Legal Writing Reviewer (Atty. Arnold Cacho)

LEGAL WRITING REVIEWER: Unlawful Detainer - ordinarily refers to the conduct of a tenant who is in possession of an apartment or leased property and refuses to leave the premises upon the expiration or termination of the lease. Typically, the landlord wishes to evict the tenant for not paying the rent or for endangering the safety of the other tenants or the landlord's property. ELEMENTS: 1) initially, possession of property by the defendant was by contract with or by tolerance of the plaintiff; (2) eventually, such possession became illegal upon notice by plaintiff to defendant of the termination of the latter’s right of possession; (3) thereafter, the defendant remained in possession of the property and deprived the plaintiff of the enjoyment thereof; and (4) within one year from the last demand on defendant to vacate the property, the plaintiff instituted the complaint for ejectment CASES: 1. Jalique vs Dandan (failure to file answer) Case of unlawful detainer. Jaliques are the owner of a certain land where the Dandans serve as lessee. Jaliques wanted to claim the land but the Dandans resisted. Case of unlawful detainer was filed. Both MeTC and RTC ruled in favor of Jaliques because of the Dandans failure to file an Answer filing a Joint Counter Affidavit instead. When the case reached CA, it ruled in favor of Dandans and ordered the case to be remanded to MeTC. Jaliques filed a motion but was denied. Case was brought up by petitioners

to the SC. SC held: The Court of Appeals, thus, committed no reversible error in reversing the RTC and ordering the remand of the case to the MeTC. Not all lawyers are gifted with the skill to craft pleadings that fully meet the requirements as to substance and form. But what matters is the substance and not the form. Thus, while a pleading may be deficient in craftsmanship and can be criticized with respect to incidental particulars, it must be deemed sufficient if it fairly apprises the adverse party of the claims or contentions therein stated and does not mislead him to his surprise or injury or when from the allegations therein, taken together, the matters required to be averred may be gathered. 2. SSS vs Moonwalk Dev’t ( importance of demand and extinguishment of obligation) Petition for review on certiorari of the decision of the then Intermediate Appellate Court affirming in toto the decision of the former Court of First Instance of Rizal, Seventh Judicial District, Branch XXIX, Pasay City. On February 20, 1980, the petitioner Social Security System filed a complaint in the Court of First Instance of Rizal against the respondent Moonwalk Development and Housing Corporation. The petitioner alleged that it had committed an error in failing to compute the 12% interest due on delayed payments on the loan of the respondent and also in not reflecting in its statement of account an unpaid balance on the said penalties for delayed payments. The respondent answered denying the claims and asserting that the petitioner had the opportunity to ascertain the truth but it failed to do so. The Court of First Instance dismissed the complaint on the ground that the obligation was already extinguished by the payment by BlackBook Confidential | 1BB ’12-‘16

the respondent of its indebtedness to the petitioner and by the latter’s cancellation of the real estate mortgages executed in its favor by the defendant. The Motion for Reconsideration filed by the petitioner was dismissed by the trial court. When it reached the Intermediate Appellate court, it held that the respondent’s obligation was extinguished and affirmed the decision of the trial court. ISSUE: Is the penalty demandable even after the extinguishment of the principal obligation? HELD: Contrary to what the plaintiff-appellant states in its Brief, what is sought to be recovered in this case is not the 12% interest on the loan but the 12% penalty for failure to pay on time the amortization. What is sought to be enforced therefore is the penal clause of the contract entered into between the parties. Penal clause: "an accessory obligation which the parties attach to a principal obligation for the purpose of insuring the performance thereof by imposing on the debtor a special presentation (generally consisting in the payment of a sum of money) in case the obligation is not fulfilled or is irregularly or inadequately fulfilled" Accessory obligation: that attached to a principal obligation in order to complete the same or take its place in the case of breach. Note therefore that an accessory obligation is dependent for its existence on the existence of a principal obligation. A principal obligation may exist without an accessory obligation but an accessory obligation cannot exist without a principal obligation.Under the Civil Code, delay begins from the time the obligee judicially or extrajudicially demands from the obligor the performance of the obligation. Article 1169 of the Civil Code provides for three (3) instances

