Updates Civil Procedure (1)

UPDATES IN CIVIL PROCEDURE Zenaida T. Galapate-Laguilles Associate Justice COURT OF APPEALS

CAUSE OF ACTION: 1.DOLORES ADORA MACASLANG RENATO AND MELBA ZAMORA, G.R. No. 156375,May 30, 2011.

vs.

In resolving whether the complaint states a cause of actionor not, only the facts alleged in the complaint are considered. The test is whether the court can render a valid judgment on the complaint based on the facts alleged and the prayer asked for. Only ultimate facts, not legal conclusions or evidentiary facts, are considered for purposes of applying the test.

2. MAKATI STOCK EXCHANGE, INC., MA. VIVIAN YUCHENGCO, ADOLFO M. DUARTE, MYRON C. PAPA, NORBERTO C. NAZARENO, GEORGE UYTIOCO, ANTONIO A. LOPA, RAMON B. ARNAIZ, LUIS J.L. VIRATA, and ANTONIO GARCIA, JR. vs. MIGUEL V. CAMPOS, substituted by JULIA ORTIGAS VDA. DE CAMPOS,G.R. No. 138814, April 16, 2009. A cause of action is the act or omission by which a party violates a right of another.A complaint states a cause of action where it contains three essential elements of a cause of action, namely: (1) the legal right of the plaintiff, (2) the correlative obligation of the defendant, and (3) the act or omission of the defendant in violation of said legal right. If these elements are absent, the complaint becomes vulnerable to dismissal on the ground of failure to state a cause of action. xxx xxx xxx The mere assertion of a right and claim of an obligation in an initiatory pleading, whether a Complaint or Petition, without identifying the basis or source thereof, is merely a conclusion of fact and law. A pleading should state the ultimate facts essential to the rights of action or defense asserted, as distinguished from mere conclusions of fact or conclusions of law.

3. PHILIPPINE ARMY, 5th Infantry Division, through GEN. ALEXANDER YAPSING, LT. COL. NICANOR PENULIAR, and LT. COL. FERNANDO PASION vs. SPOUSES MAJOR CONSTANCIO PAMITTAN (Ret.) and LEONOR PAMITTAN, SPOUSES ALBERTO TALINIO and MARIA CHONA P. TALINIO, SPOUSES T/SGT. MELCHOR BACULI and LAARNI BACULI, SPOUSES S/SGT. JUAN PALASIGUE and MARILOU PALASIGUE, SPOUSES GRANT

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PAJARILLO and FRANCES PAJARILLO, SPOUSES M/SGT. EDGAR ANOG and ZORAIDA ANOG, and SPOUSES 2LT. MELITO PAPA and PINKY PAPA, for Themselves and for Other Occupants of Sitio San Carlos, Upi, Gamu, Isabela, by Way of Class Suit, G.R. No. 187326,June 15, 2011. Generally, a motion to dismiss based on failure to state a cause of action hypothetically admits the truth of the allegations in the complaint and in order to sustain a dismissal based on lack of cause of action, the insufficiency of the cause of action must appear on the face of the complaint. However, this rule is not without exception. Thus, a motion to dismiss "does not admit allegations of which the court will take judicial notice are not true, nor does the rule apply to legally impossible facts, nor to facts inadmissible in evidence, nor to facts which appear by record or document included in the pleadings to be unfounded."Indeed, in some cases, the court may also consider, in addition to the complaint, other pleadings submitted by the parties and the annexes or documents appended to it.

4. NELSIE B. CAÑETE vs. GENUINO ICE COMPANY, INC. G.R. No. 154080,January 22, 2008. Corollarily, the question of whether or not a complaint states a cause of action against a defendant or the action is premature is one of law. The trial court can consider all the pleadings filed, including annexes, motions and the evidence on record. However in so doing, the trial court does not rule on the truth or falsity of such documents. It merely includes such documents in the hypothetical admission. Any review of a finding of lack of cause of action based on these documents would not involve a calibration of the probative value of such pieces of evidence but would only limit itself to the inquiry of whether the law was properly applied given the facts and these supporting documents. Therefore, what would inevitably arise from such a review are pure questions of law, and not questions of fact.

PREPARATION OF THE COMPLAINT: 5. GEORGIA T. ESTEL vs. RECAREDO P. DIEGO, SR. and RECAREDO R. DIEGO, JR.,G.R. No. 174082, January 16, 2012. It is settled that with respect to the contents of the certification against forum shopping, the rule of substantial compliance may be availed of. This is because the requirement of strict compliance with the provisions regarding the certification of non-forum shopping merely underscores its mandatory nature in that the certification cannot be altogether dispensed with or its requirements completely disregarded. It does not thereby interdict substantial compliance with its provisions under justifiable circumstances, as the Court finds in the instant case.

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6. MARCELINO DOMINGO vs. COURT OF APPEALS, AGAPITA DOMINGO, ANA DOMINGO, HEIRS OF GAUDENCIO DOMINGO, namely: DOROTEO DOMINGO, JULITA DOMINGO, AMANDO DOMINGO, and ARCEL DOMINGO; HEIRS OF JULIAN DOMINGO, namely: JULIAN DOMINGO, JR. and PONCIANO DOMINGO; HEIRS OF EDILBERTA DOMINGO, namely: ANITA DOMINGO and ROSIE DOMINGO; HEIR OF FELIPE DOMINGO, namely: LORNA DOMINGO; and HEIRS OF GERONIMO DOMINGO, namely: EMILY DOMINGO and ARISTON DOMINGO represented by ROLANDO DOMINGO, G.R. No. 169122, February 2, 2010. We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil Procedure, personal service and filing is the general rule, and resort to other modes of service and filing, the exception. Henceforth, whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal service or filing is mandatory. Only when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by a written explanation as to why personal service or filing was not practicable to begin with. In adjudging the plausibility of an explanation, a court shall likewise consider the importance of the subject matter of the case or the issues involved therein, and the prima facie merit of the pleading sought to be expunged for violation of Section 11.

