, peaceable and uncontested situation [LAPUS] which precedes a controversy. The status quo should be existing ante litem motam, or at the time of the filing of the case. For this reason, a preliminary injunction should not establish new relations between the parties, but merely maintain or re establish the pre existing relationship between them (Bustamante vs. CA, supra). Requisites for injunctive writ: (1) invasion of the right is material and substantial; (2) the right of complainant is clear and unmistakable; (3) and there is an urgent and permanent necessity of the writ to prevent serious damage. Injunction not designed to protect contingent or future rights. Injunction will not issue to protect a right not in esse and which may never arise, or to restrain an act which does not give rise to a cause of action. The complainants right or title must be CLEAR AND UNQUESTIONED, for equity, as a rule, will not take cognizance of suits to establish title, and will not lend its preventive aid where the complainants title or right is doubtful or disputed. The possibility of irreparable damage, without proof of violation of an actual existing right, is no ground for an injunction, being mere damnum absque injuria (Ulang vs. CA, 225 SCRA 637 [1993]). 129 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Distinguished from Prohibition INJUNCTION

PROHIBITION Generally directed against a court, tribunal or personal exercising judicial powers

Generally directed against a party

Does not involve the jurisdiction of May be on the ground that court is acting without or in the court excess of jurisdiction May be the main action provisional remedy only

or

Always a main action

MANDATORY INJUNCTION Strict requisites for mandatory injunction. Since it commands the performance of an act, a mandatory injunction does not preserve the status quo and is thus more cautiously regarded than a mere prohibitive injunction (Gateway Electronics Corporation vs. Land Bank of the Philippines, July 30, 2003, 407 SCRA 454,). When injunction improper Tay Chun Suy vs. CA, 229 SCRA 151 (1994) As between the buyer of a vessel at a prior extrajudicial foreclosure and the buyer at a subsequent auction sale, both buyers failing to register their transactions, who has a better right of dominion over the vessel? Rule that no court has the power to interfere by injunction with the judgments of another court with concurrent or coordinate jurisdiction applies only when NO PARTY CLAIMANT involved. When a third party or a stranger to the action asserts a claim over the property levied upon, the claimant may vindicate his claim by an independent action in the proper civil court which may stop the execution of the judgment on property not belonging to the judgment debtor. Cases where injunction was held improper 1. To restrain collection of taxes except where there are special circumstances that bear the existence of irreparable injury. (Churchill & Tait v. Rafferty, 32 Phil. 580 [1915]). 2. To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien such as the husbands obligation to give support. (Saavedra v. Estrada 56 Phil. 33 [1931]) 3. To restrain a mayor proclaimed as duly elected from assuming his office. (Cereno v. Dictado, No. L 81550, April 15, 1988, 160 SCRA 759.) 4. To restrain consummated or ministerial acts: a. Not proper to restrain against disposing a case on the merits. (Government Service Insurance System (GSIS) v. Florendo, G.R. NO. 48603, September 29, 1989, 178 SCRA 76; Ortigas and Company Limited Partnership v. Court of Appeals, No. L 79128, June 16, 1988, 162 SCRA 165.) b. Not proper to stop the execution of judgment where the judgment was already executed. (Meneses v. Dinglasan, 81 Phil. 470 [1948]) c. The Regional Trial Court has no power to issue a writ of injunction against the Register of Deeds if its effect is to render nugatory a writ of execution issued by the National Labor Relations Commission. (Ambrosio v. Salvador, No. L 47651, December 11, 1978, 87 SCRA 217.) 130 www.chanroblesbar.com : www.chanroblesbar.com.ph

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d. A writ of injunction is not proper to stop the execution of judgment where the judgment was already executed. (Meneses v. Dinglasan, 81 Phil. 470 [1948]) e. But where the lower court enforced its judgment before a party against whom the execution was enforced could elevate his or her appeal in an injunction suit, which was instituted to prevent said execution, an independent petition for injunction in the Court of Appeals is justified. (Manila Surety and Fidelity v. Teodoro, G.R. No. 20530, June 29, 1967, 20 SCRA 463) f. A writ of injunction should never issue when an action for damages would adequately compensate the injuries caused. The very foundation of the jurisdiction to issue the writ of injunction rests in the possibility of irreparable injury, inadequacy of pecuniary compensation and the prevention of the multiplicity of suits. Where facts are not shown to bring the case within these conditions, the reliefs of injunction should be refused. (Golding vs. Balabat, 36 Phil. 941) Writ of preliminary injunction may not be issued ex parte A writ of preliminary injunction shall not be granted without prior notice and hearing to the party or person sought to enjoined (Rule 58, Sec. 5). Reason: the preliminary injunction may cause grave and irreparable injury to the person enjoined. However, temporary restraining order may be issued ex parte 1. If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the court may issue a TRO effective only for 72 hours from issuance, renewable after summary hearing for a period not exceeding 20 days including the original 72 hours. 2 Only a TRO issued after a summary hearing can last for a period of twenty days (Mayor Sampiano v. Judge Indar, A.M. No. RTJ 05 1953; December 21, 2009 ) Issues on jurisdiction 1. Pursuant to the policy of judicial stability, the judgment or order of a court of competent jurisdiction may not be interfered with by any court of concurrent jurisdiction (Javier vs. Court of Appeals, February 16, 2004, 423 SCRA 11; See also Chings vs. Court of Appeals, February 24, 2003, 398 SCRA 88). Exc. Third party claim 2. Injunctions issued by the Regional Trial Courts are limited to acts committed or to be committed within its territorial jurisdiction. The doctrine is, however, limited to prohibitory and injunctive writs. Section 21 of BP 129 reads: Original jurisdiction in other cases Regional Trial Courts shall exercise original jurisdiction (1) in the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any party of their respective regions. 3. Judge's authority to issue a writ of preliminary injunction only within his/her territorial jurisdiction As the presiding judge of RTC, Marawi City, he should have known that Makati City was way beyond the boundaries of his territorial jurisdiction insofar as enforcing a writ of preliminary injunction is concerned. Section 21(1) of B.P. Blg. 129, as amended, provides that the RTC shall exercise original jurisdiction in the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions (Gomos vs. Adiong, A.M. No. RTJ 04 1863, October 22, 2004, 441 SCRA 162). Allgemeine Bau Chemie Phils., Inc. vs. Metropolitan Bank & Trust Company, 482 SCRA 247 (2006)

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1. An original action for injunction is outside the jurisdiction of the Court of Appeals. 2. The appellate court’s jurisdiction to grant a writ of preliminary injunction is limited to the actions or proceedings before it or in a petition for certiorari, prohibition or mandamus under Rule 65. 3. An order granting or denying a preliminary injunction is not appeal f. Grounds for objection to, or for the dissolution of injunction or restraining order 1. Insufficiency of application 2. Other grounds (e.g. applicants bond is insufficient/defective) , upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. 3. If it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof would cause irreparable damage to the party or person enjoined, while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. 4. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified (Rule 57, Sec. 6). Not allowed to transfer possession A court should not, by means of a preliminary injunction, transfer the property in litigation from the possession of one party to another where the legal title is in dispute and the party having possession asserts ownership thereto. (Toyota Motors Philippines Corporation v. Court of Appeals, G.R. No. 102881, Dec. 7, 1992). The function of injunction is to preserve the status quo ante. (Knecht v. Court of Appeals, G.R. No. 56122, November 18, 1993) This is more particularly applicable where the legal title is in dispute and the party having possession asserts ownership in himself. (Gordillo and Martinez v. Del Rosario, 39 Phil. 829 [1919]) Exceptions a. Forcible entry in which the Court may issue preliminary mandatory injunction (Rule 70, Sec. 15) and by Section 20 thereof involving leases in which the court may, on appeal, grant similar mandatory injunctive relief. The exception applies only to ejectment cases exclusively cognizable by the municipal trial court. (Ramos v. Court of appeals, G.R. 81354, July 26, 1988, 163 SCRA 583 ) b. Property covered by Torrens Title when there is a clear finding of ownership and possession of the land or unless the subject property is covered by a Torrens Title pointing to one of the parties as the undisputed owner. (GSIS v. Florendo, supra, note 329; Cagayan de Oro City Landless Residents Association, Inc. v. Court of Appeals, G.R. No. 106043, March 4, 1996, 254 SCRA 229) Not allowed to dispose of the main case on the merits Courts should avoid issuing a writ of preliminary injunction which would in effect dispose of the main case without trial. Such granting of JPV's application already amounted to the virtual acceptance of JPV's alleged entitlement to preventing the petitioner from considering and passing upon the applications of other parties like Grahar to operate their own Private Emission Testing Center in Iloilo City based on JPV's still controversial capability to serve all the registered motor vehicles in Iloilo City pursuant to Department Order No. 2002 31. The granting amounted to the prejudgment of the merits of the case, something the RTC could not validly do. (City of Iloilo vs. Honrado, G.R. No. 160399, December 9, 2015) LPB

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Injunctions not issued where act sought to be prevented had been committed / consummated acts (fait accompli) 1. The remedy of injunction could no longer be availed of where the act to be prevented had long been consummated. Where a span of seven years has intervened from the time the award of the lot has already been accomplished to the time petitioners complaint for injunction was filed, injunction would just be an exercise in futility (Zabat vs. CA, August 23, 2000, 338 SCRA 551). 2. A writ of preliminary injunction will not issue if the act sought to be enjoined is a fait accompli or an accomplished or consummated act (Transfield Philippines, Inc., vs. Luzon Hydro Corporation, November 22, 2004, 443 SCRA 307). By issuing a temporary restraining order and writ of preliminary injunction enjoining the eviction of the respondents, the Court of Appeals allowed the respondents to stay in the property despite the mandatory provision of Section 19, Rule 70 of the Rules of Court. The appellate court, in effect, granted the same injunctive relief which the respondents failed to secure from the Regional Trial Court due to their procedural lapse (David vs. Navarro, February 11, 2004, 422 SCRA 499). SUMMARY LIST OF INSTANCES WHERE PRELIMINARY INJUNCTION IS PROHIBITED: 1. Injunction against courts or tribunals of co equal rank prohibited. (Roldan, Jr. v. Arca, G.R. No. 25434, July 25, 1975, 65 SCRA 336) 2. Injunction orders are prohibited in labor cases. (Associated Labor Union (AKU TUCP) v. Borromeo, No. L 75736, September 29, 1988, 166 SCRA 99; Kaisahan ng Mga Manggagawa v. Sarmiento, No. L 47853, November 16, 1984, 133 SCRA 220) 3. Injunction beyond prayer in complaint (The Chief of Staff, AFP v. Guadiz, Jr., No. L 35007, December 29, 1980, 101 SCRA 827) Enjoining the prosecution of criminal proceedings. (Romero v. The Chief of Staff, AFP, G.R. No. 84076, February 20, 1989, 170 SCRA 108; Reyes v. Camilon, G.R. No. 46198, December 20, 1990, 192 SCRA 445 ) 4. Injunctions to prevent the implementation of government infrastructure projects. (Section 3, RA 8975) 5. Injunctions to prevent the implementation or execution of contracts for the operation of a public utility. (G&S Transport Corporation vs CA 382 SCRA 262 GR No. 120287, May 28, 2002) 6. Injunctions to prevent the foreclosure of real estate mortgages by government financing institutions (OCA Circular no. 93 2004 in relation to Sec. 21 Rule 141 of the Rules of Court, Sec.3 PD 385 and Administrative Circular No. 07 99) 7. Injunctions to prevent the Anti Money Laundering Council from issuing and /or implementing freeze orders, with the exception of writs issued by the Court of Appeals and the Supreme Court (RA 9160 as amended by RA 9194) 8. Injunctions to restrain the Presidential Agrarian Reform Council from performing its tasks (Section 55 RA 6657) 9. Injunctions against public administrative officers in the issuance of public grants for the exploitation of natural resources (PD 605) Period to decide case when a higher court issues a writ of preliminary injunction against a lower court, board or tribunal: The trial court, the Court of Appeals, the Sandiganbayan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer or quasi judicial agency shall decide the main case or the petition within six months from the issuance of the writ. Under this provision, higher courts that restrain a lower court from proceeding with a case by issuing a writ of preliminary injunction must decide the main case or petition within six months in order not to unduly delay the main case lodged in a lower court. (Section 5, Rule 58, as amended by A.M. No. 07 7 12 SC which took effect on December 27, 2007)

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g. Duration of TRO Effectivity of TRO RTC 20 days CA 60 days SC until further orders h. In relation to RA 8975, Ban on issuance of TRO or Writ of Injunction in cases involving government infrastructure projects Statutory Prohibitions against the Issuance of a Writ of Preliminary Injunction or preliminary mandatory injunction Under Rep. Act No. 8975 The issuance of temporary restraining orders, preliminary injunctions, or preliminary mandatory injunctions against government infrastructure projects is prohibited under this law. Section 3 RA 8975 states that No court, except the Supreme Court shall issue any TRO or preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions or officials, whether public or private acting under the government direction to restrain, prohibit or compel the following acts: 1. Acquisition, clearance and development of the right of way and/or site or location of any national government project; 2. Bidding or awarding of contract/ project of the national government; 3. Commencement, prosecution, execution, implementation, operation of any such contract or project; 4. Termination or rescission of any such contract/project; and 5. The undertaking or authorization of any other lawful activity necessary for such contract/project. Accordingly, a Regional Trial Court (RTC) that ignores the statutory prohibition and issues a TRO or a writ of preliminary injunction or preliminary mandatory injunction against a government contract or project acts contrary to law. (Nerwin Industries Corporation vs. PNOC Energy Development Corporation, G.R. No. 167057, April 11, 2012) – LPB This law expressly repealed Presidential Decree No. 605 (prohibiting injunction involving concessions, licenses and other permits issued by public administrative office or bodies for the exploitation of natural resources) and Presidential Decree No. 1818 (prohibiting injunction in cases involving infrastructures and natural resources development and public utilities). R.A. 8975 prohibits the issuance of TRO and/or writ of preliminary injunction against national government infrastructure projects, not merely national government projects. While the EPassport Project is national in scope, it is an information and communication technology project with no relation to infrastructure or any civil works component. Hence, it is excluded from the coverage of R.A. 8975 and may be stayed by a writ of injunction. (Department of Foreign Affairs vs. Falcon, G.R. No. 176657; September 1, 2010) i. Rule on prior or contemporaneous service of summons in relation to attachment (out of place here) 5. Receivership (Rule 59) Receiver defined Receiver is a representative of the court appointed for the purpose of PRESERVING AND CONSERVING the property in litigation and prevent its possible destruction or dissipation, if it were left in the possession of any of the parties. He is not the representative of any or the parties but by all of them to the end that their interests may be equally protected with the least possible inconvenience and expense.

