REM 1 Brondial Notes

REMEDIAL LAW I (BRONDIAL)

CIVIL PROCEDURE

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

How do you distinguish residual jurisdiction from residual prerogative?

a. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (Note: this is the exclusive original jurisdiction of the Supreme Court.)

I.

JURISDICTION

What is residual jurisdiction? Jurisdiction of a court in spite losing its jurisdiction because of the perfection of an appeal still retains it for purposes of preserving the rights of the parties.

b. All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (Note: This refers to SC’s appellate jurisdiction. So this power to Review, Reverse, Revise, Modify and Affirm is within the appellate powers of the jurisdiction of the Supreme Court.)

A is the plaintiff and B is the defendant. Trial court ruled in favor B. A appeals. Before the records are transferred to the appellate court, the trial court retains jurisdiction. How can that particular trial court exercise such jurisdiction? Can an execution be granted ex parte? No. On what action can the trial court act upon? Motion for execution pending appeal. Once appeal is perfected, and the records of the case have been transmitted to the appellate court, there is no more exercise of residual jurisdiction. But in case of execution as a matter of right, once jurisdiction is lost, it can never be regained. Nonetheless, under Rule 39, the writ of execution can be granted by the trial court only.

c. All cases in which the jurisdiction of any lower court is in issue. d. All criminal cases in which the penalty imposed is reclusion perpetua or higher. (Note: The “or higher” clause no longer applies because the death penalty is suspended) e. All cases in which only an error or question of law is involved.

How can the trial court, if it has already lost its jurisdiction, still exercise the same? In the exercise of residual jurisdiction.

3. Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned.

What is residual prerogative? There are 3 jurisdiction:

principles

involved

in

4. Order a change of venue or place of trial to avoid a miscarriage of justice.

concurrent

5. Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

1. Hierarchy of Courts; 2. Supreme Court is not a trier of facts; and 3. Transcendental Importance General rule: Jurisdiction is conferred by law. Exception: The jurisdiction of Supreme Court is conferred by the Constitution. 1987 Constitution, Article VIII, Section 5. The Supreme Court shall have the following powers: xxx

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6. Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.

certiorari---appeal by certiorari---it cannot be a special civil action because it is appellate jurisdiction of the Supreme Court.

“Review”, “Reverse”, “Revise”, “Modify” or “Affirm” must be defined separately and distinctly: 1.

Review – consists of Reverse, Revise, Modify or Affirm. The term review is a catch-all provision. Review means to take cognizance of the decision, but does not cover resolution of the lower body. Review means to look into.

2.

Reverse – overturn a favorable judgment to an unfavorable one or vice versa

3.

Revise – revision, not a simple amendment

4.

Modify – modification or amendment

5.

Affirm – accept the decision of the lower body

In civil actions, you do not go to the Supreme Court by ordinary appeal. In criminal actions, there is notice by appeal to the Supreme Court. There is no more automatic appeal because of the removal of the death penalty, but it does not mean you can no longer appeal to the Supreme Court. You can still do so by notice of appeal and when you speak of the Constitution, it applies to both civil and criminal cases. Lourdes L. Eristingcol vs CA: Petitioner is an owner of a residential lot in Urdaneta Village, Makati City. On the other hand, [respondent Randolph] Limjoco, [Lorenzo] Tan and [June] Vilvestre were the former president and chairman of the board of governors, construction committee chairman and village manager of [Urdaneta Village Association Inc.] UVAI, respectively. UVAI is an association of homeowners at Urdaneta Village.

“on appeal or certiorari” – to what kind of appeal is it referring to?

Petitioners action against UVAI, Limjoco, Tan and Vilvestre is founded on the allegations that in compliance with the National Building Code and after UVAI’s approval of her building plans and acceptance of the construction bond and architect’s fee, Eristingcol started constructing a house on her lot with “concrete canopy directly above the main door and highway”; that for alleged violation of its Construction Rules and Regulations (or “CRR”) on “Set Back Line” vis-a-vis the canopy easement, UVAI imposed on her a penalty of P400,000 and barred her workers and contractors from entering the village and working on her property; that the CRR, particularly on “Set Back Line,” is contrary to law; and that the penalty is unwarranted and excessive.

The word “appeal” is by ordinary appeal. The word “certiorari” is “appeal by certiorari” as a mode of appeal under Rule 45 because when you speak of “review, revise, reverse, modify, or affirm” it is in the exercise of appellate jurisdiction of the SC; it must have come from a lower court and not an original action under Rule 65 which is a special civil action and not a mode of appeal. The modes of appeal under Rule 41 section 2 are: 1. 2. 3.

Ordinary Appeal; Petition for review; and Appeal by certiorari

The parties reached a temporary settlement whereby UVAI, Limjoco, Tan and Vilvestre executed an undertaking which allowed Eristingcol’s workers, contractors and suppliers to leave and enter the village, subject only to normal security regulations of UVAI.

But the kind of certiorari mentioned is a mode of appeal because when you speak of Review, Reverse, Revise, Modify and Affirm, it is the exercise of appellate jurisdiction. How could it be an original action when it is certiorari? Certiorari there refers to Rule 65 because Rule 65 is a special civil action, it is not a mode of appeal.

UVAI, Limjoco, Tan and Vilvestre filed a motion to dismiss on ground of lack of jurisdiction over the subject matter of the action. They argued that it is the Home Insurance Guaranty Corporation (HIGC) which has jurisdiction over intra-corporate disputes involving homeowners associations, pursuant to Exec. Order No.

What is a mode of Appeal by certiorari? Rule 45. So the statement there on appeal—ordinary appeal or

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535, Series of 1979, as amended by Exec. Order No. 90, Series of 1986.

authority of the court to take cognizance of a case. In that case, the Surety filed a Motion to Dismiss before the CA, raising the question of lack of jurisdiction for the first time—15 years after the action was commenced in the CFI of Cebu. Indeed, in several stages of the proceedings in the CFI, as well as in the CA, the Surety invoked the jurisdiction of said courts to obtain affirmative relief, and even submitted its case for a final adjudication on the merits. Consequently, it was barred by laches from invoking the CFI’s lack of jurisdiction.

Petitioner alleged, among others, that UVAI, Limjoco, Tan and Vilvestre did not comply with the mandatory provisions of Secs. 4 and 6, Rule 15 of the 1997 Rules of Civil Procedure and are estopped from questioning the jurisdiction of the RTC after they voluntarily appeared therein “and embraced its authority by agreeing to sign an Undertaking.” RTC denied the MTD holding that its jurisdiction may not be assailed “after they voluntarily entered their appearance, sought reliefs therein, and embraced its authority by agreeing to sign an undertaking to desist from prohibiting (Eristingcol’s) workers from entering the village.” It applied the doctrine enunciated in Tijam v. Sibonghanoy. CA dismissed the complaint for lack of jurisdiction.

To further highlight the distinction in this case, the TRO hearing was held on February 9, 1999, a day after the filing of the complaint. On even date, the parties reached a temporary settlement reflected in the Undertaking. 15 days thereafter, defendants, including Limjoco, filed a MTD. Certainly, this successive and continuous chain of events cannot be characterized as laches as would bar defendants from questioning the RTC’s jurisdiction.

Issue: Whether it is RTC or Housing and Land Use Regulatory Board (HLURB) having jurisdiction over the subject matter of the complaint.

Duero vs CA: According to Duero, private respondent Bernardo Eradel occupied Gabriel Duero’s land in Surigao del Sur. As shown in the tax declaration, the land had an assessed value of P5,240. Despite repeated demands, Eradel refused to leave. Duero filed before the RTC a complaint for Recovery of Possession and Ownership against Eradel and Apolinario and Inocencio Ruena. Duero and Ruenas executed a compromise agreement, stating that the Ruenas bound themselves to respect the ownership of Duero. Eradel was not a party to the agreement, and he was declared in default for failure to file his answer to the complaint. Duero presented his evidence ex parte. RTC ruled in his favor.

Ruling: HLURB. As regards the defendants’ supposed embrace of the RTC’s jurisdiction by appearing thereat and undertaking to desist from prohibiting Eristingcol’s workers from entering the village, suffice it to state that the invocation of the doctrine in Tijam, et al. v. Sibonghanoy, et al. is quite a long stretch. The factual milieu obtaining in Tijam and in this case are worlds apart. As found by the CA, defendants’ appearance before the RTC was pursuant to, and in compliance with, a subpoena issued by that court in connection with petitioner’s application for a TRO. On defendants’ supposed agreement to sign the Undertaking allowing petitioner’s workers, contractors, and suppliers to enter and exit the village, this temporary settlement cannot be equated with full acceptance of the RTC’s authority, as what actually transpired in Tijam.

Eradel filed a Motion for New Trial, alleging that he has been occupying the land as a tenant of Artemio Laurente, Sr. He explained that he turned over the complaint and summons to Laurente in the honest belief that as landlord, the latter had a better right to the land and was responsible to defend any adverse claim on it. However, RTC denied the motion for new trial. A RED Conflict Case, an administrative case between Duero and applicant-contestants Romeo, Artemio and Jury Laurente, remained pending with the Office of the Regional Director of the DENR in Davao City. It was forwarded to the DENR in Agusan del Sur. Duero filed

The landmark case of Tijam is, in fact, only an exception to the general rule that an objection to the court’s jurisdiction over a case may be raised at any stage of the proceedings, as the lack of jurisdiction affects the very

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before the RTC a Petition for Relief from Judgment, reiterating the same allegation in his Motion for New Trial. He averred that unless there is a determination on who owned the land, he could not be made to vacate the land. Also, the judgment of the RTC was void inasmuch as the heirs of Artemio, who are indispensable parties, were not impleaded. The grandchildren of Artemio who were claiming ownership of the land, filed a Motion for Intervention. RTC denied the motion. RTC denied the Petition for Relief from Judgment. In an MR, Duero alleged that the RTC had no jurisdiction over the case, since the value of the land was only P5,240 and therefore it was under the jurisdiction of the MTC. RTC denied the MR.

of the denial. In his MR, he raised for the first time the RTC's lack of jurisdiction. This motion was denied. Eradel raised the issue of lack of jurisdiction, not when the case was already on appeal, but when the case, was still before the RTC that ruled him in default, denied his motion for new trial and for relief from judgment, and denied his 2 MRs. After RTC still refused to reconsider the denial of Eradel's motion for relief from judgment, it went on to issue the order for entry of judgment and a writ of execution.

Issue: Whether private respondent was estopped from assailing the jurisdiction of the RTC after he had filed several motions before it.

The lack of jurisdiction of the court over an action cannot be waived by the parties, or even cured by their silence, acquiescence or even by their express consent. Further, a party may assail the jurisdiction of the court over the action at any stage of the proceedings and even on appeal. RTC should have declared itself barren of jurisdiction over the action. Even if Eradel actively participated in the proceedings before said court, the doctrine of estoppel cannot still be properly invoked against him because the question of lack of jurisdiction may be raised at anytime and at any stage of the action. As a general rule, the jurisdiction of a court is not a question of acquiescence as a matter of fact, but an issue of conferment as a matter of law. Also, neither waiver nor estoppel shall apply to confer jurisdiction upon a court, barring highly meritorious and exceptional circumstances.

Ruling: No. It was Duero who filed the complaint before the RTC, believing that the RTC had jurisdiction. RA 769117 amending BP 129 had already become effective, such that jurisdiction already belongs not to the RTC but to the MTC. Eradel, an unschooled farmer, in the mistaken belief that since he was merely a tenant of the Artemio, his landlord, gave the summons to a Hipolito Laurente, one of the heirs of Artemio, who did not do anything about the summons. For failure to answer the complaint, Eradel was declared in default. He then filed a Motion for New Trial in the RTC and explained that he defaulted because of his belief that the suit ought to be answered by his landlord. He stated that he had evidence to prove that he had a better right than Duero because of his long, continuous and uninterrupted possession as bona-fide tenant-lessee. But his motion was denied. He tried an alternative recourse. He filed before the RTC a Motion for Relief from Judgment. RTC denied his motion, hence he moved for reconsideration

Estoppel must be applied only in exceptional cases, as its misapplication could result in a miscarriage of justice. Duero filed his complaint before a court without appropriate jurisdiction. Eradel, a farmer whose tenancy status is still pending before the administrative agency, could have moved for dismissal of the case on jurisdictional grounds. But the farmer could not be expected to know the nuances of jurisdiction and related issues. This farmer ought not to be penalized when he claims that he made an honest mistake when he initially submitted his motions before the RTC, before he realized that the controversy was outside the RTC's cognizance. To hold him in estoppel as the RTC did would amount to foreclosing his avenue to obtain a proper resolution of his case. He would be evicted from the land prematurely, while RED Conflict Case would remain unresolved. Such eviction on a technicality if allowed could result in an injustice, if it is later found that he has a legal right to till the land he now occupies as tenant-lessee.

Duero filed a Motion for Execution, which the RTC granted. Entry of Judgment was made of record and a writ of execution was issued by the RTC. Duero filed his petition for certiorari before the CA. CA gave due course to the petition, maintaining that Eradel is not estopped from assailing the jurisdiction of the RTC when Eradel filed with said court his MR And/Or Annulment of Judgment.

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petitioners filed a new complaint against private respondent with the HLURB. Likewise, on June 30, 1999, petitioner-spouses filed before the CA a petition for annulment of judgment, on the ground that RTC had no jurisdiction to try and decide the Civil Case.

Gonzaga vs CA: Facts: In 1970, petitioners purchased a parcel of land from private respondent Lucky Homes, Inc. The lot was specifically denominated as Lot No. 19 and was mortgaged to SSS as security for their housing loan. Petitioners started the construction of their house on Lot No. 18, as private respondent mistakenly identified Lot No. 18 as Lot No. 19. Private respondent informed petitioners of such mistake but the latter offered to buy Lot No. 18 to widen their premises. Thus, petitioners continued with the construction of their house. However, petitioners defaulted in the payment of their housing loan from SSS. Lot No. 19 was foreclosed by SSS and petitioners’ certificate of title was cancelled and a new one was issued in the name of SSS. After Lot No. 19 was foreclosed, petitioners offered to swap Lot Nos. 18 and 19 and demanded from private respondent that their contract of sale be reformed and another deed of sale be executed with respect to Lot No. 18, considering that their house was built therein. However, private respondent refused. Thus, petitioners filed, on June 13, 1996, an action for reformation of contract and damages with the RTC.

CA denied the petition for annulment of judgment, relying mainly on the jurisprudential doctrine of estoppel as laid down in the case of Tijam vs. Sibonghanoy. Issue: Whether or not the principle of estoppel may be applied even though RTC had no jurisdiction to decide the Civil Case. Ruling: Yes. While an order or decision rendered without jurisdiction is a total nullity and may be assailed at any stage, active participation in the proceedings in the court which rendered the order or decision will bar such party from attacking its jurisdiction. As we held in the leading case of Tijam vs. Sibonghanoy: “A party may be estopped or barred from raising a question in different ways and for different reasons. Thus we speak of estoppel in pais, or estoppel by deed or by record, and of estoppel by laches. Xxx It has been held that a party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and, after obtaining or failing to obtain such relief, repudiate, or question that same jurisdiction x x x x [T]he question whether the court had jurisdiction either of the subject matter of the action or of the parties was not important in such cases because the party is barred from such conduct not because the judgment or order of the court is valid and conclusive as an adjudication, but for the reason that such a practice can not be tolerated –– obviously for reasons of public policy.”

On January 15, 1998, RTC dismissed the complaint for lack of merit. RTC held that the reformation of instruments or the swapping of Lot 18 and Lot 19 is no longer feasible considering that plaintiff is no longer the owner of Lot 19, otherwise, defendant will be losing Lot 18 without any substitute therefore. Upon the other hand, plaintiff will be unjustly enriching himself having in its favor both Lot 19 which was earlier mortgaged by him and subsequently foreclosed by SSS, as well as Lot 18 where his house is presently standing. What plaintiff had bought from the defendant is Lot 19 which parcel of land has been properly indicated in the instruments and not Lot 18 as claimed by the plaintiff. The contracts being clear and unmistakable, they reflect the true intention of the parties, besides the plaintiff failed to assail the contracts on mutual mistake, hence the same need no longer be reformed.

A party’s active participation in all stages of the case before the trial court, which includes invoking the court’s authority to grant affirmative relief, effectively estops such party from later challenging that same court’s jurisdiction.

On June 22, 1998, a writ of execution was issued by the trial court. Thus, on September 17, 1998, petitioners filed an urgent motion to recall writ of execution, alleging that RTC had no jurisdiction to try the case as it was vested in the Housing and Land Use Regulatory Board (HLURB) pursuant to PD 957 (The Subdivision and Condominium Buyers Protective Decree). Conformably,

It was petitioners themselves who invoked the jurisdiction of the RTC by instituting an action for reformation of contract against private respondents. It appears that, in the proceedings before the trial court, petitioners vigorously asserted their cause from start to finish. Not even once did petitioners ever raise the

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issue of the court’s jurisdiction during the entire proceedings which lasted for 2 years. It was only after RTC rendered its decision and issued a writ of execution against them in 1998 did petitioners first raise the issue of jurisdiction ─ and it was only because said decision was unfavorable to them. Petitioners thus effectively waived their right to question the courts jurisdiction over the case they themselves filed.

Pending the resolution of the motion, petitioner requested the Chief of the PNP for his reinstatement. Under RA No. 6975, his suspension should last for only 90 days, and, having served the same, he should now be reinstated. Petitioner filed a motion in the RTC for the lifting of the order of suspension. RTC denied the motion. Trial proceeded, and the prosecution rested its case. Petitioner presented his evidence. He filed an MTC. Citing Republic v. Asuncion, he argued that since he committed the crime in the performance of his duties, the Sandiganbayan had exclusive jurisdiction over the case.

Petitioners should bear the consequence of their act. They cannot be allowed to profit from their omission to the damage and prejudice of the private respondent. This Court frowns upon the undesirable practice of a party submitting his case for decision and then accepting the judgment but only if favorable, and attacking it for lack of jurisdiction if not.

RTC denied the MTD. It, however, ordered the conduct of a preliminary hearing to determine whether or not the crime charged was committed by the petitioner in relation to his office as a member of the PNP. The prosecution manifested that it was no longer presenting any evidence in connection with the petitioner’s motion. Its evidence showed that the petitioner did not commit the offense charged in connection with the performance of his duties as a member of the Philippine Constabulary.

Public policy dictates that this Court must strongly condemn any double-dealing by parties who are disposed to trifle with the courts by deliberately taking inconsistent positions, in utter disregard of the elementary principles of justice and good faith. There is no denying that, in this case, petitioners never raised the issue of jurisdiction throughout the entire proceedings in the trial court. Instead, they voluntarily and willingly submitted themselves to the jurisdiction of said court. It is now too late in the day for them to repudiate the jurisdiction they were invoking all along.

RTC declared that the petitioner committed the crime charged while not in the performance of his official function. RTC added that upon the enactment of R.A. No. 7975, the issue had become moot and academic. The amendatory law transferred the jurisdiction over the offense charged from the Sandiganbayan to the RTC since the petitioner did not have a salary grade of “27” as provided for in or by Section 4(a)(1), (3) thereof. RTC nevertheless ordered the prosecution to amend the Information pursuant to the ruling in Republic v. Asuncion and R.A. No. 7975. The amendment consisted in the inclusion of an allegation that the offense charged was not committed by the petitioner in the performance of his duties/functions, nor in relation to his office.

Escobal vs Garchitorena: Petitioner was conducting surveillance operations on drug trafficking at a beerhouse. He got involved in a shooting incident, resulting in the death of Rodney Nueca. An amended Information was filed with the RTC charging petitioner with murder. RTC preventively suspended petitioner from the service under PD No. 971, as amended by PD 1847. General Headquarters of the PNP preventively suspended the petitioner from the service until the case was terminated. Petitioner was arrested by virtue of a warrant issued by the RTC but he posted bail and was granted temporary liberty. Petitioner pleaded not guilty to the offense charged. Petitioner filed a Motion to Quash the Information alleging that as mandated by CA No. 408, in relation to Section 1, PD No. 1822 and Section 95 of RA No. 6975, the court martial, not the RTC, had jurisdiction over criminal cases involving PNP members and officers.

The petitioner filed a MR of the order. He asserted that R.A. No. 7975 could not be applied retroactively. RTC declared that based on the petitioner’s evidence, he was on official mission when the shooting occurred. RTC ordered the public prosecutor to file a Re-Amended Information and to allege that the offense charged was committed by the petitioner in the performance of his duties/functions or in relation to his office; and, conformably to R.A. No. 7975, to thereafter transmit the

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same, as well as the complete records with the stenographic notes, to the Sandiganbayan.

resolved petitioner’s motion to dismiss on July 31, 1995, R.A. No. 7975 had already taken effect. Thus, the law should be given retroactive effect.

The Presiding Justice of the Sandiganbayan ordered the Executive Clerk of Court to return the records of Criminal Case to the court of origin. Under P.D. No. 1606, as amended by R.A. No. 7975, the RTC retained jurisdiction over the case, considering that the petitioner had a salary grade of “23.” Furthermore, the prosecution had already rested its case and the petitioner had commenced presenting his evidence in the RTC; following the rule on continuity of jurisdiction, the latter court should continue with the case and render judgment therein after trial.

The jurisdiction of the court over criminal cases is determined by the allegations in the Information or the Complaint and the statute in effect at the time of the commencement of the action, unless such statute provides for a retroactive application thereof. The jurisdictional requirements must be alleged in the Information. Such jurisdiction of the court acquired at the inception of the case continues until the case is terminated. Under Section 4(a) of P.D. No. 1606 as amended by P.D. No. 1861, the Sandiganbayan had exclusive jurisdiction in all cases involving the following:

Issue: Whether or not the Presiding Justice of the Sandiganbayan properly remanded the case to the RTC.

(1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code;

Ruling: Yes. The petitioner contends that when the amended information was filed with the RTC on February 6, 1991, P.D. No. 1606 was still in effect. Under Section 4(a) of the decree, the Sandiganbayan had exclusive jurisdiction over the case against him as he was charged with homicide with the imposable penalty of reclusion temporal, and the crime was committed while in the performance of his duties. He further asserts that although P.D. No. 1606, as amended by P.D. No. 1861 and by R.A. No. 7975 provides that crimes committed by members and officers of the PNP with a salary grade below “27” committed in relation to office are within the exclusive jurisdiction of the proper RTC, the amendment thus introduced by R.A. No. 7975 should not be applied retroactively. This is so, the petitioner asserts, because under Section 7 of R.A. No. 7975, only those cases where trial has not begun in the Sandiganbayan upon the effectivity of the law should be referred to the proper trial court.

(2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00 …. However, for the Sandiganbayan to have exclusive jurisdiction under the said law over crimes committed by public officers in relation to their office, it is essential that the facts showing the intimate relation between the office of the offender and the discharge of official duties must be alleged in the Information. It is not enough to merely allege in the Information that the crime charged was committed by the offender in relation to his office because that would be a conclusion of law.[22] The amended Information filed with the RTC against the petitioner does not contain any allegation showing the intimate relation between his office and the discharge of his duties. Hence, the RTC had jurisdiction over the offense charged when on November 24, 1995, it ordered the re-amendment of the Information to include therein an allegation that the petitioner committed the crime in relation to office. R.A.

The private complainant agrees with the contention of the petitioner. In contrast, the Office of the Special Prosecutor contends that the Presiding Justice of the Sandiganbayan acted in accordance with law when he ordered the remand of the case to the RTC. It asserts that R.A. No. 7975 should be applied retroactively. Although the Sandiganbayan had jurisdiction over the crime committed by the petitioner when the amended information was filed with the RTC, by the time it

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No. 7975 amending P.D. No. 1606 was already in effect and under Section 2 of the law:

proponent has: (1) the right to match the lowest or most advantageous proposal within 30 working days from note thereof, and (2) in the event that the original proponent is able to match the lowest or most advantageous proposal submitted, then it has the right to be awarded the project. The second right or privilege is contingent upon the actual exercise by the original proponent of the first right or privilege. Before the project could be awarded to the Original proponent, he must have been able to match the lowest or most advantageous proposal within the prescribed period. Hence, when the original proponent is able to timely matched the lowest or most advantageous propos. With all things being equal, it shall enjoy preference in the awarding of the infrastracture project.

In cases where none of the principal accused are occupying positions corresponding to salary grade “27” or higher, as prescribed in the said RA No. 6758, or PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the proper RTC, MeTC, MTC, and MCTC, as the case may be, pursuant to their respective jurisdiction as provided in BP Blg. 129. Under the law, even if the offender committed the crime charged in relation to his office but occupies a position corresponding to a salary grade below “27,” the proper RTC or MTC, as the case may be, shall have exclusive jurisdiction over the case. In this case, the petitioner was a Police Senior Inspector, with salary grade “23.” He was charged with homicide punishable by reclusion temporal. Hence, the RTC had exclusive jurisdiction over the crime charged conformably to Sections 20 and 32 of BP Blg. 129, as amended by Section 2 of R.A. No. 7691.

It is without question that in a situation where there’s no other competitive bid submitted for the BOT project that the project would be awarded to the original proponent thereof. However, when there are competitive bids submitted, the original proponent must be able to match the most advantageous or lowest bid; only when it is able to do so will the original proponent enjoy the preferential right to the award of the project over the other bidder. It is already an established fact in AGAN V. PIATCO (2004) that AC failed to match the more advantageous proposal submitted by PIATCO by the lime the 30-day working period expired on 28 November 1996.8 and since it did not exercise its right to match the most advantageous proposal within the prescribed period, it cannot assert its right to be awarded the project.

The petitioner’s contention that R.A. No. 7975 should not be applied retroactively has no legal basis. It bears stressing that R.A. No. 7975 is a substantive procedural law which may be applied retroactively. Asia’s Emerging Dragon vs DOTC: Doctrines: There is no question as to the jurisdiction of the RTC of Pasig City over the subject matter and parties in Civil Case No. 66213. The RTC can exercise original jurisdiction over cases involving the issuance of writs of certiorari, prohibition,mandamus, quo warranto, habeas 51 corpus and injunction. To recall, the Petition of AEDC before the RTC of Pasig City was for the declaration of nullity of proceedings, mandamus and injunction. The RTC of Pasig City likewise had jurisdiction over the parties, with the voluntary submission by AEDC and proper service of summons on the DOTC Secretary and the PBAC Chairman and members.

Facts: AEDC submitted an unsolicited proposal (original proponent) to the Government through the DOTC/[Manila International Airport Authority (MIAA)] for the development of NAIA International Passenger Terminal III (NAIA IPT III) under a build-operate-andtransfer arrangement pursuant to RA 6957 as amended by RA 7718 (BOT Law). The consortium composed of People's Air Cargo and Warehousing Co., Inc. (Paircargo), Phil. Air and Grounds Services, Inc. (PAGS) and Security Bank Corp. (Security Bank) (collectively, Paircargo Consortium) also submitted their competitive proposal to the PBAC. PBAC awarded the project to Paircargo. AEDC objected.

Special rights granted to original proponent in public biddings. The special rights or privileges of an original proponent come into play only when there are other proposals submitted during the public bidding of the infrastructure project. As can be gleaned from the plain language of the statutes and the IRR. The original

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In Agan Case, SC rules that in view of the absence of the requisite financial capacity of the Paircargo Consortium, predecessor of respondent PIATCO, the award by the PBAC of the contract for the construction, operation and maintenance of the NAIA IPT III is null and void.

extraordinary writ was the most expeditious and speedy remedy available to AEDC. Res judicata AEDC's Petition is that it is already barred by res judicata. AEDC entered into a compromise agreement with the Government.

In Gingoyon Case, Government filed an expropriation case as regards NAIA IPT III, which the Court granted.

Because of the compromise agreement among the parties, there was accordingly a judicial settlement of the controversy, and the Order, dated 30 April 1999, of the RTC of Pasig City was no less a judgment on the merits which may be annulled only upon the ground of extrinsic fraud. Thus, the RTC of Pasig City, in the same Order, correctly granted the dismissal of Civil Case No. 66213 with prejudice. AEDC, however, invokes the purported pressure exerted upon it by then President Joseph E. Estrada, the alleged fraud committed by the DOTC, and paragraph 2 in the afore-quoted Joint Motion to Dismiss to justify the non-application of the doctrine of res judicata to its present Petition.

Because of these rulings, AEDC claims that, being the recognized and unchallenged original proponent of the NAIA IPT III Project, it has the exclusive, clear, and vested statutory right to the award thereof. A petition for mandamus was filed by AEDC. Substantial Issue: AEDC is not entitled to a writ of mandamus, there being no specific, certain, and clear legal right to be enforced, nor duty to be performed that is clearly and peremptorily enjoined by law or by reason of official station. While the Court may concede that AEDC, as the original proponent, already expended resources in its preparation and negotiation of its unsolicited proposal, the mere fact thereof does not entitle it to the instant award of the NAIA IPT III Project. AEDC was aware that the said project would have to undergo public bidding, and there existed the possibility that another proponent may submit a more advantageous bid which it cannot match; in which case, the project shall be awarded to the other proponent and AEDC would then have no means to recover the costs and expenses it already incurred on its unsolicited proposal. It was a given business risk that AEDC knowingly undertook.

There is res judicata because: First, the Order of the RTC of Pasig City, dismissing Civil Case No. 66213, was issued on 30 April 1999. The Joint Motion to Dismiss, deemed a compromise agreement, once approved by the court is immediately executory and not appealable. Second, the Order of the RTC of Pasig City dismissing Civil Case No. 66213 pursuant to the Joint Motion to Dismiss filed by the parties constitutes a judgment on the merits.

Procedural Issues: Late filing The present claim of AEDC is rooted in the Decision of this Court in Agan. However, AEDC filed the Petition at bar only 20 months after the promulgation of the Decision in Agan on 5 May 2003. As the revised Rules now stand, a petition for certiorari may be filed within 60 days from notice of the judgment, order or resolution sought to be assailed.42 Reasonable time for filing a petition for mandamus should likewise be for the same period. The filing by the AEDC of its petition for mandamus 20 months after its supposed right to the project arose is evidently beyond reasonable time and negates any claim that the said petition for the

Third, there is no question as to the jurisdiction of the RTC of Pasig City over the subject matter and parties in Civil Case No. 66213. The RTC can exercise original jurisdiction over cases involving the issuance of writs of certiorari, prohibition,mandamus, quo warranto, habeas corpus and injunction. To recall, the Petition of AEDC before the RTC of Pasig City was for the declaration of nullity of proceedings, mandamus and injunction. The RTC of Pasig City likewise had jurisdiction over the parties, with the voluntary submission by AEDC and proper service of summons on the DOTC Secretary and the PBAC Chairman and members.

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Lastly, there is, between Civil Case No. 66213 before the RTC of Pasig City and the Petition now pending before this Court, an identity of parties, of subject matter, and of causes of action.

factual issues are involved which this Court is illequipped to resolve. Moreover, PIATCO alleges that submission of this controversy to this Court at the first instance is a violation of the rule on hierarchy of courts. They contend that trial courts have concurrent jurisdiction with this Court with respect to a special civil action for prohibition and hence, following the rule on hierarchy of courts, resort must first be had before the trial courts. Further, arbitration proceedings filed by PIATCO have already commenced.

Agan vs PIATCO: The contract for the construction and operation for the NAIA IPT III was awarded to PIATCO. Petitioners, who are employees of service providers at the MIAA and NAIA Terminal I and II, and service providers themselves, assail: a.

the provisions in the 1997 Concession Agreement and the ARCA which grant PIATCO the exclusive right to operate a commercial international passenger terminal within the Island of Luzon, except those international airports already existing at the time of the execution of the agreement.

b.

The contracts further provide that upon the commencement of operations at the NAIA IPT III, the Government shall cause the closure of Ninoy Aquino International Airport Passenger Terminals I and II as international passenger terminals.

c.

With respect to existing concession agreements between MIAA and international airport service providers regarding certain services or operations, the 1997 Concession Agreement and the ARCA uniformly provide that such services or operations will not be carried over to the NAIA IPT III and PIATCO is under no obligation to permit such carry over except through a separate agreement duly entered into with PIATCO.

d.

With respect to the petitioning service providers and their employees, upon the commencement of operations of the NAIA IPT III, they allege that they will be effectively barred from providing international airline airport services at the NAIA Terminals I and II as all international airlines and passengers will be diverted to the NAIA IPT III. The petitioning service providers will thus be compelled to contract with PIATCO alone for such services, with no assurance that subsisting contracts with MIAA and other international airlines will be respected.

Issue: Whether direct resort to the Supreme Court was a proper remedy; Ruling: YES. The rule on hierarchy of courts will not also prevent this Court from assuming jurisdiction over the cases at bar. The said rule may be relaxed when the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of this Court’s primary jurisdiction. It is easy to discern that exceptional circumstances exist in the cases at bar that call for the relaxation of the rule. Both petitioners and respondents agree that these cases are of transcendental importance as they involve the construction and operation of the country’s premier international airport. Moreover, the crucial issues submitted for resolution are of first impression and they entail the proper legal interpretation of key provisions of the Constitution, the BOT Law and its Implementing Rules and Regulations. Thus, considering the nature of the controversy before the Court, procedural bars may be lowered to give way for the speedy disposition of the instant cases. Liga ng mga Barangay vs Atienza: Liga is the national organization of all the barangays in the Philippines, which pursuant to Section 492 of RA No. 7160 (LGC), constitutes the duly elected presidents of highlyurbanized cities, provincial chapters, the metropolitan Manila Chapter, and metropolitan political subdivision chapters. Section 493 of that law provides that “the liga at the municipal, city, provincial, metropolitan political subdivision, and national levels directly elect a

Respondent PIATCO further alleges that this Court is without jurisdiction to review the instant cases as

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president, a vice-president, and 5 members of the board of directors.” All other matters not provided for in the law affecting the internal organization of the leagues of LGUs shall be governed by their respective constitution and by-laws, which must always conform to the provisions of the Constitution and existing laws. Liga adopted and ratified its own Constitution and By-laws to govern its internal organization. Liga adopted and ratified its own Election Code. Liga came out with its Calendar of Activities and Guidelines in the Implementation of the Liga Election Code of 2002, setting the synchronized elections for highly urbanized city chapters, such as the Liga Chapter of Manila, together with independent component city, provincial, and metropolitan chapters.

intervenor why direct recourse to this Court should be allowed. This Court’s original jurisdiction to issue a writ of certiorari (as well as of prohibition, mandamus, quo warranto, habeas corpus and injunction) is not exclusive, but is concurrent with the RTC and CA in certain cases. People v. Cuaresma: This concurrence of jurisdiction is not to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and also serves as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard of that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level (“inferior”) courts should be filed with the RTC, and those against the latter, with the CA. A direct invocation of the SC’s original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is a policy necessary to prevent inordinate demands upon SC’s time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court’s docket.

Respondent City Council of Manila enacted Ordinance No. 8039, Series of 2002, providing for the election of representatives of the District Chapters in the City Chapter of Manila and setting the elections for both chapters 30 days after the barangay elections. Liga sent respondent Mayor of Manila a letter requesting him that said ordinance be vetoed considering that it encroached upon, or even assumed, the functions of the Liga through legislation, a function which was clearly beyond the ambit of the powers of the City Council. Mayor signed and approved the city ordinance. Issue: Whether or not the Liga properly filed the case directly with the Supreme Court.

Santiago v. Vasquez: the propensity of litigants and lawyers to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court must be put to a halt for two reasons: (1) it would be an imposition upon the precious time of this Court; and (2) it would cause an inevitable and resultant delay, intended or otherwise, in the adjudication of cases, which in some instances had to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues because this Court is not a trier of facts.

Ruling: No. Although the instant petition is styled as a petition for certiorari, in essence, it seeks the declaration by this Court of the unconstitutionality or illegality of the questioned ordinance and executive order. It, thus, partakes of the nature of a petition for declaratory relief over which this Court has only appellate, not original, jurisdiction. As such, this petition must necessary fail, as this Court does not have original jurisdiction over a petition for declaratory relief even if only questions of law are involved.

SC will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts, and exceptional and compelling circumstances justify the availment of the extraordinary remedy of writ of certiorari, calling for the exercise of its primary jurisdiction. Petitioner’s reliance on Pimentel v. Aguirre is misplaced because the non-observance of the

Even granting arguendo that the present petition is ripe for the extraordinary writ of certiorari, there is here a clear disregard of the hierarchy of courts. No special and important reason or exceptional and compelling circumstance has been adduced by the petitioner or the

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hierarchy-of-courts rule was not an issue therein. Besides, what was sought to be nullified in the petition for certiorari and prohibition therein was an act of the President, which would have greatly affected all LGUs. When an act of the legislative department is seriously alleged to have infringed the Constitution, settling the controversy becomes the duty of this Court. The same is true when what is seriously alleged to be unconstitutional is an act of the President, who in our constitutional scheme is coequal with Congress.

classified as Grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: x x x x (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. Thus, Sandiganbayan has original exclusive jurisdiction over all offenses involving the officials enumerated in subsection (g), irrespective of their salary grades, because the primordial consideration in the inclusion of these officials is the nature of their responsibilities and functions.

Hannah Serrana vs Sandiganbayan: Petitioner was a student of the UP-Cebu (government scholar) appointed by President Joseph Estrada as a student regent of UP, to serve a one-year term. Petitioner, with her siblings and relatives, registered with the SEC the Office of the Student Regent Foundation, Inc. (OSRFI). One of the projects of the OSRFI was the renovation of the Vinzons Hall Annex. Estrada gave P15,000,000 to the OSRFI as financial assistance for the proposed renovation. The source of the funds was the Office of the President. The renovation of Vinzons Hall Annex failed to materialize. The succeeding student regent filed a complaint for Malversation of Public Funds and Property with the Office of the Ombudsman. Ombudsman found probable cause to indict petitioner and her brother Jade Ian Serana for estafa.

Issue Whether or not the Sandiganbayan may try a government scholaran** accused, along with her brother, of swindling government funds. Ruling: Yes. The jurisdiction of the Sandiganbayan is set by P.D. No. 1606, as amended, not by R.A. No. 3019, as amended. R.A. No. 3019 is a penal statute approved on August 17, 1960. The said law represses certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto. Pursuant to Section 10 of R.A. No. 3019, all prosecutions for violation of the said law should be filed with the Sandiganbayan. R.A. No. 3019 does not contain an enumeration of the cases over which the Sandiganbayan has jurisdiction. In fact, Section 4 of R.A. No. 3019 erroneously cited by petitioner, deals not with the jurisdiction of the Sandiganbayan but with prohibition on private individuals. P.D. No. 1606, as amended, defines the jurisdiction of the Sandiganbayan while R.A. No. 3019, as amended, defines graft and corrupt practices and provides for their penalties.

Petitioner moved to quash the information: (a) the Sandiganbayan has no jurisdiction over estafa; (b) petitioner is not a public officer with Salary Grade 27 and she paid her tuition fees; (c) the offense charged was not committed in relation to her office; (d) the funds in question personally came from President Estrada, not from the government. Sandiganbayan denied petitioner’s motion for lack of merit. Accused-movant’s claim that being merely a member in representation of the student body, she was never a public officer since she never received any compensation nor does she fall under Salary Grade 27, is of no moment, in view of the express provision of Section 4 of RA No. 8249 which provides:

Petitioner UP student regent is a public officer. Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a regular tuition feepaying student. This is bereft of merit. It is not only the salary grade that determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No. 1606. While the first part of Section 4(A) covers only officials with Salary Grade 27 and higher, its second part specifically

Sec. 4. Jurisdiction – The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: (A) x x x (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise

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includes other executive officials whose positions may not be of Salary Grade 27 and higher but who are by express provision of law placed under the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by express provision of law.

The information alleged, in no uncertain terms that petitioner, being then a student regent of U.P., "while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and there wilfully, unlawfully and feloniously defraud the government x x x."

Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction over Presidents, directors or trustees, or managers of governmentowned or controlled corporations, state universities or educational institutions or foundations. Petitioner falls under this category. As the Sandiganbayan pointed out, the BOR performs functions similar to those of a board of trustees of a non-stock corporation. By express mandate of law, petitioner is, indeed, a public officer as contemplated by P.D. No. 1606. Moreover, it is well established that compensation is not an essential element of public office. At most, it is merely incidental to the public office. The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP performs a legitimate governmental function by providing advanced instruction in literature, philosophy, the sciences, and arts, and giving professional and technical training. Moreover, UP is maintained by the Government and it declares no dividends and is not a corporation created for profit.

Clarit Garcia vs Sandiganbayan: To recover unlawfully acquired funds and properties in the amount of P143,052,015.29 that retired Maj. Gen. Carlos F. Garcia, his wife, petitioner Clarita, children Ian Carl, Juan Paulo and Timothy Mark had allegedly amassed and acquired, the Republic, through the Office of the Ombudsman (OMB), pursuant to RA 1379, filed with the Sandiganbayan (SB) on October 29, 2004 a petition for the forfeiture of those properties. Civil Case No. 0193 was followed by the filing of another forfeiture case, docketed as Civil Case No. 0196, this time to recover funds and properties amounting to P202,005,980.55. Civil Case No. 0196 would eventually be raffled also to the Fourth Division of the SB. Civil Case No. 0193 shall be referred to as Forfeiture I and Civil Case No. 0196 as Forfeiture II. Prior to the filing of Forfeiture II, but subsequent to the filing of Forfeiture I, the OMB charged the Garcias and 3 others with violation of RA 7080 (plunder) under an Information dated April 5, 2005 which placed the value of the property and funds plundered at P303,272,005.99. Docketed as Crim. Case No. 28107, the Information was raffled off to the Second Division of the SB. The plunder charge, as the parties’ pleadings seem to indicate, covered substantially the same properties identified in both forfeiture cases.

The offense charged was committed in relation to public office, according to the Information. Petitioner argues that even assuming that she is a public officer, the Sandiganbayan would still not have jurisdiction over the offense because it was not committed in relation to her office. According to petitioner, she had no power or authority to act without the approval of the BOR. She adds there was no Board Resolution issued by the BOR authorizing her to contract with then Estrada; and that her acts were not ratified by the governing body of the state university. Resultantly, her act was done in a private capacity and not in relation to public office.

Issue 1: Whether or not SB 4Th Division has jurisdiction over the subject matter of Forfeitures I and II as both cases are covered or included in the plunder case against the Garcias.

It is axiomatic that jurisdiction is determined by the averments in the information. More than that, jurisdiction is not affected by the pleas or the theories set up by defendant or respondent in an answer, a motion to dismiss, or a motion to quash. Otherwise, jurisdiction would become dependent almost entirely upon the whims of defendant or respondent.

Ruling: Yes, the plunder case did not absorb the forfeiture cases. Petitioner claims that the filing of the main plunder case, with its automatic forfeiture mechanism in the event of conviction, ousted the SB 4th Division of its jurisdiction over the subject matter of the forfeiture

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cases. The inclusion of the forfeiture cases with the plunder case is necessary, so petitioner claims, to obviate possible double jeopardy entanglements and colliding case dispositions. Prescinding from these premises, petitioner would ascribe grave abuse of discretion on the SB 4th Division for not granting its separate motions to dismiss the 2 forfeiture petitions and/or to consolidate them with the plunder case on the foregoing ground.

negating the notion that the crime of plunder absorbs the forfeiture cases. In a prosecution for plunder, what is sought to be established is the commission of the criminal acts in furtherance of the acquisition of illgotten wealth. On the other hand, all that the court needs to determine, by preponderance of evidence, under RA 1379 is the disproportion of respondent’s properties to his legitimate income, it being unnecessary to prove how he acquired said properties. The forfeitable nature of the properties under the provisions of RA 1379 does not proceed from a determination of a specific overt act committed by the respondent public officer leading to the acquisition of the illegal wealth.

Petitioner’s posture respecting Forfeitures I and II being absorbed by the plunder case, thus depriving the 4th Division of the SB of jurisdiction over the civil cases, is flawed by the assumptions holding it together, the first assumption being that the forfeiture cases are the corresponding civil action for recovery of civil liability ex delicto. As correctly ruled by the SB 4th Division in its May 20, 2005 Resolution, the civil liability for forfeiture cases does not arise from the commission of a criminal offense, thus:

Given the foregoing considerations, petitioner’s thesis on possible double jeopardy entanglements should a judgment of conviction ensue in Crim. Case 28107 collapses entirely. Double jeopardy, as a criminal law concept, refers to jeopardy of punishment for the same offense, suggesting that double jeopardy presupposes two separate criminal prosecutions. Proceedings under RA 1379 are, to repeat, civil in nature. As a necessary corollary, one who is sued under RA 1379 may be proceeded against for a criminal offense. Thus, the filing of a case under that law is not barred by the conviction or acquittal of the defendant in Crim. Case 28107 for plunder.

