Rem Law Review SCA

SPECIAL CIVIL ACTIONS Sorry, I was late! No notes on interpleader + declaratory relief. Anyway, some things you might want to remember: INTERPLEADER What are the requisites? a. Conflicting claims upon the same subject matter b. Against a person who claims no interest or an interest not disputed by claimants c. Pray that court will compel claimants to interplead and litigate their claims among themselves NOTE: fees and lawful fees, as well as costs paid by party who filed the complaint shall constitute a lien upon the 8M of the action, unless the court otherwise orders. DECLARATORY RELIEF Who may file? Any person: a. interested under a deed, will, contract or other written instrument; or whose rights are affected by a statute, EO, b. ordinance, or other governmental regulation When and where should declaratory relief be filed? Before breach, in the RTC NOTE: reformation, quieting of title, removal of cloud, consolidation may also be brought under Rule 63 When must there be notice to the government? Cases involving validity of statutes -7 notify SolGen Validity of local govnt ordinace -7 notice to counsel for LGU (usually the prosecutor) Unconstitutionality of law or ordinance -7 notify SolGen What happens if there is breach? The action is converted into an ordinary action CERTIORARI PROHIBITION MANDAMUS NOTE: although this rule covers 3 special civil actions, a petition may also be for a combination of 2 e.g. petition for certiorari and mandamus. See Rule 65 Sec 1 for definitions. What may be the subject of certiorari? See Rule 41 Sec 1, what may not be appealed. In summary: order denying MNT/MR, order denying petition for relief, interlocutory order, order disallowing/dismissing an appeal, order denying motion to set aside judgment by consent etc, order of execution, judgment against one or more of several parties in separate claims etc, order dismissing an action without prejudice Under the Family Code, a declaration of presumptive death may not be appealed. Technically, the remedy is certiorari. NOTE: Certiorari does not over ministerial functions of judicial and quasi-judicial agencies -7 double check, not sure Give examples: When the court acts without jurisdiction: e.g. order arrest of congressman for crime that he has abuse of discretion

When the court acts in excess of jurisdiction: e.g. the court has jurisdiction in the first place, but there is non-compliance with the procedure for the exercise of that power When there is grave abuse of discretion (note key words: capriciously, arbitrarily, whimsical etc): e.g. if counsel does not appear at trial and the judge dismisses the case right away, then the counsel appears and files an MR, claiming he did not appear because he was trapped in an elevator. If the judge denies the MR there is GAD When is certiorari not a remedy? If it is true that there are other speedy and adequate remedies, certiorari may not be availed of NOTE: There are some instances when there may be resort to certiorari despite the availability of other remedies, such as: When the filing of an appeal is not a speedy and adequate remedy Order is a patent nullity To avoid future litigation To avoid miscarriage of justice What is the condition precedent before one may avail of certiorari under Rule 65? As a general rule, there must be a motion for reconsideration. This is different from certiorari under Rule 45. But there are exceptions to this rule! (He didn't mention Ihem) What are the technical requirements of a petition for certiorari? There must be a controversy Respondent judicial/quasi-judicial functions Respondent exercising functions w/o or in excess of juris amounting to GADLEJ No appeal or speedy remedy available What are the requisites for extrinsic sufficiency to avail of certiorari? Verified petition Certification against forum shopping Certified true copy or duplicate original of the original judgment -7 The word original should be stamped on the pleading Copies ... ? Proof of service Within what period should you file? Within 60 days Which courts have jurisdiction over certiorari? RTC SB CA SC have jurisdiction over certiorari. But you still have to comply with the hierarchy of courts. REMEMBER: In CrimPro we learned that an order of the TC denying demurrer, and an order of the TC denying leave to file demurrer are NOT subject to certiorari. The remedy in both these cases is to present evidence and file an appeal. Can you raise decisions ofthe CA under rule 65? NO, the proper remedy is Rule 45 (double check this) Should the court proceed with the main case if a petition for certiorari is filed? YES! EXCEPT: if there is a TRO or an injunction. (Court must proceed in the main case absent a TRO. Where the provisional remedy of injunction and TRO is prayed for but

REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Civil Actions Julia Britanico, Kevin Edrick Relopez, Caroline Tan

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not granted, court should proceed, otherwise the judge will be penalized. Can you file for certiorari in availing of discovery measures? Generally, no. You can ask for protective orders. However, if the issuance of the order stopping or ordering continuation is in the nature of GADLEJ, certiorari may be available. What about erroneous rulings in the admission of evidence? Not subject to certiorari. Remedy is Rule 132 or 133 objectionslrulings, or file an MR.