when demand in not necessary to render the obligation in default. In the present case during all the period when the principal obligation was still subsisting, although there were late amortizations there was no demand made by the creditor, plaintiff-appellant for the payment of the penalty. Therefore up to the time of the letter of plaintiff-appellant there was no demand for the payment of the penalty, hence the debtor was no in mora in the payment of the penalty. Now, besides the Real Estate Mortgages, the penal clause which is also an accessory obligation must also be deemed extinguished considering that the principal obligation was considered extinguished, and the penal clause being an accessory obligation. That being the case, the demand for payment of the penal clause made by plaintiff-appellant in its demand letter dated November 28, 1979 and its follow up letter dated December 17, 1979 (which parenthetically are the only demands for payment of the penalties) are therefore ineffective as there was nothing to demand. It was clear that respondent was never in default because petitioner never compelled performance. (Tinamad na ko mag-digest ng case. HAHAHA)

PLAGIARISM: is the deliberate intent to steal and pass off (the ideas or words of another) as one's own Associate Justice Mariano del Castillo was accused of plagiarizing the decision for the Vinuya et. Al case. Said case is about the comfort women during the Japanese occupation asking for reparation. Certain passages from publications were used by del Castillo but failed to be attributed properly. (“A BlackBook Confidential | 1BB ’12-‘16

Fiduciary of Theory of Jus Cogens" by Evan Criddle and Evan Fox-Decent, "Breaking the Silence on Rape as an International Crime" by Mark Ellis, and "Enforcing Erga Omnes Obligations in International Law" by Christian Tams.) CASE PROPER: In re: Justice del Castillo: WON SC can compel Exec. Dept., et. al. to file a complaint. WON it as a justiciable controversy as opposed to political question? Political question: presupposes that court cannot take cognizance or cannot inquire into the powers of government. Decision was talking too much. Issue was only WON Judicial Dept. can take cognizance on behalf of petitioner; Footnote 69 generally cited words in ergo omnes? (Case of Vinuya v. Romulo) GOLLUM v. ACME CASE: (Demand Letter, Reply, Pleading) Demand Letter: Formal letter from an attorney on behalf of a client, demanding payment or some other action from another party. Although commonly not a legal necessity in filing a suit, a demand letter is sent usually to settle the matter without litigation or to put pressure on the other party. In general, a demand letter states (1) what payment or action is demanded, (2) why, (3) how the payment or action may be effected, and (4) a time limit. It usually also carries an express or implied threat that otherwise a court case will be instituted forthwith.

PLEADINGS: written statements of respective claims and defenses of the parties submitted to the court for appropriate judgment. KINDS OF PLEADINGS: a. Complaint- pleading alleging the plaintiff’s cause/s of action w/ specification of relief sought but may add a general prayer for such further relief as may be deemed just and equitable. (Rule 6 Sec. 3) b. Answer – pleasing where defendant sets forth his affirmative or negative defenses. It may also be the response to a counterclaim or a cross claim. (Rule 6 Sec. 4; it is a compulsory pleading; recall Sps. Jalique v. Sps. Dandan) Defenses: (rule 6 sec. 5) a. Affirmative – allegation of a new matter which while hypothetically admitting the material allegations would nevertheless prevent or bar recovery by the claiming party; in nature of confession or avoidance b. Negative – specific denial of the material fact or facts alleged in the pleading essential to establish plaintiff’s cause of action. c. Counterclaim – any claim w/c a defending party may have against an opposing party d. Compulsory counterclaim - 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, BlackBook Confidential | 1BB ’12-‘16

the counterclaim may be considered compulsory regardless of the amount. e. Cross-claim - any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the crossclaimant. f. Reply - the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. g. Third (fourth) Party Counterclaim A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.

PARTS OF A PLEADING: Caption.: The caption sets forth the name of the court, the title of the action, and the docket number if assigned. The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the

name of the first party on each side be stated with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated. Note: -In criminal cases, venue is jurisdictional. It depends on the circumstances. -In civil cases, parties can stipulate “Any action / controversy which arise may be filed only in the court of _____...” Venue is subject to a stipulation. In the absence thereof, venue is in the place of residence of parties upon the discretion of the plaintiff. (Law provides) Note: -Colossus, being registered in the DTI, does not bear with it a juridical personality. Hence, name of proprietor will take the place of the trading company. -If what was indicated is the business name has no legal personality, complaint is susceptible for dismissal. Real party of interest is not indicated properly = it is not binding.