Such liability is based on a statute that safeguards the right of the State to recover unlawfully acquired properties. The action of forfeiture arises when a “public officer or employee *acquires+ during his incumbency an amount of property which is manifestly out of proportion of his salary x x x and to his other lawful income x x x.” Such amount of property is then presumed prima facie to have been unlawfully acquired. Thus “if the respondent *public official+ is unable to show to the satisfaction of the court that he has lawfully acquired the property in question, then the court shall declare such property forfeited in favor of the State, and by virtue of such judgment the property aforesaid shall become property of the State. x x x

Issue 2: Whether or not Sandiganbayan acquired jurisdiction over the persons of petitioner and her children. Ruling 2: No. Petitioner argues that the SB did not acquire jurisdiction over her person and that of her children due to a defective substituted service of summons. Sec. 7, Rule 14 of the 1997 Revised Rules of Civil Procedure clearly provides for the requirements of a valid substituted service of summons, thus: SEC. 7. Substituted service.—If the defendant cannot be served within a reasonable time as provided in the preceding section [personal service on defendant], service may be effected (a) by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof.

EO 14, Series of 1986, albeit defining only the jurisdiction over cases involving ill-gotten wealth of former President Marcos, his immediate family and business associates, authorizes under its Sec. 3 the filing of forfeiture suits under RA 1379 which will proceed independently of any criminal proceedings. The Court, in Republic v. Sandiganbayan, interpreted this provision as empowering the Presidential Commission on Good Government to file independent civil actions separate from the criminal actions. A forfeiture case under RA 1379 arises out of a cause of action separate and different from a plunder case, thus

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was also not strictly complied with as the substituted service was made not at petitioner’s house or residence but in the PNP Detention Center where Maj. Gen. Garcia is detained, even if the latter is of suitable age and discretion. Hence, no valid substituted service of summons was made.

A court must acquire jurisdiction over a party for the latter to be bound by its decision or orders. Valid service of summons, by whatever mode authorized by and proper under the Rules, is the means by which a court acquires jurisdiction over a person. Summons for Forfeitures I and II were served personally on Maj. Gen. Carlos Flores Garcia, who is detained at the PNP Detention Center, who acknowledged receipt thereof by affixing his signature. Substituted service of summons for both Forfeitures I and II were made on petitioner and her children through Maj. Gen. Garcia at the PNP Detention Center. However, such substituted services of summons were invalid for being irregular and defective.

The stringent rules on valid service of summons for the court to acquire jurisdiction over the person of the defendants, however, admits of exceptions, as when the party voluntarily submits himself to the jurisdiction of the court by asking affirmative relief. In the instant case, the Republic asserts that petitioner is estopped from questioning improper service of summons since the improvident service of summons in both forfeiture cases had been cured by their (petitioner and her children) voluntary appearance in the forfeiture cases. The Republic points to the various pleadings filed by petitioner and her children during the subject forfeiture hearings. We cannot subscribe to the Republic’s views.

In Manotoc v. Court of Appeals, we broke down the requirements to be: (1) Impossibility of prompt personal service, i.e., the party relying on substituted service or the sheriff must show that defendant cannot be served promptly or there is impossibility of prompt service within a reasonable time. Reasonable time being “so much time as is necessary under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that should be done, having a regard for the rights and possibility of loss, if any[,] to the other party.” Moreover, the sheriff must show several attempts for personal service of at least 3 times on at least 2 different dates.

Special appearance to question a court’s jurisdiction is not voluntary appearance (Sec. 20, Rule 14). The pleadings filed by petitioner in the subject forfeiture cases do not show that she voluntarily appeared without qualification. Petitioner filed the following pleadings in Forfeiture I: (a) motion to dismiss; (b) motion for reconsideration and/or to admit answer; (c) second motion for reconsideration; (d) motion to consolidate forfeiture case with plunder case; and (e) motion to dismiss and/or to quash Forfeiture I. And in Forfeiture II: (a) motion to dismiss and/or to quash Forfeiture II; and (b) motion for partial reconsideration.

(2) Specific details in the return, i.e., the sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service.

The foregoing pleadings, particularly the motions to dismiss, were filed by petitioner solely for special appearance with the purpose of challenging the jurisdiction of the SB over her person and that of her 3 children. Petitioner asserts therein that SB did not acquire jurisdiction over her person and of her 3 children for lack of valid service of summons through improvident substituted service of summons in both Forfeiture I and Forfeiture II. This stance the petitioner never abandoned when she filed her motions for reconsideration, even with a prayer to admit their attached Answer Ex Abundante Ad Cautelam dated January 22, 2005 setting forth affirmative defenses with a claim for damages. And the other subsequent pleadings, likewise, did not abandon her stance and

(3) Substituted service effected on a person of suitable age and discretion residing at defendant’s house or residence; or on a competent person in charge of defendant’s office or regular place of business. From the foregoing requisites, it is apparent that no valid substituted service of summons was made on petitioner and her children, as the service made through Maj. Gen. Garcia did not comply with the first 2 requirements mentioned above for a valid substituted service of summons. Moreover, the third requirement

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defense of lack of jurisdiction due to improper substituted services of summons in the forfeiture cases. Evidently, from the foregoing Sec. 20, Rule 14 of the 1997 Revised Rules on Civil Procedure, petitioner and her sons did not voluntarily appear before the SB constitutive of or equivalent to service of summons.

Platinum moved to reconsider the order of Judge Diokno but its motion was denied. Platinum filed a petition for certiorari at the CA assailing, among others, the order of Judge Diokno allowing the consolidation of Civil Cases. CA annulled the assailed order but left it to Judge Diokno to decide whether to return the Civil Case to Judge Tensuan, or to keep it in his docket and decide it as a separate case. Platinum filed a motion for partial reconsideration of the decision of the CA, praying that the Civil Case be returned to Branch 146 or re-raffled to another RTC Branch of Makati. Said motion was denied.

Platinum Tours and Travel, Inc. vs Panlilio: Platinum filed a complaint for a sum of money with damages against Pan Asiatic Travel Corporation (PATC) and its president Nelida Galvez. Platinum sought to collect payment for the airline tickets which PATC bought from it. RTC of Makati City, Branch 62, rendered a judgment by default in favor of Platinum and ordered PATC and Galvez to solidarily pay Platinum. A writ of execution was issued on motion of Platinum. Pursuant to the writ, Manila Polo Club Proprietary Membership Certificate in the name of Galvez was levied upon and sold.

Issue: Whether or not RTC-Branch 62’s basis for acquiring jurisdiction over the civil case was extinguished when Judge Diokno’s July 23, 1996 order allowing the consolidation of the two cases was annulled and set aside.

Jose Panlilio filed a motion to intervene in the Civil Case claiming that Galvez had executed in his favor a chattel mortgage over her shares of stock in the Manila Polo Club to secure her loan and that Galvez had already delivered to him the stock certificates. RTC denied Panlilio’s motion for intervention because (1) a decision had already been rendered in this case and that the only matters at issue is the propriety of the execution; (2) it will only delay or prejudice the adjudication of the rights of the original parties; and, (3) the Intervenor’s rights may be fully protected in a separate action.

Ruling: No. Since jurisdiction is the power to hear and determine a particular case, it does not depend upon the regularity of the exercise by the court of that power or on the correctness of its decisions. Panlilio’s collection case falls within the jurisdiction of the RTC of Makati, Branch 62. The fact that the CA subsequently annulled Judge Diokno’s order granting the consolidation, did not affect the jurisdiction of the court which issued the said order.

RTC declared the execution sale null and void due to irregularities in the conduct thereof.

“Jurisdiction” should be distinguished from the “exercise of jurisdiction.” Jurisdiction refers to the authority to decide a case, not the orders or the decision rendered therein. Accordingly, where a court has jurisdiction over the person and the subject matter, as in the instant case, the decision on all questions arising from the case is but an exercise of such jurisdiction. Any error that the court may commit in the exercise of its jurisdiction is merely an error of judgment which does not affect its authority to decide the case, much less divest the court of the jurisdiction over the case.

Panlilio filed against Galvez a collection case with application for a writ of preliminary attachment of the Manila Polo Club shares. The case was raffled to Branch 146 of the RTC of Makati City. Panlilio again attempted to intervene in the other Civil Case, this time by incorporating in his complaint a motion to consolidate both Civil Cases. Judge Salvador Tensuan of Branch 146 granted the motion for consolidation on condition that Judge Roberto Diokno of Branch 62 would not object thereto. Judge Diokno allowed the consolidation of the 2 cases and setting for hearing Panlilio’s application for a writ of preliminary attachment.

Moreover, the instant petition is premature and speculative. Had Platinum waited until Judge Diokno decided on what to do with Civil Case No. 96-365, the

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parties would have been spared the trouble and the expense of seeking recourse from this Court, which in turn would have had one petition less in its docket. The unfounded fear that Civil Case No. 96-365 would unduly delay the final resolution of Civil Case No. 94-1634, if the former were retained by Branch 62, made Platinum act with haste.

latter that respondent is scheduled to move in on August 22, 1990. On October 5, 1990, respondent returned to the Philippines only to find that his condominium unit was still unlivable. Exasperated, he was constrained to send petitioner a letter dated November 21, 1990 demanding payment for the damages he sustained. Petitioner ignored such demand, prompting respondent to file with the RTC, Makati City, a complaint against the former for specific performance and damages.

Manila Bankers vs Ng Kok Wei: Respondent Eddy Ng Kok Wei is a Singaporean businessman who ventured into investing in the Philippines. On November 29, 1988, respondent, in a Letter of Intent addressed to petitioner, expressed his intention to purchase a condominium unit at Valle Verde Terraces. On December 5, 1988, respondent paid petitioner a reservation fee of P50,000 for the purchase of a 46square meter condominium unit valued at P860,922.00. On January 16, 1989, respondent paid 90% of the purchase price or P729,830.00.

During the pendency of the case, respondent finally accepted the condominium unit and on April 12, 1991, occupied the same. Thus, respondent’s cause of action has been limited to his claim for damages. RTC found petitioner liable for payment of damages due to the delay in the performance of its obligation to the respondent. CA affirmed and denied the MR.

Petitioner executed a Contract to Sell in favor of the respondent. The contract expressly states that the condominium unit “shall substantially be completed and delivered” to the respondent “within 15 months” from February 8, 1989 or on May 8, 1990, and that “(S)hould there be no substantial completion and fail(ure) to deliver the unit on the date specified, a penalty of 1% of the total amount paid (by respondent) shall be charged against (petitioner)”.

Issue: Whether or not RTC has jurisdiction over the case. Ruling: Yes. On petitioner’s contention that the RTC has no jurisdiction over the instant case, Section 1 (c) of PD No. 1344, as amended, provides: “SECTION 1. – In the exercise of its functions to regulate the real estate trade and business and in addition to its powers provided for in Presidential Decree No. 957, the National Housing Authority [now Housing and Land Use Regulatory Board (HLURB) shall have exclusive jurisdiction to hear and decide cases of the following nature: x x x

Considering that the stipulated 15-month period was at hand, respondent returned to the Philippines in April, 1990. In a letter dated April 5, 1990, petitioner informed respondent of the substantial completion of his condominium unit, however, due to various uncontrollable forces (such as coup d‘ etat attempts, typhoon and steel and cement shortage), the final turnover is reset to May 31, 1990.

C. Cases involving specific performance of contractual and statutory obligations filed by buyers of subdivision lots or condominium units against the owner, developer, dealer, broker or salesman. x x x.”

Meanwhile, on July 5, 1990, upon receipt of petitioner’s notice of delivery dated May 31, 1990, respondent again flew back to Manila. He found the unit still uninhabitable for lack of water and electric facilities.

Thus, it is the HLURB which has jurisdiction. We have consistently held that complaints for specific performance with damages by a lot or condominium unit buyer against the owner or developer falls under the exclusive jurisdiction of the HLURB.

Once more, petitioner issued another notice to move-in addressed to its building administrator advising the

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While it may be true that the RTC is without jurisdiction over the case, petitioner’s active participation in the proceedings estopped it from assailing such lack of it. It is an undesirable practice of a party participating in the proceedings and submitting its case for decision and then accepting the judgment, only if favorable, and attacking it for lack of jurisdiction, when adverse.

GSIS argues: (1) that there was no proof of bad faith nor could fraud or malice be attributed to the petitioner when it erroneously caused the issuance of certificates of title over the subject lots despite the fact that these were expressly excluded from the foreclosure sale; (2) an action for reconveyance based on implied or constructive trust prescribes in ten years from the time of its creation or upon the alleged fraudulent registration of the property, in this case when the ownership was consolidated to GSIS. The action was instituted more than fourteen years later; (3) the properties were not returned because no such obligation exists under the loan and mortgage agreement.

Here, petitioner failed to raise the question of jurisdiction before the RTC and CA. In effect, petitioner confirmed and ratified RTC’s jurisdiction over this case. Certainly, it is now in estoppel and can no longer question the RTC’s jurisdiction. GSIS vs Santiago: Deceased spouses Jose Zulueta and Soledad Ramos obtained various loans secured by 4 real estate mortgages from GSIS (Period: Sept. 1956 – Oct. 1957; Amount: 3.1M). They failed to pay so GSIS foreclosed the mortgages.

SC: At the outset, it bears emphasis that the jurisdiction of this Court in a petition for review on certiorari under Rule 45 of the Rules of Court, as amended, is limited to reviewing only errors of law. This Court is not a trier of facts. Case law has it that the findings of the trial court especially when affirmed by the CA are binding and conclusive upon this Court. Although there are exceptions to the said rule, we find no reason to deviate therefrom. By assailing the findings of facts of the trial court as affirmed by the CA, that it acted in bad faith, the petitioner thereby raised questions of facts in its petition.

Some of these properties were later sold in a public auction at a bid price of 5.2M. 91 lots were expressly excluded from the auction since the lots were sufficient to pay for all the mortgage debts. The sale was annotated in such a way that the excluded lots from the auction are specifically indicated. An Affidavit of Consolidation of Ownership was executed by defendant GSIS over Zulueta’s lots, including the lots, which as earlier stated, were already excluded from the foreclosure. GSIS sold these properties to Yorkstown Development Corporation which sale was disapproved by the Office of the President. The sold properties were returned to GSIS and they began disposing every lot.

Katon vs Palanca: DOCTRINE: Where prescription, lack of jurisdiction or failure to state a cause of action clearly appear from the complaint filed with the trial court, the action may be dismissed motu proprio by the Court of Appeals, even if the case has been elevated for review on different grounds. Verily, the dismissal of such cases appropriately ends useless litigations.

Antonio Zulueta and Eduardo Santiago (represented Zulueta) executed an agreement whereby the former transferred all his rights and interests over the excluded lots. Pursuant to this agreement, Santiago wrote a demand letter to GSIS for the return of 81 excluded lots.

Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the December 8, 2000 Decision and the November 20, 2001 Resolution of the Court of Appeals in CA-GR SP No. 57496.

Reconveyance (RTC): GSIS argues that the action was barred by Statute of Limitations and/or Laches, and that the complaint did not state a cause of action. Santiago died during the pendency of the trial so his wife replaced him. Court decided in favor of Santiago – 78 lots (sorry hindi inexplain ng case kung bakit pabawas ng pabawas yung lots). CA affirmed. MR denied.

FACTS: On August 2, 1963, herein Petitioner Katon filed a request with the District Office of the Bureau of Forestry in Puerto Princesa, Palawan, for the reclassification of a piece of real property known as Sombrero Island. Then Asst. Director of Forestry informed the Director of Lands, Manila, that since the subject land was no longer needed for forest purposes,

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the same is therefore certified and released as agricultural land for disposition under the Public Land Act.

Motion was his first and only Reconsideration of the aforesaid Order.

Motion

for

Ruling of the Court of Appeals: Instead of limiting itself to the allegation of grave abuse of discretion, the CA ruled on the merits. In the Assailed Resolution, the CA acknowledged that it had erred when it ruled on the merits of the case. Nonetheless, the Complaint was dismissed motu proprio by the challenged Resolution of the CA Special Division of five members – with two justices dissenting – pursuant to its "residual prerogative" under Section 1 of Rule 9 of the Rules of Court.

Records show that on November 8, 1996, [R]espondent Juan Fresnillo filed a homestead patent application for a portion of the island. Records also reveal that [R]espondent Jesus Gapilango filed a homestead application. Respondent Manuel Palanca, Jr. was issued Homestead Patent on March 3, 1977 of Sombrero Island. Respondents aver that they are all bona fide and lawful possessors of their respective portions and have declared said portions for taxation purposes and that they have been faithfully paying taxes thereon for twenty years. Respondents contend that the petitioner has no legal capacity to sue insofar as the island is concerned because an action for reconveyance can only be brought by the owner and not a mere homestead applicant and that petitioner is guilty of estoppel by laches for his failure to assert his right over the land for an unreasonable and unexplained period of time.

Issues 1. Is the Court of Appeals correct in resolving the Petition for Certiorari based on an issue not raised (the merits of the case) in the Petition? 2. Is the Court of Appeals correct in invoking its alleged ‘residual prerogative’ under Section 1, Rule 9 of the 1997 Rules of Civil Procedure in resolving the Petition on an issue not raised in the Petition?"

In the instant case, petitioner seeks to nullify the homestead patents and original certificates of title issued in favor of the respondents covering certain portions of the Sombrero Island as well as the reconveyance of the whole island in his favor. The petitioner claims that he has the exclusive right to file an application for homestead patent over the whole island since it was he who requested for its conversion from forest land to agricultural land."

The Court’s Ruling: The Petition has no merit. Propriety of Ruling on the Merits: This is not the first time that petitioner has taken issue with the propriety of the CA’s ruling on the merits. The CA even corrected itself in its November 20, 2001 Resolution. Suffice it to say that the appellate court indeed acted ultra jurisdictio in ruling on the merits of the case when the only issue that could have been, and was in fact, raised was the alleged grave abuse of discretion committed by the trial court in denying petitioner’s Motion for Reconsideration. Settled is the doctrine that the sole office of a writ of certiorari is the correction of errors of jurisdiction. Such writ does not include a review of the evidence, more so when no determination of the merits has yet been made by the trial court, as in this case.

Respondents filed their Answer with Special and/or Affirmative Defenses and Counterclaim in due time. On June 30, 1999, they also filed a Motion to Dismiss on the ground of the alleged defiance by petitioner of the trial court’s Order to amend his Complaint so he could thus effect a substitution by the legal heirs of the deceased, Respondent Gapilango. The Motion to Dismiss was granted by the RTC in its Order dated July 29, 1999.

IMPORTANT! Dismissal for Prescription and Lack of Jurisdiction: Petitioner has confused what the CA adverted to as its "residual prerogatives" under Section 1 of Rule 9 of the Rules of Court with the "residual jurisdiction" of trial courts over cases appealed to the CA. Under Section 1 of Rule 9 of the Rules of Court, defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived, except

Petitioner’s Motion for Reconsideration of the July 29, 1999 Order was denied by the trial court in its Resolution dated December 17, 1999, for being a third and prohibited motion. In his Petition for Certiorari before the CA, petitioner charged the trial court with grave abuse of discretion on the ground that the denied

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when (1) lack of jurisdiction over the subject matter, (2) litis pendentia, (3) res judicata and (4) prescription are evident from the pleadings or the evidence on record. In the four excepted instances, the court shall motu proprio dismiss the claim or action.

mistake in obtaining a document of title over the parcel of land claimed by the plaintiff. In these cases, the nullity arises not from fraud or deceit, but from the fact that the director of the Land Management Bureau had no jurisdiction to bestow title; hence, the issued patent or certificate of title was void ab initio.

On the other hand, "residual jurisdiction" is embodied in Section 9 of Rule 41 of the Rules of Court. The "residual jurisdiction" of trial courts is available at a stage in which the court is normally deemed to have lost jurisdiction over the case or the subject matter involved in the appeal. This stage is reached upon the perfection of the appeals by the parties or upon the approval of the records on appeal, but prior to the transmittal of the original records or the records on appeal.In either instance, the trial court still retains its so-called residual jurisdiction to issue protective orders, approve compromises, permit appeals of indigent litigants, order execution pending appeal, and allow the withdrawal of the appeal.

In an alternative action for reconveyance, the certificate of title is also respected as incontrovertible, but the transfer of the property or title thereto is sought to be nullified on the ground that it was wrongfully or erroneously registered in the defendant’s name. As with an annulment of title, a complaint must allege two facts that, if admitted, would entitle the plaintiff to recover title to the disputed land: (1) that the plaintiff was the owner of the land, and (2) that the defendant illegally dispossessed the plaintiff of the property. Therefore, the defendant who acquired the property through mistake or fraud is bound to hold and reconvey to the plaintiff the property or the title thereto.

The CA’s motu proprio dismissal of petitioner’s Complaint could not have been based, therefore, on residual jurisdiction under Rule 41. Undeniably, such order of dismissal was not one for the protection and preservation of the rights of the parties, pending the disposition of the case on appeal. What the CA referred to as residual prerogatives were the general residual powers of the courts to dismiss an action motu proprio upon the grounds mentioned in Section 1 of Rule 9 of the Rules of Court and under authority of Section 2 of Rule 1 of the same rules.

In the present case, nowhere in the Complaint did petitioner allege that he had previously held title to the land in question. On the contrary, he acknowledged that the disputed island was public land, that it had never been privately titled in his name, and that he had not applied for a homestead under the provisions of the Public Land Act. This Court has held that a complaint by a private party who alleges that a homestead patent was obtained by fraudulent means, and who consequently prays for its annulment, does not state a cause of action; hence, such complaint must be dismissed.

Jurisdiction over the subject matter is conferred by law and is determined by the allegations in the complaint and the character of the relief sought. The question is, did the Complaint sufficiently allege an action for declaration of nullity of the free patent and certificate of title or, alternatively, for reconveyance? Or did it plead merely for reversion? The Complaint did not sufficiently make a case for any of such actions, over which the trial court could have exercised jurisdiction.

Neither can petitioner’s case be one for reversion. Section 101 of the Public Land Act categorically declares that only the solicitor general or the officer in his stead may institute such an action. A private person may not bring an action for reversion or any other action that would have the effect of canceling a free patent and its derivative title, with the result that the land thereby covered would again form part of the public domain.

In an action for nullification of title or declaration of its nullity, the complaint must contain the following allegations: 1) that the contested land was privately owned by the plaintiff prior to the issuance of the assailed certificate of title to the defendant; and 2) that the defendant perpetuated a fraud or committed a

Consequently, the dismissal of the Complaint is proper not only because of lack of jurisdiction, but also because of the utter absence of a cause of action, a defense raised by respondents in their Answer.(Section 2 of Rule 3 of the Rules of Court)

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other reasons, the number of votes the RTC tallied and tabulated exceeded the number of those who actually voted and the votes cast for the position of Mayor, and (2) the RTC had constructively relinquished its jurisdiction by the issuance of the Order dated November 27, 2007 directing the transmittal of the records of the case.

Finally, assuming that petitioner is the proper party to bring the action for annulment of title or its reconveyance, the case should still be dismissed for being time-barred. Clearly, the suit was brought way past ten years from the date of the issuance of the Certificate, the prescriptive period for reconveyance of fraudulently registered real property.

The Second Division of the COMELEC issued on January 4, 2008 a 60-day TRO directing: (1) the RTC to cease and desist from issuing or causing the issuance of a writ of execution or implementing the Special Order; and (2) Cunanan to continue performing the functions of Mayor of Magalang.

Pecson vs COMELEC: Pecson and Cunanan were candidates for the mayoralty position in the Municipality of Magalang, Province of Pampanga in the May 2007 elections. Cunanan was proclaimed the winning candidate, garnering a total of 12,592 votes as against Pecson’s 12,531, or a margin of 61 votes. Cunanan took his oath and assumed the position of Mayor of Magalang. Soon thereafter, Pecson filed an election protest with the RTC.

The COMELEC’s Second Division denied Cunanan’s petition in a Resolution dated March 6, 2008. It ruled that: (1) the resolution of the motion for execution pending appeal is part of the residual jurisdiction of the RTC to settle pending incidents; the motion was filed prior to the expiration of the period to appeal and while the RTC was still in possession of the original record; and (2) there is good reason to justify the execution of the Decision pending appeal, as Pecson’s victory was clearly and manifestly established.

The RTC rendered a Decision in Pecson’s favor. The RTC ruled that Pecson received a total of 14,897 votes as against Cunanan’s 13,758 – a vote margin of 1,139. Cunanan received a copy of the Decision on November 26, 2007 and filed a Notice of Appeal the day after. The RTC issued on November 27, 2008 an Order noting the filing of the notice of appeal and the payment of appeal fee and directing the transmittal of the records of the case to the Electoral Contests Adjudication Department (ECAD) of the COMELEC. Pecson, on the other hand, filed on November 28, 2007 an Urgent Motion for Immediate Execution Pending Appeal, claiming that Section 11, Rule 14 of the Rules of Procedure in Election Contests before the Courts Involving Elective Municipal and Barangay Officials (Rules) allows this remedy.

Pecson thus asked for the issuance of a writ of execution via an Ex-Parte Motion. Despite Cunanan’s opposition, the RTC granted Pecson’s motion and issued the writ of execution on March 11, 2008. Pecson thereafter assumed the duties and functions of Mayor of Magalang. On Cunanan’s motion, the COMELEC en banc issued its Resolution dated May 21, 2008 reversing the ruling of the Second Division insofar as it affirmed the RTC’s findings of good reasons to execute the decision pending appeal. It affirmed the authority of the RTC to order execution pending appeal; it however nullified the March 11, 2008 writ of execution on the ground that the RTC could no longer issue the writ because it had lost jurisdiction over the case after transmittal of the records and the perfection of the appeals of both Cunanan and Pecson (to be accurate, the lapse of Pecson’s period to appeal).

The RTC granted Pecson’s motion for execution pending appeal via a Special Order dated December 3, 2007 (Special Order) but suspended, pursuant to the Rules, the actual issuance of the writ of execution for twenty (20) days. Cunanan filed with the COMELEC a Petition for Application of Preliminary Injunction with Prayer for Status Quo Ante Order/Temporary Restraining Order (TRO) with Prayer for Immediate Raffle. He argued in his petition that: (1) the RTC Decision did not clearly establish Pecson’s victory or his (Cunanan’s) defeat – a requirement of Section 11, Rule 14 of the Rules; among

Threatened to be unseated, Pecson asked, as interim relief, for the issuance of a Status Quo Order.

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ISSUE Whether or not the writ of execution the RTC issued on March 11, 2008 was void because the RTC could no longer issue the writ because of the lapse of the period for appeal, and because the RTC no longer held the records of the election contest which had then been transmitted to the ECAD-COMELEC.

Other than the clarity of Pecson’s victory under the RTC Decision, the Special Order cited good and special reasons that justified an execution pending appeal, specifically: (1) the need to give as much recognition to the worth of a trial judge’s decision as that which is initially given by the law to the proclamation by the board of canvassers; (2) public interest and/or respect for and giving meaning to the will of the electorate; and (3) public policy – something had to be done to deal a death blow to the pernicious grab-the-proclamationprolong-the-protest technique often, if not invariably, resorted to by unscrupulous politicians who would render nugatory the people’s verdict against them.

HELD No. The writ of execution issued by the RTC is a mere administrative enforcement medium of the Special Order – the main order supporting Pecson’s motion for the issuance of a writ of execution. The writ itself cannot and does not assume a life of its own independent from the Special Order on which it is based. Certainly, its nullification does not carry with it the nullification of the Special Order. This consequence does not of course hold true in the reverse situation – the nullification of the Special Order effectively carries with it the nullification of its implementing writ and removes the basis for the issuance of another implementing writ. In the present case, the reality is that if and when we ultimately affirm the validity of the Special Order, nothing will thereafter prevent the RTC from issuing another writ.

The term for mayor consists of only three (3) years. One year and six months has lapsed since the May 2007 election; thus, less than two years are left of the elected mayor’s term. The election protest, while already decided at the RTC level, is still at the executionpending-appeal stage and is still far from the finality of any decision on the merits, given the available appellate remedies and the recourses available through special civil actions.

Another legal reality is that the COMELEC is wrong in its ruling that the RTC could no longer actually issue the writ on March 11, 2008 because it no longer had jurisdiction to do so after the appeal period lapsed and after the records were transmitted to the ECADCOMELEC. That the RTC is still in possession of the records and that the period to appeal (of both contending parties) must have not lapsed are important for jurisdictional purposes if the issue is the authority of the RTC to grant a Special Order allowing execution pending appeal; they are requisite elements for the exercise by the RTC of its residual jurisdiction to validly order an execution pending appeal, not for the issuance of the writ itself. This is clearly evident from the cited provision of the Rules which does not require the issuance of the implementing writ within the above limited jurisdictional period. The RTC cannot legally issue the implementing writ within this limited period for two reasons: (1) the cited twenty-day waiting period under Section 11(b); and (2) the mandatory immediate transmittal of the records to the ECAD of the COMELEC under Section 10 of the Rules.

II.

RULES 1 TO 5 (inc. 1991 Revised Rule on Summary Procedure)

A.

Actions: meaning and commencement

When is an action commenced? Upon the timely payment of the correct docket fees. Rule 1, Section 5. Commencement of action. — A civil action is commenced by the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the dated of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court. Ruby Shelter Builders & Realty Dev. Corp. vs Formaran: Petitioner obtained a loan from respondents Romeo Tan and Roberto Obiedo, secured by REM. In a MOA, Tan and Obiedo granted petitioner an extension. In the event that petitioner is able to redeem any of the parcels of land, the Deed of Absolute Sale covering the said property shall be nullified and have no force and

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effect; and Tan and Obiedo shall then return the owner’s duplicate of the TCT to petitioner and also execute a Deed of Discharge of Mortgage. However, if petitioner is unable to redeem the parcels of land within the period, Tan and Obiedo could already present the Deeds of Absolute Sale to the Register of Deeds so Tan and Obiedo could acquire TCTs to the properties in their names.

Sale. Based on the allegations and reliefs in the Complaint alone, one would get the impression that the titles to the real properties still rest with petitioner; and that the interest of Tan and Obiedo in the same lies only in the Deeds of Absolute Sale sought to be annulled. Petitioner failed to mention in its Complaint that Tan and Obiedo already had the MOA, which clearly provided for the execution of the Deeds of Absolute Sale, registered on the TCTs over the parcels of land, then still in the name of petitioner. After Tan and Obiedo had the Deeds of Absolute Sale notarized and presented to the Register of Deeds, they were already issued TCTs over the real properties, in their own names. Tan and Obiedo have also acquired possession of the properties, enabling them to demolish the improvements thereon.

Upon filing its Complaint with the RTC, petitioner paid P13,644.25 for docket and other legal fees, as assessed by the Office of the Clerk of Court. The Clerk of Court initially considered the case as an action incapable of pecuniary estimation and computed the docket and other legal fees due thereon according to Section 7(b)(1), Rule 141 of the Rules of Court. Tan filed before the RTC an Omnibus Motion in which he contended that the Civil Case involved real properties, the docket fees for which should be computed in accordance with Section 7(a), not Section 7(b)(1), of Rule 141 of the Rules of Court, as amended by A.M. No. 04-2-04-SC. Since petitioner did not pay the appropriate docket fees, RTC did not acquire jurisdiction.

It is, thus, suspect that petitioner kept mum about these facts and circumstances. Even though the MOA was supposed to have long been registered on its TCTs over the parcels of land, petitioner did not pray for the removal of the same as a cloud on its title. In the same vein, although petitioner alleged that Tan and Obiedo forcibly took physical possession of the properties, petitioner did not seek the restoration of such possession to itself. And despite learning that Tan and Obiedo already secured TCTs over the properties in their names, petitioner did not ask for the cancellation of said titles. The only logical and reasonable explanation is that petitioner is reluctant to bring to the attention of the Court certain facts and circumstances, keeping its Complaint safely worded, so as to institute only an action for annulment of Deeds of Absolute Sale. Petitioner deliberately avoided raising issues on the title and possession of the real properties that may lead the Court to classify its case as a real action.

Tan asked the RTC to issue an order requiring petitioner to pay the correct docket fees; and should petitioner fail to do so, to deny and dismiss the prayer of petitioner for the annulment of the Deeds of Absolute Sale for having been executed in contravention of the law or of the MOA as pactum commisorium. If it was a real action the docket fees would have been P720,392.60. SC: Real action. To resolve the issue of whether petitioner paid the correct docket fees, it is necessary to determine the true nature of its Complaint. The nature of an action is determined by the allegations in the body of the pleading or Complaint itself, rather than by its title or heading. However, the Court finds it necessary, in ascertaining the true nature of the Civil Case, to take into account significant facts and circumstances beyond the Complaint of petitioner, facts and circumstances which petitioner failed to state in its Complaint but were disclosed in the preliminary proceedings before the court a quo.

The allegations and reliefs petitioner sought in its Complaint appears to be ultimately a real action, involving as they do the recovery by petitioner of its title to and possession of the parcels of land from Tan and Obiedo. A real action is one in which the plaintiff seeks the recovery of real property; or, as indicated in what is now Section 1, Rule 4 of the Rules of Court, a real action is an action affecting title to or recovery of possession of real property.

Petitioner persistently avers that its Complaint is primarily for the annulment of the Deeds of Absolute

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While it is true that petitioner does not directly seek the recovery of title or possession of the property, his action for annulment of sale and his claim for damages are closely intertwined with the issue of ownership of the building which, under the law, is considered immovable property, the recovery of which is petitioner's primary objective. An action for the annulment or rescission of a sale of real property does not operate to efface the fundamental and prime objective and nature of the case, which is to recover said real property. It is a real action. Unfortunately, and evidently to evade payment of the correct amount of filing fee, Manalo never alleged in the body of his amended petition, much less in the prayer portion thereof, the assessed value of the subject res, or, if there is none, the estimated value thereof, to serve as basis for the receiving clerk in computing and arriving at the proper amount of filing fee due thereon, as required under Section 7 of this Court’s en banc resolution of 04 September 1990.

respondent substantially complied with the rules by paying the appeal fee in full and attaching the proper documents in her motion for reconsideration. SLU insists that the VA decision had already become final for failure of respondent to pay the docket fees on time. SC: Whether or not jurisdiction was acquired by the appellate court by virtue of the timely filing and payment of the correct docket fees. Cobarrubias’ petition should NOT be reinstated because of her failure to pay the appeal fee within the reglementary period. Appeal is not a natural right but a mere statutory privilege. Thus, appeal must be made strictly in accordance with the provision set by law. Rule 43 provides that appeals from the judgment of the VA shall be taken to the CA, by filing a petition for review within 15 days from the receipt of the notice of judgment. Furthermore, upon the filing of the petition, the petitioner shall pay to the CA clerk of court the docketing and other lawful fees; non-compliance with the procedural requirements shall be a sufficient ground for the petition’s dismissal. Thus, payment in full of docket fees within the prescribed period is not only mandatory, but also jurisdictional.

St. Louis University, Inc. vs Cobarrubias: Cobbarubias is an associate professor of petitioner and a member of the Union. She was placed on forced leave by petitioner pursuant to a provision in the CBA which provides that: “Section 7.7. For teaching employees in college who fail the yearly evaluation, the following provisions shall apply: (a) Teaching employees who are retained for 3 cumulative years in 5 years shall be on forced leave for 1 regular semester during which period all benefits due them shall be suspended.” Cobbarubias resorted to the grievance machinery, but failed to resolve the dispute. Respondent then filed a case for illegal forced leave or suspension with the NCMB. Parties eventually submitted the case for VA. VA dismissed the case. Respondent received the VA’s decision on November 20, 2007.

Cobarrubias filed her petition for review on December 5, 2007, 15 days from receipt of the VA decision on November 20, 2007, but paid her docket fees in full only after 72 days, when she filed her MR on February 15, 2008 and attached the postal money orders forP4,230.00. Undeniably, the docket fees were paid late, and without payment of the full docket fees, Cobarrubias’ appeal was not perfected within the reglementary period. Viewed in this light, procedural rules are not to be belittled or dismissed simply because their nonobservance may have prejudiced a party's substantive rights; like all rules, they are required to be followed. However, there are recognized exceptions to their strict observance, such as: (1) most persuasive and weighty reasons; (2) to relieve a litigant from an injustice not commensurate with his failure to comply with the prescribed procedure; (3) good faith of the defaulting party by immediately paying within a reasonable time from the time of the default; (4) the existence of special or compelling circumstances; (5) the merits of the case; (6) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the

On December 5, 2007, Cobarrubias filed with the CA a petition for review under Rule 43, but failed to pay the required filing fees and to attach to the petition copies of the material portions of the record. CA dismissed the petition on January 14, 2008 due to procedural lapses. Respondent received the CA resolution on January 31, 2008. On February 15, 2008, respondent filed a motion for reconsideration and attached to her motion copies of the material portions of the record and the postal money orders for P4,230.00. She argued that the ground upon which her petition was dismissed was technical. CA reinstated her petition finding that

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rules; (7) a lack of any showing that the review sought is merely frivolous and dilatory; (8) the other party will not be unjustly prejudiced thereby; (9) fraud, accident, mistake or excusable negligence without the appellant's fault; (10) peculiar, legal and equitable circumstances attendant to each case; (11) in the name of substantial justice and fair play; (12) importance of the issues involved; and (13) exercise of sound discretion by the judge, guided by all “the attendant circumstances. Thus, there should be an effort, on the part of the party invoking liberality, to advance a reasonable or meritorious explanation for his/her failure to comply with the rules.

of the complaint since BNP did not priorly send a demand letter. RTC denied the motion to dismiss and the subsequent MR. The CA denied the appeal by way of certiorari stating that Section 7(a), Rule 141 of the Rules of Court excludes interest accruing from the principal amount being claimed in the pleading in the computation of the prescribed filing fees. CA denied their MR. The petitioners argue that pursuant to Administrative Circular 11-94, interests claimed should be included in the computation of the docket fees. Thus since BNP underpaid, RTC never acquired jurisdiction over the case.

No such explanation has been advanced. Other than insisting that the ends of justice and fair play are better served if the case is decided on its merits, Cobarrubias offered no excuse for her failure to pay the docket fees in full when she filed her petition for review. Cobarrubias’ omission is fatal to her cause.

Issues: Should the computation for payment of docket fees have included the interest claimed by the complainant? Yes. Did the trial court fail to acquire jurisdiction over the case for insufficient docket fees? No.

In Ruby Shelter, the focus was the payment of the correct amount of the docket fees; In Cobarrubias, the emphasis was the timely payment. The court acquires jurisdiction over the case upon the filing of the complaint AND timely payment of the correct docket fees.

SC: When the complaint was filed in 1998, Rule 141 had been amended by Administrative Circular 11-94. In Manchester Development Corp. vs. CA, this Court held that the court acquires jurisdiction over any case only upon payment of the prescribed docket fees. However, that the ruling in Manchester was clarified in Sun Insurance Office, Ltd vs. Asuncion when this Court held that in the former there was an effort to defraud the government in avoiding to pay the correct docket fees, whereas in the latter the plaintiff demonstrated his willingness to abide by paying the additional fees as required.

Proton Philippines vs Banque Nationale de Paris (BNP): Proton availed of the credit facilities of BNP and executed a corporate guarantee of the extent of US$2 million to guarantee its obligation. Under their trust agreement, Proton would receive imported motor vehicles and hold them in trust for BNP, to be applied to its obligations to it in case the vehicles are not sold, Proton would return them to BNP with the documents of title.

Respondent merely relied on the assessment made by the Clerk of Court which turned out to be incorrect. Respondent prayed for “accrued interest subsequent to August 15, 1998 until finally fully paid.” The complaint having been filed on September 7, 1998, respondent’s claim includes the interest from August 16, 1998 until such date of filing. Respondent did not, however, pay the filing fee corresponding to its claim for interest from August 16, 1998 until the filing of the complaint on September 7, 1998. As priorly discussed, this is required under Rule 141, as amended by Administrative Circular 11-94, which was the rule applicable at the time. Thus,

Proton failed to deliver the proceeds and to return the unsold motor vehicles. Proton’s guarantors refused to pay its obligation so BNP filed a complaint ordering them to pay the initial amount of US$2 million with accrued interest and other related charges. RTC Makati Clerk of Court assessed the docket fees at P352,000. The petitioners filed a motion to dismiss the complaint by BNP for failure to pay the correct docket fees thus preventing the RTC from acquiring jurisdiction over the case. In addition, the petitioners allege the prematurity

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as the complaint currently stands, respondent cannot claim the interest from August 16, 1998 until September 7, 1998, unless respondent is allowed by motion to amend its complaint within a reasonable time and specify the precise amount of interest petitioners owe from August 16, 1998 to September 7, 1998 and pay the corresponding docket fee.

(b) A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. (c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. (Example: settlement of the estate)

Rule 2, Section 1. Ordinary civil actions, basis of. — Every ordinary civil action must be based on a cause of action.

In civil actions, there are 5 parties: (1) plaintiff, (2) defendant, (3) co-defendant, (4) third- fourth- fifthparty defendant, and (4) intervenor.

What is a cause of action? In criminal actions, there can only be 2 parties: (1) Republic of the Philippines, and (2) the accused.

Rule 2, Section 2. Cause of action, defined. — A cause of action is the act or omission by which a party violates a right of another.

In special proceedings, there is only 1 party: the petitioner. But when one opposes, he becomes an oppositor akin to a defendant. Exception: In habeas corpus, writ of amparo, writ of habeas data and writ of kalikasan, there must be a respondent.

Where lies the court of action? In the defendant. Rule 6, Section 3: The complaint is the pleading alleging the plaintiff's cause or causes of action. There is a contradiction. How do you resolve this?

B. If the cause of action is the act or omission in violation of the right of the other, it is in the defendant. But the definition of complaint says it is the plaintiff’s cause of action. Rule 6 pertains to the remedy of the plaintiff; it’s not really a cause of action but a right of action. Thus, the right of action is with the plaintiff. But there can never be a right of action without the cause of action. What triggers the right of action is the defendant’s cause of action because the plaintiff can only go to court once his right has been violated.

Rule 2

One suit for a single cause of action Rule 2, Section 3. One suit for a single cause of action. — A party may not institute more than one suit for a single cause of action. Any party to a case can never file 2 cases based on 1 act or omission by the defendant in violation of the right of the plaintiff.

But this has something to do with civil actions. The Rules govern not only civil actions but also criminal actions and special proceedings. How do you distinguish?

If A, the plaintiff, leases unto B a parcel of land for a period of 5 years. Upon the expiration of the period of 5 years, the obligation of B is to return the parcel of land to A. B does not return the parcel of land. There is only one violation: failure to return the parcel of land to A. How may A violate the principle of one suit for a single cause of action? If A files (1) an action for the recovery of the property and (2) another case for damages for failure to surrender the property.

Rule 1, Section 3. Cases governed. — These Rules shall govern the procedure to be observed in actions, civil or criminal and special proceedings. (a) 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.

Splitting a single cause of action

A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action.

When there is a splitting of a single cause of action, what is the remedy of B? A motion to dismiss under Rule 16.

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provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and

Rule 16, Section 1, (e) That there is another action pending between the same parties for the same cause;

(d) Where the claims in all the causes action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (Note: This is called the totality rule)

Rule 2, Section 4. Splitting a single cause of action; effect of. — If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others.

B, the defendant, borrowed money from A, the plaintiff, in the amount of P150,000 in January. Again, he borrowed P150,000 from A in May. By December, B borrowed P1,000,000 from A secured by real estate mortgage (Rule 68). May A join his causes of action against B? Yes. What action? The 1st and 2nd are for sum of money. The 3rd may be an action for foreclosure or recovery of the sum of money (P1,000,000).

But if judgment has already been rendered, the remedy of B is motion to dismiss on the ground of res judicata. Rule 16, Section 1, (f) That the cause of action is barred by a prior judgment xxx Joinder of causes vs Joinder of parties

Suppose A decided to file 3 actions for sums of money, what is the aggregate amount? P1,300,000. Where should it be filed? With the RTC.

There are 4 requirements for joinder of causes of action: Rule 2, Section 5. Joinder of causes of action. — A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions:

Is that mandatory on the part of A to file 3 cases against B? No. If A chooses to file 3 cases, where would he file them? 1st and 2nd must be filed with the MTC. The 3rd must be filed with the RTC.

(a) The party joining the causes of action shall comply with the rules on joinder of parties;

What is the jurisdictional amount under R.A. 7691? Rule on joinder of parties: Rule 3, Section 6. Permissive joinder of parties. — All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest.

RTC has jurisdiction over: Real actions: Assessed value of the property outside Metro Manila > P20,000 Assessed value of the property inside Metro Manila > P50,000 Exception: MTC has jurisdiction over forcible entry and unlawful detainer cases.

(b) The joinder shall not include special civil actions or actions governed by special rules;

Personal actions: Demand or the value of the property outside Metro Manila > P100,000 Demand or the value of the property inside Metro Manila > P200,000

(c) Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court

If A joins the causes of action of sum of money, sum of money and foreclosure of real estate mortgage, is that a proper joinder of causes of action? No, because Rule 2,

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Section 5 (b) states that the joinder shall not include special civil actions.

law or these Rules, every action must be prosecuted or defended in the name of the real party in interest.

The remedy of B is (NOT A MOTION TO DISMISS) to file a motion to amend (or omit?) or ex parte to drop. Also the court itself can drop it because the court cannot proceed.