See also Defensor-Santiago v. Loyola? In this case, Miriam wanted to take theology, but Ateneo refused because the class was reserved for priests only Can you compel the prosecutor to file a case? As a general rule you cannot. Except when there was already a determination of probable cause. What is continuing mandamus? See Rule in environmental cases QUO WARRANTO What is quo warranto? See Rule 66 Sec 1

What about testimonial evidence when you think witness "lying through the teeth" is this subject to certiorari? No, wait for judgment and assign as an error

Which court has jurisdiction over quo warranto? See Rule 66 Sec 7

NOTE: there is an exception wI respect to certiorari not being remedy in erroneous admission of evidence

Against whom may quo warranto petitions be filed? See Rule 66 Sec 1.

Read SALCEDA ORTANEZ v. CA 235 SCRA 111 In this case, the Court admitted evidence in violation of antiwire tapping, because if the action proceeded, there would serious injury

What are the contents of the petition? Name of person who claims to be entitled Averment of right to the same When is a quo warranto petition mandatory? When directed by the President or when the SolGen has good reason to believe he can prosecute the case

What is prohibition? See Sec 2 Rule 65 What is the difference between certiorari and prohibition? Prohibition can cover ministerial functions, unlike certiorari. What are the requisites for prohibition? There is a controversy Respondent is exercising judicial, quasi-judicial or ministerial functions Acted wlo or in excess jurisdiction or with GAD No appeal Distinguish prohibition from injunctions. Prohibition directed to tribunal Uurisdiction is questioned, the party goes to court to prevent the respondent from taking cognizance). An injunction directed to party, it is an ancillary remedy, and the court has jurisdiction. NOTE: the grounds for prohibition are the same as those for certiorari What is mandamus? To require or compel the respondent to perform a particular duty, which duty results from the official station of the respondent, or from operation of law; refers only to ministerial duties. What is the difference between preliminary mandatory injunction and mandamus? Mandamus -7 compel the party to do something Injunction -7 enjoin him from doing something Give an example of mandamus. Mandamus may be filed to compel the OMS to dismiss a case that been pending for 10 years, as this is a violation of right to speedy trial [307 SCRA 106 Roque v. OMS] Can a student compel a school to admit him/her? No, because of academic freedom! [176 SCRA 151 ???]

When is quo watTanto petition discretionary? When a third person asks the SolGen to file for quo warranto. This third person is called a RELATOR because he relates it to the SolGen. In this case there must be a prior notice and hearing. Distinguish quo watTanto in the RoC and Omnibus Election Code Rules of Court Omnibus Election Code Special Civil Action Electoral roceedinq Purpose is to call a person Purpose is to question to prove his right to office or eligibility or qualification for right to exercise franchise office Within 1 year Within 10 days from proclamation Filed by SolGen Filed by any voter Independent/separate action Can recover damages in the for damages same action ·hI quo warranto 1rom e ec rron pro es o·rs rrngurs Quo Warranto Dispute re: eligibility 01 candidate elect Respondent is ousted but petitioner does not always assume office

Election Protest Dispute re: irregularity in conduct of election Successful protestant will assume office il he had plurality of votes

Distinguish quo warranto in elective office from quo ·rrve 0iiirce warranto rn apporn Elective Office ADDointive Office Issue pertains to the Issue pertains to the validity eligibility of the respondent of the appointment Petitioner does not seek to Petitioner wants to replace the respondent replace the respondent

REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Civil Actions Julia Britanico, Kevin Edrick Relopez, Caroline Tan

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EX PROPRIA liON

NOTE: There are two kinds of expropriation , one for infrastru cture projects (RA8974) and one in the rules of court Who may expropriate property? The national government including LGUs and GOCes wI charters that allow them to expropriate

Which court has jurisdiction in expropriation proceedings? RTC , becau se it is an action that is incapble of pecuniary

What if the defendant is unknown? This is only allowed for the first stage of the proceeding, but for the second stage , the names of the owners must be known. What if there are two conflicting claimants? The expropriator can file an action for interpleade Can you file an MTD? No! You should include the ground in your answer.Don't forget the omnibus objection rule! All defenses not in the answer are deemed wa ived.

estimation What are the requirements before there can be expropriation? a, There must be a showing of public character before occupation b. Taking must be for a public purpose c. There mu st be payment of just compensation NOTE: all pleadings must be verified , and the action is commenced by an initiatory pleading What are the stages in an expropriation proceeding? First , the court determines the authority of the plaintiff to expropriate and the propriety of the exercise of expropriation . This is already a final adjudication and this may be appealed . Second , the court determines the amount of just comp ensation. The amount of just compensation is determined by the commissioners. The court can accept , reject or modify the recommendation of the commissioners . See the codal for the full procedure.