7. SPOUSES RAMON MENDIOLA and ARACELI N. MENDIOLA vs. THE HON. COURT OF APPEALS, PILIPINAS SHELL PETROLEUM CORPORATION, and TABANGAO REALTY, INC., G.R. No. 159746,July 18, 2012. The four tests to determine whether a counterclaim is compulsory or not are the following, to wit: (a) Are the issues of fact or law raised by the claim and the counterclaim largely the same? (b) Would res judicata bar a subsequent suit on defendant’s claims, absent the compulsory counterclaim rule? (c) Will substantially the same evidence support or refute plaintiff’s claim as well as the defendant’s counterclaim? and (d) Is there any logical relation between the claim and the counterclaim, such that the conduct of separate trials of the respective claims of the parties would entail a substantial duplication of effort and time by the parties and the court? Of the four, the one compelling test of compulsoriness is the logical relation between the claim alleged in the complaint and that in the counterclaim.

8. ROGER V. NAVARRO vs. HON. JOSE L. ESCOBIDO, Presiding Judge, RTC Branch 37, Cagayan de Oro City, and KAREN T. GO, doing business under the name KARGO ENTERPRISES, G.R. No. 153788, November 27, 2009. Finally, there is no law authorizing sole proprietorships like petitioner to bring 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

Page 4 Updates in Civil Procedure Zenaida T. Galapate-Laguilles Associate Justice Court of Appeals 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.

JURISDICTION: 9. UNITED CLAIMANTS ASSOCIATION OF NEA (UNICAN), represented by its representative BIENVENIDO R. LEAL, in his official capacity as its President and in his own individual capacity, EDUARDO R. LACSON, ORENCIO F. VENIDA, JR., THELMA V. OGENA, BOBBY M. CARANTO, MARILOU B. DE JESUS, EDNA G. RAÑA, and ZENAIDA P. OLIQUINO, in their own capacities and in behalf of all those similarly situated officials and employees of the National Electrification Administration vs. NATIONAL ELECTRIFICATION ADMINISTRATION (NEA), NEA BOARD OF ADMINISTRATORS (NEA BOARD), ANGELO T. REYES as Chairman of the NEA Board of Administrators, EDITHA S. BUENO, Ex-Officio Member and NEA Administrator, and WILFRED L. BILLENA, JOSPEPH D. KHONGHUN, and FR. JOSE VICTOR E. LOBRIGO, Members, NEA Board, G.R. No. 187107,January 31, 2012. This Court’s original jurisdiction to issue writs of certiorari is not exclusive. It is shared by this Court with Regional Trial Courts and with the Court of Appeals. This concurrence of jurisdiction is not, however, 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 for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court’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 [an] established policy. It is a policy necessary to prevent inordinate demands upon the Court’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.

10. NM ROTHSCHILD & SONS (AUSTRALIA) LIMITED vs. LEPANTO CONSOLIDATED MINING COMPANY, G.R. No. 175799 November 28, 2011. Thus, while mindful of our ruling in La Naval and the new Section 20, Rule 20, this

Page 5 Updates in Civil Procedure Zenaida T. Galapate-Laguilles Associate Justice Court of Appeals Court, in several cases, ruled that seeking affirmative relief in a court is tantamount to voluntary appearance therein. Thus, in Philippine Commercial International Bank v. Dy Hong Pi, wherein defendants filed a "Motion for Inhibition without submitting themselves to the jurisdiction of this Honorable Court" subsequent to their filing of a "Motion to Dismiss (for Lack of Jurisdiction)," we held: Besides, any lingering doubts on the issue of voluntary appearance dissipate when the respondents' motion for inhibition is considered. This motion seeks a sole relief: inhibition of Judge Napoleon Inoturan from further hearing the case. Evidently, by seeking affirmative relief other than dismissal of the case, respondents manifested their voluntary submission to the court's jurisdiction. It is well-settled that the active participation of a party in the proceedings is tantamount to an invocation of the court's jurisdiction and a willingness to abide by the resolution of the case, and will bar said party from later on impugning the court's jurisdiction.

11. BF HOMES, INC. and the PHILIPPINE WATERWORKS AND CONSTRUCTION CORP. vs. MANILA ELECTRIC COMPANY, G.R. No. 171624, December 6, 2010. Indeed, when a court has no jurisdiction over the subject matter, the only power it has is to dismiss the action.

12. MAY D. AÑONUEVO, ALEXANDER BLEE DESANTIS and JOHN DESANTIS NERI vs. INTESTATE ESTATE OF RODOLFO G. JALANDONI, represented by BERNARDINO G. JALANDONI as Special Administrator,G.R. No. 178221, December 1, 2010. Consequently, when a court commits a mistake and allows an uninterested person to intervene in a case—the mistake is not simply an error of judgment, but one of jurisdiction. In such event, the allowance is made in excess of the court’s jurisdiction and can only be the product of an exercise of discretion gravely abused. That kind of error may be reviewed in a special civil action for certiorari.