Who is not a party in interest? A third party in a contract. In an action for breach of contract, only those who are privy to the contract are real parties in interest. Under Rule 3, there are only 2 kinds of parties: indispensable parties and necessary parties.

Rule 2, Section 6. Misjoinder of causes of action. — Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately.

Indispensable parties vs necessary parties An indispensable party is one without whom there can be no final determination of the case while a necessary party is one without whom there can be no complete determination of the case.

A is a resident of QC and B is a resident of Manila. The real property which is offered as security in the real estate mortgage is located in Baguio. Where should the case be filed/ what is the venue of the action? If 1st action and 2nd action are for sum of money, 3rd action is for recovery of real property, can you join them? Yes. The venue is at the option of the plaintiff. You can join real and personal actions; there is no prohibition under joinder of causes of action. However, you cannot join an ordinary civil action with a special civil action. That has to be dropped. C.

Rule 3, Section 6. Permissive joinder of parties. — All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest.

Parties to Civil Actions

Rule 3, Section 1. Who may be parties; plaintiff and defendant. — Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff" may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.) — party plaintiff. The term "defendant" may refer to the original defending party, the defendant in a counter-claim, the cross-defendant, or the third (fourth, etc.) — party defendant.

Rule 3, Section 7. Compulsory joinder of indispensable parties. — Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants. Rule 3, Section 8. Necessary party. — A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action.

Who may be parties? Natural persons (what makes you a natural person is your intellect of will), juridical persons (those which are created by law like a corporation), entities authorized by law (ex. estate, or the totality of a decedent’s assets and liabilities). Still, they cannot sue until they are real parties in interest.

Relucio vs Lopez: Can there be a final determination of the case without Relucio? Yes. Can there be a complete determination of the case without Relucio? Yes. The allegation of the plaintiff is some names were registered in the name of Relucio. Since they are in the name of

Rule 3, Section 2. Parties in interest. — A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by

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Relucio, then those properties are outside the scope of the action.

to the claim for moral damages, the claim is against Alberto. To sustain a cause of action for moral damages, the complaint must have the character of an action for interference with marital or family relations under the Civil Code.

Lopez filed a petition for appointment as sole administrator of conjugal properties against Alberto Lopez and Relucio in RTC Makati. She alleged that she was legally married to Alberto, but he abandoned her and their 4 legitimate children, that he arrogated unto himself full and exclusive control and administration of the conjugal properties, that he spends such for his sole benefit, and that after abandoning her, he maintained an illicit relationship and cohabited with Relucio. During their cohabitation, they amassed a fortune, and Lopez alleges that such were acquired principally through the actual contribution of money, property and industry of Alberto, with minimal, if not nil, actual contribution from Relucio. She alleges that Alberto excluded her and their children from any fruits or income derived from the conjugal properties. He also allegedly sold, alienated, etc., properties belonging to the conjugal partnership.

A real party in interest is one who stands “to be benefited or injured by the judgment of the suit.” Relucio would not be affected by any judgment. If Relucio is not a real party in interest, she cannot be an indispensable party. An indispensable party is one without whom there can be no final determination of an action. Nor can Relucio be a necessary party in the Special Proceedings. A necessary party is one who is not indispensable but who ought to be joined as party if complete relief is to be accorded those already parties, or for a complete determination or settlement of the claim subject of the action. China Banking Corp vs Oliver: Pangan Lim, Jr. and Mercedes Oliver (Oliver 1) applied for a loan, offering as collateral a lot covered by a TCT in the name of Oliver, which Chinabank approved. The mortgage was duly registered and annotated on the original title under the custody of the Registry of Deeds and on the owner’s duplicate copy in the bank’s possession.

Relucio filed a Motion to Dismiss; there was no cause of action against her. MTD was denied; she is impleaded as a necessary or indispensable party because some of the properties are registered in her name and Alberto, or solely in her name. Relucio filed an MR, but was denied. She filed a petition for certiorari with the CA, who likewise denied the petition, as well as the subsequent MR.

Respondent, claiming that she is Mercedes Oliver (Oliver 2), filed an action for annulment of mortgage and cancellation of title with damages. Respondent claimed that: she was the registered and lawful owner of the land; the owner’s duplicate copy of the title had always been in her possession; and she did not apply for a loan or surrender her title to Chinabank. Respondent prayed that: the owner’s duplicate copy surrendered to Chinabank as well as the original title with the Registry of Deeds be cancelled; the mortgage be declared null and void; and the Registry of Deeds be ordered to issue a new and clean title in her name.

SC: Relucio is not an indispensable or necessary party. The first cause of action is for judicial appointment as administratrix. The administration of the property of the marriage is entirely between the spouses, to the exclusion of all other persons. There is no right-duty relation between Lopez and Relucio that would support a cause of action. The second cause of action is for an accounting, which is arises from or is an incident of marriage. As Relucio has nothing to do with the marriage, no cause of action can exist. The third cause of action is for forfeiture of Alberto's share in the property mentioned. It does not involve the issue of validity of the co-ownership between Alberto and Relucio. The issue is whether there is basis in law to forfeit Alberto’s share, if any there be, in property coowned by him with Relucio. The asserted right to forfeit extends to Alberto's share alone. Lopez sought support, but a stranger cannot be compelled to give support. As

Chinabank argues that it was indispensable for Oliver 2 to implead mortgagor Oliver 1. Respondent’s complaint before the trial court was one for cancellation of the transfer certificate of title in petitioner’s possession. According to petitioner, the issue below is the genuineness of the titles, which is intertwined with the issue of ownership. This being the case, said the

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petitioner, the mortgagor Oliver 1 must necessarily be impleaded for she is the registered owner. Petitioner argues that mortgagor Oliver 1 is in a better position to defend her title. She stands to suffer if it is declared fake.

[S]ince Oliver 1 is not an indispensable party, Section 7, Rule 3, which requires compulsory joinder of indispensable parties in a case, does not apply. Instead, it is Section 11, Rule 3, that applies. Non-joinder of parties is not a ground for dismissal of an action. Parties may be added by order of the court, either on its own initiative or on motion of the parties.

SC: Oliver 1 is not an indispensable party. Oliver 1 is a party in interest, for she will be affected by the outcome of the case. She stands to be benefited in case the mortgage is declared valid, or injured in case her title is declared fake. However, Oliver 1’s absence from the case does not hamper the trial court in resolving the dispute between Oliver 2 and petitioner.

Lotte Philippines Co., Inc. vs De la Cruz: Lotte is a domestic corporation where respondents are among those who were hired and assigned to the confectionery facility. On 14 December 1995 - and yearly thereafter until the year 2000 - 7J Maintenance and Janitorial Services (7J) entered into a contract with Lotte. In compliance with the terms and conditions of the service contract, and to accommodate the needs of Lotte for personnel/workers to do and perform "piece works," respondents, among others, were hired and assigned to Lotte as repackers or sealers. However, either in October, 1999 or on February 9, 2000, Lotte dispensed with their services allegedly due to the expiration/termination of the service contract by with 7J.

Oliver 2’s allegations in the complaint shows that it was for annulment of mortgage due to petitioner’s negligence in not determining the actual ownership of the property, resulting in the mortgage’s annotation on the TCT in the Registry of Deeds’ custody. To support said allegations, Oliver 2 had to prove (1) that she is the real Mercedes Oliver referred to in the TCT, and (2) that she is not the same person using that name who entered into a deed of mortgage with the petitioner. This, Oliver 2 can do in her complaint without necessarily impleading the Oliver 1. Hence, Oliver 1 is not an indispensable party in the case filed by Oliver 2.

Respondents lodged a labor complaint against Lotte and 7J where the LA rendered judgment declaring 7J as their employer. On appeal, NLRC affirmed the LA. Respondents filed a petition for certiorari in the CA, insisting that their employer is Lotte. Lotte denied that respondents were its employees and prayed that the petition be dismissed for failure to implead 7J. CA reversed and set aside the rulings of the LA and the NLRC thereby declaring Lotte as the real employer and that 7J who engaged in labor-only contracting was merely the agent of Lotte.

[T]hat a party is not indispensable to the suit if his interest in the controversy or subject matter is distinct and divisible from the interest of the other parties and will not necessarily be prejudiced by a judgment which does complete justice to the parties in court. Chinabank has interest in the loan which, however, is distinct and divisible from the mortgagor’s interest, which involves the land used as collateral for the loan. Further, a declaration of the mortgage’s nullity in this case will not necessarily prejudice mortgagor Oliver 1. The bank still needs to initiate proceedings to go after the mortgagor, who in turn can raise other defenses pertinent to the two of them.

Issue: W/N 7J is an indispensable party and should have been impleaded in respondents’ petition in the CA. SC: Yes. An indispensable party is a party in interest without whom no final determination can be had of an action, and who shall be joined either as plaintiffs or defendants. The joinder of indispensable parties is mandatory. The presence of indispensable parties is necessary to vest the court with jurisdiction, which is "the authority to hear and determine a cause, the right to act in a case".

A party is also not indispensable if his presence would merely permit complete relief between him and those already parties to the action, or will simply avoid multiple litigation, as in the case of Chinabank and Oliver 1. The latter’s participation in this case will simply enable Chinabank to make its claim against her in this case, and hence, avoid the institution of another action.

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Without the presence of indispensable parties to a suit or proceeding, judgment of a court cannot attain real finality. The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.

Enterprises’ name, a trade name without a juridical personality. SC: Yes. The central factor in appreciating the issues presented in this case is the business name Kargo Enterprises. The name appears in the title of the Complaint where the plaintiff was identified as "KAREN T. GO doing business under the name KARGO ENTERPRISES," and this identification was repeated in the first paragraph of the Complaint.Paragraph 2 defined the business KARGO ENTERPRISES undertakes. Paragraph 3 continued with the allegation that the defendant "leased from plaintiff a certain motor vehicle" that was thereafter described. Significantly, the Complaint specifies and attaches as its integral part the Lease Agreement that underlies the transaction between the plaintiff and the defendant. Again, the name KARGO ENTERPRISES entered the picture as this Lease Agreement provides: This agreement, made and entered into by and between: “GLENN GO, of legal age, married, herein referred to as the LESSOR-SELLER; representing KARGO ENTERPRISES as its Manager,” thus, expressly pointing to KARGO ENTERPRISES as the principal that Glenn represented. In other words, by the express terms of this Lease Agreement, Glenn did sign the agreement only as the manager of Kargo Enterprises and the latter is clearly the real party to the lease agreements.

7J is an indispensable party. It is a party in interest because it will be affected by the outcome of the case. LA and NLRC found 7J solely liable as the employer. CA rendered Lotte jointly and severally liable with 7J, who was not impleaded, by holding that the former is the real employer. Its decision directly affected 7J. Navarro vs Escobido: In September 12, 1998, respondent Karen Go filed 2 complaints before the RTC for replevin and/or sum of money with damages against Navarro. Karen prayed that the RTC issue writs of replevin for the seizure of 2 motor vehicles in Navarro’s possession. Navarro leased from plaintiff a certain motor vehicle as evidenced by a LEASE AGREEMENT WITH OPTION TO PURCHASE entered into by and between KARGO ENTERPRISES, then represented by its Manager, GLENN GO, and ROGER NAVARRO. Navarro issued post dated checks. All checks bounced. Navarro alleges that even if the lease agreements were in the name of Kargo Enterprises, since it did not have the requisite juridical personality to sue, the actual parties to the agreement are himself and Glenn Go. Since it was Karen Go who filed the complaints and not Glenn Go, she was not a real party-in-interest and the complaints failed to state a cause of action.

As Navarro correctly points out, Kargo Enterprises is a sole proprietorship, which is neither a natural person, nor a juridical person, as defined by Article 44 of the Civil Code: The following are juridical persons: (1) The State and its political subdivisions; (2) Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as they have been constituted according to law; (3) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member.

Navarro posits that the RTC erred when it ordered the amendment of the complaint to include Glenn Go as a co-plaintiff, instead of dismissing the complaint outright because a complaint which does not state a cause of action cannot be converted into one with a cause of action by a mere amendment or a supplemental pleading. In effect, RTC created a cause of action for Karen Go when there was none at the time she filed the complaints.

FIRST POINT: pursuant to Section 1, Rule 3 of the Rules, Kargo Enterprises cannot be a party to a civil action. Who then is the proper party to file an action based on a contract in the name of Kargo Enterprises?

Issue: Whether Karen T. Go is the real party in interest, considering that it was her husband who signed the lease agreement and the lease contracts were in Kargo

Juasing Hardware v. Mendoza: Finally, there is no law authorizing sole proprietorships like petitioner to bring

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suit in court. The law merely recognizes the existence of a sole proprietorship as a form of business organization conducted for profit by a single individual, and requires the proprietor or owner thereof to secure licenses and permits, register the business name, and pay taxes to the national government. It does not vest juridical or legal personality upon the sole proprietorship nor empower it to file or defend an action in court. Thus, the complaint in the court below should have been filed in the name of the owner of Juasing Hardware. The allegation in the body of the complaint would show that the suit is brought by such person as proprietor or owner of the business conducted under the name and style Juasing Hardware. The descriptive words "doing business as Juasing Hardware" may be added to the title of the case, as is customarily done.

parties, for a complete relief can be accorded in the suit even without their participation, since the suit is presumed to have been filed for the benefit of all coowners. Either of the spouses Go may bring an action against Navarro to recover possession of the Kargo Enterprisesleased vehicles which they co-own. This conclusion is consistent with Article 124 of the Family Code, supporting as it does the position that either spouse may act on behalf of the conjugal partnership, so long as they do not dispose of or encumber the property in question without the other spouse’s consent. FOURTH POINT: Glenn Go is not strictly an indispensable party in the action to recover possession of the leased vehicles, he only needs to be impleaded as a pro-forma party to the suit, based on Section 4, Rule 4 of the Rules.

This conclusion should be read in relation with Section 2, Rule 3 of the Rules.

Even assuming that Glenn Go is an indispensable party to the action, we have held in a number of cases that the misjoinder or non-joinder of indispensable parties in a complaint is not a ground for dismissal of action. The proper remedy when a party is left out is to implead the indispensable party at any stage of the action. The court, either motu proprio or upon the motion of a party, may order the inclusion of the indispensable party or give the plaintiff opportunity to amend his complaint in order to include indispensable parties. If the plaintiff to whom the order to include the indispensable party is directed refuses to comply with the order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion. Only upon unjustified failure or refusal to obey the order to include or to amend is the action dismissed.

SECOND POINT: As the registered owner of Kargo Enterprises, Karen is the party who will directly benefit from or be injured by a judgment in this case. Contrary to Navarro’s contention, Karen is the real party-ininterest, and it is legally incorrect to say that her Complaint does not state a cause of action because her name did not appear in the Lease Agreement that her husband signed in behalf of Kargo Enterprises. THIRD POINT: Glenn and Karen Go are effectively coowners of Kargo Enterprises and the properties registered under this name; hence, both have an equal right to seek possession of these properties. Applying Article 484 of the Civil Code, which states that "in default of contracts, or special provisions, co-ownership shall be governed by the provisions of this Title," we find further support in Article 487 of the Civil Code that allows any of the co-owners to bring an action in ejectment with respect to the co-owned property.

Rule 3, Section 9. Non-joinder of necessary parties to be pleaded. — Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.

In sum, in suits to recover properties, all co-owners are real parties in interest. However, pursuant to Article 487 of the Civil Code and relevant jurisprudence, any one of them may bring an action, any kind of action, for the recovery of co-owned properties. Therefore, only one of the co-owners, namely the co-owner who filed the suit for the recovery of the co-owned property, is an indispensable party thereto. The other co-owners are not indispensable parties. They are not even necessary

The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party.

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The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party.

Bar question: How do you distinguish a representative party from a class suit? This question is wrong because they have no common line of distinction. You cannot distinguish a suit from a party. So you have to decipher what is really being asked here. What is being asked here is: distinguish a representative party from a party in a class suit.

Rule 3, Section 10. Unwilling co-plaintiff. — If the consent of any party who should be joined as plaintiff can not be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.

What are the requirements in a class suit? The cause of action is common to many parties and the parties are so numerous that it is very impractical to bring them all before the court.

Rule 3, Section 11. Misjoinder and non-joinder of parties. — Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately.

A party in a class suit is one representing a class which has common issues to be threshed out while a representative party is not really a party in interest. He is only representing one who is the real party in interest.

Class suit

Death or separation of a party

Rule 3, Section 12. Class suit. — When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest.

In a suit, where a party dies, whether he is the plaintiff or the defendant, what does the rule provide during the pendency of the case? It is the obligation of the lawyer of the decedent to inform the court about the death within thirty days. If he does not, that is not a ground for the dismissal of the case. The adverse party’s counsel is now obligated to do the job of the counsel for the decedent. In the first case, where the counsel for the decedent has the duty to inform the court, he has to substitute that without the appointment of an executor or administrator. But when it is the counsel of the adverse party who substitutes, it is required that there must be an executor or administrator appointed.

Rule 3, Section 3. Representatives as parties. — Where the action is allowed to be prosecuted and defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real property in interest. A representative may be a trustee of an expert trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal.

The appointment of the executor or administrator cannot be done easily by motion. You have to file a separate petition for that under settlement of estate proceeding. There is a sanction on the part of the lawyer who does not comply with this obligation.

Examples: guardian, administrator, executor. They are not the parties in interest. They only filed the case for the parent/the minor children. The rule provides that when a representative party files a case, it is mandatory that the parties in interest must be named.

To compare that with section 17, it includes resignation and incompetence and it refers to a public officer. The public officer MAY (not mandatory) substitute or discontinue the case.

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Rule 3, Section 19. Transfer of interest. — In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.

Rule 3, Section 16. Death of party; duty of counsel. — Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with his duty shall be a ground for disciplinary action.

De la Cruz vs Joaquin: Pedro Joaquin filed a Complaint for the recovery of possession and ownership, the cancellation of title, and damages, against petitioners in the RTC. Joaquin alleged that he had obtained a loan from them on June 29, 1974, payable after 5 years. To secure the payment of the loan, he executed a Deed of Sale for a parcel of land in favor of petitioners. The parties also executed another document entitled “Kasunduan” which showed the Deed of Sale to be actually an equitable mortgage. Sps De la Cruz contended that this document was merely an accommodation to allow the repurchase of the property, a right he failed to exercise.

The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs.

RTC ruled in Joaquin’s favor, declaring that the parties had entered into a sale with a right of repurchase. Joaquin had made a valid tender of payment on 2 separate occasions to exercise his right of repurchase. Accordingly, petitioners were required to reconvey the property upon his payment. Sustaining the RTC, CA noted that the parties executed the Kasunduan to express the terms and conditions of their actual agreement. CA denied reconsideration and ordered a substitution by legal representatives, in view of Joaquin’s death on December 24, 1988. Petitioners assert that the RTC’s Decision was invalid for lack of jurisdiction. They claim that Joaquin died during the pendency of the case. There being no substitution by the heirs, the RTC allegedly lacked jurisdiction over the litigation.

Rule 3, Section 17. Death or separation of a party who is a public officer. — When a public officer is a party in an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and maintained by or against his successor if, within thirty (30) days after the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the court by any party that there is a substantial need for continuing or maintaining it and that the successor adopts or continues or threatens to adopt or continue to adopt or continue the action of his predecessor. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to be heard.

Issue: Whether RTC lost jurisdiction over the case upon the death of Pedro Joaquin. SC: No. When a party to a pending action dies and the claim is not extinguished, the Rules of Court require a substitution of the deceased (Section 16 of Rule 3). The rule on the substitution of parties was crafted to protect every party’s right to due process. The estate of the deceased party will continue to be properly represented in the suit through the duly appointed legal

Transfer of interest

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representative. Moreover, no adjudication can be made against the successor of the deceased if the fundamental right to a day in court is denied.

daughter Lourdes dela Cruz be substituted as partyplaintiff for the said Pedro Joaquin. “It is further prayed that henceforth the undersigned counsel for the heirs of Pedro Joaquin be furnished with copies of notices, orders, resolutions and other pleadings at its address below.”

The Court has nullified not only trial proceedings conducted without the appearance of the legal representatives of the deceased, but also the resulting judgments. In those instances, the courts acquired no jurisdiction over the persons of the legal representatives or the heirs upon whom no judgment was binding.

Evidently, the heirs of Pedro Joaquin voluntarily appeared and participated. CA had ordered his legal representatives to appear and substitute for him. The substitution even on appeal had been ordered correctly. In all proceedings, the legal representatives must appear to protect the interests of the deceased. After the rendition of judgment, further proceedings may be held, such as a motion for reconsideration or a new trial, an appeal, or an execution.

This general rule notwithstanding, a formal substitution by heirs is not necessary when they themselves voluntarily appear, participate in the case, and present evidence in defense of the deceased. These actions negate any claim that the right to due process was violated. In Chittick v. CA, failure of the heirs to substitute for the original plaintiff upon her death led to the nullification of the trial court’s Decision. The latter had sought to recover support in arrears and her share in the conjugal partnership. The children who allegedly substituted for her refused to continue the case against their father and vehemently objected to their inclusion as parties. Because he died during the pendency of the case, they were bound to substitute for the defendant also. The substitution effectively merged the persons of the plaintiff and the defendant and thus extinguished the obligation being sued upon.

Considering the foregoing circumstances, the Motion for Substitution may be deemed to have been granted; and the heirs, to have substituted for the deceased, Pedro Joaquin. There being no violation of due process, the issue of substitution cannot be upheld as a ground to nullify the trial court’s Decision. Carabeo vs Dingco: The parties entered into a contract of sale of a parcel of land for P38,000. The respondents paid P10,000 initial payment upon signing the contract with the balance to be paid in September 1990. Respondents handed in parts P9,100 of the balance despite the petitioner asking them not to do so yet because the latter had to settle a “squabble” over the land. After the dispute over the land’s registration was settled, the respondents offered to pay the balance, but the petitioner declined acceptance. The respondents filed a complaint with the katarungan pambarangay. No settlement was reached so the respondents filed for specific performance with the RTC. Petitioner stated in his answer that the sale was void for lack of an object certain since the kasunduan did not specify the metes and bounds of the land. The petitioner also alleged that even if the kasunduan were valid, the respondent’s failure to comply with their reciprocal obligation to pay the balance of the purchase price would render the action premature.

The present case is not similar, much less identical, to the factual milieu of Chittick. The rule on the substitution by heirs is not a matter of jurisdiction, but a requirement of due process. When due process is not violated, as when the right of the representative or heir is recognized and protected, noncompliance or belated formal compliance with the Rules cannot affect the validity of a promulgated decision. Mere failure to substitute for a deceased plaintiff is not a sufficient ground to nullify a trial court’s decision. The alleging party must prove that there was an undeniable violation of due process. The records of the present case contain a “Motion for Substitution of Party Plaintiff” dated February 15, 2002, filed before the CA. The prayer states as follows: “WHEREFORE, it is respectfully prayed that the Heirs of the deceased plaintiff-appellee as represented by his

Prior to the decision of the case, the petitioner died. Records do not show that his counsel informed the RTC of his death and that the proper substitution was

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effected. RTC ruled in favor of the respondents ordering the petitioner to sell his rights over the property. CA affirmed. The motion for reconsideration was denied so the present petition was filed by the deceased’s son.

Rule 3, Section 20. Action and contractual money claims. — When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person.

Issue: Should the petition of the respondents have been dismissed on the ground of the death of the original petitioner? SC: No. Respecting the argument that the petitioner’s death rendered the respondents’ complaint against him dismissible, Bonilla vs. Barcena enlightens: “The question as to whether an action survives or not depends on the nature of the action and the damages sued for. In the causes of action which survive, the wrong complained of affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive, the injury complained of is to the person, the property and rights of property affected being incidental.”

When the defendant dies, pendente lite, the case shall not be dismissed but shall move on up to entry of judgment. This is a U-turn from the 1960 Rules of Court where the case must be dismissed. The reason is to expedite the proceeding. A final judgment is different from an entered judgment. Even if there is an appeal, the appeal continues. Even if there is a petition for review after the appeal, the petition continues. It must conclude up to entry of judgment.

Respondents are pursuing a property right arising from the kasunduan, whereas petitioner is invoking nullity of the kasunduan to protect his propriety interest. Assuming arguendo, however, that the kasunduan is deemed void, there is a corollary obligation of the petitioner to return the money paid by respondents, and since the action involves property rights, it survives.

After entry of judgment, what is the next move of the judgment obligee? Ordinarily, you avail of Rule 39 (Execution of Judgment). Here, do you avail of Rule 39? No. there is a cross-reference to Rule 86, which provides the 4 matters claimable under the estate:

Trial on the merits was already concluded before petitioner died. Since RTC was not informed of the petitioner’s death, it may not be faulted for proceeding to render judgment without ordering his substitution. Its judgment is thus valid and binding upon petitioner’s legal representative or successors-in-interest, insofar as his interest in the property subject of the action is concerned.

1.

2. 3. 4.

All claims for money against the decent, arising from contract, express or implied, whether the same be due, not due, or contingent; All claims for funeral expenses; Expense for the last sickness of the decedent, and Judgment for money against the decent.

Rule 87 is an action for or against executors or administrators. All other actions except those which are claimable against the estate may be brought for or against the executor or administrator.

In another vein, the death of a client immediately divests the counsel of authority. Thus, in filing a Notice of Appeal, petitioner’s counsel of record had no personality to act on behalf of the already deceased client who, it bears reiteration, had not been substituted as a party after his death. The trial court’s decision had thereby become final and executor, no appeal having been perfected.

Section 20 must always be correlated with Rule 86 and 87 to see a bird’s eye view of the entire provisions. So if you file it as a claim against the estate, how do you go about it?

Contractual Money claims

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A vs B, this is a contractual money claim. B borrowed P1,000,000 from A. This is a contract of loan. B did not pay so A filed a case for sum of money based on contract (contractual money claim). B died. The case must continue up to entry of judgment. When there is already an entry of judgment, what should A do? He cannot avail of Rule 39/ he cannot go to court and file a motion for execution because the defendant here already died.

proceeding for guardianship, the venue is the residence of the ward. In adoption, the venue is the residence of the prospective adopter. In these cases, you cannot agree otherwise). In the absence of any rule, the agreement of the parties will govern. See Pacific Consultants Philippines, Inc. (PPI) vs Schonfeld In the absence of any agreement, you distinguish whether the action is real or personal. If it is a personal action, the venue is the residence of the plaintiff, or any of the plaintiffs, or the residence of the defendant, or any of the defendants, at the option of the plaintiff. If it is a real action, the venue is where the property is located.

He must file it as a claim against the estate. How? You cannot claim against the heirs of the decedent. It must be claimed against the estate. The heirs are different from the estate. If the heirs would be representing the estate, that would be another matter. How will the judgment obligee, A, file a claim against the estate of B? There is a procedure under Rule 86.

Rule 4, Section 1. Venue of real actions. — Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated.

If there is already a pending settlement of the estate, it would be easier. If there is no pending settlement of the estate of the decedent, A should file a settlement of estate proceeding. Is A authorized to do that? Yes. Who may file a settlement of the estate? A creditor may do so.

Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated.

But if there is already a pending settlement of the estate, A should just submit a copy of the judgment together with the entry of judgment. Under settlement of estate proceedings, you apply for preference of credits.

Rule 4, Section 2. Venue of personal actions. — All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff.

A is riding his car along Roxas Boulevard and he collided with another car driven by B, and nobody would like to accept obligation or liability. A filed a case for sum of money against B. B, pendente lite, dies. Can you apply Section 20? No, Section 20 deals with contractual money claims. There is no contract in this case.

Rule 4, Section 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.

If B is a taxi driver and A is his passenger, this becomes a contractual money claim (based on the contract of transportation) if A files a suit. D.

Venue of actions: real and personal actions

The venue of an action is what the law or rule provides (Example: Give a law providing for the venue of an action: Rule 66 or petition for quo warranto, where the venue is the residence of the respondent. In a special

Rule 4, Section 4. When Rule not applicable. — This Rule shall not apply.

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(a) In those cases where a specific rule or law provides otherwise; or

LA found that the contract of employment was controlling; the case should be submitted to the jurisdiction of the court of arbitration in London. The NLRC likewise agreed with the LA. The CA ruled in favor of PPI and PCIJ. Even under the contract of employment, the parties were not precluded from bringing a case related thereto in other venues. While there was an agreement, the venue is not exclusive since there was no stipulation to that effect.

(b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. Pacific Consultants Philippines, Inc. (PPI) vs Schonfeld: Venue stipulation is just for the convenience of the parties. It is not restrictive unless it includes an exclusivity clause. The word ‘shall’ does not denote that the stipulation is exclusive. A stronger word than shall must be used. Words that may be used: “exclusive”, “in no other place”.

SC: The case may be filed and tried in Philippine courts. The settled rule on stipulations regarding venue is that while they are valid and enforceable, venue stipulations in a contract do not, as a rule, supersede the general rule set forth in Rule 4 of the ROC in the absence of qualifying or restrictive words. Any agreement of venue, without such restrictive words should be considered merely as an agreement or additional forum, not as a limiting venue to the specified place. They are not exclusive but, rather permissive. If the intention of the parties were to restrict venue, there must be accompanying language clearly and categorically expressing their purpose and design that actions between them be litigated only at the place named by them.

Schonfeld was a non-resident Canadian citizen. He was employed by Pacific Consultants International of Japan (PCIJ) as Sector Manager of PPI in the Philippines. His salary was paid partly by PPI and PCIJ. Henrichsen, president of PPI and director of PCIJ, transmitted a letter of employment to Schonfeld requesting him to accept and affix his conformity. The letter provides: in case of any question of interpretation of the conditions of employment, as well as any question arising between the employee and the company which is in consequence of or connected with his employment, which cannot be settled amicably, should be finally settled by the Court of Arbitration in London through written submissions.

E.

Summary Procedure

Rule 5, Section 1. Uniform procedure. — The procedure in the Municipal Trial Courts shall be the same as in the Regional Trial Courts, except (a) where a particular provision expressly or impliedly applies only to either of said courts, or (b) in civil cases governed by the Rule on Summary Procedure.

Schonfeld arrived in the Philippines and was given the status of a resident alien. Later, Henrichsen informed Schonfeld that his employment had been terminated effective August 4, 1999. He was, however, informed via email to stay put in his job until even after August 5 until such time that he would be able to report on certain projects and discuss all the opportunities he had developed. He continued his work until October 1, 1999.

Uniformity rule – the Rules of Court applies in all courts. Correlate this with Rule 1, regarding the non-application of the Rules to naturalization cases, land registration cases, cadastral cases, election cases, insolvency proceedings.

Schonfeld filed several money claims with PPI, and also filed a complaint for illegal dismissal with the Labor Arbiter. PCIJ and PPI filed a Motion to Dismiss on the ground of improper venue: He was a Canadian citizen, employed and dismissed by PCIJ whose principal office is in Japan, and the letter of employment was executed in Japan. Under lex loci contractus, the complaint should have been filed in Tokyo. Also, the parties agreed that any employment-related dispute should be brought before the London Court of Arbitration.

Section 4. In what case not applicable. — These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient.

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In Ong Chia vs Republic, Ong Chia was the foreigner who applied to be a naturalized Filipino citizen. It was granted by the trial court. The government, through the OSG, appealed the case. In the appellate court, the Republic offered certain pieces of documentary evidence which were not offered in the trial court. Ong Chia questioned that, claiming the evidence should not be admitted since they were never offered. SC: In naturalization cases, applying Rule 1, the Rules of Court are not applicable but only in suppletory character.

The claim of B against A is a separate and distinct pleading called the counterclaim. The counterclaim is not the answer; it is the complaint of the defendant against the plaintiff. A’s answer to the counterclaim is not the reply. The reply is the response to the answer but the answer to the counterclaim is an answer to the counterclaim of the defendant as against the plaintiff. E – intervenor E is an outsider; an intervenor under Rule 19. He is never impleaded by any of the parties. He impleads himself. Rule 19 provides that he must have interest in the subject matter (if the case is for recovery of property, he must have an interest in the property, ex: he may be the owner/mortgagor/mortgagee/possessor of the property).

Under Rule 5 as well, you have to take note of Summary Procedure.

III. RULES 6 TO 9: PLEADINGS AND DEFAULTS A – Plaintiff B – Defendant

You must never confuse an intervention with an interpleader. The basic distinction is that while an intervenor, E, has interest in the subject matter, an interpleader has no interest in the subject matter.

A files a complaint against B. B files an answer. A files a reply.

A. These are the major pleadings: complaint, answer and reply.

Kinds of Pleadings

Rule 6, Section 1. Pleadings defined. — Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment.

C – Co-defendant B files a cross-claim against C. C can also file a crossclaim against B. B or C may interplead D.

Rule 6, Section 2. Pleadings allowed. — The claims of a party are asserted in a complaint, counterclaim, crossclaim, third (fourth, etc.)-party complaint, or complaintin-intervention.

D – third-party defendant In relation to D, C would be a third-party plaintiff.

Third-party defendant is someone different from the original parties, for purposes of contribution, indemnification or subrogation. The answer must already include allegations against the original complaint.

If D impleads Y, D would be a fourth-party plaintiff and Y would be a fourth-party defendant. C can also file a complaint (a third party complaint). D can file a fourth party complaint.

Complaint and Answer D can answer the third-party complaint through an answer to a third party complaint. When D answers, that is also an answer to the original complaint because there could be no third-party complaint without the original complaint.

Rule 6, Section 3. Complaint. — The complaint is the pleading alleging the plaintiff's cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint.

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Rule 6, Section 4. Answer. — An answer is a pleading in which a defending party sets forth his defenses.

In the rules of evidence, when you put up an affirmative defense, whether in civil or criminal cases, you have what you call reverse trial.

The complaint constitutes the allegations or the claim of the plaintiff against the defendant. The defendant’s answer is the response to the claim of the plaintiff. The answer constitutes defenses.

Reverse trial is a process whereby the defendant puts up an affirmative defense and therefore, there is an admission already on his part of the allegations in the pleading. That is why you reverse the trial.

Defenses: Negative and Affirmative In criminal cases, there are no pleadings, except the information. The information is read, under Rule 116, before the start of the trial (during arraignment) and then the accused puts up an affirmative defense (ex. self-defense in a murder case). It amounts to saying that he admits the allegations. When this happens, there is reverse trial. There is no need to prove that the accused killed the victim because he already admitted it. There is no need to show evidence-in-chief. The trial starts with the accused and he puts up the defense of self-defense. If it is necessary, the prosecution puts up rebuttal evidence.

Rule 6, Section 5. Defenses. — Defenses may either be negative or affirmative. (a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. (b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance.

Negative pregnant – a term in contradiction. When you invoke negative pregnant, in effect, you are admitting what you seek to deny. That’s why you can never use negative pregnant if the allegation is a simple declarative sentence.

2 modes of negative defense: (1) specific denial – give the reason for your denial (2) lack of knowledge sufficient to form belief as to the truth of the claim

Example: Defendant borrowed money from the plaintiff in the amount of P100,000. This is a simple declarative sentence so you cannot invoke here negative pregnant.

Affirmative defense – admission of the allegation but you put up a new subject matter so as to avoid the claim. Ex: defendant borrowed P100,000 from the plaintiff. If you invoke an affirmative defense, you’ll say that you have paid the P100,000 that you borrowed from the plaintiff. In effect, you are admitting that you borrowed money but you put up a new matter, which is payment, to avoid the claim.

But if you qualify that in such manner that it becomes a compound, complex declaration, then negative pregnant might come out: Defendant borrowed money from the plaintiff in the amount of P100,000 when the plaintiff was playing basketball. I deny that I borrowed money from the plaintiff in the amount of P100,000 when the plaintiff was playing basketball. This is a negative pregnant because it proves that he did borrow money, but not at the time the plaintiff he was playing basketball.

There are several kinds of affirmative defenses: fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. This list is not exclusive.

Republic vs Sandiganbayan: This case involved a negative pregnant. It was alleged that Imelda had 15

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Swiss accounts. Imelda said no, she only had 7 Swiss accounts. So she admitted she had Swiss account.

Therefore, the allegations in the petition for forfeiture on the existence of the Swiss bank deposits in the sum of about US$356 million, not having been specifically denied by respondents in their answer, were deemed admitted by them pursuant to Section 11, Rule 8 of the 1997 Revised Rules on Civil Procedure

Republic, through the PCGG filed a petition for forfeiture before the Sandiganbayan against Ferdinand Marcos, represented by his Estate/Heirs and Imelda Marcos. Republic sought the declaration of the aggregate amount of US$356 million deposited in escrow in the PNB, as ill-gotten wealth. The funds were previously held in 5 account groups, using various foreign foundations in certain Swiss banks. Petitioner filed a complaint and respondent an answer.

The matters referred to in paragraphs 23 to 26 of the respondents' answer pertained to the creation of five groups of accounts as well as their respective ending balances and attached documents alleged in paragraphs 24 to 52 of the Republic's petition for forfeiture. Respondent Imelda R. Marcos never specifically denied the existence of the Swiss funds. Her claim that "the funds involved were lawfully acquired" was an acknowledgment on her part of the existence of said deposits. This only reinforced her earlier admission of the allegation in paragraph 23 of the petition for forfeiture regarding the existence of the US$356 million Swiss bank deposits.

Petitioner, in the main, asserts that nowhere in the respondents' motions for reconsideration and supplemental motion for reconsideration were the authenticity, accuracy and admissibility of the Swiss decisions ever challenged. SC: This particular denial had the earmark of what is called in the law on pleadings as a negative pregnant, that is, a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It was in effect an admission of the averments it was directed at. Stated otherwise, a negative pregnant is a form of negative expression which carries with it an affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language and the words of the allegation as so qualified or modified are literally denied, has been held that the qualifying circumstances alone are denied while the fact itself is admitted.

Caneland Sugar Corp. vs Alon: Petitioner does not dispute its loan obligation with respondent. Petitioner’s bone of contention before the RTC is that the promissory notes are silent as to whether they were covered by the Mortgage Trust Indenture and Mortgage Participation on its property. It does not categorically deny that these promissory notes are covered by the security documents. These vague assertions are, in fact, negative pregnants, i.e., denials pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. A negative pregnant is a "form of negative expression which carries with it an affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language and the words of the allegation as so qualified or modified are literally denied, has been held that the qualifying circumstances alone are denied while the fact itself is admitted."

The material allegations in paragraph 23 of the said petition were not specifically denied by respondents in paragraph 22 of their answer. The denial contained in paragraph 22 of the answer was focused on the averment in paragraph 23 of the petition for forfeiture that "Respondents clandestinely stashed the country's wealth in Switzerland and hid the same under layers and layers of foundations and corporate entities." Paragraph 22 of the respondents' answer was thus a denial pregnant with admissions of the following substantial facts:

Petitioner’s allegations do not make out any justifiable basis for the granting of any injunctive relief. Even when the mortgagors were disputing the amount being sought from them, upon the non-payment of the loan, which was secured by the mortgage, the mortgaged

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property is properly subject to a foreclosure sale. This is in consonance with the doctrine that to authorize a temporary injunction, the plaintiff must show, at least prima facie, a right to the final relief.

permissive counterclaim. Alday only had to pay for the permissive counterclaim. This doctrine of Alday was overruled in January 2008 by Korea Technologies Incorporated, where the SC said as of August 13, 2004, all kinds of counterclaim must be paid irrespective of whether they are compulsory or permissive. There was a howl of protest. By October of the same year, SC reversed their own doctrine and went back to Alday vs FGU through Mercado vs CA.

Counterclaims: Compulsory and Permissive Rule 6, Section 6. Counterclaim. — A counterclaim is any claim which a defending party may have against an opposing party. Rule 6, Section 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 counter-claim may be considered compulsory regardless of the amount.

Alday vs FGU Insurance: FGU filed a complaint with the RTC alleging that Alday owed it unliquidated cash advances, unremitted costs of premiums and other charges she incurred in the course of her work as an insurance agent. FGU also prayed for exemplary damages, attorney’s fees, and costs of suit. Alday filed her answer and a counterclaim where she asserted her right for the payment of direct commissions, profit commissions, contingent bonuses and accumulated premium reserves. She also prayed for attorney’s fees, litigation expenses, moral damages and exemplary damages for the allegedly unfounded action filed by GFU.

Counterclaim – it is neither an answer nor a reply. It is the complaint of the defendant against the plaintiff. It is a totally separate pleading.

FGU filed a motion to strike out answer with compulsory counterclaim and to declare defendant in default because her answer was allegedly filed out of time. The RTC denied FGU’s motion and its MR. FGU then filed a motion to dismiss Alday’s counterclaim. It contended that RTC never acquired jurisdiction over the same because of the non-payment of docket fees. Alday asked the RTC to declare her counterclaim as exempt from payment of docket fees since it is compulsory and that respondent be declared in default for having failed to answer the counterclaim. RTC granted FGU’s motion to dismiss the counterclaim and consequently, denied Alday’s motion. The RTC found that the counterclaim is permissive in nature and held that Alday’s failure to pay docket fees prevented the court from acquiring jurisdiction over it. The RTC likewise denied her MR. CA sustained the RTC’s order and denied Alday’s MR.

2 kinds of counterclaim: (1) compulsory – is that which arises from the same transaction or series of transactions (2) permissive – does not arise from the same transaction Alday vs FGU Insurance: What are the indicia of a compulsory counterclaim? Alday was an insurance agent. She was sued by FGU for non-remittance of premiums. Alday set-up a counterclaim saying FGU didn’t pay her bonuses, commissions. And because of the complaint, she suffered sleepless nights, wounded feelings, etc. FGU said since the counterclaim is permissive and Alday did not pay the docket fees, the trial court did not acquire jurisdiction over the counterclaim.

SC: 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

SC held that the counterclaim of Alday is of 2 kinds. Some counterclaims are compulsory, and those do not require docket fees. Some are permissive. Because they did not arise from the complaint, therefore, it is a

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presence of third parties of whom the court cannot acquire jurisdiction.

3. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or if specified the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee.

Petitioner’s counterclaim for commissions, bonuses, and accumulated premium reserves is merely permissive. The evidence required to prove petitioner’s claims differs from that needed to establish respondent’s demands for the recovery of cash accountabilities from petitioner, such as cash advances and costs of premiums. The recovery of respondent’s claims is not contingent or dependent upon establishing petitioner’s counterclaim, such that conducting separate trials will not result in the substantial duplication of the time and effort of the court and the parties. One would search the records in vain for a logical connection between the parties’ claims. This conclusion is further reinforced by petitioner’s own admissions since she declared in her answer that respondent’s cause of action, unlike her own, was not based upon the Special Agent’s Contract. However, petitioner’s claims for damages, allegedly suffered as a result of the filing by respondent of its complaint, are compulsory.

Although the payment of the prescribed docket fees is a jurisdictional requirement, its non-payment does not result in the automatic dismissal of the case provided the docket fees are paid within the applicable prescriptive or reglementary period. Was FGU in default for failing to answer petitioner’s counterclaim? No. Insofar as the permissive counterclaim of petitioner is concerned, there is obviously no need to file an answer until petitioner has paid the prescribed docket fees for only then shall the court acquire jurisdiction over such claim. Meanwhile, the compulsory counterclaim of petitioner for damages based on the filing by respondent of an allegedly unfounded and malicious suit need not be answered since it is inseparable from the claims of respondent. If respondent were to answer the compulsory counterclaim of petitioner, it would merely result in the former pleading the same facts raised in its complaint.

There is no need for petitioner to pay docket fees for her compulsory counterclaim. On the other hand, in order for the RTC to acquire jurisdiction over her permissive counterclaim, petitioner is bound to pay the prescribed docket fees. The rule on the payment of filing fees has been laid down by the Court in the case of Sun Insurance Office, Ltd. v. Hon. Maximiano Asuncion: 1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject-matter or nature of the action. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period.

Criteria or tests that may be used in determining whether a counterclaim is compulsory or permissive, summarized as follows: 1. Are the issues of fact and law raised by the claim and counterclaim largely the same? 2. Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule?

2. The same rule applies to permissive counterclaims, third-party claims and similar pleadings, which shall not be considered filed until and unless the filing fee prescribed therefor is paid. The court may allow payment of said fee within a reasonable time but also in no case beyond its applicable prescriptive or reglementary period.

3. Will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s counterclaim? (Evidence test rule) 4. Is there any logical relation between the claim and the counterclaim? (Logical relationship rule)

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Korea Technologies Co., Ltd. (KOGIES) vs Lerma: The rules on the payment of docket fees for counterclaims and cross claims were amended effective August 16, 2004.

the assigned certificates of deposit. CBC approved SMB’s request and informed Mercado. Mercado filed an action to annul the continuing hold-out agreement and deed of assignment in the RTC. He claimed that the continuing hold-out agreement allowed forfeiture without the benefit of foreclosure. It was therefore void pursuant to Article 2088 of the Civil Code. Moreover, Mercado argued that he had already settled his recent purchases on credit but SMC erroneously applied the said payments to his old accounts not covered by the continuing hold-out agreement (i.e., purchases made prior to the extension of the credit line).