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a. Cases when receiver may be appointed b. Requisites Rule 59, Section 1. Appointment of receiver. Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending, or by the Court of Appeals or by the Supreme Court, or a member thereof, in the following cases: (a) When it appears from the verified application, and such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; (b) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; (c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; (d) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court. c. Requirements before issuance of an Order Rule 59, Sec. 2. Bond on appointment of receiver. Before issuing the order appointing a receiver the court shall require the applicant to file a bond executed to the party against whom the application is presented, in an amount to be fixed by the court, to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause; and the court may, in its discretion, at any time after the appointment, require an additional bond as further security for such damages. (3a) d. General powers of a receiver Rule 59, Sec. 6. General powers of receiver. Subject to the control of the court in which the action or proceeding is pending, a receiver shall have the power to bring and defend, in such capacity, actions in his own name; to take and keep possession of the property in controversy; to receive rents; to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; to compound for and compromise the same; to make transfers; to pay outstanding debts; to divide the money and other property that shall remain among the persons legally entitled to receive the same; and generally to do such acts respecting the property as the court may authorize. However, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action. No action may be filed by or against a receiver without leave of the court which appointed him. e. Two (2) [actually 3] kinds of bonds 1. applicants bond (Rule 59, Sec. 2) 2. counterbond (Rule 59, Sec. 3) 3. receivers bond (Rule 59, Sec. 4) 135 www.chanroblesbar.com : www.chanroblesbar.com.ph

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f. Termination of receivership Rule 59, Sec. 8. Termination of receivership; compensation of receiver. Whenever the court, motu proprio or on motion of either party, shall determine that the necessity for a receiver no longer exists, it shall, after due notice to all interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them, and order the discharge of the receiver from further duty as such. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. Receivership other than that under Rule 58 1. Receivership in aid of execution of judgment under Rule 39, Sec. 1 2. Bank receivership 3. Receivership in petitions for insolvency under the Insolvency Law Appointment of a Receiver The general rule is that neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person. (Alcantara v. Abbas, No. L 14890, September 30, 1963, 9 SCRA 54 )A clerk of court should not be appointed as a receiver as he is already burdened with his official duties. (Abrigo v. Kayanan, No. L 28601, March 18, 1983, 121 SCRA 20) Specific situations when a receiver may be appointed 1. Family Code, Article 101 If a spouse, without just cause, abandons the other or fails to comply with his or his obligations to the family, the aggrieved spouse may petition the court for receivership. 2. Sec. 41, Rule 39 The court may appoint a receiver of the property of the judgment obligor; and it may also forbid the transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. 3. After the perfection of an appeal, the trial court retains jurisdiction to appoint a receiver of the property under litigation since this matter does not touch upon the subject of the appeal. (Rules of Court, Rule 41, Sec. 9; Acua v. Caluag, 101 Phil. 446 [1957]) 4. After final judgment, a receiver may be appointed as an aid to the execution of judgment. (Philippine Trust Company v. Santamaria, 53 Phil. 463 [1929]) 5. Appointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances as when it is reasonably necessary to secure and protect the rights of the real owner. (Dolar v. Sundiam, No. L 27631, April 30, 1971, 38 SCRA 616) 6. In a petition for corporate rehabilitation, when the court finds the same to be sufficient in form and substance, the Court shall, within five days from filing of the petition appoint a Rehabilitation and fix his bond. (Rules of Procedure on Corporate Rehabilitation 2008) 6. Replevin (Rule 60) What is replevin? Replevin or delivery of personal property consists in the delivery, by order of the court, of personal property by the defendant to the plaintiff upon filing of a bond.

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Replevin and attachment distinguished Preliminary Attachment

Replevin

Available even if recovery of personal property is only Available only if principal relief incidental relief in the action sought is recovery of personal property; Relief for damages are only incidental Can be resorted to even if personal property is in the Can be sought only where defendant custody of a third person is in actual or constructive possession of the personality involved Extends to all kinds of property

Extends only to personal property capable of manual delivery

To recover possession of personal property unjustly To recover personal property even if detained; Presupposes that it is being concealed, it is not being concealed, removed, or removed, or disposed to prevent its being found or disposed of taken by the applicant Can be resorted to even if property is in custodia legis

Cannot be availed of if property is under custodia legis

a. When may writ be issued b. Requisites Steps in the Issuance and Implementation of a Writ of Replevin 1. A party praying for the recovery of possession of a personal property files with the court at the commencement of the action or before answer an application for a writ of replevin. (Rule 60, Sec. 1) 2. To accompany the application is the AFFIDAVIT which should state: a) that the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; b) that the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of knowledge, information, and belief; c) that the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized , that it is exempt from such seizure or custody; and d) the actual market value of the property Notes: 1) The applicant for a writ of replevin need not be the owner for it is enough that he has a right to possess it. (Yang v. Valdez, G.R. No. 73317, August 31, 1989, 177 SCRA 141) 2) Replevin cannot be availed of if the property is in custodia legis or where it is under attachment or was seized under a search warrant (Pagkalinawan v. Gomez, Nos. L 22585, December 16, 1967, 21 SCRA 1275; Rules of Court, Rule 60, Sec. 2 (c ) except:

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a) when the seizure is illegal; (Bagalihog v. Fernandez, G.R. No. 96356, June 27, 1991, 198 SCRA 614) and b) where there is reason to believe that the seizure will not anymore be followed by the filing of the criminal action in court or there are conflicting claims. (Chua v. Court of Appeals, G.R. No. 79021, May 17, 1993, 222 SCRA 85) 3) The defendant is entitled to the return of the property taken under a writ of replevin if the following requisites are met: 1) he posts a redelivery bond and 2) he furnishes the plaintiff of a copy of the undertaking within five (5) 3) days from taking and 4) the bond is sufficient and in proper form. (Rule 60, Secs. 5 and 6) Note: The RTC had no jurisdiction to take cognizance of the petition for replevin by respondents, issue the writ of replevin and order its enforcement. The Collector of Customs had already seized the vehicles and set the sale thereof at public auction. The RTC should have dismissed the petition for replevin at the outset. By granting the plea of respondents (plaintiffs below) for the seizure of the vehicles and the transfer of custody to the court, the RTC acted without jurisdiction over the action and the vehicles subject matter thereof. The forfeiture of seized goods in the Bureau of Customs is a proceeding against the goods and not against the owner. It is in the nature of a proceeding in rem, i.e., directed against the res or imported articles and entails a determination of the legality of their importation. In this proceeding, it is, in legal contemplation, the property itself which commits the violation and is treated as the offender, without reference whatsoever to the character or conduct of the owner (Asian Terminals, Inc. vs. Bautista Ricafort, G.R. No. 166901, October 27, 2006). c. Affidavit and bond; Redelivery Bond Rule 60, Sec. 2. Affidavit and bond. The applicant must show by his own AFFIDAVIT or that of some other person who personally knows the facts: (a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; (b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief; (c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and (d) The actual market value of the property. The applicant must also give a BOND, executed to the adverse party in DOUBLE THE VALUE of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant in the action. Order of Replevin 1) Upon the filing of such affidavit and approval of the bond, the court shall issue an ORDER and the corresponding WRIT OF REPLEVIN describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody. (R60S3) 2) A writ of replevin may be served anywhere in the Philippines

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Redelivery bond If the adverse party objects to the sufficiency of the applicants bond, or of the surety or sureties thereon, he cannot immediately require the return of the property. But if he does not so object, he may, at any time before the delivery of the property to the applicant, require the return thereof, by filing with the court where the action is pending a redelivery bond that is, a bond executed to the applicant: 1. In DOUBLE THE VALUE of the property as stated in the applicants affidavit for the delivery of the property to the applicant, if such delivery be adjudged; and 2. For the payment of such sum to him as may be recovered against the adverse party; and 3. By serving a copy of such bond on the applicant. (R60S5) d. Sheriffs duty in the implementation of the writ; when property is claimed by third party Disposition of property by sheriff 1) The sheriff shall retain the property for 5 days. The adverse party may object to the sufficiency of the bond or surety or he may file a redelivery bond. 2) If after 5 days and the adverse party failed to object or his redelivery bon is insufficient, the sheriff shall deliver the property to the applicant (R60S6) 3)The defendant is entitled to the return of the property under writ of replevin if: a. He seasonably posts a redelivery bond (R60S5) b. Plaintiffs bond is found to be insufficient or defective and is not replaced with a proper bond. c. Property is not delivered to plaintiff for any reason (R60S6) Rule 60, Sec. 7. Proceedings where property claimed by third person. The third person against whom the writ or replevin had been issued must make an AFFIDAVIT of his title thereto, or right to the possession thereof, stating the grounds of such right or title, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant The sheriff shall not be bound to keep the property as a general rule. The sheriff is bound to keep the property when the applicant, on demand of the sheriff, files a BOND approved by the court to INDEMNIFY the third party claimant in a sum not less than the value of the property under replevin (indemnity bond) In case of disagreement as to such value, the court shall determine the same No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The sheriff shall not be liable for damages for the taking or keeping of such property, to any such third party claimant, if such bond is filed. The proceedings set forth above shall not prevent such claimant or any third person from vindicating his claim to the property, in the same or a separate action. or prevent the applicant from claiming damages against a third party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action. When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and if held liable therefor, the actual

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damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose. S. Special Civil Actions (Rules 62-71) 1. Nature of special civil actions A special civil action is a civil action which aside from being governed by the rules for ordinary civil action is subject to specific rules provided for it. 2. Ordinary civil actions versus special civil actions An ordinary civil action is governed by the rules for ordinary civil actions while a special civil action is governed by the rules for ordinary civil action and by specific rules. Every ordinary civil action must be based on a cause of action, while not every special civil action must be based on a cause of action, as for instance, declaratory relief. (Primer Reviewer on Remedial Law, Manuel R. Riguera, First Edition, p. 462) A special civil action is a civil action which aside from being governed by the rules for ordinary civil action is subject to specific rules provided for it. How commenced: o COMPLAINT (IEFPF) a. interpleader b. expropriation c. foreclosure of real estate mortgage d. partition e. forcible entry and unlawful detainer o PETITION (DRCPMQC) a. declaratory relief b. review of adjudications of Comelec and COA c. certiorari d. prohibition e. mandamus f. quo warranto g .contempt Writs of injunction, certiorari, mandamus, prohibition, quo warranto and habeas corpus issued by the RTCs are enforceable within their respective judicial regions (BP 129). ORDINARY CIVIL ACTIONS

SPECIAL CIVIL ACTIONS

Governed by rules for ordinary civil actions Generally governed by rules for ordinary civil actions but subject to special rules Must be based on a cause of action Not necessarily such as in certain special civil meaning an act or omission has violated actions: the rights of another 1. Declaratory relief no actual violation of rights 2. Interpleader no interest in the subject matter May be filed initially in either the MTC or There are some special civil actions which cannot RTC depending upon the jurisdiction be commenced in the MTC, i.e. petitions for amount or the nature of the action. certiorari, prohibition and mandamus

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Ordinary civil complaints.

actions

are

filed

as Some special civil actions are filed as complaints, but others are filed as petitions

3. Jurisdiction and venue Venue is governed by the general rules on venue, except as otherwise indicated in the particular rules for special civil actions. Special civil actions within the jurisdiction of first level courts: 1. quieting of title if the assessed value is within its jurisdiction 2. partition, if the assessed value is within its jurisdiction (Russel vs. Vestil, March 17, 1999) 3. ejectment suits (Rule 70) 4. contempt (Rule 71) 4. Interpleader (Rule 62) Definition A remedy whereby a person who has property in his possession or has an obligation to render wholly or partially, without claiming any right in both, comes to court and asks that the defendants who have made conflicting claims upon the same property or who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine who is entitled to the property or payment of the obligation (Beltran vs. PHHC, 1969). Purpose To compel conflicting claimants to interplead and litigate their several claims among themselves (R62S1) To protect a person not against double liability but against a double vexation in respect of one’s liability (Beltran vs. PHHC) a. Requisites for interpleader 1) The plaintiff claims no interest in the subject matter or, his claim is not disputed; 2) There must at least be two (2) or more CONFLICTING CLAIMANTS; 3) The parties to be interpleaded must make effective claims; and 4) The subject matter must be one and the same and derived from the same source. (Feria, (2001) Civil Procedure Annotated,Vol.2, p.425) b. When to file 1. Interpleader was found to be a proper action in an action by a lessee who does not know to whom to pay rentals due to conflicting claims on the property (Pagkalinawan v. Rodas, 80 Phil. 281 [1948]) and in an action by a bank where the purchaser of a cashier’s check claims it was lost and another has presented it for payment. (Mesina v. Intermediate Appellate Court, No. L 70145, November 13, 1986, 145 SCRA 497). 2. It was however found to be improper in an action where defendants had conflicting claims against the plaintiff; (Beltran v. Peoples Homesite and Housing Corporation, No. L 25138, August 28, 1969, 29 SCRA 145) in an action where one of the defendants 141

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had earlier sued the plaintiff and secured a judgment against him which has already become final, the action being barred by laches or unreasonable delay; (Wack Golf and Country Club, Inc. v. Won, No. L 23851, March 26; 1976, 70 SCRA 165.) and in an action where there are non conflicting claims among the defendants, their respective claims being separate and distinct from each other. Hence, the complaint for interpleader may be dismissed for lack of cause of action. (Vda. De Camilo vs. Aranio, L 15653, September 29, 1961.) 3. An interpleader is commenced to protect a party, not against double liability, but against double vexation on account of one liability 4. The parties in an interpleader action may file counterclaims, cross claims, third party complaints and responsive pleadings in the same action, as provided in the second paragraph of Section 5 of Rule 62 of the 1997 Rules of Civil Procedure in the interest of a complete adjudication of the controversy and its incidents. (Arreza v. Diaz, Jr., GR No. 133113, August 30, 2001) Procedural Features 1. Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. (Rule 62, Sec. 2) 2. The court may direct in the same order mentioned in the preceding paragraph that the subject matter of the suit be paid or delivered to the court. 3. The summons shall be accompanied by copies of the complaint and order. 4. The defendants may file a motion to dismiss on the ground of the impropriety of the interpleader action or on other appropriate grounds specified in Rule 16. 5. The defendants shall serve a copy of the answer not only on the plaintiff but also on their co defendants who may file their reply thereto. 6. The effect of a failure to plead within the prescribed period is that, upon motion, the defendant will be declared in default and thereafter, the Court renders judgment barring him from any claim in respect of the subject matter. 5. Declaratory Reliefs and Similar Remedies (Rule 63) a. Who may file the action Rule 63, Section 1. Who may file petition. Any person interested under a deed, will, contract or other written instrument, whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this Rule. Rule 63, Sec. 2. Parties. All persons who have or claim any interest which would be affected by the declaration shall be made parties; and no declaration shall, except as otherwise provided in these Rules, prejudice the rights of persons not parties to the action. Procedural Features 1. The petition must be filed before there is a breach of contract or violation of the statute of ordinance. (Rule 63, Sec. 1) 2. A third party complaint is not allowed. (Commissioner of Customs v. Cloribel, No. L 21036, June 30, 1977, 77 SCRA 459) ) 142 www.chanroblesbar.com : www.chanroblesbar.com.ph