13. PHILIPPINE COMMERCIAL INTERNATIONAL BANK vs.SPOUSES WILSON DY HONG PI and LOLITA DY and SPOUSES PRIMO CHUYACO, JR. and LILIA CHUYACO, G.R. No. 171137, June 5, 2009. Preliminarily, jurisdiction over the defendant in a civil case is acquired either by the coercive power of legal processes exerted over his person, or his voluntary appearance in court.As a general proposition, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. It is by reason of this rule that we have had occasion to declare that the filing of motions to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for

Page 6 Updates in Civil Procedure Zenaida T. Galapate-Laguilles Associate Justice Court of Appeals reconsideration, is considered voluntary submission to the court’s jurisdiction.This, however, is tempered by the concept of conditional appearance, such that a party who makes a special appearance to challenge, among others, the court’s jurisdiction over his person cannot be considered to have submitted to its authority.

14. LOURDES L. ERISTINGCOL vs. COURT OF APPEALS and RANDOLPH C. LIMJOCO, G.R. No. 167702, March 20, 2009. 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 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—fifteen years after the action was commenced in the Court of First Instance (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.

15. RUBY SHELTER BUILDERS AND REALTY DEVELOPMENT CORPORATION vs. HON. PABLO C. FORMARAN III, Presiding Judge of Regional Trial Court Branch 21, Naga City, as Pairing Judge for Regional Trial Court Branch 22, Formerly Presided By HON. NOVELITA VILLEGASLLAGUNO (Retired 01 May 2006), ROMEO Y. TAN, ROBERTO L. OBIEDO and ATTY. TOMAS A. REYES, G.R. No. 175914,February 10, 2009. While it is true that petitioner does not directly seek the recovery of title or possession of the property in question, 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. The prevalent doctrine is that 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. xxx xxx xxx It is also important to note that, with the amendments introduced by A.M. No. 04-204-SC, which became effective on 16 August 2004, the paragraph in Section 7, Rule 141 of the Rules of Court, pertaining specifically to the basis for computation of docket fees for real actions was deleted. Instead, Section 7(1) of Rule 141, as amended, provides that "in cases involving real property, the FAIR MARKET value of the REAL property in litigation STATED IN THE CURRENT TAX DECLARATION OR CURRENT ZONAL VALUATION OF THE BUREAU OF INTERNAL REVENUE, WHICH IS HIGHER, OR IF THERE IS NONE, THE STATED VALUE OF THE PROPERTY IN LITIGATION x x x" shall be the basis for the computation of the docket fees. Would such an amendment have an impact on Gochan, Siapno, and Serrano? The Court rules in the negative.

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16. ROMULO F. PECSON vs. COMMISSION ON ELECTIONS, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT and LYNDON A. CUNANAN, G.R. No. 182865December 24, 2008. 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 twentyday 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.

DOCKET FEES: 17. KOREA TECHNOLOGIES CO., LTD. vs. HON. ALBERTO A. LERMA, in his capacity as Presiding Judge of Branch 256 of Regional Trial Court of Muntinlupa City, and PACIFIC GENERAL STEEL MANUFACTURING CORPORATION, G.R. No. 143581, January 7, 2008. On July 17, 1998, 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. We stress, however, that 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. SEE LEONIDES MERCADO, represented by his heirs: Racquel D. Mercado, Jimmy D. Mercado, Henry D. Mercado, Louricar D. Mercado and Virgilio D. Mercado vs. COURT OF APPEALS and SAN MIGUEL CORPORATION,G.R. No. 169576, October 17, 2008.-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.

Page 8 Updates in Civil Procedure Zenaida T. Galapate-Laguilles Associate Justice Court of Appeals Otherwise, a counterclaim is merely permissive. When Mercado sought to annul the continuing hold-out agreement and deed of assignment (which he executed as security for his credit purchases), 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. Based on the foregoing, had these issues been tried separately, the efforts of the RTC and the parties would have had to be duplicated. Clearly, 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. SEE ALSO G.R. Nos. 154470-71,September 24, 2012,BANK OF COMMERCE vs. PLANTERS DEVELOPMENT BANK and BANGKO SENTRAL NG PILIPINAS and G.R. Nos. 154589-90,BANGKO SENTRAL NG PILIPINAS vs. PLANTERS DEVELOPMENT BANK- (FN No. 146) -When BOC filed its Answer with Compulsory Counterclaim, the effective rule then was A.M. No. 00-2-01-SC (March 1, 2000), which does not require payment of docket fees for compulsory counterclaims. Effective August 16, 2004, however, under Section 7, Rule 141, as amended by A.M. No. 04-2-04-SC, docket fees are now required to be paid even in compulsory counterclaim or cross-claims. See Korea Technologies Co., Ltd. v. Lerma, G.R. No. 143581, January 7, 2008, 542 SCRA 1, 16-17 -

SUMMONS: 18. PLANTERS DEVELOPMENT BANK vs. JULIE CHANDUMAL, G.R. No. 195619, September 5, 2012. Substituted service of summon made was invalidated due to the sheriff’s failure to specify in the return the necessary details of the failed attempts to effect personal service which would justify resort to substituted service of summons.

19. CONSTANTINO A. PASCUAL, substituted by his heirs, represented by Zenaida Pascual vs. LOURDES S. PASCUAL, G.R. No. 171916, December 4, 2009.

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Applying the above disquisitions, the jurisdiction over the person of the respondent was never vested with the RTC, because the manner of substituted service by the process server was apparently invalid and ineffective. As such, there was a violation of due process. Jurisdiction over the defendant is acquired either upon a valid service of summons or the defendant’s voluntary appearance in court. When the defendant does not voluntarily submit to the court’s jurisdiction or when there is no valid service of summons, "any judgment of the court which has no jurisdiction over the person of the defendant is null and void."