KOGIES strongly argues that when PGSMC filed the counterclaims, it should have paid docket fees and filed a certificate of non-forum shopping, and that its failure to do so was a fatal defect. We disagree with KOGIES. The counterclaims of PGSMC were incorporated in its Answer with Compulsory Counterclaim in accordance with Section 8 of Rule 11, the rule that was effective at the time the Answer with Counterclaim was filed. Sec. 8 on existing counterclaim or cross-claim states, “A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein.”

SMC filed its answer with counterclaim against Mercado. It contended that Mercado delivered only 2 CBC certificates of deposit amounting to P4.5 million and asserted that the execution of the continuing holdout agreement and deed of assignment was a recognized business practice. Furthermore, because Mercado admitted his outstanding liabilities, SMC sought payment of the lees products he withdrew (or purchased on credit) worth P7,468,153.75. SMC filed a third-party complaint against EASCO. It sought to collect the proceeds of the surety bonds submitted by Mercado.

At the time PGSMC filed its Answer incorporating its counterclaims against KOGIES, it was not liable to pay filing fees for said counterclaims being compulsory in nature. However, effective August 16, 2004 under Sec. 7, Rule 141, as amended by A.M. No. 04-2-04-SC, docket fees are now required to be paid in compulsory counterclaim or cross-claims.

Mercado filed an urgent manifestation and motion seeking the dismissal of the complaint. He claimed that he was no longer interested in annulling the continuing hold-out agreement and deed of assignment. RTC denied the motion. Instead, it set the case for pre-trial. Thereafter, trial ensued. RTC dismissed the complaint and ordered Mercado and EASCO (to the extent of P2.6 million or the value of its bonds) to jointly and severally pay SMC P7,468,153.75.

Mercado vs CA: Leonides Mercado had been distributing respondent San Miguel Corporation’s (SMC’s) beer products since 1967. In 1991, SMC extended to him a P7.5 million credit line allowing him to withdraw goods on credit. To secure his purchases, Mercado assigned 3 China Banking Corporation (CBC) certificates of deposit amounting to P5 million to SMC and executed a continuing hold-out agreement stating: “Any demand made by *SMC+ on *CBC+, claiming default on my/our part shall be conclusive on [CBC] and shall serve as absolute authority for [CBC] to encash the [CBC certificates of deposit] xxx, whether or not I/we have in fact defaulted on any of my/our obligations with [SMC], it being understood that the issue of whether or not there was factual default must be threshed out solely between me/us and [SMC+.” He also submitted 3 surety bonds from Eastern Assurance and Surety Corporation (EASCO) for P2.6 million.

Mercado and EASCO appealed to the CA, insisting that Mercado did not default in the payment of his obligations to SMC. CA affirmed the RTC decision in toto. Mercado and EASCO both moved for reconsideration but their respective motions were denied. EASCO filed a petition for review on certiorari in this Court but eventually agreed to settle its liability with SMC. The petition was terminated. Meanwhile, Mercado passed away and was substituted by his heirs, petitioners Racquel, Jimmy, Henry, Louricar and Virgilio Mercado. Petitioners subsequently filed this petition asserting that the CA erred in affirming the RTC decision in toto. The said decision (insofar as it ordered Mercado

SMC notified CBC that Mercado failed to pay for the items he withdrew on credit. Citing the continuing holdout agreement, it asked CBC to release the proceeds of

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to pay SMC P7,468,153.75) was void. SMC’s counterclaim was permissive in nature. Inasmuch as SMC did not pay docket fees, the RTC never acquired jurisdiction over the counterclaim.

Cross-claim – between the defendants. This is the complaint of the co-defendant against his co-defendant for purposes of contribution, subrogation or indemnification.

SC: RTC acquired jurisdiction although SMC did not pay docket fees. A counterclaim (or a claim which a defending party may have against any party) may be compulsory or permissive. A counterclaim that (1) arises out of (or is necessarily connected with) the transaction or occurrence that is the subject matter of the opposing party’s claim; (2) falls within the jurisdiction of the court and (3) does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction, is compulsory. Otherwise, a counterclaim is merely permissive.

B borrowed money from A in the amount of P500,000. A knows the P500,000 will be used by B and C. B did not pay. A can file a case impleading alternative defendants. B, in the same case, can file a cross-claim against his codefendant asking for contribution. Rule 6, Section 9. Counter-counterclaims and countercrossclaims. — A counter-claim may be asserted against an original counter-claimant. A cross-claim may also be filed against an original crossclaimant.

When Mercado sought to annul the continuing hold-out agreement and deed of assignment, he in effect sought to be freed from them. While he admitted having outstanding obligations, he nevertheless asserted that those were not covered by the assailed accessory contracts. For its part, aside from invoking the validity of the said agreements, SMC therefore sought to collect the payment for the value of goods Mercado purchased on credit. Thus, Mercado’s complaint and SMC’s counterclaim both touched the issues of whether the continuing hold-out agreement and deed of assignment were valid and whether Mercado had outstanding liabilities to SMC. The same evidence would essentially support or refute Mercado’s claim and SMC’s counterclaim.

Reply Rule 6, Section 10. Reply. — A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint.

Based on the foregoing, had these issues been tried separately, the efforts of the RTC and the parties would have had to be duplicated. SMC’s counterclaim, being logically related to Mercado’s claim, was compulsory in nature. Consequently, the payment of docket fees was not necessary for the RTC to acquire jurisdiction over the subject matter.

Reply – response to an answer. General rule: The reply is not necessary because if you do not put up a reply, it means you controvert the allegations in the answer. Exceptions: (1) when the answer sets up a new matter, there is a necessity of a reply. (2) When the defendant avails of an actionable document, you have to file a reply. Otherwise, the authenticity and due execution of the document are deemed admitted.

Rule 6, Section 8. Cross-claim. — A cross-claim is 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 cross-claimant.

Rule 8, Section 7. Action or defense based on document. — Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the

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pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading.

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.

Rule 8, Section 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. B.

(c) Relief. — The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. (d) Date. — Every pleading shall be dated.

Parts of a Pleading

Rule 7, Section 3. Signature and address. — Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box.

Rule 7, Section 1. Caption. — The caption sets forth the name of the court, the title of the action, and the docket number if assigned.

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.

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.

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 promptly report to the court a change of his address, shall be subject to appropriate disciplinary action.

Their respective participation in the case shall be indicated. Rule 7, Section 2. The body. — The body of the pleading sets fourth its designation, the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading.

The address must not be a post-office box address. Otherwise, the prescriptive period will not lie because it will depend upon when you get your mails in your postoffice box.

(a) Paragraphs. — The allegations in the body of a pleading shall be divided into paragraphs so numbered 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.

Based on certain circulars of the SC, in every pleading, what is necessary is not only the signature and the address. There are 4 more items necessary: (1) Roll Number, (2) IBP Number, (3) PTR Number, (4) MCLE Exemption Number.

(b) Headings. — When two or more causes of action are joined the statement of the first shall be prefaced by the

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Verification and Certification

While verification is not mandatory, certification against forum shopping is mandatory because there are only pleadings that require verification but all pleadings require certification against forum shopping. While lack of verification is easily remediable by amendment, certification against forum shopping cannot be remedied so it leads to dismissal of the case.

Rule 7, Section 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 knowledge and belief.

Who may verify? It should only be the party. Counsel cannot verify. Neither can the counsel sign the certification against forum shopping. The exception is when the party is a juridical entity and the counsel is an in-house counsel on the basis of the doctrine laid down in Iglesia ni Cristo vs Ponferrada.

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.

Suppose there are multiple parties, the rule provides all the parties must verify. So if there are 5 plaintiffs, all the 5 plaintiffs must verify. If only one verifies, that is erroneous but correctible. The exception is in cases of co-ownership and they are the plaintiffs, but not when they are defendants. So that co-owners, in effect, are indispensable parties defendants. In the case of plaintiffs, they are not indispensable since only one is an indispensable party co-owner.

Rule 7, Section 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.

De Castro vs CA: The defendants are indispensable parties defendants. SC held that the action was based on the principle of agency. The principals were only 2 of the 5 sisters who appointed someone as their agent in selling the properties. The indispensability of the coowners here is not needed because it is based on the principle of agency.

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.

When an indispensible party is not impleaded, the judgment is null and void not only as to those who were not impleaded but even as to those who participated in the case. Francisco Artigo sued Constante and Corazon De Castro to collect the unpaid balance of his broker’s commission from them. The De Castros were co-owners of 4 lots located in QC. They authorized Artigo to act as real estate broker in the sale of the properties. Artigo found Times Transit Corp. as a prospective buyer which desired to buy 2 lots only. The same was consummated and Artigo received commission from the De Castros. Artigo felt that his commission should be 5% of the agreed price. He sued to collect the balance after having received an advance.

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co-owners should be impleaded as indispensable parties. When the law expressly provides for solidarity of the obligation, as in the liability of co-principals in a contract of agency, each obligor may be compelled to pay the entire obligation. The agent may recover the whole compensation from any one of the co-principals, as in this case. Article 1216 of the Civil Code provides that a creditor may sue any of the solidary debtors.

The De Castros argue that the complaint should have been dismissed for failure to implead all the co-owners of the 2 lots. They claim that Artigo always knew that the 2 lots were co-owned by the De Castros and their other siblings. They claim that failure to implead them as indispensable parties is fatal to the complaint since Artigo would be paid with funds co-owned by the siblings.

Mandawer Galleon Trade vs Isidro: Respondents filed a case for illegal dismissal and non-payment of overtime pay, holiday pay, 13th month pay, and service incentive leave pay against petitioner with the NLRC. They asserted that they were dismissed from employment without just cause and without due process. Petitioners averred that the respondents were not their employees but were independent contractors. LA found respondents illegally dismissed from employment.

RTC ruled in favor of Artigo. CA affirmed, ruling that Artigo’s complaint is not dismissible for failure to implead as indispensable parties the other co-owners of the 2 lot. It is not necessary to implead the other coowners since the action is exclusively based on a contract of agency between Artigo and De Castro. Issue: Whether the complaint should be dismissed for failure to implead other co-owners as indispensable parties

Petitioners filed an appeal before the NLRC but failed to attach a certification of non-forum shopping to their notice of appeal, as required by Section 4, Rule VI of the NLRC Rules of Procedure. NLRC dismissed the appeal for being fatally defective and affirmed LA’s decision with finality. Petitioners filed an MR but it was denied by the NLRC. An entry for judgment was issued by the NLRC stating that the resolution had become final and executory.

SC: An indispensable party is one whose interest will be affected by the court's action in the litigation, and without whom no final determination of the case can be had. The joinder of indispensable parties is mandatory and courts cannot proceed without their presence. Whenever it appears to the court in the course of a proceeding that an indispensable party has not been joined, it is the duty of the court to stop the trial and order the inclusion of such party.

Petitioners filed a petition for certiorari under Rule 65 before the CA. CA dismissed the petition for certiorari and affirmed NLRC. Their MR was also denied by the CA. Petitioners aver that the CA should have granted the petition and decided the case on the merits, considering that they had belatedly complied with the requirement of a certification for non-forum shopping.

However, the rule on mandatory joinder of indispensable parties is not applicable to the instant case. Constante signed the note as owner and as representative of the other co-owners. Under this note, a contract of agency was clearly constituted between Constante and Artigo. Whether Constante appointed Artigo as agent, in Constante's individual or representative capacity, or both, the De Castros cannot seek the dismissal of the case for failure to implead the other co-owners as indispensable parties. The De Castros admit that the other co-owners are solidarily liable under the contract of agency, citing Article 1915 of the Civil Code.

Issue: Whether the CA was correct in summarily dismissing the petition for being filed without a certification for non-forum shopping SC: No. Non-compliance with the required certification is fatal. To curb the malpractice of forum shopping, Section 5, Rule 7 of the 1997 Rules of Civil Procedure, ordains that a violation thereof would constitute contempt of court and be cause for the summary dismissal of the petition, without prejudice to the taking of appropriate action against the counsel of the party concerned.

The solidary liability of the 4 co-owners, however, militates against the De Castros' theory that the other

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The filing of a certificate for non-forum shopping is mandatory in initiatory pleadings. The subsequent compliance with the requirement does not excuse a party’s failure to comply therewith in the first instance. In those cases where the Court excused non-compliance with the requirement to submit a certificate of nonforum shopping, it found special circumstances or compelling reasons which made the strict application of [Section 5, Rule 7, ROC] clearly unjustified or inequitable. In this case, however, the petitioners offered no valid justification for their failure to comply with the circular.

C.

Allegations in Pleadings

Non-compliance with the requirement on, or submission of defective, verification is not necessarily fatally defective.

Rule 8, Section 2. Alternative causes of action or defenses. — A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.

Rule 8, Section 1. In general. — Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated.

In Altres v. Empleo: 1) A distinction must be made between: a. non-compliance with the requirement on or submission of defective verification, and b. non-compliance with the requirement on or submission of defective certification against forum shopping.

Rule 8, Section 3. Conditions precedent. — In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient.

2) As to verification, non-compliance therewith or a defect therein does not necessarily render the pleading fatally defective. The court may order its submission or correction or act on the pleading if the attending circumstances are such that strict compliance with the Rule may be dispensed with in order that the ends of justice may be served thereby.

Rule 8, Section 4. Capacity. — Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of person that is made a party, must be averred. A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.

3) Verification is deemed substantially complied with when one who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition have been made in good faith or are true and correct.

Rule 8, Section 5. Fraud, mistake, condition of the mind. — In all averments of fraud or mistake the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge, or other condition of the mind of a person may be averred generally.

4) As to certification against forum shopping, noncompliance therewith or a defect therein, unlike in verification, is generally not curable by its subsequent submission or correction thereof, unless there is a need to relax the Rule on the ground of "substantial compliance" or presence of "special circumstances or compelling reasons."

Rule 8, Section 6. Judgment. — In pleading a judgment or decision of a domestic or foreign court, judicial or

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quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.

Benguet Exploration, Inc. vs CA: Authenticity and due execution constitutes only 4 things: (1) that the document was signed; (2) that the document complied with all the formalities under the laws; (3) that when the document was signed, it was in the original form without any alteration; and (4) that the document was delivered.

Actionable Documents Rule 8, Section 7. Action or defense based on document. — Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading.

Petitioner contends that the genuineness and due execution of the documents presented, i.e., Bill of Lading, Certificate of Loading, Certificate of Weight, Mate’s Receipt, were properly established by the testimony of its witness, Ernesto Cayabyab, and that as a result, there is a prima facie presumption that their contents are true.

Actionable documents – are those which is the basis of one’s claim or defense.

This contention has no merit. The admission of the due execution and genuineness of a document simply means that “the party whose signature it bears admits that he signed it or that it was signed by another for him with his authority; that at the time it was signed it was in words and figures exactly as set out in the pleading of the party relying upon it; that the document was delivered; and that any formal requisites required by law, such as a seal, an acknowledgment, or revenue stamp, which it lacks, are waived by him.” Genuineness and due execution of the instrument means nothing more than that the instrument is not spurious, counterfeit, or of different import on its face from the one executed.

How do you allege an actionable document? Section 7 provides the answer. To allege an actionable document, you either (1) copy the document verbatim in your pleading; or (2) copy the basis of your claim and attach a copy of the document. Use the first mode if your document is short like a promissory note. Use the second mode if your document is quite lengthy like a contract of mortgage consisting of 20 pages. Rule 8, Section 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.

It is equally true, however, that ¾ execution can only refer to the actual making and delivery, but it cannot involve other matters without enlarging its meaning beyond reason. The only object of the rule was to enable a plaintiff to make out a prima facie, not a conclusive case, and it cannot preclude a defendant from introducing any defense on the merits which does not contradict the execution of the instrument introduced in evidence. Respondents presented evidence which casts doubt on the veracity of these documents. Switzerland Insurance presented Export Declaration No. 1131/85 which petitioner’s own witness, Rogelio Lumibao, prepared, in which it was stated that the copper concentrates to be transported to Japan had a gross weight of only 2,050 wet metric tons or 1,845 dry metric tons, 10 percent more or less. On the other hand, Certified Adjusters,

You contest the actionable document by specifically denying it under oath. The pleading must contain a jurat (subscribed and sworn to before me). Otherwise, the authenticity and due execution of the document are deemed admitted. Only authenticity and due execution, not the contents of the document.

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Inc., to which Switzerland Insurance had referred petitioner’s claim, prepared a report which showed that a total of 2,451.630 wet metric tons of copper concentrates were delivered at Poro Point. As the report stated: It is to be pointed out that there were no actual weighing made at Benguet Exploration’s site. The procedure done was that after weighing the trucks before and after unloading at Poro Point, the weight of the load was determined and entered on “Philex” Trip Ticket which was later on copied and entered by the truck driver on Benguet Exploration, Inc.’s Transfer Slip.

destination, in effect rebuts the presumption in favor of the figure indicated in the bill of lading. Rule 8, Section 9. Official document or act. — In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law. Specific denial Rule 8, Section 10. Specific denial. — A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made to the complaint, he shall so state, and this shall have the effect of a denial.

Considering the discrepancies in the various documents showing the actual amount of copper concentrates transported to Poro Point and loaded in the vessel, there is no evidence of the exact amount of copper concentrates shipped. Thus, whatever presumption of regularity in the transactions might have risen from the genuineness and due execution of the Bill of Lading, Certificate of Weight, Certificate of Loading, and Mate’s Receipt was successfully rebutted by the evidence presented by Switzerland Insurance which showed disparities in the actual weight of the cargo transported to Poro Point and loaded on the vessel. This fact is compounded by the admissions made by Lumibao and Cayabyab that they had no personal knowledge of the actual amount of copper concentrates loaded on the vessel.

Rule 8, Section 11. Allegations not specifically denied deemed admitted. — Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath.

In the face of these admissions, appellant’s claim of loss or shortage is placed in serious doubt, there being no other way of verifying the accuracy of the figures indicated in appellant’s documentary evidence that could confirm the alleged loss of 355.736 MT. Notwithstanding the figure stated in Bill of Lading No. PP/0-1 that 2,243.496 WMT of copper concentrates was loaded by appellant at the port of origin, it should be stressed that this is merely prima facie evidence of the receipt by the carrier of said cargo as described in the bill of lading. Thus, it has been held that recitals in the bill of lading as to the goods shipped raise only a rebuttable presumption that such goods were delivered for shipment and as between the consignor and a receiving carrier, the fact must outweigh the recital. Resultingly, the admissions elicited from appellant’s witnesses that they could not confirm the accuracy of the figures indicated in their documentary evidence with regard to the actual weight of the cargo loaded at the port of origin and that unloaded at the port of

Rule 8, Section 12. Striking out of pleading or matter contained therein. — Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within twenty (20) days after the service of the pleading upon him, or upon the court's own initiative at any time, the court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. D.

Rule 9

Effect of Failure to Plead Residual prerogatives, as laid down in Katon vs Palanca, is the authority of the appellate court to dismiss a case motu proprio pursuant to the grounds under Section 1

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of Rule 9. They are: res judicata, litis pendentia, prescription, lack of jurisdiction and statute of limitation.

Waiver of Defenses and Objections; Default Rule 9, Section 2. Compulsory counterclaim, or crossclaim, not set up barred. — A compulsory counterclaim, or a cross-claim, not set up shall be barred.

Rule 9, Section 1. Defenses and objections not pleaded. — Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim.

Rule 9, Section 3. Default; declaration of. — If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court.

Tie this up with Section 3, Rule 17: 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.

(a) Effect of order of default. — A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. (b) Relief from order of default. — A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice.

Thus, the 8 grounds by which the court can dismiss a case motu proprio are: (1) res judicata (Section 1, Rule 9)

(c) Effect of partial default. — When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented.

(2) litis pendentia (Section 1, Rule 9) (3) lack of jurisdiction (Section 1, Rule 9) (4) statute of limitation (Section 1, Rule 9) (5) failure of any party to appear for the presentation of evidence in chief (Section 3, Rule 17)

(d) Extent of relief to be awarded. — A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages.

(6) plaintiff’s failure to prosecute his action for an unreasonable length of time (Section 3, Rule 17)

(e) Where no defaults allowed. — If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in

(7) plaintiff’s failure to comply with these Rules or any order of the court (Section 3, Rule 17) (8) the rule in summary procedure

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order to see to it that the evidence submitted is not fabricated.

Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice.

Under the 1997 Rules of Court, when may a party be declared in default? There is only one ground for declaring a party in default: failure to file responsive pleading within the required period. Now, there is no more declaration of a party as in default that used to be in the 1960 Rules of Court that has been deleted by the 1997 Rules of Court.

Rule 15, Section 5. Notice of hearing. — The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion.

A files a case against B for unlawful detainer and forcible entry and summons was served upon B on January 5. On February 5, B has not yet filed an answer. Can B be declared in default for failure to file his answer? No, the case is covered by the Rules of Summary Procedure and an order of default or a motion to declare defendant in default is a prohibited pleading.

Rule 15, Section 6. Proof of service necessary. — No written motion set for hearing shall be acted upon by the court without proof of service thereof. 3-day notice rule – a copy of the pleading must be received 3 days before the scheduled hearing (not must be sent). If the motion day is a Friday, it must be received not later than Tuesday. Under computation of time in Rule 22, you must always exclude the first day and include the last day.

If there is only one ground, the 2 other grounds in the 1960 Rules of Court to declare a party as in default have been eliminated: (1) when a party fails to appear at the pre-trial; or (2) the party fails to file a pre-trial brief. Now, if the plaintiff does not appear at the pre-trial, it will be nonsuited and result to a dismissal. Defendant can present evidence ex parte on his counterclaim. If the defendant fails to appear at the pre-trial or submit a pre-trial brief, the plaintiff can present evidence ex parte. There is no need to declare them as in default.

Rule 22, Section 1. How to compute time. — In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day.

To declare a party in default because of failure to file responsive pleading within the required period, the other party must file a motion. There is no declaration in default motu proprio. It must always be through a litigious/litigated motion.

10-day setting rule – you have to set the hearing within a period of 10 days from the filing of a motion. If there is a conflict between the 2, what should prevail over which? The 3-day notice rule must prevail, because the 10-day setting rule is addressed to the court while the 3day notice rule is addressed to the adverse party. The adverse party must not be prejudiced.

There are 2 kinds of motions: (1) litigated motion and (2) non-litigated (or oral) motion. Since a motion to declare a party in default is a litigated motion, it must comply with section 4 (must be in writing, and comply with 3-day notice rule), section 5 (10-day setting rule), and section 6 (copy of pleading must be served upon the adverse party) of Rule 15.

When the party is supposed to file a responsive pleading within 15 days from receipt of the summons (ex. defendant receives the summons with the copy of the complaint) and he fails to file his answer to the complaint within 15 days from receipt thereof, the

Rule 15, Section 4. Hearing of motion. — Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant.

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plaintiff can go to the court and file a motion to declare the defendant in default. It is a litigated motion and it must comply with sections 4, 5 and 6 of Rule 15.

order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: xxx

The plaintiff may also be declared in default in a case where the defendant files a permissive counterclaim (thus, the plaintiff must file an answer). What is the effect if a party is declared in default? He loses his personality before the court. When he loses his personality before the court, he can no longer participate in the proceedings.

(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; xxx

How can he regain his personality before the court? There is only one way according to the SC which was discussed in Banco de Oro vs Tansipek: Even if you lose your personality before the court because you have been declared in default, you are still entitled to notices. You are only deprived of participation in the trial but you are still entitled to processes. In this case, the defaulted party filed a motion for reconsideration. SC held that a motion for reconsideration is not a valid remedy. There is one remedy: a motion to set aside the order of default. This motion is also a litigated motion and must conform to Sections 4, 5, 6 of Rule 15. When the motion to set aside the order of default is granted by the court, then you regain your personality before the court.

Banco de Oro vs Tansipek: JOCI, a domestic corporation engaged in construction, filed a complaint against PCIB (Bank). JOCI contracted with Duty Free Phils. to construct a store in Mandaue. Construction went on, and JOCI authorized Tansipek to collect payments for it. Initial payments were deposited to JOCI’s account. However, a check was not deposited to its account. Tansipek deposited the check to his personal account in PCIB. PCIB allowed it despite the check being crossed for the payee’s account only, and that respondent lacked authority to endorse it. PCIB refused to pay. JOCI demanded payment of the check. PCIB filed a motion to dismiss but RTC denied it. PCIB filed its answer and a third-party complaint against Tansipek. PCIB alleged in the third-party complaint that Tansipek presented to it a copy of the board resolution allowing him to deposit the check in his personal account.

If you do not regain your personality in court, what follows an order of default? A judgment by default. While there is only one remedy against an order of default (which is a motion to set aside the order of default), there are several remedies against a judgment by default. Because it is a judgment, all the remedies against a judgment may be availed of such as motion for reconsideration, motion for new trial and appeal.

Tansipek was given extension of time to file his answer, but he failed so he was declared in default. He filed a Motion to Reconsider the Default Order, but it was denied. He filed a petition for certiorari with the CA assailing the default order as well as the denial of the motion for reconsideration. CA dismissed his petition for failure to attach the orders and denied his motion for being filed out of time. The RTC later promulgated a ruling on the civil case ordering Tansipek and PCIB to pay JOCI. Tansipek appealed it to the CA. CA ruled that RTC erred in allowing the motion to declare Tansipek in default, and remanded the case to the RTC.

General rule: An order of default must always precede a judgment by default. Exception: Where a judgment by default may be granted by the court without being preceded by an order of default: refusal to comply with the modes of discovery (Rule 29, Section 3(c)). Rule 29, Section 3. Other consequences. — If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him to answer designated questions, or an

SC: A motion to reconsider the default order is not the proper remedy. He should have filed a motion to lift the default order.

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On appeal, the CSC reversed and set aside the Commission Chairman's decision. The Commission filed a motion for reconsideration but this was denied by the CSC. This constrained petitioner to file with the CA a petition for review under Rule 43 of the Rules of Court. Since Paler had in the meantime already reached the compulsory age of retirement on July 28, 2005 and was no longer entitled to reinstatement, the CA affirmed with modification CSC resolutions. Petitioner filed a motion for reconsideration but this was denied by the CA.

Rule 9, Section 3(b): Relief from order of default.— A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. A Motion to Lift Order of Default is different from an ordinary motion in that the Motion should be verified; and must show fraud, accident, mistake or excusable neglect, and meritorious defenses. The allegations of (1) fraud, accident, mistake or excusable neglect, and (2) of meritorious defenses must concur.

Issue: Whether or not the CSC was correct to entertain Paler’s appeal despite it being filed beyond the 15-day reglementary period. SC: Yes. Section 72 of CSC Memorandum Circular No. 19, s. 1999, provides for the period of appeal for nondisciplinary actions, to wit: Section 72. When and Where to File. - A decision or ruling of a department or agency may be appealed within fifteen (15) days from receipt thereof by the party adversely affected to the Civil Service Regional Office and finally, to the Commission Proper within the same period. xxx

Commission on Appointments (COA) vs Paler: Celso Paler was a Supervising Legislative Staff Officer II (SG24) with the Technical Support Service of the COA. He submitted a request for VL for 74 working days - from August 1 to November 14, 2003. The Director III of Technical Support Service submitted to the Commission Secretary his comments/recommendation on Paler’s application which principally states that said application for Leave may be acted upon depending on the completion of his work load and submission of the medical certificate.

Paler's son received the letter from the Commission Chairman denying Paler’s MR on March 18, 2004. Thus, Paler’s had until April 2, 2004 within which to file his appeal with the CSC. It was filed, however, only on April 5, 2004. Nevertheless, the CSC entertained the appeal in the interest of substantial justice.

Since he already had an approved leave from June 9 to July 30, 2003, Paler left for the US on June 8, 2003, without verifying whether his application for leave (for August 1 – November 14, 2003) was approved or denied.

We agree with the CSC. We uphold its decision to relax the procedural rules because Paler's appeal was meritorious. When substantial justice dictates it, procedural rules may be relaxed in order to arrive at a just disposition of a case. The purpose behind limiting the period of appeal is to avoid unreasonable delay in the administration of justice and to put an end to controversies. A one-day delay, as in this case, does not justify denial of the appeal where there is absolutely no indication of intent to delay justice on the part of Paler and the pleading is meritorious on its face. It bears stressing that the case before the CSC involves the security of tenure of a public officer sacrosanctly protected by the Constitution. Public interest requires a resolution of the merits of the appeal instead of dismissing the same based on a strained and inordinate

In a letter dated September 16, 2003, the Commission Chairman informed Paler that he was being dropped from the roll of employees effective said date, due to his continuous 30-day absence without leave and in accordance with Section 63, Civil Service Commission (CSC) Memorandum Circular No. 14, s. 1999. Paler's son received the letter on September 23, 2003. Paler moved for reconsideration but this was denied on February 20, 2004, on the ground that it was filed beyond the 15-day reglementary period. The denial was received by Paler's son on March 18, 2004.

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application of Section 49 (a) of the CSC Revised Rules of Procedure.

SC: Yes. The receipt of the summons by the legal secretary of the respondents is deemed proper, because they admit the actual receipt thereof, but merely question the manner of service. Moreover, when they asked for affirmative reliefs in several motions and thereby submitted themselves to the jurisdiction of the trial court, whatever defects the service of summons may have had were cured.

Oaminal vs Castillo: Henry Oaminal filed a complaint for collection against Respondents Pablito and Guia Castillo with the RTC. The summons together with the complaint was served upon Ester Fraginal, secretary of Mrs. Castillo. Respondents filed their ‘Urgent Motion to Declare Service of Summons Improper and Legally Defective’ alleging that the Sheriff's Return has failed to comply with Section (1), Rule 14 of the Rules of Court or substituted service of summons.

In civil cases, the trial court acquires jurisdiction over the person of the defendant either by the service of summons or by the latter’s voluntary appearance and submission to the authority of the former. Where the action is in personam and the defendant is in the Philippines, the service of summons may be made through personal or substituted service in the manner provided for by Sections 6 and 7 of Rule 14 of the Revised Rules of Court.

Petitioner filed an Omnibus Motion to Declare Respondents in Default and to Render Judgment because no answer was filed by the latter. Respondents filed the following: a. Omnibus Motion Ad Cautelam to Admit Motion to Dismiss and Answer with Compulsory Counter-claim; b. Urgent Motion to Dismiss; and c. Answer with Compulsory Counter-Claim. The judge denied the Motion to Dismiss, admitted their Answer, and set the pre-trial. Respondents filed an ‘Urgent Motion to Inhibit Ad Cautelam’ against Judge *Zapatos+. Judge [Zapatos] denied the motion. [Respondents] filed an Urgent Omnibus Motion for Reconsideration. Judge *Zapatos+ ruled that *respondents’+ ‘Omnibus Motion Ad Cautelam to Admit Motion to Dismiss and Answer with Counterclaim’ was filed outside the period to file answer, hence he (1) denied the Motion to Admit Motion to Dismiss and Answer; (2) declared [respondents] in default; and (3) ordered Oaminal to present evidence ex-parte, [failing] which, the case will be dismissed.

Personal service of summons is preferred over substituted service. Resort to the latter is permitted when the summons cannot be promptly served on the defendant in person and after stringent formal and substantive requirements have been complied with. For substituted service of summons to be valid, it is necessary to establish the following circumstances: (a) personal service of summons within a reasonable time was impossible; (b) efforts were exerted to locate the party; and (c) the summons was served upon a person of sufficient age and discretion residing at the party’s residence or upon a competent person in charge of the party’s office or regular place of business. It is likewise required that the pertinent facts proving these circumstances are stated in the proof of service or officer’s return.

Judge [Zapatos] ruled in favor of the petitioner. Respondents filed with the CA a Petition for certiorari. CA ruled that RTC did not validly acquire jurisdiction over respondents, because the summons had been improperly served on them. It based its finding on the Sheriff’s Return, which did not contain any averment that effort had been exerted to personally serve the summons on them before substituted service was resorted to.

The Sheriff’s Return failed to state that efforts had been made to personally serve the summons on respondents. Neither did the Return indicate that it was impossible to do so within a reasonable time. Nonetheless, nothing in the records shows that respondents denied actual receipt of the summons through their secretary. Their “Urgent Motion to Declare Service of Summons Improper and Legally Defective” did not deny receipt thereof; it merely assailed the manner of its service. In fact, they admitted in their Motion that the “summons, together with the

Issue: Whether the trial court acquired jurisdiction over respondents, although summons was served upon the secretary.

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complaint, was served by the Sheriff on Ester Fraginal, secretary of the defendants at No. 7, 21st Avenue, Cubao, Quezon City on 30 May 2000.”

which, despite demands, ACDC failed to pay. With all these allegations, MEC filed a complaint for sum of money with damages (RTC QC) against ACDC.

There is likewise no showing that respondents had heretofore pursued the issue of lack of jurisdiction; neither did they reserve their right to invoke it in their subsequent pleadings. If at all, what they avoided forfeiting and waiving -- both in their Omnibus Motion ad Cautelam to Admit Motion to Dismiss and Answer with Compulsory Counter-Claim and in their Motion to Dismiss -- was their right to invoke the grounds of improper venue and litis pendentia.

ACDC filed a motion to file and admit answer with third party complaint against Becthel Overseas Corporation. It admitted its indebtedness to MEC but imposes the special and affirmative defense that Becthel failed and refused to pay its overdue obligation in connection with the leased equipment used by ACDC to comply with its contracted services. Apparently, Becthel used all the equipment covered by lease for a construction project and ACDC was not yet paid for its services. ACDC also reiterated this in the 3rd party complaint praying for dismissal of MEC’s claim and order for Becthel to pay its obligation.

Verily, respondents did not raise in their MTD the issue of jurisdiction over their persons; they raised only improper venue and litis pendentia. Hence, whatever defect there was in the manner of service should be deemed waived.

MEC opposed this motion on the ground that ACDC already admitted its obligation to MEC which is independent from the transaction with Becthel. The third party complaint will only cause undue delays. MEC filed a motion for summary judgment on the ground that there was no genuine issue on ACDC’s obligation and that the 3rd party complaint must be litigated separately. In MEC’s reply to the special affirmative defense, it argued that this was a negative pregnant.

Assuming arguendo that the service of summons was defective, such flaw was cured and respondents are deemed to have submitted themselves to the jurisdiction of the trial court when they filed an Omnibus Motion to Admit the Motion to Dismiss and Answer with Counterclaim, an Answer with Counterclaim, a Motion to Inhibit, and a Motion for Reconsideration and Plea to Reset Pre-trial. The filing of Motions seeking affirmative relief -- to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration -- are considered voluntary submission to the jurisdiction of the court. Having invoked the trial court’s jurisdiction to secure affirmative relief, respondents cannot -- after failing to obtain the relief prayed for -- repudiate the very same authority they have invoked.

TC: motion for leave to file 3rd party complaint is denied; motion for summary judgment granted – trial court considered this as motion for judgment on the pleadings. DECISION IN FAVOR OF MEC. CA: AFFIRMED ACDC argues that although it admitted the obligation to MEC, the 3rd party complaint tendered an issue of whether the MEC’s claim is connected with the thirdparty claim. This is a genuine issue that must be litigated.

Asia Const. & Dev. Corp. (ACDC) vs CA: ACDC leased Caterpillar generator sets and Amida mobile floodlighting systems from Monark Equipment Corporation (MEC) during the period of March 13 to July 15, 1998 but failed, despite demands, to pay the rentals in the amount of P4, 313,935.00. From July 14 to August 25, 1998, various equipment from MEC were, likewise, leased by ACDC for the latter’s power plant in Mauban, Quezon, and that there was still a balance of P456,666.67. ACDC also purchased and took custody of various equipment parts from MEC for P237,336.20

Issue: Whether or not the third party complaint was proper. SC: No. The purpose of Section 11, Rule 6 of the Rules of Court is to permit a defendant to assert an independent claim against a third-party which he, otherwise, would assert in another action, thus preventing multiplicity of suits. All the rights of the parties concerned would then be adjudicated in one proceeding. This is a rule of procedure and does not create a substantial right.

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Neither does it abridge, enlarge, or nullify the substantial rights of any litigant. This right to file a thirdparty complaint against a third-party rests in the discretion of the trial court. The third-party complaint is actually independent of, separate and distinct from the plaintiff’s complaint, such that were it not for the rule, it would have to be filed separately from the original complaint.

where the equipment leased from the respondent was used by the petitioner. The controversy between the respondent and the petitioner, on one hand, and that between the petitioner and Becthel, on the other, are thus entirely distinct from each other. There is no showing in the proposed third-party complaint that the respondent knew or approved the use of the leased equipment by the petitioner for the said project in Quezon. Becthel cannot invoke any defense the petitioner had or may have against the claims of the respondent in its complaint, because the petitioner admitted its liabilities to the respondent for the amount of P5,075,335.86. The barefaced fact that the petitioner used the equipment it leased from the respondent in connection with its project with Becthel does not provide a substantive basis for the filing of a third-party complaint against the latter. There is no causal connection between the claim of the respondent for the rental and the balance of the purchase price of the equipment and parts sold and leased to the petitioner, and the failure of Becthel to pay the balance of its account to the petitioner after the completion of the project in Quezon.

A prerequisite to the exercise of such right is that some substantive basis for a third-party claim be found to exist, whether the basis be one of indemnity, subrogation, contribution or other substantive right. The bringing of a third-party defendant is proper if he would be liable to the plaintiff or to the defendant or both for all or part of the plaintiff’s claim against the original defendant, although the third-party defendant’s liability arises out of another transaction. The defendant may implead another as third-party defendant (a) on an allegation of liability of the latter to the defendant for contribution, indemnity, subrogation or any other relief; (b) on the ground of direct liability of the third-party defendant to the plaintiff; or (c) the liability of the thirdparty defendant to both the plaintiff and the defendant. There must be a causal connection between the claim of the plaintiff in his complaint and a claim for contribution, indemnity or other relief of the defendant against the third-party defendant.

IV. RULES 10 TO 14: AMENDMENTS TO SUMMONS Common liability is the very essence for contribution. Contribution is a payment made by each, or by any of several having a common liability of his share in the damage suffered or in the money necessarily paid by one of the parties in behalf of the other or others. The rule on common liability is fundamental in the action for contribution. The test to determine whether the claim for indemnity in a third-party complaint is, whether it arises out of the same transaction on which the plaintiff’s claim is based, or the third-party plaintiff’s claim, although arising out of another or different contract or transaction, is connected with the plaintiff’s claim.

A.

Amendments and Supplemental Pleadings

Section 1. Amendments in general. — Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. Kinds of Amendments

The claims of the respondent, as plaintiff in the RTC, against the petitioner as defendant therein, arose out of the contracts of lease and sale; such transactions are different and separate from those between Becthel and the petitioner as third-party plaintiff for the construction of the latter’s project in Mauban, Quezon,

There are 2 sets of classifications of amendments both in civil and criminal cases. 

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o

Substantial amendment – when such amendment would be prejudicial to a party

right? Yes. The Rules says before the responsive pleading is “served,” not “filed.”

o

Formal amendment – is not prejudicial to a party because it is only amended as to the form

Remington Industrial Sales Corp vs CA: Petitioner filed a complaint for sum of money and damages arising from breach of contract. Among the defendants is respondent British Steel. Respondent moved for the dismissal of the complaint on the ground that it failed to state a cause of action against it. RTC denied the motion to dismiss, as well as the MR. Respondent filed a petition for certiorari and prohibition before CA, claiming that the complaint did not contain a single averment that respondent committed any act or is guilty of any omission in violation of petitioner’s legal rights. Apart from the allegation in the complaint’s “Jurisdictional Facts” that:

Section 4. Formal amendments. — A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. 

As a matter of right vs by leave of court (applies in both civil and criminal but the time frame differs)

o

In civil cases, amendment is a matter of right before the responsive pleading is served

1.05. Defendants British Steel (Asia) Ltd. and Ferro Trading Gmbh, while understood by the plaintiff as mere suppliers of goods for defendant ISL, are impleaded as party defendants pursuant to Section 13, Rule 3 of the Revised Rules of Court

Section 2. Amendments as a matter of right. — A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. o

In criminal cases, amendment is a matter of right before arraignment

o

Thereafter, it is already by leave of court. If you seek amendment, you have to precede it with a motion for leave to admit amended pleading.

o

no other reference was made to respondent that would constitute a valid cause of action against it. Since petitioner failed to plead any cause of action against respondent as alternative defendant under Section 13, Rule 3, RTC should have ordered the dismissal of the complaint insofar as respondent was concerned. Petitioner sought to amend its complaint by incorporating therein additional factual allegations constitutive of its cause of action against respondent. Pursuant to Section 2, Rule 10, petitioner maintained that it can amend the complaint as a matter of right because respondent has not yet filed a responsive pleading thereto. Petitioner filed a Manifestation and Motion with the CA stating that it had filed a Motion to Admit Amended Complaint together with said Amended Complaint before the RTC. Hence, petitioner prayed that the proceedings in the special civil action be suspended.

Whether it is a matter of right or by leave of court, it can be both formal or substantive.

Section 3. Amendments by leave of court. — Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard.

RTC granted petitioner’s Motion to Admit Amended Complaint. CA granted the writ of certiorari and ordered the respondent judge to dismiss without prejudice the Complaint against respondent.

A files a case against B. Summons was served upon B. Two days after receiving the summons, B files his answer. Can A still amend the complaint as a matter of

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Can a complaint still be amended as a matter of right before an answer has been filed, even if there was a pending proceeding for its dismissal before the higher court?

full hearing on the merits of every case may be had and multiplicity of suits avoided. The remedy espoused by the CA in its assailed judgment will precisely result in multiple suits, involving the same set of facts and to which the defendants would likely raise the same or, at least, related defenses. Plainly stated, we find no practical advantage in ordering the dismissal of the complaint against respondent and for petitioner to re-file the same, when the latter can still clearly amend the complaint as a matter of right. The amendment of the complaint would not prejudice respondents or delay the action, as this would, in fact, simplify the case and expedite its disposition.

SC: Yes. Section 2, Rule 10 explicitly states that a pleading may be amended as a matter of right before a responsive pleading is served. This only means that prior to the filing of an answer, the plaintiff has the absolute right to amend the complaint whether a new cause of action or change in theory is introduced. The reason for this rule is implied in the subsequent Section 3 of Rule 10. Under this provision, substantial amendment of the complaint is not allowed without leave of court after an answer has been served, because any material change in the allegations contained in the complaint could prejudice the rights of the defendant who has already set up his defense in the answer.

Furthermore, we do not agree with respondent’s claim that it will be prejudiced by the admission of the Amended Complaint because it had spent time, money and effort to file its petition before the appellate court. We cannot see how the result could be any different for respondent, if petitioner merely re-filed the complaint instead of being allowed to amend it. As adverted to earlier, amendment would even work to respondent’s advantage since it will undoubtedly speed up the proceedings before the trial court. Consequently, the amendment should be allowed in the case at bar as a matter of right in accordance with the rules.

Conversely, it cannot be said that the defendant’s rights have been violated by changes made in the complaint if he has yet to file an answer thereto. In such an event, the defendant has not presented any defense that can be altered or affected by the amendment of the complaint in accordance with Section 2 of Rule 10. The defendant still retains the unqualified opportunity to address the allegations against him by properly setting up his defense in the answer. Considerable leeway is thus given to the plaintiff to amend his complaint once, as a matter of right, prior to the filing of an answer by the defendant.

Section 5. Amendment to conform to or authorize presentation of evidence. — When issues not raised by the pleadings are tried with the express or implied consent of the parties they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not effect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made.

The right granted to the plaintiff under procedural law to amend the complaint before an answer has been served is not precluded by the filing of a motion to dismiss or any other proceeding contesting its sufficiency. Were we to conclude otherwise, the right to amend a pleading under Section 2, Rule 10 will be rendered nugatory and ineffectual, since all that a defendant has to do to foreclose this remedial right is to challenge the adequacy of the complaint before he files an answer. Moreover, amendment of pleadings is favored and should be liberally allowed in the furtherance of justice in order to determine every case as far as possible on its merits without regard to technicalities. This principle is generally recognized to speed up trial and save party litigants from incurring unnecessary expense, so that a

Amendments vs Supplemental Pleadings

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Section 6. Supplemental pleadings. — Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading.

Rule on Amendments in Criminal Procedure is more taxing. There is only one pleading in criminal actions, the information; in civil actions, there are a lot of pleadings that can be amended. In civil actions, we have amendatory pleadings and suppletory pleadings. In criminal procedure, there are no suppletory pleadings; instead, they have amendments and substitutions.

Regarding supplemental pleadings, these are availed of after the fact.

Answer

B.

Time/Period for Filing Responsive Pleadings

Section 1. Answer to the complaint. — The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court.

‘after the fact’ – if something new transpired after the pleadings have been already in the hands of the court, then you don’t file an amended pleading but rather a supplemental pleading. Under the Rules of Evidence, Rule 129 (What Need Not Be Proved), judicial notice and judicial admissions need not be proved. As to the latter, they are admissions in the pleadings.