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3. Except in actions for quieting of title, the courts action in an action for declaratory relief is discretionary. Thus, the court, motu proprio or upon motion, may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action or in any case where the declaration or construction is not necessary under the circumstances. (Rule 63, Sec. 5) 4. When a statute, executive order or any government regulation or ordinance is alleged to be unconstitutional, the Solicitor General should be notified by the party assailing the same. (Rule 63, Sec. 3) 5. If the validity of a local government ordinance is in question, the prosecutor or attorney of the local government should be notified. (Rule 63, Sec. 3) 6. A compulsory counterclaim is allowed. (Visayan Packing Corp. v. Reparations Commission, GR No. L 29673, November 12, 1987) 7. When there is a breach of contract or violation of a statute or ordinance before the final termination of the case, the case is converted into an ordinary action. (Rule 63, Section 6) b. Requisites of action for declaratory relief 1. The subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order or regulation or ordinance; (Rule 63, Section 1) 2. There must be a justiciable controversy (Obiles v. Republic, 92 Phil. 864 [1953]) 3. The controversy must be between persons whose interest is adverse 4. The parties must have legal interest in the controversy 5. The controversy must be ripe for judicial determination (Board of Optometry v. Colet, G.R. No. 122241, July 30, 1996, 260 SCRA 88) 6. The petition must be filed before there is a breach or violation. (Rule 63, Sec. 1.) A petition for declaratory relief is ripe for judicial determination if there is a threatened litigation in the immediate future, which litigation is imminent and inevitable unless prevented by the declaratory relief sought. (Tolentino v. Board of Accountancy GR No. L 362, September 28, 1951). c. When court may refuse to make judicial declaration Rule 63, Sec. 5. Court action discretionary. Except in actions falling under the second paragraph of Section 1 of this Rule, the court, motu proprio or upon motion, may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration or construction is not necessary and proper under the circumstances. Declaratory Relief Improper in the Following Cases: 1. to obtain judicial declaration of citizenship (Dy Poco v. Commissioner of Immigration, No. L 22313, March 31, 1966, 16 SCRA 615; Singson vs. Republic, No. L 21855, January 30, 1968, 22 SCRA 353) ; 2. to determine the validity or construction to be placed on a registration certificate (Obiles v. Republic, supra.) 3. to seek relief on moot questions or to resolve hypothetical, abstract or theoretical questions, or to decide claims which are uncertain (Lim v. Republic, No. L 29535, February 27, 1971, 37 SCRA 783) ; 4. to resolve political issues or questions (Dela Llana v. Commission on Elections, No. L 47245, December 9, 1977, 80 SCRA 525) 5. to test the correctness or validity of a court decision (Tanda v. Aldaya, 52 O.G. No. 11,5175 (September 15, 1956) 143 www.chanroblesbar.com : www.chanroblesbar.com.ph

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6. to determine hereditary rights (Edades v. Edades, 52 O.G. No. 11, 5149 (September 15, 1956) 7. when the petition is based upon the happening of a contingent event; 8. when the petitioner is not the real party in interest (Santos v. Aquino, 94 Phil. 65 [1953]) 9. when administrative remedies have not yet been exhausted. (Ollada v. Central Bank, No. L 11357, May 31, 1962, 5 SCRA 297) 10. when the action purports to be a declaratory relief allegedly because the terms of certain ordinances were ambiguous but is, in reality, a petition for the declaration of nullity of these ordinances. (Santos vs. Aquino ,the Municipal Council of Malabon, G.R. No. L5101, November 28, 1953) 11. when judgment would have to be made, only after a judicial investigation of the disputed issues rather than a construction of definite stated rights, status and other relations, commonly expressed in written instruments. In this case, what was sought was the declaration that the private respondent was a corporation and that it was separate and distinct from C.F. Sharp Kabushiki Kaisha and that, therefore, it was not liable for the latters indebtedness (Kawasaki Port Service Corp. v. Amores, GR No. L 58340 ,July 16, 1991). Even when the action is for a declaratory judgment, the court may grant such affirmative relief as may be warranted by the evidence when the allegations in the complaint are sufficient to make out a case for specific performance or recovery of property with claims for damages, and the defendants did not raise an issue in the trial court to challenge the remedy or the form of the action availed of. (Adlawan v. IAC, G.R. No. 73022 February 9, 1989 ) A third party complaint is not proper when the main case is for a declaratory relief. This is because in a third party complaint, the defendant or third party plaintiff is supposed to seek contribution, indemnity, subrogation or any other relief from the third party defendant in respect of the claim of the plaintiff against him. (Customs v. Cloribel, G.R. No. L 21036 June 30, 1977) The non joinder of persons who may claim interest which may be affected by a declaratory judgment is not a jurisdictional defect, as Section 2 of Rule 63 provides that said declaration shall not prejudice their interests, unless otherwise provided in the Rules of Court. (Baguio Citizens Action, Inc. v The City Council, etc. of Baguio City, L 27247, April 20, 1983) d. Conversion to ordinary action Rule 63, Sec. 6. Conversion into ordinary action. If before the final termination of the case, a breach or violation of an instrument or a statute, executive order or regulation, ordinance, or any other governmental regulation should take place, the action may thereupon be converted into an ordinary action, and the parties shall be allowed to file such pleadings as may be necessary or proper. e. Proceedings considered as similar remedies A. Reformation of an instrument For an action for reformation of instrument to prosper, the following requisites must concur: (1) there must have been a meeting of the minds of the parties to the contract; (2) the instrument does not express the true intention of the parties; and (3) the failure of the instrument to express the true intention of the parties is due to mistake, fraud, inequitable conduct or accident. (Emilio vs. Rapal, G.R. No. 181855, 2010 March 30, 2010) B. Consolidation of ownership It is settled that the buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not redeemed during the period of one year after the registration of the sale. 144 www.chanroblesbar.com : www.chanroblesbar.com.ph

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As such, he is entitled to the possession of the said property and can demand it at any time following the consolidation of ownership in his name and the issuance to him of a new transfer certificate of title. The buyer can in fact demand possession of the land even during the redemption period except that he has to post a bond in accordance with Section 7 of Act No. 3135, as amended. No such bond is required after the redemption period if the property is not redeemed. Possession of the land then becomes an absolute right of the purchaser as confirmed owner. Upon proper application and proof of title, the issuance of the writ of possession becomes a ministerial duty of the court. (BPI Family Savings Bank, Inc. vs. Golden Power Diesel Sales Center, Inc., G.R. No. 176019, January 12, 2011 citing China Banking Corporation v. Lozada, G.R. No. 164919, 4 July 2008, 557 SCRA 177, citing IFC Service Leasing and Acceptance Corporation v. Nera, 125 Phil. 595 [1967].) C. Quieting of title to real property For an action to quiet title to prosper, two (2) indispensable requisites must concur, namely: (1) the plaintiff or complainant has a legal or an equitable title to or interest in the real property subject of the action; and (2) the deed, claim, encumbrance, or proceeding claimed to be casting cloud on his title must be shown to be in fact invalid or inoperative despite its prima facie appearance of validity or legal efficacy. (Eland Philippines, Inc. vs. Garcia, G.R. No. 173289, February 2010.) Legal title denotes registered ownership, while equitable title means beneficial ownership. In the absence of such legal or equitable title, or interest, there is no cloud to be prevented or removed. (Mananquil vs. Moico, G.R. No. 180076, November 21, 2012) DECLARATORY RELIEF What is declaratory relief? A declaratory relief is an action which any person interested under a deed, will, contract, or other written instrument, whose rights are afffected by a statute. executive order or regulation, or ordinance may, before breach or violation thereof, bring to determine any question of construction or validity arising from the instrument or statute and for a DECLARATION of his RIGHTS or DUTIES thereunder (Mirandon vs. Wellington Ty & Bros., Inc., 81 SCRA 506 [1978]). In a petition for declaratory relief the subject matter must refer to a deed, will, contract or other written instrument, or to a statute or ordinance, to warrant declaratory relief. Any other matter not mentioned therein is deemed excluded. This is under the principle of expressio unius est exclusio alterius. A petition for declaratory relief cannot properly have a court decision as its subject matter. (Reyes vs. Ortiz, G.R. No. 137794; August 11, 2010 TDC) What are the requisites for declaratory relief? a. existence of a justiciable controversy; b. controversy is between persons whose interests are adverse; c. party seeking the relief has a legal interest in the controversy; and d. the issue invoked is ripe for judicial determination (Board of Optometry vs. Colet, 260 SCRA 89 [1996]) A justiciable controversy refers to an existing case or controversy that is appropriate or ripe for judicial determination, not one that is conjectural or merely anticipatory. When is the remedy improper? Where there is a BREACH of a contract, or VIOLATION of a statute or right. Once there is a breach, the remedy is no longer an action for declaratory relief but some other remedy. Distinguish declaratory relief from interpleader 1. Interpleader filed by a person who claims NO INTEREST whatsoever in the subject matter. 2. Declaratory relief party seeking relief has LEGAL INTEREST in the controversy.

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RTC has original jurisdiction The Supreme Court assumes no jurisdiction over petitions for declaratory relief. These petitions must be filed with the RTC, which has original jurisdiction over the same (In re: Bermudez, 145 SCRA 160 [1986]). A petition for declaratory relief should be brought in the appropriate regional trial court. The purpose of the petition is to ask the court to determine any question of construction or validity arising from the subject matter thereof, and for the declaration of rights and duties thereunder. Hence, the subject matter of such petition raises issues which are not capable of pecuniary estimation and must be filed in the RTC (Sec. 19 [1], BP 129; Sec. 1, Rule 63). It would be error to file the petition the petition with the Supreme Court which has no original jurisdiction to entertain a petition for declaratory relief (Ortega vs. Quezon City Government, G.R. No. 161400, September 2, 2005). However, where the action is for quieting of title which is a similar remedy under the second paragraph of Sec. 1 of Rule 63, the jurisdiction will depend upon the assessed value of the property. 6. Review of Judgments and Final Orders or Resolution of the COMELEC and COA (Rule 64) a. Application of Rule 65 under Rule 64 b. Distinction in the application of Rule 65 to judgments of the COMELEC and COA and the application of Rule 65 to other tribunals, persons and officers REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COA The mode of review of decisions or final orders of COMELEC and COA in the exercise of their quasi judicial functions is by means of petition for CERTIORARI under Rule 65. Period for filing within 30 days from notice of the judgment or final order or resolution. The filing of a motion for new trial or reconsideration of said judgment or final or resolution, if allowed under the procedural rules of the Commission concerned, shall INTERRUPT the 30 day period. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days in any event, reckoned from the notice of default (Rule 64, Sec. 3). Motion for reconsideration of decision of COMELEC Division required; not of COMELEC En Banc Under Sec. 1 (d) of COMELEC Rules of Procedure no motion for reconsideration of En Banc ruling, resolution, order or decision except in election cases. Motion for reconsideration of COMELEC Division ruling should first be filed with COMELEC En Banc, whose decision may be brought on certiorari to SC. Exc. when division committed grave abuse of discretion, in which case the aggrieved party may directly file a petition for certiorari with SC . Fresh Period Rule under Neypes not applicable to the petition for certiorari from the decision of the Commission on Audit under Rule 64. There is no parity between the petition for review under Rule 42 and the petition for certiorari under Rule 64. Rule 42 governs an appeal from the judgment or final order rendered by the Regional Trial Court in the exercise of its appellate jurisdiction. The petition for certiorari under Rule 64 is similar to the petition for certiorari under Rule 65, and assails a judgment or final order of the Commission on Elections (COMELEC) , or the Commission on Audit (COA). The petition is designed to correct only errors of jurisdiction, not errors of judgment. (Fortune Life Insurance Company vs. Commission on Audit, G.R. No. 213525, January 27, 2015) LPB 7. Certiorari, Prohibition and Mandamus (Rule 65) a. Definitions and distinctions Certiorari Definition: 146 www.chanroblesbar.com : www.chanroblesbar.com.ph

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The latin word certiorari literally means to be informed of, to be made certain in regard to (Black’s law dictionary) Certiorari will issue only to correct errors of jurisdiction and not to correct errors of procedure or mistakes in the courts findings and conclusions. (Lee vs. People 393 SCRA 397; Microsoft Corporation vs. Best Deal Computer Center 389 SCRA 615) Terminology 1) Without juri or a virtual duty to perform a duty enjoined by law. (Duero vs. C.A. 373 SCRA 11 GR No.131282; Vda de Daffon vs. CA, 387 SCRA 427 G.R. No. 129017, August 20, 2002) PETITION FOR CERTIORARI UNDER RULE 65 How taken and time for filing (Secs. 1 & 4) Verified petition 60 days from notice of judgment, order or resolution, or denial of MR or MNT. Period now inextendible. last paragraph of Section 4: No extension of time to file the petition shall be granted except for compelling reasons and in no case exceeding fifteen (15) days has been DELETED by A.M. No. 07 7 12 SC, effective December 27, 2007. Hence, petitions for certiorari must be filed strictly within 60 days from notice of judgment or from the order denying a motion for reconsideration. If the Court intended to retain the authority of the proper courts to grant extensions under Section 4 of Rule 65, the paragraph providing for such authority would have been preserved. The removal of the said paragraph under the amendment by A.M. No. 07-7-12-SC of Section 4, Rule 65 simply meant that there can no longer be any extension of the 60-day period within which to file a petition for certiorari. (Laguna Metts Corporation vs. Court of Appeals, G.R. No. 185220, July 27, 2009) The general rule, as held in Laguna Metts Corporation, is that the filing of a petition for certiorari is non extendible. However, there are exceptions, as stated in Domdom vs. Sandiganbayan, Labao vs. Flores and Mid Islands Power Generation vs. Court of Appeals, which can be summarized under two main grounds: to serve substantial justice or to protect strong public interest (Republic vs. St. Vincent de Paul Colleges, Inc., G.R. No. 192908, August.22, 2012) Three (3) essential dates that must be stated in a petition for certiorari under Rule65 . First, the date when notice of the judgment or final order or resolution was received; second, when a motion for new trial or reconsideration was filed; and third, when notice of the denial thereof was received. Failure of petitioner to comply with this requirement shall be sufficient ground for the dismissal of the petition. Substantial compliance will not suffice in a matter involving strict observance with the Rules. (Vinuya vs. Romuloc, G.R. No. 162230, August 12, 2014) LPB Re-filing of petition for certiorari should be done within the 60-day period. Where the dismissal by the Court of Appeals of the petition for certiorari in CA G.R. SP No. 69744 for non submission of a non forum shopping certification was without prejudice and petitioner could have re filed such petition, such re filing should still be done within the prescribed period under Section 4, Rule 65 of the 1997 Rules of Civil Procedure, or not later than sixty days from notice of the assailed Order of the RTC. (Estrera vs. CA, G.R. No. 154235 36, August 16, 2006) Abandonment of judicial courtesy Unless there is a temporary restraining order or preliminary injunction issued by a higher court, the main or principal case should proceed despite the filing of a petition for certiorari questioning an act or omission of a court or tribunal Section 7. Expediting proceedings; injunctive relief. - The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case. The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order

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or a preliminary injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge. Judicial courtesy, therefore, can no longer be used as an excuse by courts or tribunals not to proceed with the principal case. This is the effect of the amendment of Section 7. x Petitions for certiorari, prohibition and mandamus against any interlocutory order are not available under the Rule on Summary Procedure (Sec. 19) , in a petition for a writ of amparo (Sec. 19, Rule on the Writ of Amparo) , and in a petition for a writ of habeas data (Sec. 19, Rule on the Writ of Habeas Data). and small claims cases (Sec. 14 (g). A.M. No. 08 8 7 SC). By implication it is available against the judgment. x If involving acts or omissions of a quasi judicial agency, petition filed in CA (Sec. 4) Requisites: a. Tribunal, board or officer exercises judicial or quasi judicial functions b. Tribunal, board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction Denial of motion to dismiss or to quash, being interlocutory, cannot be questioned by certiorari; it cannot be subject of appeal, until final order or judgment is rendered. Remedy: to continue the case in due course and, when an unfavorable verdict is handed down, to take an appeal in the manner authorized by law. Exceptions (when recourse to certiorari or mandamus appropriate) : (a) when trial court issued the order without or excess of jurisdiction; (b) when there is patent grave abuse of discretion by the trial court; or (c) when appeal would not prove to be a speedy and adequate remedy as when an appeal would not promptly relieve defendants from the injurious effects of the patently mistaken order (DBP vs. La Campana Development Corp., 448 SCRA 384 [2005]). c. NO APPEAL or any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding Generally, if appeal is available, certiorari cannot be resorted to. Appeal and certiorari are mutually exclusive and not alternative or successive. Certiorari filed instead of appeal during the period of appeal did not toll the period or prevent judgment from becoming final (Del Rosario vs. Galagot, Galagot, 166 SCRA 429[1998]). If remedy of appeal had already been lost by petitioners own neglect or error in choice of remedies, certiorari will not lie as substitute or tool to shield petitioner from adverse consequences of such neglect of error (Professional Regulations Commission vs. CA, 292 SCRA 155[1998]). Exceptions: a. when public welfare and advancement of public policy dictate b. when broader interest of justice so requires c. when writs issued are null and void d. when questioned order amounts to an oppressive exercise of judicial authority e. where appeal is not adequate, speedy and effective In any of such instances, special civil action of certiorari may be availed of even during the pendency of the case or even after judgment, or even when appeal has been availed of Availability of appeal does not foreclose recourse to certiorari where appeal is not adequate, or equally beneficial, speedy and sufficient (PNB vs. Sayoc, 292 SCRA 365 [1998]).

