CivPro_PE

Page 1 of 80 XAVIER UNIVERSITY Civil Procedure Compilation of Finals and Midterms Exams Judge Jose Escobido Define the following: a. Civil Action A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. b. Special Proceeding A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. c. Action in personam Action in personam – the decision is enforceable only against the parties . One which is directed against a specific person and seeks personal judgment. It binds only the parties of the case or their successors in interests. d. Action in rem Action in rem – the decision is enforceable against the whole world. One directed against the thing, property, or status of a person and seeks judgment with respect thereto against the whole world. e. Action quasi-in rem Is one directed against an individual named as defendant and the purpose of which is to subject his property to the obligation or lien burdening it. Ex. Foreclosure of mortgage / unlawful detainer f. Real action Is one involving title, ownership, possession or nay interests in any real properties which include partition, condemnation, and foreclosure of mortgage on real property. g. Personal action is one brought for -Recovery of Personal Property -Enforcement of some contracts -Recovery of damages for breach of contracts; and -Recovery of damages for the commission of an injury to person or property. h. Mixed Action Is one brought for the protection or recovery of real property and also for an award for damages sustained. Or for protection or recovery of real property. i. Transitory Action Is one which may be brought in the place of residence of the plaintiff or any of the principal plaintiffs or in the residence of the defendant or any of the principal defendants. j. Local Action One which has to be instituted in a particular place independently of the places of residences of the parties.

Page 2 of 80 k. Right of action Is a remedial right or right to relief guaranteed by law to a party to institute an action against a person who has committed a delict or wrong against him. It is the right to sue as a consequence of such delict. l. Cause of action It is an act or omission committed by the defendant in violation of the primary right of the plaintiff. m. Venue The place where the trial or geographical location on which an action or proceeding may be brought. ____________________________________________________________________________ __    

What is jurisdiction? Distinguish jurisdiction from exercise of jurisdiction. What is original, concurrent and exclusive jurisdiction? What is the jurisdiction of the RTC and MTC in civil cases? May a real action be an action in personam? Yes. Ching v. CA. An action to recover a parcel of land is a real action but it is an action in personam, for it binds a particular individual only although it concerns the right to a tangible thing.May a personal action be an action in personam? May a real action be an action in rem?  Question of fact v. Question of Law - Jurisdiction of SC and findings of fact of CA  Action in rem v. personam , service of summons, jurisdiction over the person of defendant. Case: Action for recovery for real property.  Jurisdiction of RTC  Filing of action of unlawful detainer where period of lease not yet expired. ____________________________________________________________________________

1. Distinguish between right of action and Cause of action. 2. What are the elements of the Cause of Action? Elements: hh. The legal right of the plaintiff; ii. The correlative obligation of the defendant to respect that right; and jj. An act or omission of the defendant in violation of said legal right. 3. State the totality rule in determining the jurisdiction of courts in civil actions. Rule 2 - Sec 5(d) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (5a) 4. Spouses Lucy and Richard filed a petition for the adoption of Ara, the minor child of Spouses of Morato and Armina. After the filing of the petition, Ara killed her playmate Alma. Alma’s parents sued Spouses Lucy and Richard and Spouses Morato and Armina for damages. a. Are Lucy and Richard indispensable parties? No b. Are Morato and Armina indispensable parties? Yes 5. Hibok-Hibok Corporation had a contract with Mantique Corp. under which Hibuk-hibuk would construct for Mantique a hotel and restaurant in Mahinog. Mantique required Hibok-hibuk to put

Page 3 of 80 up a performance bond with Catarman Insurance as the surety. Hibok2 however, failed to finish the hotel restaurant on time, and besides Mantique discovered that materials used were substandard. Mantique filed two actions. One action was breach of contract and damages against Hibok2 and it landed in Branch 1 RTC-Camiguin. The other was against Catarman Insurance on its liability under the performance bond, and it landed in Branch 2 of the same court. If you were the lawyer of Catarman Insurance, what would you do? 6. A brought an action against X and Y in one complaint before the RTC of CDO. As his first cause of action, A alleges that X purchased from him on various occasions premium rice worth 150k but refused to pay the said amount despite several demands. As his second cause of action, A alleges that Y likewise purchased from him on various occasions ordinary rice worth 180k but refused to pay the said amount despite repeated demands. The total amount of A’s demand against X and Y is 330k. Both X and Y now separately move to dismiss the complaint on the ground that the RTC has no jurisdiction over the case. How would you resolve the two motions. The motion of X and Y cannot be granted. The RTC has jurisdiction over the case because under the totality rule the test of jurisdiction shall be aggregate sum of all the money demands, exclusive of interest and costs, irrespective of whether or not the separate claims are owned by or due to different parties. The totality rule applies when the cause of action arose from the same series of transactions and there is common question of law among them. 7. Juan Tiu imported a fertilizer from Taiwan. The fertilizer was shipped on board and this was insured by luxury insurance against all risks at the port of departure under a marine policy with a note at a lower left side stamped the name of bell corp, as claim agent. When the cargo arrived at manila, some portion was in bad condition. Tiu then filed with Bell Corp. a formal statement of claim with proof of loss and demand for settlement corresponding to the value of the damage portion. After conveying the claim to its principal, who refused to pay the claim, Bell Corp informed Tiu that his claim could not be paid. Tiu filed an action against Luxury and Bell. Bell filed a motion to dismiss contending that it was merely a claim agent of the insurance company and therefore it was not the real party in interest. Bell Corp also contended that Tiu had no cause of action against it because it did not take part in the marine insurance. Are the two contentions tenable? Reasons. SMITHBELL CASE

8. What is the venue of actions against non-resident defendants? Rule 4 - Sec. 3. Venue of actions against nonresidents. - If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found. (2[c]a) 9. A entered into a lease contract with B whereby A leased his house in CDO to B. It was stipulated in the lease contract that if A should violate the contract, he should be sued in Opol, Misamis Oriental, and if B should violate the contract, he should be sued in Tagoloan, Misamis Oriental. One year after the contract of lease was executed, B failed to pay the rentals for 6 months, so A filed an action for unlawful detainer in MTC of Tagoloan. B’s lawyer believes that the MTC of Tagoloan has no jurisdiction over the case because the property is located in CDO, and the stipulation is contrary to the Section 1, Rule 4 of the Rules of Court, as amended, therefore, it is void. Is B’s lawyer correct? Explain.

Page 4 of 80 10. Banta was an operator and owner of JB Buslines. He resided in Iligan City but the office was in CDOC. Dongo was a Filipino and a resident of Butuan before he went to America. In Dec. 1996, Dongo went to Butuan for a vacation. During the vacation, he went to iligan city driving his own car. While he was in Marcos bridge in CDO, a bus lines of Banta bumped him causing damages to the car and injuries to him. Dongo, represented by his attorney-in-fact because he had already returned to America, filed an action for damages against banta in the RTC Butuan.Banta filed a motion to dismiss on the ground of improper venue contending that the action should have been filed in iligan city where he resided. Rule on the motion 11. What does a signature of counsel in a pleading constitute? Rule 7, S3: “…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 12. X corporation filed an action for collection against Y Corp. and PN was attached to the complaint. In its answer, Y Corp. specifically denied the allegations of the complaint and alleged that the person who contracted and obtained the loan from X Corp was not authorized by Y Corp. Y Corp. answer, however, was not verified. The RTC, upon motion, rendered summary judgment in favor of X Corp. On appeal, the CA affirmed. The case is now with the SC. Decide 13. State the rule on verification of pleading. Sec. 4. Verification. - Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. A pleading required to be verified which contains a verification based on "information and belief, or upon "knowledge, information and belief," or lacks a proper verification, shall be treated as an unsigned pleading. 14. State the rule on forum shopping. Rule 7 – Sec. 5. Certification against forum shopping. – The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (n)

Page 5 of 80 15. A filed suit against B and C for the recovery of personal property which, according to the complaint had been sold to him by the defendants’ father during the latter’s lifetime under a document entitled Deed of Sale. The substance of the document was pleaded in the complaint and a copy thereof was attached to the complaint. B and C filed an answer which disclaimed nature thereon allegedly belonging to their father appeared to be a forgery. At the trial of the case, B and C by means of an expert witness adduced evidence to prove that the seller’s signature in the Deed of Sale was a forgery. A objected saying that the genuineness and due execution of the Deed of Sale was deemed admitted because the answer was unverified inasmuch as the verification was made only on the express basis of best information and belief. Resolve the objection with reasons. The objection of A is untenable. As a rule, where an action or defense is founded upon a written instrument alleged is not specifically denied under oath, the genuineness and due execution of such document shall be deemed admitted. But the case at bar contemplates of the exception, because the adverse party does not appear to be a party to the instrument, it was the father of B and C who signed the document. The verification is not necessary when it is not required by law and verification must be of a personal knowledge or based on authentic record. Rule 8 – Sec. 8. How to contest such documents. – When an action or defense is founded upon a written instrument, 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 when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a) 16. In his answer to the compliant, X alleged that he does not owe Y any sum of money, that he executed the Promissory Note attached to the complaint to enable Y to show to her husband to explain the disappearance of the amount from the conjugal funds as Y lost the same in the casino. The answer was not verified. At the trial, the lawyer of Y objected to the testimony of X as to his accommodation story because, as the answer was not verified, he was deemed to have admitted the genuineness and due execution of the PN. Rule on the objections. The objection of Y’s lawyer is correct. Rule 8, Sec 8 of the Rules of Court provide that on actions based on an actionable document which is described in and attached to the complaint and served upon the adverse party, the failure of the defendant in his answer to deny specifically deny under oath the genuineness and due execution of the instrument is tantamount to the implied admission of the genuineness.

17. Association of Future Saints (AFS), a group of elderly and impotent men in CDO, is active promoting sexual morality among men whose sexual prowess has totally disappeared. It is a very well known association and young men look forward to becoming members of it when they cannot also do it anymore. The association acquired real property in CDO. It conditionally sold the land to a pretty lass. Upon the happening of the condition, the lady demanded delivery of the possession of the land. The association refused. So the lady filed an action to recover possession of the land against AFS. Summon was served on General Mando (ret), a member of AFS, and a next door neighbor of the lady. No answer was filed. So the court upon motion

Page 6 of 80 declared AFS in default. Subsequently the President of AFS, Mr. Ugod-ugod Na, filed a motion to lift the order of default on the ground that there was improper service of summons because as President of AFS the summons should be served on him and not on Gen. Mando. Resolve the Motion. The motion is untenable because AFS is an association without juridical personality. An association or entity without juridical personality may be served with summons and sued in the name by which they are generally or commonly known be effected upon all the defendants by serving upon the person in charge of the office or place of business maintained in such name. Rule 14 – Sec. 8. Service upon entity without juridical personality. – When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought. (9a) 18. X filed an action for reconveyance and cancellation of Torrens Title against y, who had been living abroad for many years and who was already six feet under the ground when the suit was filed. Summons by publication to Y or to his estate was directed by the trial court. Despite the publication, Y did not file his answer. A decision was rendered in favor of X and it was served by publication. A son of Y learned of the case and filed a petition to set aside as null and void the decision for lack of jurisdiction. X oppose the petition contending that an action for cancellation of title was quasi in rem and that service of summons by publication could be allowed considering that Y was a non-resident of the Philippines. Is the contention tenable? Explain. CHING CASE 19. A and B, both residents of Batangas, entered into a Contract of Lease over a parcel of land belonging to B located in Cebu City. A filed a complaint before the RTC in Batangas for the rescission of the lease. B filed a motion to dismiss on the ground that the Batangas Court did not have jurisdiction over the subject matter, the land being located in Cebu City. Resolve the motion. 20. What is the effect of failure to serve written interrogatories under Rule 25? 21. What is the effect of failure to file and serve request for admission under Rule 26? 22. Distinguish Judgment on the pleadings and summary judgments. R34

1. A agreed to sell to B for 500k on installment basis a parcel of land located in Camiguin. A is a residence of Malaybalay and B in CDOC. In the contract to sell executed by A and B among the stipulations were that title to the land should pass to B only after the purchase was fully paid and that after full payment, A would execute a deed of absolute sale in B’s favor. After paying 2 installments but before full payment of the purchase price, B requested that the land be resurveyed to determine the actual area of the land which was along the beach. A agreed and after resurvey, it was found that because of natural erosion caused by the waves of the sea, the area of the land described in the Certificate of Title was reduced by 20%. B wanted that the purchase price be reduced also by 20%. And the trouble began. a. After paying 80% of the purchase price, B demanded that A execute a deed of absolute sale as agreed upon in the contract to sell. A refused saying that B

Page 7 of 80 should pay first the balance of 20%. B filed in Camiguin an action against A for the latter to execute the absolute deed of sale. A filed a motion to dismiss on the ground of improper venue arguing that the motion was in personam therefore must be filed in Bukidnon where he resided. Supposing you were the Judge, how would you rule on the at motion? Malaybalay b. Instead of filing a motion to dismiss, A filed his answer and set up the counterclaim that his contract with B be rescinded for B’s failure to pay the entire amount of the purchase price. Is the counterclaim set up by A permissive or compulsory? Explain. Compulsory Rule 6 - Sec. 7. Compulsory counterclaim. - A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount. (n) c. The action referred to above was filed with the RTC, but at the time it was filed the balance of 20% amounted to 100k. A filed a motion to dismiss on the ground that the court had no jurisdiction since the balance of the purchase price was only 100k. Is the motion tenable? Why? Would your answer be the same if at the time the action was filed the balance was 300k? Why? RTC d. Suppose that after the execution of the contract to sell, B immediately occupied the land and built a beach house. Suppose also that after B demanded the reduction of the purchase price by 20%, A wanted to file an action first to recover possession of the land . Suppose also that the 20 % balance amounted to 100k. In what court should the action be filed? Explain. e. Referring to question d, after A filed an action to recover possession of the land , B filed an answer with counterclaim set up prayed that A be ordered to execute the deed of absolute sale mentioned in the contract to sell. Is the counterclaim permissive or compulsory? Explain. f.

Referring to question A above, after B filed his complaint, the sheriff served the summons on A through A’s brother who lived in Hubangon. A’s brother after receiving the summon s left for Russia and stayed there for 6 months. Apparently, A’s brother forgot about the summons because one month after B, with notice to A, filed a motion to declare A in default for failure to file an answer and to render judgment on the basis of the complaint. The judge granted the two motions, and in the judgment of the judge ordered A to return to B all the

Page 8 of 80 payments made by him plus interest of 30% per annum until the entire amount shall have been fully paid. (1) Was the order of the judge declaring A in default valid? Explain. (2) Assuming that the order was valid, was the judgment rendered by the court valid? Explain. 2. Aga filed an action for forcible entry against Nino. During the pendency of the case, Nino filed an action against Aga to quiet title on the property involved in the forcible entry case. Nino then filed a motion to dismiss the forcible entry case on the ground of litis pendencia because of his action to quiet title filed against Aga. v. Rule on the motion. w. Supposing it was Aga who filed the motion to dismiss. Rule on the motion. x. Supposing the property involved in these cases for forcible entry and quieting of title was located in Velez, CDOC, and its value was not less than 16M. In what court should the two cases be filed? Explain. 3. A filed an action against B to recover real property located in Cogon Market, CDOC. When the Sheriff served the summons on B, he discovered that the tenant of the house which B rented from C was no longer B but D who informed the Sheriff that B left the premises eleven months before. The Sheriff went to C, the owner of the apartment, who gave the sheriff the same information. After one month, on the basis of these facts, A filed a motion to declare B in default for failure to file his answer. The court granted the motion and allowed A to present his evidence ex parte. Afterwards, the court rendered judgment in A’s favor. Seven months after B, who had already resided in Batac, Ilocos Sur because of his wife who was a native of said place, spent his vacation in CDOC, and he learned from his friends that a decision was rendered against him in a case involving his real property located in Cogon Market, CDOC. y. B’s lawyer filed an action with the RTC to annul the judgment on the ground that the court did not acquire jurisdiction over his person. Do you agree with B’s Lawyer? Explain. Yes, service of summon z. Could B still file a petition for relief from Judgments? Reasons. No. Rule 38, 47 aa. Was the order of the Court declaring B in default tenable? Why? No bb. Assume that B spent his vacation in CDOC 20 days after A filed his action. B immediately filed a motion to dismiss the case on the ground that the court did not acquire jurisdiction over his person and on the ground that A had no cause of action because A had already sold the land to B which sale was evidenced by an absolute deed of sale executed by A in favor of B and a copy of the document was attached to the motion. If you were the Judge, how would you resolve the motion. 4. Congress passed a law requiring convicted persons and those under prosecution for criminal offenses to blood sample to the jail authorities for DNA test and examination. A, a lawyer, was convicted for violation of anti-fencing law. In addition, A had a pending administrative case before the SC for disbarnment for his refusal to support a child born out of wedlock. A filed before the RTC a special civil action for certiorari with application for PI against the Bureau of Jail Mgt and the DILG for requiring him to submit blood sample in compliance. A’s grounds were

Page 9 of 80 that the law violated his right to substantive due process and his right to equal protection of the law. The RTC decided against A, who appealed the decision the decision of the court to the CA by means of a petition for review. The CA affirmed in toto the decision of the RTC. A filed a special civil action for certiorari with the Sc assailing the CA decision. s. Do you agree with A when he chose the remedy of prohibition in assailing the action of the Bureau of Jail & Mgt and DILG? Explain. No, he should have filed a petition for mandamus for them to refrain or desist from taking blood samples for DNA test. t.

Was A correct in appealing the decision of the RTC to the CA by petition for review? No, he should have filed a notice of appeal to the RTC and paying at the same time the corresponding docket and lawful fees. For the action filed by A in the RTC is an original action. Petition for review is only applied when the judgment rendered by the RTC is in exercise of its appellate jurisdiction. u. Was A in error when resorted to an original action before the SC in assailing the decision of the CA? Explain. Yes. Special civil actions for certiorari can be availed only in cases where there is no speedy and adequate remedy in the ordinary courts of law. He should have filed a petition for mandamus. 5. Maria and Juan entered into a contract of lease over a condominium unit located in CDO. It was stipulated in the contract of lease that Juan, the lessee, should repair the unit at his own expense without reimbursement from the lessor within 6 months from the effectivity of the contract of lease and should pay the rent of P30,000 every month. After one year, Juan failed to repair the unit and also failed to pay the rental. Then Juan vacated the premises. Maria filed an action against Juan for sum of money representing the rentals of the new unit which Juan had not paid for one year. Maria filed the action with the RTC. p. Juan filed a motion to dismiss contending that the RTC had no jurisdiction over the case because Maria was in reality suing on a contract of lease, hence, the city court had jurisdiction over the case. Is the contention tenable? No, the contention of Juan is not tenable. It is the RTC that should have jurisdiction over the case. The amount of the claim is 360k which is the unpaid rental for one year. q. Six months after, Maria filed another action with the city court of CDO against Juan for damages alleging that for failure of Juan to repair the unit as stipulated in the contract of lease. Maria suffered damages in the amount of 150k. Juan filed a motion to dismiss on the ground of pendency of another action. If you were a judge, how would you rule of the motion? The motion should be granted on the ground of litis pendencia. For the non-payment of rental and the failure of Juan to repair the unit as stipulated in the contract of lease constitutes only one delict or wrong even if several rights were violated. While there are two stipulations in one contract were violated, a contract embraces only one cause of action. A judgment on the merits of one is a ground for dismissal of the other. Thus, there should only be one suit for the recovery of unpaid rentals and damage to property. r.

Referring to the foregoing question, assume that Maria alleged that she suffered damages in the amount of 500k for failure of Juan to repair the unit as stipulated

Page 10 of 80 in the contract, and her action for damages was filed with the RTC, and Juan filed a motion to dismiss on the ground of pendency of another action, if you were the judge how would you rule on the motion. The motion should be dismissed on the ground of pendency of another action. Because even if the two cases are to be heard by different courts, it still arises from one cause of action. 6. A, B, C, D and E are brothers and sisters. Their parents left a parcel of land located in Velez street, CDOC. A few days after their father died, B C D & E discovered that A was in possession of a TCT covering the parcel of land in A’s name. The land has a building on it. The siblings filed an action to annul the TCT issued in A’s name. After trial , the trial court rendered a decision nullifying the TCT in A’s name and declaring that all the siblings were co-owners of the land with equal interest. After the decision became final & executory, the siblings filed a motion for execution of the decision. The court issued the writ pertaining to the land and the building. A assailed the validity of the writ on the ground that he owned the building and therefore it should not be included in the writ. The siblings claimed that their parents owned the building. It appears that in his answer, A did not allege that he owned the building. m. Was A required or obliged to allege in his answer that he was the owner of the building? Why? A should alleged in his answer that he owns the building. The building which stood on the lot is considered as part of the land on which it stands and is therefore considered be included or covered by the TCT issued in A’s name which B C D & E sought to be annulled. n. What is the effect of A’s failure to allege in his answer that he owned the building standing on the land? A’s failure to allege in his answer that he owns the building in his answer is in effect an implied admission that the building is owned by his parents and therefore should be divided among him and his siblings. o. Was the inclusion of the building in the writ of execution valid? Why? Yes, the inclusion of the building in the writ of execution is valid. His failure to alleged ownership of the building led the court to believe that the building is owned by the parents and is also covered by the TCT. The law on property provides that a building attached to a real property is already considered part of the land. 7. Ping and Fred were friends. The former lived in Iligan City and the latter in CDO. On March 15, 2000, Ping borrowed 100k from Fred and the loan was payable within 6 months. 4 months after, or On July 15, 2000, Ping borrowed another 150k from Fred, who willingly gave the loan because of their friendship. The second loan was also payable within 6 months. Because of their friendship Fred only charged an interests of 5% per month on both loans. Or course, the 2 loans were evidenced by PN. Six months after the first loan was contracted, Ping was unable to pay it. Fred immediately demanded payment. Ping could not pay because after their puppies died his wife left him and withdrew all their funds from the bank and went to South Africa for good. On October 15, 2000, Fred filed an action with the RTC for collection with PA against Ping praying that Ping be ordered to pay his total principal obligation of 250k, accumulated interest and attorney’s fees of 20k. f. If you were the judge, and assuming that the bond was filed, would you grant the application for PA?

Page 11 of 80 I will not grant the application for preliminary attachment since the ground as invoked in the case is not among of the grounds under Rule 57, Section 1. Rule 57 – Sec. 1. Grounds upon which attachment may issue. – At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: (a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer or a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; I In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or (f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. (1a) g. If you were Ping’s lawyer, would you file a motion to dismiss? And if you would, on what ground/s. Explain. Lack of Jurisdiction. Amount Due is 100k and falls within the jurisdiction of MTC. h. Assume that Ping’s lawyer filed a motion to dismiss, and assume further that the judge was convinced with Ping’s lawyer argument, and accordingly dismissed the case. Immediately upon receipt of the order dismissing the case, Fred’s lawyer filed with the CA a petition for certiorari under Rule 65. Do you agree with Fred’s lawyer? Why? No. Fred’s lawyer should have first filed a motion for reconsideration in the same court, and if such is denied, then he can file a petition for certiorari. No.File a Notice of Appeal under Rule 42. i.

Was the order of the court dismissing the case final and executory?

No, it can still be appealed. It will only be final and executory after the lapse of the period to appeal and no appeal has been duly perfected, after the same shall be resolved with finality.

Page 12 of 80 j.

Assume that the CA granted Fred’s petition for certiorari. Ping wanted to appeal the decision of the CA to SC. State the procedure of appeal from the CA to the SC, and state the reasons for which the SC may review the decision of the CA.