Body.: ∆ The culmination of facts until it culminates to the cause of action ∆ Designation of the personal circumstances of the parties ∆ Allegation (chronological, identified by number = So it is easier to refer what particular number I admitted or not. Every paragraph, one event = easier for defendant to prepare answer) Summons – copy of the complaint ∆ Relief – ultimate facts, without any conclusion (Normally a write up when there is a factual issue; A factual issue is where a plaintiff has his own version, defendant has his own which are different.)

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Note: Pleading shold be short, concise, using simple words in formulation of allegations, crystal clear, direct to the point, no need for facts to be repeated) ∆ Relief – General prayer Ie. In an Unlawful detainer, stipulation prevails over legal interest which is pegged at 6% per annum. -On the pendency of the case, status quo remains. -If the reliefs are not sought in the pleading, the court will not grant such reliefs. -Take note that reliefs must have corresponding allegations. -As regards interest, SC held that 5% is against public policy. Reliefs: 1. Possession of the leased premises 2. Payment of rental in arrears (Eg. P400,000 in the Gollum case) 3. Reasonable monthly rent from the date of the institution of proceeding until such time defendant has finally vacated premises. 4. Just and equitable reliefs (Situations which afford complete relief upon parties) 5. Attorney’s fees (For the plaintiff)

(a) Paragraphs. - The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. (b) Headings. - When two or more causes of action are joined, the statement of the first shall be prefaced by the words "first cause of

action," of the second by "second cause of action," and so on for the others. When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words "answer to the first cause of action" or "answer to the second cause of action" and so on; and when one or more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by words to that effect. Signature and address.: Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box. The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action. Verification.: Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. BlackBook Confidential | 1BB ’12-‘16

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 knowledge and belief. 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. 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 noncompliance 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. ∆ Legal cases which will injure plaintiff: 1. Docket fees (xpn: Labor disputes) 2. Miscellaneous legal expenses (Eg, Transcript of stenographic notes) TSN – If it has not yet been transcribed, lawyers may say it’s off the record. But it can never be a valid excuse. ∆ Certification of Non Forum shopping by Juridical Person May be executed by properly authorized person (lawyer of the corporation) ∆ Default If the defending party fails to answer within the time allowed therefore, the court shall upon motion of the claiming party with notice to the defending party and proof such failure, declare defending party in default. ∆ Periods of filing of Pleading WHEN TO FILE RESPONSIVE PLEADINGS Section 1. Answer to the complaint. The defendant shall file his answer to the complaint within fifteen (l5) days after service of summons, unless a different period is fixed by the court. Sec. 2. Answer of a defendant foreign private juridical entity. Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity. Sec. 3. Answer to amended complaint. BlackBook Confidential | 1BB ’12-‘16

Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (l5) days after being served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.) party complaint, and amended complaint-in-intervention. Sec. 4. Answer to counterclaim or cross-claim. A counterclaim or cross-claim must be answered within ten (l0) days from service.

Sec. 5. Answer to third (fourth, etc.)- party complaint. The time to answer a third (fourth, etc.)- party complaint shall be governed by the same rule as the answer to the complaint. Sec. 6. Reply. A reply may be filed within ten (l0) days from service of the pleading responded to. Sec. 7. Answer to supplemental complaint. A supplemental complaint may be answered within ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed.

SAMPLE DEMAND (Tacs)

Checks should be enumerated (Check no., Date, Amount)

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SAMPLE REPLY (Tacs)

SAMPLE PLEADING (Gollum CASE) Republic of the Philippines NATIONAL CAPITAL JUDICIAL REGION METROPOLITAN TRIAL COURT City of Manila Branch ___ GOLLUM REALTY, INC., Represented by its (President) Plaintiff, CIVIL CASE No. _____ FOR: Unlawful Detainer

-versus-

CELSO MENDOZA, doing business under the name and style of Colossus Trading, and all persons claiming rights under Celso Mendoza, Defendant. x-----------------------------------x COMPLAINT COMES NOW, the plaintiff, through the undersigned counsel and unto this Honorable Court, most respectfully avers:

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1.