20. ARNEL SAGANA vs. RICHARD A. FRANCISCO, G.R. No.161952, October 2, 2009. Jurisprudence has long established that for substituted service of summons to be valid, the following must be demonstrated: (a) that personal service of summons within a reasonable time was impossible; (b) that efforts were exerted to locate the party; and (c) that 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 be stated in the proof of service or in the officer's return.

21. DATU PAX PAKUNG S. MANGUDADATU vs. THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and ANGELO O. MONTILLA, G.R. No. 179813, December 18, 2008. Indeed, if in ordinary civil cases (which involve only private and proprietary interests) personal service of summons is preferred and service by registered mail is not allowed on jurisdictional and due process grounds, with more reason should election cases (which involve public interest and the will of the electorate) strictly follow the hierarchy of modes of service of summons under the Rules of Court.

22. SPOUSES JULIAN SANTIAGO, SR. and LEONILA SANTIAGO and SPOUSES LIM JOSE ONG and MIMI ONG LIM vs. BANK OF THE PHILIPPINE ISLANDS as successor in interest of Far East Bank & Trust Co., substituted by Investments 2234 Philippines Fund I (SPV-AMC), Inc.,G.R. No. 163749, September 26, 2008. In Millenium Industrial Commercial Corporation v. Tan, it was held that service of summons upon a defendant corporation must be made on a representative so integrated with the corporation sued as to make it a priori presumable that he would realize his responsibilities and know what he should do with any legal papers received by him; that clearly then, there is in this case substantial compliance with the rule on service of summons; and that the need for speedy justice must prevail over technicality.

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23. DOLE PHILIPPINES, INC. (TROPIFRESH DIVISION) vs. HON. REINATO G. QUILALA in his capacity as pairing judge of Branch 150, RTC-Makati City, and ALL SEASON FARM, CORP.,G.R. No. 168723, July 9, 2008. Well-settled is the rule that service of summons on a domestic corporation is restricted, limited and exclusive to the persons enumerated in Section 11, Rule 14 of the 1997 Rules of Civil Procedure, following the rule in statutory construction that expressio unios est exclusio alterius.Service must therefore be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.

24. DOLORES MONTEFALCON & LAURENCE MONTEFALCON RONNIE S. VASQUEZ, G.R. No. 165016, June 17, 2008.

vs.

To acquire jurisdiction over the person of a defendant, service of summons must be personal, or if this is not feasible within a reasonable time, then by substituted service. It is of judicial notice that overseas Filipino seafarers are contractual employees. They go back to the country once their contracts expire, and wait for the signing of another contract with the same or new manning agency and principal if they wish. It is therefore common knowledge that a Filipino seaman often has a temporary residence in the urban areas like Metro Manila, where majority of the manning agencies hold offices, aside from his home address in the province where he originates. In this case, respondent Vasquez hails from Camarines Sur but he has lived in Taguig City when the complaint was filed. Notice may then be taken that he has established a residence in either place. Residence is a place where the person named in the summons is living at the time when the service was made, even though he was temporarily abroad at the time. xxx xxx xxx In this case, we agree that the substituted service in Taguig was valid and justified because previous attempts were made by the sheriffs to serve the summons, but to no avail. Diligent efforts were evidently exerted in the conduct of the concerned sheriffs in the performance of their official duty. Also, the person who received the alias summons was of suitable age and discretion, then residing at Vasquez's dwelling. There is no quarrel that it was really Vasquez's residence, as evidenced by his employment contract, executed under the supervision and authority of the Philippine Overseas Employment Administration (POEA). Vasquez cannot deny that in his contract of employment and seafarer's information sheet, both bearing POEA's letterhead, his address in Metro Manila was what was correctly mentioned in the alias summons that Bejer received. She must have informed Vasquez one way or another of the suit upon his return in October 2000 after finishing his nine-month contract with Fathom Ship Management.

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MODES OF DISCOVERY: 25. SOCORRO LIMOS, ROSA DELOS REYES and SPOUSES ROLANDO DELOS REYES and EUGENE DELOS REYES vs. SPOUSES FRANCISCO P. ODONES and ARWENIA R. ODONES, G.R. No. 186979, August 11, 2010 As such, it is the duty of the courts to examine thoroughly the circumstances of each case and to determine the applicability of the modes of discovery, bearing always in mind the aim to attain an expeditious administration of justice. The determination of the sanction to be imposed upon a party who fails to comply with the modes of discovery also rests on sound judicial discretion.

TRIAL: 26. DOUGLAS F. ANAMA vs. PHILIPPINE SAVINGS BANK, SPOUSES SATURNINA BARIA &TOMAS CO and THE REGISTER OF DEEDS, METRO MANILA, DISTRICT II,G.R. No. 187021, January 25, 2012. Elementary is the rule that every motion must contain the mandatory requirements of notice and hearing and that there must be proof of service thereof. The Court has consistently held that a motion that fails to comply with the above requirements is considered a worthless piece of paper which should not be acted upon. The rule, however, is not absolute. There are motions that can be acted upon by the court ex parte if these would not cause prejudice to the other party. They are not strictly covered by the rigid requirement of the rules on notice and hearing of motions.

27. UNITED PULP AND PAPER CO., INC. vs. ACROPOLIS CENTRAL GUARANTY CORPORATION, G.R. No. 171750 , January 25, 2012. As an integral component of procedural due process, the three-day notice required by the Rules is not intended for the benefit of the movant. Rather, the requirement is for the purpose of avoiding surprises that may be sprung upon the adverse party, who must be given time to study and meet the arguments in the motion before a resolution by the court. Principles of natural justice demand that the right of a party should not be affected without giving it an opportunity to be heard.