Petition shall be filed within 15 days from notice of the judgment or final order or the resolution with payment of Docket Fee and other lawful fees and deposit for costs before the expiration of the reglementary period . submit 18 copies of the petition and Proof of service of a copy thereof shall be submitted together with the petition. The reasons for which the SC may review the decision of the CA are: a. When the court a qui has decided a question of substance, not theretofore determined by the SC, or has decided in a way probably not in accord with law or with the applicable decisions of the SC; b. When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision. 8. B brought his wife to Russia for medical treatment. While B was in abroad, A filed an action against B with application for TRO and PI. The notice could not be effected because the sheriff discovered after diligent efforts that there was nobody in the house of B. Upon filing of the complaint and receiving the report of the sheriff, the Executive Judge raffled the case and issued TRO without requiring A to put up a bond. B was not notified of the raffling. After the case was raffled to a branch, the latter without holding a summary hearing extended the TRO issued by the Executive Judge. c. Was the raffling of the case valid? No, the raffling of the case was not valid because it is necessary that the adverse party must be notified. In the case at bar, the adverse party was not notified. d. Was the issuance of the TRO without requiring the applicant to put up a bond valid? Yes the TRO was valid but only up to 72 hours. e. Was the extension of the validity of the TRO valid? Why? No, the extension was invalid because it was done without the judge holding a summary hearing in order to determine the necessity of extending said TRO.

CIVIL PROCEDURE (For additional questions, refer to the mid-term exam compilation) Jurisdiction b) Q: Action by P against D for unlawful detainer in the MTC for failure to vacate premises being leased on a month-to-month basis after notice of termination. D answered, alleging as affirmative defense lack of jurisdiction of the MTC for failure of P to make on him a prior demand to vacate and counterclaiming for P 10,000.00 attorney’s fees. During the pre-trial, it turned out that P sent his notice to vacate by

Page 13 of 80 registered mail but this was not effectively delivered to D, and so the MTC dismissed the case for lack of jurisdiction but awarded D attorney’s fees of P 5,000.00. Did the MTC act correctly? A:

Complaint / Supplemental Complaint Q. May the trial court grant a party relief in excess of or different in kind from that prayed for in his pleading? (1999 Finals 1a) A. Generally yes, where the evidence so warrants (rule 10, Sec. 5). Exception: where the party has been declared in default (Rule 9, Sec. 3[d]). b) Q: In May 1996 P sued D for mandamus alleging that he was the lowest or best bidder for janitorial services for 1996 but that D unjustifiably refused to award the contract to him and prayed that the judgment be rendered compelling D to award him the contract. The year 1996 lapsed, P moving for the admission of a supplemental complaint alleging that he should instead be awarded damages for unrealized profits. Should P’s motion to admit supplemental complaint be admitted? A:

No answer.

Counterclaim Q. Action on a fire policy against an insurance company which issued it. The defendant insurer filed a third-party complaint against a re-insurer which set up in his answer the defense alleged by the defendant insurer that the loss was caused by the willful act of connivance of the plaintiff insured. May the third-party defendant re-insurer counterclaim against the plaintiff? (1999 Finals 7a) A. Yes, provided that the counterclaim be in respect to the plaintiff’s claim against the thirdparty plaintiff. (Rule 6, Sec. 13) Q. Upon plaintiff’s failure to appear at the pre-trial despite notice, what is the proper recourse for the defendant who would like to pursue his compulsory counterclaim in the same proceeding? (1999 Finals 3b) A. He should not move for dismissal of the complaint under Section 3, Rule 17, because this will automatically carry with it the dismissal of the compulsory counterclaim. Instead, defendant should only move to have plaintiff declared non-suited on the complaint so that the latter can no longer present his evidence thereon, and simultaneously move that he be declared as in default on the compulsory counterclaim, and reserve the right to present evidence ex-party on his counterclaim. (BA Finance Corp. v. Co, 224 SCRA 163 [en banc] {1993}) ---- This answer is wrong. See Sec. 3, Rule 17. It must be noted that this question was taken from a pre-1997 Rules exam, and the rules were different then.

Page 14 of 80 Summons b) Q: X company, an American firm, engaged in the manufacture of athletic uniforms, imported soccer jerseys from P company, a Philippine textile mill, but refused to pay for them. Hence, P company filed in the RTC an action against X company for the collection of the price of the soccer jerseys, the complaint alleging that X company was doing business in the Philippines and that summons be served upon its agent in the Philippines. X company entered its special appearance and challenged the validity of the service of summons on the ground that it was not doing business in the Philippines and that the transaction sued upon was an isolated transaction. Was the summons validly served? A: Yes, under Rule 14, Section 14, X company “was doing business” in the Philippines because its purchase of the soccer jerseys was in the ordinary course of its business considering that it was engaged in the manufacture of athletic uniforms. (Litton Mills, Inc. v CA, GR No. 94980, May 15, 1996, 2nd Div.) Comment: Note that under the 1997 Rules, the term is “has transacted business.” Thus, even isolated transactions can be litigated.

Q:

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

A:

No answer.

Execution Q. Who may file a “terceria,” with whom is it filed and what is the effect of its filing? (1999 Finals 4b) A. A “terceria” is a third-party claim under Section 17, Rule 39 and is filed by a third-party claimant with the officer making the levy and it is an affidavit of the claimant’s title with copy thereof served upon the judgment creditor. With the filing of this affidavit, the officer is not bound to keep the property unless the judgment creditor indemnifies the officer against such claim by an adequate bond. b) Q: An ejectment action for non-payment of rentals was compromised by the parties. Their compromise agreement, which the MTC approved, provided for payment to the plaintiff by defendant of specified amounts every month for 14 consecutive months, and that the failure of defendant to pay 3 consecutive installments shall entitle the plaintiff to a writ of execution. Defendant having failed to pay the first 3 stipulated installments, the MTC on plaintiff’s motion issued a writ of execution. Acting on this writ, the sheriff served on defendant a notice to vacate the premises. Any way for defendant to resist the implementation of the execution writ? A:

No answer.

Page 15 of 80 Appeal and other Post-Judgment Remedies b) Q: The appellant was delayed for one (1) month in paying to the Court of Appeals his docket fee. Appellee therefore moved to dismiss his appeal but appellant countered by saying that he neglected to pay the docket fee on time because he was to busy. Rule on the motion to dismiss appeal. A: Motion to dismiss appeal granted. Failure of the appellant to pay the docketing fee is a ground for the dismissal of the appeal. (Rule 50, Sec. 1) Appeal within the reglementary period is mandatory and jurisdictional. Appellant’s excuse for delayed payment is a poor excuse. (Pedrosa v Gil, GR No. 120804, June 14, 1996; 1st Div.)

Q. By what mode can a party seek the review of an order denying his petition for relief from judgment? (1999 Finals 1b) A. Only by an appropriate special civil action under Rule 65 and not by an appeal. (Rule 41, Sec. 1[b]) ========== II. JURISDICTION Introductory/general concepts Q. Up to what stage of a civil action may the issue of jurisdiction be raised? (5%) [1997 Midterms IIIa] A. In case of jurisdiction over the subject matter, the question may be invoked at any stage of the proceedings (even on appeal), but the issue of jurisdiction over the person of the defendant must be raised either in the motion to dismiss or by way of an affirmative defense in the answer. (Amigo v CA, 253 SCRA 382). Q: P sues D in RTC-Manila to recover P100,000.00 and a parcel of land located in Manila. P is a Manila resident while D is a resident of Quezon City. D moves to dismiss on the ground of lack of jurisdiction. What ruling? (5%) A: Motion denied. The claim for P100,000.00 may be properly joined with the claim for recovery of real property, and RTC has jurisdiction over such money claim since it has jurisdiction over the claim for recovery of real property. (Rule 2, Sec. 5[c]) Q: Suppose you are the counsel for D who is sued in the MTC for unlawful detainer and on a P50,000.00 promissory note (not related to the lease subject of the action), what would be your proper and effective procedural recourse? (5%) A: I will move for severance of one cause of action because of misjoinder of the two causes of action, one - to wit, the unlawful detainer action - being a special civil action. (Rule 2, Secs. 5 [b] and 6)

Page 16 of 80 Q: Last February 1990, T died in Quezon City, his place of residence, leaving a will. May the RTC of Bulacan take cognizance of the petition for the probate of his will even if he left no property in Bulacan? (5%) A: Yes, deceased's residence or location of his estate is not an element of jurisdiction of the probate court but is merely one of venue. So, RTC-Bulacan may take cognizance of the petition for probate if there is no objection to the venue.

Jurisdiction (subject matter) of the different levels of courts in civil cases Q. P, a Manila resident, filed a collection action against C and D in RTC Manila, alleging a total claim of P230,000 (P180.,000 for principal and P50,000 for attorney's fees) against C based on a promissory note and a claim of P100,000 against D based on the unpaid purchase price of goods delivered. Both C and D moved to dismiss for lack of jurisdiction. Rule on both motions to dismiss. (1996 Midterm Exam VII) A. Both motions to dismiss granted. Jurisdiction pertains to the MTC because the total amount (exclusive of attorney's fees) of each cause of action is below the jurisdictional minimum of P200,000 for RTC jurisdiction. Joinder of the 2 causes of action against C and D is improper because there is a misjoinder of parties, the two pleaded causes of action not arising out of the same transaction or series of transaction and there being no question of law or fact common to C and D, and joinder of causes of action is subject to the rule on joinder of parties. (See Flores v. Mallare-Phillipps, 144 SCRA 377 [2nd. Div., 1988]) Q. A, a Manila resident, bought a color TV set at the price of P15,000.00 on 24 monthly installments from B Co., a Manila-based appliance company. The transaction was covered by a conditional sale contract. A defaulted in his monthly installment payments after having paid 5 such installments. In what court may B Co. bring the action to recover the TV set? (1993 Midterm Exam VIb) A. No answer Q. P corporation filed an action against D in the RTC to collect certain amounts of money amounting to P 2 million on its claim that D, while president of P corporation and by using his position as such president and through fraud and misrepresentation, misappropriated and diverted to his personal use these corporate funds. D moved to dismiss the complaint on the ground that it falls within the jurisdiction of the Securities and Exchange Commission (SEC). Rule on the motion to dismiss. (5%) [1995 Finals VIIIa] A. Motion to dismiss granted. The complaint alleges acts committed by a corporate officer against the corporation, which amounts to fraud and misrepresentation and thus detrimental to the interest of the public. Therefore, what was otherwise an ordinary action for a sum of money has been converted to an inter-corporate controversy which calls for the adjudicative powers of the SEC under Sec 5 (a) of PD 902-A. (Alleje v CA, 240 SCRA 495). *** note amendment to PD 902-A in the Securities Regulation Code of 2000 transferring adjudicative powers of the SEC over certain cases to the regular courts.

Page 17 of 80 Q. P, a senior Vice-President of a corporation, was dismissed for lack of confidence. Aggrieved, P sued the company for illegal dismissal with prayer for back wages, reinstatement, damages and other benefits before the Labor Arbiter. The company moved to dismiss on the ground that the Labor Arbiter has no jurisdiction on the over the action. Rule on the motion. (5%) [1997 Midterms VIa] A. Motion granted. Jurisdiction properly pertains to the Securities and Exchange Commission because the dismissal of a corporate officer is a corporate act and/or an intra-corporate controversy. (Estrada v NLRC, GR No. 106722, 04 October 1996)

*** note amendment to PD 902-A in the Securities Regulation Code of 2000 transferring adjudicative powers of the SEC over certain cases to the regular courts.

Q. What is the legal effect of the non-payment of the docket fees in full? (5%) A. The court does not acquire jurisdiction over the subject matter in the case. Therefore, the entire proceeding undertaken in the case are null and void. [Hodges v. CA185 SCRA 281 (1990)] Q: P sues D in RTC-Manila to recover P100,000.00 and a parcel of land located in Manila. P is a Manila resident while D is a resident of Quezon City. D moves to dismiss on the ground of lack of jurisdiction. What ruling? (5%) A: Motion denied. The claim for P100,000.00 may be properly joined with the claim for recovery of real property, and RTC has jurisdiction over such money claim since it has jurisdiction over the claim for recovery of real property. (Rule 2, Sec. 5[c]) Q. Action by P against D in the RTC for a sum of money was sought to be dismissed by D on the ground of prescription. The motion to dismiss was denied and D brought a special civil action for certiorari in the CA against the order of denial of his motion to dismiss. The CA dismissed the petition. Then, D filed his answer, after which trial was held and judgment rendered against D. On appeal from this judgment to the CA, D filed a motion to dismiss the complaint on the ground of lack of jurisdiction, alleging htat P had not paid the appropriate docketing fees in the trial court. Rule on the motion to dismiss. A. Motion to dismiss denied. Although the payment of the proper docket fees is a jurisdictional requirement, the TC may allow the plaintiff in an action to pay these fees within a reasonable time before the expiry of the applicable prescriptive or reglementary period. But if the plaintiff fails to comply with this requirement, defendant should timely rise the issue of jurisdiction or else he would be considered in estoppel. Here, D filed an answer and participated in the proceedings before the TC. It was only after judgment was rendered against him that he raised the issue of jurisdiction. While the lack of jurisdiction ... may be raised at any stage of an action, the party raising such question may be estopped if he has actively taken part in the very proceedings which he questions and he only objects to the court's jurisdiction because the judgment or decision subsequently rendered is adverse to him. (National Steel Corp. v CA)

Page 18 of 80 III.

VENUE

Q: Last February 1990, T died in Quezon City, his place of residence, leaving a will. May the RTC of Bulacan take cognizance of the petition for the probate of his will even if he left no property in Bulacan? (5%) A: Yes, deceased's residence or location of his estate is not an element of jurisdiction of the probate court but is merely one of venue. So, RTC-Bulacan may take cognizance of the petition for probate if there is no objection to the venue. IV. PARTIES Party in Interest Q. A, owner of an improved city lot, leased the same to B. While B is in possession, he was dispossessed by C. B, therefore, filed an action against C to recover possession. C contested upon the ground that B, not being the owner of the land, is not the real party in interest. Is C's contention correct? (5%) A. If the action filed is for forcible entry wherein the issue is only possession de facto, B, as the lessee, has a right of action against C to recover the same. B is a party in interest in the sense that he has a present substantial interest in the land, the possession of which he had been deprived.

Capacity to sue and be sued Q. X Company, a corporation incorporated under the laws of Michigan, USA, entered into a "representative agreement" with Y Company, a domestic corporation, for the sale in the Philippines of X Company's electronics products in consideration for a stipulated commission. After the agreement was in force for a year, X Company terminated it and then brought an action in the RTC-Makati to enjoin Y Company from dealing in similar products as those of X's. Y Company moved to dismiss the action on the ground that X Company, being a foreign corporation not licensed to do business in the Philippines, has no capacity to sue. Rule on the motion to dismiss. (10%) [1997 Midterms I] A. X Company may well be said to be doing business in the Philippines because of the extensiveness and regularity of the sales of its products in this country whereby it made Y Company its mere agent in pursuit of its business. However, Y Company is estopped to challenge the personality of X after it has acknowledged the same by entering into a contract with it. This result is dictated by fair play. A person contracting with a foreign corporation cannot take advantage of the latter's non-compliance with the licensing requirement where such person has received the benefits of the contract. (Communication Materials and Design Inc v CA, GR 102223, 22 August 1996) Joinder of parties Q. D purchased a car from P, a car dealer, on installments and secured the purchase price balance (covered by a promissory note) with a chattel mortgage on the car. While the purchase price was not yet fully paid and the mortgage on the car still existing, D

Page 19 of 80 sold the car to E. With D having defaulted on the payments, P, seeking to foreclose the chattel mortgage, sued out a writ of replevin against D and E, but since D could no longer be served with summons, P moved to drop D as defendant. Rule on P's motion to drop D. (10%) [1996 Midterms III] A. The motion to drop D as defendant cannot be granted without dismissing the complaint because D is an indispensable party. The replevin suit is anchored on P's alleged right to possess the car and which right in turn is founded on the alleged default of D. If the case against D is dismissed, there would be no remaining cause of action against E. P's right to possess the car is conditioned on D's actual default and this default cannot be established in D's absence. (Servicewide Specialists Inc. v CA, GR No. 103301, 08 December 1995.)

Substitution of parties Q. Plaintiff filed a petition for mandamus to compel the then municipal mayor to issue to him the municipal license and permit to resume operations of his cockpit. Pending the action, the mayor was dismissed from office. After trial, the court issued the writ of mandamus and adjudged defendant mayor liable for damages. In due course, the sheriff levied execution of the judgment for damages on defendant mayor's properties. Is the levy valid? (10%) [1997 Midterms IV] A. The levy is void because the judgment is void and without any legal effect. The judgment is void because there was no substitution, pursuant to Rule 18, Section 3, of defendant mayor and the filing of a supplemental pleading showing that defendant mayor's successor had adopted or continued the defendant mayor's policy to deny the cockpit license. (Galvez v CA, GR 119193, 29 March 1996.) New/additional parties: impleader Q. What is the effective recourse of the defendant where the plaintiff did not implead an indispensable party? (1993 Midterm Exam IIb) A. Defendant should move for an order directing the plaintiff to amend its complaint by impleading the indispensable party. Upon plaintiff's failure or refusal to obey this order, the action should be dismissed. (Rule 17, Sec. 3; National Development Co. v. Court of Appeals, 211 SCRA 422 [1992]). Q. Action by P against D in the RTC for a sum of money wherein D impleaded X as a third-party defendant on the claim that X is liable to plaintiff by way of subrogation to D's liability. Judgment was rendered ordering D to pay P and X to indemnify D for this payment. X timely appealed the judgment to the CA, but did not appeal and so P sued out a writ of execution against him after the lapse of the 15-day period for D to appeal. Is the writ of execution valid? (5%) [1999 Midterm X] A. Yes. The third-party complaint is independent of and distinct from the complaint, but is allowed in the original and principal case to avoid circuitry of action and unnecessary proliferation of lawsuits and to dispose expeditiously in one litigation the entire subject matter arising from one particular set of facts. An appeal by any party from such judgment does not inure to the benefit of the other party who has not appealed nor can it be deemed to be an

Page 20 of 80 appeal of such other party from the judgment against him. (Firestone Tire & Rubber Co. of the Phils. vs. Tempongko, 27SCRA 418 [1969])

New/additional parties: intervention Q. P sues your client D, to recover possession of a parcel of land. D tells you that his wife acquired this parcel of land from its former owner, X. Is there a way by which D may cause X to be impleaded? (1996 Midterm Exam Ia) A. Yes. D should have his wife intervene in the case and once admitted as intervenor, the wife should move to be allowed to a file a third-party complaint against X. D himself cannot file this third-party complaint against X because he has no privity with X. (Morada v. Caluag, 5 SCRA 1128 [1962]) Q P sued A, B, C and D to recover from each of them different pieces of jewelry which were allegedly delivered to each of them as a commission agent of the plaintiff. The jewelries were delivered on different dates. If you were counsel for all the defendants, what would be your proper recourse? A. I would ask that all but one defendant be dropped from the complaint because the defendants are mis-joined. The plaintiff's claim against each of the defendants did not arise from the same transaction or series of transactions. (Rule 3, sec 6). Each claim therefore is a separate cause of action. (Gacula v Martinez, 88 Phil 142)

Q. What is defendant's recourse against a complaint which fails to include an indispensable party? A. He should move for an order directing the plaintiff to amend his complaint to include the indispensable party, and if plaintiff fails or refuses to obey this order, or the indispensable party cannot be sued, then defendant should move to dismiss the complaint under Rule 17, sec 3. (See Corez v Avila, 101 Phgil 205 [1957])

V. SUMMONS Q: Action in RTC- Manila against d to collect a sum of money. D is a Filipino now permanently residing in the United States but comes to the Philippines during the Christmas holidays. How may the summons in this action be served on him? (5%) A: Only personally, when he is in the Philippines even temporarily only. Extraterritorial service is not permissible since the action is inpersonam (Rule 14, 15) and D is not a Philippine Resident (Id. Sec. 16)

Page 21 of 80 Q: Action in RTC- Manila against d to collect a sum of money. D is a Filipino now permanently residing in the United States but comes to the Philippines during the Christmas holidays. How may the summons in this action be served on him? (5%) A: Only personally, when he is in the Philippines even temporarily only. Extraterritorial service is not permissible since the action is inpersonam (Rule 14, 15) and D is not a Philippine Resident (Id. Sec. 16)

Service of summons Q. D borrowed US $10,000 from the Guam Branch of a Philippine bank and executed therefore in Agana, Guam a promissory note. Upon D's default on the note, may the Philippine bank sue him in then Philippines to collect on this note? (1996 Midterm Exam IVb) A. Yes. D's suability before our courts depends on the latter's ability to acquire jurisdiction over his person or his property. In this case, the bank may file a simple collection case before a Philippine court and have the summons served on D should he be found in the Philippines; but here the filing of the suit should be timed to coincide with the time that D is expected in this country, also the complaint may be dismissed for non-prosecutions if the summons is not served seasonably enough. But the better alternative would be to have the plaintiff file an application for preliminary attachment on the real property of D in the Philippines, because in such case, D's non-residence will be a sufficient and independent ground for the issuance of an attachment (Rule 57, Sec. 1[f]) and the court may then acquire jurisdiction over his person by service of summons by publication (Rule 14, Sec. 17).

VI. PLEADINGS ANSWER Q. An action on a promissory note by P against D Company, copy of the note being attached to the complaint as an annex. D Company answered by denying liability and alleging that the person who signed the note had no authority to do so, but this answer was not verified. May D Company prove its defense? (5%) A. No. By failing to make a verified denial of the genuineness and due execution of the note, D Company had admitted that the party whose signature appears thereon had indeed signed the note and that he had authority to sign it. [Imperial Textile Mills Inc. v. CA; 183 SCRA 584 (1990)] Q. May the trial court extend the period for filing an answer after this period had already expired? (5%) A.

Yes, indirectly. See R11S7(2), now R11S11.

Page 22 of 80 Q: Suppose that a complaint is dismissed for failure to attach thereto a sworn certification against forum-shopping, can the omission be cured by an amendment of the complaint? (5%) A: No. (rule 7, Sec. 5, 2nd par.) Q: When is a cross-claim permissive? (5%) A: Perhaps never. (See Rule 6, sec. 8; Rule 9, Sec. 2) Q: P sues D for P300,000.00 in RTC-Manila. Before D could answer, P amends his complaint to allege an alternative cause of action for specific performance. D moves to dismiss the complaint. Ruling? (10%) A: Motion granted. P can amend the complaint once as a matter of right at any time before answer. The fact that the original complaint did not plead a cause of action within the RTC's jurisdiction is of no moment. While the amendment has the effect of curing this defect, this is okay because no leave of court is sought so that there is no conceptual contradiction as no affirmative action is sought from the court. But while an action for specific performance is within the RTC's jurisdiction since it is not capable of pecuniary estimation, the alternative cause of action for P3000,000.00 puts such an estimate and brings the case within the MTC's jurisdiction because of the amount involved. (See Cruz v. Tan, 87 Phil. 627 [1950])

The complaint Q. May P properly and correctly file a complaint in the RTC against D to recover P1 Million based on a promissory note and another P1 Million based on tortious interference with contract, and for foreclosure of a real estate mortgage to secure a loan of P5 Million? (5%) [1999 Midterm XII] A. While causes of action may be joined against a common opposing party whether of the same nature or character or whether they arise out of the same contract or relation or whether they are for sums of money, yet none of the causes of action must be a special civil action or action governed by special rules otherwise there would be a misjoinder of causes of action. Here, the cause of action for mortgage foreclosure is misjoined because it is a special civil action. (Rule 2, Sec. 5) Q. Can the court award the plaintiff damages prayed for in his complaint to be in an "amount as will be proved at the trial"? (10%) [1996 Midterms II] A. Generally, no. It is required for purposes of computation of the docketing fees payable, that the complaint specify the amount of damages being prayed for not only in its body but also in its prayer. The court does not acquire jurisdiction over an unspecified claim for damages, except in respect to damages arising after the filing of the complaint or similar pleading the amount of which damages need not be specified but to which the additional filing fee shall be a lien on the judgment. (Original Dev't. & Const. Corp. v CA, 202 SCRA 753).