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While general rule is that special civil action of certiorari may not be used as substitute for lapsed appeal, rule may be relaxed when rigid application will result in manifest failure or miscarriage of justice (Mejares vs. Reyes, 254 SCRA 425 [1992]). > When remedies are not incompatible, filing of certiorari not abandonment of appeal. In this case, the appeal is from the decision in the main case, while certiorari is directed against the order denying the motion for new trial (Lansang Jr. vs. CA, 184 SCRA 230 [1990]; St. Peter Memorial Park vs. Campos, 63 SCRA 180 [1975]). Lansang: After judgment is rendered and an appeal therefrom perfected, a petition for certiorari relating to certain incidents therein may prosper where the appeal does not appear to be a plain, speedy and adequate remedy. Appeal and certiorari are not remedies that exclude each other. Although notice of appeal indicated that Lansang was appealing from the decision and order denying his motion for reconsideration, which in effect was a motion for new trial, he filed certiorari against the order, because of the daily penalty of P250 mentioned in the award (1985). > An appeal from the judgment does not bar a certiorari petition against the order granting execution pending appeal and the concomitant issuance of a writ of execution. Appeal would not be an adequate remedy from such premature execution when the same is not founded on good reasons (Manacop vs. Equitable PCIBank, 468 SCRA 256, [2005]) > Simultaneous filing of a petition for certiorari under Rule 65 and an ordinary appeal under Rule 41 cannot be allowed since one remedy would necessarily cancel each other. For certiorari to prosper, it is not enough that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction; the requirement that there be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law must also be satisfied. This is true even if the error ascribed to the trial court is lack of jurisdiction, etc. While it may be true that a judgment or final order was rendered under circumstances that would otherwise justify resort to a special civil action, the latter would be unavailing if there is an appeal, etc. If the court has jurisdiction over the subject matter and of the persons, its ruling upon all questions involved are within its jurisdiction and may be corrected only by appeal from the decision (Manacop vs. Equitable PCIBank, 468 SCRA 256, [2005]) In a special civil action for certiorari, the Court of Appeals has ample authority to receive new evidence and perform any act necessary to resolve factual issues. Section 9 of Batas Pambansa Blg. 129, as amended, states that, "The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. (Sps. Marcelo vs. LBC Bank, G.R. No. 183575, April 11, 2011) x Motion for reconsideration required before certiorari can be filed(Rule 65, Section 4) Its purpose is to grant an opportunity for the court to correct any actual or perceived error attributed to it by the re examination of the legal and factual circumstances of the case. x

Exceptions: (a) where the order is a patent nullity, as where the court a quo has no jurisdiction; (b) where the questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; (c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government or the petitioner or the subject matter of the action is perishable;

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(d) where, under the circumstances, a motion for reconsideration would be useless; (e) where petitioner was deprived of due process and there is extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h) where the proceedings was ex parte or in which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or where public interest is involved. (Novateknika Land Corporation vs. Philippine National Bank, G.R. No. 194104, March 13, 2013; Republic vs. Bayao, G.R. No. 179492, June 5, 2013) Does the CTA have jurisdiction over a special civil action for certiorari assailing an interlocutory order issued by the RTC in a local tax case? YES. The authority of the CTA to take cognizance of petitions for certiorari questioning interlocutory orders issued by the RTC in a local tax case is included in the powers granted by the Constitution as well as inherent in the exercise of its appellate jurisdiction. It would be somewhat incongruent with the pronounced judicial abhorrence to split jurisdiction to conclude that the intention of the law is to divide the authority over a local tax case filed with the RTC by giving to the CA or this Court jurisdiction to issue a writ of certiorari against interlocutory orders of the RTC but giving to the CTA the jurisdiction over the appeal from the decision of the trial court in the same case. It is more in consonance with logic and legal soundness to conclude that the grant of appellate jurisdiction to the CTA over tax cases filed in and decided by the RTC carries with it the power to issue a writ of certiorari when necessary in aid of such appellate jurisdiction. (City of Manila vs. Cuerdo, G.R. No. 175723, February 4, 2014. En Banc) PROHIBITION What is the purpose of prohibition? To prevent unlawful and oppressive exercise of legal authority and to provide for a fair and orderly administration of justice. It is directed against proceedings that are done by a. any tribunal, corporation, board or officer whether exercising b. judicial, quasi judicial or ministerial functions, c. without or in excess of jurisdiction, or with grave abuse of discretion, d. there being no appeal or other plain, speedy and adequate remedy in the ordinary course of law (Rule 65. Sec. 1). Prohibition not to correct errors of judgment but to prevent or restrain usurpation by inferior tribunals and to compel them to observe the limitation of their jurisdictions. It is a PREVENTIVE remedy, to restrain the doing of some act to be done. Not intended to provide a remedy for acts already accomplished. When does prohibition lie against an accomplished act? When the wrongful act is continuing or the questioned act is a NULLITY, done without or in excess of jurisdiction, or with grave abuse of discretion, and there being no appeal or other plain, speedy and adequate remedy in the ordinary course of law (Vergara vs. Roque, 78 SCRA 312 [1977]). A petition for prohibition and injunction can be availed of to restrain an act that is already fait accompli. The present action is a petition for prohibition, certiorari, injunction, restraining order and all other legal, just and equitable reliefs. It has been held that the remedies of prohibition and injunction are preventive and, as such, cannot be availed of to restrain an act that is already fait 150 www.chanroblesbar.com : www.chanroblesbar.com.ph

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accompli. Where the act sought to be prohibited or enjoined has already been accomplished or consummated, prohibition or injunction becomes moot. Nevertheless, even if the principal issue is already moot, this Court may still resolve its merits for the future guidance of both bench and bar. Courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review. There are times when the controversy is of such character that, to prevent its recurrence and to assure respect for constitutional limitations, this Court must pass on the merits of a case. This is one such case. If not addressed here and now, there is great probability that the central question involved in this case will haunt us again in the future. Furthermore, if not corrected, such an act would give rise to mischief and dangerous precedent whereby those in the corridors of power could avoid judicial intervention and review by merely speedily and stealthily completing the commission of an illegality. In any event, the present petition is also for certiorari and there is no procedural bar for the Court to pass upon the question of whether the proclamations of respondents Guidote Alvarez, Caparas, Maosa and Moreno as National Artists were attended by grave abuse of presidential discretion. (National Artists vs. Executive Secretary , G.R. No. : 189028, July 16, 2013) Grave abuse of discretion lower court has exercised its power in an arbitrary or despotic manner, by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion, or to a virtual refusal to perform the duty enjoined or to act in contemplation of law. Excess of jurisdiction the court, board or officer has jurisdiction over a case but has transcended the same or acted without any authority. MANDAMUS When is mandamus the proper remedy? It is the proper remedy if it can be shown that there is neglect on the part of a tribunal or officer in the performance of an act which the law specifically enjoins as a duty or an unlawful exclusion of a party from the use and enjoyment of a right or office to which he is entitled. Requisites for mandamus to issue a. The applicant must have a CLEAR LEGAL RIGHT to the thing demanded. The right must be well defined, clear and certain (Lemi vs. Valencia, 26 SCRA 203 [1968]). b. Mandamus never issues in doubtful cases, nor will it issue to establish a legal right, but only to ENFORCE one that is already clearly established (Lim Tay vs. CA, 293 SCRA 634 [1998]). c. The respondent must have the POWER TO PERFORM the act concerning which the application for mandamus is made. For mandamus is a command to exercise a power already possessed and to perform a duty already imposed (Alzate vs. Aldona, 8 SCRA 219 [1965]). d. There must be UNREASONABLE DELAY in the performance of the duty, notwithstanding demand to perform it (Assn. of Small Landowners vs. Secretary of Agrarian Reform, 175 SCRA 343 [1989]. Ministerial and discretionary power Mandamus will lie to compel the doing of a ministerial act. It does not lie to control discretion, although it may issue to compel the exercise of discretion but not the discretion itself. Mandamus can require action only but not specific action where the act sought to be performed involves the exercise of discretion (Sharp International Marketing vs. CA. 201 SCRA 299 [1991]) Mandamus is employed to compel the performance, when refused, of a ministerial duty, but not to compel the performance of a discretionary duty. The legal right to the performance of the particular act sought to be compelled must be clear and complete. Otherwise, where the right sought to be enforced is in substantial doubt or dispute, mandamus cannot issue. Thus, the issuance by the LRA officials of a decree of registration is not a purely ministerial duty in cases where they find that such would result to the double titling of the same parcel of land. (Fidela R. Angeles vs. The Secretary of Justice, G.R. No. 142549, March 9, 2010) 151 www.chanroblesbar.com : www.chanroblesbar.com.ph

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When can mandamus issue to compel a discretionary act? when there is grave abuse of discretion. Ordinarily, mandamus will not prosper to compel a discretionary act. But where there is gross abuse of discretion, manifest injustice or palpable excess of authority equivalent to denial of a settled right to which petitioner is entitled, and there is no other plain, speedy and adequate remedy, the writ shall issue(First Philippine Holdings vs. Sandiganbayan, 253 SCRA 30 [1996]). When mandamus may not lie 1. Where the position is disputed by two persons who both claim a right thereto, mandamus does not lie to oust the person who occupies it and exercises its functions. The remedy is an action for QUO WARRANTO which tests the title to one’s office claimed by another and to oust the holder from its enjoyment (Garces vs. CA, 159 SCRA 99 [1996]). 2. Mandamus does not lie to enforce the performance of contractual obligations. A contractual obligation is not a duty specifically enjoined by law resulting from office, trust or station (Aprueba vs. Ganzon, 18 SCRA 8 [1966]). 3. The appointing power being discretionary, mandamus does not lie to compel the appointing authority to appoint a particular person to a particular position, though how qualified he may be to the position (Gloria vs. De Guzman, Jr., 249 SCRA 126 [1995]). b. Requisites c. When petition for certiorari, prohibition and mandamus is proper 1. When appeal is not a speedy and adequate remedy (Saludes v. Pajarillo, 78 Phil. 754 [1947]) 2. When an order is issued without or in excess of jurisdiction; (Philippine National Bank v. Florendo, G.R. No. 62082, February 26, 1992, 206 SCRA 582) 3. In consideration of public welfare and for the advancement of public policy (Jose v. Zulueta, No. L 16598, May 31, 1961, 2 SCRA 574) 4. Order is a patent nullity (Marcelo v. De Guzman, No. L 29077. June 29, 1982, 114 SCRA 657) 5. To avoid future litigation (St. Peter Memorial Park, Inc. v. Campos, Jr., No. L 38280, March 21, 1975, 63 SCRA 180) ; 6. To avoid a miscarriage of justice (Escudero v. Dulay, No. L 60578, February 23, 1988, 158 SCRA 69. ) ; 7. In furtherance of the broader interest of justice and equities (Marahay v. Melicor, G.R. No. 44980, February 6, 1990, 181 SCRA 811). d. Injunctive relief SECTION 7. Expediting proceedings; injunctive relief . The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case. e. Certiorari distinguished from Appeal by Certiorari; Prohibition and Mandamus distinguished from Injunction; when and where to file petition Certiorari as a Mode of Appeal (Rule 45)

Certiorari as a Special Civil Action (Rule 65)

Called petition for review on certiorari, is A special civil action that is an original action and a mode of appeal, which is but a not a mode of appeal, and not a part of the appellate process but an independent action. 152 www.chanroblesbar.com : www.chanroblesbar.com.ph

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continuation of the appellate process over the original case Seeks to review final judgments or final May be directed against an interlocutory order of orders the court or where no appeal or plain or speedy remedy available in the ordinary course of law Raises only questions of law

Raises questions of jurisdiction because a tribunal, board or officer exercising judicial or quasi judicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction

Filed within 15 days from notice of judgment or final order appealed from, or of the denial of petitioners motion for reconsideration or new trial;

Filed not later than 60 days from notice of judgment, order or resolution sought to be assailed and in case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the 60 day period is counted from notice of denial of said motion;

Extension of 30 days may be granted for Extension no longer allowed; justifiable reasons Does not require a prior motion for Motion for Reconsideration is a condition reconsideration precedent, subject to exceptions Stays the judgment appealed from

Does not stay the judgment or order subject of the petition unless enjoined or restrained

Parties are the original parties with the The tribunal, board, officer exercising judicial or appealing party as the petitioner and the quasi judicial functions is impleaded as respondent adverse party as the respondent without impleading the lower court or judge Filed with only the Supreme Court

May be filed with the Supreme Court, Court of Appeals, Sandiganbayan, or Regional Trial Court

SC may deny the petition motu propio on the ground that the appeal is without merit, or prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration

Court may dismiss the petition outright on the ground that the same is patently without merit, or prosecuted manifestly for delay, or that the questions raised are too unsubstantial to require consideration

(Prohibition and Mandamus distinguished from Injunction; when and where to file petition Prohibition

Mandamus

Injunction

Prohibition is an extraordinary writ commanding a tribunal, corporation, board or person, whether exercising judicial, quasi judicial or ministerial

Mandamus is an extraordinary writ commanding a tribunal, corporation, board or

Main action for injunction seeks to enjoin the defendant from the commission or continuance of a specific act, or to compel a particular act in violation of the 153

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functions, to desist from further proceedings when said proceedings are without or in excess of its jurisdiction, or with abuse of its discretion, there being no appeal or any other plain, speedy and adequate remedy in the ordinary course of law(Sec. 2, Rule 65).

person, to do an act rights of the applicant. required to be done: Preliminary injunction is a (a) When he unlawfully provisional remedy to preserve neglects the the status quo and prevent performance of an act future wrongs in order to which the law specifically preserve and protect certain enjoins as a duty, and interests or rights during the there is no other plain, pendency of an action. speedy and adequate remedy in the ordinary course of law; or (b) When one unlawfully excludes another from the use and enjoyment of a right or office to which the other is entitled(Sec. 3, Rule 65).