28. PRISCILLA ALMA JOSE RAMON C. JAVELLANA, ET AL.,G.R. No. 158239, January 25, 2012.

vs.

The denial of a motion for reconsideration of an order granting the defending party’s motion to dismiss is not an interlocutory but a final order because it puts an end to the particular matter involved, or settles definitely the matter therein disposed of, as to leave

Page 12 Updates in Civil Procedure Zenaida T. Galapate-Laguilles Associate Justice Court of Appeals nothing for the trial court to do other than to execute the order. Accordingly, the claiming party has a fresh period of 15 days from notice of the denial within which to appeal the denial.

29. BANCO DE ORO-EPCI, INC. (formerly Equitable PCI Bank) vs. JOHN TANSIPEK, G.R. No. 181235, July 22, 2009. It is important to note that a party declared in default – respondent Tansipek in this case – is not barred from appealing from the judgment on the main case, whether or not he had previously filed a Motion to Set Aside Order of Default, and regardless of the result of the latter and the appeals therefrom. However, the appeal should be based on the Decision’s being contrary to law or the evidence already presented, and not on the alleged invalidity of the default order.

30. JOSEPHINE MARMO, NESTOR ESGUERRA, DANILO DEL PILAR and MARISA DEL PILAR vs. MOISES O. ANACAY, G.R. No. 182585, November 27, 2009. An Order denying a Motion to Dismiss is interlocutory because it does not finally dispose of the case, and, in effect, directs the case to proceed until final adjudication by the court. Only when the court issues an order outside or in excess of jurisdiction or with grave abuse of discretion, and the remedy of appeal would not afford adequate and expeditious relief, will certiorari be considered an appropriate remedy to assail an interlocutory order.

31. JOSEPHINE MARMO, NESTOR ESGUERRA, DANILO DEL PILAR and MARISA DEL PILAR vs. MOISES O. ANACAY, G.R. No. 182585, November 27, 2009. An Order denying a Motion to Dismiss is interlocutory because it does not finally dispose of the case, and, in effect, directs the case to proceed until final adjudication by the court. Only when the court issues an order outside or in excess of jurisdiction or with grave abuse of discretion, and the remedy of appeal would not afford adequate and expeditious relief, will certiorari be considered an appropriate remedy to assail an interlocutory order.

32. PEDRO T. SANTOS, JR. vs. CORONA, G.R. No. 170943, September 23, 2008. To pursue the matter to its logical conclusion, if a party declared in default is entitled to notice of subsequent proceedings, all the more should a party who has not been declared in default be entitled to such notice. But what happens if the residence or whereabouts of the defending party is not known or he cannot be located? In such a case, there is obviously no way notice can be sent to him and the notice requirement cannot apply to him. The law

Page 13 Updates in Civil Procedure Zenaida T. Galapate-Laguilles Associate Justice Court of Appeals does not require that the impossible be done. Nemo tenetur ad impossibile. The law obliges no one to perform an impossibility.Laws and rules must be interpreted in a way that they are in accordance with logic, common sense, reason and practicality.

JUDGMENT: 33. GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) vs. HEIRS OF FERNANDO F. CABALLERO, represented by his daughter, JOCELYN G. CABALLERO,G.R. Nos. 158090, October 4, 2010. In Ayala Corporation v. Madayag, the Court, in interpreting the third rule laid down in Sun Insurance Office, Ltd. v. Judge Asuncion regarding awards of claims not specified in the pleading, held that the same refers only to damages arising after the filing of the complaint or similar pleading as to which the additional filing fee therefor shall constitute a lien on the judgment.

34. METROPOLITAN BANK AND TRUST CO. and SOLIDBANK CORPORATION vs. BERNARDITA H. PEREZ, represented by her Attorneyin-Fact PATRIA H. PEREZ,G.R. No. 181842, February 5, 2010. The exception contemplated as to claims not specified or to claims although specified are left for determination of the court is limited only to any damages that may arise after the filing of the complaint or similar pleading for then it will not be possible for the claimant to specify nor speculate as to the amount thereof.

35. SIMEON CABANG, VIRGINIA CABANG and VENANCIO CABANG ALIAS "DONDON" vs. MR. & MRS. GUILLERMO BASAY, G.R. No. 180587, March 20, 2009. A final and executory judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact or law and whether it will be made by the court that rendered it or by the highest court in the land.The only exceptions to this rule are the correction of (1) clerical errors; (2) the so-called nunc pro tunc entries which cause no prejudice to any party, and (3) void judgments. xxx

xxx

xxx

Furthermore, as a matter of settled legal principle, a writ of execution must adhere to every essential particulars of the judgment sought to be executed.An order of execution may not vary or go beyond the terns of the judgment it seeks to enforce. A writ of execution must conform to the judgment and if it is different from, goes beyond or varies the tenor of the

Page 14 Updates in Civil Procedure Zenaida T. Galapate-Laguilles Associate Justice Court of Appeals judgment which gives it life, it is a nullity. Otherwise stated, when the order of execution and the corresponding writ issued pursuant thereto is not in harmony with and exceeds the judgment which gives it life, they have pro tanto no validity– to maintain otherwise would be to ignore the constitutional provision against depriving a person of his property without due process of law.

REMEDIES AGAINST JUDGMENT: 36. ROWENA PADILLA-RUMBAUA 166738, August 14, 2009.

EDWARD

RUMBAUA,

G.R.