The answer

Page 23 of 80 Q. May lack of jurisdiction over the person be pleaded as an affirmative defense and a preliminary hearing had thereon? (10%) [1996 Midterms VIII] A. Yes. Any ground for dismissal under Rule 16, except improper venue, may be pleaded as an affirmative defense and a preliminary hearing had thereon. A defendant is allowed to put up his own defenses alternatively or even hypothetically. Defenses and objections not pleaded either in a motion to dismiss or an answer, except for the failure to state a cause of action, are deemed waived. Therefore, the defendant is enjoined to set up, along with his objections to the court's jurisdiction over his person, all other possible defenses. (La Naval Drug Corp. v CA, 236 SCRA 78).

Counterclaim and cross-claim Q. L sued C to annul a deed of sale of a lot and for L to be declared the owner thereof. Judgment went to C, and this judgment became final. Thereafter, C filed an action against L, A and B for damages for the use and occupancy of the same lot, A and B being L's transferees of the house built on the lot, this house having been transferred by L to A and B even before the filing of the annulment action. L, A and B moved to dismiss C's complaint on the ground that it is barred by the judgment in the first action. Resolve the motion to dismiss. (1994 Midterm Exam IX) A. Motion to dismiss granted. The scone motion is barred by the "compulsory counterclaim rule" (Rule (, Section 4) because the complaint for damages is necessarily connected with the transaction subject matter of the first action. Had the same been annulled in the first action then C would have no right to collect rents from the occupants of the lot and house, while if the court sustained the validity of the same (as it did) then C would have had such right. The addition of A and B as additional defendants does not detract form the res judicata effect of the judgment in the first case because these parties should have been impleaded by C on his compulsory counterclaim in the first auction. See Carpena v. Manalo, 1 SCAR 1060 (1981) and my annotation in 3 PHILAJUR 588 at 601-602 (1978). Q. In an action in the RTC by the lessee against the lessor to fix a period for his lease, may the RTC entertain the defendant lessor's counterclaim for the ejectment of plaintiff lessee on the ground of the expiry of the stipulated term in the lease contract? (5%) [1999 Midterm XI] A. No, this is not a compulsory counterclaim because it is not within the jurisdiction of the RTC as to its nature. (Rule 6, Sec. 7)

Q. Action on a fire policy against an insurance company which issued it. The defendant insurer filed a third-party complaint against a re-insurer which set up in his answer the defense alleged by the defendant insurer that the loss was caused by the willful act of connivance of the plaintiff insured. May the third-party defendant re-insurer counterclaim against the plaintiff? [1999 UP Barops III] A. Yes, provided that the counterclaim be in respect to the plaintiff's claim against the third-party plaintiff. (Rule 6, sec. 13)

Page 24 of 80 Q. The MTC dismissed, on defendant's motion, a complaint for unlawful detainer grounded on termination of a month-to-month lease, for lack of jurisdiction over the subject matter due to lack of prior demand to vacate, and awarded in favor of the defendant the amount of P 5,000.00 as attorney's fees. Is this MTC decision vulnerable to attack on certiorari? (10%) [1996 Midterms VII] A. Yes. Since the MTC had no jurisdiction over the principal action for unlawful detainer, then it had no jurisdiction over the compulsory counterclaim for attorney's fees either. Defendant's claim for attorney's fees is in the nature of a compulsory counterclaim, and a compulsory counterclaim cannot remain pending for independent adjudication by the court. A compulsory counterclaim is merely auxiliary to the proceeding in the original suit and derives its jurisdictional support from this original suit. Besides, it was defendant himself who caused the dismissal of his counterclaim by moving for the dismissal of the complaint. (Dalisay v Marasigan, GR No. 115088, 20 June 1996. Amended and supplemental pleadings Q. A sued B in RTC-Manila for breach of contract. B filed a motion to dismiss on the ground that the complaint fails to state a cause of action. Before the motion to dismiss was resolved, A filed an amended complaint. The RTC did not admit amended complaint, ruling that A failed to obtain leave of court. A's motion for reconsideration was denied; so, he filed a petition for certiorari in the Court of Appeals. B moves to dismiss the petition contending that the CA has no jurisdiction to issue certiorari, since only a question of law is involved. Is the RTC judge correct? Does the CA have jurisdiction to issue certiorari? Decide. (1993 Midterm Exam V) A. No answer Q. Husband filed a complaint in the RTC against his wife praying for custody of their children and that their support be determined, the complaint alleging that defendant-wife attempted to kill plaintiff-husband by kicking him twice on his genital. After answer, plaintiff was allowed by the trial court to amend his complaint by alleging that defendant attempted to kill him by placing poison on his food and praying for legal separation. Was the amendment properly allowed? (10%) [1996 Midterms IV] A. There was no evidence that the amendment was made with intent to delay the action or that the cause of action was substantially altered. While the reliefs sought are different, as the original complaint prays for custody and support while the amended complaint prays for legal separation, what determines the nature and character of an action is not the prayer but the essential basic allegations of fact as set forth in the complaint. There is no substantial alteration of the cause of action because defendant is not required to answer for a liability or legal obligation wholly different from that which was stated in the original complaint. Even granting that the causes of action under the original and amended complains are different, still the amended complaint should be admitted because such causes of action, as legal separation, custody and support arose from the marital relationship between the parties, and a party is allowed to state in one pleading as many causes of action as may arise out of the same relation between the parties. (Anastacio v Anastacio, 92 OG 2746.)

Formal requirement of pleadings

Page 25 of 80 Q. May a complaint which had been dismissed for failure to attach a certification against forum shopping be re-filed? (5%) [2000 Finals III] A. Yes, unless the dismissal order states that it is with prejudice. (Rule 7, Sec 5, 2nd par) Detail in pleading Q. P company, a foreign insurance company, sued in the RTC-Manila and alleged that it is duly authorized to do business in the Philippines, but defendant in his answer denied this allegation as to P's capacity to sue for lack of knowledge or information. What is the effect of defendant's denial? [1999 UP Barops X] A. None. The denial is ineffective for being a general denial and therefore is inadequate to attack p's capacity to sue. (Rule 8, Sec. 4, 2nd sent.) Filing and service of pleadings & other papers Q. In an action by P against D in the RTC for recovery of possession and damages, D filed an answer with counterclaims but furnished counsel for P a copy of this answer by registered mail and his answer did not contain any written explanation as to why service was not made personally upon P. So, P filed a motion to expunge the answer and to declare D in default on the ground that D did not observe the mandate requiring personal service or an explanation of its absence. Rule on D's motion. [1999 UP Barops VI] A. Motion granted. Under Sec. 11, Rule 13 of the 1997 Rules of Civil Procedure, personal service and filing is the general rule, and resort to other modes of service and filing, the exception. Therefore, whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal service or filing is mandatory. Only when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by a written explanation as to why personal service was not practicable. The absence of such explanation is a violation of the rule and may be cause to consider the paper as not filed. (Solar Team Entertainment, Inc. vs. Ricafort, G.R. No. 132007, August 5, 1998 [1st Div]) Q. In an unlawful detainer suit by P against D, the MTC Malolos rendered judgment ordering D to vacate the premises and to surrender their possession to P. Thereafter, a writ of execution of the judgment and a writ of demolition, were issued. During the grace period allowed D under the writ of demolition, D filed a separate action in RTC-Bulacan against P and the provincial sheriff for specific performance on the ground that D is entitled to receive the value of the improvements on the lot subject of the ejectment case because he was a builder in good faith. The RTC Bulacan issued a TRO and then later a preliminary injunction, enjoining the enforcement of MTC Malolos' writ of execution and order of demolition. Did the RTC Malolos act correctly? (10%) A. No. This claim for compensation for improvements is a compulsory counterclaim under R9S4 and therefore, D should have raised it in the ejectment case even only alternatively because it is inconsistent with his claim of ownership. [Cojuanco v. Villegas 184 SCRA 374 (1990)]

Page 26 of 80 Q. May a court grant relief greater than that asked for in the prayer of the litigant's pleadings? (5%) A. See R9S3. Q In an action in the RTC by the lessee against the lessor to fix a period for his lease, may the RTC entertain the defendant lessor's counterclaim for the ejectment of plaintiff lessee on the ground of the expiry of the stipulated term in the lease contract. A. No, this is not a compulsory counterclaim because it is not within the jurisdiction of the RTC as to its nature. (rule 6, sec 7)

Q. May P properly and correctly file a complaint in the RTC against D to recover P1 million based on a promissory note and another P1 million based on tortious interference with contract, and for foreclosure of a real estate mortgage to secure a loan of P5 million? A. While causes of action may be joined against a common opposing party whether of the same nature or character or whether they arise out of the same contact or relation or whether they are for sums of money, yet none of the causes of action must be a special civil action or action governed by speciai rules otherwise, there would be a misjoinder of causes of action. Here, the cause of action for mortgage foreclosure is misjoined because it is a special civil action. (Rule 2, sec 5).

VII. MOTIONS

VIII. OBJECTIONS TO PLEADINGS

Q. P sued D and E for reconveyance, with damages, of a parcel of land. After filing his answer, E served on P written interrogatories. Despite the lapse of 1/2 years, the written interrogatories remained unanswered. So on E’s MTD, the court issued an order directing P to answer the written interrogatories within 10 days from receipt of the order. This order having gone unheeded, the court issued another order dismissing the complaint against E. After the order of dismissal had become final, P filed a motion for admission of amended complaint in which E is again impleaded as a defendant on the same cause of action alleged in the original complain, plus and additional cause of action impugning the order of dismissal as being null and void for allegedly having been obtained through fraud. E moves to dismiss amended complaint on the ground of res judicata. Rule on E’s MTD. (10%) A. MTD granted. Dismissal was in effect for failure to prosecute and therefore has the effect of an adjudication on the merits under R17S3. Also, it is arguable that the dismissal is under R29S5 and therefore an adjudication on the merits. The added cause of action in the amended complaint is improper because such an alleged cause of action can be raised only in a motion for new trial or in a R38 petition for relief. [See Arellano v. CFI of Sorsogon; 65 SCRA 46 (1975)] Motion to dismiss: want of jurisdiction

Page 27 of 80 Q. P sued D in the RTC to recover the sum of P20,000.00 plus interest. D answered alleging payment by set-off. After pre-trial but before the case could actually be tried, D filed a motion to dismiss on the ground that the RTC has no jurisdiction over the case. Instead of filing an opposition to D's motion to dismiss, P filed a motion for leave to amend his complaint by including an allegation of a cause of action for P5,000.00 attorney's fees. If you were the judge, how would you resolve D's motion to dismiss and P's motion for admission of his amended complaint? (1993 Midterm Exam I) A. I would grant D's motion to dismiss and deny P's motion to admit amended complaint. (a) A motion to dismiss on the ground of lack of jurisdiction over the subject matter may be filed at any stage of the action. (See Rule 9, Sec. 2); (b) D already having answered, P must have to ask for leave of court to amend his complaint (Rule 10, Secs. 2 and 3). While P's proposed amendment may not alter his cause of action, still the amendment is not allowable because it would have the effect of conferring jurisdiction upon the court. Since the amount alleged in the original complaint does not exceed P20,000.00 excluding interest, the RTC did not acquire jurisdiction over the case, and so the RTC has neither the power nor the jurisdiction to act on the motion for the admission of the amended complaint, much less to allow such amendment, since the court must first acquire jurisdiction over the case in order to act thereon. (see Rosario v. Carangdang, 96 Phil. 845 [1955]). *** take note of the change in jurisdictional amounts Q: Action by P against D in the RTC for damages allegedly suffered by P while a paying passenger in a vehicle owned and driven by D. During the pre-trial, the parties entered into such a comprehensive stipulation of facts that the judge was moved to decide the case on summary judgment. Proper? (5%) A: No. A hearing, on motion duly noticed, is required by Rule 34. (Based on Godala v. Cruz, 88 O.G. 7899 [CA; 1989]).

Motion to dismiss: litis pendentia Q. P filed a complaint in the housing and Land Use Regulatory Board (HLURB) to compel D to release and deliver a condominium certificate of title and to desist from collecting fees for community benefit and to release all such fees collected and for damages. During the pendency of the HLURB case, D filed a complaint against P in the RTC for the collection of fees for administrative and maintenance expenses, common comfort, security and sanitation. P then filed a motion to dismiss the RTC case on the ground of pendency of a similar case before the HLURB. Resolve the motion to dismiss. (1993 Midterm Exam IIa) A. Motion to dismiss denied. Litis pendentia as a ground for dismissal of an action refers to another pending action in a court of justice, excluding an administrative agency. (Puzon Industrial Dev't. Corp. v. Magtolis, CA 89 O.G. p. 2487 [1989]).

Q. A is the owner of a parcel of land pending registration in the RTC of Rizal. He permitted B, a family friend, to construct a small house on the land and to live therein for a period of two years only. The two-year period expired on 1 may 1994, but B failed and

Page 28 of 80 refused to vacate the land. Hence, on 15 June 1994, A filed an action against in the RTC of Rizal for the recovery of possession of the land. B filed a motion to dismiss the case on the ground that there is a pending land registration case involving the said property. Is the motion well founded? (1994 Midterm Exam Ia) A. No lis pendens because no identity of causes of action or rights asserted and reliefs prayed for, so that judgment which may be rendered in one case would not necessarily result in res judicata in the other case. An action for recovery of possession is distinct and different from an action for recovery of title or ownership. Moreover, an RTC, acting as a land registration court, has a limited and special jurisdiction confined to the determination of the legality and propriety of the issue of title. It has no power to entertain issues of rightful possession and claims for damages emanating from ownership. (Medina and Bernal v. Valdellon, 63 SCRA 276 [1975]).

Q. A lessee filed an action in the RTC against his lessor praying for a decree fixing the period of his lease. Before pleading to the complaint, the lessor filed his own complaint for unlawful detainer in the MTC seeking the lessee's ejectment from the premises on the ground of expiry of the term of the lease contract. The lessee moved to dismiss the unlawful detainer complaint on the ground of litis pendentia. Rule on the motion. [1996 Finals II] A. Motion to dismiss denied. Both cases involve the common issue of the lessee's right to possession of the premises, and this issue is better resolved in an unlawful detainer action. What, then, ought to be dismissed is the RTC action and not the unlawful detainer case. The fact that the unlawful detainer action was filed later that the RTC action is of no moment, because section 1(e) of Rule 16 requires only another pending action - not a prior pending action. (Teodoro vs. Mirasol, 99 Phil. 150 [1956]).

Q. P filed a complaint in the RTC-Isabela against D for the recovery of an alleged overpayment for a rice thresher. Later, but before the summons in the Isabela case could be served on D, D filed in RTC-Manila an action against P for collection of the alleged balance on the purchase price of the same rice thresher. P moved to dismiss the Manila case on the ground of litis pendentia. Rule on the motion. [1996 Finals III] A. Motion to dismiss granted. All the requisites for litis pendentia are present. The Isabela action was already a pending action at the time of the filing of the Manila action even though the summons had not yet been served. Reason: A civil action is commenced by the mere filing of a complaint. (Rule 2, sec. 6; Salacup vs. Maddela, Jr., 91 SCRA 275 [1971]). Motion to dismiss: res judicata Q. Discreet Bank extrajudicially foreclosed P's real estate mortgage and itself purchased the property at the foreclosure sale. After the expiration of the one-year redemption period without any redemption being effected, Discreet Bank filed with the Registry of Deeds an affidavit of consolidation of ownership and, consequently, was issued a new TCT. Thereafter, Discreet Bank filed a petition for the issuance of a writ of possession with the RTC and this petition, docketed in the land registration case, was opposed by P and, after a full-dress hearing, the RTC granted the petition and ordered the issuance of a writ of possession. After the decision in this case became final, P filed a complaint against Discreet Bank to set aside the sale of the mortgaged property and cancel the writ

Page 29 of 80 of possession, P reiterating the grounds raised in the opposition to the petition for the issuance of writ of possession. Discreet Bank moved to dismiss this caser on the ground of res judicata, but this motion was opposed by P on the ground that the decision in the writ-of-possession case cannot constitute res judicata because P could not present his objections in that proceeding, the issuance of a writ of possession being purely ministerial with the court and the present action being the correct one to attack the foreclosure sale. The court dismissed this second case, not on the ground of res judicata but for lack of jurisdiction, the court reasoning that P's attack at the foreclosure sale tantamounts to an attack at a final order of the RTC and therefore is within the exclusive jurisdiction of the CA. Several months later, P filed another complaint against Discreet Bank for the annulment of the foreclosure sale and reconveyance of the mortgaged property. As before, Discreet Bank moved to dismiss on the ground of res judicata, arguing that the issues raised in this new case had been resolved in the writ-ofpossession case and in the second case foe the annulment of the foreclosure sale, but this motion was opposed by P on the ground that the dismissal of the second case was not an adjudication on the merits, the dismissal being for lack of jurisdiction and therefore cannot constitute res judicata. (a) Was the ruling on the first motion to dismiss correct? (1993 Midterm Exam IIIa) A. While the hearing in the writ-of-possession case was supposed to be summary , a full-dress hearing was actually conducted and P submitted himself to it. P cannot now therefore be heard to challenge the jurisdiction of the court and to escape or repudiate the effects of its judgment. So, the order in the writ-of-possession case bars the second case on res judicata grounds. (b) Rule on the motion to dismiss the third case. (1993 Midterm Exam IIIb) A. In dismissing the second case for lack of jurisdiction, the court recognized the order of dismissal in the writ-of-possession case as a final one which it could not annul, since the authority to annul such orders pertains to the CA only. This was, by itself, an adjudication on the merits of P's claim because it declared him no longer entitled to the right upon which his claim is based. A judgment is deemed to be rendered upon the merits when it amounts to a declaration of the law as to the respective rights and duties of the parties, based upon the ultimate facts or state of facts disclosed by the pleadings and evidence, and upon which the right of recovery depends, irrespective of formal, technical or dilatory objections or contentions. (De Ramos v. CA, 213 SCRA 207 [1992]) Q. Levy of execution of money judgment in Civil Case No. 12345 was made on property of D and at the execution sale, this property was sold to plaintiff P. Title was consolidated in P after the lapse of the redemption period. Citing what is alleged to be equitable grounds, however, D filed a motion in the said Civil Case No. 12345 that he be allowed to redeem the property or his mother to purchase it; this motion was denied. D then filed another action in the RTC, Civil Case No. 67890, to recover the same property on the ground of promissory estoppel. If you were the counsel of P, what step would you take in Civil Case No. 67890? (1994 Midterm Exam VII) A. I would move to dismiss Civil Case No. 67890 on the ground of res judicata. Both cases involve the same cause of action, the parties are the same, and the addition of D's mother in Civil Case No. 12345 does not militate against the identity of parties between the two cases because the mother represents the same interest as D. (Santos v. CA, 226 SCRA 630 )

Page 30 of 80 Q. P sued D in the MTC for ejectment on the ground of non-payment of rentals. After trial on the merits, judgment was rendered dismissing the complaint upon the finding that D has been paying his rentals on time. Thereafter, P demanded an increase in D's rentals, and upon D's failure to pay the increased rentals, P promptly filed a complaint against D in the RTC praying for his eviction and for damages; the RTC dismissed this complaint for lack of jurisdiction. With the RTC dismissal, P filed an action for unlawful detainer against D in the MTYC based on the same allegations as his complaint in the RTC. D now moves to dismiss this second unlawful detainer complaint on the ground that it is barred by prior judgment. Rule on the motion to dismiss. (1994 Midterm Exam VIIIb) A. Motion to dismiss denied. The second ejectment action is not barred by the decision in the first ejectment case; no identity of causes of action because the ground for ejectment in the second action is for non-payment of different rentals. Nor is the RTC judgment a bar because it is not on the merits. Viray v. Marinas, 49 SCRA 44 (1973). Q. H, husband, filed an action against his wife, W, to have their marriage declared void due to the latter's alleged psychological incapacity to contract marriage. After trial, the action was dismissed. Then, H filed another action against W to have the same marriage declared void for alleged absence of a marriage license. Can the second action prosper over timely opposition? (5%) [2000 Finals IV] A. Depends on whether the ground urged by H in the second action was already known to and could have been raised by H in the first action. (See Rule 39, Sec. 47 [b]): "or as to any matter that could have been raised in relation thereto.") Q. X Bus Company purchased 10 buses from Y Motor Co. covered with promissory notes and deeds of chattel mortgage. Then, Y assigned these notes and deeds of chattel mortgage to A Bank and then subsequently assigned the same notes and chattel mortgages to B Finance Co. Then, when X defaulted on the notes, Y, A and B demanded payment. In view of their conflicting claims against it, X filed in the RTC an interpleader action against Y, A and B praying that the court determine which among them is entitled to payment on the notes. Three days later, B filed an action for replevin with damages against X and Y praying that Y be declared liable to pay B's claim against X in the event that B is not able to recover thereon against X. Defendants moved to dismiss the replevin complaint on the ground of the pendency of the interpleader action. Rule on the motion to dismiss. (5%) [1999 Midterm IX] A. Motion to dismiss granted. There is identity of parties between the interpleader case and replevin case. In the interpleader case, the plaintiff is X and the defendants are Y, A and B, whereas in the replevin case, the plaintiff is B and the defendants are X and Y. In both cases therefore, B, X and Y are parties with the addition of A, but this addition does not retract from the requisite identity. In both cases, the rights spring from the deeds of assignment executed by Y in favor of A and B, covering the same debts of X owing to Y. The identity in both cases is such that any judgment that may be rendered in the interpleader case would amount to res judicata in the replevin case; if judgment in the interpleader case is that the assignment to A would prevail over the assignment to B, such judgment would be binding on the replevin case and undercut B's cause of action in the replevin case. (Sanpiro Finance Corp. vs. IAC, 220 SCRA___ [3rd Div., 1993])

Page 31 of 80 Q. In the belief that the decedent died intestate, X, Y and Z, his nephews, initiated in the RTC an intestate proceeding wherein they obtained an order approving their extrajudicial partition of the estate. But later, X filed a motion to annul the order of approval on the ground that a will of the decedent had been discovered and therein sought its probate. The probate court denied X's motion on its finding that the alleged will had been destroyed and revoked by the decedent. Two months later, X filed a petition in another RTC for probate of the alleged will, but Y and Z moved to dismiss the petition on the ground that it is barred by the judgment of the intestate court finding the alleged will to have been destroyed and revoked. Rule on the motion to dismiss. (10%) [1995 Finals I] A. Motion to dismiss denied. The intestate court had no jurisdiction to entertain the probate of the alleged will in the intestate proceeding and therefore it could not have made a finding that the alleged will had been destroyed and revoked (Casiano v Maloto, 79 SCRA). So, the intestate court not having jurisdiction to make this finding, the petition for probate of the alleged will cannot possibly be barred by res judicata. Q. Enumerate all the ways by which a civil case in our courts may be terminated, with binding and res judicata effect, without a full-dress evidentiary trial where the parties are enabled to present their respective testimonial and other evidence. (10%) [1997 Midterms X] A. 1. judgment on the pleadings 2. summary judgment 3. dismissal on motion of the defendant 4. voluntary dismissal by the plaintiff 5. dismissal for plaintiff's failure to prosecute 6. judgment by default 7. judgment on confession or on compromise 8. judgment on a complete stipulation of facts. Q. P sued A and B to recover a parcel of land. Judgment went for A and B. Then, A sued B to recover the same parcel. Is this second action barred by res judicata? (5%) [1997 Midterms VIIIa] A. It depends. If A's claim against B was already existing at the time of the first action and was a compulsory counterclaim in that case, then the second action is barred under Rule 9, Sec. 4. Otherwise, there is no estoppel because A and B were no adverse parties in the first case and their relative rights and liabilities as co-defendants inter-se were not brought in issue. (Valdez v Mendoza, 89 Phil. 83) Motion to dismiss: improper venue Q. P, a resident of Manila, sued D, also a resident of Manila, in the RTC-QC to collect P500,000 based on a promissory note. The RTC-QC dismissed the action motu proprio on the ground that the parties, being both residents of Manila, it has no jurisdiction over the case. Is the dismissal correct? (5%) [1999 Midterm XV]

Page 32 of 80 A. No, the matter of residence is one of venue only and not of jurisdiction. The court cannot motu proprio dismiss an action for improper venue, a motion being required for that purpose. Venue touches more upon the convenience of the parties rather than upon the substance or merits of the case; it involves no more and no less than a personal privilege which may be lost by failure to assert it seasonably. (See Guzman vs. Batario, 95 O.G. pp. 3477 [CA; 1994]) Q. May a court grant relief greater than that ask for in the prayer of the litigants’ pleading? A.