Section 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.

Rule 129, Section 4. Judicial admissions. — An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.

Section 3. Answer to amended complaint. — When the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) 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.

When you amend the pleading, what happens to the admissions there in the original pleading? They become extra judicial admissions. Therefore, evidence must be offered. Only admissions in the pleadings, not extra judicial admissions.

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.

Section 7. Filing of amended pleadings. — When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed.

Section 4. Answer to counterclaim or cross-claim. — A counterclaim or cross-claim must be answered within ten (10) days from service.

Section 8. Effect of amended pleadings. — An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived.

Section 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.

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Section 7. Answer to supplemental complain. — 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.

amended complaint when amendment is NOT a matter of right Filing an answer under Rules of Summary Procedure Filing an answer to a supplement al complaint Counterclai m or crossclaim Reply

Reply Section 6. Reply. — A reply may be filed within ten (10) days from service of the pleading responded to. Section 8. Existing counterclaim or cross-claim. — A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. Section 9. Counterclaim or cross-claim arising after answer. — A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment.

C.

Section 11. Extension of time to plead. — Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules.

4 periods under Rule 11: 10, 15, 30 and 60 days. 30

60

When defendant is a foreign juridical

Extraterritori al service of summons under

Bill of Particulars

Section 2. Action by the court. — Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either deny or grant it outright, or allow the parties the opportunity to be heard.

The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules.

15 (incomplet e) Filing an answer Filing an answer to

entity and Section 15, summons Rule 14. is served upon the governme nt official designated by law (Section 12, Rule 14)

Section 1. When applied for; purpose. — Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averted with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) days from service thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired.

Section 10. Omitted counterclaim or cross-claim. — When a pleader fails to set up a counterclaim or a crossclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment.

10 (incomplete ) Bill of particulars Filing an answer to

amended complaint when amendmen t is a matter of right Filing an answer to a third-, fourthparty complaint

Section 3. Compliance with order. — If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (10) days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party.

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Section 4. Effect of non-compliance. — If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just.

instances when the fresh day period rule does not apply. The defendant received a copy of the summons on March 1. He has until March 16 within which to file the answer. Instead of filing the answer, on March 2, he filed a bill of particulars. It was denied. When should the defendant file his answer? Within 14 days from his receipt of the notice of the denial of the order. If you receive it on April, then start counting 14 days in April.

Section 5. Stay of period to file responsive pleading. — After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event.

Suppose instead of filing it on March 2, you file it on March 15 (1 day before the expiration of the period to file the answer) and it was denied. He has 5 days. If he receives it on April 5, he still has 5 days within which to file or up to April 10.

Section 6. Bill a part of pleading. — A bill of particulars becomes part of the pleading for which it is intended. Bill of particular – particularization of the allegation for the purpose that the adverse party may be able to respond thoroughly or correctly to the allegations in the pleading.

D.

Filing and Service of Pleadings, Judgments and other papers

Section 1. Coverage. — This Rule shall govern the filing of all pleadings and other papers, as well as the service thereof, except those for which a different mode of service is prescribed.

Example: The complaint states that the defendant borrowed P100,000 from the plaintiff on 3 occasions. When was this?! Instead of filing an answer, file a motion for bill of particulars. Particularize on what occasions defendant borrowed money. If the motion is granted, within 10 days from receipt of the order granting motion for the bill of particular, the plaintiff will now particularize. The plaintiff will say, what I meant by 3 occasions are: on Valentine’s Day, on your birthday, and on Christmas day.

Distinction between Filing and Service Section 2. Filing and service, defined. — Filing is the act of presenting the pleading or other paper to the clerk of court. Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.

So the defendant can answer: on Valentine’s Day, I was not here. I was in Boracay. On my birthday, I wasn’t here too. If it is granted, the plaintiff has 10 days within which to file the bill of particular.

Filing: Manner, completeness, proof If it is denied, the defendant only has the balance of the period, but the period shall not be less than 5 days. Hence, the doctrine laid down in Domingo Neypes vs CA or the fresh day period rule does not apply in Rule 12. The same doctrine does not apply as well in Rule 16 or Motion to Dismiss and Rule 64 or Review of the judgment of COA or COMELEC. These are the only

Section 3. Manner of filing. — The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by registered mail. In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case,

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the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case.

personal service and service by mail. The service is complete at the time of such delivery. Section 9. Service of judgments, final orders, or resolutions. — Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party.

Service: Mode, completeness, proof Section 4. Papers required to be filed and served. — Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected.

Section 10. Completeness of service. — Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier.

Section 5. Modes of service. — Service of pleadings motions, notices, orders, judgments and other papers shall be made either personally or by mail. Section 6. Personal service. — Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein.

Priorities in Modes of Service

Section 7. Service by mail. — Service by registered mail shall be made by depositing the copy in the post office in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the senders or the addressee, service may be done by ordinary mail.

Illustration of this abuse: The counsel of the plaintiff has his law office at Pacific Land Building on the 44th floor. The defendant’s counsel is on the 4th floor of the same building. Yet they do it by mail.

When you serve a copy of the pleading to the adverse party, it is preferred that you do it personally. If you don’t, you have to state your explanation why you are not availing of personal service. What is the explanation? Any explanation for that matter. Why is this so? This is new in the 1997 Rules of Court. There are a lot of lawyers abusing such provision. Instead of personally serving, they serve by mail to buy time.

Section 11. Priorities in modes of service and filing. — Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed.

Section 8. Substituted service. — If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both

Section 14. Notice of lis pendens. — In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in

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the office of the registry of deeds of the province in which the property is situated notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names.

prove: (1) the time mail, proof is of mailing and (2) by an time of receipt**** affidavit of the person mailing of facts and the registry receipt * When it comes to filing, only registered mail is accepted. When it comes to service, it may be either registered or ordinary mail. What is the rationale? First, the service may be through ordinary mail because it comes from the residence of the party. In some parts of the country there are no registry services. Second, with regard to the prescriptive period, filing can only be done through registered mail because it is difficult to count for the court if it is by ordinary mail. Although the rule regarding completeness already provides as to when it is complete.

The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the rights of the party who caused it to be recorded. There are 2 general issues: filing and service. Under those 2 issues, there are 3 sub-issues: Filing Modes or Personal filing manner By registered mail (registered mail only!) Completeness If filed personally, it is complete upon receipt by the Clerk of Court If filed by mail, it is complete only upon the expiration of 5 days from receipt of first registry notice

Proof

If it is personally filed, the proof is the stamp***

If it is service by registered mail,

** If you mail it on March 1, when is it complete? March Service 12 (expiration of 10 days). Personal service *** What if there is no stamp (as what happens in Service by mail actual practice)? A filed. The pleading A filed could no Registered Ordinary* longer be located by the Clerk or Court. How do you prove it? Through the stamp on your own copy. If personal, it is complete upon receipt **** You are given a registry receipt as proof of mailing, and then you attach that to a return card as proof of receipt. If by If by ordinary registered mail, upon Section mail, it is expiration of12. Proof of filing. — The filing of a pleading or shall be proved by its existence in the record of complete the 10paper days the case. If it is not in the record, but is claimed to have only upon from mailing** been filed personally, the filing shall be proved by the the written or stamped acknowledgment of its filing by the expiration of clerk of court on a copy of the same; if filed by 5 days from registered mail, by the registry receipt and by the receipt of affidavit of the person who did the mailing, containing first registry a full statement of the date and place of depositing the notice mailisinbythe post office in a sealed envelope addressed to If personal service, proof theparty court, with postage fully prepaid, and with written admission of the instructions to the postmaster to return the mail to the served, or the official return of senderofafter ten (10) days if not delivered. the server, or the affidavit the party serving The affidavit refers to the affidavit of the sender, not If service by If service by one who mailed. In proof of filing, it says registry registered ordinarythe mail, 65

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receipt “and” affidavit; in proof service, it says “or.” Make a distinction there.

defendant answer within the time fixed by these Rules; (c) a notice that unless the defendant so answers plaintiff will take judgment by default and may be granted the relief applied for.

Section 13. Proof of Service. — Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.

A copy of the complaint and order for appointment of guardian ad litem if any, shall be attached to the original and each copy of the summons. 3.

Only three people are qualified to serve the summons: the sheriff, deputy sheriff, or any other person authorized by the court. Example of a person authorized by the Rules is Section 9. When the defendant is a prisoner, to whom should it be served? It should be served to the prisoner by the warden. The warden is authorized by the Rule.

An SC Circular says that when you file before the SC and the CA, you have to attach a copy of the affidavit of service (not filing). The SC or the CA will not accept any pleading that does not include an affidavit of service. E.

Summons

1.

What is summons?

Can the plaintiff serve the summons to the defendant? Only if he has been authorized by the court. He has to ask for leave to do that and only for justifiable reasons. Example: If after several tries, the sheriff cannot find the whereabouts of the defendant. Only the plaintiff knows because the defendant keeps transferring from one residence to another. The plaintiff should move to leave for service of summons. In actual practice, you do not go to such lengths; you simply accompany the sheriff.

Alias summons is one which is the second or third or fourth summons prepared. 2.

Who serves?

Who issues, to whom addressed? Section 3. By whom served. — The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons.

After the complaint was filed by the plaintiff, summons was served upon the defendant. The defendant, in reading the summons, contested it and threw it away saying it is not signed by the judge. Is that error on the part of the court? No, the judge never signs nor issues the summons. It is the clerk of court that signs, issues and serves the summons, not the judge.

Section 4. Return. — When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff's counsel, and shall return the summons to the clerk, who issued it, accompanied by proof of service.

Section 1. Clerk to issue summons. — Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants.

Section 5. Issuance of alias summons. — If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiff's counsel, stating the reasons for the failure of service, within five (5) days therefrom. In

Section 2. Contents. — The summons shall be directed to the defendant, signed by the clerk of court under seal and contain (a) the name of the court and the names of the parties to the action; (b) a direction that the

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such a case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons. 4.

of his wife and opposed Rosita’s motion. The RTC denied the motion to declare Lourdes in default. The trial court likewise denied Rosita’s motion for reconsideration.

Kinds of summons

What are the modes of service of summons? (must be distinguished from modes of service of pleadings) a.

Rosita file a petition for certiorari, prohibition and mandamus with the CA. The appellate court granted the petition and declared Lourdes in default.

service in person on the defendant (don’t say personal service, to distinguish it from service of pleadings)

SC: There was no valid service of summons upon the petitioner Lourdes Valmonte. The rules on service of summons apply according to whether an action is an action in personam, in rem or quasi in rem.

There are 2 ways: delivering it to the defendant himself; and if he refuses to accept it, by leaving it with him as laid down in Valmonte vs CA.

In an action in personam, personal service of summons or, if this is not possible and he cannot be personally served, substituted service, as provided in Rule 14, §§782 is essential for the acquisition by the court of jurisdiction over the person of a defendant who does not voluntarily submit himself to the authority of the court. If defendant cannot be served with summons because he is temporarily abroad, but otherwise he is a Philippine resident, service of summons may, by leave of court, be made by publication. Otherwise stated, a resident defendant in an action in personam, who cannot be personally served with summons, may be summoned either by means of substituted service in accordance with Rule 14, §8 or by publication as provided in §§ 17 and 18 of the same Rule.

Section 6. Service in person on defendant. — Whenever practicable, the summons shall be served by handling a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. Valmonte vs CA: Rosita Dimalanta filed a complaint for partition of real property and accounting of rentals against her sister Lourdes Valmonte and her husband Alfredo Valmonte. Lourdes and Alfredo are residents of Seattle, Washington, USA. Alfredo has a law office in Mabini, Ermita, Manila and divides his time between the USA and the Philippines. Rosita’s complaint stated that summons may be served in the Ermita address where Alfredo, as Lourdes’ spouse, holds office and where he can be found. This was based on a letter Lourdes sent to Rosita’s lawyer wherein she referred to her husband as the party to whom all communications regarding the partition of the property intended for her should be sent.

In all of these cases, it should be noted, defendant must be a resident of the Philippines, otherwise an action in personam cannot be brought because jurisdiction over his person is essential to make a binding decision. On the other hand, if the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res. If the defendant is a nonresident and he is not found in the country, summons may be served exterritorially in accordance with Rule 14, §17.

Service of summons was made upon Alfredo who was at his office in Manila. He accepted the summons insofar as he was concerned. He refused to accept the summons for his wife, Lourdes, on the ground that he was not authorized to accept the process on her behalf. The process server left without leaving a copy of the summons and complaint for Lourdes.

In such cases, what gives the court jurisdiction in an action in rem or quasi in rem is that it has jurisdiction over the res, i.e. the personal status of the plaintiff who is domiciled in the Philippines or the property litigated or attached.

Alfredo filed his Answer with Counterclaim. Lourdes did not file an Answer. Rosita moved to declare Lourdes in default. Alfredo entered a special appearance in behalf

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Applying the foregoing rules to the case at bar, private respondent's action, which is for partition and accounting under Rule 69, is in the nature of an action quasi in rem. Such an action is essentially for the purpose of affecting the defendant's interest in a specific property and not to render a judgment against him.

3. Because there was no order granting such leave, petitioner Lourdes A. Valmonte was not given ample time to file her Answer which, according to the rules, shall be not less than sixty (60) days after notice. It must be noted that the period to file an Answer in an action against a resident defendant differs from the period given in an action filed against a nonresident defendant who is not found in the Philippines. In the former, the period is fifteen (15) days from service of summons, while in the latter, it is at least sixty (60) days from notice.

Service of summons on her attorney cannot be justified under the third mode provided for by Section 17, Rule 14. As petitioner Lourdes A. Valmonte is a nonresident who is not found in the Philippines, service of summons on her must be in accordance with Rule 14, §17. Such service, to be effective outside the Philippines, must be made either (1) by personal service; (2) by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court should be sent by registered mail to the last known address of the defendant; or (3) in any other manner which the court may deem sufficient.

b.

substituted service

Substituted service of summons is upon the person residing in the residence of the defendant who must be of age and discretion. If he cannot be found there, at the office of the defendant, to a person in charge therein of age and discretion. Section 7. Substituted service. — If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof.

This mode of service, like the first two, must be made outside the Philippines, such as through the Philippine Embassy in the foreign country where the defendant resides. Moreover, there are several reasons why the service of summons on Atty. Alfredo D. Valmonte cannot be considered a valid service of summons on petitioner Lourdes A. Valmonte:

Manotoc vs CA: Agapita Trajano sought the enforcement of a foreign judgment rendered by the US District Court of Hawaii against Ma. Imelda Manotoc (Imee Marcos) for the wrongful death of Archimedes Trajano committed by military intelligence in the Philippines allegedly working for Manotoc. RTC issued summons for Manotoc addressed at Alexandra Homes, Pasig. It was served on a Macky dela Cruz described as a caretaker of her unit. Manotoc failed to file her answer and was declared in default.

1. Service of summons on petitioner Alfredo D. Valmonte was not made upon the order of the court as required by Rule 14, §17 and certainly was not a mode deemed sufficient by the court which in fact refused to consider the service to be valid and on that basis declare petitioner Lourdes A. Valmonte in default for her failure to file an answer. 2. Service in the attempted manner on petitioner was not made upon prior leave of the trial court as required also in Rule 14, §17. As provided in §19, such leave must be applied for by motion in writing, supported by affidavit of the plaintiff or some person on his behalf and setting forth the grounds for the application.

Manotoc filed a motion to dismiss on the ground of lack of jurisdiction over her person, stating that she is not a resident of the said condo and that she does not hold office there, and dela Cruz is not her representative or employee. Thus no valid service was made. Further, she states that she is a resident of Singapore.

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RTC denied the motion and the subsequent MR. Manotoc filed a petition for certiorari and prohibition with the CA, that was denied. MR was also denied.

Publication. The Judge issued an Order granting the Exparte Motion for Leave of Court to Effect Summons by Publication. The judge, sans a written motion, issued an Order declaring [respondents] in default for failure to file their respective answers. As a consequence of the declaration of default, [petitioners] were allowed to submit their evidence ex-parte.

Issue: Whether there was valid substituted service. SC: No. In actions strictly ‘in perosnam’ jurisdiction over the person of the defendant is mandatory and can be complied with valid service of summons. If defendant cannot be served, for excusable reason, within a reasonable time, substituted service can be resorted to. It is extraordinary in character and a derogation of the usual method of service thus rules for such must be faithfully complied with.

Helen , who was then residing in the United States of America, was surprised to learn from her sister Elizabeth , of the resolution issued by the respondent court. [Respondents] filed an Ad Cautelam motion questioning, among others, the validity of the service of summons effected by the court a quo. The public respondent issued an Order denying the said motion on the basis of the defaulted *respondents’+ supposed loss of standing in court. The [respondents] once again raised the issue of jurisdiction of the trial court via a motion for reconsideration, which was also denied. The [petitioners] moved for the execution of the controverted judgment which the respondent judge ultimately granted.

The requirements of valid substituted service if there is impossibility of prompt personal service which is 15-30 days for the sheriff are: 1) By leaving copies of summons at defendant’s residence with a person of suitable age and discretion residing therein or by leaving copies at the defendant’s office or regular place of business with some competent person in charge. 2) The sheriff must narrate in specific details how service in person became impossible. 3) The attempt must be extraordinary and at least 3 times. The person of suitable age and discretion must be at least 18 years old, able to read the summons written in English, and must be with confidential relation to defendant. A competent person in charge can be the president or manager.

Respondents filed before the CA a Petition for certiorari under Rule 65, questioning the jurisdiction of the RTC. CA held that RTC had no authority to issue the questioned Resolution and Orders since it never acquired jurisdiction over respondents because of the invalid service of summons upon them. First, the sheriff failed to comply with the requirements of substituted service of summons, because he did not specify in the Return of Summons the prior efforts he had made to locate them and the impossibility of promptly serving the summons upon them by personal service. Second, the subsequent summons by publication was equally infirm, because the Complaint was a suit for specific performance and therefore an action in personam.

The substituted service was invalid because the sheriff did not comply with the requirements. dela Cruz was not a representative of Manotoc. Therefore, since there was no valid service of summons, there was no jurisdiction acquired. Jose vs Boyon: Petitioners Patrick and Rafaela Jose lodged a complaint for specific performance against respondents Helen and Romeo Boyon to compel them to facilitate the transfer of ownership of a parcel of land subject of a controverted sale. Respondent judge issued summons to the [respondents]. As per return of the summons, substituted service was resorted to by the process server allegedly because efforts to serve the summons personally to the [respondents] failed. [Petitioners] filed before the trial court an Exparte Motion for Leave of Court to Effect Summons by

Issue: Whether the service of summons on respondents was valid SC: No. [P]ersonal service of summons is preferred to substituted service. Only if the former cannot be made promptly can the process server resort to the latter. Moreover, the proof of service of summons must (a) indicate the impossibility of service of summons within a reasonable time; (b) specify the efforts exerted to locate the defendant; and (c) state that the summons was served upon a person of sufficient age and

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discretion who is residing in the address, or who is in charge of the office or regular place of business, of the defendant. It is likewise required that the pertinent facts proving these circumstances be stated in the proof of service or in the officer’s return. The failure to comply faithfully, strictly and fully with all the foregoing requirements of substituted service renders the service of summons ineffective.

submit their respective memoranda. However, without waiting for the same, RTC on May 26, 1999, denied the motion to lift order of default. Columbus filed a motion for reconsideration, which was denied. Undaunted, Columbus filed a manifestation and motion to lift the writ of execution. It suffered the same fate as the motion for reconsideration for being dilatory. The branch sheriff was directed to proceed with the enforcement of the decision.

The Return of Summons shows that no effort was actually exerted and no positive step taken by either the process server or petitioners to locate and serve the summons personally on respondents. At best, the Return merely states the alleged whereabouts of respondents without indicating that such information was verified from a person who had knowledge thereof. Without specifying the details of the attendant circumstances or of the efforts exerted to serve the summons, a general statement that such efforts were made will not suffice for purposes of complying with the rules of substituted service of summons.

Columbus appealed to the Court of Appeals, which ruled in its favour. Columbus was not properly served with summons, thus it cannot be faulted if it failed to file an Answer. Section 11, Rule 14 of the 1997 requires that service of summons upon domestic private juridical entity shall be made through its president, managing partner, general manager, corporate secretary, treasurer or in-house counsel. Since service upon Columbus was made through a certain Ayreen Rejalde, a mere filing clerk in Columbus’ office, as evidenced by the latter’s employment record, such service cannot be considered valid. Petitioner filed a motion for reconsideration, but to no avail. Hence, this petition for review.

Mason vs CA: Spouses Efren and Digna Mason owned 2 parcels of land. Petitioners and private respondent Columbus Philippines Bus Corporation entered into a lease contract, under which Columbus undertook to construct a building worth P10,000,000 at the end of the 3rd year of the lease. Because Columbus failed to comply with this stipulation, the petitioners, filed a complaint for rescission of contract with damages against Columbus before the RTC.

Issue: Whether there was valid service of summons on private respondent. SC: No. Petitioners contend that while Section 11, Rule 14 clearly specifies the persons authorized to receive summons on behalf of a private juridical entity, said provision did not abandon or render inapplicable the substantial compliance rule. The case law applicable, contends Columbus, is Villarosa which squarely provides for the proper interpretation of the new rule on the service of summons upon domestic corporation, thus: The designation of persons or officers who are authorized to accept summons for a domestic corporation or partnership is now limited and more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil Procedure. The rule now states "general manager" instead of only "manager"; "corporate secretary" instead of "secretary"; and "treasurer" instead of "cashier." The phrase "agent, or any of its directors" is conspicuously deleted in the new rule. Service through Ayreen Rejalde, a mere filing clerk of private respondent and not one of those enumerated above, is invalid.

Summons was served upon Columbus through a certain Ayreen Rejalde. While the receiving copy of the summons described Rejalde as a secretary of Columbus, the sheriff’s return described Rejalde as a secretary to the corporate president, duly authorized to receive legal processes. Columbus failed to file its answer or other responsive pleading, hence petitioners filed a motion to declare Columbus in default. The motion was granted and petitioners were allowed to present evidence ex-parte. The case was submitted for decision. RTC ruled in favor of the plaintiffs and against Columbus. That decision became final on May 12, 1999. The following day, Columbus filed a motion to lift order of default, which was opposed by petitioners. RTC ordered the parties to

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We find private respondent’s submission on this issue meritorious.

Petitioner contends that the enumeration of persons to whom summons may be served is “restricted, limited and exclusive” following the rule on statutory construction expressio unios est exclusio alterius.

The question of whether the substantial compliance rule is still applicable under Section 11, Rule 14 of the 1997 Rules of Civil Procedure has been settled in Villarosa which applies squarely to the instant case. Notice to enable the other party to be heard and to present evidence is not a mere technicality or a trivial matter in any administrative or judicial proceedings. The service of summons is a vital and indispensable ingredient of due process. We will deprive Columbus of its right to present its defense in this multi-million peso suit, if we disregard compliance with the rules on service of summons.

Issue: Whether or not the service of summons upon the branch manager of petitioner at its branch office at Cagayan de Oro, instead of upon the general manager at its principal office at Davao City was proper. SC: No. Under the new Rules, service of summons upon an agent of the corporation is no longer authorized. The cases cited by private respondent are therefore not in point. The designation of persons or officers who are authorized to accept summons for a domestic corporation or partnership is now limited and more clearly specified in Section 11, Rule 14. The rule now states “general manager” instead of only “manager”; “corporate secretary” instead of “secretary”; and “treasurer” instead of “cashier.” The phrase “agent, or any of its directors” is conspicuously deleted in the new rule.

E.B. Villarosa vs Benito: Petitioner and private respondent executed a Deed of Sale with Development Agreement wherein the former agreed to develop parcels of land belonging to the latter into a housing subdivision for the construction of low cost housing units. Private respondent filed a Complaint for Breach of Contract and Damages against petitioner before the RTC allegedly for failure of the latter to comply with its contractual obligation in that, other than a few unfinished low cost houses, there were no substantial developments. Summons, with the complaint, were served upon the petitioner, through its Branch Manager Engr. Wendell Sabulbero at the stated address at Kolambog, Lapasan, Cagayan de Oro (CdO) City but the Sheriff’s Return of Service stated that the summons was duly served upon petitioner thru SALBULBERO at their new office Villa Gonzalo, Nazareth, CdO City.

The particular revision was explained by retired SC Justice Florenz Regalado, thus: “x x x the then Sec. 13 of this Rule allowed service upon a defendant corporation to ‘be made on the president, manager, secretary, cashier, agent or any of its directors.’ The terms were obviously ambiguous and susceptible of broad and sometimes illogical interpretations, especially the word ‘agent’ of the corporation. The Filoil case, involving the litigation lawyer of the corporation who precisely appeared to challenge the validity of service of summons but whose very appearance for that purpose was seized upon to validate the defective service, is an illustration of the need for this revised section with limited scope and specific terminology. Thus the absurd result in the Filoil case necessitated the amendment permitting service only on the in-house counsel of the corporation who is in effect an employee of the corporation, as distinguished from an independent practitioner.”

Petitioner filed a Special Appearance with Motion to Dismiss alleging that the summons was served upon Sabulbero, who is not one of those persons upon whom service of summons may be made. Private respondent filed a Motion to Declare Defendant in Default alleging that petitioner has failed to file an Answer. Private respondent filed an Opposition to the Motion to Dismiss. RTC denied the Motion to Dismiss as well as the Motion to Declare in Default, stating that since the summons and copy of the complaint were in fact received by the corporation through its branch manager, there was substantial compliance with the rule on service of summons and consequently, it validly acquired jurisdiction over the person of the petitioner.

The purpose is to render it reasonably certain that the corporation will receive prompt and proper notice in an action against it or to insure that the summons be served on a representative so integrated with the corporation that such person will know what to do with the legal papers served on him. In other words, ‘to

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bring home to the corporation notice of the filing of the action.’ x x x.

the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (17a)

The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal requirements as to the manner in which summons should be served on a domestic corporation. x x x.” Even under the old rule, service upon a general manager of a firm’s branch office has been held as improper as summons should have been served at the firm’s principal office. The fact that defendant filed a belated motion to dismiss did not operate to confer jurisdiction upon its person. There is no question that the defendant’s voluntary appearance in the action is equivalent to service of summons. Before, the rule was that a party may challenge the jurisdiction of the court over his person by making a special appearance through a motion to dismiss and if in the same motion, the movant raised other grounds or invoked affirmative relief which necessarily involves the exercise of the jurisdiction of the court, the party is deemed to have submitted himself to the jurisdiction of the court. This doctrine has been abandoned in the case of La Naval Drug Corporation vs. Court of Appeals, et al., which became the basis of the adoption of a new provision in the former Section 23, which is now Section 20 of Rule 14 of the 1997 Rules. The emplacement of this rule clearly underscores the purpose to enforce strict enforcement of the rules on summons. Accordingly, the filing of a motion to dismiss, whether or not belatedly filed by the defendant, his authorized agent or attorney, precisely objecting to the jurisdiction of the court over the person of the defendant can by no means be deemed a submission to the jurisdiction of the court. c.

Section 16. Residents temporarily out of the Philippines. — When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. i. ii. iii. 5.

personal by publication any mode

On whom served

There are specific kinds of defendants. a.

on corporations: public or private, domestic or foreign

Section 11. Service upon domestic private juridical entity. — When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.

extraterritorial Section 12. Service upon foreign private juridical entities. — When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines.

Section 15. Extraterritorial service. — When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or

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Section 13. Service upon public corporations. — When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. b.

Don’t apply the word incompetent here to those who are incompetent under settlement of estate (ex. drunkards). That’s a different matter. Section 14. Service upon defendant whose identity or whereabouts are unknown. — In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order.

on natural persons: prisoners; minors/incompetents; unknown; entities without juridical personality

Section 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.

6.

Proofs of service

Section 17. Leave of court. — Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. Section 18. Proof of service. — The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy.

Section 9. Service upon prisoners. — When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. Section 10. Service upon minors and incompetents. — When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if none his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother.

Section 19. Proof of service by publication. — If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address.

If the defendant is a minor, it is definitely by representative party. To whom do you serve the summons? Serve the summons upon the minor OR (not AND) the parent. But if it is an incompetent, you serve it on the incompetent AND the parent or guardian or guardian ad litem. If it is a minor, service of summons upon the parent is sufficient. But if it an incompetent, it must be served on both the incompetent and the parent/guardian/guardian ad litem.

F.

Voluntary Appearance

Section 20. Voluntary appearance. — The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.

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(i) That the claim on which the action is founded is enforceable under the provisions of the statute of frauds; and

Biglang-awa vs Phil. Trust Co: Asean Pacific Planners vs City of Urdaneta: De Dios vs CA: Millenium Ind. & Com. Corp. vs Tan: Ramos vs Ramos: Teh vs CA: Santos vs PNOC Exp.: Dole Phil vs Quilala: Pascual vs Pascual:

(j) That a condition precedent for filing the claim has not been complied with. (1a) Principles involved in motions: 1. 3-day notice rule 2. 10-day setting rule Kinds of motions: 1. Litigated 2. Non-litigated or oral a. In the course of the trial, for example, a counsel would raise his hand, and say “Objection, your honor”, that is an oral motion. b. There are also certain motions that do not require hearings. When you file a motion before the CA or the SC, never set that for hearing, because hearing before the SC is not a matter of right, but a matter of discretion. i. The same with the CA, they do not want parties to set hearings. Especially now that the CA, under the new rules, can conduct trials, and accept evidence. ii. Even if the CA and SC has original jurisdiction, you do not set motion submitted before them for hearing, because it is a matter of discretion on the part of the CA and SC.

Rule 16 JUNE 17, 2014 Rule 16 Motion to dismiss Section 1. Grounds. — Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: (a) That the court has no jurisdiction over the person of the defending party; (b) That the court has no jurisdiction over the subject matter of the claim; (c) That venue is improperly laid; (d) That the plaintiff has no legal capacity to sue; (e) That there is another action pending between the same parties for the same cause;

Omnibus motion rule (Sec. 8) Insert here

(f) That the cause of action is barred by a prior judgment or by the statute of limitations;

De Guzman v Ochoa Omnibus motion in relation to motion dismiss

(g) That the pleading asserting the claim states no cause of action;

Facts of the case

(h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished;

What was the principal action? Annulment of contract of mortgage/foreclosure

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What happened? Why was there an action for foreclosure/annulment of mortgage? Failure to pay the loan. There are no other grounds for foreclosure. In fact, the judgment for foreclosure does not say judgment to sell. If the court renders a judgment to sell in a foreclosure proceeding, it is an abuse of discretion and a ground for certiorari because a judgment under Rule 68 must be a judgment to pay and never a judgment to sell. The layman’s knowledge of foreclosure, when it is said that one’s property is foreclosed, the property must be sold right away. When a property is foreclosed, it means that the judgment is to pay for the mortgage debt.

interlocutory, thus the court has still something more to do, then, the remedy is certiorari. The second motion to dismiss was also denied because of the omnibus motion rule. Is the omnibus motion rule an absolute rule? No. What are the exceptions? Only matters of jurisdiction; Rule 9, Sec. 1 What is the doctrine derived from this case? The Court disposed the issue on interlocutory orders, which do not terminate a case. The general rule is that a denial of a motion to dismiss cannot be questioned in a special civil action.

Instead of going to trial, they filed a motion to dismiss on the ground that the complaint did not state a cause of action. RTC denied the motion.

So, what is the remedy of the party whose motion to dismiss is denied? Take note, certiorari is not a remedy, as a general rule, because under Rule 65, Sec. 1, certiorari is anchored only on three grounds – lack of jurisdiction, excess of jurisdiction, grave abuse of discretion amounting to lack of jurisdiction – that is why certiorari is not a remedy against an order denying a motion to dismiss, what then is the remedy? File an answer, go to trial, and if you lose, you have all the remedies against a judgment – appeal. And in your appeal, you now assign as error, the error of the court in denying your motion to dismiss. That is why pursuant to the SC AM 07-7-12, amendments on Rule 41, 45, 58 and 65, specifically regarding 65, it provides that when you avail of certiorari when you should not have availed of it, and it was found out by the court that you are simply delaying the resolution of the case, the penalty is not only on the party, but to the lawyer as well. Triple? (check the AM, insert here)

Recite grounds for a motion to dismiss. See Rule. They then filed a second motion to dismiss on the ground that the certification against forum shopping attached to the complaint was not executed by the principal parties (plaintiffs) in violation of Sec. 5, Rule 7, 1997 Rules of Civil Procedure, rendering the complaint fatally defective and thus dismissible. They went up to the CA on certiorari. Why certiorari? What did we study regarding the jurisdiction of the SC particularly Sec. 5, Article VIII of the Constitution? Regarding appellate jurisdiction? Review, revise, modify or affirm by appeal or certiorari When is it appeal? When it is a pure question of law, in other words, an error of judgment When is it certiorari? When there is error of jurisdiction

When is there grave abuse of discretion? When there are capricious and whimsical, arbitrary and despotic actuations of the court (remember these, they go in twos)

In this case, they went up on certiorari because it is an error of jurisdiction. Because accordingly the ground relied upon in this case is a matter of jurisdiction, it is not just a matter of any lack of cause of action or other grounds, but an error of jurisdiction. A motion to dismiss may either be granted or denied. If it is denied, the order denying it is? What kind of order? Interlocutory order. What is an interlocutory order? There is no finality yet as the court has still something to do. When the court has nothing more to do, it is a final order, and thus, the remedy is appeal. But if it is

When you cannot establish whimsical, capricious, arbitrary, and despotic, certiorari is out of the question. But here, denial of a motion to dismiss therefore, even if it is interlocutory, certiorari is not the remedy, but you go to trial and whatever judgment, if unfavorable, you appeal. Or other remedies under Rule 37, new trial or reconsideration, or appeal. Remember, there are only three remedies against a final order. But when

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judgment has already been entered, forget about those remedies. You are only left with two remedies, which are petition for relief from judgment and annulment of judgment.

v. Condition precedent = Did not comply substantially with the prescribed form 3. In a MTD, you seek to dismiss the complaint; In a MTQ, you seek to quash the information.

Remedies: 1. Rule 16 (MTD); 2. Demurrer; 3. Rule 37 (new trial/recon) 4. Rule 40-45 (appeals) 5. After judgment has been entered, Rule 38 and 47 (petition for relief from judgment and annulment of judgment)

MTD grounds, discussion; cont. 1. That the court has no jurisdiction over the person of the defendant a. How does the court acquire jurisdiction over the person of the defendant? i. Valid service of summons; ii. Voluntary appearance 2. That the court has no jurisdiction over the subject matter of the case a. What is the principle? i. Jurisdiction is conferred by law except the jurisdiction of the Supreme Court, which is conferred by the Constitution. 3. That venue is improperly laid a. Under Rule 4 4. That the plaintiff has no legal capacity to sue a. Under Rule 3 on parties 5. Litis pendentia a. One suit for a single cause of action and joinder of causes of action 6. That cause of action had been barred by prior judgment or the statute of limitations a. Sec. 47, Rule 39 7. Unenforceability of claim pursuant to the statute of frauds a. Civil in nature 8. That the claim has been paid, waived, abandoned, or otherwise extinguished a. Obligations and contracts b. When is an obligation extinguished? i. Payment, loss of the thing due, merger, subrogation, novation, etc. c. See affirmative defenses. 9. Condition precedent a. Katarungang Pambaranggay Law i. General Rule: All cases must pass through the barangay conciliation proceedings; otherwise it is a ground for dismissal on the ground of prematurity.

Where do you find the equivalent of motion to dismiss in criminal procedure? Motion to quash under Sec. 3, Rule 117. Read this together with Sec. 1, Rule 16. Every ground for a motion to dismiss has its equivalent in a motion to quash. But take note that these are two different things. What are the distinction between a motion to dismiss and a motion to quash? 1. MTD applies in civil cases; MTQ applies in criminal cases 2. MTD has 10 grounds; MTQ has 9 grounds, why is it so? What is lacking in motion to quash? Venue. Because in criminal cases, venue is jurisdictional, so it is not a ground anymore for MTQ. a. But every ground in MTD has an equivalent in MTQ. Examples: i. Under res judicata or that the cause of action has been barred by prior judgment or by the statute of limitation = That the accused has been previously convicted or acquitted or the case against him has been dismissed without his consent; ii. Failure to state cause of action = That the facts charged do not constitute an offense iii. That plaintiff has no legal capacity to sue = That the officer who filed the information has no authority to do so iv. Litis pendentia = duplicity of offense filed in one information

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1. It is no longer jurisdictional. It is just a matter of prematurity. The Court will merely archive the case until condition precedent has been complied with. ii. Exceptions: 1. An action wherein one of the parties is a government instrumentality 2. When a public officer is involved and the action involved his office 3. Where one of the parties is a corporation 4. If the parties reside in different cities or municipalities except when they voluntarily submit themselves in the proper forum and the barangay in which they reside is adjacent to each other. So even if the parties reside in different cities or municipalities but they reside in a barangay who is adjacent to each other there is still a need for barangay conciliation. 5. When parties avail any one of the provisional remedies a. What are these provisional remedies? AIRRS i. Prelimi nary Attach ment ii. Prelimi nary Injuncti on

iii. Receive rship iv. Replevi n v. Support penden te lite 6. When party is arrested pursuant to Sec. 5, Rule 113 or warrantless arrest b. When the case is between or among members of the immediate family i. Immediate family = up to 2nd degree of consanguinity 1. Vertical line = no limitation 2. Horizontal line = up to brothers and sisters ii. However under Rule 3, we spoke of parties - spouses 1. In-laws are included, because they have to be impleaded as spouse/s. c. Exhaustion of administrative remedies i. Exercise of primary jurisdiction If a MTD is granted, what happens? The case is dismissed. What is the remedy? Appeal, because an order denying a motion to dismiss is a final order – court has nothing left to do. If denied, what is your remedy? File an answer. When? Within the remaining balance of days for the period of filing an answer from receipt of notice of denial, which must not be less than 5 days. When do we not apply the Neypes? Doctrine (fresh period rule)? Rules 12, 16 and 64. Example: If summons was duly served on 1st of the month, the defendant has until the 16th of the month to file an answer; however, he filed a MTD on the 5th day. How many days were consumed? 4 days. What is the balance of the period? 11 days. MTD was denied, when should the defendant file an answer? Within 11 days from receipt of the notice of the denial of the motion to dismiss (only the balance of the period but not less than 5 days). Rule 17 Dismissal of actions Sec.1 notice of dismissal by plaintiff

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Section 1. Dismissal upon notice by plaintiff. — A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (1a)

dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. (2a) A motion, not a notice, filed by the plaintiff on any ground. There is again a sanction if he filed the motion when answer has already been filed and served upon him, which includes a counterclaim. What is the effect? The counterclaim will not be dismissed. The dismissal is limited to the original complaint. Why? Because there is already prejudice on the part of the defendant, i.e. acquired services of counsel, paid acceptance fee, etc.

Who files the notice? Plaintiff. What are the grounds? No grounds. Nobody will be prejudiced except the plaintiff. There is, however, a sanction to the plaintiff, which is the two-dismissal rule. What is the twodismissal rule? A situation where the plaintiff has twice dismissed a complaint without order of the court, and in such event, the dismissal will be a judgment on the merits.

What happens now to the counterclaim? Defendant has two options: (1) Defendant may file a separate action; and (2) Make a manifestation in the trial court to continue the case as to the counterclaim. Is there any qualification as to what kind of counterclaim? No. Does that not go against the basic doctrine that a compulsory counterclaim can only co-exist with a complaint; remove the complaint; the compulsory counterclaim dies with it? What should be the proper interpretation of this rule? Irrespective of the kind of counterclaim, the counterclaim will not be dismissed. Within 15 days, if you don’t want a separate action, you manifest before the trial court.

Example: A v B. A, plaintiff, files notice of dismissal on the ground improper venue. The court dismissed the case. He again filed another claim against B. But then he found out that B is a (close friend of his friend), so he drops the case again. Will the two-dismissal rule apply? Yes. However, if one of the grounds is a jurisdictional matter, the two-dismissal rule will not apply. For instance, (Patmig’s example), one of the grounds for filing a notice of dismissal is on the ground of lack of jurisdiction over the subject matter. What is the requirement for the notice of dismissal to become effective? There must be order of confirmation from the court. It is the order issued by the court pursuant to Sec. 1, Rule 17 for the purpose of effecting the notice of dismissal. Without such order, the notice does not become effective. Do not confuse this with another order of confirmation (of sale) under Rule 68 for the purpose of cutting the equity of redemption.

Sec. 3 defendant files motion/court motu propio dismisses the case Section 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)

Sec. 2 motion by plaintiff Section 2. Dismissal upon motion of plaintiff. — Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiffs motion for dismissal, the

(8 grounds for a dismissal of a case motu propio)

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1. 2. 3. 4. 5.

Summary procedure; Lack of jurisdiction (Sec.1, Rule 9) Litis pendentia (Sec.1, Rule 9) Res judicata (Sec.1, Rule 9) Prescription (Sec.1, Rule 9)

without prejudice, unless otherwise ordered by the court or in other words, non-suited. If it is the defendant, it shall be cause to allow plaintiff to present his evidence ex parte. Note that there is no more declaration here, “as in default”. But if the counsel is not present, but the party, plaintiff or defendant, then the rule will not apply because it is the counsel who is not present. Unfortunately there is no sanction for lawyers under this rule. In criminal procedure, however, sanction is up to P20, 000 for private lawyers, and up to P5, 000 for government lawyers.

Under this rule, there are three grounds: 1. Failure of the plaintiff to appear upon the presentation of his evidence in chief; 2. Failure of the plaintiff to prosecute his action for an unreasonable length of time; 3. Failure to comply with any order of the court.

Present rule: Rule on national mediation and conciliation proceedings before the Philippine Mediation and Conciliation Office (amended Rule 18 and Rule 118); the term preliminary conference is not limited now to summary procedure only. Even in the pre-trial, as amended, there is preliminary conference. That preliminary conference is done before the branch clerk of court. Identification of evidence, marking of evidence, stipulations and admissions – they are all done before the branch clerk of court. So when the plaintiff sets pre-trial on a particular day, you go to court and 100% pre-trial will not push through because you will be referred to Philippine Mediation and Conciliation Office, which is mandatory and cannot be waived. Within 30 days, you must find ways and means to settle. And this 30-day period is extendible to another 30 days, maximum of 60 days for mediation and conciliation. What happens if there is settlement there? Mediator will simply draft compromise agreement, and when parties are amenable, they will sign it, and they give it to the court which will render judgment on compromise that is immediately executory. If there is no settlement before the mediation officer, then it is brought back to the court for preliminary conference before the branch clerk of court. And after the branch clerk of court has undertaken the preliminary conference, you go now to pre-trial proper before the judge. The judge will now have to issue a pre-trial order. The pre-trial order is mandatory. Without a pre-trial and pre-trial order is a ground for disciplinary action against the judge, and pre-trial must be conducted. In criminal procedure under Rule 121, lack of pre-trial is a ground for new trial.

Rule 18 Pre-trial Rule 18 must be read together with Rule 118 of criminal procedure. What is a pre-trial? Trial before trial, LOL. Requirements? After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. What is that last pleading? Reply. When pre-trial is set, what happens? Presentation of documents and names of witnesses; marking and identification of evidence What don’t you find under Rule 18 that you find in Rule 118? Plea-bargaining. There is no plea-bargaining in civil cases, in criminal cases, plea-bargaining is mandatory or the court should at least ask whether they will plea bargain. An application for being a state witness, is that part of plea-bargaining? No. Because it is upon the discretion of the prosecution to recommend, although the final say is with the court. That is not part of pleabargaining because plea-bargaining is asking the other party to accept your plea to a lower charge, e.g., murder to homicide, and that is done during pre-trial. Take note that when you plea bargain for the reduction or removal of one of the accused from the charge sheet, it must always be by leave of court. Under Rule 18, under mandatory requirement there is appearance of the parties and counsels. What are the sanctions if any of the party does not appear? It depends. If it is the plaintiff, the action will be dismissed

Summary: 1. Mediation and conciliation with the PMCO;

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a. 30 days, extendible for another 30 days 2. If settled a. Mediation officer drafts compromise agreement; b. Parties sign; c. Submit to court; d. Court issues judgment on compromise (immediately executory). 3. If not settled a. Case brought back to court for preliminary conference before branch clerk; b. After PC before branch clerk, pre-trial proper before the judge; c. Judge issues pre-trial order.

What was the doctrine in Yao v Perello? When can one intervene in a case, at what point in time – you can only intervene before the rendition of judgment. After rendition of judgment, there is no more right to intervene. Exception: Pinlac v CA: intervenor was the government, in the interest of substantial justice (intervention was already when case was on motion for reconsideration with the Supreme Court) Rule 20, 21, 22 = READ! Take note of how to quash a subpoena and viatory (not sure about this) right under Sec. 10, Rule 21. Modes of discovery How many modes of discovery are there? I. Depositions pending action; II. Depositions before action; III. Depositions pending appeal IV. Depositions before appeal; V. Interrogatories to parties; VI. Request for admission by adverse party; VII. Production of instruments; VIII. Production of documents IX. Inspection of instrument; X. Inspection of documents; XI. Production and inspection of documents and things; XII. Physical examination; XIII. Mental examination; XIV. Physical and mental examination The least understood of these modes of discovery is Rule 23.