Prohibition

Always the main action

Injunction May be the main action or just a provisional remedy

Directed against a court, a tribunal exercising judicial or Directed against a party quasi judicial functions Ground must be that the court acted without or in Does not involve a question of excess of jurisdiction jurisdiction Prohibition

Mandamus

To prevent an act by a respondent

To compel an act desired

May be directed against entities exercising judicial or May be directed against judicial and quasi judicial, or ministerial functions non judicial entities Extends to discretionary functions Mandamus

Clarifies legal duties, not legal titles

Extends only to ministerial functions Quo warranto Clarifies who has legal title to the office, or franchise

Respondent, without claiming any right to the office, Respondent usurps the office excludes the petitioner f. Exceptions to filing of motion for reconsideration before filing petition Motion for reconsideration is required before certiorari can be filed; exceptions: 1. where the order is a patent nullity, as where the court has no jurisdiction 2. where the questions raised have been duly raised and passed upon by the lower court, or are the same as those raised before the lower court 154

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3. where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government or of the petitioner or the subject matter of the action is perishable 4. where, under the circumstances, a motion for reconsideration would be useless 5. where petitioner was deprived of due process and there is extreme urgency for relief 6. where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable 7. where the proceedings in the lower court are a nullity for lack of due process 8. where the proceedings were ex parte or in which the petitioner had no opportunity to object 9. where the issue raised is one purely of law or where public interest is involved 10. where judicial intervention is urgent 11. where its application may cause great and irreparable damage 12. failure of a high government official from whom relief is sought to act on the matter 13. when the issue of non exhaustion of administrative remedies has been rendered moot 14. where special circumstances warrant immediate and more direct action (Novateknika Land Corporation vs. Philippine National Bank, G.R. No. 194104, March 13, 2013; Republic vs. Bayao, G.R. No. 179492, June 5, 2013; Tan, Jr. vs. Sandiganbayan, 242 SCRA 452; Marawi Marantao General Hospital vs. CA, 349 SCRA 321). g. Reliefs petitioner is entitled to Rule 65, Sec. 1 (Certiorari) -x x x that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. Rule 65, Sec. 2 (Prohibition) x x x that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. Rule 65. Sec. 3 (Mandamus) x x x that judgment be rendered commanding the respondent, immediately or at some other specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. h. Actions/Omissions of MTC/RTC in election cases Rule 65, Sec. 4, as amended by A. M. No. 07 7 12 dated Dec, 12, 2007 If the petition relates to an act or omission of a municipal trial court or of a corporation, board, officer or person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed with the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or with the Sandiganbayan if it is in aid of its appellate jurisdiction. If the petition involves an act or omission of a quasi judicial agency, unless otherwise provided by law or these rules, the petition shall be filed with and be cognizable only by the Court of Appeals. In election cases involving an act or omission of a municipal or regional trial court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction

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Following the hierarchy of courts, no certiorari against the RTC shall be filed with the Supreme Court. This will help prevent the clogging of the Supreme Courts dockets as litigants will be discouraged from filing petitions directly with the Supreme Court. For election cases involving acts or omissions of a municipal or regional trial court, the petition shall be filed exclusively with the Comelec as ruled by the Supreme Court in Relampagos vs. Comelec (243 SCRA 690, April 27, 1995). i. Where to file petition See above j. Effects of filing of an unmeritorious petition (for certiorari) Rule 65 Section 8. Proceedings after comment is filed. After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. If, after such hearing or filing of memoranda or the expiration of the period for filing, the court finds that the allegations of the petition are true, it shall render judgment for such relief to which the petitioner is entitled. However, the court may dismiss the petition if it finds the same patently without merit or prosecuted manifestly for delay, or if the questions raised therein are too unsubstantial to require consideration. In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B of the Rules of Court. The Court may impose motu proprio, based on rep ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari. 8. Quo Warranto (Rule 66) a. Distinguish from Quo Warranto in the Omnibus Election Code Quo Warranto (Rule 66)

Quo Warranto (Election Code)

Subject of the petition is in relation to an Subject of the petition is in relation to an elective appointive office; office; The issue is the legality of the occupancy of Grounds relied upon are: (a) ineligibility to the the office by virtue of a legal appointment; position; or (b) disloyalty to the Republic. Petition is brought either to the Supreme May be instituted with the COMELEC by any Court, the Court of Appeals or the Regional voter contesting the election of any member of Trial Court; Congress, regional, provincial or city officer; or to the MeTC, MTC or MCTC if against any barangay official; Filed within one (1) year from the time the Filed within ten (10) days after the proclamation cause of ouster, or the right of the of the results of the election; petitioner to hold the office or position arose; Petitioner is the person entitled to the Petitioner may be any voter even if he is not office; entitled to the office; The court has to declare who the person When the tribunal declares the candidate elect entitled to the office is if he is the as ineligible, he will be unseated but the person petitioner. occupying the second place will not be declared as the one duly elected because the law shall 156 www.chanroblesbar.com : www.chanroblesbar.com.ph

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consider only the person who, having duly filed his certificate of candidacy, received a plurality of votes. b. When government commences an action against individuals Rule 66, Section 1. Action by Government against individuals. An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: (a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; (b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. c. When individual may commence an action Rule 66, Sec. 5. When an individual may commence such an action. A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name. (6) d. Judgment in Quo Warranto action Rule 66, Sec. 9. Judgment where usurpation found. When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the public office, position or franchise of all the parties to the action as justice requires. e. Rights of a person adjudged entitled to public office Rule 66, Sec. 10. Rights of persons adjudged entitled to public office; delivery of books and papers; damages. If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the office, and may immediately thereafter demand of the respondent all the books and papers in the respondents custody or control appertaining to the office to which the judgment relates. If the respondent refuses or neglects to deliver any book or paper pursuant to such demand, he may be punished for contempt as having disobeyed a lawful order of the court. The person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation. QUO WARRANTO What is quo warranto? A petition for quo warranto is a proceeding to determine the right of a person to the use or exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not well founded, or if he has forfeited his right to enjoy the privilege (Mendoza vs. Allas, 302 SCRA 623 [1999]). Quo warranto and mandamus distinguished Quo warranto remedy to try the right to an office or franchise and to oust the holder from its enjoyment. There is usurpation or intrusion into office. Mandamus lies to enforce clear legal duties, not to try disputed titles. Respondent, without claiming any right to an office, excludes petitioner therefrom.

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Who may be parties? Any person claiming to be entitled to a public office may bring an action for quo warranto without the intervention of the Solicitor General. Only the person who is in unlawful possession of the office, and all who claim to be entitled to that office may be made parties in order to determine their respective rights thereto in the same action. Period for filing A petition for quo warranto and mandamus affecting titles to public office must be filed within one (1) year from the date petitioner was ousted from his position. This period is not interrupted by the prosecution of any administrative remedy. While it may be desirable that administrative remedies be first resorted to, no one is compelled or bound to do so, and as said remedies neither are prerequisite to nor bar the institution of quo warranto proceedings, it follows that he who claims the right to hold a public office allegedly usurped by another and who desires to seek redress in the court, should file the proper judicial action within the reglementary period (Galano vs. Roxas, 67 SCRA 8 [1975]). Exception to one year period Laches does not attach and failure to file quo warranto proceeding does not operate adversely against a dismissed government employee where it was the act of responsible government officials which contributed to the delay in the filing of the complaint for reinstatement (Cristobal vs. Melchor, 78 SCRA 175 [1977]) 9. Expropriation (Rule 67) a. Matters to allege in complaint for expropriation Rule 67, Section 1. The complaint. The right of eminent domain shall be exercised by the filing of a verified complaint which shall (a) state with certainty the right and purpose of expropriation, (b) describe the real or personal property sought to be expropriated, and (c) join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint. Contents of Complaint 1. Right and purpose of expropriation; 1. Description of the real or personal property sought to be expropriated; 2. All persons owning or claiming to own or occupying any part or interest therein must be named as defendants, showing, as far as practicable, the separate interest of each defendants; 3. If the title of the property to be expropriated is in the name of the Republic of the Philippines, although occupied by private individuals, or if the title is obscure or doubtful, averment to that effect shall be made in the complaint. (Rule 67, Section 1) 4. When the property already appears to belong to the Republic, there is no sense in the Republic instituting expropriation proceedings against itself. It can still, however, file a complaint for expropriation against the private persons occupying the property. In such an expropriation case, the owner of the property is not an indispensable party. (Republic vs. Mangotara, G.R. No. 170375, October 13, 2010) b. Two stages in every action for expropriation Two (2) Stages in Expropriation Proceedings

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1. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts. This stage is terminated by either an order of dismissal of the action or order of the condemnation declaring that expropriation is proper and legal. These orders are final and therefore appealable. (Municipality of Biñan v. Garcia, G.R. No. 69260, December 22, 1989, 180 SCRA 576) 2. Determination of just compensation. This is done with the assistance of not more than three (3) commissioners. The order fixing just compensation is also final and appealable. (Municipality of Biñan v. Garcia, G.R. No. 69260, December 22, 1989, 180 SCRA 576) Just compensation is to be determined as of the date of the taking of the propriety or the filing of the complaint, whichever comes first. c. When plaintiff can immediately enter into possession of the real property, in relation to RA 8974 Expropriation procedures under Republic Act No. 8974 and Rule 67 of the Rules of Court speak of different procedures, with the former specifically governing expropriation proceedings for national government infrastructure projects. (Republic of the Philippines, Represented by the Toll Regulatory Board vs. Holy Trinity Realty Development Corp., G.R. No. 172410, April 14, 2008.) The most crucial difference between Rule 67 and Rep. Act No. 8974 concerns the particular essential step the Government has to undertake to be entitled to a writ of possession. To be entitled to a writ of possession, Rule 67 merely requires the Government to deposit with an authorized government depositary the assessed value of the property for expropriation for it to be entitled to a writ of possession. On the other hand, Rep. Act No. 8974 requires that the Government make a direct payment to the property owner before the writ may issue. Moreover, such payment is based on the zonal valuation of the BIR in the case of land, the value of the improvements or structures under the replacement cost method, or if no such valuation is available and in cases of utmost urgency, the proffered value of the property to be seized. (Republic vs. Gingoyon, G.R. No. 166429, December 19, 2005) It is the plain intent of Rep. Act No. 8974 to supersede the system of deposit under Rule 67 with the scheme of "immediate payment" in cases involving national government infrastructure projects. (Republic vs. Gingoyon, G.R. No. 166429, December 19, 2005) At the same time, Section 14 of the Implementing Rules recognizes the continued applicability of Rule 67 on procedural aspects when it provides "all matters regarding defenses and objections to the complaint, issues on uncertain ownership and conflicting claims, effects of appeal on the rights of the parties, and such other incidents affecting the complaint shall be resolved under the provisions on expropriation of Rule 67 of the Rules of Court. " (Republic vs. Gingoyon, G.R. No. 166429, December 19, 2005) Under Rule 67, Sec. 2, the only requirement for immediate possession is notice to the owner of the property and deposit of the amount equivalent to the assessed value of the property. (National Power Corporation v. Jocson, GR Nos. 94193 99, February 25, 1992) The issuance of the writ of possession becomes a ministerial duty of the court if the preliminary deposit has already been made by the expropriator. (Biglang Awa v. Bacalla, GR Nos. 139927 and 139936, November 22, 2000) Just compensation is determined as of time of taking of property or filing of thecomplaint, whichever comes first (Republic vs. Vda. de Castellvi, G.R. No. L 20620, August 15, 1974) There is taking when: 1. the expropriator enters a private property; 2. the entry must be for more than a momentary period; 3. the entry should be under warrant or color of legal authority; 4. the property must be devoted to a public use or otherwise informally appropriated or injuriously affected; and

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5. the utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property. (Didipio Earth Savers Multi Purpose Association, Incorporated vs. Elisea Gozun, G.R. No. 157882, March 30, 2006) The appointment of commissioners is mandatory and cannot be dispensed with, without violating the constitutional right to due process and the mandated rule established by the Revised Rules of Court(Manila Electric Company vs. Pineda, GR No. L 59791, February 13, 1992) The court has the jurisdiction to determine, in the same expropriation proceedings, conflicting claims of ownership over the property involved and declare the lawful owner thereof. (Republic vs. CFI of Pampangs, L 27006, June 30, 1970) In the event the judgment of expropriation is reversed by the appellate court and the case is remanded to the lower court with the mandate to determine the damages caused to the landowner, such landowner has the option of proving such damages either in the same expropriation case or in a separate action instituted for that purpose (MWV vs. De los Angeles, 55 Phil. 776) , as the judgment denying the right of expropriation is not res judicata on the issue of damages arising from such illegal expropriation (Republic vs. Baylosis, 109 Phil. 580) d. New system of immediate payment of initial just compensation See above e. Defenses and objections Rule 67, Sec. 3. Defenses and objections. If a defendant has no objection or defense to the action or the taking of his property, he may file and serve a notice of appearance and a manifestation to that effect, specifically designating or identifying the property in which he claims to be interested, within the time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting the same. If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time stated in the summons. The answer shall specifically designate or identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and adduce all his objections and defenses to the taking of his property. No counterclaim, cross claim or third party complaint shall be alleged or allowed in the answer or any subsequent pleading. A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation, whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. f. Order of Expropriation Rule 67, Sec. 4. Order of expropriation. If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be paid. After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable. g. Ascertainment of just compensation Rule 67, Sec. 5. Ascertainment of compensation.

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Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court. Copies of the order shall be served on the parties. Objections to the appointment of any of the commissioners shall be filed with the court within ten (10) days from service, and shall be resolved within thirty (30) days after all the commissioners shall have received copies of the objections. h. Appointment of Commissioners; Commissioners report; Court action upon commissioners report See Rule 67, Sec. 5 above Rule 67, Sec. 6. Proceedings by commissioners. Before entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them, and the commissioners shall, unless the parties consent to the contrary, after due notice to the parties to attend, view and examine the property sought to be expropriated and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case. The commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. Rule 67, Sec. 7. Report by commissioners and judgment thereupon. The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. Rule 67, Sec. 8. Action upon commissioners report. Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, after hearing, accept the report and render judgment in accordance therewith; or, for cause shown, it may recommit the same to the commissioners for further report of facts; or it may set aside the report and appoint new commissioners; or it may accept the report in part and reject it in part; and it may make such order or render such judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation, and to the defendant just compensation for the property so taken. i. Rights of plaintiff upon judgment and payment Rule 67, Sec. 10. Rights of plaintiff after judgment and payment. Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon 161 www.chanroblesbar.com : www.chanroblesbar.com.ph

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the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under the provisions of section 2 hereof. If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto. j. Effect of recording of judgment Rule 67, Sec. 13. Recording judgment, and its effect. The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose. EXPROPRIATION Distinction between eminent domain and expropriation Eminent domain is the right. Power of the state to take or authorize the taking of any property within its jurisdiction for public use without the owner’s consent. Inherent in sovereignty and exists in a sovereign state without any recognition thereof in the Constitution. Possessed by the State. By delegation, may also be possessed by local gov’ts, other public entities, and public utilities. Expropriation is the procedure for enforcing said right. What are the stages of expropriation? 1. Determination of the RIGHT TO EXPROPRIATE or the authority of plaintiff to exercise power of eminent domain and propriety of its exercise in the context of the facts. It ends with an order of condemnation declaring that plaintiff has lawful right to take the property for public use or purpose after payment of just compensation to be determined as of the date of filing of the complaint. It may be an order of dismissal. Both orders are final orders, hence appealable within 30 days. 2. Determination by the court of JUST COMPENSATION with the assistance of three commissioners. Order fixing just compensation also final because leaves nothing more to be done by the court regarding the issue. Also appealable but within 15 days. What is the period to appeal from order of expropriation? In actions for eminent domain, as in actions for partition, two appeals are allowed by law. Period is 30 days from notice of order of condemnation Cases where multiple appeals are allowed, where record on appeal is required. In the event of an appeal from a separate judgment, the original record cannot be sent up to the appellate court. The record will have to stay with the trial court because it will still try the case as regards the other defendants (Municipality of Biñan vs. Garcia, 180 SCRA 576 [1989]). Meaning of just compensation Just compensation means the market value of the property at the time of taking. It means a full and fair equivalent of the property for the loss sustained. Equivalent shall be real, substantial, full and prompt. It must be fair not only to the owner but also to the taker. When should just compensation be determined? The just compensation should be determined at the time of actual taking. The provisions of Sec. 4, Rule 67, Rules of Court to the effect that just compensation is to be determined at the time of taking of the property or the filing of the complaint, whichever came first cannot prevail over Sec. 19, RA 7160, the Local Government Code, a substantive law which provides that the amount to be paid for the expropriate property shall be determined by the proper court based on the fair market value at the time of taking the property. (The City of Cebu vs. Spouses Degamo, G. R. No. 142971, May 7, 2002). 162 www.chanroblesbar.com : www.chanroblesbar.com.ph