See R9S3.

In an action in the RTC by the lessee against the lessor to fix a period for his lease, may the RTC entlthough action is for annulment of the contract, the prime objective is to recover the land. Venue should be Bulacan. (Gavieroz v. Sanchez, 94 Phil 9760) R4.1 Motion to dismiss: want of jurisdiction Q. Action by P against D in the RTC for a sum of money was sought to be dismissed by D on the ground of prescription. The motion to dismiss was denied and D brought a special civil action for certiorari in the CA against the order of denial of his motion to dismiss. The CA dismissed the petition. Then, D filed his answer, after which trial was held and judgment rendered against D. On appeal from this judgment to the CA, D filed a Motion to Dismiss the complaint on the ground of lack of jurisdiction, alleging that P had not paid the appropriate docket fees in the trial court. Rule on the motion to dismiss. (5%) [1999 Midterm V] A. Motion to dismiss denied. Although the payment of the proper docket fees is a jurisdictional requirement, the TC may allow the plaintiff in an action to pay these fees within a reasonable time before the expiry of the applicable prescriptive or reglementary period. But if the plaintiff fails to comply with this requirement, defendant should timely raise the issue of jurisdiction or else he would be considered in estoppel. Here, D filed an answer and participated in the proceedings before the TC. It was only after judgment was rendered against him that he raised the issue on jurisdiction. While the lack of jurisdiction ___________________may be raised at any stage of an action, the party raising such question may be estopped if he has actively taken part in the very proceedings which he questions and he only objects to the court's jurisdiction because the judgment or decision consequently rendered is adverse to him. (National Steel Corp.vs. CA, G.R. No. 123215, Feb. 2, 1999 [2nd Div.]) Motion to dismiss: insufficient allegations Q. The complaint simply alleges that D is legally liable to P for damages in a named amount. D moves to dismiss this complaint for failure to state a cause of action. Resolve the motion to dismiss. [1999 UP Barops VIII] A. Granted. The operative or constitutive facts making up the pleaded cause of action are not stated. The only matters pleaded are conclusions of law.

Motion to dismiss: non-compliance with a condition precedent for filing

Page 33 of 80 Q. W sued her husband (H) and X Company to annul a transfer of her paraphernal lot by H to X Company on the claim that the transfer was ultra vires a power of attorney given by W to H. H moved to dismiss on the ground that her complaint did not allege prior efforts towards a compromise. Resolve the motion to dismiss. [1996 Finals I] A. Motion to dismiss denied. The requirement of prior efforts to a compromise does not apply where there is a stranger to the action. (Magbaleta vs. Gonong, 76 SCRA 511 [1977]).

Motion for judgment on the pleadings Motion for summary judgment Q. Where in an action by P against D to recover P3 Million damages for physical injuries allegedly suffered in a vehicular collision, D files an answer which contains nothing but general denials, can P have judgment on the pleadings or summary judgment? (5%) [1999 Midterm XVIII] A. No judgment on the pleadings because of failure to make a specific denial does not amount to an admission of the averments as to the amount of unliquidated damages (Rule 8, Sec. 11) and therefore there is a triable issue of fact (Rule 34, Sec. 1). But summary judgment may be granted if, after notice and hearing, the court should find, on the basis of the pleadings, supporting affidavits, depositions and admissions on file 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) Q. What is plaintiff's best procedural recourse against an answer which pleads no more than negative pregnants? (5%) [1997 Midterms IXa] A. Move for judgment on the pleadings. Q. P sued D to quiet title to a parcel of land claiming to be the owner of the land and to have inherited it from his father. On the other hand, D answered by asserting ownership over the same land in himself by claiming to have inherited it from his own father, the alleged owner. P filed a reply to which was attached a document entitled "Acknowledgment of Ownership" duly signed by D's father and conceding ownership of the land to P's father. After pre-trial, the court rendered summary judgment in P's favor on the ground that the genuineness and due execution of the document annexed to P's reply was not denied by D under oath. Is the summary judgment correct? (1996 Midterm Exam VIII) A. No. In the first place, there was no motion for summary judgment. In the second place, the issue of ownership is a genuine factual issue which has to be resolved by a trial on the merits. There is no admission of the genuineness and due execution of the Acknowledgement of Ownership because this document was signed by D's father and not by D himself and so there was no need for D to deny it under oath. (Cadirao v. Estenzo, 132 SCRA 83 [Second Division, 1984]) (Motion to dismiss: want of jurisdiction) Q. P sued D in the RTC to recover the sum of P20,000.00 plus interest. D answered alleging payment by set-off. After pre-trial but before the case could actually be tried, D

Page 34 of 80 filed a motion to dismiss on the ground that the RTC has no jurisdiction over the case. Instead of filing an opposition to D's motion to dismiss, P filed a motion for leave to amend his complaint by including an allegation of a cause of action for P5,000.00 attorney's fees. If you were the judge, how would you resolve D's motion to dismiss and P's motion for admission of his amended complaint? (1993 Midterm Exam I) A. I would grant D's motion to dismiss and deny P's motion to admit amended complaint. (a) A motion to dismiss on the ground of lack of jurisdiction over the subject matter may be filed at any stage of the action. (See Rule 9, Sec. 2); (b) D already having answered, P must have to ask for leave of court to amend his complaint (Rule 10, Secs. 2 and 3). While P's proposed amendment may not alter his cause of action, still the amendment is not allowable because it would have the effect of conferring jurisdiction upon the court. Since the amount alleged in the original complaint does not exceed P20,000.00 excluding interest, the RTC did not acquire jurisdiction over the case, and so the RTC has neither the power nor the jurisdiction to act on the motion for the admission of the amended complaint, much less to allow such amendment, since the court must first acquire jurisdiction over the case in order to act thereon. (see Rosario v. Carangdang, 96 Phil. 845 [1955]). *** take note of the change in jurisdictional amounts Q: Action by P against D in the RTC for damages allegedly suffered by P while a paying passenger in a vehicle owned and driven by D. During the pre-trial, the parties entered into such a comprehensive stipulation of facts that the judge was moved to decide the case on summary judgment. Proper? (5%) A: No. A hearing, on motion duly noticed, is required by Rule 34. (Based on Godala v. Cruz, 88 O.G. 7899 [CA; 1989]). Q. In an action by P against D in the RTC for sum of money, P obtained a writ of preliminary attachment on defendant's properties. Soon after, trial commenced, D died, and so his heirs moved for the dismissal of the case. Rule on the dismissal motion. (5%) A. Dismissal motion granted. The principal action to which the attachment is merely ancillary, is a money claim and the attachment cannot survive the dismissal of this principal action. {Regala v. CA, 183 SCRA 595 (1990)] Q. Action by P against D in the RTC for the collection of sums of money covered by two promissory notes which were attached to the complaint. There were allegations in the complaint of partial payments of outstanding balance. D duly filed an answer denying all the material allegations of the complaint because " he does not have knowledge sufficient to constitute a belief as to the truth of the allegations contained therein." Would P be entitled to judgment on the pleadings? (10%) Q. X Bus Co. purchased 10 buses from Y Motor Co. covered with promissory notes and deeds of chattel mortgage. Then, Y assigned these notes and deeds of chattel mortgage to A Bank and then subsequently assigned the same notes and chattel mortgage to B Finance Co. Then, when X defaulted on the notes, Y, A and B demanded payment. In view of their conflicting claims against it, X filed in the RTC an interpleader action against Y, A and B praying that the court determine which among them is entitled to payment on the notes. Three days later, B filed an action for replevin with damages against X and Y praying that Y be declared liable to pay B's claim against X in the event

Page 35 of 80 that B is not able to recover thereon against X. Defendants moved to dismiss the replevin complaint on the ground of the pendency of the interpleader action. Rule on the motion to dismiss. A. Motion to dismiss granted. There is identity of parties between the interpleader case an the replevin case. In the interpleader case, the plaintiff is X and the defendants are Y, A and B. In the replevin case, the plaintiff is B and the defendants are X and Y. In both cases, therefore, B, X and Y are parties with the addition of A, but this addition dos not detract from the requisite identity. In both cases, the rights spring from the deeds of assignment executed by Y in favor of A and B, covering the very same debts of X owing to Y. The identity in both cases is such that any judgment that may be rendered in the interpleader case would amount to res judicata in the replevin case; if judgment in the interpleader case is that the assignment to A would prevail over the assignment to B, such judgment would be binding on the replevin case and undercut B's cause of action in the replevin case. (Sanpiro Finance Corp. v IAC, 220 SCRA ... [3rd Div., 1993]) Q. P, a resident of Manila, sued D, also a resident of Manila, in the RTC-QC to collect P500,000.00 based on a promissory note. The RTC-QC dismissed the action motu proprio on the ground that the parties, being both residents of Manila, it has no jurisdiction over the case. Is the dismissal correct? A. No, the matter of residence is one of venue only and not of jurisdiction. The court cannot motu proprio dismiss an action for improper venue, a motion being required for that purpose. Venue touches more upon the convenience of the parties rather than upon the substance or merits of the case. It involves no more and no less than a personal privilege which may be lost by failure to assert it seasonably. (See Guzman v Batario, 95 O.G. pp 3477 [CA 1994]) Q. Where in an action by P against D to recover P3 Million damages for physical injuries allegedly suffered in a vehicular collision, D files an answer which contains nothing but general denials, can P have judgment on the pleadings or summary judgment? A. No judgment on the pleadings because the failure to make a specific denial does not amount to an admission of the averments as to the amount of unliquidated damges (Rule 8, Sec 11) and therefore, there is a triable issue of fact (Rule 34, Sec 1). But summary judgment may be granted if, after notice and hearing, the court should find, on the basis of the pleadings supporting affidavits, depositions, and admissions on file 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)

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

Page 36 of 80 Q.

How does the defendant raise the issue as to his legal capacity to be sued?

A. By moving to dismiss on the ground that the court has no jurisdiction over his person. (Rule 16, sec 1[a]) Q. P sued D to recover possession and ownership of a parcel of land, but this action was dismissed (after the case was scheduled several times for trial) for P's failure to prosecute. After the dismissal order had become final, P brought another action against D for quieting of title over the same parcel of land. D moved to dismiss this 2nd action on the ground of res judicata. Rule on the motion. Motion to dismiss granted. The dismissal had the effect of an adjudication on the merits, the court not indicating otherwise. (Rule 17, sec 3) The judgment in the first case having become final and there being the requisite identity of parties, subject matter and causes of action, res judicata bars second action. (Panado v Cortez, 94 OG 4 [CA;1993]) Q........basis of the decree, in the interpleader suit, A won the ejectment action. B did not appeal this judgment, but prevailed on his earlier appeal from the interpleader decree an was awarded the rents which has been collected. When B sought to bring an ejectment action against A, the latter pleaded res judicata, based on his previous successful ejectment action. Rule on A's invocation of res judicata. A. Res judicata properly applies. The judgment in the ejectment action is final and not open to attack collaterally, but subject to impeachment only through some form of direct attack. The appellate court was limited to a review of the interpleader decree. (Reed v Allen, 26 U.S. 191, 52 S. Ct. 532, 76 L. Ed., 1054 [1932]) Q.

Distinguish "law of the case" from res judicata

Q. Defendant moved to dismiss the complaint on the ground that its allegations are "not sufficient to warrant the relief prayed for." Rule on the motion to dismiss. A. 1Motion to dismiss denied. This is not a ground for a motion to dismiss, and the prayer is part of the complaint and, save in case of default, is of no importance. (Camponanes v Bartolomen, 38 Phil 608). Q. P, a resident of Manila, filed a complaint against D, a resident of Iloilo, in the RTCManila. This complaint contains 2 causes of action, one for money, and the other for title to real property in Baguio, both causes of action arising out of the same transaction between the parties. Is there anything procedurally wrong with the complaint? A. There is misjoinder of causes of action, and therefore the court should order their separation so that each cause of action may proceed independently of the other. While joinder of causes of action is allowed, the cause of action for title to property in Baguio...mislaid. (Rule 2, secs 5 [c] and 6)

IX.

DISMISSALS AND DEFAULTS

Page 37 of 80 Q: In his effort to unclog his docket and coming across the record of Special Proceedings No. 801, a guardianship case involving a minor with properties worth more than a million pesos, and finding the said case to have been pending since way back in 1983, after petitioner had presented one witness only, following the appointment of X as guardian, Judge Y of the Nueva Ecija Regional Trial Court dismissed the case for failure to prosecute. Is the order of dismissal valid? (5%) A: Based on 1985 Bar Exam. No. A guardianship case involving a minor continues until the minor has reached the age of majority. It cannot therefore be dismissed for failure to prosecute. Q: Does dismissal of a complaint on plaintiff's motion carry with it the dismissal of defendant's compulsory counterclaim? (5%) A: No, the dismissal "shall be limited to the complaint." (Rule 17, Sec. 2) Q: P sued D to compel the latter to execute a deed of sale to him over a parcel of land the purchase price of which had allegedly already been fully paid by P. After his motion to dismiss on the ground of prescription was denied, D filed his answer in due course and thence trial was held. After trial, judgment was renderd against D who then filed a motion to dismiss for lack of jurisdiction on the ground that P did not pay the correct docket fees which should have been assessed on the basis of the value of the property and damages sought and not on the basis of the action as one for specific performance when it was actually for recovery of property. Rule on the motion to dismiss. (10%) A: Motion to dismiss denied. In the first place, the action is really for recovery of real property and not for specific performance since P's primary objective is to regain the ownership and possession of the parcel of land. In the second place, although the payment of the proper docket fees is a jurisdictional requirement, the trial court may allow the plaintiff to pay the same within a reasonable time before the expiration of the applicable prescriptive or reglementary period. In any event, the balance between the appropriate docket fees and the amount actually paid by the plaintiff will always be considered a lien on any judgment P may obtain. Thirdly, the motion to dismiss came too late. D is already estopped from raising the issue of jurisdiction after he had actually taken part in the very proceedings which he questions and after the court had rendered a judgment adverse to him. (See National Steel Corp. vs. Court of Appeals, 302 SCRA 522 [2nd Div.; 1999]) Q: Where the defendant has been declared in default, does the plaintiff still have to present evidence to support his complaint in order for him to obtain judgment thereon? (5%) A: No need. The Court may render judgment granting plaintiff such relief as his pleading may warrant unless in its discretion the court requires him to submit evidence. (Rule 9 Sec. 3) Dismissals Q. Action by P against D in the RTC for recovery of a parcel of land. After joinder of the issues but before actual trial, P filed a manifestation that he is no longer interested in prosecuting his complaint provided, however, the defendant foregoes with his counterclaim. D filed a counter-manifestation agreeing to the dismissal of the complaint and his counter claim. Whereupon, the RTC issued an order dismissing plaintiff’s complaint and defendant’s counterclaim without costs. P’s successor-in-interest now

Page 38 of 80 sues to recover the same parcel, and D’s successor-in-interest moves to dismiss this new complaint on the ground of res judicata. If you were the judge, would you grant the motion to dismiss? (1994 Midterm Exam IIa) A. No. Dismissal of the first case was without prejudice. The dismissal having been at plaintiff's instance and not having specified that it was with prejudice, it is one "without prejudice" within the meaning of Sec. 2, Rule 17. Vergara v. Ocumen, 114 SCRA 446 (1982). Q. Relying on a document of sale, P sued D in the RTC to recover ownership of a parcel of land. For failure of P to amend his complaint conformably to an order of the court, the complaint was dismissed. A month thereafter, P re-filed the same complaint in the RTC, and this complaint is now met with a motion to dismiss by D on the ground of res judicata. Resolve the motion to dismiss. (1994 Midterm Exam VIIIa) A. Motion to dismiss granted. The dismissal of the first case was with prejudice pursuant to Section 3, Rule 17. Therefore, all requisites for res judicata are present. (Enriquez v. Boyles, 226 SCRA 666 3rd Div., 1993) Q. May a court dismiss an action for failure of plaintiff's lawyer to appear at the trial despite due notice? (5%) A. No. R17S3 does not authorize a dismissal on the ground of absence of counsel. What the court should do is to grant the plaintiff and hour or two to engage the services of a new lawyer. [Dayo v. Dayo; 95 Phil 703 (1954)] Defaults Q. In an action by P against D in the RTC for a sum of money, summons with copy of the complaint was served on D on 22 April 1995. For filing his answer one month later without any previous extension of his time to plead and on P's motion, the RTC declared D in default and thereafter rendered judgment by default against him. After his motion for reconsideration of the default order was denied, D went to the Ca on certiorari and prohibition to challenge the default order. Is D's petition tenable? (1996 Midterm Exam VIb) A. No. Certiorari and prohibition are improper because D has till an appropriate remedy by way of a Rule 38 petitions for relief. (See Lina v. CA, 135 SCRA 637 [1985]) Q. Due to personal injuries suffered in a vehicular collission, P sued D for P300,000 in actual damages, P1 Million in moral damages, P1 Million in exemplary damages and P500,000 for attorney's fees. Assuming that D is declared in default, how much can the court properly award P? (5%) [1999 Midterm XIII] A. Nothing, except probably such attorney's fees as the court may find reasonable. Unliquidated damages cannot be awarded against a party declared in default. (Rule 9, Sec. 3[d]) Q. Due to personal injuries suffered in a vehicular collision, P sued D for P300,000.00 in actual damages, P1 Million in moral damages, P1 Million in exemplary damages and P500,000.00 for attorney's fees. Assuming that D is declared in default, how much can the court properly award P?

Page 39 of 80 A. Nothing, except probably such attorney's fees as the court may find reasonable. Unliquidated damages cannot be awarded against a party declared in default. (Rule 9, Sec 3[d]). Q. Do you see any advantage that plaintiff may gain by obtaining a voluntary dismissal of his complaint before the court can act on defendant's motion to dismiss the same complaint for failure to state a cause of action? A. Dismissal for failure to state a cause of action is an adjudication on the merits and has res udicata effect, whereas a voluntary dismissal before answer is not. Besides, the court might award attorney's fees even as it dismisses the case for failure to state cause of action, and plaintiff can avoid this possibility by having the case dismissed. Q.

In what instances may a judgment by default be rendered against defendant?

A. (1) When defendant has been declared in default for failure to answer within the reglementary period. (Rule 9, sec 3). (2) When defendant refuses to obey discovery order. (Rule 29, Sec 3[a]) Q. Where the defendant was declared in default despite the fact that he had not been duly summoned, does he still have to demonstrate a "meritorious defense" as a condition precedent to setting aside the default order? A. No more. The default judgment is illegal and the motion to set it aside does not have to be accompanied by an affidavit of merit. (Ponio v IAC, 133 SCRA 577, 2nd Div [1994]) Besides, the theory of the requirement that there would be no purpose served by re-opening the judgment if defendant would simply lose on the merits in any event does not apply because had the defendant been notified of the suit, he might have worked out a settlement, or paid the debt, or himself raised enough funds to pay the debt, rather than to suffer its being sold at a sheriff's sale. (See Perlata v Heights Medical Center, Inc, 485 US 80, 108 S. Ct. 896, 99 L2nd 75 [1988]) X.

PROVISIONAL REMEDIES

Q. P sued D in the RTC on a claim for P300,000.00 and obtained a writ of preliminary attachment on D's property. The sheriff attached a Mercedes Benz car found in D's garage. Then, T, a brother of D, filed with the sheriff a third party claim, T swearing in his affidavit of third party claim that his right to the possession of the Mercedes Benz car is derived from the fact that D purchased this car with funds borrowed from him. What action, if any, should the sheriff take on T's third party claim? (5%) A. The sheriff should just ignore T's third-party claim. The affidavit is insufficient under R57S14 to cause discharge of the attachment because the claimant alleged that he was a mere creditor of the attachment debtor. T does not claim to have a title to or a lien on, the attached property which would entitle him to its possession. [See Weadcock v. Ofilada; 84 Phil ___ (1949)] Q: Can a temporary restraining order be issued ex-parte? (5%)

Page 40 of 80 A: Yes, but effective for 72 hours only and this is to be issued by the executive judge of a multiple-sala court or the presiding judge of a single-sala court and only if the mater is of extreme urgency and the applicant will suffer grave injustice and irreparable injury. (Rule 58, Sec. 5, 2nd par.) Q: In an action for a sum of money, P obtained a writ of attachment and levied it on D's properties. D filed an answer, in which he asserted prescription of P's alleged cause of action as one of his affirmative defenses and on which he sought a preliminary hearing. D also pleaded a counterclaim where he prayed for damages arising from the attachment which he claimed was maliciously obtained and implemented. After the hearing on D's affirmative defense of prescription the court found that P's cause of action had already prescribed and therefore ordered the dismissal of the complaint as well as D's counterclaim which it said could not remain for independent adjudication. With the dismissal of the counterclaim, can D still recover damages against the attachment bond for illegal attachment? (10%) Preliminary Injunction Q. P bought a house and lot from X, with a balance remaining on the purchase price but which balance was secured by a mortgage on the premises. Then, P sued D, an occupant, in the RTC to recover possession of the house and lot. After due trial, the RTC rendered judgment for P and ordered D to vacate and deliver the premises to P. A writ of execution was, in due course, issued for this judgment. However, before the writ of execution could be carried out, D, claiming to be an assignee of X's mortgage, filed in another RTC a suit for foreclosure of the mortgage, with prayer for preliminary injunction. Should D be granted a preliminary injunction to enjoin his eviction under the judgment in the first case? (1994 Midterm Exam V) A. No. P, as the prevailing party in the first case, is entitled as a matter of right to a writ of execution. Moreover, D does not have a clear right in esse which deserves protection by an injunction; he claims the right to foreclose the mortgage by virtue of a supposed assignment to him by X of the balance of the purchase price secured by a mortgage on the premises. D's right to foe close has yet to be established and an injunction is not the instrument to do this. Ulang v. CA, 225 SCRA 637 (2nd Div., 1993). Q. In a petition for relief in the RTC against an RTC money judgment (already final and executory), the RTC issued a preliminary injunction enjoining the execution of the decision. After due hearing, the RTC dismissed the petition for relief, and petitioner appealed the dismissal order to the CA. While the appeal is pending, may the judgment sought to be set aside on the petition for relief be executed? (5%) [1997 Midterms VIIa] A. No. The preliminary injunction has not been dissolved and is still in force. Rule 39, Sec. 4 refers to an injunction as a principal remedy and not to a preliminary injunction issued as an auxiliary remedy which auxiliary remedies are not dissolved unless the trial court expressly says so. For the trial court to have dissolved the preliminary injunction here would have mooted the appeal. (Dimaunahan v Arnas, 74 Phil. 155) PROVISIONAL REMEDIES (Preliminary injunction) PLEADINGS (Counterclaim and cross-claim)

Page 41 of 80 Q. In an action by P against D for prohibition, P obtained a writ of preliminary injunction against D. On certiorari to the SC, the writ of preliminary injunction was nullified on the ground that the petition was premature because P had not exhausted his administrative remedies. Taking his cue from the SC decision, D filed a motion to dismiss the complaint for failure to state a cause of action and the motion was granted. After this dismissal order became final, D filed an action against P to recover damages resulting from the issuance of the preliminary injunction in the first case. P now moves to dismiss the damage action on the ground that it is barred for not having been set up as a compulsory counterclaim in the prohibition case. Rule on P's motion to dismiss. (1996 Midterm Exam III) A. Motion may be tolerably argued both ways. Arguable that D had waived his claim for damages resulting from the unlawfully issued injunction by having moved to dismiss the complaint in which he had a compulsory counterclaim. (See Int'l Container Services, Inc. v. CA, 214 SCRA 456 [First Div., 1992]). It is also arguable however that the case is assimilable to one where the principal case was dismissed for lack of jurisdiction in which no claim for damages could have been presented in that case so that this independent action for damages for the illegal injunction is not abated (See Santos v. CA, 95 Phil. 360 (1954]) Q. Suppose the main case is dismissed by judgment after trial and this judgment is appealed, what happens pending appeal to a writ of preliminary injunction issued by the trial court while the case was pending with it? (10%) A. The preliminary injunction is not ipso facto dissolved if the judgment of dismissal is silent on the matter as, otherwise, the case will become moot despite the appeal. So, the preliminary injunction is dissolved only if the court expressly says so. [Dimaunahan v. Aranas; 74 Phil 455, 460 (1943)]. The rule is different in case of a permanent injunction, in which case R39, S4 expressly providing that the judgment granting, dissolving, or denying the injunction is immediately operative. Q. Can the MTC issue a writ of preliminary mandatory injunction in an action of unlawful detainer? (5%) A. No. Art. 359, NCC authorizes an MTC to issue a writ of preliminary mandatory injunction in forcible entry cases only. Q. P, a resident of San Juan, Metro Manila, entered into an agreement with D, a resident of Quezon City, respecting a piggery business in Marilao, Bulacan. They quarreled over the management and control of the business, and so P sued D in RTC-QC which issued a preliminary injunction restraining D, his nominees, and all persons claiming under him from entering the piggery compound in Marilao, Bulacan. D moved to lift the preliminary injunction on the ground that it is sought to be enforced beyond the territorial jurisdiction of the RTC-QC. Resolve the motion. A. Motion to lift denied. An injunction to restrain acts committed outside the territorial jurisdiction of the issuing court is valid where the principal business addresses of the parties and the decisions on the acts to be restrained are located and originated within the court's jurisdiction. (Embassy Farms, Inc. v CA, 188 SCRA [1990], 2nd Div.)