Rule 19 Intervention Anonuevo v Intestate Estate of Jalandoni Who is Anonuevo here? What kind of a party was he? He was the intervenor. Under Rule 19 on intervention, what are the requirements? Must have legal interest in the matter in litigation, or interest in the success of the plaintiff, or interest in the success of the defendant. The kind of pleading you are bound to file depends on whose interest you are with – if you are with the plaintiff, you file a complaint in intervention; if you are with the defendant, you file an answer in intervention; if neither, you file a complaint in intervention. Going back to the facts, Anonuevo and siblings filed an intervention in the intestate proceedings. What was their claim? They claim that they have a share in the intestate estate because their grandmother was married to the deceased. What was their evidence? Birth certificate. The administrator of the estate contends that such was not sufficient because the evidence necessary is a marriage contract, and they were able to establish that their grandmother was married to somebody else. The issue is do the intervenors have interest in this case? The trial court said yes. But on appeal with the CA, it reversed the RTC. The SC ruled that they do not have interest, as they were not able to establish that they were grandchildren to Jalandoni, the deceased.

Rule 23 Depositions pending action People v Webb Judge Tolentino stopped the taking of depositions because there were more than 150 documents already for resolution or as basis for judgment. Instead the accused wanted to take the deposition of 5 more persons in the US. Can the Judge do that under the rules of evidence? The SC said yes. At any time at the course of the trial, the judge can stop the trial because the judge may say that there is more than enough evidence. But the more important issue is whether depositions are allowed in criminal cases. The SC ruled NO. It is not allowed. But some justices dissented, particularly PUNO and DAVIDE, saying that while depositions under Rule

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23 are not allowed in criminal cases, they have their equivalent in criminal cases, which can be found in Sec 12, 13, and 15 of Rule 119. This was illustrated in Vda. De Manguera v Risos. This case was about a private complainant, who was from the Visayas, but she was confined at Makati Med, and she could not testify, so she asked for deposition taking. Was the deposition taking allowed? Yes. But upon presentation of evidence, it was objected to on the ground that it is not allowed in criminal cases. The SC ruled no deposition in criminal cases under Rule 23, but what should have been applied are Sec. 12, 13 and 15 of Rule 119 or advanced testimony.

leave of court. What is the effect upon filing and service of answer? Issues are joined. When issues are joined, why would you ask for leave of court when the questionnaire will be limited already to the issues involved? But if with leave of court, you may ask impertinent questions. Before whom should the deposition be taken? Before a deposition officer. But distinguish whether deposition will be taken within or outside the country. If it is outside the country, deposition will be taken at the PH embassy in that country before the consul or vice consul or any other person authorized by the court through commission or letters rogatory for appointment of a judicial officer to take the deposition of somebody abroad. If within the country, anybody authorized to administer oath, including a notary public.

Sec. 1 provides that depositions may be taken with or without leave of court. When is it without leave of court? After answer has been served. When does it require leave of court? Before answer has been served or after jurisdiction has been obtained over any defendant or over property which is subject of the action. Why is it that once answer has been served, it must be made without leave of court, and before answer has been served, it must be made with leave of court? Issues are joined. When issues are joined, why would you ask for leave of court when the questionnaire will be limited already to the issues involved? But if with leave of court, you may ask impertinent questions.

Modes of taking a deposition: 1. Oral examination a. Process: i. Give notice to all parties, to deposition officer, and to prospective deponent ii. Notice to consist of time, place, and name of deposition officer iii. Once notified, they may or may not attend. Parties may waive right to attend. iv. What happens? Like a trial = direct, cross, re-direct, re-cross 1. All will be taken by stenographic notes v. The transcript sealed in an envelope and transferred to the court. 1. Whose evidence is that? No body’s evidence; merely forms part of the record of the case; anybody can use it. 2. Written interrogatories a. Process: i. Questions are prepared beforehand = direct examination questions ii. The one who prepared to send to all parties

What kind of evidence are depositions? Testimonial evidence. We know from evidence that testimonies must be taken in open court, as a rule. Deposition is the exception as it is taken outside the court. When a deposition is taken, whose evidence is that? It will be the evidence of the party who chooses to offer it. Who offers the deposition? Any party. Take note of Sec. 7 and 8. The fact that you cause the taking of the deposition does not mean that the deposition is your evidence. It is only when somebody offers it. And any party can offer it. Who can cause the taking of deposition? Any party. Whose deposition should be taken? Any party or nonparty, the deponent may be a party or non-party. The deposition is anybody’s evidence until a party offers it. We all know that evidence is not admissible until it is offered. How does one take depositions? Let’s say C wants to take the deposition of X. Will it be with leave of court or without? When answer has been served, no need for leave of court; after answer have been served, with

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iii. Parties who receive it to prepare cross examination questions and send it to the one who prepared the direct iv. Then if there is re-direct, send again v. Then re-cross, if the party wishes to. b. Why is this allowed nonetheless though tedious? i. Because what is encouraged is a combination of both methods.

What is perpetuation of testimony or deposition before action? This is allowed because by the time you file a case, the person might already be dead. This is in case a person dies before a probable case arises against him. The taking of a deposition, is it real or personal? Personal. What then is the venue? (trick question ni Sir kay Mica) The rule on venue will not apply, because the rule itself provides for the venue of the taking of the deposition before action or pending appeal = residence of the respondent

Sec. 4, uses of deposition 1. Any deposition may be used to impeach the testimony of the deponent; a. Is it not that a deposition is testimonial evidence, why is it that you may use it to impeach that testimony of the deponent? i. If the deponent happens to be a witness also in open court, and his testimony in his deposition is contrary to what his testimony in open court. 2. It may be used for any purpose 3. Instances where you may avail of deposition under the following circumstances of par. C of Sec. 4, Rule 23.

Rule 25 Interrogatories to parties Is this pending action, before action or pending appeal? This is pending action. You cannot avail of this against non-parties, solely against parties. Where is the sanction under this rule? Sec. 6. Failure to serve written interrogatories. Who is being sanctioned? The one who failed to prepare the questions/supposed to prepare the questions. As a result/sanction, the other party may not be compelled to testify on the matter of the interrogatories. How would the court know or determine whether a party should be sanctioned for failure to serve written interrogatories? During trial, when a witness/other party is asked a question that should have been asked in written interrogatories.

Deposition v judicial affidavit GR: Affidavits are hearsay. EX: affidavits taken in lieu of direct testimony, subject to cross-examination, i.e., judicial affidavit

Rule 26 Request for admission by adverse party

Mere submission of JA is not testimony yet. It must be authenticated.

Who should request for admission? Any party may request for admission. Aren’t there stipulations and admissions during pre-trial, why would one request for admission? This applies when the party did not wait for the pre-trial. Does this request for admission contradict Sec. 8, Rule 8 as regards actionable documents which provides that when you do not specifically deny the claim of one party as against an action document, you are deemed to have admitted the authenticity and due execution of the document, why would one use this? No, there is no contradiction. Because the documents sought to be admitted under Rule 26 are not actionable documents. They are only relevant and material documents, but they are not actionable. What are

Rule 24 Depositions before action or pending appeal Why is this allowed, deposition pending appeal? This is because, at that time, appellate courts are not allowed to accept new evidence. Right now, with more reason that this is of great use because appellate courts are allowed to take new evidence. Another reason is in case of remand to the trial court. Whether you take the deposition before the lower court or appellate court, the deposition may come in handy in case of remand.

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examples of these non-actionable documents, which must be sought for admission? Voluminous receipts, when such would take time to have each admitted one by one.

Note that a judgment by default can never be issued without being preceded by an order of default. Exception = Sec. 3, par. c, Rule 29, when there is a refusal to comply the modes of discovery, the court may issue a judgment by default without being preceded by an order of default.

Rule 27 Production or inspection of documents or things

Rule 30/119 Trial

Will exhumation of a cadaver fall under this rule? Yes, because cadavers are considered things. This is very common in criminal cases – ocular inspection.

Rule 119 (more important rule) Principal issues under Rule 119: 1. Time frame = Trial must be completed within a period of 180 days from the beginning or trial; 2. State witness rule; 3. Rule akin to depositions (Sec. 12, 13, 15); 4. Demurrer; 5. Reopening (Sec. 24)

Rule 28 Physical and mental examination of persons Available in actions where it is relevant Example of relevant cases where this may be applied: 1. Annulment of contract by reason of imbecility of a contracting party; 2. Common in paternity cases;

Rule 30 Principal issues under Rule 30: (1) Order of trial = not to be confused with the order of presentation of evidence; (1) plaintiff’s evidence; (2) defendant’s; (3) … so on. (2) Absences (1) When party is absent for no valid reason (1) There is usually a penalty, but not strictly imposed. (2) They are however strict on postponement (3) Valid ground for postponement = Unavailability of evidence

Sec. 4 = waiver of privilege Section 4. Waiver of privilege. — By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination. (4) Under privileged communication (Sec. 24, Rule 130) = doctor and patient; A v. B. A would like to have B examined by Dr. X; Between B and Dr. X, there is privileged communication. Is that waived under this rule? Yes. Because it is by order of the court. The results go to A as he was the one who requested. B is not entitled to his own medical results.

Rule 31 Severance and consolidation Severance and consolidation are not opposites.

Rule 29 Refusal to comply with the modes of discovery

Consolidation = consolidate cases provided there is a common question of fact or law; commonality of parties/parties-of-interest; issue of jurisdiction = bars consolidation

Effects of refusal to comply with modes of discovery: 1. Compel to answer to the mode of discovery 2. Pay damages; 3. Cite for contempt of court; 4. Arrest.

Severance = look at joinder of causes of action; Either join the causes of action or sever them.

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What is overwhelming evidence? This is the highest quantum of evidence. The lowest, on the other hand, is circumstantial evidence.

Example: Case no. 1 = A v B, RTC MLA, Br. 1 Case no. 2 = B v A, Br. 2 Case no. 3 = A v B and C, RTC CAL, Br.1 Case no. 4 = B v A and C, RTC QC, Br. 1 Can you consolidate them? Yes. However if there is a case pending before, say, the MTC of Marikina, you cannot consolidate it, as there is an issue of jurisdiction. But venue is not a bar to consolidation. What is a bar is the issue of jurisdiction.

In civil cases, demurrer to evidence is found under Rule 33. In criminal cases, it is found in Sec. 23, Rule 119. When you read the demurrer in civil, don’t forget to read the demurrer in criminal. People v. Sumingwa: The order granting appellant’s demurrer to evidence was a resolution of the case on the merits, and it amounted to an acquittal. Any further prosecution of the accused after an acquittal would violate the proscription on double jeopardy.

Rule 32 Trial by commissioner There are instances where trial by commissioners is mandatory: 1. Rule 67, expropriation a. Determination of just compensation = done by a commissioner 2. Rule 69, Partition a. Determination of accounting = done by commissioner

Bernardo v. CA: Under the new rule on demurrer to evidence the accused has the right to file a demurrer to evidence after the prosecution has rested its case. If the accused obtained prior leave of court before filing his demurrer, he can still present evidence if his demurrer is denied. However, if he demurs without prior leave of court, or after his motion for leave is denied, he waives his right to present evidence and submits the case for decision on the basis of the evidence for the prosecution. This power to grant leave to the accused to file a demurrer is addressed to the sound discretion of the trial court. The purpose is to determine whether the accused in filing his demurrer is merely stalling the proceedings.

Court is bound to appoint 3 members of the commission with integrity and probity. In all other instances, trial by commissioner is discretionary on the part of the court. If there are several accounts, or judge is not familiar with issues, which require technical expertise, one may move for trial by commissioner. For instance, cases involving the Cybercrime law.

Radiowealth v. Del Rosario: Applying Section 1 of the 1997 Rules of Court, the CA should have rendered judgment on the basis of the evidence submitted by the petitioner. Since it had sufficient evidence on record to decide the collection suit, the appellate court shall resolve the case and render judgment on the merits, inasmuch as a demurrer aims to discourage prolonged litigations. A remand for further proceedings is not necessary because the defendant, upon order of dismissal of the demurrer to evidence, loses his right to present evidence.

RULE 33: DEMURRER TO EVIDENCE What is the literal meaning “to demur”? It means to assail, to question, to impugn. In a demurrer to evidence, what are you impugning? You are assailing the or plaintiff’s (civil) or prosecution’s (criminal) evidence on the ground that upon the facts and the law, the former has shown no right of relief. The defendant (civil) or accused (criminal) claims that the evidence is insufficient. In other words, it does not reach the required quantum of evidence. In criminal cases, it is proof beyond reasonable doubt; in civil cases, it is by preponderance.

Cabador v. People: The RTC treated petitioner’s motion to dismiss as a demurrer to evidence and since he filed his motion without leave of court, said court declared him to have waived his right to present evidence in his defense. In criminal cases, a motion to dismiss may be filed on the ground of denial of the accused’s right to speedy trial. This was the main thrust of Cabador’s

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motion to dismiss. The fact is that he did not even bother to do what is so fundamental in any demurrer. In Enojas, Jr. v. COMELEC, the court held that to determine whether the pleading filed is a demurrer to evidence or a motion to dismiss, the following must be considered: (1) the allegations in it made in good faith; (2) the stage of the proceeding at which it is filed; and (3) the primary objective of the party filing it. Besides, a demurrer to evidence assumes that the prosecution has already rested its case. Here, the prosecution filed its formal offer of exhibits on the same day Cabador filed his motion to dismiss. Since Cabador filed his motion to dismiss before he could object to the prosecution’s formal offer, before the trial court could act on the offer, and before the prosecution could rest its case, it could not be said that he had intended his motion to dismiss to serve as a demurrer to evidence. In sum, tested against the criteria laid down in Enojas, the Court finds that petitioner Cabador filed a motion to dismiss on the ground of violation of his right to speedy trial, not a demurrer to evidence. He cannot be declared to have waived his right to present evidence in his defense.

XVI. They are grounded on the same which is insufficiency of evidence. XVII. As to the time frame, it can only be filed after the plaintiff/prosecution has rested its case. Praenotanda: Even if it is a motion to dismiss which is a prohibited pleading under the rules on summary procedure, the same is not true in demurrer to evidence. Even if it is a kind of a motion to dismiss is NOT a prohibited pleading in summary procedure. Hun Hyung Park v. Choi is about violation of BP 22 which is governed by the rules on summary procedure says that a demurrer to evidence is not a prohibited pleading. The doctrine in that case is that, notwithstanding an acquittal, there was an appeal separating the civil from the criminal (a questionable doctrine according to professor). Differences: (3) Even if they are grounded on the same which is insufficiency of evidence, the quantum of evidence differs. In civil cases, it is preponderance of evidence while in criminal, it is proof beyond reasonable doubt. Because of this, it is easier to avail of demurrer to evidence in criminal cases because the quantum of evidence is higher.

Note: There is a difference between completion of the presentation of evidence and resting your case. Completion does not amount to resting. There is only rest if the other party has filed its comment/opposition and the court has ruled on the admissibility/inadmissibility of evidence. Demurrer cannot be filed without offer of evidence. How do you distinguish offer from proffer of evidence? XXX

(4)

When is the prosecution/plaintiff considered to have rested its case? You are only considered to have rested your case after the court has admitted your evidence. If you’re going to trial, the rules on evidence says that the offer must be done orally unless the court allows you to offer it formally or in writing. In Cabador, the offer was in writing which is exceptional.

In demurrer, the court may grant or deny it. • Grant: If the court grants the demurrer in civil cases, that amounts to dismissal of the case. In criminal cases, if the court grants a demurrer, that amounts to acquittal. • Denial: In civil cases, if the demurrer is denied, the defendant presents evidence. In criminal cases, if the demurrer is denied, you have to make a distinction: whether the demurrer was filed with leave of court or without leave of court. If with leave of court, the accused presents evidence. If without leave of court, the accused loses his right to present evidence.

Summary of Demurrer to Evidence (5) Because it is dismissal in civil cases, that is a final order; therefore, it is appealable. Because it is acquittal in criminal cases, therefore, it is not appealable -- otherwise, the accused will be placed in double jeopardy.

Demurrer to evidence in civil cases is based on Rule 33. In criminal cases, you find it in Sec. 23, Rule 119. Similarities: A demurrer to evidence, whether it is civil or criminal: XV. It is a kind of a motion to dismiss.

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(6) If it is appealed by the plaintiff who ordinarily will appeal it and the appellate court reverses the order of dismissal, the defendant loses his right to present evidence. In criminal cases, this is not applicable precisely because there is no appeal -- the exception is Hun Hyung Park v. Choi. Civil Cases leave of court is not required before filing a demurrer

Judgment on the Pleadings

Criminal Cases a demurrer is filed with or without leave of court

Summary Judgments

3-day-notice before hearing

10-day-notice before hearin

basis of judgment: pleadings

basis of judgment: supportin affidavits, depositions, or admissions to recover upon claim, counterclaim, or cros claim, or to obtain declarato relief

When is there judgment on the pleadings? Where an the order of dismissal is not answer fails to tender an issue, or otherwise admits the if the demurrer is granted, the appealable because of the material allegations of the adverse party’s pleading. order of dismissal is appealable constitutional policy against double jeopardy Under Rule 6, when does an answer fail to tender an the accused may adduce hisissue or otherwise admits the material allegations [of theiscomplaint]? An answer fails to tender an issue when evidence only if the demurrer if the demurrer is denied, the filed with leave of court; hethe material allegations of the other party are admitted defendant may proceed to not specifically denied by the pleader. Under the cannot present his evidenceorif he present his evidence rules, filed the demurrer without leave material allegations of the complaint not specifically denied are deemed admitted. There are two of court (2) kinds of defenses under Rule 6: negative defense and RULE 34: JUDGMENT ON THE PLEADINGS affirmative defense. A negative pregnant is admitting what you seek to deny. Note: Read this as against Rule 35 (Summary Judgments). The concept of a judgment on the pleadings will not apply when no answer is filed. It will come into Section 1. Judgment on the pleadings. — Where an operation when an answer is served and filed but the answer fails to tender an issue, or otherwise admits the same fails to tender an issue or admits the material material allegations of the adverse party's pleading, the allegations of the adverse party’s pleading. court may; on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal separation, RULE 35: SUMMARY JUDGMENTS the material facts alleged in the complaint shall always be proved. When may one file a motion for summary judgment? A summary judgment, also called accelerated judgment, is Give at least three (3) distinctions between judgment proper where, upon a motion filed after the issues had on the pleadings and summary judgment. been joined and on the basis of the pleadings and papers filed, the court finds that there is no genuine Judgment on the Pleadings Summary Judgmentsissue as to any material fact except as to the amount of damages. Even if there is an issue, summary judgment may still be availed of provided that issue is not a proper where, upon a motion genuine issue. PBCom answers what a genuine issue is. proper where an answer fails to filed after the issues had been tender an issue or otherwise joined and on the basis of the admits the material allegations of pleadings and papers filed, Phil. thereBank of Communications v. Go: Under the Rules, summary judgment is appropriate when there are no the adverse party’s pleading is no genuine issue as to any genuine issues of fact which call for the presentation of material fact evidence in a full-blown trial. Even if on their face the 86

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pleadings appear to raise issues, when the affidavits, depositions and admissions show that such issues are not genuine, then summary judgment as prescribed by the Rules must ensue as a matter of law. The determinative factor, therefore, in a motion for summary judgment, is the presence or absence of a genuine issue as to any material fact. A "genuine issue" is an issue of fact which requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim. The party who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the complaint is patently unsubstantial so as not to constitute a genuine issue for trial. When the facts as pleaded by the parties are disputed or contested, proceedings for summary judgment cannot take the place of trial.

been the subject of separate suits, and judgment for or against one of them will not necessarily affect the other. A separate judgment presupposes that there are several claims for relief presented in a single action. • Several Judgment: different causes of action • Separate Judgment: different parties Section 4. Several judgments. — In an action against several defendants, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the action to proceed against the others. Section 5. Separate judgments. — When more than one claim for relief is presented in an action, the court, at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgment disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is rendered the court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered.

RULE 36: JUDGMENTS, FINAL ORDERS, AND ENTRY THEREOF Among the three (judgment, final order, and entry), what is the most important? It is the entry of judgment. The judgment spoken of is a judgment in all kinds of cases, whether it is civil or criminal. In criminal cases, you find that in Rule 120. You also find this in Rule 51. When you look at these rules, they have only one (1) specific characteristic of a judgment which is that it must be personally written and directly prepared by the judge.

What is a judgment on compromise? This is a judgment rendered by the court on the basis of a compromise agreement entered into between the parties to the action. It has the effect of res judicata upon the parties. But there will be no execution of the compromise agreement except in compliance with a judicial compromise. The nature of this compromise is that it is immediately executory.

For cultural information: In the CA, it needs to be unanimous. If it is not, there will be no valid judgment so what the presiding justice will do would be to create a special division which consists of five (5) justices and a majority will render a valid judgment. The same goes for the Sandiganbayan. In the SC, when there are five (5) justices, a majority vote will suffice.

What is a judgment nunc pro tunc? This literally means “now for then.” This is a judgment intended to enter into the record acts which had already been done, but which do not yet appear in the record. Its purpose is not to supply an omitted action by the court but to enter into the record an action previously done but which was not reflected in the record by reason of inadvertence or mistake. This is not really a judgment but rather, a correction of judgment because it is either there was some formal, clerical, or typographical error or that it

How do you distinguish several judgment from separate judgments? A several judgment is one rendered by a court against one or more defendants, but not against all, leaving the action to proceed against the others. It is proper when the liability of each party is clearly separable and distinct from that of his co-parties, such that the claims against each of them could have

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does not present the facts as it should have been presented.

favorable to his friend and thus affects the reckoning dates prescribed under the rules.

Conditional Judgment: A conditional judgment is one the effectivity of which depends upon the occurrence or the non-occurrence of an event. Such a judgment is generally void because of the absence of a disposition.

Examples: • Under Rule 39, when may you execute a judgment as a matter of right? Sec. 1 says five (5) years from entry of judgment. • Under Rule 38, when are you supposed to file a petition for relief under Sec. 3? Within six (6) months from the date of entry.

Judgment sin perjuicio: A judgment sin perjuicio is traditionally understood to be a brief judgment containing only the dispositive portion, without prejudice to the making of a more extensive discussion of the findings of fact and law to support it. This is not actually a final decision, should be avoided and should not be looked with favor.

RULE 37: NEW TRIAL OR RECONSIDERATION These are two (2) of the remedies against a final judgment. Motion for new trial and reconsideration are NOT MANDATORY. You can immediately go to appeal.

Judgment upon a confession (cognovit actionem): This is a judgment rendered by the court when a party expressly agrees to the other party’s claim or acknowledges the validity of the claim against him.

The 1997 Rules of Court specifically distinguishes the grounds from new trial and reconsideration.

What is the literal meaning of the entry of judgment? It means that the judgment is recorded in the book of entries. But what is important here it not the actual recording but the date of entry.

NEW TRIAL (5 grounds) 1. FAME (fraud, accident, mistake, excusable negligence), which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights -- constitutes 4 grounds

What is the date of entry? The date of finality of the judgment or final order shall be deemed to be the date of its entry (Sec. 2, Rule 36). This is fundamental. Not understanding this is fatal because entry is used in many other provisions of the rules. Hence, while entry is the actual recording of the judgment in the book of entries, what is important is the date of entry of judgment. You find this also in Sec. 10, Rule 51 which says that the date when the judgment or final resolution becomes executory shall be deemed as the date of its entry.

RECONSIDERATION (3 grounds)

5. the damages awarded are excessive

6. the evidence is insufficien justify the decision or fina order

7. the decision or final order contrary to law

2. newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result

Illustration: • judgment was rendered July 1 • judgment became final and executory on July 16 • clerk of court recorded the judgment July 31 : date of entry is July 16 Why is this so? Because the finality of judgment cannot be made to depend on the will of the clerk of court who is in charge of recording said judgment in the book of entries. Otherwise, if the clerk of court is a friend of a party litigant, he may be influenced to adjust the date

Note: FAME must be qualified. If you only say FAME, your answer is incomplete. You must state the qualifications (...which ordinary prudence...). But never answer in abbreviation (F.A.M.E.). Spell it out!

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If you file a motion for new trial on the ground that the evidence is insufficient, should it be dismissed? No. The court may consider it as a motion for reconsideration.

being the perpetrator of the crime. Most importantly, appellant even identified himself as Li Ka Kim at the trial and not as Huang Xiao Wei, that bolsters the conclusion that appellant deliberately concealed his true identity in the nefarious enterprise.

If you file a motion for reconsideration on the ground of fraud, should it be dismissed? No. The court may consider it as a motion for new trial.

What kind of fraud is referred to in a motion for new trial? It is extrinsic fraud as distinguished from intrinsic fraud. Fraud is deceitfulness. Extrinsic fraud is that which is outside the proceedings, outside the course of the trial, of which you do not have control. Intrinsic fraud is within the proceeding. Suppose the lawyer, in the course of the hearing, presents fraudulent documents. That is intrinsic fraud. If you do not contest it, you have waived your right to oppose it. Hence, it is admitted.

Reason: What counts is the allegation and not the title. Jurisprudence is lenient on this matter. Before the 1997 Rules of Court, new trial and reconsideration are anchored on the same grounds. But even now that the grounds are distinct, an incorrect assignment does not result in the dismissal of the case. Mendezona v. Ozamis: Judge Durias’ testimony cannot be considered newly discovered evidence since the facts to be testified to were existing before and during trial. The testimony had been in existence waiting only to be elicited from him by questioning.

• Extrinsic fraud refers to any fraudulent act of the prevailing party in the litigation which is committed outside the trial of the case, where the defeated party has been prevented from presenting fully his side of the case, by fraud or deception practiced in him by his opponent.

Note: Equate newly discovered evidence with unavailability of evidence. If the evidence is available, it is not newly discovered evidence. You did not exert enough effort to present that.

• Intrinsic fraud refers to acts of a party in a litigation during the trial, such as the use of forged instruments or perjured testimony, which did not affect the presentation of the case, but did prevent a fair and just determination of the case.

Padilla-Rumbaua v. Rumbaua: Blunders and mistakes in the conduct of the proceedings in the trial court as a result of the ignorance, inexperience or incompetence of counsel do not qualify as a ground for new trial. If such were to be admitted as valid reasons for reopening cases, there would never be an end to litigation so long as a new counsel could be employed to allege and show that the prior counsel had not been sufficiently diligent, experienced or learned. This will put a premium on the willful and intentional commission of errors by counsel, with a view to securing new trials in the event of conviction, or an adverse decision, as in the instant case.

Example: Pre-trial is set for July 5. The adverse counsel calls you up and told you not to attend the pre-trial anymore because he already filed a motion for resetting which you have not received yet because it was sent via registered mail. Then the next order that you found is that the case was dismissed because you were declared non-suited by non-appearance during the trial (you are the plainitff). Accident: The ground of accident has the same concept as fraud. Any kind of an event which is beyond your control can be used as accident.

Note: As a matter of exception, if the errors of lawyers are so gross, then the court can consider a misadministration of justice.

Mistake: This refers to mistake of fact. Exceptionally, it can be a mistake of law depending on the party. If a party is unschooled in the rudiments of law, he can be excused.

People v. Li Ka Kim: Appellant’s passport could have easily been presented and produced during the trial. Such presentation of appellant’s passport, would hardly be material to the outcome of the case. Appellant was positively identified by the prosecution witnesses as

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Excusable Negligence: If it requires extraordinary diligence, that would be excusable. Conversely, if it requires ordinary diligence, then it is not excusable. It is already gross negligence. A failure to take the proper steps at the proper time, not in consequence of a party’s own carelessness, inattention, or willful disregard of the process of the unavoidable hindrance or accident, or on reliance on the care and vigilance of his counsel or on promises made by the adverse party.

judgment or final order. (Sec. 9, Rule 37) When you appeal from the judgment, you have to assign as an error the denial of your motion for new trial. Note: Effective 27 December 2007, an order denying a motion for new trial is no longer assailable by certiorari because of the amendment to Rule 41 by A.M. No. 07-712-SC. Estinozo v. CA: Appeal and certiorari are mutually exclusive.

Analogy: If you are a young lady and you get pregnant out of wedlock, that is excusable negligence. But if you were impregnated the second time around, that is already gross. :)

Can you file a second motion for reconsideration? No, because all the grounds were available when you filed the motion: insufficiency of evidence, excessive award of damages, and decision/final order is contrary to law. Filing a second motion for reconsideration will violate the rule on omnibus motion rule (Sec. 8, Rule 15). Under the “single motion” rule, a party shall not be allowed to file a second motion for reconsideration of a judgment or a final order.

When do we use an affidavit of merits? An affidavit of merit is required in a motion for new trial founded on fraud, accident, mistake, or excusable negligence. Under the Rules, the moving party must show that he has a meritorious defense. The facts constituting the movant’s good and substantial defense, which he may prove if the petition were granted, must be shown in the affidavit which should accompany the motion for a new trial.

Can you file a second motion for new trial? Yes, but only when a ground for new trial was not existing or available when the first motion was made. Consequently, you can only file a second motion for new trial on the ground of newly discovered evidence. While a second motion for reconsideration is not allowed, a second motion for new trial is authorized by the Rules.

If it is newly discovered evidence, there is no need for affidavit of merits because the rule provides that said evidence must be attached which can either be object, testimonial, or documentary. Under Rule 8, if the allegation is a matter of fraud, you have to allege it with particularity. You avail of affidavit of merits because the nature of the fraud as it was committed will be explained therein.

Section 5. Second motion for new trial. — A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. A second motion for new trial, based on a ground not existing nor available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending.

Demonstrative Evidence: If it is object evidence, you can take a picture of it. If it is a person, you take his picture which must be not older than six (6) months under criminal procedures. When is a party exempted from an affidavit of merits notwithstanding that the ground for new trial is fraud, etc.? When in the very motion for new trial, you already stated what constituted fraud. Under Rule 6, you must only allege ultimate facts.

No party shall be allowed a second motion for reconsideration of a judgment or final order. If a motion for new trial is granted, what is the effect? When the motion for new trial is granted, you only try matters which were questioned so that all the pieces of evidence which have already been admitted, they remain to be admitted. Note: Sec. 6, Rule 37 has been amended.

The motion for new trial may be either granted or denied. If it is denied, what is your remedy? An order denying a motion for new trial (or reconsideration) is not appealable, the remedy being an appeal from the

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Under Rule 10, when you amend the amended pleading, it supersedes the original pleading. However, the admitted allegations in the original pleading, while they are no longer part of the record, they become extrajudicial admissions which require offer.

1. Petition for relief from judgment, order, or other proceedings (Sec. 1) 2. Petition for relief from denial of appeal (Sec. 2) 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.

When you speak of trial de novo, you set aside everything as if nothing happened. Take note that in the amendatory circular of the Supreme Court (A.M. 07-7-12-SC), it deleted paragraph Sec. 2(a) of Rule 41.

Section 2. Petition for relief from denial of appeal. — When a judgment or final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a petition in such court and in the same case praying that the appeal be given due course.

RULE 38: RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS The remedies against an executory judgment are as follows: 1. Rule 38 2. Rule 47

You can still avail of a petition for relief if your appeal is denied. But you are now limited only to four (4) grounds which are fraud, accident, mistake, excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights.

An executory judgment is necessarily final but a final judgment is not necessarily executory. (big circle: executory judgment/small circle: final judgment) True/False: Rule 38 is a petition so it must be separate and distinct from the original case. A: False

Note: Sections 1 and 2 have the same grounds and with the same qualifications.

Why? This is merely a continuation of the case.

Illustration: The court denied your notice of appeal because it was filed out of time. You then file a petition for relief from denial of appeal on the ground of fraud XXX

Mesina v. Meer: A petition for relief from judgment is not an available remedy in the Court of Appeals. Hence, the petition should be filed in the same case and in the same court under the same number (?). A petition for relief is an equitable remedy; it is not a matter of right. So, this remedy is not available when you did not avail of a motion for new trial or even appeal when you had the time.

As to the time frame, a petition for relief must be filed within (a) sixty (60) days from knowledge of judgment, order, or other proceedings to be set aside; and (b) six (6) months from entry of such judgment, order, or other proceeding. These two periods must concur.

This is why the word “petition” is a misnomer. The better term is “motion.”

Section 3. Time for filing petition; contents and verification. — A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken, and must be accompanied with affidavits

Why is it called “petition” for relief? Because of the 1997 Rules of Court. Under the old rules, this was just a motion for relief. What are the two (2) kinds of relief?

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showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be.

execution, whether discretionary or matter of right? No. If execution is a matter of right, execution may be by motion or by action. However, if execution is a matter of right, execution can only be by motion. Execution by action is not applicable anymore as execution by action presupposes that there is already a final judgment.

Note: As to date of entry, refer to Sec. 2, Rule 36. When does a party come to know of the judgment? Ordinarily, it is when he receives a copy of the judgment from the court. But the 60 days under this rule does not pertain to such but rather to the time a party came to know of the judgment from sources other than the receipt of the copy of the judgment.

Who is a redemptioner? Rule 39, Section 27(b) – A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold.

Otherwise stated, you come to know of the judgment upon receipt thereof and when you receive a copy of the judgment, your remedy is not petition for relief but rather, appeal, new trial, or reconsideration because that is just a final judgment. This is executory judgment and the 60-day period is counted from knowledge. It is only when you come to know of it from other sources other than receipt of the notice of the judgment, that is where the 60-day period will start to operate.

The judge has no other choice but to issue the writ of execution.

Example: The date of entry will be the first point of reference which let’s say is January 1. If you come to know of it on June 15, you only have up to June 30. If you come to know of it after June 30, you can no longer file a petition for relief from judgment because the two (2) periods must be complied with.

When it is already established that the judgment is executory, it must be issued as a matter of right.

In spite the fact that the issuance of a writ of execution is ministerial… the exercise of ministerial functions depends upon compliance with… It is only through a motion that a writ of execution may be issued. a.

Section 1. Execution upon judgments or final orders. — Execution shall issue as a matter of right, or motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party.

RULE 39: EXECUTION OF JUDGMENTS A judgment which has no entry yet cannot be executed. General rule: Only the trial court can execute judgment.

The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution.

Exception: In the case of discretionary, it can be issued by the appellate court.

b. A.

Matter of right/ministerial (Section 1)

Kinds of Execution

Execution or satisfaction of judgment may either be by motion or action. Does that apply to any kind of

Discretionary (Section 2) (or by leave of court or execution pending appeal)

Which court has jurisdiction execution? It depends.

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Once appeal is perfected, does the court lose jurisdiction over the subject matter? No. When does the court lose jurisdiction over the subject matter? Upon expiration of the period to appeal, because there can be multiple defendants and the perfection of the appeal is only as to those who appealed. Those who did not appeal, perfection will not apply to them. “Upon perfection of the appeal as to the appellants.” But as to those who did not appeal, appeal will not be perfected.

There are certain judgments which are immediately executory. Name some: support, injunction, receivership, accounting. The enumeration in the Rule is not exclusive. For example, a judgment of compromise is immediately executory. What is the rationale for the immediate execution of these? Delay will be prejudicial. Under Rule 61, even a judgment for support never becomes final. At any point in time you can go back to court and ask for amendment. How can it be immediately executory? The judgment will be illusory. This is exactly what good reason is.

This is the basis for the discretionary execution. Discretionary execution means there is in fact an appeal. If there is no more appeal, it is no longer discretionary; it is a matter of right.

What is good reason? Consists of circumstances that would justify the execution of the judgment. Otherwise, the same judgment would become illusory. See Stronghold Insurance.

What kind of jurisdiction does the trial court use? Residual jurisdiction. What are the requirements for discretionary execution? (1) motion; (2) good reason; and (3) special order stating the good reason.

Stronghold Insurance vs Felix: This is a collection suit. Execution pending appeal was not allowed because the one who is sick is not a party to the case. Thus, the illness of the husband has nothing to do with the case (it doesn’t involve conjugal property). This is unlike the case of Navarro vs Escobido-bidoooo. Second reason, the appeal was meritorious. The subject matter subject to the execution was P57 million and the claimed liability of Stronghold was only P12 million. That would be injurious, not only prejudicial. Correlate with City of Iligan case as to summary judgment.

Page 661 of Riano: (1) there must be a motion filed by the prevailing party with notice to the adverse party; (2) there must be a hearing of the motion for discretionary execution; (3) the motion must be filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or on the record on appeal; (4) there must be good reasons to justify the discretionary execution; and (5) the good reasons must be stated in a special order.

Although Stronghold describes what good reason is, it does not necessarily follow that that is always the case. Good reason must be on a case-to-case basis. City of Iligan vs Principal Management Group (PMGI): A MOA on a ‘turn-key’ arrangement was drawn by Mayor Quijano with Land Bank Realty Development Corporation (LBRDC) as General Contractor and PMGI as Developer - Financing Manager. The project to be undertaken was the construction of a Sports Complex which upon completion shall be turned over to Iligan City for acceptance and the issuance of Certificate of Acceptance and Authority to Pay to enable LBRDC-PMGI to call on the SLC.

When there is execution pending appeal and the court grants the motion for execution pending appeal, the judgment is satisfied. What happens if on appeal, the judgment was reversed? Illustration: A judgment for P1,000,000 was given. The defendant (loser, judgment obligor) appeals to the appellate court. The judgment obligee files a motion for execution pending appeal. The court grants the motion for execution pending appeal. The writ of execution is used, the sheriff uses it and satisfies the P1,000,000 of A. What happens if the judgment is reversed?

The work on the project stopped due to the refusal of some of the occupants to vacate the premises claiming that they have not been paid their disturbance

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compensation. By then, PMGI had already accomplished 78.27% of the contracted project equivalent to P10,957,800.00 of the total project cost of P14,000,000. PMGI requested from petitioner for a deductive change order to enable it to collect the above-stated amount based on the 78.27% accomplishment of the project. Petitioner claimed that PMGI’s accomplishment was only 52.89% or equivalent only to P6,958,861.59 based on the Accomplishment Report. Petitioner refused to pay since the mutually agreed price of P14,000,000 shall only be paid after the completion of the project and acceptance by it and since the project is not yet complete, no payment can be paid. The problem on the payment of the affected occupant, which was the cause of the work stoppage, was accordingly brought to the attention of the Sangguniang Panlungsod which authorized the payment of the affected occupants in the project site.

Execution pending appeal is, of course, the exception to the general rule. Normally, execution cannot be obtained until and unless (a) the judgment has become final and executory; (b) the right of appeal has been renounced or waived; (c) the period for appeal has lapsed without an appeal having been filed; or (d) having been filed, the appeal has been resolved and the records of the case have been returned to the court of origin -- in which case, execution shall issue as a matter of right. On the other hand, when the period of appeal has not yet expired, the execution of a judgment should not be allowed except if, in the court’s discretion, there are good reasons therefor. These reasons must be stated in a special order, because unless these are divulged, it will be difficult to determine on appeal whether judicial discretion has been properly exercised by the lower court. Good reasons consist of compelling circumstances that justify the immediate execution of a judgment, lest it become illusory; or the prevailing party be unable to enjoy it after the lapse of time, considering the tactics of the adverse party who may have no recourse but to delay.

PMGI filed a complaint against petitioner for rescission of the MOA and damages. After the filing of petitioner’s Answer, a Motion for Partial Summary Judgment was filed by PMGI which claimed that there was no genuine issue as to the fact of the obligation of the petitioner since it admitted the accomplishment of 52.89% or equivalent to P6,958,861.59 of PMGI and that the petitioner had not specifically denied under oath the genuineness of the Letter of Credit and MOA. An Opposition to the Motion for Partial Summary Judgment was filed by petitioner. The trial court granted the Motion for Partial Summary Judgment and ruled in favor of PMGI. Petitioner’s MR was denied. Petitioner filed a Notice of Appeal. PMGI filed a Motion for Execution Pending Appeal which alleged that when the appeal is clearly dilatory, order for execution upon good reasons may be issued with the discretion of the court. The same was granted over the opposition of the petitioner. CA affirmed.

The good reason relied upon by both the trial and the CA was that the partial adjudication of the case was based on petitioner’s own admission; hence, any appeal based on that point would be unmeritorious and merely dilatory. Indeed, both courts ruled that an appeal by petitioner would only serve as “a good and sufficient reason upon which to issue execution.” The ascertainment of good reasons for execution pending appeal lies within the sound discretion of the trial court, and the appellate court will not normally disturb such finding. Intervention by the latter may be proper, if it is shown that there has been an abuse of discretion. Like the CA, we find no abuse of discretion in the trial court’s grant of execution pending appeal. Indeed, a good and sufficient reason upon which to authorize immediate execution is when an appeal is clearly dilatory.

SC: The Order granting execution pending appeal was proper. Executions pending appeal are governed by Section 2 of Rule 39 of the Rules of Court. There are 3 requisites for the execution of a judgment pending appeal: a) a motion must be filed by the prevailing party with notice to the adverse party; b) there must be good reasons for execution pending appeal; and c) the good reasons must be stated in a special order.

Santos vs COMELEC: The execution pending appeal was granted in this case. What was the good reason here? This is a political issue. If there is no city official, the

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constituents in the community will not be properly represented.

case would be to deprive the electorate of services of their mayor.

The petitioner and respondent were mayoral candidates in Balingoan, Misamis Oriental for the May 14, 2001 elections. Respondent was declared mayor by the board of canvassers. Petitioner filed an election protest, and the results were recounted. Petitioner was declared the mayor by virtue of judgment.

The petition for certiorari assailed RTC’s orders for the execution of its decision pending appeal. The grant of execution pending appeal was well within the discretionary powers of the RTC. In order to obtain the annulment of said orders in a petition for certiorari, it must first be proved that the trial court gravely abused its discretion. He should show not merely a reversible error committed by the RTC, but a grave abuse of discretion amounting to lack or excess of jurisdiction. We find that no grave abuse of discretion was committed by the RTC. In its order granting execution pending appeal, it held:

Petitioner filed a Motion for Execution pending appeal. Before the RTC could act on the motion, respondent filed a petition for certiorari with the COMELEC, as well as appealed the RTC’s decision to the COMELEC. COMELEC issued a Writ of Preliminary Injunction enjoining the RTC from acting upon the Motion for execution by the petitioner, pending the case. The COMELEC found the RTC did not err and upheld its ruling. Thus it lifted the writ of preliminary injunction, dismissed the petition by the respondent, and directed the RTC to dispatch its judgment.

It is of judicial notice that for the public official elected last May 14, 2001 elections only a short period is left. Relative to this Court’s jurisdiction over the instant case, the settled rule that the mere filing of the notice of appeal does not divest the trial court of its jurisdiction over the case and to resolve pending incidents,i.e., motion for execution pending appeal (Asmala vs. COMELEC, 289 SCRA 745) need not be overemphasized.

RTC granted the Motion for Execution pending appeal, and subsequently issued a Writ of Execution upon petitioner’s posting of a bond.

However, the COMELEC set aside the order, saying that shortness of term alone is not a good reason for execution of a judgment pending appeal. We disagree.

Petitioner took his oath of office. Respondent filed MR and supplemental petition praying the RTC order be nullified, and the grant of the writ of execution be set aside.

While it was indeed held that shortness of the remaining term of office and posting a bond are not good reasons, we clearly stated in Fermo v. COMELEC that: A valid exercise of the discretion to allow execution pending appeal requires that it should be based “upon good reasons to be stated in a special order.” The following constitute “good reasons” and a combination of two or more of them will suffice to grant execution pending appeal: (1.) public interest involved or will of the electorate; (2.) the shortness of the remaining portion of the term of the contested office; and (3.) the length of time that the election contest has been pending.

The COMELEC granted the respondent’s petition and again enjoined petitioner from exercising duties as mayor. COMELEC issued a resolution enjoining petitioner from assuming official functions of mayor until final resolution of the election case pending appeal. SC: The RTC should have granted the Writ of Execution upon the Motion for Execution pending appeal. It is within the RTC’s discretion to grant the motion for execution pending appeal. Shortness of period of term of office, coupled with public interest and length of time the election contest has been pending are the valid reasons for execution of judgment pending appeal. Here, the case has been pending for almost 1 year, and the term of office was only for 3 years. To prolong the

The decision of the RTC was rendered on April 2, 2002, or after almost 1 year of trial and revision of the questioned ballots. It found petitioner as the candidate with the plurality of votes. Respondent appealed the said decision to the COMELEC. In the meantime, the three-year term of the Office of the Mayor continued to

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run. The will of the electorate, as determined by the RTC in the election protest, had to be respected and given meaning. The Municipality needed the services of a mayor even while the election protest was pending, and it had to be the candidate judicially determined to have been chosen by the people.