No.

A remand of the case to the RTC for further proceedings amounts to the grant of a new trial that is not procedurally proper at this stage. Section 1 of Rule 37 provides that an aggrieved party may move the trial court to set aside a judgment or final order already rendered and to grant a new trial within the period for taking an appeal.

37. JULIO B. PURCON, JR., vs. MRM PHILIPPINES, INC. and MIGUEL L. RIVERA/MARITIME RESOURCES MANAGEMENT, G.R. No. 182718, September 26, 2008. While Rule 38 uses the phrase "any court," it refers only to Municipal/Metropolitan and Regional Trial Courts.

EXECUTION: 38. VASHDEO GAGOOMAL vs. SPOUSES RAMON AND NATIVIDAD VILLACORTA, G.R. No. 192813, January 18, 2012. It is a basic principle of law that money judgments are enforceable only against property incontrovertibly belonging to the judgment debtor, and if property belonging to any third person is mistakenly levied upon to answer for another man’s indebtedness, such person has all the right to challenge the levy through any of the remedies provided for under the Rules of Court.

39. CESAR V. MADRIAGA, JR. vs. CHINA BANKING CORPORATION, G.R. No. 192377, July 25, 2012. The issuance by the RTC of a writ of possession in favor of the purchaser of the said real property ceases to be ministerial and may no longer be done ex parte. For the exception to apply, however, the property need not only be possessed by a third-party, but also held by the third-party adversely to the debtor/mortgagor.

Page 15 Updates in Civil Procedure Zenaida T. Galapate-Laguilles Associate Justice Court of Appeals

40. ALPA-PCM, INC. VINCENT BULASAO, JULIET BULASAO and SUSANA BULASAO, HONORABLE JUDGE DANILO F. CAMACHO, and THE DEPUTY SHERIFF OF THE REGIONAL TRIAL COURT, LA TRINIDAD, BENGUET, G.R. No. 197124, March 19, 2012. Rule 42 of the Rules of Court governs the appeal of a decision of the RTC rendered in the exercise of its appellate jurisdiction; the appeal is made by filing a petition for review with the CA. Despite the filing of a petition with the CA, however, Rule 42 grants the RTC residual jurisdiction to order execution pending appeal, so long as (1) the CA has not yet given due course to the petition, and (2) the requirements of Section 2, Rule 39 are observed.

41.

G.R. No. 163286, August 22, 2012

MINDANAO TERMINAL AND BROKERAGE SERVICE, COURT OF APPEALS AND PHILIPPINE PORTS AUTHORITY

INC.,

vs.

x-----------------------x G.R. No. 166025 PHILIPPINE PORTS AUTHORITY vs. HON. CESAR M. SOLIS, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 14, MANILA AND MINDANAO TERMINAL AND BROKERAGE SERVICE, INC. x-----------------------x G.R. No. 170269 PHILIPPINE PORTS AUTHORITY vs. HON. CESAR M. SOLIS, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 14, MANILA AND MINDANAO TERMINAL AND BROKERAGE SERVICE, INC. The rule is clear that it becomes mandatory or ministerial duty of the court to issue a writ of execution to enforce the judgment which has become executory.

42. CRISANTA ALCARAZ MIGUEL vs. JERRY D. MONTANEZ,G.R. No. 191336, January 25, 2012. In the case at bar, the Revised Katarungang Pambarangay Law provides for a twotiered mode of enforcement of an amicable settlement, to wit: (a) by execution by the Punong Barangay which is quasi-judicial and summary in nature on mere motion of the party entitled thereto; and (b) an action in regular form, which remedy is judicial. However, the

Page 16 Updates in Civil Procedure Zenaida T. Galapate-Laguilles Associate Justice Court of Appeals mode of enforcement does not rule out the right of rescission under Art. 2041 of the Civil Code. The availability of the right of rescission is apparent from the wording of Sec. 417 itself which provides that the amicable settlement "may" be enforced by execution by the lupon within six (6) months from its date or by action in the appropriate city or municipal court, if beyond that period. The use of the word "may" clearly makes the procedure provided in the Revised Katarungang Pambarangay Law directory or merely optional in nature.

43. BPI FAMILY SAVINGS BANK, INC. vs. GOLDEN POWER DIESEL SALES CENTER, INC. and RENATO C. TAN, G.R. No. 176019, January 12, 2011. Therefore, in an extrajudicial foreclosure of real property, when the foreclosed property is in the possession of a third party holding the same adversely to the judgment obligor, the issuance by the trial court of a writ of possession in favor of the purchaser of said real property ceases to be ministerial and may no longer be done ex parte. The procedure is for the trial court to order a hearing to determine the nature of the adverse possession. For the exception to apply, however, the property need not only be possessed by a third party, but also held by the third party adversely to the judgment obligor.