Page 42 of 80 XI.

DISCOVERY

Q: "work product rule" A: The rule which immunizes from discovery the notes, impressionss and other work product of the lawyer gathered or obtained in preparation for litigation.

Depositions Q. (a) Can a party take the deposition of a person without any showing that the deponent will be unavailable as a witness at the trial? (b) If so, can such deposition be used in evidence? (1994 Midterm Exam IVab) A. (a) Yes. Availability of the deponent as a witness at the trial will affect the party's right to use the deposition - not his right to take it. See Dasmarinas Garments, Inc. v. Reyes, 225 SCRA 822[2nd Div.], 1993). (b) Yes, under the conditions and for the limited purposes stated in Section 4, Rule 24. Q. Suppose P had introduced in evidence a pre-trial deposition of D's general manager which contained a statement that the company had no budget for the current year for repair of their vehicles, may P thereafter (i.e., after the general manager had testified for D) introduce evidence that the general manager's reputation for truth and veracity is bad? [1999 UP Barops I] A. Yes, by using the deposition as substantive evidence, P had not thereby made the general manager his own witness (Rule 24, Sec. 8). Hence, the impeachment of D's witness by reputation evidence is still open to P. Moreover, by presenting the general manager's deposition, P in effect made this general manager an adverse-party witness under Rule 132, Sec. 12 and so he may be impeached by P as if he was called by D. Q. Since a deposition officer cannot rule on objections to evidence, what would be the point of raising any objection to evidence at the deposition-taking? (5%) [1997 Midterms VIIb] A. See Rule 24, Sec. 29 (e). Request for admission Q. Where the defendant fails to answer a request for admission served on him by plaintiff asking for admission of all the material allegations of the complaint, what is the plaintiff's best procedural recourse? (5%) [1999 Midterm VI] A. He should file a motion for summary judgment because the material allegations of the complaint are not disputed. (See Allied _______Business Development Co., ______vs. CA, GR No. 11843__, Dec. 4, 199_)

Page 43 of 80 Q. May discovery still be resorted to by a party litigant even after the promulgation of final and executory judgment? (5%) A.

Yes. See R39, Sections 38-40.

Q. Does a party litigant enjoy any discovery rights after the promulgation of final and executory judgment? (5%) A.

Yes. See R39 Secs. 38-40.

Q. Where the defendant fails to answer a request for admission served on him by plaintiff asking for admission of all the material allegations of the complaint, what is plaintiff's best procedural recourse? A. He should file a motion for summary judgment because the material allegations of the complaint are not disputed. (See Allied... Business Development Co. v CA, GR No. 118436) Q. The court issued a subpoena duces tecum ordering the defendant "to bring with her whatever document is in her possession relative to this case." Is it possible to quash this subpoena duces tecum and, If so, on what grounds? A. Yes. On 2 grounds, to wit: 1) it is unreasonable and oppressive as it requires the production of numerous books, documents or things that are not properly described or identified; or, 2) if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. (Rule 21, Sec 4; Uy v Aleonar, 94 O.G. p 1971 [ 1993; CA ])

XII. PRE-TRIAL Q. The complaint was dismissed for failure of the plaintiff to appear at the pre-trial despite due notice. May he re-file the complaint? (5%) [1997 Midterms VIb] A. No. The dismissal for non-suit is effectively for failure to prosecute and is therefore an adjudication on the merits under Section 3 of Rule 17. XIII. TRIAL Subpoena Q. May a court order the immediate arrest of a witness who has failed to obey a subpoena in a case pending with it? (1996 Midterm Exam Xb) A. No. Failure to obey subpoena constitutes indirect not direct contempt for which the alleged contemnor could not be adjudged guilty without hearing. Properly, the court should first issue an order requiring the alleged contemnor to show cause why he should not be punished for disobedience to its process in order to give him a chance to explain his failure to appear as witness. See Gardones v. Delgado, 58 SCRA 581 (1974).

Page 44 of 80 Q. How can you, as a party to a civil action, access a document under the control of a non-party? [1999 UP Barops VII] A. By subpoena duces tecum. Demurrer to evidence Q. Action to collect on a promissory note. At the trial, plaintiff presented the note through its records custodian who had no personal knowledge of the transaction. After plaintiff rested, the defendant filed a demurrer to evidence on the ground that plaintiff's evidence was merely hearsay. The trial court granted the demurrer. On appeal, however, the CA reversed and remanded the case to the trial court for further proceedings. Did the CA act correctly? (10%) [2000 Finals I] A. No. CA should have rendered judgment on the basis of the evidence submitted by petitioner. The evidence was sufficient to support plaintiff's claim. Even if plaintiff's witness had no personal knowledge of the promissory note, this note is still admissible to prove its existence and its tenor as these facts are of independent relevance. Under section 1, Rule 33, defendant is deemed to have already waived his right to present evidence as, by filing a demurrer, he is deemed to have elected to stand on the insufficiency of plaintiff's evidence. (Radiowealth Finance co. v. Del Rosario, GR No. 138739, July 6, 2000) Q. May a court dismiss an action for failure of plaintiff's lawyer to appear at the trial despite due notice? (5%)

XIV. JUDGMENTS Q. When is a judgment of a trial court considered to have been promulgated? (5%) [1995 Finals IIa] A. In civil cases, upon the filing with the clerk of court of the signed decision. In criminal cases, upon the reading of the judgment in the presence of the accused and of any judge of the court in which it was rendered. Judgment on the merits Q. In a suit on promissory notes which stipulated that the interest due shall be compounded quarterly, the RTC rendered judgment ordering D to pay P the notes with 18% interest per annum. After the judgment became final and executory, D tendered to P an amount in full payment of the judgment debt but P rejected this tender on the ground that per P’s computation the judgment debt was much more. The difference between the two amounts arises from the disagreement as to whether the judgment allowed quarterly compounding of interest; P said that it did, but D claimed it did not. D then consigned the amount with the trial court under a motion praying for a ruling that the judgment did not allow quarterly compounding of interest, but P opposed the motion on the ground that the interest due must be compounded on a quarterly basis since such is the intention of the court and is necessarily implied from the findings of fact in the body of the decision. The trial court issued an order denying the “Consignation and Motion” filed by D and holding that P was entitled to compound interest quarterly even if the judgment did not provide for such compounding in its dispositive portion, the reason

Page 45 of 80 being that such ambiguity is clarified in the body of the decision. Is this order valid? (1994 Midterm Exam X) A. No. The settled doctrine is that if there is a conflict between the body of the decision and the dispositive part, the latter should prevail. It is only when there is an ambiguity in the dispositive part that the court may resort to the body of the decision to clarify the ambiguity. But this doctrine applies only when there is a conflict between the body and the dispositive portion. Here, however, the dispositive part is of the judgment is clear and unambiguous, so that there is nothing to interpret or clarify even if it is in conflict with the statements in the body. In such a case the rule is clear, it is the dispositive part that should prevail. The judgment here is clear for the payment of interest at 18% per annum; it cannot be taken to be an interest to be compounded quarterly. What actually happened may be an oversight on the part of the trial judge in not including in the judgment a provision for the payment of compound interest on a quarterly basis. There is a parallel neglect on the part of counsel for P in not seeking a modification of the judgment before it became final and executory. The error cannot be cured by amendment; it is not a mere clerical error but a judicial error. Garcia v. Amin 90 O.G. 2095 (CA, 1990) Nunc pro tunc judgments Q. Service of summons was made by a PNP policeman in the municipality where the defendant resides. At plaintiff's behest, an affidavit was executed by the former presiding judge of the issuing court that he had issued an order authorizing service of summons by the policeman but the court record showed no such approval. So, plaintiff, submitting this affidavit to the court, moves for the issuance of an order nunc pro tunc stating the requisite authority for service of summons by this policeman. Should this motion be granted? (1996 Midterm Exam IIb) A. No. A nunc pro tunc entry is an entry made now of something which was previously done to have the effect as of the former date. Without some visible data in the record of the issuance of such an order, a nunc pro tunc entry is not justified. (lichauco v. Tan Pho, 51 Phil. 662 [1923]) Judgments by compromise and upon confession Q. On 01 July 1985, the RTC issued judgment, which was duly served on the parties one week later, based on compromise between P and D Corporation under which D was supposed to make payments to P. On 14 February 1992, due to D's alleged failure to make some of the payment required under the compromise judgment, P filed an action in the same RTC to compel D to make these payments. In answering the complaint, D admitted the promulgation of the compromise judgment but alleged that it was entered into by its then President without the requisite authority of the stockholders and that it was therefore ultra vires. Can this defense still be entertained? (1996 Midterm Exam VIa) A. No more. The compromise judgment was immediately final and executory and its validity cannot be assailed collaterally unless the ground of attack is lack of jurisdiction or an irregularity apparent on the face of the record or because it is vitiated by fraud. (Cadano v. Cadano, 49 SCRA 33 [1973]) Q. Can a party move to set aside a compromise judgment? If so, how and on what grounds? [1996 Finals V]

Page 46 of 80 A. Only thru a Rule 38 petition for relief and on the grounds stated in this Rule. A Rule 37 motion, which presupposes a non-final judgment, is not available because a compromise judgment is immediately final and executory. (Samonte v. Samonte, 64 SCRA 524 [1975]). Declaratory judgments Q. May a third-party complaint be filed in an action for declaratory relief? [1996 Finals IV] A. No. A petition for declaratory relief seeks no positive or affirmative, much less any material, relief beyond the adjudication of the legal rights which are subject of the controversy between the parties. But in a third-party complaint, the defendant or third-party plaintiff is supposed to seek contribution, indemnity, subrogation or any other relief from the third-party defendant in respect to the claim of the plaintiff against him. (Commissioner of Customs vs. Cloribel, 77 SCRA 459 [1977]). Q. Both plaintiff and defendant were duly served copies of the decision on July 1. Neither party appeals or files a motion for new trial or reconsideration. When does this decision become final? A. 2)

Upon the date of entry of this decision in the book of entries of judgments. (Rule 36, sec

Q. A railroad collision injures 50 passengers all of whom bring separate actions against the railroad. After the railroad wins the first 25 suits, a plaintiff wins in suit 26. Should not the doctrine of "collateral estoppel" be applied to allow plaintiffs 27 through 50 automatically to recover? A. No. It would be unfair to the defendant railroad since suit 26 may have been for small or nominal damages only so that the railroad had little incentive to defend vigorously. Besides, the judgment relied upon in suit 26 as a basis for the estoppel may itself be inconsistent with one or more previous judgments in favor of the defendant. Q.

May judgment be rendered in the alternative?

A. Yes. E.g. in a replevin case, the judgment is in the alternative for the delivery of the property or for its value in case delivery cannot be made. (Rule 60, sec 9) XV. REVIEW AND CORRECTION OF TRIAL COURT ERRORS

Q. Action for breach of contract by P against D in the RTC. On D's motion, the initial trial was postponed 5 times. On the 6th resetting of the case for trial, neither defendant nor his lawyer appeared although a messenger of defendant's lawyer filed then and there a motion for postponement by D's lawyer on the ground that he has another hearing on the same date and time in an out-of-town court. The court denied the motion for postponement and allowed P to present his evidence ex-parte and considered D to have waived his right to present evidence. Thereafter, the court considered the case submitted for decision. About two months later, the court rendered a decision in favor of P and against D. D then filed a petition for certiorari with the Court of Appeals claiming that the RTC had acted with grave abuse of discretion in denying his motion for postponement and declaring him as having waived his right to present evidence. While

Page 47 of 80 this petition was pending in the CA, defendant perfected his appeal from the RTC's decision to the CA also. P, appearing now as private respondent on the certiorari petition, moved in the CA for the dismissal of the petition on the ground that D had lost his right to avail of the remedy of certiorari when he perfected an appeal from the RTC decision. Resolve P's motion to dismiss the certiorari petition. (10%)

Q. When is a Motion for Reconsideration of an RTC judgment considered pro forma, and what is the risk to the movant in filing such a motion? (5%) A. If based on R37S1(c), a motion for reconsideration is pro-forma if it does not point out specifically the findings of conclusions in the judgment which are not supported by evidence or which are contrary to law, making express reference to the pertinent evidence or legal provisions. [Alvero v. Dela Rosa; 76 Phil 428, 435] If a second MR where it is not based on a ground not existing or not available where 1st MR was made (R37S4; City of Cebu v. Mendoza 62 SCRA 440 (1975)] It is also pro-forma when it has no notice of hearing or a defective notice of hearing. A proforma MR will not interrupt period of appeal.

Extraordinary remedies (prerogative writs: certiorari, prohibition and mandamus) as modes of review) Also PROVISIONAL REMEDIES (Replevin) Also PARTIES (New/additional parties: Intervention) Q. P filed a complaint for the recovery of two barges from the possession of the Philippine Coast Guard seeking the issuance of a writ of replevin for the purpose. The trial court, after the filing by P of the requisite bond, issued a writ of replevin for the seizure of the two barges which in the meanwhile were sold to a third party. Meanwhile, X filed a motion for intervention, claiming ownership over the two barges which it allegedly acquired form P in a public auction sale. The trial court denied X's motion for leave to intervene and ordered the release of the barges to P. Dissatisfied with this order, X filed a petition for certiorari in the Court of Appeals contending that the trial court gravely abused its discretion in denying X's motion for leave to intervene. How should the Court of Appeals resolve the certiorari petition? (1994 Midterm Exam VI) A. The Court of Appeals should deny the certiorari petition because other adequate remedies were available to petitioner; for instance, a motion for reconsideration of the order for the issuance of writ of replevin, or X could have filed a third-party claim over the barges under Section 7, Rule 60, or, of course, X could have instituted the proper action to vindicate its claim to these barges. But back to the merits of the motion for intervention, the Rules allow such intervention only where it will not unduly delay or prejudice the adjudication of the rights of the original parties and where the intervenor's rights may not be filly protected in a separate proceeding. Here, the barges had already been sold to a third party and to allow X to intervene in the replevin suit would merely make the proceedings unnecessarily complicated and new and unrelated issues on conflicting claims of ownership, authenticity of documents of title and regularity in the mode of acquisition thereof may be expected to be raised. (Big Country Ranch Corp. v. CA, 27 SCRA 161 [ 2nd Div.], 1993)

Page 48 of 80 Q. Suppose the main case is dismissed by judgment after trial and this judgment is appealed, what happens pending appeal to a writ of preliminary injunction issued by the trial court while the case was pending with it? (10%) A. The preliminary injunction is not ipso facto dissolved if the judgment of dismissal is silent on the matter as, otherwise, the case will become moot despite the appeal. So, the preliminary injunction is dissolved only if the court expressly says so. [Dimaunahan v. Aranas; 74 Phil 455, 460 (1943)]. The rule is different in case of a permanent injunction, in which case R39, S4 expressly providing that the judgment granting, dissolving, or denying the injunction is immediately operative. Q: By sheer coincidence, Atty. Lopez was on the same day, 30 June 1991, served with adverse decisions of the Court of Appeals and the Regional Trial Court. In each case, he filed a motion for reconsideration simultaneously on 10 July 1991. He received notices of the denial of his two motions for reconsideration on 15 August 1991. If Atty. Lopez decides to appeal in each of the two cases (a) What mode of appeal should he pursue in each case? (b) How would he perfect each appeal? (c) Within what time should each appeal be perfected? (10%) A: (a) (1) From the Court of Appeals to Supreme Court - appeal by certiorari under Rule 45. (2) From the Regional Trial Court to Court of Appeals - ordinary appeal on questions of fact and law. (3) From the Regional Trial Court to Supreme Court - appeal by certiorari on questions of law only. (b) (1) From Court of Appeals to Supreme Court, by filing a petition for review on certiorari with the supreme Court and serving a copy on the Court of Appeals and the adverse party. (2) From Regional Trail Court to Court of Appeals by filing a notice of appeal with Regional Trial Court and serving a copy on the adverse party. (3) From Regional Trial Court to Supreme Court, by filing a petition for review on certiorari with Supreme Court and serving a copy on the lower court and the adverse party. (c) (1) From Court of Appeals to Supreme Court, on or before 30 August 1991, or fifteen days from notice of the denial of the motion for reconsideration. (Sec. 1 of Rule 45) Q: On what grounds may the trial court dismiss an appeal taken from its decision? (5%) A: On two (2) grounds only, to wit: (a) for having been taken out of time, or (2) for non-payment of the docket or other lawful fees within the reglementary period. (Rule 41, Sec. 13, as amended, effective 01 May 2000)

Page 49 of 80 Q: Defendant, who was served the MTC's adverse judgment in an ejectment case on 01 June 2000 moved on 03 June 2000 for reconsideration of this adverse decision. The MTC's order denying the motion for reconsideration was served on defendant on 20 June 2000. Then, on 27 June 2000, defendant filed a notice of appeal from the ejectment decision to the RTC. Is the appeal timely filed? (5%) A: No. The ejectment decision having presumably been rendered by the MTC under the Revised Rule on Summary Procedure, a motion for reconsideration is a prohibited pleading. (1991 revised Rule on Summary Procedure, Sec. 19 [c]). So, the filing of this motion did not suspend or toll the running of the period for finality of the ejectment decision which thus became final on 16 June 2000. Q: Does an appeal from a final judgment of the RTC stay the enforcement of this judgment? (5%) A: Yes, unless it is an appeal from a judgment of the RTC in the exercise of its appellate jurisdiction over a civil case governed by the Revised Rule on Summary Procedure. (1991 Revised Rule on Summary Procedure, Sec. 21; Rule 70, Sec. 21) Q: "material data rule" A: Rule 41, Sec. 6. Q: An ejectment complaint was dismissed by the MTC for plaintiff's alleged failure to establish his pleaded cause of action. On appeal, the RTC affirmed in a decision which reasoned that defendant-tenant had not defaulted in the payment of rentals and that the lease had a fixed term. On reconsideration, the RTC reversed in a decision as follows: "Considering the grounds for plaintiff-appellant's motion for reconsideration, the defendant-appellee's opposition and reply to opposition, the decision of this court is hereby reconsidered, thereby reversing the decision of the court a quo and instead a decision is now rendered in favor of plaintiff-appellant and against the defendantappellee as pryaed for in plaintiff-appellant's complaint." Is the decision valid? (5%) A: No. It does not, contrary to Section 1 of Rule 31 and Section 14 of Article VIII of the Constitution, state the law and facts on which it is based (Based on Anasco v. Judge of RTCPasig, 88 O.G. 8018 [CA; 1989]) Q. What are the ways by which a final and executory judgment may be attacked? (5%) [1999 Midterm XIV] A. a.) By petition for relief; b.) By direct action to annul and enjoin the enforcement of the judgment where the alleged defect is not apparent on its face or from the recitals contained in the judgment; c.) By special civil action of certiorari; and d.) By collateral attack where that challenged judgment is void upon its face or its nullity is apparent from its own recitals. (See Filinvest Credit Corp. vs. IAC, 207 SCRA 59 [1st Div., 1992]) Q. Distinguish between a petition for certiorari as a special civil action and a petition for certiorari as a mode of appeal. [1999 UP Barops XI]

Page 50 of 80 A. a.) As a mode of appeal it should be filed within 15 days from notice of the judgment or of denial of the motion for reconsideration filed in due time. (Rule 45, Sec. 2). As special civil action, it may be filed within 60 days from notice of the judgment. (Rule 65, Sec. 4) b.) The grounds are different. (See Rule 45, Sec. 6 and Rule 65, Sec. 1) As a mode of appeal, the respondent court need not be made a party to the petition; as a special civil action, the respondent court should be made a party to the petition. Appellate proceedings; review and correction by another court on appeal Q. Is an order denying a motion for reconsideration of a final and appealable judgment itself appealable? (1996 Midterm Exam Ib) A. Arguably not. Otherwise, a party's period to appeal from the final judgment may be unduly extended whereas the time during which the motion for reconsideration was pending is supposed to be merely deducted from the time to appeal, except in the case of a motion for reconsideration of a CA decision which under Rule 45 completely tolls the time to appeal. Q. In an action by P against D, the RTC rendered judgment which was served on P on 01 July 1995 and on D on 05 July 1995. On 20 July 1995, D filed his notice of appeal from this judgment to the CA, and on the same date P filed a motion fro reconsideration of the same judgment. Is P's motion for reconsideration timely? (1996 Midterm Exam IVa) A. No. The decision had become final in respect to P. The clause "upon the expiration of the last day to appeal by any party" in Sec. 23 of the Interim Rules refers to D whose period to appeal has not yet expired, P's period to appeal having expired on 16 July 1995. (see Abe Industries, Inc. v. CA, 162 SCRA 48 [2nd Div., 1988]) Q. Is there any case where an appeal may be made to the SC by notice of appeal? (1993 Midterm Exam IVa) A. No answer Q. What should the CA do to an appeal by notice of appeal from the RTC to it when the appellant raises issues of law only, or to an appeal by notice of appeal from a judgment of the RTC in the exercise of its appellate jurisdiction? (1993 Midterm Exam IVb) A. No answer Q. Is there any decision of the MTC in civil cases which is directly reviewable by the CA? (1993 Midterm Exam VIa) A. No answer Q. In civil cases, where should the appellant pay the appellate court docket fee what is the effect of non-payment of such fee? (5%) [2000 Finals II]

and

A. The fee should be paid to the clerk of court which rendered the judgment or final order appealed from (Rule 41, Sec.4). Non-payment of such fee is ground for dismissal of the appeal