In case the owner does not contest the expropriation , he files a notice of appearance and a manifest to the court that he has no objection , and but he has to specify which property is subject to expropriation. Which pleadings are prohibited proceedings? MTD, counterclaims and cross-claims

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expropriation

FORECLOSURE NOTE: Extrajudicial foreclosure is governed by Act 3135 Under JUDICIAL FORECL OSU RE , there is only equity of redemption (right to redeem after default but before the confinnation of the sale of property). The judgment must make finding of the amount due to the mortgagee, and will make an order that the debt shall be paid within a period 90 to 120 days from judgment. If the judgment obligor fails to pay , the property will be sold at a public auction. After sale is confirmed , the buyer is entitled to a Writ of Possession.

When Is there "taking"? When the expropriator takes possession of the property. The possession mu st be more than momentary, and must be done under the color of authority. The taking must be done in such a manner that ousts the owner of beneficial use of the property . E.g. NAPOCOR files expropriation proceedings for the properties underneath their high voltage tran smission cables , because the ovmer is deprived of beneficial use of this property

However, if the mortgagee is a bank , the mortgagor has a right of redemption one year counted from the date of registration ofthe certificate of sale .

How Is just compensation determined? Based on the value at the time of the taking, or at the time of filing of the complaint, whichever comes first.

Under EXTRAJUDICIAL FORECLOSURE , there is a righl of redemption (right to repurchase the property even after the confirmation of the sale and even after the registration of the certificate of sale). The right of redemption is within one year from the date of sale (which has been interpreted as from the date of the registration of the sale).

How is the proceeding under Rule 67 different from RA

89747 Under Rule 67, (see Sec2) upon the filing of the complaint , and notice to the occupants, the expropriator can deposit the amount equivalent to the assessed value of the property and then the expropriator can take possession. Under RA 8974 , the expropriation for nati onal govemment infrastructures, the expropriator can take possession right away, upon payment of 100% of the zonal value, paid directly to the owner. This is different from the SCA, where only deposit is required. READ : G.R. No. 166973 Republic v . Gingoyon NOTE: There may be multiple appeals in expropriation proceedings.

In order for their to be a deficiency judgment, there must be an explicit finding that there is a deficiency. Deficiency cannot be recovered against a non-resident, as this person cannot be found in the Philippines and this is a personal action.

Under the General Banking Law , when the mortgagor is a juridical person , registration of the sale cannot be made more than 3 months after foreclosure , so the redemption cannot be made after the lapse of 3 months from the foreclosure. When the mortgagor dies, the mortgagee has ALTERNATIVE REMEDIES: a. Mortgagee may foreclose b. Abandon mortgage and file collection c. Foreclose and file deficiency judgment in the settlement NOTE: multiple appeals are allowed in foreclosure

REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Civil Actions Julia Britanico, Kevin Edrick Relopez, Caroline Tan

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PARTITION There are two stages: In first pertains to whether or not the plaintiff has the right to partition. This order is final and may be appealed through a record on appeal. The second stage is the partition itself, which is also appealable. Partition applies to both real and personal property.

Is the right to partition imprescriptible? It depends. Prescription does not run in favor of a co-owner if there is express or implied recognition of the co-ownership. However, a co-owner may acquire ownership through prescription when there is a clear repudiation of the coownership, and when the co-owners are apprised of the claim of adverse and exclusive ownership. Is oral partition valid? Yes, but only with respect to the parties to the partition. NOTE: partition may be coupled with an accounting. Such as unpaid rent, shared profits etc. and if these are not included they are deemed waived. NOTE: Arriola v. Arriola (G.R. No. 17703) if a property subject to partition is constituted as a family home, immediate partition is NOT possible. The procedure in the Family Code Art 159 must be followed.

Article 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. What are the modes of partition? First, Partition by agreement, Second, partition through judicial proceedings. The plaintiff must show interest in the property, then the court will determine whether or not the plaintiff is a co-owner, and if so, the plaintiff can demand that partition be effected. The court will issue an order of partition. If parties cannot agree how the property should be divided, the court will appoint commissioners to effect partition. NOTE: Partition is res judicata with respect to the parties to the action and their successors-in-interest. FORCIBLE ENTRY AND UNLAWFUL DETAINER The basic issue is PHYSICAL POSSESSION.

Accion interdictal comprises two different causes of action: forcible entry (FE) and unlawful detainer (UD). In FE, one is deprived of physical possession of real property by means of force, intimidation, strategy, threats, or stealth. (FISTS). In UD, one illegally withholds possession after the expiration or termination of his right to hold possession under any contract, express or implied. In FE, possession of the defendant is illegal from the beginning, and the issue is which party has prior de facto possession.