44. LA CAMPANA DEVELOPMENT CORPORATION vs. ARTURO LEDESMA, HON. JUDGE ESTRELLA T. ESTRADA, in her capacity as PRESIDING JUDGE, Regional Trial Court, Branch 83, Quezon City, and the HON. COURT OF APPEALS,G.R. No. 154152, August 25, 2010. It is true that Section 21, Rule 70 of the Rules of Court provides that "[t]he judgment of the Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken therefrom." However, the Court ruled in Benedicto v. Court of Appeals that "on appeal the appellate court may stay the said writ should circumstances so require. x x x even if RTC judgments in unlawful detainer cases are immediately executory, preliminary injunction may still be granted." Citing Amagan v. Marayag and Vda. de Legaspi v. Avendaño, the Court explained in Benedicto that: Where the action, therefore, is one of illegal detainer, as distinguished from one of forcible entry, and the right of the plaintiff to recover the premises is seriously placed in issue in a proper judicial proceeding, it is more equitable and just and less productive of confusion and disturbance of physical possession, with all its concomitant inconvenience and expenses. For the Court in which the issue of legal possession, whether involving ownership or not, is brought to restrain, should a petition for preliminary injunction be filed with it, the effects of any order or decision in the unlawful detainer case in order to await the final judgment in the more substantive case involving legal possession or ownership. x x x

Page 17 Updates in Civil Procedure Zenaida T. Galapate-Laguilles Associate Justice Court of Appeals

45. THE PARENTS-TEACHERS ASSOCIATION (PTA) OF ST. MATHEW CHRISTIAN ACADEMY ET. AL. vs. THE METROPOLITAN BANK and TRUST CO.,G.R. No. 176518, March 2, 2010. As a general rule, the issuance of a writ of possession after the foreclosure sale and during the period of redemption is ministerial. As an exception, it ceases to be ministerial if there is a third party holding the property adversely to the judgment debtor. Ordinarily, a purchaser of property in an extrajudicial foreclosure sale is entitled to possession of the property. Thus, whenever the purchaser prays for a writ of possession, the trial court has to issue it as a matter of course. However, the obligation of the trial court to issue a writ of possession ceases to be ministerial once it appears that there is a third party in possession of the property claiming a right adverse to that of the debtor/mortgagor. Where such third party exists, the trial court should conduct a hearing to determine the nature of his adverse possession.

46. EMMANUEL C. VILLANUEVA vs. CHERDAN LENDING INVESTORS CORPORATION, G.R. No. 177881, October 13, 2010. We uniformly held that the obligation of the court to issue an ex parte writ of possession in favor of the purchaser in an extrajudicial foreclosure sale ceases to be ministerial once it appears that there is a third party in possession of the property who is claiming a right adverse to that of the debtor/mortgagor.

47. ELIGIO P. MALLARI vs. GOVERNMENT SERVICE INSURANCE SYSTEM and THE PROVINCIAL SHERIFF OF PAMPANGA, G.R. No. 157659, January 25, 2010. A writ of possession, which commands the sheriff to place a person in possession of real property, may be issued in: (1) land registration proceedings under Section 17 of Act No. 496; (2) judicial foreclosure, provided the debtor is in possession of the mortgaged property, and no third person, not a party to the foreclosure suit, had intervened; (3) extrajudicial foreclosure of a real estate mortgage, pending redemption under Section 7 of Act No. 3135, as amended by Act No. 4118; and (4) execution sales, pursuant to the last paragraph of Section 33, Rule 39 of the Rules of Court.

48. LAND BANK OF THE PHILIPPINES vs, MANUEL O. GALLEGO, JR., VELASCO, JR., and JOSEPH L. GALLEGO and CHRISTOPHER GALLEGO, G.R. No. 173226, January 20, 2009. The execution of a judgment before becoming final by reason of appeal is recognized.

Page 18 Updates in Civil Procedure Zenaida T. Galapate-Laguilles Associate Justice Court of Appeals However, this highly exceptional case must find itself firmly founded upon good reasons warranting immediate execution. For instance, execution pending appeal was granted by this Court where the prevailing party is of advanced age and in a precarious state of health and the obligation in the judgment is non-transmissible, being for support, or where the judgment debtor is insolvent. Execution pending appeal was also allowed by this Court where defendants were exhausting their income and have no other property aside from the proceeds of the subdivision lots subject of the action.

49. ALLIED BANKING CORPORATION vs. RUPERTO JOSE H. MATEO, represented by WARLITA MATEO, as Attorney-in-Fact, G.R. No. 167420, June 5, 2009. The general rule in redemption is that it is not sufficient that a person offering to redeem manifests his desire to do so. The statement of intention must be accompanied by an actual and simultaneous tender of payment. This constitutes the exercise of the right to repurchase.

PROVISIONAL REMEDIES: 50. JOSEPH BERNARDEZ vs. COMMISSION ON AVELINO TOLEAN,G.R. No. 190382, March 9, 2010.

ELECTIONS

and

In Caneland Sugar Corporation v. Alon, it was settled that injunctive reliefs are preservative remedies for the protection of substantive rights and interests. Injunction is not a cause of action in itself, but merely a provisional remedy, an adjunct to a main suit. When the act sought to be enjoined has become fait accompli, the prayer for provisional remedy should be denied.

51. NELSON JENOSA and his son NIÑO CARLO JENOSA, SOCORRO CANTO and her son PATRICK CANTO, CYNTHIA APALISOK and her daughter CYNDY APALISOK, EDUARDO VARGAS and his son CLINT EDUARD VARGAS, and NELIA DURO and her son NONELL GREGORY DURO vs. REV. FR. JOSE RENE C. DELARIARTE, O.S.A., in his capacity as the incumbent Principal of the High School Department of the University of San Agustin, and the UNIVERSITY OF SAN AGUSTIN, herein represented by its incumbent President REV. FR. MANUEL G. VERGARA, O.S.A.,G.R. No. 172138, September 8, 2010. Since injunction is the strong arm of equity, he who must apply for it must come with

Page 19 Updates in Civil Procedure Zenaida T. Galapate-Laguilles Associate Justice Court of Appeals equity or with clean hands. This is so because among the maxims of equity are (1) he who seeks equity must do equity, and (2) he who comes into equity must come with clean hands. The latter is a frequently stated maxim which is also expressed in the principle that he who has done inequity shall not have equity. It signifies that a litigant may be denied relief by a court of equity on the ground that his conduct has been inequitable, unfair and dishonest, or fraudulent, or deceitful as to the controversy in issue.