Page 51 of 80 by the trial court (Rule 41, Sec. 13, as amended eff. 1 May 2000) or by the appellate court (Rule 50, sec. 1 [c]). Q. Can a third-party plaintiff appeal from an order dismissing his third-party complaint for failure to prosecute? (5%) [1999 Midterm XVII] A. Only with the court's permission. (Rule 41, Sec. 1[g]. See also Rule 36, sec. 5) Q. Can a trial court still act on a motion for execution pending appeal of its judgment after the appeal from this judgment has already been perfected? (5%) [1995 Finals IIIb] A. Yes. So long as the records of the case have not been transmitted to the appellate court (Echaus v CA, 187 SCRA 672). Q. In an ejectment case by P against D, the MTC rendered judgment ordering D to vacate the premises and to pay P rentals. In due course, D filed his notice of appeal and supersedeas bond, whereupon the MTC ordered the transmittal of the case records to the RTC. But the RTC dismissed the appeal upon D's failure to pay the appeal fee within the reglementary period. Is the dismissal correct? (10%) [1997 Midterms V] A. No. While Rule 141, Section 8 requires the payment of an appeal fee for an appeal taken from the MTC to the RTC, the only requirement for taking an appeal from an RTC judgment under Section 20 of the Interim Rules is the filing of a notice of appeal. Failure to pay the appellate court's docket fee within the reglementary period confers a discretionary and not a mandatory power to dismiss the appeal. (Santos v CA, 253 SCRA 632) Extraordinary remedies (prerogative writs: certiorari, prohibition and mandamus) as modes of review Q. In an action for unlawful detainer by P against D in the MTC, judgment was rendered against D ordering him to yield the premises to P. On D's timely appeal to the RTC, the latter found that he had been unlawfully withholding possession of the premises for more than one year prior to the filing of the complaint and that therefore the proper action was accion publiciana and not unlawful detainer, and the RTC thereby declared the MTC without jurisdiction over the case and nullified the proceedings therein. Now , P filed a Rule 65 petition for certiorari with the CA against this RTC decision. How should the CA resolve the certiorari petition? (1996 Midterm Exam IIa) A. The CA should dismiss the certiorari petition. There was on the RTC's part no error of jurisdiction but only error of judgment and appeal was an available and adequate remedy. (Fernand v. Vasquez, 31 SCRA 288 [1970]). Q. P filed an action in the CA for mandamus against D and also prayed for moral and exemplary damages. Does the CA have jurisdiction over the action? (1993 Midterm Exam VIIIa) A. No answer Review and correction by another court in an independent action: direct attack

Page 52 of 80 Q. P filed an action against D for unlawful detainer with the MTC on the ground of nonpayment of rent. After D filed his answer, and while the case was still pending, D died. Thereafter, D's heirs continued, without any formal substitution, with the case and presented their position paper for the defendant. After due hearing, the MTC rendered judgment, ordering D's heirs to vacate the premises. After this judgment became final and executory, D filed an action in the RTC to annul the judgment on the ground that it was rendered without jurisdiction over D's heirs, there having been no formal substitution of parties. Is the petition to annul the MTC decision tenable? (10%) [1996 Midterms IX] A. No. Jurisdiction over the person was acquired by the voluntary appearance of D's heirs. At any rate, these heirs, having participated in the litigation, are already estopped to question the court's jurisdiction over them. The MTC case was properly continued since the ejectment case is an action which survives, and the judgment in an ejectment case is binding on the parties and their successors-in-interest by title subsequent to the commencement of the action. (Vda. De Salazar v CA, 250 SCRA 305). Q. D sold a parcel of land to P with a right to repurchase within three (3) months. Failing to repurchase within the agreed period, P obtained title in his name and demanded that D vacate the premises. Since D failed to heed the demand, P filed an action against him for ejectment and summons was served by substituted service on D's brother who was then residing in the place. For failure to file an answer, D was declared in default and adjudged to vacate the premises and to pay certain rentals. D appealed the decision to the RTC on the ground that the service of summons was not valid. Thereafter, D filed a notice of appeal signifying his intention to appeal the judgment to the CA. In the meanwhile, D filed another action before the Court of Appeals to annul the RTC judgment in which he again assailed the validity of the substituted service of summons in the RTC. What should be the ruling on the petition to annul? (10%) [1997 Midterms II] A. Dismiss the petition. It is barred by res judicata under Sec. 49(c) of Rule 39. The decision in the ejectment suit had become final because the proper remedy against the RTC judgment is a petition for review and not an appeal. (Ybañez v CA, 253 SCRA 540). Review and correction by the trial court of its own proceeding: Motion for reconsideration or new trial Petition for relief Q. Defendant was declared in default by the RTC for failure to file a responsive pleading and thereafter judgment by default was rendered against him. This decision by default was served on the defendant on 25 July 1995, and on 01 August 1995 defendant filed a motion to have this decision reconsidered and set aside and for it to be allowed to file its answer on the ground that it had already actually paid the obligation sued upon in the complaint. The RTC denied the motion for reconsideration and a copy of the denial order was served on defendant on 27 October 1995. On 04 November 1995, defendant filed with the RTC a petition for relief from judgment. Comment on the timeliness and appropriateness of this petition for relief. (10%) [1996 Midterms VI] A. The petition for relief is improper and premature. Defendant had until 05 November 1995 within which to perfect an appeal, and therefore, the petition for relief was the wrong remedial recourse at the time. (Oriental Media Inc. v CA, 250 SCRA 647)

Page 53 of 80 Q. In an action by P against D, the RTC judgment in favor of P was served on D on 03 May 1999, and on 18 May 1999 D filed a motion for new trial on the ground of newly discovered evidence. The RTC denied the motion for new trial in an order which was served on D on 01 July 1999. On the following day, i.e., 02 July 1999, D filed his notice of appeal. The RTC denied the appeal for having been filed out of time, and the denial order was served on D on 12 July 1999. D filed on 13 July 1999 in the very same case a petition for relief from judgment on the ground of accident or excusable neglect. Is the petition for relief the proper remedy? (10%) [1999 Midterm VII] A. Yes, if the right to appeal was lost through no fault or neglect of D. But mandamus to compel the RTC to give due course to the appeal may be a more appropriate remedy because the right to appeal __________________lost, D having an extra day, and the_ _____ up ________July 1999 within which to appeal. (Rule 41, Sec. 3, 2nd par. In relation to Rule 22, Sec. 2) Q. Suppose in question above, the RTC denies D's petition for relief, what remedy, if any, is available to D to challenge the order denying the petition for relief? (5%) [1999 Midterm VIII] A. Only a Rule 65 petition for certiorari, since an appeal is not available. (Rule 41, sec. _1 [b]) Q. Is a motion for reconsideration which deals with the same issues and arguments posed and resolved by the trial court in its decision pro forma? (5%) [1997 Midterms IIIb] A. Not necessarily. A pleader preparing for a motion for reconsideration must, of necessity, address the arguments made or accepted by the trial court in its decision. If a motion for reconsideration may not discuss the issues passed upon by the court, then the losing party would be confined to filing only motions for reopening and new trial and that would in effect eliminate Sec. 1(c) of Rule 37. (Marikina Valley Dev't. Corp. v Flojo, 251 SCRA 87). Q. Is a motion for reconsideration which deals with the same issues and arguments treated in the movant's memorandum and already considered and resolved by the trial court in its decision pro forma? (10%) [1996 Midterms V] A. Not necessarily. A motion for reconsideration has to "point out specifically the findings and conclusions of the judgment which are not supported by the evidence or which are contrary to law. Since one of the ends of a motion for reconsideration is to convince the court that its ruling is erroneous and improper, contrary to law or the evidence, the movant has to dwell of necessity on the issues passed upon by the court. If movant cannot discuss these issues, he would be confined to filing only motions for reopening and new trial. A reasonable application of the pro forma doctrine relating to motions for reconsideration is called for because this doctrine impacts on the right to appeal, an important and valuable right (Marikina Valley Dev't. Corp v Flojo, GR 11081, 08 December 1995). Q. RTC-Manila Branch 50 rendered a default judgment against defendant in Civil Case No. 123456. After this decision became final, RTC-Manila granted plaintiff's motion for execution. In the meanwhile, defendant filed in the RTC-Manila Branch 12, another caseCivil case 123789-which was a petition for relief from Branch 50's judgment in Civil case No. 123456. RTC-Manila Branch 12 motu proprio dismissed the petition for relief for lack of jurisdiction, but defendant appealed the dismissal order to the CA. At the same time defendant moved in Branch 50 to quash the execution writ there issued on the ground

Page 54 of 80 that the default judgment was still reviewable under Rule 41, Sec. 2 on defendant's appeal from the order denying his petition for relief. Evaluate a. the correctness of Branch 12's dismissal order and of defendant's appeal from this order. b. The merits of defendant's motion in Branch 50 to quash the execution writ. (20%) [1996 Midterms I] A. a. Branch 12's dismissal is correct. Defendant did not comply with Rule 41, Sec. 2. He did not file his petition for relief in the same case but in another case. Branch 12 cannot take cognizance of the petition; only Branch 50 could do so. Defendant's appeal to the CA was wrong. It should've been to the SC through a petition for review on certiorari in accordance with the Judiciary Act of 1948 as amended by RA 5440 and Sec. 25 of the Interim Rules. Defendant's motion to quash Branch 50's execution should be denied. Branch 50's final judgment could be executed despite D's appeal from the order denying his petition for relief. No preliminary injunction had been issued pursuant to Rule 38, Section 5. Rule 41, Section 2, giving the appellate court in an appeal from an order denying a Rule 38 petition the power to review the judgment on the merits, does not give the appellate court the power to reverse or modify such power on the merits. Such a review of the judgment on the merits merely enables the appellate court to determine not only the existence of any of the grounds-FAME-but also the merits of petitioner's cause of action or defense. (Service Specialists v Sheriff, 145 SCRA 139). Q. Plaintiff filed an action in the MTC. On defendant's motion, the MTC dismissed the case for lack of jurisdiction. Plaintiff appealed to the RTC. The RTC agreeing that the MTC did not have jurisdiction over the case, proceeded, over the defendant's objection, to try the case on the merits and thereafter gave judgment for the plaintiff. Did the RTC act correctly? (10%) A. No. The RTC should have simply ruled on whether the MTC's order of dismissal was valid or not. Following R40S10, if the RTC found that the MTC had no jurisdiction, all it had to do was to affirm the judgment of the MTC dismissing the complaint. If the RTC found the MTC to have had jurisdiction, then the RTC should have remanded the case to the MTC for proper hearing. R40S11 does not apply here because the MTC did not try the case on the merits. Besides, defendant objected to the RTC's trying of the case. [The problem is modified from the facts of a 1975 CA decision in Castro v. De Guzman 73 OG 9623 (1977)] See new Rules R40 S8. Q. In an action by P against D, the RT judgment in favor of P was served on D on 03 May 1999, and on 18 May 1999 D filed a motion for new trial on the ground of newlydiscovered evidence. The RTC denied the motion for new trial in an order which was served on D on 01 July 1999. On the following day, i.e. 02 July 1999, D filed his notice of appeal. The RTC denied the appeal for having been filed out of time, and the denial order was served on D on 12 July 1999. D filed on 13 July 1999 in the very same case a petition for relief from judgment on the ground of accident or excusable neglect. Is the petition for relief the proper remedy?

Page 55 of 80 A. Yes. If the right to appeal was lost through no fault or neglect of P. But mandamus to compel the TC to give due course to the appeal may be the more appropriate remedy because the right to appeal was not really lost, D having an extra day, and therefore up to ... July 1999 within which to appeal. (Rule 41, sec 3, par 2 in relation to Rule 22, Sec 2) Q. Suppose that in problem No. II above, the RTC denies D's petition for relief, what remedy, if any, is available to D to challenge the order denying the petition for relief? A. 1[b])

Only a Rule 65 petition for certiorari, since an appeal is not available. (Rule 41, Sec

Q.

What are the ways by which a final and executory judgment may be attacked?

1) By petition for relief 2) By direct action to annul and enjoin the enforcement of the judgment where the alleged defect is not apparent on its face or from the recitals contained in the judgment. 3) By a special civil action of certiorari; and 4) By collateral attack where the challenged judgment is void upon its face or its nullity is apparent from its own recitals. (See Filinvest Credit Corp. v IAC, 207 SCRA 59 [1st Div., 1992]) Q. Can the third-party plaintiff appeal from an order dismissing his third-party complaint for failure to prosecute? A.

Only with the court's permission. (Rule 41, Sec 1[g], See also Rule 36, Sec 5).

Q. P brought an action in the RTC to annul a judgment of an MTC in what was thought to be a mere unlawful detainer action but actually was one for rescission and therefore not capable of pecuniary estimation. Defendant moved to dismiss the motion on the ground that plaintiff had not exhausted all the ordinary remedies of new trial, appeal, and petition for relief. Rule on the motion to dismiss. A. Motion to dismiss denied. The requirement of prior resort to all of the ordinary remedies of new trial, appeal and petition for relief is contained in Rule 47, section 1 and refers to motions for the annulment in the CA of judgments or final orders of the RTC. (1997 Rules of Civil Procedure, Rule 47, sec 1) But there is no requirement that these ordinary remedies be first exhausted before an action to annul a judgment or final order of an MTC may be filed in the RTC. (Rule 47, sec 10) Q. Give at least one example of a civil case (not a special proceeding) wherein multiple appeals are allowed. A. Generally, in cases of several and of separate judgments. (Rule 36, secs 4 & 5). Specifically, in actions for recovery of property with accounting and for partition. In these cases the judgment for recovery of property is final and appealable without awaiting the accounting; and an order of partition is final and appealable without awaiting the actual partition. Hence, the accounting or the partition may continue pending the appeal and a second appeal may be taken from the judgment on the accounting or the partition. (Miranda v CA 71 SCRA 295 [1976]; De Guzman v CA, 74 SCRA 222 [1976]) Q.

How final judgment may be set aside?

Page 56 of 80 XVI. ENFORCEMENT OF JUDGMENTS

Q. Compliant by P against D in the MTC for ejectment. The MTC's judgment for D was duly appealed to the RTC which reversed the MTC judgment and ordered D to vacate the premises. This RTC judgment was received by D's counsel on 16 January 1987. on 23 January 1987, D filed with the RTC a notice of appeal of its judgment indicating that he would appeal it to the CA. Acting on this notice of appeal, the RTC on 6 February 1987, ordered the records of the case to be forwarded to the CA. On the following day, however, and before the records were actually elevated to the CA, P filed a motion in the RTC for the execution of its judgment. Resolve the motion for execution. (10%) A. Motion for execution granted. RTC judgment became final and executory and its review by the CA could only be had by petition for review and not by appeal. [BP 129, Sec. 22; marino v. CA 124 SCRA ____ (1983)] Q: What is the proper recourse of a party aggrieved by an order for execution pending appeal? (5%) A: Rule 65 certiorari because such an order is not appealable. (Rule 41, Sec. 1, par. 2 (f)) Q: What is the period of redemption from a real estate mortgage foreclosure? (10%) A: It depends. If the foreclosure is judicial, there is only an equity of redemption and this is 90 to 120 days only from entry of judgment (Rule 68, Sec. 2) or at the latest until the order of confirmation of the sale (id., Sec. 3). If foreclosure is extra-judicial, it further depends: one year from registration of the sale (Act No. 3135, as amended by Act No. 4118) or, under Sec. 47 of the General Banking Act of 2000 (effective sometime in June 2000), if the mortgagor is a juridical person and the mortgagee is a bank, the redemption period is 3 months from the foreclosure sale or until the sale is registered whichever is earlier. Q: "supersedeas bond" A: Rule 39, Sec. 3; Rule 70, Sec. 19. Q: Affidavit of merit A: Rule 9, Sec. 3 (c); Rule 37, Sec. 2, 2nd par.; Rule 38, Sec. 3.

When execution proper Q. Action in the municipal trial court for unlawful detainer was decided upon a compromise of the parties. The judgment allowed the defendant-lessee to pay his back rentals in installments, with the provision that in case of failure of defendant to pay any single installment an immediate execution shall issue upon plaintiff's motion. For defendant's failure to pay rentals which accrued after the judgment, plaintiff moved for a writ of execution, and this motion was granted by the court which directed defendant's ejectment form the premises. Is the writ of execution valid? (1994 Midterm Exam III)

Page 57 of 80 A. No. It does not conform with the judgment - which was for payment of back rentals only and not of future rentals. Such non-conforming writ is a nullity. And so would the judgment have been a nullity if it was for the payment of future rentals, a suit for such rentals being dismissable outright for lack of cause of action. Default in the payment of rentals accruing after the judgment should be the subject of new cause of action to be ventilated in a new and separate complaint. Otherwise, a judgment would be eternal, whereas it has a lifetime of 10 years only from its finality. Gamboa's Inc. v. Court of Appeals, 72 SCRA 131 (1976). Q. Judgment by the MTC in an ejectment action by P against D ordering D to yield the promises to P was affirmed by the RTC on appeal to it by D. The records of the case were then promptly remanded to the MTRC which, immediately upon receipt of these records, issued on P's ex-parte motion a writ of execution of the judgment. D then filed a Rule 65 petition for certiorari with the CA seeking to nullify the writ of execution on the ground that the issuance of the execution writ was prematuer3. Is D's certiorari petition tenable? (1996 Midterm Exam V) A. Yes. While the MTC decision is immediately executory under Section 21 of the Revised Rule on Summary Procedure, this decision cannot be immediately executed before a copy thereof is served on D. Execution of an appealed judgment can issue, as a matter of right only from the date of service of the notice provided in Section 11 of Rule 39. (Dy v. CA, 195 SCRA 585 (First Div., 1991) Q. On 1 March 1993, a decision of the MTC in an unlawful detainer case was served on both plaintiff and the defendant. On 9 March 1993 defendant filed a notice of appeal. Meanwhile, a motion to amend decision was filed on 16 March 1993 by the plaintiff. Hence, on 19 April 1993, the MTC rendered an amended decision. Then, on 17 May 1993 plaintiff filed a motion for execution of the amended decision. Should P's motion for execution be granted? (1993 Midterm Exam VII) A. No answer When execution proper: stay of execution Q. In an action for unlawful detainer in the MTC, defendant lessee was ordered to vacate the leased premises and pay monthly rentals of P50,000 starting 01 April 1997 until he shall have vacated the premises and surrendered its possession to plaintiff lessor , and the sum of P30,000 as attorney's fees. Copy of the decision was served on defendant lessee on 01 March 1999 and, on the next day, 02 March 1999, defendant filed a notice of appeal to the RTC, so that on 08 March 1999, the MTC transmitted the records of the case to the RTC. On 17 March 1999, the plaintiff lessor moved for execution of the decision in his favor, alleging that although defendant had filed a notice of appeal he had not filed a supersedeas bond. Defendant opposed the motion, claiming that he was prevented from filing a supersedeas bond on time because the records of the ejectment case were forwarded to the RTC without waiting for the expiration of his period to appeal and for the further reason that the MTC did not fix the amount of this bond. Rule on the motion for execution. (10%) [1999 Midterm XVI] A. Motion for execution granted. D's failure to file a supersedeas bond is a ground for the immediate execution of the judgment against him. D should have filed a supersedeas bond before he perfected his appeal, this appeal having been perfected as to him upon filing of his notice of appeal. (Rule 41, Sec. 9) As to the amount of the bond, the MTC did not have to

Page 58 of 80 expressly or specifically fix the amount of the supersedeas bond because this is equivalent to the amount of rentals, damages and costs stated in the judgment and this is the rentals of P50,000 a month from 01 April 1997 until the date of the judgment. (Chua vs. CA, 286 SCRA 437 [1st Div., 1998])

Third-party claims Q. Who may file a "terceria", with whom is it filed and what is the effect of its filing? [1999 UP Barops II] A. A "terceria" is a third-party claim under Section 17, Rule 39 and is filed by a third-party claimant with the officer making the levy and it is an affidavit of the claimant's title with copy thereof served upon the judgment creditor. With the filing of this affidavit, the officer is not bound to keep the property unless the judgment creditor indemnifies the officer against such claim by an adequate bond. Q. May a third-party claimant whose property had been levied upon by the sheriff intervene in the action from which the writ pursuant to which the levy was made was issued? (5%) [1997 Midterms IXb] A. If on attachment-yes. If on execution-no, because intervention must be "before or during a trial." Execution of money judgments Execution of judgments for specific act Q. Action by P against D in the MTC for unlawful detainer. The parties executed a compromise agreement, which the MTC approved and embodied in a judgment, whereby D promised to pay P P10,000.00 on 02 January 1004 and monthly thereafter until 31 May 1995. The compromise agreement also stipulated that failure on the part of D to pay three (3) consecutive installments will entitle P to a writ of execution. Upon D's failure to pay the first three stipulated installments, P obtained on his motion a writ of execution directing D to vacate the premises. Is the writ of execution assailable on any ground? (5%) [1995 Finals Xb] A. Yes. The writ of execution does not conform to the judgment. D's obligation under the compromise judgment is purely monetary but the writ of execution is not for a money judgment as provided in Sec. 15, Rule 39 and instead in for delivery or restitution of property under Sec. 13, Rule 39 (Abinujar v CA, GR No. 104133, 18 April 1995). Q. Is a money judgment enforceable by contempt? (5%) [1997 Midterms VIIIb] A. No. It is not a special judgment under Rule 39, Sec. 9. But see Rule 39, Section. 42. Q. Despite service of the writ of execution of a judgment of ejectment on defendant, defendant refused to vacate and deliver possession of the premises. Hence, upon motion of the plaintiff and after hearing of the parties on the contempt charge, defendant was declared guilty of indirect contempt. Is the contempt order legally assailable? [1999 UP Barops IV]

Page 59 of 80 A. Yes, the refusal of the defendant to vacate the leased premises does not constitute indirect contempt. (Flores vs. Ruiz, 90 SCRA 428 [1979]). Contempt is not proper in the enforcement of an ordinary judgment as in this case. The sheriff must enforce the writ of execution by ousting the defendant from the leased premises and placing the plaintiff in possession. (Rule 39, Sec. 10[c]) Q. In action by P against D in the RTC, the court rendered judgment awarding certain amounts to D as moral and exemplary damages and atty's fees. D Received a copy of the decision on 3 January 1989 while P received his copy of the decision on 10 January 1989 and filed a notice of appeal on 16 January 1989 on which same day, the court issued and order giving due course to P's notice of appeal and directing that the records be forwarded to the Court of Appeals. On 17 January 1989, D filed a motion for execution pending appeal and this was granted over P's opposition on the reasoning that D had filed a bond and the mere filing of a bond is good enough ground for execution pending appeal. P then filed a petition for certiorari, prohibition and mandamus with the Court of Appeals wherein he challenged the RTC's grant of execution pending appeal as an abuse of discretion. Resolve P's petition. (20%) A. 1. In the first place, certiorari lies against an order granting immediate execution where the same is not founded upon good reasons. An appeal would not be an adequate remedy from such premature execution. Nor is the filing of a supersedeas bond a plain, speedy and adequate remedy because the filing of a such bond does not entitle P to the suspension of execution as a matter of right. 2. The execution pending appeal was timely granted by the RTC because it was granted before perfection of an appeal. Since an appeal is perfected upon the expiration of the last to appeal by any party (Interim Rule 23), this last day is on 25 January 1989, until which day P had time to appeal. The filing of the motion for execution on 17 January 1989 was, therefore, well within the time before the appeal was perfected. The giving of "due course" to the appeal was inconsequential as the notice of appeal does not require any approval. 3. There was no good reason for the issuance of immediate execution. The mere posting of a bond cannot by itself be a "good reason"; otherwise, immediate execution of a judgment would become routinary, the rule rather than the exception. Moreover, awards for moral and exemplary damages cannot be the subject of execution pending appeal because these awards are dependent on the outcome of the main case and remain uncertain and indefinite until final adjudication. [ ___________ v. CA; 184 SCRA 501 (1990)] Q. Pursuant to a writ of execution duly issued by the RTC against D to enforce a 1986 money judgment against him and in favor of P, the sheriff levied on all the rights and interests of D in a parcel of land registered in the register of deeds and annotated on the corresponding title as well as served on D who had been occupying the land continuously since 1980. X was then issued a new Torrens title in his name but with the notice of levy in P's favor carried on the back of this new certificate. So, X brought another action against P, the sheriff and the register of deeds for the cancellation of the annotation of P's notice of levy on the ground that this levy was irregular and improper. Defending against X's action, the defendants alleged the superiority of the lien created by the prior registration of the levy over the subsequent sale in X's favor. Decide the case. (10%)

Page 60 of 80 Q. In an action for unlawful detainer in the MTC, defendant lessee was ordered to vacate the leased premises and pay monthly rentals of P50,000.00 starting 01 April 1997 until he shall have vacated the premises and surrendered its possession to plaintiff lessor, and the sum of P30,000.00 as attorney's fees. Copy of the decision was served on defendant lessee on 01 March 1999 and, on the next day, 02 March 1999, defendant filed a notice of appeal to the RTC, so that on 08 March 1999, the MTC transmitted the records of the case to the RTC. On 17 March 1999, plaintiff lessor moved for execution of the decision in his favor, alleging that although defendant had filed a notice of appeal he had not filed a supersedeas bond. Defendant opposed the motion, claiming that he was prevented from filing a supersedeas bond on time because the records of the ejectment case were forwarded to the RTC without waiting for the expiration of his period to appeal and for the further reason that the MTC did not fix the amount of this bond. Rule on the motion for execution. A. Motion for execution granted. D's failure to file a supersedeas bond is a grund for the immediate execution of the judgment against him. D should have filed a supersedeas bond before he perfected his appeal, this appeal having been perfected as to him upon his filing of his notice of appeal. (Rule 41, Sec 9) As to the amount of the bond, the MTC did not have to expressly or specifically fix the amount of the supersedeas bond because this is equivalent to the amount of rentals, damages and costs stated in the judgment and this is the rentals of P50,000.00 a month from 01 April 1997 until the date of the judgment. (Chua v CA, 286 SCRA 437 [1st Div., 1998]).