In UD, possession of the defendant is initially legal but becomes illegal due to the lapse of the term of the right to possess. Where should the action be filed? In the proper MTC. Note that this action is governed by the Rules on Summary Procedure, so don't forget the prohibited pleadings. When should the action be filed? FE: Within 1 year from the date of actual entry, or 1 year from the date of discovery of the entry (if entry was made through stealth) UD: Within 1 year from the date of the last demand to vacate If the owner of the property sends notice to the one in possession, asking that he enter into a renewal contract or vacate the property, is the is the "demand" contemplated under the Rule? NO. There must be a specific demand to vacate. Within what period should the Answer be filed? Within 10 days! All defenses not raised are deemed waive.d NOTE: This is an exception to the general rule, which is that the defendant has 15 days to answer. Is pre-trial applicable? Yes, it is just called a preliminary conference. If the plaintiff does not appear during the preliminary conference, the case should be dismissed. However, there may be judgment on the counterclaim raised by the defendant (double check this). If the defendant fails to appear, there can be NO ex parte proceedings (double check this too). Can the court make a determination of ownership? Not really, the determination of ownership is PROVISIONAL, as such it is not final and binding.

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NOTE: Execution of judgment is immediately executory, unless an appeal duly perfected and the filing of a supersedeas bond (for the unpaid rent, damage and costs). Is the action suspended or barred by other actions? No! The fact there is a pending case involving ownership of the subject matter does NOT bar the filing of an ejectment suit, nor does it suspend the proceedings of already instituted. The following cases do not bar an action for FElUD: injunction suit filed in an ejectment suit, accion publiciana in another suit, quieting of title, specific performance with damages (e.g. action to compel the renewal of a lease contract), accion reivindicatoria, reformation of the instrument, action for annulment of sale Who should be parties? The case should be filed against the one in the possession of the property at the commencement of the action Can a tenant bring an action against landlord? Yes, because the issue is the right of possession, so even if the landlord owns the property, the tenant may be entitled to possess the property, and can file an action against the landlord if the landlord deprives the tenant of possession (double check this). Can a vendor eject a vendee? Yes, if the vendee fail to pay the installment due

REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Civil Actions Julia Britanico, Kevin Edrick Relopez, Caroline Tan

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Who are bound by the judgment? GR: Those who are not impleaded are not bound. EXCEPT: The following are bound even if not parties trespassers, informal settlers, agent of defendant who is fraudulently occupying, guests, those occupying wI permission, transferee pendente lite, sub-lessee, co-lessee.

Don't forget that we finished SeA in just one meeting. These notes are limited to the questions asked during recitation, and from the mini-lecture Justice Gesmundo gave towards the end of class. I would recommend that you supplement these notes with other materials ©

Can the defendant raise the refusal to accept rentals as a defense? No! The remedy of the defendant in this case is the tender of payment of rent, with consignation at the court where case is pending or with the bank in the name of the lessor. The account will be "In trust for ... "

CONTEMPT What is the nature of contempt? It is an inherent power of the court. Howshould this power be exercised? It should be exercised in a conservative manner, not a vindictive one. Distinguish direct and indirect contempt. Direct contempt: committed in the presence of, or so near the court or judge as to obstruct or interrupt the proceedings. It is summary in nature and there is no appeal. The remedy of the person is a petition for certiorari or prohibition against the court that held him in contempt. Indirect contempt is not committed in the presence of the court. It is an act done that tends to belittle, degrade, Indirect obstruct or embarrass the court and justice. contempt is initiated by a charge in writing and a hearing. The charge may be through a verified petition, or by an order or formal charge initiated by the court motu propio (Sec 4 Rule 71). If an action for indirect contempt is initiated by party other than the judge, the requirement is that there should be an initiatory pleading that is VERIFIED and which has a certification against forum shopping. Examples of indirect contempt: Sec 5 Rule 7 false certificate against forum shopping, or failure to submit Sec 9 Rule 21 failure to obey a subpoena (do not forget via tory right) What is the nature of the proceeding of indirect contempt? It is similar to a criminal action. The respondent should be given opportunity to file answer or comment. The ruling of indirect contempt is appealable. What's a bench warrant? Ask person to appear and explain why not be cited in direct contempt. e.g. failure to obey subpoena When may there be contempt even if case terminated? Tends to bring court into disrespect Clear and present danger justice impeded May quasi-judicial entities cite parties in contempt? See Sec 12 Rule 71. Rule 71 applies to them suppletorily. In indirect contempt, the quasi-judicial bodies must initiate proceedings with the RTC, as quasi-judicial bodies do not have the jurisdiction to decide indirect contempt cases.

REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Civil Actions Julia Britanico, Kevin Edrick Relopez, Caroline Tan

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