52. ROGER V. NAVARRO vs. HON. JOSE L. ESCOBIDO, Presiding Judge, RTC Branch 37, Cagayan de Oro City, and KAREN T. GO, doing business under the name KARGO ENTERPRISES, G.R. No. 153788,November 27, 2009. We see nothing in these provisions which requires the applicant to make a prior demand on the possessor of the property before he can file an action for a writ of replevin. Thus, prior demand is not a condition precedent to an action for a writ of replevin.

53. METRO, INC. and SPOUSES FREDERICK JUAN and LIZA JUAN vs. LARA'S GIFTS AND DECORS, INC., LUIS VILLAFUERTE, JR. and LARA MARIA R. VILLAFUERTE, G.R. No. 171741,November 27, 2009. The rule that "when the writ of attachment is issued upon a ground which is at the same time the applicant’s cause of action, the only other way the writ can be lifted or dissolved is by a counter-bond" is applicable in this case. It is clear that in respondents’ amended complaint of fraud is not only alleged as a ground for the issuance of the writ of preliminary attachment, but it is also the core of respondents’ complaint. The fear of the Court of Appeals that petitioners could force a trial on the merits of the case on the strength of a mere motion to dissolve the attachment has a basis.

54. SOFIA TORRES, FRUCTOSA TORRES, HEIRS OF MARIO TORRES and SOLAR RESOURCES, INC. vs. NICANOR SATSATIN, EMILINDA AUSTRIA SATSATIN, NIKKI NORMEL SATSATIN and NIKKI NORLIN SATSATIN, G.R. No. 166759, November 25, 2009. There are two ways of discharging the attachment. First, to file a counter-bond in accordance with Section 12 of Rule 57. Second[,] [t]o quash the attachment on the ground that it was irregularly or improvidently issued, as provided for in Section 13 of the same rule. Whether the attachment was discharged by either of the two ways indicated in the law, the attachment debtor cannot be deemed to have waived any defect in the issuance of the attachment writ by simply availing himself of one way of discharging the attachment writ, instead of the other. The filing of a counter-bond is merely a speedier way of discharging the attachment writ instead of the other way.

Page 20 Updates in Civil Procedure Zenaida T. Galapate-Laguilles Associate Justice Court of Appeals

55. METRO, INC. and SPOUSES FREDERICK JUAN and LIZA JUAN vs. LARA'S GIFTS AND DECORS, INC., LUIS VILLAFUERTE, JR. and LARA MARIA R. VILLAFUERTE,G.R. No. 171741, November 27, 2009. In Liberty Insurance Corporation v. Court of Appeals, we explained: To sustain an attachment on this ground, it must be shown that the debtor in contracting the debt or incurring the obligation intended to defraud the creditor. The fraud must relate to the execution of the agreement and must have been the reason which induced the other party into giving consent which he would not have otherwise given. To constitute a ground for attachment in Section 1(d), Rule 57 of the Rules of Court, fraud should be committed upon contracting the obligation sued upon. A debt is fraudulently contracted if at the time of contracting it the debtor has a preconceived plan or intention not to pay, as it is in this case. The applicant for a writ of preliminary attachment must sufficiently show the factual circumstances of the alleged fraud because fraudulent intent cannot be inferred from the debtor’s mere non-payment of the debt or failure to comply with his obligation. xxx

xxx

xxx

Moreover, the reliance of the Court of Appeals in the cases of Chuidian v. Sandiganbayan, FCY Construction Group, Inc. v. Court of Appeals, and Liberty Insurance Corporation v. Court of Appeals is proper. The rule that "when the writ of attachment is issued upon a ground which is at the same time the applicant’s cause of action, the only other way the writ can be lifted or dissolved is by a counter-bond" is applicable in this case. It is clear that in respondents’ amended complaint of fraud is not only alleged as a ground for the issuance of the writ of preliminary attachment, but it is also the core of respondents’ complaint. The fear of the Court of Appeals that petitioners could force a trial on the merits of the case on the strength of a mere motion to dissolve the attachment has a basis.

56. ARMANDO Q. CANLAS, MIGUEL D. CAPISTRANO, MARRIETA PIA vs. NAPICO HOMEOWNERS ASS’N., I – XIII, INC., ET AL., G.R. No. 182795, June 5, 2008. The threatened demolition of a dwelling by virtue of a final judgment of the court, which in this case was affirmed with finality by this Court in G.R. Nos. 177448, 180768, 177701, 177038, is not included among the enumeration of rights as stated in the abovequoted Section 1 for which the remedy of a writ of amparo is made available. Their claim to their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo.

57. LPBS COMMERCIAL, INC. vs. HON. VENANCIO J. AMILA, in his capacity as Presiding Judge of the

Page 21 Updates in Civil Procedure Zenaida T. Galapate-Laguilles Associate Justice Court of Appeals

Regional Trial Court of Tagbilaran City, Br. 3 and THE FIRST CONSOLIDATED BANK (FCB) OF BOHOL, INC.,G.R. No. 147443, February 11, 2008. The order denying petitioner’s motion for issuance of a TRO is an interlocutory order on an incident which does not touch on the merits of the case or put an end to the proceedings.The remedy against an interlocutory order is not certiorari, but an appeal in case of an unfavorable decision. Only if there are circumstances that clearly demonstrate the inadequacy of an appeal that the remedy of certiorari is allowed,12 none of which is present in the instant case.