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The expropriator who has taken possession of the property subject of expropriation is obliged to pay reasonable compensation to the landowner for the period of such possession although the proceedings had been discontinued on the ground that the public purpose for the expropriation had meanwhile ceased. (Republic vs. Borbon, G.R. No. 165654, January 12, 2015) LPB 10. Foreclosure of Real Estate Mortgage (Rule 68) a. Judgment on foreclosure for payment or sale Rule 68, Sec. 2. Judgment on foreclosure for payment or sale. If upon the trial in such action the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than ninety(90) days nor more than one hundred twenty(120) days from the entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment. b. Sale of mortgaged property; effect Rule 68, Sec. 3. Sale of mortgaged property; effect. When the defendant, after being directed to do so as provided in the next preceding section, fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law. Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property unless a third party is actually holding the same adversely to the judgment obligor. The said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure c. Disposition of proceeds of sale Rule 68, Sec. 4. Disposition of proceeds of sale. The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue, after paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court, or if there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or his duly authorized agent, or to the person entitled to it. d. Deficiency judgment (1) Instances when court cannot render deficiency judgment Rule 68, Sec. 5. How sale to proceed in case the debt is not all due. If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment, as soon as a sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall terminate; and afterwards, as often as more becomes due for principal or interest and other valid charges, the court may, on motion, order more to be sold. But if the property cannot be sold in portions without prejudice to the parties, the whole shall be ordered to be sold in the first instance, and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefor, there being a rebate of interest where such rebate is proper. Rule 68, Sec. 6. Deficiency judgment. If upon the sale of any real property as provided in the next preceding section there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue immediately if the 163 www.chanroblesbar.com : www.chanroblesbar.com.ph

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balance is all due at the time of the rendition of the judgment; otherwise, the plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment. e. Judicial foreclosure versus extrajudicial foreclosure Judicial and extrajudicial foreclosures distinguished Judicial foreclosure of mortgage is governed by Rule 68 and must be done in accordance with the procedure therein prescribed. Extrajudicial foreclosure of mortgage is governed by Act No. 3135 as amended and done by the sheriff pursuant to the special power of attorney inserted in the mortgage document. Extra-judicial Foreclosure (Act 3135) No complaint is filed;

Judicial foreclosure (Rule 68) Complaint is filed with the courts;

No right of redemption except when mortgagee is There is a right of redemption. Mortgagor a banking institution; equity of redemption only (90 has a right of redemption for 1 year from to 120 days, and any time before confirmation of registration of the sale; foreclosure sale) ; Mortgagee has to file a separate action to Mortgagee can move for deficiency judgment in recover any deficiency; the same action Buyer at public auction becomes Buyer at public auction becomes absolute owner absolute owner only after finality of an only after confirmation of the sale; action for consolidation of ownership; Mortgagee is given a special power of attorney in the mortgage contract to Mortgagee need not be given a special power of foreclose the mortgaged property in case attorney. of default. To enable the extrajudicial foreclosure of the Real Estate Mortgage of petitioners, the special power to sell should have been either inserted in the REM itself or embodied in a separate instrument attached to the REM. But it is not disputed that no special power to sell was either inserted in the REM or attached to the REM. Hence, respondent spouses as the foreclosing mortgagees could not initiate the extrajudicial foreclosure, but must resort to judicial foreclosure pursuant to the procedure set forth in Rule 68. The omission of the special power to sell the property subject of the mortgage was fatal to the validity and efficacy of the extrajudicial foreclosure, and warranted the invalidation of the entire proceedings conducted by the sheriff. (Baysa vs. Plantilla, G.R. No. 159271, July 13, 2015) LPB f. Equity of redemption versus right of redemption Right of redemption Right of redemption is the prerogative to re acquire the mortgaged property after registration of the foreclosure sale exists only in extrajudicial foreclosure of mortgage. No such right is recognized in judicial foreclosure except only when mortgagee is the PNB or a bank or banking institution. In extrajudicial foreclosure, mortgagor may exercise right of redemption within 1 year from registration of sheriffs certificate of foreclosure sale. Equity of redemption Equity of redemption in judicial foreclosure of mortgage is the right to pay the court or the judgment obligee the amount of the judgment within a period of not less than 90 days nor more 164 www.chanroblesbar.com : www.chanroblesbar.com.ph

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than 120 days from entry of judgment or even before confirmation of sale by the court. After such order of confirmation, no redemption can be effected. Limpin vs. IAC, 166 SCRA 87 (1988) In default of such payment, the property shall be sold at public auction to satisfy the judgment (Rule 68, Sec, 2). Equity of Redemption

Right of Redemption

The right of defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt within 90 to 120 days after the entry of judgment or even after the foreclosure sale but prior to confirmation.

A right granted to a debtor mortgagor, his successor in interest or any judicial creditor or judgment creditor or any person having a lien on the property subsequent to the mortgage or deed of trust under which the property is sold to repurchase the property within one year even after the confirmation of the sale and even after the registration of the certificate of foreclosure sale.

May be exercised even after the foreclosure There is no right of redemption in a judicial sale provided it is made before the sale is foreclosure of mortgage under Rule 68. This confirmed by order of the court. right of redemption exists only in extrajudicial foreclosures where there is always a right of redemption within one year from the date of sale(Sec. 3, Act 3135) , but interpreted by the Court to mean one year from the registration of the sale. May also exist in favor or other encumbrances. If subsequent lien holders are not impleaded as parties in the foreclosure suit, the judgment in favor of the foreclosing mortgagee does not bind the other lien holders. In this case, their equity of redemption remains unforeclosed. A separate foreclosure proceeding has to be brought against them to require them to redeem from the first mortgagee or from the party acquiring the title to the mortgaged property.

General rule: In judicial foreclosures there is only an equity of redemption which can be exercised prior to the confirmation of the foreclosure sale. This means that after the foreclosure sale but before its confirmation, the mortgagor may exercise his right of pay the proceeds of the sale and prevent the confirmation of the sale.

If not by banks, the mortgagors merely have an equity of redemption, which is simply their right, as mortgagor, to extinguish the mortgage and retain ownership of the property by paying the secured debt prior to the confirmation of the foreclosure sale.

Exception: there is a right of redemption if the foreclosure is in favor of banks as mortgagees, whether the foreclosure be judicial or extrajudicial. This right of redemption is explicitly provided in Sec. 47 of the General Banking Law of 2000. While the law mentions the redemption period to be one year counted from the date of registration of the certificate in the Registry of Property

Requisites for valid redemption in extrajudicial foreclosure 1.) Redemption must be made within 12 months from registration of sale in the Register of Deeds. 2.) Payment of purchase price plus 1% interest per month, together with assessments or taxes thereon, if any, paid by the purchaser after the sale with the same rate of interests. 165 www.chanroblesbar.com : www.chanroblesbar.com.ph

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3.) Written notice of the redemption must be served on the officer who made the sale and a duplicate filed with the Register of Deeds (Rosales vs. Yboa, 120 SCRA 869 [1983]). Deficiency judgment Deficiency judgment may be awarded in favor of the plaintiff against the mortgagor, if the proceeds of the sale of the property are not sufficient to satisfy the judgment. Motion for deficiency judgment must be filled after then sale, when the deficiency is known. What is the prescriptive period to file action for deficiency in extrajudicial foreclosure of real estate mortgage? Ten (10) years (Arts. 1144 and 1142, Civil Code) Writ of possession in extrajudicial foreclosure of mortgage De Vera vs. Agloro, 448 SCRA 203 (2005) The purchaser at public auction, who has a right to possession that extends after the expiration of the redemption period, becomes the absolute owner of the property when no redemption is made After the 1 year period, the mortgagor loses all interest over it. The bond required under Sec. 7 of RA 3135 is no longer needed. Possession becomes an absolute right of the purchaser as confirmed owner. The purchaser can demand possession at any time following the consolidation of ownership in his name and the issuance to him of a new TCT. After the consolidation of title in the buyers name for failure of the mortgagor to redeem the property, the writ of possession becomes a matter of right. Its issuance to a purchaser in an extrajudicial foreclosure is a merely ministerial function. .An ex parte petition for issuance of a possessory writ under Sec. 7 of Act 3135 is not, strictly speaking, a judicial process as contemplated in Art. 433 of the Civil Code it is a non litigious proceeding authorized in an extrajudicial foreclosure of mortgage. It is brought for the benefit of one party only, and without notice to, or consent by any person adversely interested. No need to notify the mortgagors since they had already lost all their interests in the property when they failed to redeem the same. Even if the mortgagor appeals an order denying a petition assailing the writ of possession granted to the buyer and the sale at public auction, the buyer remains in possession of the property pending resolution of the appeal. It is the ministerial duty of the court to issue writ of possession in favor of the purchaser in a foreclosure sale. The trial court has no discretion on the matter. A writ of possession is a writ of execution employed to enforce a judgment to recover the possession of land. It commands the sheriff to enter the land and give possession of it to the person entitled under the judgment. A writ of possession may be issued under the following instances: (1) in land registration proceedings under Section 17 of Act 496; (2) in a judicial foreclosure, provided the debtor is in possession of the mortgaged realty and no third person, not a party to the foreclosure suit, had intervened; (3) in an extrajudicial foreclosure of a real estate mortgage under Section 7 of Act No. 3135, as amended by Act No. 4118; and (4) in execution sales (last paragraph of Section 33, Rule 39 of the Rules of Court). The present case falls under the third instance. Under Section 7 of Act No. 3135, as amended by Act No. 4118, a writ of possession may be issued either (1) within the one year redemption period, upon the filing of a bond, or (2) after the lapse of the redemption period, without need of a bond. (PNB vs. Sanao Marketing Corporation, G.R. No. 153951, July 29, 2005) A pending action for annulment of mortgage or foreclosure sale does not stay the issuance of the writ of possession. The trial court, where the application for a writ of possession is filed, does not need to look into the validity of the mortgage or the manner of its foreclosure. The purchaser is entitled to a writ of possession without prejudice to the outcome of the pending annulment case. To stress the ministerial character of the writ of possession, the Court has disallowed injunction to prohibit its issuance, just as it has held that its issuance may not be stayed by a pending action for annulment of mortgage or the foreclosure itself. 166 www.chanroblesbar.com : www.chanroblesbar.com.ph

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Until the foreclosure sale of the property in question is annulled by a court of competent jurisdiction, the issuance of a writ of possession remains the ministerial duty of the trial court. The same is true with its implementation; otherwise, the writ will be a useless paper judgment a result inimical to the mandate of Act No. 3135 to vest possession in the purchaser immediately. (Sps. Gatuslao vs. Yanson, G.R. No. 191540, January 21, 2015) Where the extra-judicially foreclosed real property is in the possession of a third party who is holding the same adversely to the judgment debtor or mortgagor, the RTCs duty to issue a writ of possession in favor of the purchaser of said real property ceases to be ministerial and, as such, may no longer proceed ex parte. In such a case, the trial court must order a hearing to determine the nature of the adverse possession. For this exception to apply, however, it is not enough that the property is in the possession of a third party, the property must also be held by the third party ADVERSELY to the judgment debtor or mortgagor, such as a co owner, agricultural tenant or usufructuary. (Sps. Gatuslao vs. Yanson, G.R. No. 191540, January 21, 2015) The obligation of the court to issue an ex parte writ of possession in favor of the purchaser in an extrajudicial foreclosure sale ceases to be ministerial once there is a third party in possession of the property who has an adverse claim to the mortgagor. However, the third party claim in this case was not presented at the onset of litigation. In this case, petitioners opposed the writ of possession because of the pendency of a civil case wherein they sought the annulment of the mortgage and the foreclosure proceedings and not as vendees to an alleged sale of the land in dispute. Petitioners raised for the first time their theory that they are third parties (vendees) holding the property adversely to the mortgagor only after the trial court had already granted a writ of possession. Worse, petitioners failed to adduce evidence of the purported sale in their favor. (Cahilig &Siel vs. Terencio & Mercantile Credit Resources Corp., G.R. No. 164470; November 28, 2011) Respondent may rightfully take possession of the subject properties through a writ of possession, even if he was not the actual buyer thereof at the public auction sale. Respondent, as a transferee or successor in interest of PNB by virtue of the contract of sale between them, is considered to have stepped into the shoes of PNB. As such, he is necessarily entitled to avail of the provisions of Section 7 of Act No. 3135, as amended, as if he is PNB. One of the rights that PNB acquired as purchaser of the subject properties at the public auction sale, which it could validly convey by way of its subsequent sale of the same to respondent, is the availment of a writ of possession. (Sps. Gatuslao vs. Yanson, G.R. No. 191540, January 21, 2015) The remedy of a party from the trial courts order granting the issuance of a writ of possession is to file a petition to set aside the sale and cancel the writ of possession, and the aggrieved party may then appeal from the order denying or granting said petition (Sec.8, Act 3135). When a writ of possession had already been issued as in this case, the proper remedy is an appeal and not a petition for certiorari. To be sure, the trial courts order granting the writ of possession is final. The soundness of the order granting the writ of possession is a matter of judgment, with respect to which the remedy of the party aggrieved is ordinary appeal. As respondent availed of the wrong remedy, the appellate court erred in not dismissing outright the petition for certiorari. (Producers Bank of the Philippines vs. Excelsa Industries, Inc, G.R. No. 173820, April 16, 2012) 11. Partition (Rule 69) a. Who may file complaint; who should be made defendants Rule 69, Section 1. Complaint in action for partition of real estate. A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property. b. Matters to allege in the complaint for partition Contents of the Complaint: 1.) Nature and extent of his title; 2.) Adequate description of the real estate of which partition is demanded; and

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3.) Defendants and all other persons interested in the property are joined. (Rules of Court, Rule 69, Section 1) c. Two (2) stages in every action for partition Two Stages of the Action 1.) First Stage Determination of the propriety of partition This involves a determination of whether the subject property is owned in common and whether all the co owners are made parties in the case. All co owners are indispensable parties. (Rules of Court, Rule 3, Section 7. Compulsory joinder of indispensable parties. Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants) The order may also require an accounting of rents and profits recovered by the defendant. This order of partition and accounting is appealable. (Miranda vs. Court of Appeals, No. L 33007, June 18, 1976, 71 SCRA 295) If not appealed, then the parties may partition the common property in the way they want. If they cannot agree, then the case goes into the second stage. However, the order of accounting may in the meantime be executed. (De Mesa vs. Court of Appeals, G.R. No. 109387, April 25, 1994, 231 SCRA 773). Appeal period 30 days. 2.) Second Stage The actual partitioning of the subject property If the parties are unable to agree upon the partition, the partition shall be done for the parties with the assistance of not more than three (3) commissioners. (Municipality of Biñan vs. Garcia, GR No. 69260, December 22, 1989) This is also a complete proceeding and the order or decision is appealable. Appeal period 15 days d. Order of partition and partition by agreement Rule 69, Sec. 2. Order for partition, and partition by agreement thereunder. If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate among all the parties in interest. Thereupon the parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated. e. Partition by commissioners; Appointment of commissioners, Commissioners report; Court action upon commissioners report f. Judgment and its effects Rule 69, Sec. 11. The judgment and its effect; copy to be recorded in registry of deeds. If actual partition of property is made, the judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him. If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment, and the effect of the judgment shall be to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action. If the property is sold and the sale confirmed by the court, the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments, free from the claims of any of the parties to the action. A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action.