The petitioner was ordered to post a bond of P1,500,000 to answer for all the damages that respondent may suffer arising from the issuance of said writ of execution pending appeal and to further answer for all the advances that petitioner may have received from the Special Administrator in this case pending final termination of this present case.

Bañes vs Bañes: The wife’s motion for execution pending appeal was not proper. This is a case of legal separation between husband and wife. Judgment was rendered in favor of the wife finding the husband guilty. All the properties belonging to the conjugal property were awarded to the wife including the 2 cars and the conjugal home. The wife asked for execution pending appeal. There was no good reason. The husband will be turned into a pauper. Also, the husband filed an appeal. Although he might not get a total reversal, perhaps the distribution might be unfair.

In a petition for certiorari, respondent elevated the case to the CA. CA set aside the RTC decision. The writ of execution and the Order granting the motion filed by the sheriff to make symbolic delivery of the house and motor vehicle to the administrator of the are SET ASIDE. CA denied Aida’s motion for reconsideration. Hence, the petition in G.R. No. 132592, filed by herein petitioner. Petitioner manifested that she no longer questions the CA’s decision on the vehicle because respondent repossessed it. As to the residential house, she claimed that being conjugal in nature, justice requires that she and her children be allowed to occupy and enjoy the house considering that during the entire proceedings before RTC, she did not have the chance to occupy it. Further, she posted a bond. For these reasons, she asked for execution pending appeal.

RTC decided in a Civil Case, decreeing among others the legal separation between petitioner Aida Bañez and respondent Gabriel Bañez on the ground of the latter’s sexual infidelity; xxx the surrender by respondent of the use and possession of a motor vehicle and the smaller residential house to petitioner and the common children within 15 days from receipt of the decision.

Respondent denied petitioner’s allegation that she did not have the chance to occupy the residential house. He averred that she could have, had she chosen to. According to him, as the inventory of the couple’s properties showed, petitioner owned 2 houses and lots and 2 motor vehicles in the U.S., where she is a permanent resident. Respondent contended that there was no compelling reason for petitioner to have the judgment executed pending appeal.

Petitioner filed an urgent ex-parte motion to modify said decision, while respondent filed a Notice of Appeal. RTC granted petitioner’s urgent ex-parte motion to modify the decision. In another motion to modify the decision, petitioner sought moral and exemplary damages, as well as litigation expenses. She filed a motion for execution pending appeal. Respondent filed a consolidated written opposition to the 2 motions, and also prayed for the reconsideration of the previous order.

SC: The execution of judgment pending appeal was not justified. As held in Echaus vs. Court of Appeals, execution pending appeal is allowed when superior circumstances demanding urgency outweigh the damages that may result from the issuance of the writ. Otherwise, instead of being an instrument of solicitude and justice, the writ may well become a tool of oppression and inequity.

RTC denied Aida’s motion for moral and exemplary damages and litigation expenses but gave due course to the execution pending appeal. A writ of execution was issued to enforce the decision for (1) respondent to vacate the premises of the small residential house and for (2) respondent to surrender the use and possession of said motor vehicle to petitioner.

There is no superior or urgent circumstance that outweighs the damage which respondent would suffer if he were ordered to vacate the house. Petitioner did not refute respondent’s allegations that she did not intend

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to use said house, and that she has 2 other houses in the U.S. where she is a permanent resident, while he had none at all. Merely putting up a bond is not sufficient reason to justify her plea for execution pending appeal. To do so would make execution routinary, the rule rather than the exception.

Section 4. Judgments not stayed by appeal. — Judgments in actions for injunction, receivership, accounting and support, and such other judgments as are now or may hereafter be declared to be immediately executory, shall be enforceable after their rendition and shall not, be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support.

Section 2. Discretionary execution. — (a) Execution of a judgment or final order pending appeal. — On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal.

The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party. B.

Section 6. Execution by motion or by independent action. — 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.

After the trial court has lost jurisdiction the motion for execution pending appeal may be filed in the appellate court. Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing. (b) Execution of several, separate or partial judgments. — A several, separate or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal. i.

When do you execute a judgment by motion? Within 5 years from the date of entry of the final judgment. That’s how important entry is. What is the date of entry of judgment? Date of finality of judgment. Contrary to the literal meaning of entry of judgment, which is the recording of the dispositive portion of the judgment in the book of entries, but the date of entry is not the date of recording but rather..?! Why? Otherwise, the prescriptive period will depend on the Clerk of Court. To avoid that possible abuse!

stay of discretionary execution (Section 3)

Section 3. Stay of discretionary execution. — Discretionary execution issued under the preceding section may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom it is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. The bond thus given may be proceeded against on motion with notice to the surety. ii.

Modes of Execution

Within 5 years, it is a matter of right. Thereafter, it is by independent action called revival of judgment. Aside from section 6, there is another revival of judgment in the Rules of Court: section 34. Distinguish them!

judgments not stayed by appeal (Section 4)

The judgments are immediately executory receivership, accounting, compromise, injunction.

Section 34. Recovery of price if sale not effective; revival of judgment. — If the purchaser of real property sold on execution, or his successor in interest, fails to recover the possession thereof, or is evicted therefrom, in consequence of irregularities in the proceedings

in

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concerning the sale, or because the judgment has been reversed or set aside, or because the property sold was exempt from execution, or because a third person has vindicated his claim to the property, he may on motion in the same action or in a separate action recover from the judgment obligee the price paid, with interest, or so much thereof as has not been delivered to the judgment obligor, or he may, on motion, have the original judgment revived in his name for the whole price with interest, or so much thereof as has been delivered to the judgment obligor. The judgment so revived shall have the same force and effect as an original judgment would have as of the date of the revival and no more.

execute that judgment because of prescription of judgment. Suppose on March 10, 1996, you revived the judgment, you have now a revived judgment. This judgment is totally separate and distinct from the original judgment, because it can happen that you have partially executed the original judgment of P1,000,000. There is no such thing as alias writ of execution. This judgment must again be entered. It will not be on March. Say it was entered on April 15, 1996 (date of entry of revived judgment), within that period, count 5 years or up to April 14, 2001 to execute that judgment by action again. And on and on without limit until you fully satisfy the judgment.

Who revives under Section 34? The purchaser. If you buy a property in an auction and you paid but you were not able to get the property for one reason or another, let’s say there was a third party claim and the third party claimant won, you are prejudiced. What should you do? Go after the judgment obligee because he got the money that was supposed to go to you. That is the revival of judgment under Section 34.

1. By motion (Section 6) 2. By independent action (Section 6) C.

Manner of Execution

1.

when party is dead (Section 7)

Section 7. Execution in case of death of party. — In case of the death of a party, execution may issue or be enforced in the following manner:

During the period of redemption, who has the property subject of redemption? The obligor. Suppose this properties are being utilized and they have civil fruits like rentals, to whom should the rentals go? To the obligor because the purchaser is not yet the owner. Once the title is consolidated, his rights over the property retroacts to the time of the levy. What is the rationale behind that retroactivity?

(a) In case of the death of the judgment obligee, upon the application of his executor or administrator, or successor in interest; on (b) In case of the death of the judgment obligor, against his executor or administrator or successor in interest, if the judgment be for the recovery of real or personal property, or the enforcement of a lien thereon;

The levy is on January. It was only after the end of January of the following year that the title was consolidated. The rights of the purchaser rights to January of the previous year. Why? Because if there are claimants or claims against that property, within that one year period, the purchaser has priority rights. First in time, first in right.

(c) In case of the death of the judgment obligor, after execution is actually levied upon any of his property, the same may be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the corresponding executor or administrator for any surplus in his hands.

Judgment for P1,000,000. January 5, 1990 is the date of entry of judgment. Until when can you execute the judgment by motion? January 4, 1995. From January 5, 1995 until January 4, 2000, you can only execute the judgment by independent action called revival of judgment. Beyond January 4, 2000, how do you execute the original judgment for P1,000,000? You can no longer

2.

when judgment is for money (Section 9)

Section 9. Execution of judgments for money, how enforced. — (a) Immediate payment on demand. — The officer shall

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enforce an execution of a judgment for money by demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or any other form of payment acceptable to the latter, the amount of the judgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ.

The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon. When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property, may be levied upon in like manner and with like effect as under a writ of attachment.

If the judgment obligee or his authorized representative is not present to receive payment, the judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his possession within the same day to the clerk of court of the court that issued the writ, or if the same is not practicable, deposit said amounts to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality.

(c) Garnishment of debts and credits. — The officer may levy on debts due the judgment obligor and other credits, including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or control of third parties. Levy shall be made by serving notice upon the person owing such debts or having in his possession or control such credits to which the judgment obligor is entitled. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees.

The clerk of said court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ whose clerk of court shall then deliver said payment to the judgment obligee in satisfaction of the judgment. The excess, if any, shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case shall the executing sheriff demand that any payment by check be made payable to him.

The garnishee shall make a written report to the court within five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor. The garnished amount in cash, or certified bank check issued in the name of the judgment obligee, shall be delivered directly to the judgment obligee within ten (10) working days from service of notice on said garnishee requiring such delivery, except the lawful fees which shall be paid directly to the court.

(b) Satisfaction by levy. — If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed, of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment.

In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment, the judgment obligor, if available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due, otherwise, the choice shall be made by the judgment obligee. The executing sheriff shall observe the same procedure

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under paragraph (a) with respect to delivery of payment to the judgment obligee.

Section 10. Execution of judgments for specific act. —

The first way to satisfy a judgment for money is by payment.

(a) Conveyance, delivery of deeds, or other specific acts; vesting title. — If a judgment directs a party to execute a conveyance of land or personal property, or to deliver deeds or other documents, or to perform, any other specific act in connection therewith, and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done shall have like effect as if done by the party. If real or personal property is situated within the Philippines, the court in lieu of directing a conveyance thereof may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law.

The sheriff has the writ of execution and goes to the judgment obligor. Here is a writ of execution for P1 million. Obligor gets P1,000,000 from his room and pays the sheriff. Is that valid? No. In a judgment for money, payment is first. It must be given to the judgment obligee. PAL vs PALEA: payment was made to the sheriff and this was not considered satisfaction of judgment. It must be paid to the judgment oblige. With more reason if it is in check. If it is paid to the order of cash, you will not see the sheriff anymore.

(b) Sale of real or personal property. — If the judgment be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment.

What about if the judgment obligor executes a promissory note? No, the Rule does not allow promissory note but it (or any other form of payment) may be allowed if the judgment obligee accepts.

(c) Delivery or restitution of real property. — The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee, otherwise, the officer shall oust all such persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money.

Levy on execution. Distinguish this from levy on attachment (Rule 57) and levy on foreclosure (Rule 68). Who supervises the levy? The judgment obligor. Only in the absence of the judgment obligor will the sheriff take over. In actual practice, the obligor is an absentee obligor. Even real properties may be subject to levy. How? Go to the Register of Deeds and have the title annotated (lien). If the judgment to be executed is a Manila Court judgment and you levy on properties in Baguio, do you go to Baguio? Yes, you can levy on any property in the Philippines. They are now in custodia legis (in the custody of the law). It is kept for future auction.

(d) Removal of improvements on property subject of execution. — When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment obligee after the hearing and after the former has failed to remove the same within a reasonable time fixed by the court.

Garnishment of debts and credits. Garnishment is the fastest way. The garnishee bank will immediately inform the court the amount of deposits. The garnishee will deliver to the court and the court will give that to the judgment obligor. 3.

when judgment is for specific act (Section 10)

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(e) Delivery of personal property. — In judgment for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided. 4.

Section 13. Property exempt from execution. — Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: (a) The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; (b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood; (c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation; (d) His necessary clothing and articles for ordinary personal use, excluding jewelry; (e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos; (f) Provisions for individual or family use sufficient for four months; (g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value; (h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood; (i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family; (j) Lettered gravestones; (k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; (l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; (m) Properties specially exempted by law.

when it is a special judgment (Section 11)

There are several kinds of execution: judgment for money, judgment for delivery and special judgment. What is a special judgment? One which only the judgment obligor can accomplish. For other judgments, if the obligor cannot comply, the court can assign someone else to comply at the expense of the judgment obligor. Delivery of property is not a special judgment. If the obligor does not want to deliver the property, he can ask someone to deliver it at his expense. Example: A famous painter tasked to paint. The court can punish him and send him to jail. Is that a harsh and unconstitutional penalty? No, he had the keys to the jail in his pockets. Comply, get out of jail; don’t comply, remain in jail. Section 11. Execution of special judgments. — When a judgment requires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment. D.

Properties exempt from execution (Section 13)

13 items under section 13  Spouses A and B borrow money in millions from a bank. This is secured by the home of the spouses. They are not able to pay. Is the family home exempt from execution? No. Since the security is the conjugal home, then it is no longer exempt from execution pursuant to the last paragraph of Section 13.

But no article or species of property mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon.

Salaries and wages: wages are absolutely exempt from execution. Salaries are not necessarily exempt (if salary is too big, it is not exempt). You don’t deprive an individual of living or survival.

D’Armoured Security and Investigation Agency vs Orpia: The sheriff tried to levy on guns and

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ammunitions of the security agency. The security agency objected because these tools and implements that the security guards use are exempt from execution because these are used in their livelihood. SC: Tools and implements referred to are the tools and implements of a working man, not of corporate entities. You don’t deprive a working man of his living. Corporations don’t have tools and implements.

SC: The garnished amount is not exempt from execution. Held: No. The Rule clearly enumerates what properties are exempt from execution. It is apparent that the exemption pertains only to natural persons and not to juridical entities. CA correctly ruled that petitioner, being a corporate entity, does not fall within the exemption, thus:

Respondents, who were employed as security guards by petitioner, and assigned to Fortune Tobacco, Inc., filed with the Labor Arbiter a complaint for illegal dismissal and various monetary claims against petitioner and Fortune Tobacco. LA rendered a Decision stating that all the respondents except Antonio Cabangon Chua are entitled to P1,077,124.29 for underpayment, overtime pay, legal holiday pay, service incentive leave pay, 13th month pay, illegal deduction and refund of firearms bond.

Section 13 of Rule 39 of the Rules of Court is plain and clear on what properties are exempt from execution. Section 13 (i) of the Rules pertinently reads: ‘SECTION 13. Property exempt from execution. – Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: xxx

From the said Decision, Fortune Tobacco interposed an appeal to the NLRC. Petitioner did not appeal. NLRC dismissed the complaint against Fortune Tobacco. This Decision became final and executory. Thus, the award specified in the Decision of the Arbiter became the sole liability of petitioner.

xxx

xxx

(i) So much of the salaries, wages or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family.’ The exemption under this procedural rule should be read in conjunction with the Civil Code, the substantive law which proscribes the execution of employee’s wages, thus: ‘ART. 1708. The laborer’s wage shall not be subject to execution or attachment, except for debts incurred for food, shelter, clothing and medical attendance.’

Upon respondents’ motion, the Arbiter issued a writ of execution. The sheriff served a writ of garnishment upon the Chief Accountant of Foremost Farms, Inc., a corporation with whom petitioner has an existing services agreement. Thus, petitioner’s receivables with Foremost were garnished. Petitioner filed with the NLRC a “Motion to Quash/Recall Writ of Execution and Garnishment” which was opposed by respondents. The Arbiter issued an Order denying the motion and directing the sheriff to release the garnished sum of money to respondents pro rata. Petitioner’s MR was denied, hence, it interposed an appeal to the NLRC. The NLRC dismissed the appeal for petitioner’s failure to post a bond within the reglementary period. Its MR was denied. Petitioner filed with the CA a petition for certiorari and prohibition with prayer for issuance of a writ of preliminary injunction. CA dismissed the petition. Hence, this petition for review on certiorari.

Obviously, the exemption under Rule 39 of the Rules of Court and Article 1708 of the New Civil Code is meant to favor only laboring men or women whose works are manual. Persons belonging to this class usually look to the reward of a day’s labor for immediate or present support, and such persons are more in need of the exemption than any other [Gaa vs. Court of Appeals]. In this context, exemptions under this rule are confined only to natural persons and not to juridical entities such as petitioner. Thus, the rule speaks of salaries, wages and earning from the ‘personal services’ rendered by the judgment obligor. The rule further requires that such earnings be intended for the support of the judgment debtor’s family.

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Necessarily, petitioner which is a corporate entity, does not fall under the exemption. If at all, the exemption refers to petitioner’s individual employees and not to petitioner as a corporation.

The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or plainly spurious claim.

x x x. Parenthetically, in a parallel case where a security agency claimed that the guns it gives to its guards are tools and implements exempt from execution, the SC ruled that the exemption pertains only to natural and not to juridical persons, thus:

When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose.

‘However, it would appear that the exemption contemplated by the provision involved is personal, available only to a natural person, such as a dentist’s dental chair and electric fan (Belen v. de Leon). As pointed out by the Solicitor General, if properties used in business are exempt from execution, there can hardly be an instance when a judgment claim can be enforced against the business entity’ *Pentagon Security and Investigation Agency vs. Jimenez].

Rule 57, Section 14. Proceedings where property claimed by third person. — If the property attached is claimed by any person other than the party against whom attachment had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds of such right or title, and serves such affidavit upon the sheriff while the latter has possession of the attached property, and a copy thereof upon the attaching party, the sheriff shall not be bound to keep the property under attachment, unless the attaching party or his agent, on demand of the sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied upon. In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond.

It stands to reason that only natural persons whose salaries, wages and earnings are indispensable for his own and that of his family’s support are exempted under Section 13 (i) of Rule 39 of the Rules of Court. E.

Third Party Claim (Section 16)

Rule 39, Section 16. Proceedings where property claimed by third person. — If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy and copy thereof, stating the grounds of such right or tittle, and a serves the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnity the third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond.

The sheriff shall not be liable for damages for the taking or keeping of such property to any such third-party claimant, if such bond shall be filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the attaching party from claiming damages

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against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action.

damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose.

When the writ of attachment is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose.

Section 16 of Rule 39 (execution), Section 14 of Rule 57 (attachment) and Section 7 of Rule 60 (replevin) – same formulation How do you distinguish a third party claim from a third party complaint (under Rule 6; kinds of pleadings)? Illustrate a third party claim: The property of a judgment obligor has already been levied and has been taken in actual custody by the sheriff. X who is a 3rd party files an affidavit of 3rd party claim gives it to the sheriff. Sheriff gives it to the judgment obligee who will subsequently file a bond.

Rule 60, Section 7. Proceedings where property claimed by third person. — If the property taken is claimed by any person other than the party against whom the writ of replevin had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefor, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant, the sheriff shall not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property under replevin as provided in section 2 hereof. In case of disagreement as to such value, the court shall determine the same. No claim for damages for the taking or keeping, of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond.

A vs B. Judgment was rendered in favor of A. A could not pay, so sheriff levied on the property of B. The properties of B were taken in legal custody by the sheriff. X, not a party to the case, executes an affidavit, which is his third party claim. X will give the affidavit to the sheriff. The sheriff will give the affidavit of third party claim to A. It is not the third party claimant that posts the bond. Upon receipt of the third party claim, the judgment obligee, he will post the bond. This holds true in Rule 57 (attaching creditor) as well as in Rule 60 (applicant). The judgment obligee posts a bond equivalent to the value of the property. What is that bond for? What happens if the judgment obligee does not post a bond? The sheriff will deliver the property to the third party claimant.

The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such third-party claimant if such bond shall be filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the applicant from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action.

It has the same provision in attachment and replevin. More so in replevin where the sale of personal property is quickly processed. If the judgment obligee posts a bond equivalent to the value of the property, subject of the third party claim, the sheriff keeps the property for auction sale.

When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages as a result of the replevin, he shall be represented by the Solicitor General, and if held liable therefor, the actual

What is the remedy of the judgment obligee against a frivolous third party claim? File a claim for damages in the same action or in a separate action.

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When should the sheriff auction the property? Between the hours of 9 in the morning up to 2 in the afternoon. Where should it be? Where the properties are located. As to personal properties, the properties where they may be found.

once a week for two (2) consecutive weeks in one newspaper selected by raffle, whether in English, Filipino, or any major regional language published, edited and circulated or, in the absence thereof, having general circulation in the province or city;

During auction, who may purchase the property? Anybody; that’s open to the public. May the judgment obligee be the purchaser? Yes, that is usually the case. How much does he have to pay? If he bids less than the judgment debt, he does not have to pay. If he bids more than the judgment debt, he has to pay.

(d) In all cases, written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale, except as provided in paragraph (a) hereof where notice shall be given the same manner as personal service of pleadings and other papers as provided by section 6 of Rule 13.

Exception: the purchaser will have to pay even if he bids within the judgment debt when there is a third party claim. Why? A case may crop up between the third party claimant (saying the property to be auctioned is his) and judgment obligee. If that happens and the third party claimant wins, the judgment obligor will have to pay twice. That’s not fair!

The notice shall specify the place, date and exact time of the sale which should not be earlier than nine o'clock in the morning and not later than two o'clock in the afternoon. The place of the sale may be agreed upon by the parties. In the absence of such agreement, the sale of the property or personal property not capable of manual delivery shall be held in the office of the clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the writ of or which was designated by the appellate court. In the case of personal property capable of manual delivery, the sale shall be held in the place where the property is located.

F.

Execution Sale (Sections 17-26)

When the auction begins, there must first be a notice under Section 15. The 2 other requirements are posting and publication.

Notice is an absolute requirement. Section 15. Notice of sale of property on execution. — Before the sale of property on execution, notice thereof must be given as follows:

Posting is discretionary as to the period. Publication is necessary only in cases of real property where the fair market value is at least P50,000. It must be published once a week for 2 consecutive weeks in a newspaper of general circulation.

(a) In case of perishable property, by posting written notice of the time and place of the sale in three (3) public places, preferably in conspicuous areas of the municipal or city hall, post office and public market in the municipality or city where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property;

What is a newspaper of general circulation? According to Pinlac vs CA, (1) there must be fixed paying subscribers; (2) issuing at least 500 copies; and (3) must be published regularly.

(b) In case of other personal property, by posting a similar notice in the three (3) public places abovementioned for not less than five (5) days;

Under Rule 103 and 108, as to change of name and correction of entries, the requirement is newspaper of national circulation.

(c) In case of real property, by posting for twenty (20) days in the three (3) public places abovementioned a similar notice particularly describing the property and stating where the property is to be sold, and if the assessed value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of the notice

Section 17. Penalty for selling without notice, or removing or defacing notice. — An officer selling without the notice prescribed by section 15 of this Rule shall be liable to pay punitive damages in the amount of five thousand (P5,000.00) pesos to any person injured

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thereby, in addition to his actual damages, both to be recovered by motion in the same action; and a person willfully removing or defacing the notice posted, if done before the sale, or before the satisfaction of the judgment if it be satisfied before the sale, shall be liable to pay five thousand (P5,000.00) pesos to any person injured by reason thereof, in addition to his actual damages, to be recovered by motion in the same action.

the person entitled to the proceeds of the execution, unless the execution has been fully satisfied, in which event such proceeds shall be for the benefit of the judgment obligor. The officer may thereafter reject any subsequent bid of such purchaser who refuses to pay. Section 21. Judgment obligee as purchaser. — When the purchaser is the judgment obligee, and no third-party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall pay only the excess.

Section 18. No sale if judgment and costs paid. — At any time before the sale of property on execution, the judgment obligor may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein.

Section 22. Adjournment of sale. — By written consent of the judgment obligor and obligee, or their duly authorized representatives, the officer may adjourn the sale to any date and time agreed upon by them. Without such agreement, he may adjourn the sale from day to day if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice or the day to which it was adjourned.

Section 19. How property sold on execution; who may direct manner and order of sale. — All sales of property under execution must be made at public auction, to the highest bidder, to start at the exact time fixed in the notice. After sufficient property has been sold to satisfy the execution, no more shall be sold and any excess property or proceeds of the sale shall be promptly delivered to the judgment obligor or his authorized representative, unless otherwise directed by the judgment or order of the court. When the sale is of real property, consisting of several known lots, they must be sold separately; or, when a portion of such real property is claimed by a third person, he may require it to be sold separately. When the sale is of personal property capable of manual delivery, it must be sold within view of those attending the same and in such parcels as are likely to bring the highest price. The judgment obligor, if present at the sale, may direct the order in which property, real or personal shall be sold, when such property consists of several known lots or parcels which can be sold to advantage separately. Neither the officer conducting the execution sale, nor his deputies, can become a purchaser, nor be interested directly or indirectly in any purchase at such sale.

Section 23. Conveyance to purchaser of personal property capable of manual delivery. — When the purchaser of any personal property, capable of manual delivery, pays the purchase price, the officer making the sale must deliver the property to the purchaser and, if desired, execute and deliver to him a certificate of sale. The sale conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment. Section 24. Conveyance to purchaser of personal property not capable of manual delivery. — When the purchaser of any personal property, not capable of manual delivery, pays the purchase price, the officer making the sale must execute and deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment.

Section 20. Refusal of purchaser to pay. — If a purchaser refuses to pay the amount bid by him for property struck off to him at a sale under execution, the officer may again sell the property to the highest bidder and shall not be responsible for any loss occasioned thereby; but the court may order the refusing purchaser to pay into the court the amount of such loss, with costs, and may punish him for contempt if he disobeys the order. The amount of such payment shall be for the benefit of

Section 25. Conveyance of real property; certificate thereof given to purchaser and filed with registry of deeds. — Upon a sale of real property, the officer must give to the purchaser a certificate of sale containing: (a) A particular description of the real property sold; (b) The price paid for each distinct lot or parcel;

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(c) The whole price paid by him; (d) A statement that the right of redemption expires one (1) year from the date of the registration of the certificate of sale.

The period of redemption is 1 year from the registration of the certificate of sale (example: March 2005-March 2006). Within that period, who may redeem? Judgment obligor or creditor who has a lien on the property.

Such certificate must be registered in the registry of deeds of the place where the property is situated.

What is the nature of the lien? Execution. Section 26. Certificate of sale where property claimed by third person. — When a property sold by virtue of a writ of execution has been claimed by a third person, the certificate of sale to be issued by the sheriff pursuant to sections 23, 24 and 25 of this Rule shall make express mention of the existence of such third-party claim. G.

There are 2 kinds of persons who may redeem: (1) judgment obligor; (2) redemptioner (examples: attaching creditor, mortgagee; must be after the lien under which the property was sold). Look at the time frame: the property was levied on January. It was sold in March. From the levy up to the execution sale, there is a gap of 2 months. What lien are we selling the property here? Under the levy of execution. The levy took place on January. The sale took place on March. Within January and March, who may be a possible lien holder? B’s creditors.

Redemption

Here, the properties are already sold to the public. When does the purchaser of the property become the owner of such property auctioned? As of the time of the levy. If it was levied in October and the sale is on December, he became the owner of the property as of October. Redemption only applies to real property, not to personal property.

Illustration: 1 hectare of land is levied upon. It was sold. Who will negotiate or deal with that land within a 2month period? Under paragraph b, attaching creditor, mortgagee, etc. Who owns this land? The judgment obligor. When it is levied upon, is there anyone who would deal with said land? (would anyone attach on the land?) Rule 57. The other creditors of B! If the obligation is P1,000,000, the value of the land is P10,000,000, a lot of people would still deal with the property. These people are redemptioners because they are selling the property pursuant to a lien on levy on execution which happened in January.

That does not hold true in case of real properties. If real properties are the subject of an auction, the purchaser only becomes the owner of the property after consolidation of title, which is a separate action under Rule 63 (declaratory relief and other similar remedies). That is why when it comes to real property, there is redemption. A filed a case against B for a sum of money. Judgment was rendered in favor of A. B could not pay the amount so A was able to levy on the 3 race horses of B. The same was duly registered. Until when may B redeem the race horses? B cannot redeem. Redemption applies only in real properties and horses are personal property.

If this is January 2014, attachment was 2000! Within that period from the time it was attached until it was sold, 14 years went by. Section 1 of Rule 57, when can you attach a property? At the commencement of the action or at any time. When you attach the property and you try to satisfy the judgment you don’t go to Rule 39. It is not sale on execution but sale on attachment. If you were able to attach the property worth P10,000,000 and the debt was only P1,000,000, many other subsequent lien holders will be dealing with the property. These are called redemptioners. If your lien is PRIOR to the lien under which the property was sold, you are not a redemptioner.

When did A become the owner of the property? As of the time of the levy (Sections 23, 24, 33). The rights of ownership retroact to the time of levy. Can you redeem soil on flowerpots? No, those are still personal property. The nature of redemption is that this property is immovable. You cannot relocate them. Soil in a flowerpot can be relocated.

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If the judgment obligor redeems it, can a redemptioner redeem it again? Why does the rule provide that once the obligor redeems, no further redemption is allowed? Because the property has returned to the original owner.

The one-year period can be extended but only as far as the redemption is concerned. The last redemption will only be the maximum limit. But if the last re-redemption is only up to March 9. If it was redeemed by a redemptioner and it would go beyond the maximum of 1 year, it may still be redeemed beyond that. But if the Rule provides that a redemptioner can redeem it, with more reason that the obligor could redeem it because it belongs to him.

If a redemptioner redeems, it can still be redeemed by a judgment obligor or other redemptioner. When? Within 60 days from the previous redemption. You can only redeem from a redemptioner. If it is the judgment obligor that first redeems the property, no further redemption is allowed. But if it is a redemptioner who redeems the property, within a period of 60 days, it can still be redeemed either by the judgment obligor or another redemptioner. If it exceeds the 60 day period,

1.

the right of redemption vs equity of redemption

2.

who may redeem (Section 27)

On April 5, it is redeemed by a redemptioner. Until when? Until June 4. This is a 60-day period. Can it still be redeemed? Only by the judgment obligor beyond the June 4.

3.

Section 27. Who may redeem real property so sold. — Real property sold as provided in the last preceding section, or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the Mar 10, 1995  (1 year from registration of COS)  Mar following 9, 1996 persons: (a) The judgment obligor; or his successor in interest in Apr 5  Jun 4  Feb 14 the whole or any part of the property; (b) A creditor having a lien by virtue of an attachment, Within the 1 year period (March 10, 1995- March 9, judgment or mortgage on the property sold, or on some 1996), if it is redeemed by the judgment obligor, that’s part thereof, subsequent to the lien under which the the end of it and there can no longer be any property was sold. Such redeeming creditor is termed a redemption. redemptioner. effect of redemption (Section 29)

Section 29. Effect of redemption by judgment obligor, and a certificate to be delivered and recorded thereupon; to whom payments on redemption made. — If the judgment obligor redeems he must make the same payments as are required to effect a redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored to his estate. The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the registry of deeds of the place in which the property is situated and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale.

In any occasion, the judgment obligor always has a period of one year. On February 14, a redemptioner redeems. Can it be redeemed again? Until when may a redemptioner redeem? April 14, even though it is beyond the one year period. When it comes to redemptions, the Rules are relaxed. The more redemptions, the better. It is economically sound. The more obligations are paid for with just one property, the better. Everybody wins. How much is the additional amount? 2% if redemptioner; 1% per month if judgment obligor. Even if the redemption by a redemptioner is within a period of 1 month from the last redemption, he pays 2% plus. But if it is the judgment obligor that redeems, he pays only 1% for every month.

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H.

Other remedies to fully satisfy judgment

corporation, or other juridical entity, or any officer, or member thereof, to appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, and be examined concerning the same. The service of the order shall bind all credits due the judgment obligor and all money and property of the judgment obligor in the possession or in the control of such person corporation, or juridical entity from the time of service; and the court may also require notice of such proceedings to be given to any party to the action in such manner as it may deem proper.

(Referring to section 6 example) In this revived judgment, which you can revive again and again so judgment will not expire for execution purposes, suppose you were not able to satisfy it fully, what other legal recourse do you have to fully satisfy it? Judgment for money under section 9: payment, levy, garnishment. If you have exhausted all of these but the judgment is still not satisfied, what are your other remedies? Examination of the judgment obligor under section 36, examination of obligor of judgment obligor under section 37, appointment of a receiver under section 41 and sale of ascertainable interest under section 42. 1.

3.

Section 41. Appointment of receiver. — The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution.

Examination of judgment obligor (Section 36)

Section 36. Examination of judgment obligor when judgment unsatisfied. — When the return of a writ of execution issued against property of a judgment obligor, or any one of several obligors in the same judgment, shows that the judgment remains unsatisfied, in whole or in part, the judgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said judgment, requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it at a specified time and place; and proceedings may thereupon be had for the application of the property and income of the judgment obligor towards the satisfaction of the judgment. But no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. 2.

Appointment of a receiver (Section 41)

4.

Sale of ascertainable interest (Section 42)

Section 42. Sale of ascertainable interest of judgment obligor in real estate. — If it appears that the judgment obligor has an interest in real estate in the place in which proceedings are had, as mortgagor or mortgagee or otherwise, and his interest therein can be ascertained without controversy the receiver may be ordered to sell and convey such real estate or the interest of the obligor therein; and such sale shall be conducted in all respects in the same manner as is provided for the sale of real state upon execution, and the proceedings thereon shall be approved by the court before the execution of the deed. Suppose the obligor comes from a very rich family. Can the receiver sell the interest of the obligor in the estate of his father?

Examination of obligor of judgment obligor (Section 37)

I. Section 37. Examination of obligor of judgment obligor. — When the return of a writ of execution against the property of a judgment obligor shows that the judgment remain unsatisfied, in whole or in part, and upon proof to the satisfaction of the court which issued the writ, that a person, corporation, or other juridical entity has property of such judgment obligor or is indebted to him, the court may, by an order, require such person,

Judgment: principal vs surety (Section 46)

Section 46. When principal bound by judgment against surety. — When a judgment is rendered against a party who stands as surety for another, the latter is also bound from the time that he has notice of the action or proceeding, and an opportunity at the surety's request to join in the defense.

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When you execute a judgment against a surety, should you implead the principal?

Among the grounds in a motion to dismiss in Rule 16 is res judicata. The explanation of res judicata is in Section 47.

General rule: You cannot run after the surety without the principal.

(a) and (b) of Section 47 is res judicata proper or estoppel (barred by prior judgment).

Exception: In matters of implementing a judgment against a principal and a surety, you don’t have to bring in the principal. The surety is already an indispensable party. But you may bring in the principal if you want to because the principal is a necessary party. J.

(c) is conclusiveness of judgment. As to the issue, it can no longer be retried in the next case. The issue of ownership has already been resolved in unlawful detainer. Can that be again resolved in another case (reivindicatoria)? Yes. This is the exception. Under Rule 70, the only issue in unlawful detainer is possession. In an action for unlawful detainer, if the issue of ownership is raised in the pleading, the court is not divested of its jurisdiction but must resolve the issue of ownership only to resolve the issue of possession.

Effect of judgment (Section 47)

Section 47. Effect of judgments or final orders. — The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration or the condition, status or relationship of the person, however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate;

In all other instances, conclusiveness of judgment will apply. Like in settlement of estate, if you are probating the will, probating of the will only refers to the authenticity and due execution of the will, nothing else. If the parties submit to the probate court the issue of ownership of properties belonging to the estate, and the court resolves that, you cannot bring that up anymore because conclusiveness of judgment will apply. K.

Effect of foreign judgment (Section 48)

Republic vs Orbesillo: A and B divorced in another country. In the Philippines, A is still married to B but B, who is not in the Philippines, is not married to A anymore. He filed declaratory relief under Rule 63, wanting to know what his rights are in the Philippines. SC: Fine, you can remarry since it would be unreasonable if you remain married to someone who is not married to you.

(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto, conclusive between the parties and their successors in interest, by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and

How do you enforce foreign judgment here? There must be a petition for enforcement of a foreign judgment. You cannot implement a foreign judgment here in the country. You file another case, the subject matter of which is the judgment.

(c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.

In Manotoc, that is an enforcement of a foreign judgment. Imee Manotoc was adjudged abroad and she wanted to implement that here. Judgment obligee said it cannot be implemented. Manotoc filed an

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enforcement of that foreign judgment. The summons was served to Maki dela Cruz, who was not related to Imee. The doctrine here is substituted service. You cannot enforce that here.

said subdivision. NHA directed PROSECOR to provide the Provident Village an open space which is Block 40. Considering that PROSECOR did not appeal from the NHA Resolution, it became final and executory.

The rule distinguishes: If it is judgment against a specific thing, it is conclusive; if it is against a person, it is a presumptive evidence of a right (example: divorce).

When Panotes filed a motion for execution of the NHA Resolution, it was found that the records of the case were “mysteriously missing.” Hence, his motion was “provisionally dismissed” without prejudice.

Section 48. Effect of foreign judgments or final orders. — The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows:

Meanwhile, PROSECOR sold to City Townhouse Development Corporation (CTDC), respondent, several lots in the subdivision. Among the lots sold were those comprising Block 40. CTDC was unaware of the NHA Resolution ordering PROSECOR to have Block 40 utilized as open space of Provident Village.

(a) In case of a judgment or final order upon a specific thing, the judgment or final order, is conclusive upon the title to the thing, and

The new president (Araceli Bumatay) of the Provident Homeowners Association, Inc. filed with the HLURB a complaint for the revival of the NHA Resolution. Impleaded thereon as defendant was CTDC, which was alleged as successor-in-interest of PROSECOR. HLURB rendered its Decision in favor of Bumatay, reviving NHA Resolution and declaring Block 40 of the Provident Village as “open space” for the said subdivision. On appeal to the HLURB Board of Commissioners, the Decision was affirmed with modification in the sense that CTDC has the right to recover from PROSECOR “what it has lost.” After its MR was denied, CTDC interposed an appeal to the Office of the President which affirmed in toto the judgment of the HLURB Board of Commissioners. CTDC then filed with the CA a petition for review under Rule 43. CA rendered its Decision reversing the Decision of the OP and dismissing the complaint for revival of judgment.

(b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. Panotes vs CTDC: The property was sold to him as a buyer, not as a developer. He was not a successor-ininterest because he was a buyer in good faith. He did not even know there was an encumbrance in the property. Writ of execution cannot be implemented against a non-party to an action. How about a successor-in-interest? Under the doctrine of res judicata, identity of parties is not absolute. It is identity of interest and not identity of persons.

SC: NHA Resolution may not be enforced against CTDC. An action for revival of judgment is no more than a procedural means of securing the execution of a previous judgment which has become dormant after the passage of 5 years without it being executed upon motion of the prevailing party. It is not intended to reopen any issue affecting the merits of the judgment debtor’s case nor the propriety or correctness of the first judgment.

The case stemmed from a complaint filed with the National Housing Authority (NHA) by Rogelio Panotes, then president of the Provident Village Homeowners Association, Inc., against Provident Securities Corporation (PROSECOR), owner-developer of the Provident Village in Marikina City. The complaint alleges that PROSECOR violated PD 957 (REGULATING THE SALE OF SUBDIVISION LOTS AND CONDOMINIUMS, PROVIDING PENALTIES FOR VIOLATIONS THEREOF), one of which was its failure to provide an open space in the

The original judgment or the NHA Resolution sought to be revived was between Rogelio Panotes and PROSECOR, not between petitioner Araceli Bumatay and

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respondent CTDC. In maintaining that CTDC is bound by the NHA Resolution, petitioner claims that CTDC is the successor-in-interest of PROSECOR and, therefore, assumed the obligations of the latter to provide an open space for Provident Village. CTDC purchased from PROSECOR Block 40 in the said village, not as an ownerdeveloper like PROSECOR, but as an ordinary buyer of lots. Even after the sale, CTDC did not become an owner-developer. The Deed of Sale executed by CTDC, as buyer, and PROSECOR, as seller, shows that the subject matter of the sale is the unsold lots comprising Block 40 within the subdivision to CTDC. The contract does not include the transfer of rights of PROSECOR as owner-developer of the said subdivision. Clearly, there is no basis to conclude that CTDC is the successor-ininterest of PROSECOR. When CTDC bought Block 40, there was no annotation on PROSECOR’s title showing that the property is encumbered. In fact, the NHA Resolution was not annotated thereon. CTDC is thus a buyer in good faith and for value, and as such, may not be deprived of the ownership of Block 40.

of 2 weeks to remove her personal properties. After 2 weeks he went to Sheriff Quitalig so that the Writ of Execution may be implemented but he was told that a restraining order was issued, but when he asked for it, Quitalig told him that he left it in the office. Fajardo discovered that no restraining order has really been issued. He told Quitalig to implement the Writ of Execution. Sheriff, accompanied by a policeman and the barangay captain went to the place where the Writ of Execution is to be implemented but when they reached the place, Quitalig did not do anything except to ask the defendant to bring out her personal properties. His reason is that an employee of the Probation Office, Leonardo Martinez, talked to him. The restraining order was brought to the place, and Quitalig told him that the writ of execution can no longer be implemented. Quitalig denied the charge. He asked for the dismissal of the case, because he had already implemented the Writ as evidenced by his Report of Service. OCA found Quitalig to have been negligent in the performance of his duty as a sheriff.

The real party-in-interest in the revival of NHA Case is PROSECOR and not CTDC. PROSECOR was the lone defendant or respondent in that case against whom judgment was rendered. To insist that CTDC is a successor-in-interest of PROSECOR may have some truth if we are talking about the ownership of the lots sold by PROSECOR in favor of CTDC as a result of a civil action between the two. But then, to hold CTDC as the successor-in-interest of PROSECOR as the developer of the subdivision, is far from realty. CTDC is simply on the same footing as any lot buyer-member of PVHIA.

SC: Quitalig was negligent in the performance of his duty as sheriff. Quitalig enforced the Writ of Execution dated March 7, 2000 only on August 24, 2000, as shown by his August 25, 2000 Report of Service. Within 30 days from receipt thereof and every 30 days thereafter until the judgment is fully satisfied, a sheriff is required by the Rules of Court to render a report on the action taken on a writ of execution. Evidently, Quitalig was not only remiss in his implementation of the Writ, but likewise derelict in his submission of the returns thereof.

Furthermore, strangers to a case, like CTDC, are not bound by the judgment rendered by a court. It will not divest the rights of a party who has not and never been a party to a litigation. Execution of a judgment can be issued only against a party to the action and not against one who did not have his day in court.

Quitalig should have immediately implemented and made a return of the Writ after duly serving it upon the defendant on March 9, 2000. Nonetheless, because of the request of the defendant and her promise that she would vacate the premises on March 23, 2000, he allowed her to remain there. However, when he came back on March 24, 2000, he was unable to enforce the Writ because of a TRO issued by the RTC. He averred that he was finally able to execute the Writ on August 24, 2000 and to submit his Return thereof on the next day.

Fajardo vs Quitalig: Sheriff Rodolfo Quitalig of the MTCC was charged by Reverend Fernando Fajardo with conduct prejudicial to the best interest of the service and/or dereliction of duty. Petitioner filed a motion for execution of a judgment in an ejectment case. The court issued a writ of execution. Sheriff served writ on defendant, who asked for a period

By his own words, Quitalig admitted his dereliction of duty. First, as we have said earlier, he should have

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immediately executed the Writ when he served it upon the defendant on March 9, 2000. Second, he should have immediately reported to the MTCC that he was unable to enforce the Writ because another court had issued a TRO enjoining him from doing so. Third, he should have informed the parties, particularly the plaintiff or his counsel, about his inability to enforce the Writ. Fourth, he should have immediately enforced it 20 days after its issuance. Fifth, he should have made periodic Reports to the MTCC until the judgment was fully satisfied and the parties furnished a copy thereof. Sixth, within 30 days from his receipt of the Writ, he should have promptly made his Return, a copy of which he should have immediately furnished the parties.

Respondents filed a Petition for Mandamus and Damages with Prayer for Preliminary Mandatory Injunction (RTC). Injunction was granted and ordered Villaruel to recall respondents to their mother unit. Villaruel never complied with this order so he was declared guilty of indirect contempt.

The actuations of Quitalig constitute disrespect, if not outright defiance, of the MTCC’s authority. In the absence of instructions to the contrary, a sheriff has the duty to execute a Writ with reasonable celerity and promptness in accordance with its mandate.

Villaruel appealed this decision to CA. (So he has two cases before CA: certiorari and appeal). Apparently, respondents filed MTD in the certiorari case and it was granted because the issue there is already moot and academic. OSG failed to file a memorandum. The appeal was dismissed. Assistant Solicitor Luciano filed MR but it was denied and the resolution was declared final and executory.

Villaruel, through the OSG, filed a special civil action for certiorari (CA) assailing the order of contempt. Meanwhile trial in the RTC continued and Villaruel was declared in default. Respondents’ evidence were already presented ex parte. Judgment was rendered in favor of the respondents.

RCBC vs Magwin Marketing Corp Villaruel vs Fernando: Panfilo Villaruel is the former Assistant Secretary for Air Transportation Office (ATO) of DOTC. Fernando, Abarca and Cleofas are the Chief, Chief Admin Assistant and Admin Assistant of Civil Aviation Training Center (an adjunct agency of ATO tasked to train air traffic controllers, airway communicators and related civil aviation personnel).