XVII. SPECIAL CIVIL ACTIONS Quo warranto Q: Relator A: Rule 66 Sec. 3 Foreclosure of real estate mortgage Q. Mortgagee extrajudicially foreclosed a real estate mortgage bidded for and purchased the property at the auction sale and obtained a new TCT in his name after the lapse of one year from the registration of the certificate of sale which was issued to him at the foreclosure sale. Mortgagor now brings an action to annul the extrajudicial sale and to cancel the mortgagee's new TCT on the following grounds: a.) That the notice of sale was not posted at the place where the mortgaged property was located; b.) That no personal notice of the extrajudicial foreclosure was furnished the mortgagor; and c.) That the purchase price was grossly inadequate. Q.

Is the plaintiff's complaint well-grounded? (10%) [1999 Midterm XIX]

A. No. Under Act No. 3135, as amended which is the law governing extrajudicial foreclosure of real estate mortgages, there is no requirement of personal notice to the mortgagor, and as far

Page 61 of 80 as notice is concerned, it is enough that it be posted in at least 3 public places of the municipality or city where the property is situated and it is not required that the notice be posted at the site of the property itself. The supposed inadequacy of the purchase price is immaterial since there is a right to redeem and therefore a lower bid price would make it easier for the property owner to effect the redemption or sell his right to redeem and thus recover his loss. (See Abrina vs. PNB, 95 O.G. p. 4068 [CA; 1995], citing DBP vs. Vda. De Moll, 43 SCRA 82 [1972])

Forcible entry and detainer Q: May an inferior court grant a writ of preliminary mandatory injunction in an unlawful detainer case? A: Yes. See R70 S15. Q: In an ejectment case, the MTC ordered the defendant to vacate the leased premises and to pay a monthly rental plus atty's fees. On appeal, defendant deposited the current rentals with the RTC. But the RTC granted plaintiff's motion for execution on the ground of defendant's failure to file a supersedeas bond. Is the order of execution correct? A: No. R70 S19 requires a supersedeas bond only if there are rentals in arrears. The atty's fees need not be covered by a supersedeas bond. [De Laureano v. Adil; 72 SCRA 148 (1976)] Q: A and B inherited from their father, C, a parcel of land in 1985. In 1992, D forcibly entered into and took possession of the property. May A by himself and without including B as his co-plaintiff bring an action for ejectment against D? A: Yes. Anyone of the co-owners may bring an action in ejectment. (Art. 487, CC) Q: Can a MTC award moral and exemplary damages in an unlawful detainer case? A: No. The only damages that can be recovered in an unlawful detainer suit are the fair rental value or the reasonable compensation for the use and occupation of the real property. Other damages must be claimed in an ordinary action. [Felisilda v. Villanueva; 139 SCRA 431 (1985)] Q: Unlawful detainer action by P against D was decided in favor of P by the MTC. On P's motion, MTC granted execution pending appeal for D's failure to post a supersedeas bond. D challenged the validity of the immediate execution for having been issued without any previous notice to him. Rule on the validity of the order of execution. A: Order of immediate execution is proper. MTC is not duty-bound to notify D of immediate enforcement of the appealed decision. It is the prevailing party moving for execution pending appeal who is obliged to serve a copy of such motion on the adverse party's counsel. [Delos Santos v. Montesa; 221 SCRA 15 (1993)] Q: P filed a complaint for unlawful detainer against D in the MTC. In his complaint, P prayed for judgment ordering D to vacate the leased premises and to surrender them to P, declaring the residential building constructed on the lot by D as forfeited in favor of P and adjudging D liable to pay accrued rentals and P5,000 atty's fees to P. After D filed

Page 62 of 80 his answer, the MTC rendered a judgment on the pleadings granting all the reliefs prayed for in P's complaint. Is this judgment assailable on any jurisdictional ground? A: (No clear answer. Note on pencil says: ownership) Q. When and under what conditions may a court issue a demolition order? (5%) Q. T was leasing his apartment from L at P5,000/month under a written contract for 1 year. One month before the expiration of the lease, L served a demand upon T to vacate the premises upon its expiry because he was going to demolish the building and erect in its place a new building. T refused to vacate. In consequence, L's building plans were delayed. So, L brought an action for unlawful detainer against T and obtained judgment therein directing T to pay him the P5,000 stipulated rental and P500 a day for every day of delay as damages until he finally vacates the premises plus P10,000 atty's fees. Is the decision objectionable in any way? (10%) A. Yes. The award of P500 a day for damages cannot properly be made in an unlawful detainer action where the only damages recoverable are those which are caused by the loss of the use and occupation of the property and not such damages as may be recovered only by the plaintiff if he were the owner and he cannot be declared as such in an unlawful detainer action. The award of atty's fees is proper. [See Reyes v. CA; 38 SCRA 138 (1971)] Q. May a person not in possession of the premises bring an action for unlawful detainer of these premises? (5%) A. Yes, as where the action is brought by a vendee or other person against whom the possession is unlawfully withheld after the expiration of termination of the right to hold possession. [See Pangilinan v. Aguilar; 43 SCRA 136 (1972)] Q. Can the MTC issue a writ of preliminary mandatory injunction in an action of unlawful detainer? (5%) A. No. Art. 359, NCC authorizes an MTC to issue a writ of preliminary mandatory injunction in forcible entry cases only. Q. A is the owner of a parcel of land pending registration in the RTC of Rizal. He permitted B, a family friend, to construct a small house on the land and to live therein for a period of two years only. The two-year period expired on 1 may 1994, but B failed and refused to vacate the land. Hence, on 15 June 1994, A filed an action against in the RTC of Rizal for the recovery of possession of the land. B filed a motion to dismiss the case on the ground that the proper action was for unlawful detainer and not for recovery of possession inasmuch as the alleged detainer of the property was for a period of less than one year at the time the action was commenced. Is the motion well founded? (1994 Midterm Exam Ib) A. A plenary action to recover possession (accion publiciana) may be filed even before the expiration of the one-year period from dispossession. Moreover, if B has a claim of ownership over the land in question, the action was properly filed in the RTC since the question of possession cannot be decided without first deciding the question of ownership.

Page 63 of 80 Q. A and B inherited from their father, C, a parcel of land in 1985. In 1993, D forcibly entered into and took possession of the property. May A by himself and without including B as his co-plaintiff, bring an action for ejectment against D? (1994 Midterm Exam IIb; 1993 Midterm Exam VIIIb) A. Yes, anyone of the co-owners may bring an action in ejectment. (Article 487, Civil Code) Q. In an action for ejectment by P against D in the MTC, judgment ordering D to vacate the premises and to pay all accrued and accruing rentals was served on both parties on 01 July 1995. On 10 July 1995, D filed a motion for reconsideration of the judgment on the ground that the MTC had no jurisdiction over the case since the issue of ownership was inextricably involved in the case and the issue of possession could not be resolved without resolving this issue of ownership. The MTC denied D's motion for reconsideration and the denial order was served on D on 01 September 1995. The next day, 02 September 1995, D filed his notice of appeal to the RTC from the MTC ejectment decision. (a) How should the RTC resolve the appeal? (1996 Midterm Exam IX) A. The RTC should dismiss the appeal. XXXXX (illegible) (b) Suppose the MTC had motu proprio and without any hearing, dismissed P's ejectment complaint for lack of jurisdiction, and that it was P instead who had timely appealed this dismissal order to the RTC, how should the RTC resolve P's appeal? (1996 Midterm Exam Xa) A. It may upon appellate review of the dismissal order affirm or reverse it but in case of reversal the case shall be remanded for further proceedings (Rule 40, Sec. 10). Q. Action in the MTC for unlawful detainer. Plaintiff rests his right to possession of the property in dispute upon his claim of ownership, which claim in turn is based on a purported contract of sale with right to repurchase admittedly executed by defendant but claimed by him to be a mere simulation to cloak a mortgage obligation tainted with usury. If this contract was really a sale subject to repurchase and the repurchase as, as alleged by plaintiff, not been made within the time stipulated, plaintiff would already be the owner of the property sold and, as such, entitled to its possession. On the other hand, if the contract was, as defendants claim, in reality a mere mortgage, then the defendants would still be a the owner of the property and could not, therefore, be regarded as mere lessees. After trial, the MTC dismissed the case for lack of jurisdiction on the ground that the case involves a question of ownership. Is the dismissal correct? (1993 Midterm Exam IX) Q. On 01 April 1999, P filed in the MTC an action for forcible entry against D alleging that on 15 March 1999, he purchased this parcel but that on 20 March 1999 but that on 20 March 1999 he found out that D took possession of this parcel under the pretext that he is the owner thereof and that D refused to surrender possession of the land despite demands. D filed his answer denying the material allegations of the complaint and, by way of special and affirmative defenses, averred that the MTC has no jurisdiction over the subject matter of the action because it is not for forcible entry but an accion publiciana and that the deed of sale under which P claims ownership is a forgery. Does MTC have jurisdiction over the case? (10%) [1999 Midterm XX]

Page 64 of 80 A. No. For a complaint for forcible entry to fall within the jurisdiction of the MTC, it must allege plaintiff's prior physical possession of the property as well as that he was deprived of such possession. But here, P merely alleged that on 20 March 1999, he found out that D took possession of the parcel of land and refused to surrender its possession to him; he did not allege that P was in prior physical possession. Moreover, P's pretended right to the possession of the disputed property ultimately rests upon his claim of ownership, a claim based upon a purported contract of sale the genuineness of which is disputed by D, so that the case, in the final analysis, hinges on a question of ownership and is therefore not cognizable by the MTC. (See Rimando vs. Borebor, 95 o.g., p. 911 [CA, 1994]) Q. The MTC rendered judgment in an unlawful detainer case in plaintiff's favor ordering the defendant to vacate the premises and to pay rentals in arrears. Defendant duly appealed from this judgment to the RTC but upon his failure to deposit the requisite supersedeas bond with the MTC, the MTC issued a writ of execution ordering the execution of the appealed judgment with respect to the restoration of possession. Was the writ of execution validly issued? [1999 UP Barops IX ] A. No. The MTC has no jurisdiction to issue the execution writ. The appeal has already been perfected. I t is the RTC which should issue the writ of execution. (Rule 70, Sec. 19) Contempt Q. By virtue of an execution of the judgment in an ejectment case, defendant was successfully ousted from the property in litigation and plaintiff was lawfully placed in possession thereof. But 7 years later, defendant re-entered the property and forcibly took over possession. Plaintiff now moves that defendant be declared in indirect contempt. Rule on the motion. [1999 UP Barops V] A. Motion granted. The defendant violated Section 3(b) of Rule 71 when, after being ousted from the property in litigation and the plaintiff being lawfully placed in possession, he re-enters the property and forcibly took over possession.

1. An appellant in a civil case pending in the CA filed a motion for the reception of specified evidence for the purpose of clarifying facts already in the record in order that the CA would be better able to resolve relevant factual issues raised in the appeal. Will the motion prosper? Why? The motion would prosper because the appellant in the CA is not prohibited from adducing evidence for the purpose of clarifying facts actually in the record. The evidences are merely clarificatory and its reception would not impair any right of the appellee nor would its reception alter the result of the appealed judgment. Rule 44 - Sec. 15. Questions that may be raised on appeal. - Whether or not the appellant has filed a motion for new trial in the court below, he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties. (18, R46)

Page 65 of 80 2. A, the surviving husband of B, executed in favor of C a Deed entitled the “Contract of Sale a Retro” over a certain parcel of land registered under the Torrens System in which the owner is described as “A, married to B”. Subsequently, A sued C for the reformation of the contract, alleging that what was agreed upon was a really mortgage and not a sale a retro. A’s complaint was however dismissed for failure to prosecute, and the dismissal became final. A year later, the children of A and B sued C for the annulment of the sale a retro, alleging that the subject piece of land was acquired by their parents during the marriage, hence their father had no right to include in the sale the children’s interest in the property as heirs of their deceased mother, such children not having consented to the sale. C moved to dismiss the children’s complaint on the ground of bar by prior judgment. Resolve on the Motion. Explain. C’s motion to dismiss on the ground of Res Judicata must be denied. This is because one of the requisites of res judicata is that there must be identity of rights asserted and reliefs sought. The former action which was filed by A seeks the reformation of the contract on the basis of his right as a party to said contract. The latter action however seeks the annulment of the contract on the basis of the children’s right to the subject matter of the contract of sale which was allegedly impaired. Another requisite of Res Judicata which was not met is that the reliefs sought must be based on the same facts. As herein above stated, the reliefs sought by A and by A’s children were based on different set of facts. Thus, the motion shall be denied. Requisites of Res Judicata: 1. The Judgment or Order involved is fina; 2. The Court has jurisdiction over the parties and subject matter; 3. The judgment must be on the merits; and 4. There must be, between the two cases, identity of parties, subject matter and cause of action. 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. (3a) 3. A obtained a judgment against X for the payment of money. For failure to appeal the judgment became final on July 5, 1975. Writs of Execution were returned unsatisfied for the sheriff was unable to find property of X subject to execution. On June 30, 1984, A located some property of X. Whereupon A immediately filed in July 1984 a motion for issuance of an alias writ of execution. If you were the judge, will you grant the writ? If I were the judge, I would deny A’s motion of an alias writ of execution. This is so because the Rules of Court Rule 39 Sec. 6. Provides that “A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations. In the case at bar, A may npt file a motion for execution because the judgment

Page 66 of 80 became final for more than 5 years. A should file an action to revive the judgment for him to be entitled to a writ of execution. 4. Defendant Y filed a motion to dismiss plaintiff’s complaint before the RTC. a. The court grants the motion to dismiss. Explain the remedies or procedure to be resorted to or be pursued by plaintiff to have the order of dismissal reversed and corrected finally? The plaintiff can ask for the reversal of the order by filling a motion for reconsideration. The second remedy which the plaintiff may resort if unsuccessful is to file an action for annulment of RTC judgment in the CA. The other remedy which the plaintiff can avail of is to file an appropriate Special Civil Action for certiorari under Rule 65 because there is no plain, speedy, and adequate remedy in the ordinary course of law. b. The court denies the motion to dismiss. (1) May Y appeal the denial? Reasons. Y may not appeal the order of dismissal. This is so because said order is merely interlocutory. Y has to wait for a judgment to be rendered before he can appeal. (2) How and on what grounds may defendant Y bring the denial of his motion to dismiss to the appellate courts? Explain. The remedy which Y can avail of is to file an appropriate Special Civil Action for Certiorari under Rule 65 on the ground of grave abuse of discretion or lack or excess of jurisdiction.

5. X obtained a loan to buy machineries for her garment business. He executed a chattel mortgage over said machineries. Because of business reverses, he defaulted in the payment of his obligation. A, the mortgagee, sought the delivery of the machinery so that they can be sold at foreclosure sale but X refused contending that it would result to stoppage of her business. A seeks your advice regarding his problem. What is your legal opinion on the matter? A (mortgagee) should file an action for the foreclosure of the mortgage and avail of the provisional remedy of Replevin for the recovery of personal property at the commencement of the action or at anytime before answer is served.

Section 1. Filing of petition with Supreme Court. – A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. (1a, 2a) Sec. 2. Time for filing; extension. – The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner’s motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the

Page 67 of 80 reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition. (1a, 5a) Sec. 3. Docket and other lawful fees; proof of service of petition. – Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for costs at the time of the filing of the petition. Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition. (1a) Sec. 4. Contents of petition. – The petition shall be filed in eighteen (18) copies, with the original copy intended for the court being indicated as such by the petitioner, and shall (a) state the full name of the appealing party as the petitioner and the adverse party as respondent, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received; (c) set forth concisely a statement of the matters involved, and the reasons or arguments relied on for the allowance of the petition; (d) be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition; and (e) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42. (2a) 6. Atty. Lancelot, on behalf of his client, Lady Geneveve, filed a motion to inhibit Judge Merlyn from hearing the action filed by the lady to recover the key of her chastity belt, which was made of platinum from King Arthur. The motion alleged that Judge Gloucester had full grasped of the case but he was eased out of his station and was mysteriously replaced by Judge Merlyn. The motion stated that in one hearing Judge Merlyn had not yet reported to his station and in that hearing, counsel for King Arthur, who must have known that his honor was not reporting did not likewise appear while other counsels were present. Moreover, the motion alleged that Judge Merlyn was personally recruited by Atty. Braveheart who was at the time a member of the Judicial and Bar Council, against whom the lady filed an administrative case which resulted in Atty. Braveheart’s dismissal from the counsel. Judge Merlyn issued an order requiring Atty. Lancelot and the lady to appear before him to show cause why they should not be cited for contempt of court for their allegations in their motion which allegations were, to the mind of the judge, malicious, derogatory, and contemptuous. Atty. Lancelot and the lady appears and explained but judge Merlyn found their explanation unsatisfactory, and accordingly , hold them guilty of direct contempt and sentenced each to suffer imprisonment for 5 days in separate prison cells and to pay a fine of P100. Do you agree with the judge. Reasons. Yes. I agree with the judge that Atty. Lancelot and the lady for being guilty of direct contempt. However, in the matter of sentencing the 2 defendants to suffer imprisonment for 5 days is not proper as penalties for contempt should not be vindictive but rather one to maintain the dignity of the court. In the case of Wicker vs. Arcangel, the SC ruled that the fine increased to 200 each is already enough to vindicate the court. KELLY R. WICKER vs. HON. PAUL T. ARCANGEL G.R. No. 112869 January 29, 1996

Page 68 of 80 This is a petition for certiorari, assailing the orders dated December 3, 1993 and December 17, 1993 of respondent Judge Paul T. Arcangel of the Regional Trial Court, Branch 134 of Makati, finding petitioners guilty of direct contempt and sentencing each of them to suffer imprisonment for five (5) days and to pay a fine of P100.00. FACTS : Kelly Wicker, with his wife Wynee Dieppe and the Tectonics Asia Architects and Engineering Co., brought suit in the Regional Trial Court of Makati against the LFS Enterprises, Inc. and others, for the annulment of certain deeds by which a house and lot at Forbes Park, which the plaintiffs claimed they had purchased, was allegedly fraudulently titled in the name of the defendant LFS Enterprises and later sold by the latter to codefendant Jose Poe. The case, docketed as Civil Case No. 14048, was assigned to Branch 134 formerly presided over by Judge Ignacio Capulong who later was replaced by respondent Judge Paul T. Arcangel. It appears that on November 18, 1993, Wicker’s counsel, Atty. Orlando A. Rayos, filed a motion seeking the inhibition of respondent judge from the consideration of the case. The motion was verified by Kelly Wicker. Considering the allegations to be “malicious, derogatory and contemptuous,” respondent judge ordered both counsel and client to appear before him on November 26, 1993 and to show cause why they should not be cited for contempt of court. Finding petitioners’ explanation unsatisfactory, respondent judge, in an order dated December 3, 1993, held them guilty of direct contempt and sentenced each to suffer imprisonment for five (5) days and to pay a fine of P100.00. Petitioners filed a motion for reconsideration, which respondent judge denied for lack of merit in his order of December 17, 1993. In the same order respondent judge directed petitioners to appear before him on January 7, 1994 at 8:30 a.m. for the execution of their sentence. RULING : WHEREFORE, the order of December 3, 1993 is MODIFIED by DELETING the sentence of imprisonment for five (5) days and INCREASING the fine from P100.00 to P200.00 for each of the petitioners. RATIO: What is involved in this case is an instance of direct contempt, since it involves a pleading allegedly containing derogatory, offensive or malicious statements submitted to the court or judge in which the proceedings are pending, as distinguished from a pleading filed in another case. The former has been held to be equivalent to “misbehavior committed in the presence of or so near a court or judge as to interrupt the proceedings before the same” within the meaning of Rule 71, §1 of the Rules of Court and, therefore, direct contempt. It is important to point out this distinction because in case of indirect or constructive contempt, the contemnor may be punished only “[a]fter charge in writing has been filed, and an opportunity given to the accused to be heard by himself or counsel,” whereas in case of direct contempt, the respondent may be summarily adjudged in contempt. Moreover, the judgment in cases of indirect contempt is appealable, whereas in cases of direct contempt only judgments of contempt by MTCs, MCTCs and MeTCs are appealable. Consequently, it was unnecessary in this case for respondent judge to hold a hearing. Hence even if petitioners are right about the nature of the case against them by contending that it involves indirect contempt, they have no ground for complaint since they were afforded a hearing before they were held guilty of contempt. What is important to determine now is whether respondent judge committed grave abuse of discretion in holding petitioners liable for direct contempt.