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g. Partition of personal property Rule 69, Sec. 13. Partition of personal property. The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable. h. Prescription of action Action for partition is imprescriptible for as long as the co owners expressly or impliedly recognize the co ownership. (Heirs of Bartolome Infante and Juliana Infante vs. Court of Appeals, G.R. No. 77202 June 22, 1988) However, if a co owner repudiates the co ownership and makes known such repudiation to the other co owners, then partition is no longer a proper remedy of the aggrieved co owner. S/he should filed an accion reivindicatoria which is prescriptible. (Heirs of Catalino Jardin vs. Heirs of Sixto Hallasgo, G.R. No. L 55225, September 30, 1982) PARTITION Define partition Partition is the division between two or more persons of real or personal property which they own as co partners, joint tenants or tenants in common, effected by the setting apart of such interests so that they may enjoy and possess it severally. Purpose is to put an end to the common tenancy of the land or co ownership. Presupposes that the thing to be divided is owned in common. It is immaterial in whose name the properties were declared for taxation purposes for it is presumed beforehand that the parties to the partition admit the fact of co ownership and now want to effect a separation of interest. What are the issues in an action for partition? Action for partition raises two issues: 1. whether plaintiff is co owner of property 2. assuming plaintiff is co owner, how to divide the property between plaintiff and defendant or among the co owners Who are indispensable parties in partition? All the co owners Who may effect partition? Partition of the estate of a decedent may only be effected by (1) the heirs themselves extra judicially, (2) the court in an ordinary action for partition, (3) testator himself, and (4) the third person designated by the testator Partition of the estate may not be ordered in an action for quieting of title (Alejandrino vs. CA, 295 SCRA 536 [1998]) To accord with the nature of the remedy of judicial partition, there are two stages defined under Rule 69. The first relates to the determination of the rights of the parties to the property held in common. The second concerns the physical segregation of each party's just share in the property held in common. The second stage need not be gone into should the parties agree on the physical partition. (Oribello vs. Oribello, G.R. No. 163504, August 5, 2015) LPB 12. Forcible Entry and Unlawful Detainer (Rule 70) Distinguish forcible entry (FE) from unlawful detainer (UD) a. Nature of possession. In FE, the defendants possession is illegal from the beginning. In UD, the defendants possession is legal at the beginning but becomes illegal by reason of termination of the lessees right over the property b. Prior physical possession. In FE, the plaintiff is deprived of prior physical possession through force, intimidation, threats, strategy or stealth. In UD, prior 169 www.chanroblesbar.com : www.chanroblesbar.com.ph

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physical possession by the plaintiff is not alleged because the defendant withholds possession after the expiration of his right to possess. c. Demand. In FE, no demand to vacate is required by law before filing of the action. In UD, demand is jurisdictional. d. Computation of period. In FE, the one year period is counted from actual entry into the land. In UD, the one year period is counted from the last demand Estoppel to question jurisdiction Where the action for FEUD was filed with the RTC, but the defendant did not move to dismiss on such ground, filed his answer and went to trial, and thereafter the trial court rendered judgment, estoppel by laches has already set in and precludes the judgment from assailing the judgment on such ground (Velarma vs. CA, 252 SCRA 406 [1996]). Sufficiency of complaint for unlawful detainer A simple allegation that the defendant is unlawfully withholding the property is sufficient without necessarily employing the terminology of the law. In an unlawful detainer case, the defendants possession was originally lawful but ceased to be so by the expiration of his right to possess (Barba vs. CA, G.R. No. 126638, Feb. 6, 2002). When there are several demands to vacate In case several demands to vacate are made, the period is reckoned from the date of the LAST DEMAND. Possession by tolerance When there is possession by tolerance, possession or detainer becomes illegal only from the time that there is a DEMAND to vacate. The year for bringing the action for illegal detainer should be counted only from such demand (Ballesteros vs. Abion, G. R. No. 143661, Feb. 9, 2006). When to count one-year period in forcible entry The one year period within which to bring an action for forcible entry is generally counted from the date of ACTUAL ENTRY on the land, except that when entry was made thru stealth, the one year period should be counted from the time the plaintiff made the demand to defendant to vacate the land upon learning of such dispossession (Ballesterso vs. Abion, supra). Stealth any secret, sly or clandestine act to avoid discovery and to gain entrance into or remain within the residence of another without permission (Ong vs. Parel, 355 SCRA 691 [2001]). Effect of claim of ownership on MTC jurisdiction Hilario vs. CA, 260 SCRA 420 (1996) a. All forcible entry and unlawful detainer cases have to be tried pursuant to the Revised Rule on Summary Procedure regardless of whether or not the issue of ownership is alleged by a party. b. Inferior courts retain jurisdiction over ejectment cases even if the question of possession cannot be resolved without passing upon the issue of ownership subject to the same caveat that the issue posed as to ownership could be resolved by the court for the sole purpose of determining the issue of possession. c. An adjudication made therein regarding the issue of ownership should be regarded as merely PROVISIONAL and therefore would not bar or prejudice an action between the same parties involving title to the land. d. Jurisdiction over the subject matter is determined by the nature of the action as alleged or pleaded in the complaint. Even where defendant alleges ownership or title in his answer, the court will not be divested of jurisdiction. A contrary rule would pave the way for defendant to trifle with the ejectment suit, which is summary in nature, as he could easily defeat the same through the simple expedient of asserting ownership. Cases that do not affect ejectment suit Wilmont Auto Supply vs. CA, 208 SCRA 108 (1992) 170 www.chanroblesbar.com : www.chanroblesbar.com.ph

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1. Injunction suits instituted in the RTC by defendants in ejectment actions in the municipal trial courts or other courts of the first level do not abate the latter; and neither do proceedings on consignation of rentals. 2. An accion publiciana does not suspend an ejectment suit against the plaintiff in the former. 3. A writ of possession case where ownership is concededly the principal issue before the Regional Trial Court does not preclude nor bar the execution of the judgment in an unlawful detainer suit where the only issue involved is the material possession or possession de facto of the premises. 4. An action for quieting of title to property is not a bar to an ejectment suit involving the same property. 5. Suits for specific performance with damages do not affect ejectment actions (e.g., to compel renewal of a lease contract) 6. An action for reformation of instrument (e.g., from deed of absolute sale to one sale with pacto de retro) does not suspend an ejectment suit between the same parties. 7. An action for reconveyance of property or accion reivindicatoria also has no effect on ejectment suits regarding the same property. 8. Suits for annulment of sale, or title, or document affecting property operate to abate ejectment actions respecting the same property. Effect of absence of title Pajuyo vs. CA, 430 SCRA 492 (2004) a. The absence of title over a contested lot is not a ground for the courts to withhold relief from the parties in an ejectment case. b. Ownership or the right to possess arising from ownership is not an issue in an action for recovery of possession. c. The parties cannot present evidence to prove ownership or right to legal possession except to prove the nature of the possession when necessary to resolve the issue of physical possession. d. The underlying philosophy behind ejectment suits is to prevent breach of the peace and criminal disorder and to compel the party out of possession to respect and resort to the law alone to obtain what he claims to be his. The party should not take the law into his own hands. e. Courts must resolve the issue of possession even if the parties to the ejectment are SQUATTERS. Courts should not leave squatters to their own devices in cases involving recovery of possession. Any one of the co-owners may bring an action for ejectment The law, Art. 487 of the Civil Code, allows a co owner to bring an action for ejectment, which covers all kinds of actions for the recovery of possession, including forcible entry and unlawful detainer, without the necessity of joining all the other co owners as co plaintiffs, because the suit is deemed to be instituted for the benefit of all. An attorney in fact of a co-owner can file the ejectment suit Since Art. 487 authorizes any one of the co owners to bring an action for ejectment and the suit is deemed to be for the benefit of all, without the co owners actually giving consent to the suit, it follows that an attorney in fact of the plaintiff co owner does not need authority from al the co owners. The execution of the certification against forum shopping by the attorney-in-fact is proper The execution of the certification against forum shopping by the attorney in fact is not a violation of the requirement that the parties must personally sign the same. The AIF, who has authority to file the same, and who actually filed the complaint as the representative of the plaintiff co owner, 171 www.chanroblesbar.com : www.chanroblesbar.com.ph

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pursuant to a SPA, is a PARTY to the ejectment suit. In fact, Sec. 1, Rule 70 includes the representative of the owner in an ejectment suit as one of the parties authorized to institute the proceedings. a. Definitions and Distinction What are the kinds of actions for the recovery of possession of real property? 1. Accion interdictal - summary action for forcible entry and unlawful detainer which is brought within one (1) year from dispossession. MTC has exclusive jurisdiction. 2. Accion publiciana - plenary action to recover the right of possession when dispossession has lasted for more than one year or when dispossession was effected by means other than those mentioned in Rule 70, Sec. 1. 3. Accion reivindicatoria - action to recover ownership, including the recovery of possession. Forcible Entry

Unlawful Detainer

The possession of the defendant is unlawful from the beginning; issue is which party has prior de facto possession;

The possession of the defendant is lawful from the beginning becomes illegal by reason of the expiration or termination of his right to the possession of the property;

The law does not require previous Plaintiff must first make such demand which is demand for the defendant to vacate; jurisdictional in nature; The plaintiff must prove that he was in The plaintiff need not have been in prior physical prior physical possession of the premises possession; until he was deprived by the defendant; and The one year period is generally counted The one year period is counted from the date of last from the date of actual entry on the demand. property. b. Distinguished from accion publiciana and accion reinvindicatoria Accion Publiciana

Accion Reinvindicatoria

A plenary ordinary civil action for the recovery of the better right of possession (juridical possession) , must be filed after the expiration of one year from the accrual of the cause of action or from the unlawful withholding of possession of the realty. In other words, if at the time of the filing of the complaint more than one year had elapsed since defendant had turned plaintiff out of possession or defendants possession had become illegal, the action will be not one of forcible entry or unlawful detainer but anaccion publiciana (Valdez vs, CA, GR 132424, May 2, 2006).

An action for the recovery of the exercise of ownership, particularly recovery of possession as an attribute or incident of ownership;

The basis of the recovery of possession is the plaintiffs real The basis for the recovery of right of possession or jus possessionis, which is the right to possession is ownership itself. the possession of the real property independent of ownership. 172 www.chanroblesbar.com : www.chanroblesbar.com.ph

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c. How to determine jurisdiction in accion publiciana and accion reinvindicatoria Jurisdiction is determined by the assessed value of the property. Sec. 22 of BP 129 as amended by R.A. No. 7691 (where the assessed value of the real property does not exceed P20,000.00 or P50,000.00 in Metro Manila) grants the MTC exclusive jurisdiction over subject case. The nature of an action is determined not by what is stated in the caption of the complaint but its allegations and the reliefs prayed for. Where the ultimate objective of the plaintiff is to obtain title to real property, it should be filed in the proper court having jurisdiction over the assessed value of the property subject thereof. (BF Citiland Corporation vs. Marylin B. Otake, G.R. No. 173351, July 29, 2010; Spouses Alcantara vs. Nido, G.R. No. 165133, April 19, 2010; Bernardo vs. Villegas, G.R. No. 183357, March 15, 2010; Barangay Piapi vs. Talip, G.R. No. 138248, September 7, 2005; Quinagoran vs. Court of Appeals, G.R. No. 155179, August 24, 2007) The actions envisaged in the aforequoted provisions (Secs. 19 and 33. BP 129, as amended by RA 7691) are accion publiciana and reivindicatoria. To determine which court has jurisdiction over the action, the complaint must allege the assessed value of the real property subject of the complaint or the interest thereon (Laresma vs. Abellana, G.R. No. 140973, November 11, 2004, 442 SCRA 156) d. Who may institute the action and when; against whom the action may be maintained Rule 70, Section 1. Who may institute proceedings, and when. Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs. What is the period for bringing an action for forcible entry? Within 1 year from such unlawful deprivation (Rule 70, Sec. 1). Where the unlawful deprivation is by stealth, from the time the plaintiff came to know of the unlawful deprivation (City of Manila vs. Garcia, L 26053, February 21, 1967) e. Pleadings allowed Rule 70, Sec. 4. Pleadings allowed. The only pleadings allowed to be filed are the complaint, compulsory counterclaim and cross claim pleaded in the answer, and the answers thereto. All pleadings shall be verified. f. Action on the complaint Rule 70, Sec. 5. Action on complaint. The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto, dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein. If no ground for dismissal is found, it shall forthwith issue summons. g. When demand is necessary Is prior demand necessary in an action for forcible entry? No. Prior demand is not necessary in an action for forcible entry (Rule 70, Sec. 1) Is prior demand necessary in an action for unlawful detainer? 1. No, in the first kind of unlawful detainer, a summary proceeding filed by a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied. (Rule 70, Sec. 1). Prior demand is not necessary because the defendants possession ipso facto 173 www.chanroblesbar.com : www.chanroblesbar.com.ph

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becomes unlawful after the expiration or termination of the right to hold possession. 2 Yes, in the second kind of unlawful detainer, a summary proceeding filed by the lessor to eject the lessee after the latter has failed to pay or to comply with the conditions of the lease (Rule 70, Sec. 2). Demand is necessary because the lessors possession does not ipso facto become unlawful if he fails to pay or comply with the conditions of the lease. Demand is necessary to put the lessee in default. In the second kind of unlawful detainer, how should demand be worded? The lessor should make a demand for the lessee to pay the rent or comply with the conditions of the lease AND vacate. Where the lessor served a written notice upon the lessee to pay the rent or vacate the premises, he gave the lessee an alternative of either paying the rent or vacating. When the lessee then elected to stay after such demand, he became merely a debtor for the unpaid rental and cannot be ejected until he defaults in payment and a demand is made upon him. (Vda. de Murga vs. Chan, 25 SCRA 441). Period to file action for unlawful detainer Within 1 year after the unlawful withholding of possession. 1. Upon the expiration of the lease, the lessee is considered to be unlawfully withholding the property. Hence, the right of action for unlawful detainer immediately arises (Panganiban vs. Shell Petroleum Corp., 395 SCRA 624) 2. In case of failure to pay or comply with the conditions of the lease, the action shall be brought within one year from demand or the posting of notice (if no person is found in the premises) , as provided in Rule 70, Sec. 2) h. Preliminary injunction and preliminary mandatory injunction Rule 70, Sec. 15. Preliminary injunction. The court may grant preliminary injunction, in accordance with the provisions of Rule 58 hereof, to prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the filing of the complaint, 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. i. Resolving defense of ownership Rule 70, Sec. 16. Resolving defense of ownership. When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. Is the judgment of the MTC in ejectment cases immediately executory? The judgment of the MTC against the plaintiff is not immediately executory pending appeal. The judgment of the MTC against the defendant is immediately executory pending appeal. However, the defendant may stay execution: 1. By perfecting an APPEAL. Appeal is perfected by filing a notice of appeal and paying the required appeal and other lawful fees within fifteen (15) days from notice of the judgment. 2. By filing a SUPERSEDEAS BOND to answer for what has been adjudged in the judgment. The bond is to answer for the rents, damages and costs accruing down to the judgment of the MTC appealed from, as determined in the judgment, and 3. By DEPOSITING from time to time with the RTC the monthly rental as adjudicated or the reasonable value of the use and occupation of the property. (Rule 70, Sec. 19)