Plaintiff (______________), President of Gollum Realty Development, Inc., is of legal age, Filipino, and presently residing at #222 Manalac St., Sampaloc, Manila.

2.

Defendant Celso Mendoza, Proprietor of Colossus Trading, is of legal age, Filipino, and presently residing at #223 Manalac St., Sampaloc, Manila.

3.

Plaintiff is the rightful owner of a commercial building located at #1521 Dapitan St, Sampaloc, Manila by virtue of a Contract of Sale (Annex A)perfected last December 22, 2011 between Acme Realty which was represented by its President, Juan Magpayo.

4.

At the time of the perfection of Contract of Sale (annex A), Defendant possesses and use for its benefit the commercial building referred to in the preceding paragraph by virtue of a Contract of Lease entered into between the Defendant and Acme Realty, previous owner of the said commercial building.

5.

Plaintiff informed the Defendant that it is the new rightful owner of the said commercial building through a letter dated January 5, 2012 (Annex B) and requested to make the payment of the rentals (to the plaintiff) which amounts to Php50, 000.00 per month to be paid on the 5th day of each month.

6.

Despite repeated demands to pay (annexes C and D), Defendant failed and still refuses to make the payments of rentals since December 2011. Final demand to pay and vacate was sent to Defendant through a letter dated May 5, 2012 (annex E).

7.

By reason of failure of the defendant to vacate the premises and to pay the unpaid rentals, the plaintiff was compelled to file this complaint engaging the services of counsel in the amount of P20, 000.00.

PRAYER WHEREFORE, premises considered, it is most respectfully prayed unto this Honorable Court that after due hearing, judgement be rendered ordering the Defendant:

1. 2. 3. 4. 5.

To vacate the subject premises and to return the possession of it to the Plaintiff. To pay the amount of Php350, 000.00 as payment for the rental in arrears. To pay the amount of Php50, 000.00 per month as compensation for the reasonable use of the premises from the time of the filing of this complaint till the Defendant vacate the premises. To pay Attorneys Fee. To pay cost of suit. Plaintiff likewise prays for such other reliefs as the court may find just and equitable under the circumstances. City of Manila, June 10, 2012.

REYES, TOLENTINO AND CRUZ LAW OFFICE Counsel for the Plaintiff Unit 123, Victoria Tower I Taft Avenue, Manila

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By:

Louise Reyes Roll of Attorney No. 98765 IBP No. 12345/2-5-12/Manila PTR No. 87654/12-22-11/Manila

VERIFICATION/CERTIFICATION OF FORUM SHOPPING

Republic of the Philippines ) City of Manila ) S.S. I, (president of Gollum), of legal age, Filipino citizen, single and resident of #222 Manalac St., Sampaloc, Manila, after having been duly sworn to in accordance with law do hereby depose and say: That I am the plaintiff in the above-entitled case; That I have caused the preparation of the foregoing complaint and have read the allegations contained therein; The allegations in the said complaint are true and correct of my own knowledge and authentic records; I hereby certify that I have not commenced any other action or proceeding involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of my knowledge, no such other action or claim is pending therein; That if I should learn thereafter that a similar action or proceeding has been filed or is pending, I hereby undertake to report that fact within five (5) days therefrom to the court or agency where the original pleading and sworn certification contemplated herein have been filed;

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I executed this verification/certification to attest to the truth of the foregoing facts and to comply with the provisions of Adm. Circular No. 04-94 of the Honorable Supreme Court. IN WITNESS WHEREOF, I have hereunto affixed my signature this 10th of June 2012, in the City of Manila.

(President of Gollum)

SUBSCRIBED AND SWORN to before me this 10th day of June, 2012, in the City of Manila, affiant exhibiting to me his Driver’s License No. 12345 issued by the Land Transportation Office on April 8, 2012 at the City of Manila.

ATTY. NO CASE Notary Public My Commission Expires Dec. 31, 2012 Roll of Attorney No. 34567 IBP No. 12345/2-5-12/Manila PTR No. 87654/12-22-11/Manila Doc. No. ________ Page No. _______ Book No. _______ Series of 2012.

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