Page 69 of 80 We begin with the words of Justice Malcolm that the power to punish for contempt is to be exercised on the preservative and not on the vindictive principle. Only occasionally should it be invoked to preserve that respect without which the administration of justice will fail. The contempt power ought not to be utilized for the purpose of merely satisfying an inclination to strike back at a party for showing less than full respect for the dignity of the court. Consistent with the foregoing principles and based on the abovementioned facts, the Court sustains Judge Arcangel’s finding that petitioners are guilty of contempt. A reading of the allegations in petitioners’ motion for inhibition, particularly the following paragraphs thereof: These allegations are derogatory to the integrity and honor of respondent judge and constitute an unwarranted criticism of the administration of justice in this country. They suggest that lawyers, if they are well connected, can manipulate the assignment of judges to their advantage. The truth is that the assignments of Judges Arcangel and Capulong were made by this Court, by virtue of Administrative Order No. 154-93, precisely “in the interest of an efficient administration of justice and pursuant to Sec. 5 (3), Art. VIII of the Constitution.” This is a matter of record which could have easily been verified by Atty. Rayos. After all, as he claims, he “deliberated” for two months whether or not to file the offending motion for inhibition as his client allegedly asked him to do. As a lawyer, he is not just an instrument of his client. His client came to him for professional assistance in the representation of a cause, and while he owed him whole souled devotion, there were bounds set by his responsibility as a lawyer which he could not overstep. Even a hired gun cannot be excused for what Atty. Rayos stated in the motion. Based on Canon 11 of the Code of Professional Responsibility, Atty. Rayos bears as much responsibility for the contemptuous allegations in the motion for inhibition as his client. Atty. Rayos’ duty to the courts is not secondary to that of his client. The Code of Professional Responsibility enjoins him to “observe and maintain the respect due to the courts and to judicial officers and [to] insist on similar conduct by others” and “not [to] attribute to a Judge motives not supported by the record or have materiality to the case.” Be that as it may, the Court believes that consistent with the rule that the power to cite for contempt must be exercised for preservative rather than vindictive principle we think that the jail sentence on petitioners may be dispensed with while vindicating the dignity of the court. In the case of petitioner Kelly Wicker there is greater reason for doing so considering that the particularly offending allegations in the motion for inhibition do not appear to have come from him but were additions made by Atty. Rayos. In addition, Wicker is advanced in years (80) and in failing health (suffering from angina), a fact Judge Arcangel does not dispute. Wicker may have indeed been the recipient of such a remark although he could not point a court employee who was the source of the same. At least he had the grace to admit his mistake both as to the source and truth of said information. It is noteworthy Judge Arcangel was also willing to waive the imposition of the jail sentence on petitioners until he came upon petitioners’ description of him in the instant petition as a judge who cannot make the grade in the RTC of Makati, where complex cases are being filed. In response to this, he cited the fact that the Integrated Bar of the Philippines chose him as one of the most outstanding City Judges and Regional Trial Court Judges in 1979 and 1988 respectively and that he is a 1963 graduate of the U.P. College of Law. Penalties: 1. Direct Contempt: a. RTC & UP

Page 70 of 80 2. fine not to exceed P2000 3. imprisonment not exceeding 10 days 4. both b. Lower 5. fine not to exceed P200 6. imprisonment not exceeding 1 day 7. both 8. Indirect Contempt c. RTC & UP 9. fine not to exceed P30,000 10. imprisonment not exceeding 6 months 11. both d. Lower 12. fine not to exceed P5,000 13. imprisonment not exceeding 1month 14. both 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 and punished by a fine not exceeding two thousand pesos 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 a fine not exceeding two hundred pesos or imprisonment not exceeding one (1) day, or both, if it be a lower court. (1a)

1. State the rule on payment of Docket Fees. x. failure to pay – case dismiss except indigent litigant as determined by courts. y. Partial payment – ground for dismissal unless paid within the reglamentary period. z. When the case is amended – the litigant shall pay the increase within the reglamentary period aa. Payment is also required upon filing of appeal to any courts. bb. When judgment awards a cliam not specified in the pleading or if specified, the same has been left to the determination by the court – the additional filing fee shall constitute a lien on the judgment. ================================ 2. The RTC rendered a decision on January 15, 2002 against the defendant in an action for injunction. The defendant filed a motion for reconsideration of the decision on January 30, 2002. The court denied the motion. On February 16, 2002, the defendant filed a special civil action for certiorari alleging that the court in rendering the decision and in denying the motion for reconsideration committed grave abuse of discretion amounting to lack or excess of jurisdiction. The CA without giving due course to the petition required the respondents to file their answer. Only the private respondent, the plaintiff filed his answer praying that the petition be dismissed because it was filed out of time. i. Is the prayer tenable?

Page 71 of 80 The petition was not filed out of time. The petitioner has 60 days within which to file his petition for certiorari. j.

Petitioner filed his reply to private respondent’s answer praying that since the public respondent, the judge, did not file his answer to the petition, the said answer was merely a scrap of paper. Do you agree with the petitioner? The judge is not required as public respondent to appear or file an answer or comment to the pleading or petition therein, therefore, the judge is not impleaded as defendant. The law stresses that in action elevated to a higher court, the public respondent is included therein only as nominal parties. The judge will only appear if specifically directed by the court.

Rule 65 - Sec. 5. Respondents and costs in certain cases. - When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings, and the costs awarded in such proceedings in favor of the petitioner shall be against the private respondents only, and not against the judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person impleaded as public respondent or respondents. Unless otherwise specifically directed by the court where the petition is pending, the public respondents shall not appear in or file an answer or comment to the petition or any pleading therein. If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein. (5a) 3. Natasha filed a case with the RTC for a sum of money against Pierre whose charms are irresistible. At the time of trial of the case, both Natasha and Pierre did not appear, so the court dismissed the case. After 6 months, Natasha refilled the case against Pierre and after the raffle of the case was assigned to another branch of the same court. Pierre filed a motion to dismiss on the ground of res judicata. k. Could the judge in the first case dismiss the case for failure of the parties to appear on the day of the trial even without a motion from either party. Explain. Yes, the court may on its motion dismiss the case with prejudice for the failure of the parties to appear on the date of the trial. l.

In the second case is the ground of res judicata tenable? Yes. The ground for res judicata on the second case is tenable for a dismissal of a case with prejudice is tantamount or has the effect of a trial on the merits, hence, no second or subsequent case filed or pending in any court should be dismissed on the ground of res judicata.

Yes. 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

Page 72 of 80 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. (3a) 4. In an ejectment suit filed with MTCC, CDO the judge rendered a decision ordering the defendant to vacate the property of the plaintiff, and to pay the plaintiff the amount of 10k a month as reasonable compensation for the use of the land starting from the time he occupied the same and until it is vacated by him; 100k as unrealized earnings; 50k as moral damages; 30k as exemplary damages and 20k as attorney’s fees. The defendant contends that the decision is improper. Decide. Yes. Cannot award moral and exemplary damages. Baens v. CA, 125 SCRA 634 (1983) Damages that may be awarded in ejectment cases are for rents and reasonable compensation for the use and occupation of the property. It does not include unrealized or foregone profits, moral or exemplary damages. 5. In an ejectment case, the MTCC ordered A to vacate the nipa house standing o a residential lot, restore possession thereof to B and pay the sum of 5k as back rentals at the rate of 500 per month. A appealed to the RTC and posted a supersedeas bond of 10k. Subsequently, B filed a motion in the RTC for the execution of the judgment on the ground that A had not deposited the current rental of 500 a month. A opposed the motion alleging that the MTC did not fix in its judgment the monthly rental to be paid during his continued stay in the premises so that he is not duty bound to pay the same. Decide the motion for execution of judgment filed by B. B’s motion for execution should be granted. Reference to the rental shall be made from the order of the court that A should pay to B the sum of 5k as back rentals at the rate of 500 per month. Under sec 19 of Rule 70 in order to stop execution the defendant has to do three things - appeal, to file supersedeas bond approved by the MTC and to pay rent every month. Should the defendant fail to make the payments of the rent from time to time during the pendency of the appeal, the appellate court, upon motion of the plaintiff, and upon proof such failure, shall order the execution of the judgment appealed from. Rule 70 - Sec. 19. Immediate execution of judgment; how to stay same. - If judgment is rendered against the defendant, execution shall issue immediately upon motion, unless an appeal has been perfected and the defendant to stay execution files a sufficient supersedeas bond, approved by the Municipal Trial Court and executed in favor of the plaintiff to pay the rents, damages, and costs accruing down to the time of the judgment appealed from, and unless, during the pendency of the appeal, he deposits with the appellate court the amount of rent due from time to time under the contract, if any, as determined by the judgment of the Municipal Trial Court. In the absence of a contract, he shall deposit with the Regional Trial Court the reasonable value of the use and occupation of the premises for the preceding month or period at the rate determined by the judgment of the lower court on or before the tenth day of each succeeding month or period. The supersedeas bond shall be transmitted by the Municipal Trial Court, with the other papers, to the clerk of the Regional Trial Court to which the action is appealed. All amounts so paid to the appellate court shall be deposited with said court or authorized government depositary bank, and shall be held there until the final disposition of the appeal, unless the court, by agreement of the interested parties, or in the absence of reasonable grounds of opposition to a motion to withdraw, or for justifiable reasons, shall decree otherwise. Should the defendant fail to make the payments above prescribed from time to time during the pendency of the appeal, the appellate court, upon

Page 73 of 80 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. After the case is decided by the Regional Trial Court, any money paid to the court by the defendant for purposes of the stay of execution shall be disposed of in accordance with the provisions of the judgment of the Regional Trial Court. In any case wherein it appears that the defendant has been deprived of the lawful possession of land or building pending the appeal by virtue of the execution of the judgment of the Municipal Trial Court, damages for such deprivation of possession and restoration of possession may be allowed the defendant in the judgment of the Regional Trial Court disposing of the appeal. (8a) 6. Rosalinda, who is leasing an apartment in RER Subd., CDO from Fernando Jose, a resident in Iligan City, under a 5 - Year Contract expiring on June 30, 2002, is in arrears in her rent for 5 months as of March 15, 2000. Fernando’s lawyer sends a demand letter to Rosalinda to pay and vacate the apartment within 30 days. Suppose that Rosalinda upon receipt of the letter immediately pays the back rentals claiming that she was so busy with her boyfriends that she neglected to pay her rent. May Fernando still file an unlawful detainer case against Rosalinda? No. Fernando cannot anymore file an unlawful detainer case against Rosalinda because unlawful detainer case can only prosper if the person is deprived of the possession of any land or building and this has been unlawfully withheld after the expiration or termination of the right to hold possession by virtue of any contract, express or implied. Sec. 2. Lessor to proceed against lessee only after demand. - Unless otherwise stipulated, such action by the lessor shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, or by serving written notice of such demand upon the person found on the premises, or by posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith after fifteen (15) days in the case of land or five (5) days in the case of buildings. (2a) 7. After the demand letter was sent to Rosalinda, she failed to comply with it, and consequently Fernando filed an ejectment case with the MTCC in CDO without going through the conciliation process at the Brgy level. The amount due was P9,880, hence, summary procedure was followed. May Rosalinda file a motion to dismiss for non-compliance with the requirements of the Brgy. Conciliation process? Since the parties does not live in the same place, the action of Fernando in filing the ejectment case in MTCC in CDOC without resorting first to the brgy. Conciliation process was proper. Sec. 12. Referral for conciliation. - Cases requiring referral for conciliation, where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that requirement shall have been complied with. (18a, RSP) 8. Hibok2 Corp is the lessee of a building owned by Mr. Andrade paying rental 30k a month. The owner died on 11/10/1999, and since then the corp has not paid the rentals now amounting

Page 74 of 80 to 150k because 3 women are both claiming to be widows of Andrade and are demanding the rental payments. What legal action may the corp. take, before what court, and against whom to protect the corp’s interests? Section 1. When interpleader proper. - Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. (1a, R63)

9. A complaint entitled “A as attorney-in-fact for X, plaintiff, versus B, defendant” was filed to recover a car in B’s possession. A’s power of attorney expressly authorized A to sue for the recovery of the car. B files a motion to dismiss the complaint for lack of capacity to sue. Rule on the motion. 10. Jose filed a complaint against Maria to collect a loan of P50,000. Later, because of their intimate relationship in the past, Jose filed a notice of dismissal of his complaint. Subsequently, the two had a serious misunderstanding so that Jose again filed a complaint against Maria to collect another loan of P100,000. Jose and Maria reconciled, after which the former withdrew his complaint before the latter could file her answer or a motion for summary judgment. Was the dismissal of the complaint with or without prejudice? Explain. 11. A drove the car of his father, F, and left it in the parking area of Renaissance Motel where he was a guest. A entrust the key of the car to a security guard hired by Silver Corp., the owner / operator of the motel. Y, pretending to be the brother of A, got the key from the security guard and run the car away. The car was never recovered. Later, A filed against Silver Corp. for the value of the carnapped car plus_. Silver Corp. sets up the defense __ of the case, hence, no cause of action, _ motel but his son. Is the defense tenable. 12. Who may issue subpoena? What shall the judge do when the application for a subpoena to a prisoner is made? Sec. 2. By whom issued. - The subpoena may be issued bya) the court before whom the witness is required to attend; b) the court of the place where the deposition is to be taken; c) the officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines. When application for a subpoena to a prisoner is made, the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose. No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any penal institution shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the Supreme Court. (2a, R23)

Page 75 of 80 13. A filed an action for collection against B. Upon receipt of the summons, B filed a motion to dismiss on the ground of lack of jurisdiction over the person because summon was served on his former wife and on the ground that he had already paid the debt to A. A filed an opposition saying that B could not anymore invoke the first ground_ had raised the issue of payment in the second ground. Rule on the opposition of B. 14. Suppose in #25the court, after hearing, dismiss the action of the ground that the debt had already been paid. Two years after A found that after_ various accounts was still indebted to A. Can the latter file an action on the basis of the claim. Explain. 15. Review by the SC of the decision of the CA a matter of Right? Under what circumstances will the SC review said decision. 16. Distinguish between failure of the complainant to state cause of action from lack of cause of action. 17. By sheer coincidence, Atty. Escobido was served with adverse decisions of the CA and RTC on the same day, i.e. on June 1999. In each case he filed a motion for reconsideration simultaneously on July 10, 1999. He received motives of denial of his two motions of his two motions for reconsideration. On August 15, 1999. If Atty. Escobido decides to appeal in each of the two cases. cc. What mode of appeal should he pursue in each case? dd. How would the perfect of each appeal? ee. Within what time with each appeal? 18. While the ejectment case filed by A against B is pending the latter religiously deposits all current rentals. In due time, the judge ordered A to pay all the rents until he vacated the promises as well as Atty’s fees in the amount of P10,000. A moves for immediate execution on the ground that B did not deposit the Atty’s fees of P10,000 and that he did not put a supersedes bond for the award. Should the court grant immediate execution? Decide with reasons. No, the court should not grant the immediate execution. For the rules provide that execution shall issue as a matter of right upon motion by the immediate party with notice to the adverse party after the expiration of the period to appeal or if no appeal has been taken. In the case at bar, the court should first wait for the expiration of the period to appeal before the court can issue the writ of execution. The failure of the defendant to put up the supersedeas bond is a ground for immediate issuance of the writ of execution. However, the failure to deposit the amount of attorneys fees is not a ground for immediate issuance of the writ of execution for such award may be dispensed with or diminished by the court of appeal. No, because a supersedes bond covers only the rents unpaid up to the time of the judgment. Since B had deposited all current rentals while the ejectment case was pending before the municipal Court, a supersedeas bond are not required to be deposited in order to stay execution. Rule 70 - Sec 8 19. In the case above, B appeals the decision against him to the RTC which affirmed in toto the lower court’s decision. B then filed a motion for reconsideration. A moves to strike out the

Page 76 of 80 motion for reconsideration as it is a prohibited pleading under the Rules on Summary Procedure. Is this tenable? Decide with reasons. No, because the rule on prohibited pleadings in summary procedure is applicable only to the Metropolitan and Municipal Trial Courts. When Y appealed the decision to the RTC the proceeding is not anymore summary in nature. 20. Suppose that instead of filing a motion for reconsideration with the RTC, B filed a notice of appeal with the RTC stating that he is appealing to the CA on the ground that the judgment is contrary to the law and the facts of the case. As lawyer for A, on what procedural ground will you oppose the appeal? Explain your answer. I would oppose the appeal on the ground that the proper procedure is the filing of a petition for review with the CA. The filing of a notice of Appeal is proper if the case was originally filed in the RTC. 21. Is a motion to dismiss with counterclaim sactioned by the rules? ff. If yes, state your reasons. gg. If no, give your reason and state what should instead file in the court to preserve his counterclaim while maintaining the ground asserted in his motion to dismiss as an issue that should be subject of a preliminary hearing? No. The defendant should instead file an answer in order to preserve his counterclaim and allege in his answer the grounds of his motion to dismiss as an affirmative defense for if such grounds for a motion to dismiss is alleged by the defendant as an affirmative defense the court could order a hearing to be conducted on such issues or grounds. Rule 16- Sec. 6. Pleading grounds as affirmative defenses. - xxx 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. (n) Procedure in dismissing upon motion by the claimant 1. after service of the answer or of a motion for summary judgment 2. claimant moves to dismiss 3. approval of the court and upon such terms and conditions as the court deems proper 4. dismissal shall be without prejudice, unless otherwise specified in the order 5. counterclaims pleaded before service of motion to dismiss survive, either a. resolved in the same action - counterclaimant must manifest such preference within 15 days from notice of the motion to dismiss b. prosecuted in a separate action A class suit shall not be dismissed or compromised without the approval of the court.

22. Enumerate the final order which are not subject to appeal. Rule 41 - 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.

Page 77 of 80 No appeal may be taken from: (a) An order denying a motion for new trial or reconsideration; (b) An order denying a petition for relief or any similar motion seeking relief from judgment; (c) An interlocutory order; (d) An order disallowing or dismissing an appeal; (e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; (f) An order of execution; (g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (h) An order dismissing an action without prejudice. In all 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. (n)

Not proper 23. Pre-requisite of Brgy. Conciliation process applicable in ejectment cases? Yes, Sec. 12. Referral for conciliation. - Cases requiring referral for conciliation, where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that requirement shall have been complied with. (18a, RSP) 24. Applicability of action for interpleader. 25. Granting of application for writ of preliminary attachment. Sec. 1. Grounds upon which attachment may issue. - At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: (a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasicontract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer or a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person;

Page 78 of 80 (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or (f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. (1a) 26. In an action of recovery of sum of money based on obligation, the prayer included payment of 2nd obligation which has not yet expired. Proper? No 27. Remedy available for final order Rule 45 n, Rule 65 28. Final order v. final and executory judgment 29. When can file petition for relief? Rule 38 - Section 1. Petition for relief from judgment, order, or other proceedings. - When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside. (2a) 30. Indirect v. direct contempt 31. A filed an action to recover possession of a parcel of land which had a building on it constructed by the possessor. The Court rendered a judgment in favor of A ordering the possessor to vacate the premises and deliver the possession of the property to A. After the judgment became final and executory, the possessor did not leave the premises. Upon motion, the Court issued a writ of execution to execute or enforce the judgment. In the process of implementing the writ, the Sheriff demolished the building constructed by the possessor on the land. Was the demolotion valid? Why? No. Writ of demolition needed. CRISPIN CARREON vs. EDUARDO MENDIOLA No new A.M. No. P-90-512 March 22, 1993 FACTS : In a sworn complaint received by this Court on 15 October 1990, complainants charge respondents Eduardo Mendiola and Roberto Mirrera (should be Merrera) with Gross Misconduct. The former allege that on 15 August 1990, Judge Billy M. Apalit of Branch 43 of the Metropolitan Trial Court (MTC) of Quezon City issued a writ of execution pending appeal in an ejectment case; at around 9:00 o'clock in the evening of that same day, respondent Eduardo Mendiola, the deputy sheriff assigned to Branch 43, accompanied by an unidentified person, visited the complainants to collect the P7,000.00 mentioned in the writ, which the latter did not pay; on 17 August 1990, at around 3:00 o'clock in the afternoon, Mendiola, together with another unidentified companion, levied upon several personal properties belonging to the complainants and set the auction sale thereof for 27 August 1990 at 8:30 o'clock in the morning; on 25 August 1990, a Saturday, respondents Mendiola and Merrera, the latter a deputy sheriff of another branch of the MTC of Quezon City, together with five (5) demolition crew members, demolished the complainants' house without a demolition order from the court; it is alleged that respondent Merrera even chased a certain Ms. Asenas who was then taking pictures of the

Page 79 of 80 demolition. The complainants further asseverate that the demolition was illegal, immoral, unfair, unjust and improper, and thus constitutes Gross Misconduct; as a consequence thereof, they suffered actual damages in the amount of P50,000.00. They then pray that the respondents be investigated and meted out the appropriate punishment. RULING : IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered finding respondents EDUARDO MENDIOLA and ROBERTO MERRERA guilty of grave misconduct, gross ignorance of the duties pertaining to their office, oppression and conduct prejudicial to the best interest of the service, and ordering that DISMISSAL from the service effective upon receipt of a copy of this Decision, with forfeiture of all benefits, except for the monetary value of their leave credits. RATIO: In the light of the foregoing facts, it is not difficult to rule for the complainants. We therefore find the respondents guilty of grave misconduct, gross ignorance of the duties pertaining to their office, oppression and conduct prejudicial to the best interest of the service. The demolition aspect of the decision subject of the writ of execution pending appeal cannot be implemented without a special order for that purpose. Section 14, Rule 39 of the Revised Rules of Court is the law on the matter. It provides: Sec. 14. Removal of improvements on property subject of execution. When the property subject of the execution contains improvements constructed or planted by the judgment debtor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon petition of the judgment creditor after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court. . . . prohibits the sheriff, executing a decision in an ejectment case, from destroying, demolishing or removing the improvements constructed by the defendant and execution debtor or his agents, unless, upon petition of the plaintiff or his attorney and after due hearing, it is so authorized by the court, upon failure of the defendant and execution debtor to do so within a reasonable time, after having been so ordered by said court. . . . Under Rule 39, section 14, the appellant's house could not be removed pending appellee's recourse to the Court for a special order for the demolition and removal of such improvements constructed by the appellant, which order is to be issued "upon petition of the judgment creditor after due hearing, and after the former has failed to remove the same within a reasonable time fixed by the Court." It is to be observed that on 22 August 1991, the MTC, pursuant to Section 3, Rule 39 of the Revised Rules of Court, set aside the writ of execution pending appeal after it approved the supersedeas bond filed by the complainants. Thus, when the respondents demolished the complainants' house on 25 August 1990, the writ of execution pending appeal, upon which the former anchor their so-called authority to demolish, was already non-existent or, at the very least, had ceased to have legal efficacy. Plainly, respondents had absolutely no right, power or authority to demolish the complainants' house. That they were not aware of the order of the MTC which reconsidered or set aside the writ of execution pending appeal cannot be invoked as a valid defense, for there could have been no lawful demolition without a special order from the court issued in strict compliance with Section 14 of Rule 39, and also because it was incumbent upon the respondents to verify the current status of the writ from the MTC before accomplishing their act of destruction. The demands of accountability and responsibility accompanying the trust reposed in a public office under the Constitution (Section 1, Article XI of the 1987 Constitution) require nothing less than this standard of diligence. It is clear that such verification

Page 80 of 80 was not difficult for tile respondents to accomplish because both of them were assigned to the MTC of Quezon City; in fact, Mendiola was even specially assigned to the branch which issued the writ. In demolishing the complainants' house in blatant disregard of the safeguards prescribed in Section 14, Rule 39 of the Revised Rules of Court, and despite the order setting aside the writ of execution pending appeal, respondents committed and were guilty of grave misconduct, gross ignorance of the duties pertaining to their office, oppression and conduct prejudicial to the best interest of the service; such transgression was clearly aggravated by notorious bad faith and malice because the respondents conducted the demolition on a day Saturday when no court was open to hear the complainants had they decided to seek immediate redress.