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What is the effect of failure of the defendant to make the periodic deposit? The RTC, upon motion of the plaintiff, and upon proof of such failure, shall order the execution of the judgment appealed from with respect to the restoration of possession, but such execution shall not be a bar to the appeal taking its course until the final disposition thereof on the merits. (Rule 70, Sec. 19). j. How to stay the immediate execution of judgment To stay the immediate execution of the judgment in an ejectment case, the defendant must perfect an appeal, file a supersedeas bond, and periodically deposit the rentals becoming due during the pendency of the appeal. Otherwise, the writ of execution will issue upon motion of the plaintiff. (Acbang vs. Luczon, G.R. No. 164246, January 15, 2014) LPB Is the judgment of the RTC immediately executory? Yes, under Rule 70, Sec. 21. Rule 70, Sec. 21. Immediate execution on appeal to Court of Appeals or Supreme Court. The judgment of the Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. Section 21, Rule 70 provides that the judgment of the RTC in ejectment cases appealed to it shall be immediately executory and can be enforced despite the perfection of an appeal to a higher court. To avoid such immediate execution, the defendant may appeal said judgment to the CA and therein apply for a writ of preliminary injunction. In this case, the decisions of the MTCC, of the RTC, and of the CA, unanimously recognized the right of the ATO to possession of the property and the corresponding obligation of Miaque to immediately vacate the subject premises. This means that the MTCC, the RTC, and the Court of Appeals all ruled that Miaque does not have any right to continue in possession of the said premises. It is therefore puzzling how the Court of Appeals justified its issuance of the writ of preliminary injunction with the sweeping statement that Miaque "appears to have a clear legal right to hold on to the premises leased by him from ATO at least until such time when he shall have been duly ejected therefrom by a writ of execution of judgment caused to be issued by the MTCC. (Air Transportation Office (ATO) vs. Hon. Court Of Appeals (Nineteenth Division) and Bernie G. Miaque, G.R. No. 173616, June 25, 2014) k. Summary procedure, prohibited pleadings All ejectment cases are covered by the summary procedure regardless of whether they involve questions of ownership. . The adjudication of the case is done on the basis of affidavits and position papers. The court is no longer allowed to hold hearings to receive testimonial evidence. Should the court find it necessary to clarify certain issues, it may require the parties instead to submit affidavits or other evidence. The proceeding is required to be summary so as to promote the speedy disposition of ejectment cases. In line with the summary nature of the action for forcible entry or unlawful detainer, the filing of the following pleadings is prohibited: 1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with Section 12. Section 12 provides that cases requiring reply for conciliation, whether there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be reviewed only after that requirement shall have been complied with. 2. Motion for bill of particulars. 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial. 4. Petition for relief from judgment. 5. Motion for extension of time to file pleadings, affidavits or any other paper. 6. Memoranda.

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7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court. 8. Motion to declare the defendant in default. 9. Dilatory motions for postponement. 10. Reply. 11. Third party complaints. 12. Intervention. ***Against whom judgment binding An ejectment case is an action in personam since it merely seeks to enforce personal liability against the defendant. However, a judgment in an ejectment suit is binding not only on the defendants but also against those not made parties thereto, if they are: (1) trespassers, squatters or agents of the defendant fraudulently occupying the property to frustrate the judgment (2) guests or other occupants of the premises with the permission of the defendant (3) transferees pendente lite (4) co lessee (5) members of the family, relatives and other privies of the defendant (Sunflower Neighborhood Association vs. Court of Appeals, G.R. No. 136274, September 3, 2003; Oro Cam Enterprises, Inc. vs. CA, G.R. No. 128743, November. 29. 1999). When a non party is not included among the exceptions to the general rule , he is not bound by the judgment in the ejectment case. (Sps. Stillgrove vs. Sabas, A.M. No. P 06 2257, November 29, 2006) RTC jurisdiction over a counterclaim in an appeal from a decision in an unlawful detainer case Where the defendant on appeal from a decision in an unlawful detainer case files an amended pleading in which he raises a counterclaim for P250,000 as moral and exemplary damages for the filing by the plaintiff of a baseless suit, the RTC has no jurisdiction over the same. A counterclaim should be within the jurisdiction of the RTC both raises to nature and amount. The counterclaim of P250,000 is below the jurisdictional amount for the RTC. The RTC is trying the case in the exercise of its appellate jurisdiction, rather than original jurisdiction. Thus the exception in Rule 6, Sec. 7 that in the RTC a counterclaim shall be considered compulsory regardless of the amount does not apply. 13. Contempt (Rule 71) a. Kinds of contempt Definition. Contempt of court is a defiance of the authority, justice or dignity of the court, such conduct as tends to bring the authority and administration of the law into disrespect of, to interfere with, or prejudice parties litigant or their witnesses during litigation. It is defined as a disobedience to the court by setting up an opposition to its authority, justice and dignity. It signifies not only a willful disregard or disobedience to the courts order but such conduct as tends to bring the authority of the court and the administration of law into disrefute or in some manner to impede the due administration of justice. (Halili v. Court of Industrial Relations, No. L 24864, April 30, 1985, 136 SCRA 112)

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What are the kinds of contempt? Civil Contempt

Criminal Contempt

It is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein and is therefore and offense against the party in whose behalf the violated order was made;

It is a conduct directed against the authority and dignity of the court or a judge acting judicially; it is an obstructing the administration of justice which tends to bring the court into disrepute or disrespect;

The purpose is to compensate for the benefit The purpose is to punish, to vindicate the of a party; authority of the court and protect its outraged dignity; The rules of procedure governing contempt proceedings or criminal prosecutions ordinarily are inapplicable to civil contempt proceedings.

Should be conducted in accordance with the principles and rules applicable to criminal cases, insofar as such procedure is consistent with the summary nature of contempt proceedings.

Direct Contempt

Indirect Contempt

In general, committed in the presence of or so It is not committed in the presence of the near the court or judge as to obstruct or court, but done at a distance which tends to interrupt the proceedings before it; belittle, degrade, obstruct or embarrass the court and justice; Acts constituting direct contempt are:

Acts constituting indirect contempt are:

a) Misbehavior in the presence of or so near (a) Misbehavior as an officer of a court in the the court as to obstruct or interrupt the performance of his official duties or in his proceedings before it; official transactions; b) Disrespect toward the court; c) Offensive personalities towards others; d) Refusal to be sworn as a witness or to answer as a witness; e) Refusal to subscribe an affidavit or deposition when lawfully required to do so(Sec. 1) ; f) Acts of a party or a counsel which constitute willful and deliberate forum shopping(Sec. 1, Rule 7) ; g) Unfounded accusations or allegations or words in a pleading tending to embarrass the court or to bring it into disrepute(Re: Letter dated 21 Feb. 2005 of Atty. Noel Sorreda, 464 SCRA 32) ;

(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; (c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule; (d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; (e) Assuming to be an attorney or an officer of a court, and acting as such without authority; (f) Failure to obey a subpoena duly served;

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(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him(Sec. 3) ; 1. Direct Contempt - punished summarily, direct contempt consists of misbehavior in the presence of or so near a judge as to interrupt or obstruct the proceedings before the court or the administration of justice, including disrespect toward the judge, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe to an affidavit or deposition when lawfully required to do so (Guerrero vs. Villamor, 189 SCRA 355 [1989]). 2. Indirect Contempt indirect or constructive contempt is one committed away from the court involving disobedience or resistance to a lawful writ, process, order, judgment or command of the court, or tending to belittle, degrade, obstruct, interrupt or embarrass the court (Delima vs. Gallardo, 77 SCRA 286 [1977]). 3. Civil Contempt the failure to do something ordered by the court which is for the benefit of a party. 4. Criminal Contempt any conduct directed against the authority or dignity of the court. Two (2) kinds of Contempt (manner of commission) 1) Direct contempt which may be punished summarily under Section 1of Rule 71. (Section 1. Direct contempt punished summarily. A person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so, may be summarily adjudged in contempt by such court. .) 2) Indirect contempt which may be punished only after written charge and due hearing under Section 3 of Rule 71. (Section 3. Indirect contempt to be punished after charge and hearing. After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel) Two (2) Aspects of Contempt (nature) 1) Civil Contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein. (People v. Godoy/ Judge Eustaquio Z. Gacott, Jr. vs. Mauricio Reynoso, Jr. and Eva P. Ponce De Leon G.R. Nos. 115908 09, March 29, 1995, 243 SCRA 64) It is an offense against the party in whose behalf the violated order is made. Intent in committing the contempt is immaterial. It is instituted by an aggrieved party, or his successor, or someone who has a pecuniary interest in the right to be protected. (People v. Godoy/ Judge Eustaquio Z. Gacott, Jr. vs. Mauricio Reynoso, Jr. and Eva P. Ponce De Leon, G.R. Nos. 115908 09, March 29, 1995, 243 SCRA 64) 2) Criminal Contempt is conduct directed against the authority and dignity of a court or of a judge, as in unlawfully assailing or discrediting the authority and dignity of a court or a judge or in doing a forbidden act. (People v. Godoy/ Judge Eustaquio Z. Gacott, Jr. vs. Mauricio Reynoso, Jr. and Eva P. Ponce De Leon, G.R. Nos. 115908 09, March 29, 1995, 243 SCRA 64) It is an offense against organized society and is held to be an offense against public justice. Intent is a necessary element in criminal contempt. It is generally the State who is the real prosecutor. (People v. Godoy/ Judge Eustaquio Z. Gacott, Jr. vs. Mauricio Reynoso, Jr. and Eva P. Ponce De Leon, G.R. Nos. 115908 09, March 29, 1995, 243 SCRA 64) Note: A criminal contempt proceeding is in the nature of a criminal or quasi criminal actions and, therefore, punitive in nature. A civil contempt proceeding is remedial and civil in nature. 178

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b. Purpose and nature of each See above Is a charge and hearing required before a person may be punished for direct contempt? No. A person may be summarily adjudged in contempt and punished by the court. (Rule 71, Sec. 1) c. Remedy against direct contempt; penalty Rule 71, Sec. 1. Contempt punished summarily. A person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so, may be summarily adjudged in contempt by such court and punished by a (a) FINE not exceeding two thousand pesos (P2,000.00) or IMPRISONMENT not exceeding ten (10) days, or both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by (b) FINE not exceeding two hundred pesos (P200.00) or IMPRISONMENT not exceeding one (1) day, or both, if it be a lower court. He may not appeal from the judgment. The remedy is CERTIORARI OR PROHIBITION under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction on the part of the judge. Execution of the judgment shall be suspended if he files a BOND fixed by the court conditioned that he will ABIDE BY AND PERFORM the judgment should the petition be decided against him (Rule 71, Sec. 2) d. Remedy against indirect contempt; penalty Rule 71, Sec. 7. Punishment for indirect contempt. (a) If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a FINE not exceeding thirty thousand pesos (P30,000.00) or IMPRISONMENT not exceeding six (6) months, or both. (b) If he is adjudged guilty of contempt committed against a lower court, he may be punished by a FINE not exceeding five thousand pesos (P5,000.00) or IMPRISONMENT not exceeding one (1) month, or both. (c) If the contempt consists in the violation of a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved. Rule 71, Sec. 11. Review of judgment or final order; bond for stay. The judgment or final order of a court in a case of indirect contempt may be APPEALED to the proper court as in criminal cases. But execution of the judgment or final order shall not be suspended until a BOND is filed by the person adjudged in contempt, in an amount fixed by the court from which the appeal is taken, conditioned that if the appeal be decided against him he will ABIDE BY AND PERFORM the judgment or final order. e. How contempt proceedings are commenced Rule 71, Sec. 4. How proceedings commenced. Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. 179 www.chanroblesbar.com : www.chanroblesbar.com.ph

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If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision. What are the two ways to initiate indirect contempt? 1. SHOW CAUSE ORDER. Court issues order motu proprio or makes formal charge requiring the respondent to show cause why he should not be punished for contempt. The contempt contemplated is usually in the nature of a criminal contempt. 2. VERIFIED PETITION. Party litigant or any aggrieved party files a verified petition for that purpose, which should comply with the requirements for filing initiatory pleadings in civil actions. Before one may be convicted of indirect contempt, there must be compliance with the following requisites: (a) a charge in writing to be filed; (b) an opportunity for respondent to comment thereon within such period as may be fixed by the court; and (c) an opportunity to be heard by himself or by counsel. (Tokio Marine Malayan Insurance Company Inc. vs. Valdez, G.R. No. 150107, January 28, 2008). f. Acts deemed punishable as indirect contempt Grounds for Indirect Contempt: 1. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions. 2. Disobedience or resistance to a lawful writ, process, order or judgment of a court, or any unauthorized intrusion to any real property after being ejected; 3. Any abuse or any unlawful interference with the proceeding of a court not constituting indirect contempt; 4. Any improper conduct tending, directly or indirectly to impede, obstruct, or degrade the administration of justice; 5. Assuming to be an attorney or an officer of the court without authority; 6. Failure to obey a subpoena duly served; 7. The rescue, or attempted rescue, of a person or property in the custody of an officer. (Rule 71, Section 3.) Grounds for Direct Contempt: 1. Disrespect toward the court; 2. Offensive personalities toward others 3. Refusal to be sworn or to answer as witness or to subscribe an affidavit or deposition 4. Misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings. (Rule 71, Section 1) Where should the charge for indirect contempt be filed? 1. If committed against a RTC or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with the RTC. 2. If committed against the MTC, the charge may be filed with the RTC of the place in which the MTC is sitting; but the proceedings may also be instituted in such MTC subject to appeal to the RTC of such place in the same manner as provided in Rule 71, Sec. 11. (Rule 71, Sec. 5) 3. If committed against a person or body exercising quasi judicial powers, the RTC of the place wherein the contempt has been committed shall have jurisdiction over such charges. (Rule 71, Sec. 12) 180 www.chanroblesbar.com : www.chanroblesbar.com.ph

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g. When imprisonment shall be imposed Rule 71, Sec. 8. Imprisonment until order obeyed. When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. N.B. This means that the penalty of imprisonment may exceed 6 months. The dismissal of the indirect contempt charge amounts to an acquittal, which effectively bars a second prosecution. Contempt is not a criminal offense. However, a charge for contempt of court partakes of the nature of a criminal action. Rules that govern criminal prosecutions strictly apply to a prosecution for contempt. In fact, Section 11 of Rule 71of the Rules of Court provides that the appeal in indirect contempt proceedings may be taken as in criminal cases. This Court has held that an alleged contempt should be accorded the same rights as that of an accused. Thus, the dismissal of the indirect contempt charge against respondent amounts to an acquittal, which effectively bars a second prosecution. (Digital Telecommunications Philippines, Inc. vs. Cantos, G.R. No. 180200, November 25, 2013) h. Contempt against quasi-judicial bodies Rule 71, Sec. 12. Contempt against quasi-judicial entities. Unless otherwise provided by law, this Rule shall apply to contempt committed against persons, entities, bodies or agencies exercising quasi judicial functions, or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. The Regional Trial Court of the place wherein the contempt has been committed shall have jurisdiction over such charges as may be filed therefor. Quasi-judicial agencies that have the power to cite persons for indirect contempt pursuant to Rule 71 of the Rules of Court can only do so by initiating them in the proper Regional Trial Court. It is not within their jurisdiction and competence to decide the indirect contempt cases. These matters are still within the province of the Regional Trial Courts. In the present case, the indirect contempt charge was filed, not with the Regional Trial Court, but with the PARAD, and it was the PARAD that cited Mr. Lorayes with indirect contempt. (Land Bank of the Philippines vs. Listana, G.R. No. 152611, August 5, 2003)

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