Respondents filed a Motion for Execution with the RTC and a copy was served to OSG but the latter did not file any opposition. RTC issued a writ of execution and the sheriff issued a notice of sheriff’s sale (Villaruel’s real estate property). Villaruel through a new counsel filed a Motion to Quash Writ of Execution and Suspend Sheriff’s sale alleging that the RTC’s decision never became final and executory because it deprived him of due process. OSG failed to file his memorandum and failed to inform him of the orders of dismissal and granting of execution. He further alleged that the resolution of the Ombudsman (Abarca was found guilty, Fernando and Cleofas were also dismissed) superseded the RTC decision. RTC quashed the writ because the Sheriff failed to follow Section 9, Rule 39 and issued an Alias Writ. The MR filed by Villaruel was denied. Villaruel went to CA again and filed certiorari (based on the motion for execution). CA dismissed this and the MR so now Villaruel filed this case.

Villaruel issued a memorandum detailing respondents to the Office of DOTC Undersecretary Primitivo Cal. The latter wrote to DOTC Secretary Garcia requesting to reconsider the detail order but to comply with the order, they reported Cal’s office. Without acting on this request, Villaruel issued another memorandum placing Abarca under preventive suspension for 90 days without pay pending investigation for alleged grave misconduct. After 90 days, respondents requested Sec. Garcia to lift these orders and they also sought the intervention of the Ombudsman. Ombudsman inquired but Garcia only replied that he already issued a memorandum recalling respondents to their mother unit. In the end, the respondents were never reinstated to their old positions.

Issue: WON the Ombudsman resolution finding Abarca guilty superseded the trial court’s decision and rendered it unjust and inequitable.

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unlawful acts. Clearly illegal were petitioner’s acts of unjustifiably detailing respondents to the office of DOTC Undersecretary Cal and refusing to comply with the 9 November 1995 directive of Secretary Garcia to recall immediately respondents to their mother unit.

SC: No. A judgment that has acquired finality becomes immutable and unalterable and may no longer be modified in any respect except only to correct clerical errors or mistakes. This rule admits of certain exceptions. One of these exceptions is whenever circumstances transpire after the finality of the decision rendering its execution unjust and inequitable. This, however, is not the case here. The Ombudsman issued his Resolution prior to the finality of the RTC’s decision. The Ombudsman issued his Resolution on 22 January 1997 while the RTC’s decision became final and executory on 14 June 1997. Therefore, the resolution of the Ombudsman is not a supervening event to warrant the stay of the execution of the decision of the trial court.

Morta vs Bagagnan: Sps. Morta charged Judge Bagagnan of the MTC with gross ignorance of the law, incompetence, bias and delay. They also indicted Sheriff Matias of RTC with gross ignorance of the law, negligence and connivance with the defendants in 2 civil cases in the MTC. Judge Magagnan, in his Answer/Comment, explained that he had denied the spouses' motion for the issuance of a writ of possession because by the time the 2 civil cases were finally decided by the SC, they had already been ousted from the lots pursuant to a DARAB decision (directing them to cease and desist from disturbing the peaceful possession of Jaime Occidental), and a decision ordering the spouses to vacate the lots (a writ of execution/demolition was issued). Regarding the alleged delay in the resolution of the Motion for Contempt, Judge Bagagnan contended that an ocular inspection and a hearing had been conducted to determine if their motion had any basis. The hearing had to be deferred pending receipt of the sheriff's report.

Furthermore, the resolution of the Ombudsman finding Abarca guilty of violating Section 7(d) of RA 6713 did not and could not supersede the decision of the RTC holding petitioner liable for damages. The action filed by the petitioner before the Ombudsman is completely different from the action instituted by respondents before the RTC. The 2 actions, which are clearly separate and distinct from each other, presented 2 different causes of action. Petitioner’s cause of action arose from respondents’ alleged violation of certain provisions of RA 6713 whereas respondents’ cause of action resulted from petitioner’s refusal to recall respondents to their mother unit at CATC. In the administrative case before the Ombudsman, the issue was whether respondents were guilty of violating RA 6713. In contrast, the issue in the civil action before the RTC was whether respondents were entitled to the issuance of the writ of mandamus and damages.

Sheriff Matias admitted that there was delay in the full implementation of the Writ of Execution of the 2 civil cases, and explained that the delay was due to his heavy workload and was unintentional. Office of the Court Administrator (OCA): the explanation of the judge was sufficient, the records showed that the spouses had been evicted from the lots they were claiming when the 2 civil cases were finally decided by the SC; the delay in the contempt proceedings was due primarily to the need of the court to clarify some important matters, and not due to the negligence or partiality of the judge. OCA recommended that the charges against him be dismissed. OCA, however, found that Sheriff Matias failed to implement the Writ of Execution promptly and efficiently, and recommended that he be ordered to pay a fine.

The findings of the Ombudsman did not render the execution of the trial court’s decision unjust and inequitable. The resolution of the Ombudsman finding Abarca guilty of violating Section 7(d) of RA 6713 did not state that petitioner had a valid reason to detail respondents to the Office of Undersecretary Cal. In fact, the Ombudsman dismissed the charges against Reynaldo Fernando and Mary Lou Cleofas. Thus, the trial court correctly awarded damages to respondents. Contrary to petitioner’s contention, awarding damages to respondents does not amount to rewarding respondents for their alleged wrongdoing. The award merely compensates respondents for petitioner’s own

SC: The writ of execution was not implemented promptly and efficiently. Sheriff Matias is guilty of

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simple neglect of duty. The final stage in the litigation process, the execution of judgment, must be carried out promptly. Those tasked to implement court orders and processes should exert every effort and indeed consider if their bounden duty to do so, in order to ensure the speedy and efficient administration of justice. A decision that is left unexecuted or delayed indefinitely because of the sheriff’s inefficiency or negligence remains an empty victory on the part of the prevailing party. For this reason, any inordinate delay in the execution of judgment is truly deplorable and cannot be countenanced by the Court.

favor of GSIS as security for a loan of P50,000. However, the couple was able to pay only P18,000. Sps Serrano, as vendors, and Sps Emilio and Evelyn Geli, as vendees, executed a deed of absolute sale with partial assumption of mortgage over the parcel of land. The Sps Geli paid P38,000 as partial payment, with the balance of P32,000 to be paid by them to the GSIS for the account of Sps Serrano. The Sps Geli thereafter took possession of the property. Evelyn Geli died and was survived by husband Emilio Geli and their children. However, Emilio and his children failed to settle the f P32,000 to GSIS. GSIS filed a complaint against Geli and his children with RTC for the recission of the deed of absolute sale with partial assumption of mortgage. RTC ordered the rescission of the deed.

According to Section 14, Rule 39 of the ROC, a writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within 30 days after his receipt of the writ, the officer shall report to the court and state the reason. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every 30 days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties. According to Administrative Circular No. 12, October 1, 1985, he must submit to the judge concerned a report on actions taken on all writs and processes assigned to them within 10 days from receipt.

Geli appealed to the CA. During pendency of the appeal, GSIS foreclosed the real estate mortgage over the property for non-payment of the P50,000 loan. GSIS was the highest bidder at the public auction. A certificate of sale over the property was issued by the sheriff Geli paid the redemption price to GSIS, wherein GSIS executed a certificate of redemption and turned over to Geli the TCT in the names of Sps Serrano. Geli did not inform the Sps Serrano and the CA that he had paid the redemption price to GSIS. CA dismissed the appeal of Geli on the ground that the appellants failed to pay the requisite docket fees. No motion for reconsideration was filed. The dismissal of the appeal became final and executory.

A Writ of Execution was issued November 22, 1999. The Return of Service of that Writ was filed on May 25, 2000, about 6 months after. There is nothing in the records that shows he submitted a periodic report on the actions he had taken every 30 days. The writ was partially executed on December 15-28, 1999 and January 11, 2000, but it was only on May 25 that this matter was reported to the trial court. The excuse of heavy workload cannot absolve the Sheriff from administrative sanctions. He should at all times show how a high degree of professionalism in the performance of his duties. He failed to observe that degree of dedication required of him as a sheriff.

Sps Serrano filed with the RTC a motion for execution of the RTC’s earlier decision. The defendants Geli filed a motion to quash the claim because he had already redeemed the property, arguing that this constituted a supervening event that would make the execution of the trial court’s decision unjust and inequitable. RTC denied the motion. It noted that the payment of Geli of the redemption price took place before the CA dismissed the appeal, and before the decision of the RTC became final, hence, it did not constitute a supervening event warranting a quashal of the writ of the execution.

Serrano vs CA: Sps Serrano were the owners of a parcel of land at QC. The couple mortgaged the properties in

Emilio Geli died intestate and was survived by his children. The heirs filed with the CA a petition for

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certiorari and/ or prohibition praying for the nullification of the RTC orders. Under the terms of the deed of absolute sale with assumption of mortgage which was still subsisting at that time, they were ipso facto subrogated to the rights of the Spouses Serrano as mortgagors of the property; hence, they became the owners of the property and were entitled to the possession thereof. CA ruled that since Geli paid the redemption price while his appeal was pending with the CA, the redemption was a supervening event which rendered the enforcement of the writ of execution issued by the RTC against them unjust and inequitable.

become final and executory, the only remedy left for material attention thereof is that provided for in Rule 38 of the Rules of Court, as amended. There is no other prerequisite mode of thwarting the execution of the judgment on equitable grounds predicated on facts occurring before the finality of judgment. In the second situation, the execution may be stayed, notwithstanding the affirmance of the appealed judgment by this Court. It is required, however, that the supervening facts and circumstances must either have a direct effect upon the matter already litigated and settled or create a substantial change in the rights or relations of the parties therein which would render execution of a final judgment unjust, impossible or inequitable or when it becomes imperative in the interest of justice. The interested party may file a motion to quash a writ of execution issued by the trial court, or ask the court to modify or alter the judgment to harmonize the same with justice and further supervening facts. Evidence may be adduced by the parties on such supervening facts or circumstances.

Petitioner argues: that the payment of the redemption price by Emilio Geli during the pendency of the appeal in the CA was ineffective because, subsequently, when the respondents’ appeal was dismissed by the CA, the summary decision of the RTC declaring the deed of absolute sale with partial assumption of mortgage rescinded had become final and executory. The deed of absolute sale with partial assumption of mortgage executed by the petitioners and the Spouses Geli had ceased to exist with its rescission as decreed by the RTC. According to the petitioners, the payment of the redemption price was conditioned upon the perfection and outcome of the appeal. Since the appeal of the respondents was dismissed by their failure to pay the requisite docket fees, they must suffer the consequences thereof.

The payment by Emilio Geli to the GSIS for the account of the petitioners was made while the appeal of the private respondents from the summary judgment of the RTC was pending. The summary judgment of the RTC had not yet become final and executory. It behooved the said respondents to prosecute their appeal and file their brief, where they should have invoked the payment of the redemption price as a ground for the reversal of the trial court’s summary judgment in their favor. The respondents failed to do so, and even concealed the payment of the loan for the account of the petitioners. Worse, the respondents did not pay the requisite docket fees for their appeal, which resulted in its dismissal. The respondents even opted not to file any motion for the reconsideration of the resolution of the CA dismissing their appeal. In sum, the respondents allowed the decision of the trial court to become final and executory. Consequently, the enforcement of the summary judgment of the trial court can no longer be frustrated by the respondents’ payment, through Emilio Geli, to the GSIS in 1987.

Issue: WoN the redemption constituted a supervening event which changed the relation of the parties, thus rendering execution inequitable under the premises. SC: No. Generally, the execution upon a final judgment is a matter of right on the part of the prevailing party. It is the ministerial and mandatory duty of the trial court to enforce its own judgment once it becomes final and executory. It may happen, however, that new facts and circumstances may develop or occur after a judgment had been rendered and while an appeal therefrom is pending; or new matters had developed after the appeal has been dismissed and the appealed judgment had become final and executory, which the parties were not aware of and could not have been aware of prior to or during the trial or during the appeal, as they were not yet in existence at that time. In the first situation, any attempt to frustrate or put off the enforcement of an executory decision must fail. Once a judgment has

Irrefragably, the Spouses Geli, as vendees-mortgagors under the deed of absolute sale with partial assumption of mortgage, would have been subrogated to the rights and obligations of the petitioners under the said deed, including the right to redeem the property from the

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GSIS. However, the CA dismissed their appeal for failure to pay the requisite docket fees, and such dismissal became final and executory. Hence, the summary judgment of the trial court declaring the deed of absolute sale with partial assumption of mortgage rescinded had also become final and executory.

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Perez vs CA: The spouses Digos secured a loan of P5.8 million from the International Exchange Bank to finance their project for the construction of townhouses on their property. However, the project was delayed because the homeowners in Pillarville Subdivision which abutted the property refused to allow them to build an access road. Thus, the equipment to be used for the project could not pass through.

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The spouses Digos failed to pay the amortization on their loan. The Bank caused the extrajudicial foreclosure of their real estate mortgage. The property was sold at public auction with the bank as the highest bidder at P4.5 million, which appeared to be the account of the spouses at that time. The certificate of sale was executed by the sheriff and was registered with the Register of Deeds.

They were denied due process because the foreclosure of the real estate mortgage was extrajudicial. The sale at public auction was without prior notice to them. The property was sold for only P4.5 million, the balance of their account with the bank but about 400% lower than the prevailing price of the property. The bank rejected their plea for a 5 month extension to redeem, and their offer of P1 million in partial payment of their loan account to reduce the same to P3.5 million but the bank granted them an extension of only 1 month to redeem the property, designed to divest them of the same and enrich some characters at their expense.

The spouses caused the annotation of a notice of lis pendens at the dorsal portion of the TCT. The trial court did not issue a TRO or writ of preliminary injunction. The bank moved for dismissal and for the cancellation of the notice of lis pendens. The trial court granted the bank’s motion to dismiss. The trial court held that it had no authority to extend the period for redemption and since it had already expired, the spouses had no more right to redeem the property; as such, the defendant [bank] had the right to consolidate its title to the property.

In the meantime, the spouses referred the matter to barangay conciliation but the barangay captain failed to resolve the matter due to the vehement objections of some of the subdivision homeowners. The spouses wrote the bank and asked for 6 months within which to redeem the property. The bank denied their request. They again wrote to the bank and pleaded for an extension of 3 months to redeem the property. The bank granted them 1 month. However, the bank consolidated its title over the property and the Register of Deeds issued a TCT in the bank’s name.

The spouses did not appeal. Instead, they filed a petition for certiorari with the CA. CA dismissed the petition for being filed out time. They filed an MR but they later withdrew via a motion. CA resolved to grant the motion and the resolution dismissing the petition became final and executory. Entry of judgment was made.

First Complaint:

Meanwhile, the bank sold the property to the petitioners, Isidro Peres and Narciso Ragua. The Register of Deeds issued a TCT in their names.

Instead of repurchasing the property, the spouses filed a complaint against the bank for the nullification of the extrajudicial foreclosure of the real estate mortgage and sale at public auction and/or redemption of the property, with a prayer for a temporary restraining order and a writ of preliminary injunction to enjoin the bank from consolidating the title over the property.

Second complaint: The spouses filed a complaint with the RTC against the bank, Perez and Ragua, for the cancellation and annulment of the extrajudicial foreclosure of the real estate mortgage executed by them in favor of the bank, the sale at public auction as well as the certificate of

Allegations:

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sale executed by the sheriff, and the Torrens title issued to them.

which is rooted on the erroneous computation of the balance of their loan account with the bank.

Allegations:

The defendants filed an MR but it was denied. They filed a petition for certiorari, prohibition and mandamus to the CA. The CA dismissed the petition and affirmed the RTC orders.

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They reiterated the allegations in the first complaint. They admitted their failure to pay the amortization on their loans. That the extrajudicial foreclosure of the real estate mortgage and the sale at public auction were illegal because the bank charged much more than the amount due on their loan account. That although they pleaded for a restructuring of their loan account and a moratorium on the payment of their account, they were unaware of the erroneous computation of the balance of their loan account. That the bank’s consolidation of its title over the property was premature because they were given one month to redeem their property.

SC: The second complaint is barred by res judicata. Section 49(b) enunciates the first concept of res judicata, known as bar by prior judgment or estoppel by judgment, which refers to a theory or matter that has been definitely and finally settled on its merits by a court of competent jurisdiction without fraud or collusion. There are 4 essential requisites which must concur for the application of this doctrine: (a) finality of the former judgment; (b) the court which rendered it had jurisdiction over the subject matter and the parties;

The bank filed a motion to dismiss. The bank alleged, among others, that the spouses were guilty of splitting a single cause of action because they already assailed the extrajudicial foreclosure of the real estate mortgage and the sale of the property at public auction on account of lack of due process and arbitrary abuse in their first complaint and again sought to do so in the second complaint this time grounded on the invalid foreclosure of the real estate mortgage, and the sale at public auction of the property for an amount in excess of the balance of the loan account. The bank also alleged that the spouses are barred by res judicata form filing the second complaint for the same causes of action even if additional defendants were impleaded. Consequently, they were also guilty of forum shopping. Perez and Ragua filed a motion to dismiss on similar grounds.

(c) it must be a judgment on the merits; and (d) there must be, between the first and second actions, identity of parties, subject matter and causes of action. Section 49(c) of Rule 39 enumerates the concept of conclusiveness of judgment. This is the second branch, otherwise known as collateral estoppel or estoppel by verdict. This applies where, between the first case wherein judgment is rendered and the second case wherein such judgment is involved, there is no identity of causes of action. As explained by this Court: It has been held that in order that a judgment in one action can be conclusive as to a particular matter in another action between the same parties or their privies, it is essential that the issues be identical. If a particular point or question is in issue in the second action, and the judgment will depend on the determination of that particular point or question, a former judgment between the same parties will be final and conclusive in the second if that same point or question was in issue and adjudicated in the first suit; but the adjudication of an issue in the first case is not

The RTC denied the motions, ruling that there was no identity of issue in the 2 actions because the second complaint assailed the legality of the extrajudicial foreclosure, on the sole ground that the bank had unlawfully increased their obligation, contrary to the terms and conditions of the loan contract. The court held that the causes of action in the 2 complaints were not identical: in the first case, it was for the redemption of the mortgaged property, distinct and separate from their cause of action in the second case

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conclusive of an entirely different and distinct issue arising in the second. In order that this rule may be applied, it must clearly and positively appear, either from the record itself or by the aid of competent extrinsic evidence that the precise point or question in issue in the second suit was involved and decided in the first. And in determining whether a given question was an issue in the prior action, it is proper to look behind the judgment to ascertain whether the evidence necessary to sustain a judgment in the second action would have authorized a judgment for the same party in the first action.

one that proceeds not only on a sufficiently different legal theory, but also on a different factual footing as not to require the trial of facts material to the former suit; that is, an action that can be maintained even if all disputed factual issues raised in the plaintiff’s original complaint are concluded in defendant’s favor.

If indeed the bank made an erroneous computation of the balance of their account as claimed by the private respondents in their second complaint, this should have been alleged in the first complaint as one of their causes of action. They failed to do so. The private respondents unequivocably admitted in their first complaint that the balance of their account with the bank was P4,500,000.00 which was the precise amount for which the bank sought the foreclosure of the real estate mortgage and the sale of the property at public auction; they even sought judicial recourse to enable them to redeem the property despite the lapse of the one-year period therefor.

The principle of res judicata applies when the opportunity to raise an issue in the first complaint exists but the plaintiff failed to do so. Indeed, if the pleading of a different legal theory would have convinced the trial court to decide a particular issue in the first action which, with the use of diligence the plaintiffs could have raised therein but failed to do so, they are barred by res judicata. Nor do legal theories operate to constitute a cause of action. New legal theories do not amount to a new cause of action so as to defeat the application of the principle of res judicata.

In this case, the private respondents’ second complaint cannot be maintained without trying the facts material to the first case, and the second case cannot be maintained if all the disputed factual issues raised in the first complaint are considered in favor of the bank.

Hao vs Andres: Kenneth Hao is one of the defendants in a civil case for replevin pending before the RTC. Judge Renato Fuentes issued an Order of Seizure against 22 motor vehicles allegedly owned by Hao. On the strength of the said order, Abe Andres, Sheriff of RTC, was able to seize 9 motor vehicles on different dates.

Relying on these admissions on the part of the private respondents, and the fact that the bank has already consolidated its title over the property, the Court thus dismissed their first complaint. The Order of the Court dismissing the first complaint is a judgment of the case on the merits.

In his Affidavit-Complaint against Andres before the Office of the Court Administrator (OCA), Hao alleged that Andres gave undue advantage to Zenaida Silver in the implementation of the order and that Andres seized the 9 motor vehicles in an oppressive manner. Hao also averred that Andres was accompanied by unidentified armed personnel on board a military vehicle which was excessive since there were no resistance from them. Hao also discovered that the compound where the seized motor vehicles were placed is actually owned by Silver.

The attempt of the respondents in their second complaint to avoid the application of the principle of res judicata by claiming the nature of their account on the ground therefor and their legal theory cannot prosper. Case law has it that where a right, question or fact is distinctly put in issue and directly determined by a court of competent jurisdiction in a first case, between the same parties or their privies, the former adjudication of that fact, right or question is binding on the parties or their privies in a second suit irrespective of whether the causes of action are the same. The ruling of the CA that the action of the private respondents and their legal theory in their second complaint were different from their causes of action and legal theory in the first complaint is not correct. A different cause of action is

In view of the approval of Hao’s counter-replevin bond, Judge Emmanuel Carpio ordered Andres to immediately cease and desist from further implementing the order of seizure, and to return the seized motor vehicles including its accessories to their lawful owners.

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However, 8 of the 9 seized motor vehicles were reported missing. Andres narrated that PO3 Rodrigo Despe, one of the policemen guarding the motor vehicles, reported to him that "Nonoy" entered the compound and caused the duplication of the vehicles' keys.

guarding the motor vehicles; (4) Andres does not even know the full name of the owner of the compound, who was merely known to him as "Gloria"; (5) except for PO3 Despe and SPO4 Nelson Salcedo, the identities of the other policemen tapped to guard the compound were unknown to Andres; (6) Andres also admitted that he only stayed at least one hour each day from October 1921, 2005 during his visits to the compound; and (7) even after it was reported to him that a certain "Nonoy" entered the compound and duplicated the keys of the motor vehicles, he did not exert his best effort to look for that "Nonoy" and to confiscate the duplicated keys.

Subsequently, Hao reported that 3 of the carnapped vehicles were recovered by the police. He then accused Andres of conspiring and conniving with Atty. Oswaldo Macadangdang (Silver's counsel) and the policemen in the carnapping of the motor vehicles. Hao also accused Andres of concealing the depository receipts from them and pointed out that the depository receipts show that Silver and Atty. Macadangdang were the ones who chose the policemen who will guard the motor vehicles.

Judge Fuentes also observed that Andres appeared to be more or less accommodating to Silver and her counsel but hostile and uncooperative to the complainant. He pointed out that Andres depended solely on Silver in the selection of the policemen who would guard the seized motor vehicles. He added that even the depository receipts were not turned over to the defendants/third-party claimants in the replevin case but were in fact concealed from them. Andres also gave inconsistent testimonies as to whether he has in his possession the depository receipts.

After the OCA recommended that the matter be investigated, we referred the case to Executive Judge Renato Fuentes for investigation, report and recommendation. Judge Fuentes found Andres guilty of serious negligence in the custody of the 9 motor vehicles. He recommended that Andres be suspended from office. Judge Fuentes found numerous irregularities in the implementation of the writ of replevin/order of seizure, to wit: (1) at the time of the implementation of the writ, Andres knew that the vehicles to be seized were not in the names of any of the parties to the case; (2) one vehicle was taken without the knowledge of its owner,Junard Escudero; (3) Andres allowed Atty. Macadangdang to get a keymaster to duplicate the vehicles' keys in order to take 1 motor vehicle; and (4) Andres admitted that prior to the implementation of the writ of seizure, he consulted Silver and Atty. Macadangdang regarding the implementation of the writ and was accompanied by the latter in the course of the implementation. Judge Fuentes observed that the motor vehicles were speedily seized without strictly observing fairness and regularity in its implementation.

OCA disagreed with the observations of Judge Fuentes. It recommended that Andres be held liable only for simple neglect of duty. SC: We adopt the recommendation of the investigating judge. Being an officer of the court, Andres must be aware that there are well-defined steps provided in the Rules of Court regarding the proper implementation of a writ of replevin and/or an order of seizure. The Rules is explicit on the duty of the sheriff in its implementation. To recapitulate what should be common knowledge to sheriffs, the pertinent provisions of Rule 60, of the Rules of Court are quoted hereunder: SEC. 4. Duty of the sheriff. Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. If the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not

Anent the safekeeping of the seized motor vehicles, Judge Fuentes pointed out several instances where Andres lacked due diligence to wit: (1) the seized motor vehicles were placed in a compound surrounded by an insufficiently locked see-through fence; (2) 3 motor vehicles were left outside the compound; (3) Andres turned over the key of the gate to the policemen

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delivered, he must cause the building or enclosure to be broken open and take the property into his possession. After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same.

seized property for at least five days.23 Hence, the act of Andres in delivering the seized vehicles immediately after seizure to Silver for whatever purpose, without observing the five-day requirement finds no legal justification. In Pardo v. Velasco, this Court held that: 'Respondent as an officer of the Court is charged with certain ministerial duties which must be performed faithfully to the letter. Every provision in the Revised Rules of Court has a specific reason or objective. In this case, the purpose of the five (5) days is to give a chance to the defendant to object to the sufficiency of the bond or the surety or sureties thereon or require the return of the property by filing a counterbond.'

SEC. 6. Disposition of property by sheriff. - If within five (5) days after the taking of the property by the sheriff, the adverse party does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicant's bond or approves a new bond, or if the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party.

In Sebastian v. Valino, this Court reiterated that: Under the Revised Rules of Court, the property seized under a writ of replevin is not to be delivered immediately to the plaintiff. The sheriff must retain it in his custody for five days and he shall return it to the defendant, if the latter, as in the instant case, requires its return and files a counterbond.'

First, the rules provide that property seized under a writ of replevin is not to be delivered immediately to the plaintiff.22 In accordance with the said rules, Andres should have waited no less than five days in order to give the complainant an opportunity to object to the sufficiency of the bond or of the surety or sureties thereon, or require the return of the seized motor vehicles by filing a counter-bond. This, he failed to do.

Likewise, Andres' claim that he had no knowledge that the compound is owned by Silver fails to convince us. Regardless of who actually owns the compound, the fact remains that Andres delivered the vehicles to Silver prematurely. It violates the rule requiring him to safekeep the vehicles in his custody. The alleged lack of facility to store the seized vehicles is unacceptable considering that he should have deposited the same in a bonded warehouse. If this was not feasible, he should have sought prior authorization from the court issuing the writ before delivering the vehicles to Silver.

Records show that Andres took possession of two of the subject motor vehicles on October 17, 2005, four on October 18, 2005, and another three on October 19, 2005. Simultaneously, as evidenced by the depository receipts, on October 18, 2005, Silver received from Andres six of the seized motor vehicles, and three more motor vehicles on October 19, 2005. Consequently, there is no question that Silver was already in possession of the nine seized vehicles immediately after seizure, or no more than three days after the taking of the vehicles. Thus, Andres committed a clear violation of Section 6, Rule 60 of the Rules of Court with regard to the proper disposal of the property.

Second, it must be stressed that from the moment an order of delivery in replevin is executed by taking possession of the property specified therein, such property is in custodia legis. As legal custodian, it is Andres' duty to safekeep the seized motor vehicles. Hence, when he passed his duty to safeguard the motor vehicles to Silver, he committed a clear neglect of duty.

It matters not that Silver was in possession of the seized vehicles merely for safekeeping as stated in the depository receipts. The rule is clear that the property seized should not be immediately delivered to the plaintiff, and the sheriff must retain custody of the

Third, we are appalled that even after PO3 Despe reported the unauthorized duplication of the vehicles' keys, Andres failed to take extra precautionary measures to ensure the safety of the vehicles. It is obvious that the vehicles were put at risk by the

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unauthorized duplication of the keys of the vehicles. Neither did he immediately report the incident to the police or to the court. The loss of the motor vehicles could have been prevented if Andres immediately asked the court for an order to transfer the vehicles to another secured place as soon as he discovered the unauthorized duplication. Under these circumstances, even an ordinary prudent man would have exercised extra diligence. His warning to the policemen to closely watch the vehicles was insufficient. Andres cannot toss back to Silver or to the policemen the responsibility for the loss of the motor vehicles since he remains chiefly responsible for their safekeeping as legal custodian thereof. Indeed, Andres' failure to take the necessary precaution and proper monitoring of the vehicles to ensure its safety constitutes plain negligence.

to live up to the exacting standards of his office and his conduct must at all times be characterized by rectitude and forthrightness, and so above suspicion and mistrust as well.35 Thus, an act of gross neglect resulting in loss of properties in custodia legis ruins the confidence lodged by the parties to a suit or the citizenry in our judicial process. Those responsible for such act or omission cannot escape the disciplinary power of this Court. Anent the allegation of grave abuse of authority (oppression), we likewise agree with the observations of the investigating judge. Records show that Andres started enforcing the writ of replevin/order of seizure on the same day that the order of seizure was issued. He also admitted that he took the vehicles of persons who are not parties to the replevin case. He further admitted that he took one vehicle belonging to Junard Escudero without the latter's knowledge and even caused the duplication of its keys in order that it may be taken by Andres. Certainly, these are indications that Andres enforced the order of seizure with undue haste and without giving the complainant prior notice or reasonable time to deliver the motor vehicles. Hence, Andres is guilty of grave abuse of authority (oppression).

Fourth, despite the cease and desist order, Andres failed to return the motor vehicles to their lawful owners. Instead of returning the motor vehicles immediately as directed, he opted to write Silver and demand that she put up an indemnity bond to secure the third-party claims. Consequently, due to his delay, the eventual loss of the motor vehicles rendered the order to return the seized vehicles ineffectual to the prejudice of the complaining owners.

When a writ is placed in the hands of a sheriff, it is his duty, in the absence of any instructions to the contrary, to proceed with reasonable celerity and promptness to execute it according to its mandate. However, the prompt implementation of an order of seizure is called for only in instances where there is no question regarding the right of the plaintiff to the property. Where there is such a question, the prudent recourse for Andres is to desist from executing the order and convey the information to his judge and to the plaintiff.

It must be stressed that as court custodian, it was Andres' responsibility to ensure that the motor vehicles were safely kept and that the same were readily available upon order of the court or demand of the parties concerned. Specifically, sheriffs, being ranking officers of the court and agents of the law, must discharge their duties with great care and diligence. In serving and implementing court writs, as well as processes and orders of the court, they cannot afford to err without affecting adversely the proper dispensation of justice. Sheriffs play an important role in the administration of justice and as agents of the law, high standards of performance are expected of them.29 Hence, his failure to return the motor vehicles at the time when its return was still feasible constitutes another instance of neglect of duty.

True, sheriffs must comply with their mandated ministerial duty to implement writs promptly and expeditiously, but equally true is the principle that sheriffs by the nature of their functions must at all times conduct themselves with propriety and decorum and act above suspicion. There must be no room for anyone to conjecture that sheriffs and deputy sheriffs as officers of the court have conspired with any of the parties to a case to obtain a favorable judgment or immediate execution. The sheriff is at the front line as

Good faith on the part of Andres, or lack of it, in proceeding to properly execute his mandate would be of no moment, for he is chargeable with the knowledge that being an officer of the court tasked therefor, it behooves him to make due compliance. He is expected

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representative of the judiciary and by his act he may build or destroy the institution.

depending on the gross value of the estate (300K or below/400K or below, MTC; above that, RTC). When you file a notice of appeal with the MTC, when is that appeal perfected? In Rule 40, you make a cross reference to Sec. 9, Rule 41 which provides the perfection of appeal and the expiration of a period to appeal.

RULE 40: APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL COURTS There are two (2) kinds of appeal: 1. notice of appeal 2. record on appeal

Section 9. Perfection of appeal; effect thereof. — A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time.

Time Frames: • Notice of Appeal: 15 days after notice to the appellant of the judgment or final order appealed from • Record on Appeal: 30 days after notice of the judgment or final order

A party's appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time.

Why is it that the rule allows a 30-day period for a record on appeal? Because this refers to multiple appeals. Aside from that, the rule requires that you have to attach pertinent documents or records of the case relative to the issue on appeal.

In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the appeal of the other parties.

In the Rules of Court, there are several multiple appeals. In Special Civil Actions, you find that in Rule 67 (Expropriation) and Rule 69 (Partition). But a classic example of multiple appeals is settlement of estate, especially if there is a will where you will start with probate of a will. Every part there is a final order. If you start with the will, once it is probated, the order probating a will is a final order which is appealable. The next step is appointment of executor/administrator. Again, that is a final order which you can appeal. Next you submit an inventory and accounting after 1 year which are again final orders. Then you move to partition and distribution which is again a final order.

In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with 2 of Rule 39, and allow withdrawal of the appeal. This section is important because it applies to all kinds of courts.

Suppose you appeal the appointment of an executor, the records remain with the trial court. What you will (send?) to the appellate court are only those matters concerning the issue of appointing an executor. You will have to prepare documents, evidence, testimony, etc. so it will take some time. That’s why the rule even allows a joint record on appeal.

When you file a notice of appeal with the clerk of court, the appeal is perfected upon filing of the notice of appeal as far as the appellant is concerned. But the court does not lose jurisdiction over the case because the loss of jurisdiction happens only upon expiration of the period to appeal.

A record on appeal is already available in the lower court (MTC) because of RA 7691. Estate proceedings may now be taken cognizance by a lower court

(go back to the example under Jurisdiction, p. 13)

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After the filing of the notice of appeal, if it is the MTC, said court has 15 days within which to elevate the records to the RTC. Before the elevation of the records, the court can still exercise residual jurisdiction.

throwing out the complaint, the RTC must take cognizance of it as if it was originally filed therein. If it is a reversal, the RTC has to remand it to the MTC or await for any party to file a new action. It can also happen that it was affirmed but it taken cognizance of by the RTC because it has no jurisdiction either.

Upon elevation of the records from the MTC to the RTC, the RTC, thru its clerk of court, must issue a notice to the appellant who may either be plaintiff-appellant of defendant-appellant. Upon that notification, the appellant will submit a memorandum of appeal within a period of 15 days, copy furnished to the appellee who has the same period of time within which to file/submit an appellee’s memorandum. On the basis of these memoranda, the court will render judgment, unless one of them would file a Reply memorandum which is not required. If a memorandum for the appellant is not filed, it will amount to a dismissal. If there is no filing of a appellee’s memorandum, a decision will be rendered by the court. It cannot be dismissed because the appellant filed a memorandum.

Example 1: If you file a labor case with the MTC which was dismissed for lack of jurisdiction and it was appealed to the RTC, the latter court has no jurisdiction to try the case either. The RTC has to affirm the order of dismissal but it has no jurisdiction. Example 2: Suppose a case was filed with the MTC for the amount of 500K. The MTC has no jurisdiction hence it will dismiss the case. You then appeal it to the RTC which now has jurisdiction over the amount. As such, instead of throwing out the complaint, the RTC takes cognizance of it as if it was originally filed with it.

If the decision of the MTC is affirmed by the RTC, you go up to the CA by petition for review under Rule 42.

These inferences seem to be incorrect because an appellate court can only take cognizance of an appeal when the lower court exercised original jurisdiction. Otherwise, what the cognizing court exercised would in effect be original jurisdiction as well. Sec. 8, Rule 40, however, is the exception. That’s why this is not in the 1960 Rules of Court.

New Provision: Sec. 8, Rule 40 Section 8. Appeal from orders dismissing case without trial; lack of jurisdiction. — If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case may be. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it. In case of reversal, the case shall be remanded for further proceedings.

General Rule: Appellate jurisdiction can only be exercised if the lower court has original jurisdiction. Exception: Sec. 8, Rule 40 If it has been tried already and it was dismissed, still you appeal it but the problem there is that the evidence is already admitted by the lower court. They remain. They don’t need to be retaken if there is already trial.

Lack of jurisdiction is a ground for dismissal but the dismissal here may either be with or without trial on the part of the court. If the case is dismissed by the MTC for lack of jurisdiction, that dismissal is a final order and so you appeal to the RTC. The RTC, upon taking cognizance of the appeal, may either affirm or reverse the order of dismissal. If it affirms the order of dismissal because the lower court has no jurisdiction, you have to find out whether the RTC has jurisdiction over the subject matter of the original case (not the appealed case) as it was filed with the MTC. If it has jurisdiction, instead of

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• perfection of appeal (Sec. 9, Rule 41) • loss of jurisdiction • expiration of the period to appeal

executed. That is why what you have to do is to pray for injunctive relief under Rule 58 (Preliminary Injunction), absence of which, execution will follow.

Rule 41 only differs from Rule 40 in terms of the time frame. The elevation of the record from the RTC to the CA is thirty (30) days.

As to Section 1 of this rule, there is no need to memorize because the enumeration is not exclusive. Just remember the five (5) tribunals whose decisions and final orders must go up only to the Supreme Court. All the rest is with the CA.

When you read Rule 41, you are left hanging because the process is not yet done. The continuation of Rule 41 is Rule 44 (Ordinary Appealed Cases).

RULE 44: ORDINARY APPEALED CASES RULE 42: PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS

Note that upon elevation of the records from the RTC to the CA, the CA will notify also the appellant that the records are already with them. Upon this notice, the appellant is supposed to submit an appellant’s brief. Rule 44 tells you as to what should constitute an appellant’s brief which is mandatory.

This is a kind of appeal from the RTC to the Court of Appeals when the former court exercises appellate jurisdiction. The best example of this rule is an unlawful detainer case because such case is originally cognizable by the MTC. Hence you appeal to the RTC then you go up on a petition for review, in which case you avail of Rule 42.

Section 7. Appellant's brief. — It shall be the duty of the appellant to file with the court, within forty-five (45) days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the record, seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellee.

**This is just a reading matter.**

RULE 43: APPEALS FROM QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS

Section 13. Contents of appellant's brief. — The appellant's brief shall contain, in the order herein indicated, the following:

The CTA is no longer covered by this rule pursuant to RA 9282 which elevated said court to the level of the Court of Appeals.

1. A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited;

From quasi-judicial bodies, you go up to the CA. This is not by notice of appeal or by record on appeal but rather, by petition for review.

1. An assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely stated without repetition and numbered consecutively;

Pleading-wise, this is the same as Rule 42 as to content of the petition for review. Section 12. Effect of appeal. — The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just.

1. Under the heading "Statement of the Case," a clear and concise statement of the nature of the action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters necessary to an

This means that the appeal does not stop the proceeding. In other words, you can have the judgment

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understanding of the nature of the controversy with page references to the record;

as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44;

2. Under the heading "Statement of Facts," a clear and concise statement in a narrative form of the facts admitted by both parties and of those in controversy, together with the substance of the proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record; 2. A clear and concise statement of the issues of fact or law to be submitted, to the court for its judgment;

xxx xxx xxx When the CA notifies you to file an appellant’s brief, you have to go to the CA and look over the records of the case. Don’t rely on your own records because the basis of your appellant’s brief must be the official records of the case which are now with the CA. You will note from Rule 41 that before the RTC clerk of court transmits the records to the CA, they must be arranged chronologically and paged accordingly. That is the provision of the rule. If you have the copy of the records of the case, it bears no paging.

1) Under the heading "Argument," the appellant's arguments on each assignment of error with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found;

Example: You have a copy of the TSN which consists of 105 pages. If you look over the records of the case as transmitted to the clerk of court of the CA, you will see that your pages 1-50 are not necessarily numbered the in same way as the official records. If you are preparing your appellant’s brief, you make notations/foot notes. If your foot notes will follow the paging in your own copy, said notations will not match the records of the case such that when the judge reads your brief and finds that your references are not correct, he will simply dismiss your case.

1) Under the heading "Relief," a specification of the order or judgment which the appellant seeks; and 1. In cases not brought up by record on appeal, the appellant's brief shall contain, as an appendix, a copy of the judgment or final order appealed from. On the basis of Sec. 13, this order must be strictly followed: subject index statement of the case statement of the facts issues argumentations prayer

Trivia: The ordinary market price now for an appellant’s brief is P50,000.00. Under Rule 44, upon receipt of your notice, you have forty-five (45) days to prepare an appellant’s brief (Sec. 7, Rule 44), copy furnished the appellee who has the same period within which to file his appellee’s brief. The appellant, if he wants to, within twenty (20) days from receipt of the appellee’s brief, may submit a reply brief.

Non-compliance with this order is a ground for dismissal pursuant to Sec.1(f), Rule 50.

Section 8. Appellee's brief. — Within forty-five (45) days from receipt of the appellant's brief, the appellee shall file with the court seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellant.

Section 1. Grounds for dismissal of appeal. — An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds: xxx

xxx

Section 9. Appellant's reply brief. — Within twenty (20) days from receipt of the appellee's brief, the appellant may file a reply brief answering points in the appellee's brief not covered in his main brief.

xxx

3. Absence of specific assignment of errors in the appellant's brief, or of page references to the record

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Note: This is not given in the bar but may come in handy in practice.

RULE 47: ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS

RULE 45: APPEAL BY CERTIORARI TO THE SUPREME COURT

Section 1. Coverage. — This Rule shall govern the annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner.

This is an appeal from the following tribunals: • Court of Appeals • Sandiganbayan • Court of Tax Appeals (en banc) • Commission on Appointments • Commission on Elections • Regional Trial Courts

Annulment of judgments is also an equitable remedy. In fact, this is resorted to only when you were not able to avail all the other remedies against a final judgment namely, new trial, reconsideration, appeal, and even petition for relief. It appears from Mesina v. Meer, even before you can avail of annulment of judgment, you first have to apply for petition for relief from judgment.

In the first five (5) tribunals, there is no other way but to elevate to the Supreme Court. Therefore, what is crucial in Rule 45 is the appeal from the RTC. As a general rule, no case must go directly to the Supreme Court. It must always follow the principle of hierarchy of courts.

Note: Do not confuse an equitable remedy from prerogative remedies which talk of prerogative writs: Writ of Amparo, Writ of Habeas Data, and Writ of Kalikasan.

In Rule 45, it is provided that a decision or final order of the Regional Trial Court bypasses the CA and goes up directly to the Supreme Court. But the limitation is pure question of law so that if you avail of the wrong appeal, there is no remand or transmittal under the present rule. It should be outright dismissal.

Rule 47 is the last remedy against an executory judgment.

If you go up to the Supreme Court and you raise questions of fact, it would amount to a dismissal. This has the same effect even if you raise questions of fact together with questions of law. The issue is what is a question of law and what is a question of fact.

What are the grounds? 1. extrinsic fraud 2. lack of jurisdiction Section 2. Grounds for annulment. — The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction.

As a general rule, a question of fact requires the presentation of evidence whereas a question of law is simply the determination of what the law in a particular situation is applicable.

Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief.

For purposes of the bar, there are three (3) exceptions and they are the remedies against a decision of the following: 2. Writ of Amparo (2007) 3. Writ of Habeas Data (2008) 4. Writ of Kalikasan (2012)

What is important is to consider the requirement that you can only avail of this when you were not able to avail of the precedent remedies and you are not at fault for not availing of them. Otherwise, you cannot avail of annulment of judgments.

These prerogative writs are also appealable to the Supreme Court under Rule 45 but on both questions of fact and law.

What are the limitations?

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• extrinsic fraud: action must be filed within four (4) years from its discovery • lack of jurisdiction: before it is barred by laches or estoppel

decisions, resolutions, and judgments of quasi-judicial bodies are not subject to annulment. Therefore, you cannot file a petition or an action for annulment of judgments of quasi-judicial bodies. There is no such remedy. Your only remedy is limited to Rule 43 which is a petition for review before the Court of Appeals.

Section 3. Period for filing action. — If based on extrinsic fraud, the action must be filed within four (4) years from its discovery; and if based on lack of jurisdiction, before it is barred by laches or estoppel.

**Rules 48-51 are just reading matters.**

Note that the effect of these two (2) remedies against an executory judgment are different. If you are granted petition for relief from judgment (Rule 38), what happens? The judgment is set aside or vacated then you have trial de novo. Take note that this trial is not the presentation of the case all over again. Rather, it is only for those which are relevant to the issues that have been set aside. In the case of annulment of judgment, what is the effect if it is granted? It renders the questioned judgment null and void. Section 7. Effect of judgment. — A judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being refiled in the proper court. However, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the trial court to try the case as if a timely motion for new trial had been granted therein. Which court has jurisdiction over such action? An action to annul a judgment or final order of a Municipal Trial Court shall be filed in the Regional Trial Court having jurisdiction over the former. If it is an action to annul the judgment of the RTC, it is filed with the CA. This exclusive and original jurisdiction is also in RA 7691. Annulment of judgments of RTCs are exclusively and originally cognizable by the Court of Appeals. But you can also seek for the annulment of decisions, final orders, and resolution of the lower courts but the jurisdiction there is with the RTC. How about if you seek to annul the judgment of quasijudicial bodies? Which court has jurisdiction? The

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